Valdez v. Clayton Industries, Inc.

• Decision Date: 08 May 2001
• Docket Number: No. B139582.,B139582.
• Parties: Alex VALDEZ, Plaintiff and Appellant, v. CLAYTON INDUSTRIES, INC., et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

107 Cal.Rptr.2d 15

88 Cal.App.4th 1162

Alex VALDEZ, Plaintiff and Appellant, v. CLAYTON INDUSTRIES, INC., et al., Defendants and Respondents.

No. B139582.

Court of Appeal, Second District, Division 4.

May 8, 2001.

As Modified on Denial of Rehearing June 4, 2001.

Review Granted August 8, 2001.

Benedon & Serlin, Douglas G. Benedon, Woodland Hills, and Gerald M. Serlin; Mancini & Gallagher, Marcus A. Mancini, Valencia, Mary Ann Gallagher, and David A. Cohn, Woodland Hills, for Plaintiff and Appellant.

Troop Steuber Pasich Reddick & Tobey, Jon D. Meer, and Christopher J. Manfredi, for Defendants and Respondents.

CURRY, J.

Appellant Alex Valdez challenges summary judgment granted in favor of respondents Clayton Industries, Inc. (Clayton), and Larry Metzler on Valdez's complaint for sexual harassment and retaliation in violation of the California Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq.¹ We reverse.

RELEVANT PROCEDURAL BACKGROUND

Valdez initiated this action in February 1999. On September 22, 1999, Valdez filed a third amended complaint against Clayton and Metzler, alleging a single claim for sexual harassment and retaliation under FEHA (Gov.Code, § 12900 et seq.), and seeking compensatory and punitive damages.

The third amended complaint alleges the following facts: Clayton employed Valdez as a mechanic assembler. Metzler was Valdez's supervisor. From December 1996 through March 4, 1998, Metzler sexually harassed Valdez, in several ways, including repeatedly saying to him, "I need sex" and "I need a blow job." Valdez complained to his immediate supervisor, John Gonzalez, and to Metzler. Despite these complaints, Metzler continued his harassment, and Gonzalez did nothing to stop it. In February 1998, Valdez complained about the harassment to Cyril Silva, Clayton's human resources manager. Silva did not act on this complaint. On March 4, 1998, Clayton and Metzler retaliated against Valdez by terminating him on the pretext that there was a lack of work.

On November 4, 1999, Clayton and Metzler filed a motion for summary judgment or, in the alternative, summary adjudication on the allegations of sexual harassment and of retaliatory termination. The trial court granted summary judgment on December 9, 1999, concluding that Valdez's allegations of sexual harassment were time-barred, and he could not establish that he was terminated in retaliation for his complaints about harassment. Judgment was filed on January 6, 2000.

DISCUSSION

Valdez contends that the trial court erred in granting summary judgment. We agree.

A. Standards of Review

"A summary adjudication motion is subject to the same rules and procedures as a summary judgment motion. Both are reviewed de novo. [Citations.]" (Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal.App.4th 807, 819, 44 Cal. Rptr.2d 56.)

"A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiffs asserted causes of action can prevail. [Citation.]" (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.) "`Review of a summary judgment motion by an appellate court involves application of the same three-step process required of the trial court. [Citation.]' " (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662, 42 Cal.Rptr.2d 669.) The three steps are (1) identifying the issues framed by the complaint, (2) determining whether the moving party has made an adequate showing that negates the opponent's claim, and (3) determining whether the opposing party has raised a triable issue of fact. (See ibid.)

These steps reflect a series of burden shifts. A defendant moving for summary judgment has the burden of "negating] a necessary element of the plaintiffs case, and demonstrating] that under no hypothesis is there a material issue of fact that requires the process of a trial. [Citation.]" (Molko v. Holy Spirit Assn., supra, 46 Cal.3d at p. 1107, 252 Cal.Rptr. 122, 762 P.2d 46.) To do that, the defendant may rely either on affirmative evidence or discovery responses of the plaintiff showing the absence of evidence necessary to establish at least one essential element of the plaintiffs case. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 589-590, 37 Cal.Rptr.2d 653.) Once the defendant carries this substantive burden, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to the plaintiffs case. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562, 42 Cal.Rptr.2d 697.) All doubts as to whether there are any triable issues of fact are to be resolved in favor of the party opposing summary judgment. (Ibid.)

Finally, when, as here, respondents sought summary adjudication on appellant's distinguishable claims as an alternative to summary judgment, we may direct summary adjudication on any of the claims that fail for want of a triable issue of fact. (Yu v. Signet Bank/Virginia (1999) 69 Cal. App.4th 1377, 1397-1398, 82 Cal.Rptr.2d 304; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6, 76 Cal.Rptr.2d 457.)

B. Sexual Harassment

As a basis for summary adjudication on Valdez's allegations of sexual harassment, respondents contended that Valdez could not show that he suffered unwelcome sexual harassment "because of ... [his] sex" (§ 12940, subd. (j)(1)).

Section 12940, subdivision (j)(1), provides that it is an unlawful employment practice "[f]or an employer ... or any other person, because of ... sex ... to harass an employee [or] applicant. ... An entity shall take all reasonable steps to prevent harassment from occurring." Under these provisions, employers and their employees, including supervisory employees, are liable for their own acts of harassment. (Page v. Superior Court (1995) 31 Cal.App.4th 1206, 1210-1214, 37 Cal.Rptr.2d 529; Janken v. GM Hughes Electronics (1996) 46 Cal. App.4th 55, 67, fn. 19, 53 Cal.Rptr.2d 741.) Furthermore, "an employer is strictly liable for the harassment of an employee by an agent or supervisor.... [Citations.]" (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1328, 58 Cal.Rptr.2d 308.)

"California case law recognizes two theories upon which sexual harassment may be alleged. The first is quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances. The second is hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment." (Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414, 26 Cal.Rptr.2d 116.)

Sexual harassment under the second theory "does not necessarily involve sexual conduct. It need not have anything to do with lewd acts, double entendres or sexual advances. Sexual harassment may involve conduct, whether blatant or subtle, that discriminates against a person solely because of that person's sex." (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 345, 21 Cal. Rptr.2d 292.) "Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances. [Citation.] The plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended. [Citation.]" (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609-610, 262 Cal.Rptr. 842, fn. omitted.)

In seeking summary adjudication on Valdez's allegations of sexual harassment, respondents pointed to Valdez's deposition testimony indicating that virtually all the employees in Valdez's work environment at Clayton were male, that the use of profanity was common, and that Valdez and his coworkers often told jokes with sexual content. Valdez himself gave Metzler a Christmas card with a vagina and a candy cane on the front, a set of dice whose faces displayed sexual terms, and multi-colored condoms packaged to look like candy.

Valdez responded with his deposition testimony and other evidence supporting the following version of the underlying events: Three months after Valdez began working at Clayton, Metzler referred to Valdez as a "whore" or told him that he needed a blow job at least once a week. Valdez recalled several such incidents.

In March 1997, Metzler walked up to Valdez as he worked on the assembly line, put his left arm around Valdez, and told him that he needed a blow job. Later, Metzler made a similar remark to Valdez while they were in a restroom. Valdez responded, "I can't help you."

While Valdez was bending over to pick up a part on the assembly line, Metzler approached him, said that he needed a blow job, grabbed his crotch, and pretended to unzip his pants. Valdez complained to Gonzalez, his immediate supervisor.

As Valdez was crouched down over the assembly line, Metzler approached him from behind, immobilized Valdez by grabbing him by the neck, and said, "Oh baby, oh baby." Valdez complained to Gonzalez, who told Valdez to talk to Metzler.

According to Valdez's deposition testimony, the following exchange occurred when he asked Metzler to stop the conduct in question: "He said that—he turned around and told me—he goes, `Who hired you?' I said, `Clayton.' He goes, `No. Who walked you around in here when you first got hired?' I said, `You did.' Then he goes, `Who's your boss?' I go, `Clayton is.' `No, no, no. Who's your boss?' I go, 'You are.' And then he says, `Okay.' That's all he said."

Sometime after this incident, Valdez was on the assembly line drilling holes in a kneeling position. Metzler said, "Oh you're wearing knee pads. That's good. That way it won't hurt when you're giving me a blow job." Valdez complained to Gonzalez, who promised to speak to Metzler.

Later, Valdez asked Gonzalez how long they were going to work...