Reeves v. Safeway Stores, Inc.

• Decision Date: 29 July 2004
• Docket Number: No. H024375.,H024375.
• Citation: 16 Cal.Rptr.3d 717,121 Cal.App.4th 95
• Parties: William McLeod REEVES, Plaintiff and Appellant, v. SAFEWAY STORES, INC., Defendant and Respondent.
• Court: California Court of Appeals

16 Cal.Rptr.3d 717

121 Cal.App.4th 95

William McLeod REEVES, Plaintiff and Appellant, v.SAFEWAY STORES, INC., Defendant and Respondent.

No. H024375.

Court of Appeal, Sixth District.

July 29, 2004.

Theresa L. Pfeiffer, Los Gatos, for Plaintiff and AppellantWilliam McLeod Reeves.

Littler Mendelson, Nancy E. Pritikin, San Francisco, Neda N. Dal Cielo, San Jose, for Defendant and RespondentSafeway Stores, Inc.

RUSHING, P.J.

The Fair Employment and Housing Act,Government Code sections 12900 et seq.(FEHA), prohibits an employer from firing a worker in retaliation for the worker's complaining about incidents of sexual harassment in the workplace.(Gov.Code, § 12940, subds. (h), (j).)¹An employer can defeat such a claim by showing that it acted not in response to the worker's complaints but for legitimate, nonretaliatory reasons.This case presents the question whether an employer may be liable for retaliatory discharge when the supervisor who initiates disciplinary proceedings acts with retaliatory animus, but the cause for discipline is separately investigated and the ultimate decision to discharge the plaintiff is made by a manager with no knowledge that the worker has engaged in protected activities.We hold that so long as the supervisor's retaliatory motive was an actuating, but-for cause of the dismissal, the employer may be liable for retaliatory discharge.Here the evidence raised triable issues as to the existence and effect of retaliatory motive on the part of the supervisor, and as to whether the manager and the intermediate investigator acted as tools or "cat's paws" for the supervisor, that is, instrumentalities by which his retaliatory animus was carried into effect to plaintiff's injury.We therefore reverse a summary judgment granted to the employer.

FACTUAL AND PROCEDURAL BACKGROUND

PlaintiffWilliam McLeod Reeves worked for defendantSafeway Stores, Inc.(Safeway) as a food clerk from May 1969 until his discharge in July 1998.In or before late 1997, he became aware of conduct that he believed constituted sexual harassment of female employees in the store where he worked.The main offenders seemed to be Brian Sparks and Steve Prodes, the night manager.At least two female workers complained to plaintiff about the problem, and at least one of them asked him to speak to store management about it.In December 1997, and several times thereafter, plaintiff complained to store manager Fred Demarest.Plaintiff testified that Demarest seemed resentful and sought to "trivialize" the complaints, initially saying something to the effect that women were "not such pure innocent things" as plaintiff supposed, and later telling plaintiff, "Bill, as far as I'm concerned, unless these gals come to me and complain about it ..., the problem exists between your ears."Demarest testified that in response to plaintiff's complaints he asked "many employees" if they were experiencing sexual harassment, and "got absolutely nothing back that was conclusive or that even hinted of sexual harassment."However Stephanie Alves testified that she herself complained directly to Demarest, with no apparent result, about an episode of what she considered sexual harassment by Sparks and Prodes.She also heard store manager Henry Sukovaty refer to plaintiff sarcastically as "Mr. Sexual Harassment."²Sukovaty himself had, according to Alves, made inappropriate sexual comments to her.Within a year after plaintiff's dismissal, Prodes was discharged for sexual harassment.

District manager Moira Susan Hollis testified that "if someone makes a complaint to the store manager about sexual harassment, the store manager is supposed to ... give that complaint to [the human resources department]" for investigation.She further testified that Demarest behaved inappropriately if, as he and plaintiff testified, he conducted his own investigation rather than referring plaintiff's complaints to human resources.

Although plaintiff's shift ended at midnight, he sometimes remained past that time to socialize with co-workers.Demarest testified that he"asked"plaintiff"on a couple of occasions not to enter the store after closing."Plaintiff asserted that coworker Ricky Bloor had relayed a statement by Demarest that plaintiff"should not stay too long" after his shift ended.Plaintiff declared that he"respected" this request.Contrary to repeated suggestions in Safeway's brief, there is no evidence, controverted or otherwise, that Demarest ever gave plaintiff an order, instruction, or directive on this point, as distinct from a request or suggestion.

At 12:00 a.m. on May 31, 1998, plaintiff ended his last shift before taking a few days' vacation.He left the store shortly after midnight, but returned almost immediately in response to an urgent need to use the rest room.³Sandy Juarez, who was apparently in charge of the night crew, opened the door enough to talk to plaintiff, but refused to let him enter the store.Plaintiff testified that he told her he needed to come in so he could "get some stuff out of my locker and ... use the [men's] room."She replied that she had been instructed not to let anybody into the store after it closed.He said, "This is important.This is an emergency.I have to use the rest room."She said, "[I]f you come in, I'm going to call security."

Juarez testified that when she refused to admit plaintiff to the store, he became very agitated and irate, and began swearing.She said he"shoved [her] through the door to enter into the store," pushing her backwards with both hands.Brian Sparks testified in deposition that he saw the door hitting Juarez and defendant's "hand pushing her," and that, right after the incident, plaintiff approached Sparks and another employee in the parking lot to say he had pushed Juarez "gently" out of his way.However, plaintiff denies that he touched Juarez at all, and denies that he told the two coworkers he had done so.⁴

After entering the store plaintiff went to a back room where he encountered Sparks.Plaintiff told Sparks that Juarez had "hassled" him "about getting back into the store to use the bathroom."He added that Juarez was a "fucking waste of air."On his way up the stairs he encountered Barbara Flagen-Spicher, who demanded an apology, which he gave her, for his language.

Meanwhile Juarez had called the police.When they arrived, Juarez told them plaintiff had pushed her.There is no indication that they took a report, or indeed took the matter seriously.Plaintiff testified that after advising him to take the matter up with his union, they left him talking to Juarez.He himself then left, but returned about an hour later in hopes of seeing fellow clerk Staci Siaris at the beginning of her shift.He testified that he wanted to give her some reading material, repay a small debt, and tell her about the incident with Juarez.He followed her into the store while carrying a lit cigarette.He testified that he had forgotten he had a cigarette in his hand, and that he left the store after a few seconds.

About 7:15 the next morning, after the store had opened, plaintiff returned in the hope of talking to Demarest about the previous night's incident.He knew that Demarest was on vacation but thought he might come in to check the books.When Demarest did not appear, plaintiff lingered around the store, making a series of purchases.During this time he spoke to several employees and customers.Two workers testified that he had alcohol on his breath.⁵Plaintiff admitted he had a small amount to drink during the night, but one coworker testified that he detected no signs of intoxication.Juarez reportedly received a call from a self-described customer, complaining that the store should not permit employees on the premises after they had been drinking.She referred the call to assistant manager Sukovaty, who confronted plaintiff, implying that the customer said plaintiff was rude and had been drinking.Sukovaty told plaintiff to leave the store, stating that "this is a termination offense."Plaintiff complied, but returned to the store less than half an hour later to make another purchase.

When Demarest returned to work the next day (June 2, 1998), Juarez told him about her confrontation with plaintiff.He discussed the incident with Sparks and Flagen-Spicher, but never with plaintiff, who returned from vacation on June 7.On June 8, Demarest called Safeway's Security Department and spoke with security officer Darrell Harrison.Harrison testified that Demarest told him, "I have a problem at the store.Mr. Reeves is suspected of pushing Sandy Juarez, his front end manager, and I'd like you to take a look at it.I started a preliminary investigation.I talked to a couple employees.This is what they're telling me.It's obviously a security issue, possibly workplace violence, and come in and take over the investigation."There is no evidence that Demarest spoke to human resources before contacting security.He testified that he referred the matter to security merely because "they were a little more experienced with it."Harrison apparently endorsed this action because, as he testified, "Workplace violence is always a security issue."

On June 10, 1998, Demarest and Harrison summoned plaintiff away from his checkstand and told him they wanted to ask some questions.Plaintiff was troubled by the seriousness of their tone and said he wanted to arrange for union representation.Harrison postponed the meeting for that purpose while placing plaintiff on suspension.On June 17, plaintiff met with Harrison, another Safeway security agent, and a union representative.Plaintiff testified that the investigators asked him to recount the events of the evening of May 31 and peruse "a thick stack of Safeway rules."He told them that while he"did get in [Juarez's] face,"he"didn't physically touch her."They asked why other witnesses would lie about what happened, and he said that there...