Page v. Superior Court

• Decision Date: 26 January 1995
• Docket Number: No. C018589,C018589
• Court: California Court of Appeals Court of Appeals
• Parties: , 66 Fair Empl.Prac.Cas. (BNA) 1798 Penne M. PAGE, Petitioner, v. SUPERIOR COURT of Sacramento County, Respondent; 3NET SYSTEMS, INC. et al., Real Parties in Interest.

Page 529

37 Cal.Rptr.2d 529

31 Cal.App.4th 1206, 66 Fair Empl.Prac.Cas. (BNA) 1798

Penne M. PAGE, Petitioner, v. SUPERIOR COURT of Sacramento County, Respondent 3NET SYSTEMS, INC. et al., Real Parties in Interest.

No. C018589.

Court of Appeal, Third District, California.

Jan. 26, 1995.

Review Denied March 30, 1995.

Christopher H. Whelan, Inc., Gold River, for petitioner.

No appearance for respondent.

Michael A. Bishop, Daryl M. Thomas, Matheny, Poidmore & Sears, Judy H. Hersher, Barbara A. Morris, Robert G. Strauch, Downey, Brand, Seymour & Rohwer, Sacramento, for real parties in interest.

PUGLIA, Presiding Justice.

Petitioner (plaintiff) seeks a writ of mandate directing the respondent superior court to vacate its order sustaining without leave to amend the demurrer of real party in interest Dennis Montgomery (Montgomery) to the first cause of action of plaintiff's second amended complaint, and to enter an order overruling the demurrer. At issue is whether a supervisor can be held personally liable for sexual harassment of and retaliation against an employee in violation of the California Fair Employment and Housing Act, (FEHA; Gov.Code, § 12900 et seq.; further statutory references to sections of an undesignated code are to the Government Code.). We shall conclude a supervisor is a "person" subject to liability under FEHA.

I

The facts are taken from the material allegations of fact in plaintiff's second amended complaint. In reviewing the sufficiency of a complaint against a demurrer, all material facts are deemed admitted. If the material facts show the plaintiff is entitled to any relief, the complaint will be held sufficient. (See, e.g., Scott v. City of Indian Wells (1972) 6 Cal.3d 541, 549, 99 Cal.Rptr. 745, 492 P.2d 1137.)

Real party in interest 3NET Systems, Inc., (3NET) hired plaintiff in March 1990 as an assistant controller. Plaintiff was terminated on March 17, 1993. At that time, plaintiff worked as a research specialist. During plaintiff's employment, Montgomery was plaintiff's supervisor, the vice-president of 3NET and the owner of an interest in the corporation. Real party in interest William Manak (Manak) was the corporation's president and chief executive officer. Manak also owned an interest in the corporation.

On many occasions during plaintiff's employment, Montgomery asked plaintiff to orally copulate him. During the last six months of her employment, plaintiff was required to travel to job sites in the United States and Canada. Several times, Montgomery told plaintiff he was going to show up at one of the job sites and have sexual relations with her. On two occasions, Montgomery masturbated in plaintiff's presence during working hours, demanded that plaintiff watch him, asked to touch her breasts, and asked if it " 'turned her on' " to watch him. During one such incident, plaintiff ran from the office to her car, but Montgomery followed her, grabbed her arm, attempted to grab her breasts, and tried to prevent her from getting into her car.

Plaintiff told Montgomery she objected to his conduct, complained repeatedly to Manak and 3NET about Montgomery's conduct toward plaintiff and others, and demanded that Montgomery's offensive conduct be stopped. Despite assurances that the situation would be addressed and Montgomery would be fired, 3NET, Manak and Montgomery (collectively, "defendants") continued to employ Montgomery and failed to take steps to prevent further similar conduct by Montgomery.

Plaintiff suffered severe emotional distress as a result of Montgomery's conduct and was forced to take a one month leave of absence. Defendants promised plaintiff a new position upon her return. Instead, defendants retaliated against plaintiff for reporting Montgomery's sexual harassment of plaintiff and others by giving the promised position to someone else, increasing hostility toward plaintiff, and ultimately firing plaintiff under the pretext that her services were no longer needed.

The first cause of action of plaintiff's second amended complaint charges all three defendants, includes the above factual allegations, and further alleges that defendants' conduct constituted sexual harassment, retaliation and the creation of a sexually hostile environment in violation of FEHA. ¹

Montgomery demurred to the first cause of action of the second amended complaint on the ground a supervisor cannot be held personally liable for damages for sexual harassment or retaliation under FEHA, relying primarily on analogous federal law. Respondent superior court sustained Montgomery's demurrer without leave to amend.

Plaintiff sought review of the respondent court's order in the instant petition for writ of mandate. After receiving opposition from Montgomery, we notified the parties we were considering issuing a peremptory writ in the first instance and invited further opposition. Montgomery filed further opposition. We shall order a peremptory writ of mandate to issue.

II

Preliminarily, we dispose of Montgomery's contention that plaintiff's remedy by appeal from a final judgment is adequate and therefore that review by mandate is inappropriate. Interlocutory review of an order at the pleading stage is appropriate where, as here, a question of first impression and of statewide importance is raised, and the denial of writ review could result in a reversal and retrial. (See, e.g., Taylor v. Superior Court (1979) 24 Cal.3d 890, 893-894, 157 Cal.Rptr. 693, 598 P.2d 854; Babb v. Superior Court (1971) 3 Cal.3d 841, 851, 92 Cal.Rptr. 179, 479 P.2d 379.)

III

Plaintiff contends the order sustaining the demurrer was erroneous because under FEHA Montgomery is a "person" subject to liability. Plaintiff further argues Montgomery meets the definition of "employer" under FEHA, but since we agree with plaintiff's first contention, we need not and therefore do not reach that question. Nor is it necessary for us to determine whether Montgomery is an "agent of an employer" under FEHA. (See §§ 12926, subd. (d); 12940, subd. (h)(3)(A).) We shall consider only the individual liability of supervisors, and not that of nonsupervisory co-workers.

Under FEHA, it is an unlawful employment practice for "an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person " to harass an employee or applicant because of sex. (§ 12940, subd. (h)(1); emphasis added.) It is also an unlawful employment practice for "any employer, labor organization, employment agency, or person " to "discharge, expel, or otherwise discriminate" (i.e., to retaliate) against anyone who has opposed a practice forbidden by FEHA or has filed a complaint, testified or assisted in any FEHA proceeding. (§ 12940, subd. (f); emphasis added.) FEHA defines "person" as "one or more individuals, partnerships, associations, corporations, ... legal representatives, trustees, trustees in bankruptcy, and receivers or other fiduciaries." (§ 12925, subd. (d); emphasis added.) ²

"In construing a statute 'we begin with the fundamental rule that a court "should ascertain the intent of the Legislature so as to effectuate the purpose of the law." ' [Citations.] 'An equally basic rule of statutory construction is, however, that courts are bound to give effect to statutes according to the usual, ordinary import of the language employed in framing them.' [Citations.] Although a court may properly rely on extrinsic aids, it should first turn to the words of the statute to determine the intent of the Legislature. [Citations.] 'If the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.' [Citations.]" (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 698, 170 Cal.Rptr. 817, 621 P.2d 856.)

The language of FEHA indicates the Legislature intended to authorize administrative and civil complaints against a supervisor for harassment and retaliation. These unlawful employment practices can be committed by a "person," a term defined in FEHA to include an individual. (§§ 12925, subd. (d); 12940, subds. (f), (h.).) Consistently, the enforcement provisions of FEHA include a "person" among those who may be accused in a FEHA action.

Thus, a party aggrieved by an unlawful employment practice may file a complaint with the Department of Fair Employment and Housing (DFEH), stating the name and address of "the person, employer, labor organization or employment agency alleged to have committed the unlawful practice complained of...." (§ 12960; emphasis added.) A copy of the complaint is served on the "person, employer, labor organization or employment agency." (§ 12962.) Administrative discovery proceedings may be initiated against the "person" or "individual" alleged to have committed the unlawful practice. (§§ 12963.1; 12963.2; 12963.3, subd. (a); 12963.4, subd. (a); 12963.5, subd. (a).) DFEH may attempt to eliminate the unlawful practice by conciliation (§ 12963.7), and if the complaint is resolved by agreement, DFEH may bring an injunctive action against any "person" who is in violation of the agreement (§ 12964).

If the complaint is not resolved by conciliation, DFEH may issue an accusation against "the person, employer, labor organization or employment agency accused, which shall be known as the respondent," and prosecute the accusation before the Fair Employment and Housing Commission (FEHC). (§§ 12965, subd. (a); 12967.) The FEHC may award affirmative relief against the accused, including actual damages for emotional injury, and an administrative fine in lieu of punitive damages. (§ 12970.) If the DFEH fails to issue an accusation, it must issue a "right-to-sue notice," upon request, which authorizes the aggrieved party to file a civil action in state court against "the person, employer, labor organization or employment agency...