Sheffield v. Department of Social Services

• Decision Date: 27 May 2003
• Docket Number: No. B161081.,B161081.
• Citation: 134 Cal.Rptr.2d 492,109 Cal.App.4th 153
• Court: California Court of Appeals Court of Appeals
• Parties: Tina SHEFFIELD, Plaintiff and Appellant, v. LOS ANGELES COUNTY DEPARTMENT OF SOCIAL SERVICES, Defendant and Respondent.

134 Cal.Rptr.2d 492

109 Cal.App.4th 153

Tina SHEFFIELD, Plaintiff and Appellant, v. LOS ANGELES COUNTY DEPARTMENT OF SOCIAL SERVICES, Defendant and Respondent.

No. B161081.

Court of Appeal, Second District, Division 7.

May 27, 2003.

Review Denied Sept. 17, 2003.^*

Law Offices of Lisa L. Maki, Lisa L. Maki, Los Angeles, for Plaintiff and Appellant.

Gutierrez, Preeiado & House, Calvin House, Pasadena, Nohemi Gutierrez Ferguson and Sara S. Petit for Defendant and Respondent.

MUNÕZ (AURELIO), J.^*

Betra Thompson (Thompson), a co-worker of Tina Sheffield (Appellant) called Appellant at home and asked for a date. Appellant declined with an emphatic "No!" The next day, at the Los Angeles County Department of Social Services (County), the place where they both work, numerous calls were made to Appellant's work phone by Thompson. A complaint was made to a supervisor who took no affirmative action, and the supervisor decided to wait and see what happened. Within a week matters had deteriorated to such an extent that Thompson ended up attacking Appellant at her desk. Appellant filed a claim pursuant to the Tort Claims Act and obtained a right to sue letter from the California Department of Fair Employment and Housing (Department) under the California Fair Employment and Housing Act (FEHA).¹ County's motion for summary judgment was granted on the basis that there was no showing that there was a hostile work environment. We have concluded the issue of whether there was a hostile work environment was a factual question for the trier of fact to resolve. Accordingly, we reverse the judgment.

STATEMENT OF FACTS

In October 1997 Appellant and Thompson were co-workers at the Department of Social Services. Appellant was an intermediate clerk typist and Thompson was a clerk. Sometime prior to October 3, 1997, Appellant and Thompson attended a class together and Thompson and she had exchanged home telephone numbers.

On Thursday October 30, 1997, after working hours, Thompson called Appellant at home and informed Appellant that she, Thompson, liked Appellant "like a man likes a woman." This revelation made Appellant uncomfortable. After saying "No," Appellant hung up the phone.

The next day, Friday October 31, 1997, Appellant told her supervisor, Rosemarie Fernandez (Fernandez), about the conversation and that she was scared. Appellant further stated she didn't want to cost anybody their job, but Appellant indicated she wanted them to tell Thompson to leave her alone and to do whatever it took to have Thompson leave her alone.

Fernandez informed Appellant that Ms. Lisberg (Lisberg), the next person in the chain of command, was not at work because it was her day off. Fernandez further stated she would not be at work on Monday. Thus the first time Fernandez would be able to inform Lisberg of Appellant's concerns would be Tuesday, November 4, 1997. Appellant did not express any concerns about waiting until Tuesday for action to be taken.

However, that same day Thompson called Appellant at her workstation at least three times. In one of her calls she once again asked Appellant to go out on a date. Appellant once again responded with a "No" and hung up the phone. Nevertheless, Thompson continued to call Appellant's telephone extension, and at one point Appellant had a co-worker answer the telephone. As a result, Appellant made three separate verbal complaints to Fernandez. The next day, Saturday, Appellant put a block on her home telephone.

The following Monday, November 3, 1997, Appellant was at L.A Trade Tech attending a class. As Appellant was walking to her class, she heard Thompson calling her name in an angry manner. Appellant took off running because of the tone of Thompson's voice and because Thompson was a lot bigger than Appellant. After the class was completed, Appellant wrote a letter to Thompson saying she was not attracted to women and asking Thompson not to call her anymore.² Appellant watched Thompson as she opened the envelope and began to read. Appellant did not tell any supervisor about the school incident or the writing of the letter. However, she did place a copy of the letter in Fernandez's in box even though Fernandez was not at work.

The next day, Tuesday, November 4, 1997, Appellant tried to avoid Thompson by staying away from her work area and going to the restroom on a different floor of the building. However, at one point Thompson and Appellant saw each other in a hallway. Thompson made a fist which she slammed into her other palm while at the same time looking at Appellant and frowning. Appellant reported this incident to Fernandez.

Also, on that same day, Fernandez showed Appellant's letter to Lisberg, who determined the letter met Los Angeles County's harassment criteria because the letter informed Thompson that the behavior was unacceptable. Lisberg then told Fernandez to ask Appellant if she wanted the supervisors to do anything other than what Appellant had done in giving the letter to Thompson. Appellant replied she did not want anyone to lose their job, but she did want the supervisors to let Thompson know Appellant was not interested in her and that Appellant wanted to be left alone.

Wednesday, November 5, 1997, was a relatively quiet day. There were no incidents involving Appellant and Thompson and Lisberg was out of the office.

The next morning, Thursday, November 6, 1997, started off with Thompson going to Fernandez's office, where she stated she wanted to talk to Fernandez about Appellant, who was Fernandez's secretary. Fernandez told Thompson to have her supervisor call Fernandez so that a meeting could be arranged.

Thompson then proceeded to walk out of Fernandez's office. As Thompson walked by Appellant's desk she stated she was going to get Appellant. When Appellant did not respond Thompson then stated, "I'm going to get your A-S-S." Appellant replied, "I'm not afraid of you so just leave me alone." Thompson walked off and then returned stating, "I am going to get you now." Thompson then began hitting Appellant on the back of the head and the neck. The altercation lasted about 15 seconds.

After the two women were separated, Appellant then grabbed a three-hole punch with which to hit Thompson should she come back. The police were called and the personnel division and Lisberg were notified of the incident. Lisberg then had all the witnesses complete affidavits of what each witness had observed. Following the incident, Thompson was immediately sent home. An investigation of the incident was conducted. Thompson was eventually terminated because of her attack on Appellant.

Appellant filed a claim with County in compliance with the Tort Claims Act³ and also filed a complaint with the Department. Appellant's claim was denied by the County and she received a right to sue letter from the Department. A complaint, alleging sexual harassment in violation of Government Code section 12940, was then filed against the County and Thompson.

STANDARD OF REVIEW

"We review an award of summary judgment under the same standard applied by the trial court—de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860, 107 Cal.Rptr.2d 841, 24 P.3d 493; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) In addition, our account of the facts is presented in the light most favorable to the nonmoving party below, in this case plaintiff, and assumes that, for purposes of our analysis, her version of all disputed facts is the correct one. (Saelzler, supra, 25 Cal.4th at p. 768, 107 Cal. Rptr.2d 617, 23 P.3d 1143; Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)" (Birschtein v. New United Motor Manufacturing, Inc. (2001), 92 Cal.App.4th 994, 999, 112 Cal.Rptr.2d 347.) The defendant who moves for summary judgment must conclusively negate a necessary element of the plaintiffs case or establish a complete defense so that under no possible hypothesis is there a material issue of fact for the trier of fact to resolve. (Flait v. North Am. Watch Corp. (1992) 3 Cal.App.4th 467, 474, 4 Cal.Rptr.2d 522.)

The FEHA Requirements

Government Code section 12940⁴ provides, in relevant part: "It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: ... (j)(1) For an employer ... or any other person, because of ... sex, ... to harass an employee, ... Harassment of an employee, ... shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fail to take immediate and appropriate corrective action. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment." Subdivision (k) of section 12940 places an affirmative duty on the employer to "take all reasonable steps necessary to prevent discrimination and harassment from occurring." (§ 12940, subd. (k).)

The purpose of FEHA is to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, color, sex, national origin, and other enumerated characteristics. (Trujillo v. North County Transit Dist. (1998), 63 Cal.App.4th 280, 286, 73 Cal.Rptr.2d 596.) The policies expressed in FEHA are fundamental. (Aguilar v. Avis Rent A Car Sys. (1999) 21 Cal.4th 121, 130, 87 Cal.Rptr.2d 132, 980 P.2d 846; Brown v. Superior Court (1984) 37 Cal.3d 477, 485, 208 Cal.Rptr. 724, 691 P.2d 272.) Same sex harassment is considered sexual harassment covered by section 2940. (Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 26 Cal.Rptr.2d 116.) Because the objectives and wording of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) are similar to that of FEHA, California...