Tevis v. Spare Time, Inc., C074938
| Decision Date | 08 September 2016 |
| Docket Number | C074938 |
| Parties | KELLY TEVIS, Plaintiff and Appellant, v. SPARE TIME, INC., et al., Defendants and Respondents. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The trial court granted summary adjudication of all 10 causes of action in plaintiff Kelly Tevis's complaint against her former employer, Spare Time, Inc. (the Company), and her supervisor, Joe Rose (Rose). We affirm the summary adjudication of the causes of action arising from Rose's alleged sexual harassment, assault, and intentional infliction of emotional distress based on the running of the statute of limitations, fatal admissions by plaintiff, and a failure of proof of intentional tortious conduct. We reverse, however four causes of action arising from the Company's alleged failure to engage in the interactive process in good faith, failure to provide a reasonable accommodation, retaliation, and wrongful termination because we find there remain triable issues of material fact as to those causes of action. The result is that the claims alleging the more egregious conduct by plaintiff's supervisor will not be tried, whereas the Company's response to her complaints will be.
Plaintiff alleges that Rose was violent, crass, and vulgar, and used sexually inappropriate language in the workplace. There is no dispute that plaintiff had been a rising star at the Company's fitness centers before Rose was transferred to the Natomas facility in the summer of 2007. What is in dispute is what led to plaintiff's medical leave in April of 2010, how and what the parties communicated during her leave, and why she was fired in August of 2010. Because this is an appeal of a summary judgment, the facts are presented in the light most favorable to plaintiff. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1005 (Scotch).)
Six months after she was hired as an assistant marketing director at the Company's Lodi facility, the Company promoted plaintiff to be a marketing director at the Natomas Racquet Club. In 2006 and 2007 she was selected as the "Rookie of the Year" and "Marketing Director of the Year."
Plaintiff alleges Rose began exhibiting inappropriate behavior a few months after his arrival. By mid-2008, she claims he was sexually harassing her. Although plaintiff testified in her deposition that it was difficult to remember when the many incidents occurred, she recalled at least three before March 2009. She alleges that Rose shared stories about 1) training Muslim women and how he was "between their legs and in their chest" even though their husbands would disapprove, 2) a man blow-drying his penis in the locker room, and 3) girls wearing their bathing suit bottoms in the club. He told plaintiff that as the general manager he could waive the club rules, and he did not have a problem if they wanted to run around like that. On at least one occasion, Rose told her to "shut the fuck up."
On or about March 10, 2009, Rose went into a violent rage, slamming doors, screaming obscenities, and pacing the office before picking up an office chair and slamming it into the ground until it was in pieces. He left the club but later stormed into plaintiff's office and harassed her. Alone in her office, she tried to assure Rose that everything was going to be okay.
Plaintiff went home and called Dave Anderson, the president of the Company, to complain about Rose's violent outbursts and sexually inappropriate behavior. She also complained to Gavin Russo, the marketing supervisor. On March 16 Mark Tappan, the director of operations, met with plaintiff and two of her female coworkers to discuss Rose's behavior. They each recounted a few stories about Rose's behavior during the lunch meeting. They told Tappan that Rose had exhibited a pattern of violent outbursts and had thrown reams of paper across the office, hitting walls, desks, and ceiling fans, and barely missing staff members.
Plaintiff reported that Rose's behavior improved for a few months, particularly during the time period when the owner's daughter was working on-site. But after the owner's daughter went on maternity leave, Rose's behavior deteriorated once again. Plaintiff warned Russo that Rose was having problems and was "going to blow." Russo assured plaintiff he would take action, but nothing changed.
Although plaintiff could not piece together a precise chronology, she recounted a number of incidents that thereafter ensued. On one occasion, Rose "stretched out" an employee's leg after she pulled a muscle and told the employee and a coworker that the employee was "ready for a man tonight." Rose found pornography in a locker, took it home, and thought it was really funny that his wife became angry. According to plaintiff, as a female employee was bending over, Rose commented that she "should have just asked [him] for a raise."
Rose constantly touched, adjusted, and rubbed his crotch in plaintiff's presence. And he recounted endless stories about his past sexual adventures to plaintiff, includingthe orgies that were performed for him while he played in a band, the abundance of sex he enjoyed while he was stationed in Thailand, and how on one occasion a young woman wanted to "fuck him" in the back of his truck, even after he showed her the baby car seats that would be in the way.
Plaintiff heard Rose repeatedly refer to female employees as "bitches," particularly when he was angry. At least twice, he told plaintiff to "call the bitches and tell them they better get their fuckin' asses in here." When new computer programs were being installed at the club, Rose lashed out and said he was going to "kick that little fat fuck-in [sic] homosexual Craig's ass." He referred to the same man as a "fucking faggot."
In addition to his sexually charged stories and profanities, Rose flew into occasional fits of rage. When plaintiff was redesigning her office, Rose became frustrated, called her a "bitch" in her absence, and hit her door. Plaintiff heard about his outburst and was afraid to return to the office that day.
In early April 2010 Rose was out of the office attending a conference. When he returned on April 12, plaintiff sent him an e-mail in which she mentioned that she was happy to have him back.
On Friday, April 16, Rose had another tirade at a team meeting during which he told plaintiff to "shut the fuck up." He was about two feet from her face as he berated her, giving her an anxiety attack. At her deposition, she testified she sat there with extreme pressure in her chest, fearful that he might strike her. On Monday morning, April 19, her doctor diagnosed her with severe depression and anxiety, and put her on a medical leave of absence. She testified that her doctor opined she would be unable to return to work as long as Rose was there. The Company insists that neither plaintiff nor her doctor ever informed anyone at the club she could not return to work for Rose. Plaintiff faxed Anna Sierra, the human resources manager, a written request for a two-and-a-half-week leave accompanied by a doctor's note.
The following day, April 20, Rose called plaintiff at home. He had never called her at home before. He left a message stating, "call me when you can." She felt threatened, and because she had communicated the need for a medical leave with human relations, she did not return his call.
On April 21 Sierra mailed information to plaintiff regarding the Family and Medical Leave Act of 1993 (FMLA; 29 U.S.C. § 2601 et seq.) and workers' compensation. On April 26 plaintiff filled out the workers' compensation incident report wherein she described Rose's violent fits of rage, the pervasive nature of his sexual innuendos, the stress incident that led to her anxiety attack, and her inability to come to work because she did not feel safe and her health had deteriorated. She identified 12 witnesses. She believed she had submitted all that was required of her.
Nevertheless, on May 13 plaintiff sent Sierra an e-mail entitled "Formal Complaint towards Joe Rose," in which she described a pattern of "displaying signs of rage and bullying, making slurs and derogatory comments about race, sexual activities and sexual experiences." She complained that after a brief period of improvement, Rose "again started displaying and creating the same intimidating, hostile work environment." In sum, "Joe Rose's consistent verbal aggression, intimidation, severe abusive and offensive actions causes a sense of dread and fear."
In reply, Sierra assured plaintiff that the Company had undertaken an investigation. While the investigation was underway, plaintiff was granted additional leaves of absence. Mark Tappan, the director of operations who had met with plaintiffand two other female employees in March 2009 to give them the opportunity to discuss Rose's inappropriate behavior at work, conducted the investigation on behalf of the Company. He reported that the other two employees did not observe the same deterioration in Rose's behavior and concluded that plaintiff's complaints did not have merit. He believed most of her complaints regarded behavior that had occurred a year...
To continue reading
Request your trial