Vargas v. The Vons Companies CA2/2 ( 2022 )

Filed 12/15/22 Vargas v. The Vons Companies CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
NATALIA VARGAS, B315167
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 20STCV18400)
THE VONS COMPANIES,
INC. et al.,
Defendants and
Respondents.
APPEAL from the judgment and order of the Superior
Court of Los Angeles County, William F. Fahey, Judge. Affirmed
in part, reversed and remanded in part.
Stiller Law Firm, Ari J. Stiller; Law Offices of Justin
Silverman and Justin G. Silverman for Plaintiff and Appellant.
CDF Labor Law, Leigh A. White, and Ashley N. Lopeztello
for Defendants and Respondents.
******
Natalia Vargas (plaintiff) worked the night shift at a
grocery store for approximately 10 months before resigning. She
then sued the store and a coworker alleging she was the victim of
sexual harassment, gender discrimination, and retaliation. The
trial court summarily adjudicated plaintiff’s claims against the
store and coworker. After a final judgment was entered, she
appealed. We conclude that the dismissal was appropriate
against the store but not against the coworker, for whom there
are triable issues of material fact on plaintiff’s claims for sexual
harassment and intentional infliction of emotional distress.
Accordingly, we affirm in part and reverse in part.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Plaintiff and the Simi Valley Vons store
Plaintiff worked at grocery stores owned and operated by
The Vons Companies, Inc. (Vons), from 1996 and until she was
terminated in 2010.
In September 2018, plaintiff was rehired by Vons to work
in its Simi Valley, California store. Like its other locations, the
Simi Valley store has a store director and an assistant store
director. The Simi Valley store has nine departments—namely,
(1) produce, (2) meat, (3) dairy, (4) frozen, (5) deli, (6) bakery, (7)
liquor, (8) health and beauty aids, and (9) grocery.
2
Plaintiff initially started as part of the “day crew” in the
Simi Valley store, but quickly asked to be transferred to the
“night crew” because, during the day, the store’s customers would
“constantly interrupt[]” her by asking her where items were
stocked and complain that plaintiff was “in their way” while she
was restocking shelves. On the night crew, plaintiff was the
“only person” in the health and beauty aids department, although
she would sometimes help out with the dairy department. Her
job was to ensure that her department was properly stocked by
(1) cataloging when inventory was running low, (2) ordering more
inventory, and (3) placing the incoming shipments of inventory
on the shelves for purchase.
Dennis Duhm (Duhm) was another night crew employee
who headed up the grocery, frozen, dairy, and liquor
departments. His duties involved placing orders and stocking
shelves alongside the employees in those departments. Duhm
was also responsible for “oversee[ing] the night crew,” which
meant Duhm was tasked with (1) making sure other night crew
employees came to work and were doing their jobs, (2) telling
employees not to “dillydally,” if they were not doing their jobs,
and (3) reporting any dillydallying to those employees’
supervisors. In no capacity did Duhm have the authority to hire,
fire, or discipline any other employees or to assign employees to
certain departments.
B. Duhm sexually harasses plaintiff through
February 20191
1 Although plaintiff reported that Duhm made several racist
and homophobic remarks at least five times a week, plaintiff’s
harassment and discrimination claims are based solely on the
sex- and gender-based conduct directed toward her.
3
In late 2018 or early 2019, Duhm approached plaintiff one
night while they were both at work, held up a roll of paper towels
and said, “Here, why don’t you stick this up your butt” because “I
know how you like things in your butt.”
At some point thereafter, Duhm told plaintiff that the
assistant store manager “is the ugliest woman he has ever seen
and that he doesn’t think she is pretty like” plaintiff. On another
five to ten occasions, Duhm commented to plaintiff that she was
“pretty.”
After plaintiff told a fellow employee that plaintiff was
older than her boyfriend, Duhm told plaintiff that her “problem”
was that her boyfriend was too young and that plaintiff “need[s]
to be with an older man like” Duhm. He reiterated this comment
another three or four times.
On at least five occasions, Duhm told plaintiff to clean the
store’s back room because “women are only good at cooking,
cleaning, and laying on their backs.”
On February 17, 2018, Duhm came down an aisle where
plaintiff and a coworker, Frank Andreas (Andreas), were
standing. Duhm was holding a shelf in his hands. As he neared
plaintiff, he pushed the shelf against her buttocks for 10 to 15
seconds, causing her to “take a step forward” and out of his way.
As he did it, he was smiling. When plaintiff asked Duhm what he
was doing, Duhm responded that she was “in [his] way.” Plaintiff
retorted that he should “use [his] words” and warned him not to
“ever” “touch [her] again.”
C. Plaintiff files an internal complaint about
Duhm’s harassment; Vons investigates
The day after the incident with the shelf, plaintiff
complained to her store director and assistant store director. In
4
the written complaint they urged her to fill out, she reported that
(1) Duhm had “pushed [her] with a shelf . . . on [her] butt,” and
(2) Duhm had, “in the past,” told her “multiple times that he
thinks [she is] pretty and that she need[s] to date older men like
him.”
Vons directed one of its human resources employees to
investigate plaintiff’s complaint. While the investigation was
ongoing, the store director adjusted Duhm’s work schedule to
minimize his overlap with plaintiff. The investigator, Wally
Hernandez, read plaintiff’s written statement and then conducted
several interviews. He followed up with plaintiff, asking her if
Duhm had sexually harassed anyone else; she said “no.”
Hernandez got written statements from the store director and
assistant store director, who recounted plaintiff’s reports to them
about Duhm’s conduct. Hernandez also interviewed Duhm.
Duhm denied telling plaintiff she was “pretty,” explained that his
comment about dating older men was not in “reference[] to
himself,” and admitted “accidentally bump[ing]” plaintiff with the
shelf but insisted that he had apologized to her “immediately.”
Duhm’s written statement mirrored his interview statements.
Hernandez admonished Duhm not to retaliate against plaintiff
due to her complaint.
Although plaintiff told the store director that she did not
“want to work with [Duhm] ever again,” Vons ultimately
concluded that it could not take formal action to discipline Duhm
because Hernandez’s investigation did not corroborate plaintiff’s
claim of harassment, leaving this case as an inconclusive “he-
said, she-said” situation.
5
D. Duhm engages in what plaintiff perceives to be
retaliatory conduct
After the February 2019 complaint and investigation,
plaintiff reported no further incidents of sexual harassment by
Duhm.
Plaintiff nevertheless perceived that Duhm was retaliating
against her for reporting him in February 2019 because:
● “[A]lmost every day,” Duhm would ask plaintiff,
“You’re not done yet?” when she was restocking shelves, and
would ask her why she was not yet finished.
● Whenever plaintiff would ask Duhm a work-related
question, he would tease her for not “know[ing]” the answer given
the length of her service with Vons.
● Duhm would ask plaintiff to help stock items outside
of her department (such as baby food, baby formula, and diapers),
although Duhm did not have authority to do so. Instead, the
store director chided Duhm for it after plaintiff reported it to the
director.
● Duhm ordered items for the health and beauty aids
department that were not necessary, causing there to be too
much inventory that was not properly stocked. The store director
initially got upset with plaintiff, but later admonished Duhm for
making the unauthorized orders.
● For a period of three to four weeks, the store director
permitted Duhm to “writ[e]” the “schedule” for plaintiff’s
department, which included allocating some of her time to
helping other departments. Plaintiff did not feel that Duhm
allocated enough time to the health and beauty aids department
6
for her to get her work done. After plaintiff complained to the
store director, the director resumed doing plaintiff’s schedule.
● On May 10, 2019, Duhm spoke with Andreas in the
back room in front of plaintiff. In what was a five- or ten-minute
rant, Duhm lamented to Andreas that “[n]owadays everyone is
such a fucking pussy” because “[e]verybody takes [what you say]
the wrong fucking way” and “complains” about anything.
Although plaintiff was only eavesdropping on the conversation,
she “felt like” Duhm was “directing” his words toward her—and
“indirectly talking about [her]”—in light of her prior complaint.
E. Plaintiff files an internal complaint about
Duhm’s retaliation; Vons investigates
Almost a week after the May 10 conversation, plaintiff
made a written complaint that Duhm was retaliating against her.
The very next day, on May 16, 2019, Vons directed
Hernandez to investigate plaintiff’s complaint. Hernandez
started conducting interviews on June 12, 2019. Hernandez
interviewed Duhm, who denied referring to other employees as
“fucking pussies” and denied making any racist remarks.
Hernandez also interviewed Andreas, but Andreas likewise
reported that Duhm had not referred to anyone as a “fucking
pussy.” Hernandez spoke with two other night shift employees,
who stated that they had never heard (or overheard) Duhm
making inappropriate comments. Hernandez also interviewed
plaintiff. Plaintiff expressed her “frustrat[ion]” that Vons had not
disciplined Duhm after her first complaint. Hernandez explained
that no evidence corroborated plaintiff’s account of the shelf
incident (because there was no video and no other witness had
verified plaintiff’s account of what happened). Hernandez also
informed plaintiff that Vons also could not substantiate the
7
events underlying plaintiff’s May 2019 complaint because
plaintiff did not have a “credible witness” beyond herself. Thus,
Hernandez told her, Vons would likely not take any action
against Duhm; absent more than a he-said/she-said conflict in the
evidence, Hernandez explained, “We can’t help you.”
F. Plaintiff transfers stores and ultimately resigns
The news that Vons’s investigation did not turn up
sufficient evidence to discipline Duhm made plaintiff “unbearably
upset”: She started losing weight, having “panic attacks,” losing
sleep, and crying. Plaintiff went to a doctor and demanded a note
putting her on leave due to stress; the doctor complied.
Plaintiff communicated to Vons that she could not work
with Duhm, but would be open either to (1) working a different
shift than Duhm in the Simi Valley store, or (2) being transferred
to a different store. That is what plaintiff’s doctor’s note said.
That is what plaintiff told Vons’s human resources personnel as
well as the store director for the Simi Valley store. Plaintiff told
her union representative than she “prefer[red]” a transfer over a
different shift. Vons’s human resources personnel consulted with
plaintiff’s union representative, and on that basis, transferred
plaintiff to its Chatsworth store for one week and then to its
Thousand Oaks store, which was a 30-minute commute from
plaintiff’s residence.
Plaintiff had the same job at the Thousand Oaks store as
she had at the Simi Valley store, although the “general
merchandise department” in Thousand Oaks was bigger than it
was in Simi Valley. Plaintiff’s new director was happy with
plaintiff’s job performance.
After one week at the Thousand Oaks store, plaintiff gave
two weeks’ notice. Her last day was July 27, 2019.
8
II. Procedural Background
A. Pleadings
On May 14, 2020, plaintiff sued Vons and Duhm. As
pertinent here, plaintiff brought claims (1) for sex- and gender-
based harassment in violation of California’s Fair Housing and
Employment Act (FEHA) (Gov. Code, § 12940 et seq.),2 against
Vons and Duhm; (2) for sex- and gender-based discrimination in
violation of FEHA, against Vons; (3) for retaliation in violation of
FEHA, against Vons; (4) for intentional infliction of emotional
distress, against Vons and Duhm; and (5) for wrongful
constructive termination in violation of public policy, against
Vons.3
B. Summary adjudication
Vons and Duhm moved for summary judgment or, in the
alternative, summary adjudication of 17 issues. Following a full
round of briefing and a hearing, the trial court denied summary
judgment but granted summary adjudication of nine issues. In so
ruling, the court determined that (1) plaintiff’s harassment claim
fails (a) against Vons, because the undisputed facts show that
Duhm was a “nonsupervisory co-worker” and that Vons took
2 All further statutory references are to the Government
Code unless otherwise indicated.
3 Plaintiff also sued Vons and Duhm for (1) sexual assault,
and (2) sexual battery. The trial court summarily adjudicated
the sexual assault claim against plaintiff, and plaintiff has not
argued on appeal that this ruling was incorrect. Plaintiff
voluntarily settled her sexual battery claim against Vons and
Duhm, so this claim is also not before us on appeal.
9
“appropriate action” once it learned of Duhm’s harassment, (b)
against Vons and Duhm, because the undisputed facts show that
Duhm’s harassment was “not sufficiently severe or pervasive” to
constitute a hostile work environment; (2) plaintiff’s
discrimination and retaliation claims against Vons fail because
the undisputed facts show that plaintiff was not subject to an
adverse employment action; (3) plaintiff’s claim for intentional
infliction of emotional distress fails against Vons, because the
undisputed facts show that Vons did not engage in outrageous
behavior; (4) plaintiff’s claim for wrongful constructive
termination in violation of public policy against Vons fails
because the undisputed facts show that plaintiff was not
constructively discharged; and (5) plaintiff’s prayer for punitive
damages fails against Vons because the undisputed facts show
that no officer, director, or “managing agent” of Vons acted with
malice, oppression or fraud. The court subsequently amended its
ruling to also grant summary adjudication of plaintiff’s
intentional infliction of emotional distress claim against Vons
and Duhm because the undisputed facts show that it is barred by
the exclusivity of workers’ compensation remedies.
C. Appeal
After plaintiff dismissed her entire case, she filed this
timely appeal.
DISCUSSION
Plaintiff argues that the trial court erred in summarily
adjudicating (1) against Vons, her claims for sexual harassment,
discrimination, retaliation, intentional infliction of emotional
distress, and wrongful termination, as well as her prayer for
punitive damages; and (2) against Duhm, her claims for sexual
10
harassment and intentional infliction of emotional distress as
well as her prayer for punitive damages.4
Summary adjudication, like summary judgment, is
appropriate when the moving party shows “[it] is entitled to a
judgment as a matter of law” (Code Civ. Proc., § 473c, subd. (c))
because, among other things, the nonmoving party (here,
plaintiff) cannot establish “[o]ne or more elements of [her] cause
of action” (id., subds. (o)(1) & (p)(2)). (QDOS, Inc. v. Signature
Financial, LLC (2017) 17 Cal.App.5th 990, 998 (QDOS); State of
California v. Continental Ins. Co. (2017) 15 Cal.App.5th 1017,
1031 [summary adjudication is “‘procedurally identical to [a]
motion[] for summary judgment’”].) Summary adjudication
should be denied only when there are “genuine” or “triable”
issues of fact to be resolved at trial—that is, when “the evidence
would allow a reasonable trier of fact to find . . . in favor of the
party opposing the [summary adjudication] motion.” (Serri v.
Santa Clara University (2014) 226 Cal.App.4th 830, 860 (Serri),
citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845;
Code Civ. Proc., § 437c, subds. (f)(1), (o)(1), & (p)(2).) In applying
this standard, we independently review the evidence in the light
most favorable to the nonmoving party and “resolv[e] . . . any
doubts” against summary adjudication. (Salas v. Sierra
4 We asked the parties for supplemental briefing on whether
plaintiff’s appeal challenged the trial court’s rulings involving
Duhm (as opposed to merely Vons). Because plaintiff’s notice of
appeal identifies the summary adjudication order by which Duhm
partly prevailed, because plaintiff’s opening brief makes
arguments applicable to Duhm, and because Vons’s respondent’s
brief responds to the arguments applicable to Duhm, we conclude
that the rulings involving Duhm are properly before us and that
the parties had ample notice and opportunity to address them.
11
Chemical Co. (2014) 59 Cal.4th 407, 415; Wilson v. 21st Century
Ins. Co. (2017) 42 Cal.4th 713, 716-717.)
As a threshold matter, plaintiff argues that she is entitled
to reversal due to procedural defects with the trial court’s
summary adjudication ruling—namely, that the court (1)
improperly disregarded some of her evidence in opposition to the
motion for summary adjudication due to defects in her separate
statement without first giving her an opportunity to cure those
defects (e.g., Parkview Villas Assn., Inc. v. State Farm Fire &
Casualty Co. (2005) 133 Cal.App.4th 1197, 1211-1212, 1214-1215;
Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 73), and (2)
issued its ruling without any specific findings or reasoning. We
need not consider these procedure-based arguments because our
task on appeal is to independently examine whether summary
adjudication was appropriate (Rutgard v. City of Los Angeles
(2020) 52 Cal.App.5th 815, 825; Minish v. Hanuman Fellowship
(2013) 214 Cal.App.4th 437, 455); in so doing, we will consider all
of the admissible evidence presented and set forth our reasons.
Any deficiencies in the trial court’s analysis are therefore
irrelevant.
We now turn to the merits of plaintiff’s motion.
I. Sexual Harassment
To prevail on a claim for sexual harassment under FEHA, a
plaintiff must establish that (1) the employer subjected the
plaintiff to verbal or physical contact of a sexual nature, (2) that
conduct was unwelcome, and (3) the conduct was sufficiently
“severe and pervasive” to alter the terms and conditions of the
plaintiff’s employment, thereby creating an abusive working
environment. (Sheffield v. Los Angeles County (2003) 109
Cal.App.4th 153, 160 (Sheffield); Lyle v. Warner Brothers
12
Television Productions (2006) 38 Cal.4th 264, 283 (Lyle); Hughes
v. Pair (2009) 46 Cal.4th 1035, 1045 (Hughes); Aguilar v. Avis
Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130 (Aguilar); see
also Gov. Code, § 12940, subd. (j) [violation of FEHA to “harass
an employee” on the basis of “sex” or “gender”].) Whether the
employer has subjected the plaintiff-employee to harassment—
and thus can be liable for that harassment—turns on who is
doing the harassment: If the harasser is a “supervisor,” the
employer is strictly liable for any conduct by that individual; if
the harasser is not a supervisor, however, the employer is liable
only if the employer (1) “knew or should have known of the
harassing conduct,” and (2) “failed to take immediate and
appropriate corrective action.” (State Dept. of Health Services v.
Superior Court (2003) 31 Cal.4th 1026, 1040-1041 (State
Department); Chapman v. Enos (2004) 116 Cal.App.4th 920, 928
(Chapman); § 12940, subd. (j)(1); see generally, Doe v. Capital
Cities (1996) 50 Cal.App.4th 1038, 1046 [“[C]haracterizing the
employment status of the harasser is very significant”].)
A. Vons’s liability for sexual harassment
As noted above, the trial court summarily adjudicated
plaintiff’s sexual harassment claim against Vons in part based on
its conclusions that the undisputed facts established that (1)
Duhm was not a “supervisor” within the meaning of FEHA, and
(2) Vons took immediate and appropriate corrective action once it
learned of Duhm’s conduct. Plaintiff challenges both of those
conclusions on appeal.
1. Is there a triable issue of material fact as to
whether Duhm is a “supervisor” within the meaning of FEHA?
Under FEHA, a “supervisor” is an employee who meets a
two-part test: The employee must (1) “hav[e] the authority” to
13
“hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, [] discipline,” “direct” other employees, “adjust
their grievances,” or “effectively to recommend [the adjustment of
grievances]” and (2) “the exercise of that authority [must not be]
of a merely routine or clerical nature, but [must] require[] the use
of independent judgment.” (§ 12926, subd. (t).) An employee is
not a supervisor merely because they “hold[] a more senior
position” in the employer’s hierarchy. (Lamb v. Household Credit
Services (N.D.Cal. 1997) 956 F.Supp. 1511, 1517 (Lamb).) On the
other hand, an employee can be a supervisor without being “fully
accountable and responsible” for the work of all of his or her
subordinates. (Chapman, supra, 116 Cal.App.4th at pp. 929-
930.)
The undisputed facts establish that Duhm is not a
“supervisor” under this definition.
As an initial matter, it is undisputed that Duhm did not
have any direct oversight over plaintiff: Plaintiff was in the
health and beauty aids department, one of the Simi Valley store’s
five departments over which Duhm had no management or
supervisory authority. There is also no evidence that Duhm
undertook supervisory tasks over anyone in the four departments
he did oversee: He had seniority, but he worked alongside the
other employees in taking inventory, ordering merchandise as
needed, and stocking shelves. His job title was “Retail Service
Manager,” but a job title is not dispositive (Lamb, supra, 956
F.Supp. at pp. 1517-1518), and Duhm’s actual duties did not
make him a supervisor.
Although Duhm was also responsible for overseeing the
night crew in the Simi Valley store, it is undisputed that his
tasks in this regard—making sure the night crew employees
14
showed up and were not “dillydallying” and reporting any
“dillydallying” to those employees’ supervisors—did not involve
the “use of independent judgment.” Functionally, Duhm was a
living “nanny cam” for the night crew’s actual supervisors,
allowing them to observe what their subordinates were doing as
well as to have the ability to have someone remind them to do
their work if they started to slack off. There is no evidence that
Duhm exercised any “independent judgment” while executing
these observe-and-report duties; he could not alter anyone’s
duties or discipline anyone for any dereliction of their job duties.
(Accord, Lamb, supra, 956 F. Supp. at pp. 1513, 1517-1518
[employee with “responsibilities” to “monitor[]” other employees
is not a “supervisor” when there is no independent judgment
involved].) Although plaintiff testified that she “was told” that
Duhm “was the third person in charge of the store” and was “in
charge of everyone,” Vons objected to this statement as hearsay
and the trial court implicitly excluded it as such; this was
undoubtedly the correct ruling (Evid. Code, § 1200), so this
statement cannot create a triable issue of fact. (Dina v. People ex
rel. Dept. of Transportation (2007) 151 Cal.App.4th 1029, 1048
[failure to appeal leaves evidentiary ruling intact], disapproved
on another ground in Weiss v. People ex rel. Department of
Transportation; Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th
755, 761 [“Only admissible evidence is liberally construed in
deciding whether there is a triable issue.”].)
Plaintiff tendered evidence that Duhm had assigned
plaintiff stocking duties for departments other than her own and
had ordered too much inventory for her own department.
However, it is undisputed that the store director did not
authorize Duhm to take these actions (and the director assured
15
plaintiff that her failure to complete the tasks would not be
counted against her). It is well settled that an employee is a
supervisor only if he legitimately has the authority to act as one;
Duhm’s exercise of authority never given to him does not make
him a supervisor. (§ 12926, subd. (t) [employee must “hav[e] the
authority” to perform the listed supervisory acts]; see Meritor
Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 70-72 [rejecting
notion of “ostensible” authority as a supervisor; actual authority
is required].)
Plaintiff also tendered evidence that, for a three- or four-
week period, the store director authorized Duhm to “writ[e]” the
“schedule” for plaintiff’s department, which included allocating
some of her time to helping with other departments. Citing
Butler-Johnson Corp. v. NLRB (9th Cir. 1979) 608 F.3d 1303,
1305-1306 & fn. 4), plaintiff urges that this conduct alone means
that Duhm is a supervisor for purposes of her sexual harassment
claim. We disagree. In Butler-Johnson, the court held that an
employee who had reassigned other employees’ duties on one
occasion was a “supervisor only in the most technical sense”
under analogous federal law because that task required him to
exercise independent judgment. (Ibid.) To the extent Butler-
Johnson stands for the proposition that allowing an otherwise
nonsupervisory employee to do a supervisor-like task once
converts that individual into a “supervisor” both backwards and
forwards in time, we disagree with Butler-Johnson. (See Barrett
v. Rosenthal (2006) 40 Cal.4th 33, 58 [federal precedent is at most
persuasive authority]; People v. Williams (1997) 16 Cal.4th 153,
190 [same].) It is undisputed that, at the time, Duhm had been
an employee of Vons for nearly 14 years, and that the record
indicates he wrote schedules for less than a month, total. This is
16
not enough to turn his otherwise nonsupervisory job into a
supervisory one. What is more, plaintiff indicates that Duhm’s
month-long period of writing schedules occurred after her
February 2019 complaint, which is the point at which plaintiff
said that all sexual harassment had stopped. At most, that made
Duhm a supervisor from the time of his schedule writing forward;
because the sexual harassment claim occurred earlier, Duhm was
not a supervisor at that time.
Plaintiff raises one further, statute-based argument.
Specifically, she urges that an employer can prevail on summary
adjudication only if it introduces evidence that a particular
employee did not engage in every single one of the 13 supervisory
acts set forth in FEHA’s definition of “supervisor.” For support,
she cites Chapman, supra, 116 Cal.App.4th at p. 929. But
Chapman only held that an employee who did not have the
authority to hire or fire others could still be a “supervisor” if the
evidence showed that the employee satisfied other portions of the
definition. Chapman did not hold that an employer must negate
every portion of the definition; nor would it, as that burden would
require employers to prove 13 negatives with undisputed facts.
Our Legislature may prefer sexual harassment cases to go to trial
rather than be decided on summary judgment (§ 12923, subd.
(e)), but we decline to construe FEHA to make summary
adjudication impossible even in cases where the undisputed
evidence before the court dictates judgment for the defendant-
employer. This argument also does not aid plaintiff in this case,
because a supervisor must also exercise independent judgment in
carrying out these 13 tasks, and the undisputed evidence
indicates Duhm exercised no such judgment.
17
2. Is there a triable issue of material fact as to
whether Vons took “immediate and appropriate corrective action”
within the meaning of FEHA?
Because Duhm is not a “supervisor,” his sexual harassment
is attributable to his employer Vons only if Vons (1) knew or
should have known of his conduct and (2) failed to take
“immediate and appropriate corrective action.” (§ 12940, subd.
(j)(1); State Department of Health, supra, 31 Cal.4th at pp. 1040-
1041; Bradley v. Dept. of Corrections & Rehabilitation (2008) 158
Cal.App.4th 1612, 1631 (Bradley) [“[W]hen harassment is by a
nonsupervisory employee, an employer’s liability is predicated
not on the conduct itself, but on the employer’s response once it
learns of the conduct.”].)
With respect to the second element of “immediate and
appropriate corrective action,” “[t]he most significant immediate
measure an employer can take in response to a sexual
harassment complaint is to launch a prompt investigation to
determine whether the complaint is justified.” (Swenson v. Potter
(2001) 271 F.3d 1184, 1193 (Swenson); Mathieu v. Norrell Corp.
(2004) 115 Cal.App.4th 1174, 1185 (Mathieu) [employer must
take “prompt, reasonable and efficacious remedial action” in
response to harassment complaint].) That is because the
employer’s act in conducting the investigation itself—regardless
of the outcome—sends the message to all employees that
harassment will not be tolerated. (Swenson, at p. 1193.) To
fulfill this function, the investigation need not be “perfect”; it is
enough that the investigation is a “reasonable” one that is neither
“rigged to reach a pre-determined conclusion” or “otherwise
conducted in bad faith.” (Id. at pp. 1193, 1196, 1197.) An
investigation meets this “reasonable” standard even if the
18
employer concludes that no harassment occurred, and even if
that conclusion is ultimately shown to be incorrect. (Id. at p.
1196.) An investigation does not become unreasonable merely
because the employer declines to “credit [the] uncorroborated
statements [of] the complainant” if “th[ose statements] are
disputed by the alleged harasser” (Baldwin v. Blue Cross/Blue
Shield (11th Cir. 2007) 480 F.3d 1287, 1303-1304), or merely
because the employer declines to impose discipline in such a he-
said/she-said situation. And an employer’s corrective action is
not inappropriate merely because the employer elects not to
separate the alleged harasser from the complainant when the
investigation is inconclusive; the duty to separate coworkers
turns on (1) the severity of the alleged harassment and (2) the
evidence developed during the investigation. (Swenson, at pp.
1192-1193.)
The undisputed facts establish that Vons took “immediate
and appropriate corrective action” in response to plaintiff’s two
complaints. In response to plaintiff’s February 2019 complaint of
sexual harassment, Vons immediately tasked Hernandez with
investigating the complaint, and Hernandez interviewed
witnesses and collected their written statements. While this
investigation was ongoing, plaintiff’s store director also adjusted
Duhm’s work hours to reduce his interaction with plaintiff.
Although Duhm was not disciplined because Hernandez was
unable to corroborate plaintiff’s account of what happened, the
investigation successfully stopped the sexual harassment: It is
undisputed plaintiff told Hernandez that she suffered no further
harassment—sexual or otherwise—until the incident underlying
her May 2019 complaint three months later. (Accord Mathieu,
supra, 115 Cal.App.4th at p. 1185 [employer acts reasonably with
19
respect to complaint about sexual harassment if harassment
ceases after investigation complete]; Swenson, supra, 271 F.3d at
p. 1197 [same].) Indeed, in response to plaintiff’s May 2019
complaint of retaliatory conduct (rather than sexual harassment),
Vons once again tasked Hernandez with investigating the
complaint, and Hernandez again interviewed witnesses and
collected their written statements. Although Vons’s human
resources department ultimately concluded, based on
Hernandez’s investigation, that the May 2019 complaint also
could not be substantiated, Vons nevertheless took the additional
step of separating plaintiff from Duhm in accordance with what
plaintiff had communicated her wishes to be by transferring her
to the Thousand Oaks store. In sum, Vons’s responses to
plaintiff’s complaints were reasonable as a matter of law.
Plaintiff raises what boils down to three arguments in
response.
First, she argues that Vons did not take “immediate and
appropriate corrective action” because its May 2019 investigation
was not conducted “immediately” (as Hernandez did not conduct
any interviews for approximately four weeks after being tasked
with the investigation) and because Vons’s investigation reached
the wrong outcome (as plaintiff—rather than Duhm and
Andreas—was the telling the truth). To begin, this investigation
was not directly related to plaintiff’s sexual harassment claim
because that May 2019 complaint was based on retaliatory
behavior and not further sexual harassment. The investigation
was reasonable anyway. Although Hernandez’s four-week delay
before starting interviews was certainly not “perfect,” perfection
is not required. More to the point, there is no evidence that the
delay was unreasonable given that there is no evidence that
20
witnesses would have said anything different had they been
questioned a few weeks earlier and given that the sum total of
everyone’s statements did not substantiate plaintiff’s complaint
of retaliatory conduct. Further, the fact that Vons’s investigation
reached an outcome with which plaintiff disagrees does not
preclude our finding, as a matter of law, that Vons’s investigation
was reasonable. As noted above, an employer can both act
reasonably and reach a mistaken conclusion as to whether the
accused employee committed harassment. (Swenson, supra, 271
F.3d at p. 1196.)
Second, plaintiff argues that the inadequacy of Vons’s
responses to her complaints is established by the fact that it
wrongly decided not to discipline Duhm. However, “[a]s a matter
of policy, it makes no sense to tell employers that they act at
their legal peril if they fail to impose discipline even if they do not
find what they consider to be sufficient evidence of harassment.”
(Swenson, supra, 271 F.3d at p. 1195.)
Third, plaintiff argues that Vons did not take “appropriate
corrective action” because it ultimately transferred her (rather
than Duhm). The premise of this argument is that, should an
employer decide to separate an accuser from the accused when an
investigation into harassment is inconclusive, the employer must
always transfer the accused rather than the accuser. This is not
the law. An employer enjoys “wide discretion” in choosing how to
minimize contact between the two employees (Bradley, supra,
158 Cal.App.4th at p. 1630; Swenson, supra, 271 F.3d at p. 1194),
and may exercise that discretion by transferring the accuser,
rather than the accused, to another position that is not
“objectively less desirable” (Swenson, at p. 1194). Although a
transfer that entails a “longer commute or an inconvenient work
21
schedule” can be objectively less desirable (and hence constitute
an “inappropriate response”) (ibid.), plaintiff in this case—as
discussed more fully below—was given the option of working
different hours in the same Vons store or transferring to a
different store, and communicated her preference to transfer. As
a result, she cannot now claim that her transfer was objectively
less desirable because of a nominally longer commute time.
B. Duhm’s liability for sexual harassment
Separate and apart from an employer’s liability for sexual
harassment, the harassing employee may also be liable under
FEHA for such harassment. (Gov. Code, § 12940, subds. (j)(3) &
(j)(4)(C) [“‘harassment’ because of sex includes sexual harassment
[and] gender harassment”].) Because there are triable issues of
material fact as to whether plaintiff has met two of the three
elements of sexual harassment as against Duhm (that is, that he
subjected her to verbal or physical contact of a sexual nature and
that his conduct was unwelcome), Duhm’s personal liability for
sexual harassment turns on whether there are also triable issues
of material fact as to the third element—that is, whether Duhm’s
conduct was sufficiently “severe and pervasive” to alter the terms
and conditions of plaintiff’s employment, thereby creating an
abusive working environment.
We conclude there are.
The assessment of whether a harasser’s conduct was
sufficiently “severe and pervasive” looks to the totality of the
circumstances, including (1) the frequency of the harassing
conduct, (2) its severity, (3) whether the conduct was physically
threatening or humiliating, or a mere offensive utterance, and (4)
whether it unreasonably interfered with the plaintiff’s work
performance. (Lyle, supra, 38 Cal.4th at p. 283; Hughes, supra,22
46 Cal.4th at p. 1042; Caldera v. Dept. of Corrections &
Rehabilitation (2018) 25 Cal.App.5th 31, 38; Fuentes v. AutoZone,
Inc. (2011) 200 Cal.App.4th 1221, 1227; Fisher v. San Pedro
Peninsula Hospital (1989) 214 Cal.App.3d 590, 609-610.) To be
“severe and pervasive,” the harassing conduct must be such that
it would interfere with a reasonable employee’s work performance
and actually offend the plaintiff in this case. (Aguilar, supra, 21
Cal.4th at pp. 130-131.) Conduct does not typically satisfy this
standard if it is merely “annoying or ‘merely offensive’” (Lyle, at
p. 283), or if it is “‘occasional, isolated, sporadic, or trivial’”
(Aguilar, at p. 131; Alexander v. Community Hospital of Long
Beach (2020) 46 Cal.App.5th 238, 263 (Alexander); Hughes,
supra, 46 Cal.4th at p. 1048), although “[a] single incident of
harassing conduct” may sometimes be “sufficient to create a
triable issue regarding the existence of a hostile work
environment” (§ 12923, subd. (b)). However, conduct interferes
with an employee’s work performance if it results in the loss of a
tangible job benefit (which constitutes a direct alteration of the
terms and conditions of employment) or if the plaintiff satisfies
the ‘“commensurately higher showing”’ that the conduct ‘“was
pervasive and destructive of the working environment”’ (which
constitutes a more indirect and implicit alteration). (Lyle, at p.
284; Fisher, at p. 610; see also Mokler v. County of Orange (2007)
157 Cal.App.4th 121, 145 [to be actionable, workplace must be
“‘“permeated”’” with “““intimidation, ridicule and insult”””].)
There is a triable issue of material fact regarding whether
Duhm’s conduct toward plaintiff was sufficiently severe and
pervasive as to alter the terms of her employment. Plaintiff
offered evidence of repeated verbal harassment: Over a three- or
four-month period, Duhm told plaintiff five to 10 times that she
23
was “pretty,” told her three to five times that she should date
older men like him, told her five times that women are best at
“lying on their backs,” and made a comment about sticking a roll
of paper towels “up [her] butt” because he knows she “like[s]
things in [her] butt.” Plaintiff also offered evidence of physical
harassment: In February 2019, Duhm pushed a shelf into her
butt, while grinning; given Duhm’s prior comment about sticking
items “up [her] butt,” his conduct with the shelf could reasonably
be viewed as a distasteful sexual gesture. Although plaintiff did
not suffer a loss of any tangible job benefit, a reasonable jury
crediting plaintiff’s evidence could conclude that it was more than
“annoying or merely offensive” and instead “pervasive and
destructive of the working environment.” Our conclusion that
there is a triable issue as to whether Duhm’s conduct is
actionably severe and pervasive also dovetails with our
Legislature’s recent pronouncement that summary adjudication
of the merits of sexual harassment claims is to be disfavored. (§
12923, subd. (e).)
The trial court accordingly erred in granting summary
judgment of plaintiff’s sexual harassment claim against Duhm,
and we must reverse and remand that claim for further
proceedings.
II. Discrimination and Retaliation
To prevail on a claim for discrimination under FEHA, a
plaintiff must establish that (1) she is a member of a protected
class (here, sex and gender), (2) she was qualified for the position
she sought to maintain, (3) she suffered an adverse employment
action, and (4) some other circumstance suggests discriminatory
motive. (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355
[discrimination]; § 12940, subd. (a) [same; unlawful for employer
24
to, based on “sex” or “gender,” “discriminate against the person in
compensation or in terms, conditions, or privileges of
employment”].) To prevail on a claim for retaliation under
FEHA, a plaintiff must establish that (1) she engaged in a
protected activity, (2) the employer subjected her to an adverse
employment action, and (3) a causal link exists between the
protected activity and the employer’s action. (Yanowitz v. L’Oreal
USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz) [retaliation];
Light v. Dept. of Parks & Recreation (2017) 14 Cal.App.5th 75, 91
(Light) [same]; § 12940, subd. (h) [unlawful for employer to
“discharge, expel, or otherwise discriminate against any person
because the person . . . has filed a complaint”].) Thus, to prevail
on either type of claim (discrimination or retaliation), the
plaintiff must establish that her employer subjected her to an
adverse employment action.
An adverse employment action is defined as an action by
the employer that “materially” and “adverse[ly]” “affect[s] the
terms and conditions of employment.” (Yanowitz, supra, 36
Cal.4th at p. 1036.) Such actions reach beyond firing, demoting,
or refusing to promote the employee; they also reach those
actions by the employer that are “reasonably likely to impair a
reasonable employee’s job performance or prospects for
advancement or promotion.” (Id. at pp. 1054-1055; Wysinger v.
Automobile Club of Southern California (2007) 157 Cal.App.4th
413, 423.) However, actions must be “material,” and materiality
is adjudged objectively. (Momah v. Dominguez (6th Cir. 2007)
239 Fed.Appx. 114, 124 (Momah); Yanowitz, at p. 1054 [“objective
perspective”]; Holmes v. Petrovich Development Co., LLC (2011)
191 Cal.App.4th 1047, 1064 [“objective evidence”].) Thus, actions
by an employer that subjectively “upset” or “‘humiliat[e]’” the
25
employee, or ‘“are not to [her] liking,”’ are insufficient.
(Yanowitz, at p. 1054; McRae v. Department of Corrections &
Rehabilitation (2006) 142 Cal.App.4th 377, 386, 393; Light, at p.
92.)
The trial court held that the undisputed evidence showed
plaintiff suffered no adverse employment action. On appeal,
plaintiff urges that she suffered two adverse employment actions.
First, contrary to her statement to Hernandez that she suffered
no further sexual harassment between February and May 2019,
plaintiff asserts that Duhm gave her “‘disadvantageous
assignments’” “based on her sex and/or out of retaliation” after
she made her February 2019 complaint—all with the aim of
undermining her efficacy at work—by (a) criticizing the pace of
her work and knowledge about the store’s operations, (b) asking
her to stock items outside her department (despite having no
authority to do so), (c) ordering excess items for her department
(despite having no authority to do so), and (d) allocating some of
her time to departments other than her own. Second, plaintiff
asserts that Vons transferred her to the Thousand Oaks store,
which increased her commute time, after her May 2019
complaint.
We separately examine each proffered adverse employment
action.
A. Ongoing harassment by Duhm
We reject the argument that Duhm’s alleged sex- and
gender-based harassment could constitute an adverse
employment action to support plaintiff’s sex- and gender-based
discrimination claim. To accept that argument would cause
Duhm’s harassing conduct to satisfy two elements—namely, that
plaintiff was subjected to conduct motivated by discriminatory
26
animus and that plaintiff suffered an adverse employment action.
The net result is to render superfluous the adverse employment
action element. We are not at liberty to eliminate the very
elements of FEHA claims. (See Shaeffer v. Califia Farms, LLC
(2020) 44 Cal.App.5th 1125, 1141; People v. Jeffers (1987) 43
Cal.3d 984, 991-992.) Plaintiff is correct that harassing behavior
can constitute an adverse employment action in a retaliation
claim when the facts show that the harassing conduct is in
retaliation for engaging in protected activity. (Kelley v. The
Conco Companies (2011) 196 Cal.App.4th 191, 212 (Kelley); Light,
supra, 14 Cal.App.5th at p. 92.) But this precedent does not
address the use of harassing conduct to do double duty as to both
the discriminatory conduct and the adverse employment action
for a discrimination claim; extending the precedent to this new
context is improper for the reasons set forth above.5 Plaintiff is
also correct that the same unlawful conduct by a fellow employee
can constitute both discriminatory conduct and retaliation.
(Miller v. Department of Corrections (2005) 36 Cal.4th 446, 474-
475; Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11
Cal.5th 918, 932.) But saying that the same conduct can satisfy
one element of two different claims is not the same as saying that
the same conduct can satisfy two different elements of the same
claim.
We also reject the argument that Duhm’s alleged sex- and
gender-based harassment in this case could constitute an adverse
employment action to support her retaliation claim. Although, as
5 We accordingly reject plaintiff’s assertion that the alleged
hostile work environment created by Duhm’s conduct is itself an
adverse employment action giving rise to a gender discrimination
claim.
27
noted above, harassing conduct can constitute an adverse
employment action for a retaliation claim (Kelley, supra, 196
Cal.App.4th at p. 212; Light, supra, 14 Cal.App.5th at p. 92), we
have concluded as a matter of law that Duhm’s harassing conduct
is not attributable to Vons. Thus, Vons is not liable for that
conduct and it cannot be considered an adverse employment
action by Vons. Plaintiff points out that the store director got
upset with her upon learning that she had not stocked the excess
inventory that Duhm had ordered, but Duhm’s conduct in this
regard was not authorized and the store director did not take any
action against plaintiff once he learned that Duhm was
responsible for the excess inventory.
B. Transfer to the Thousand Oaks store
We reject plaintiff’s contention that Vons’s act in
transferring her to the Thousand Oaks store in July 2019 could
constitute an adverse employment action, and we do so for two
reasons.
First, an employer’s decision to transfer an employee—
while allowing her to keep her same position and pay—does not,
by virtue of any increase in the length of the employee’s
commute, constitute an adverse employment action. (Cooper v.
UPS (5th Cir. 2010) 368 Fed.Appx.469, 474-475 [so holding, and
collecting cases].) Whether a longer commute constitutes an
adverse employment action does turns on whether that increase
in commute time makes the new location “objectively less
desirable.” (Swenson, supra, 271 F.3d at p. 1194 [transfer may be
“inappropriate response” to complaint]; Keeton v. Flying J, Inc.
(6th Cir. 2005) 429 F.3d 259, 264 (Keeton); Darnell v. Campbell
County Fiscal Court (E.D.Ky. 1990) 731 F.Supp. 1309, 1313
(Darnell) [“transfer over great distance can amount to a
28
constructive discharge”].) The undisputed facts here show that
plaintiff will have a 30-minute commute from her residence to the
Thousand Oaks store. There is nothing in the record indicating
plaintiff’s commute time to the Simi Valley store, but unless she
lives immediately adjacent to the Simi Valley store, the change in
commute time is less than 30 minutes. Even so, we conclude as a
matter of law that an increase in commute of less than 30
minutes in a metropolis like the greater Los Angeles area, where
many workers have daily commutes that take hours, does not
make a job objectively less desirable. (Accord, Darnell, at p. 1313
[same; “as a matter of law,” 20-minute drive did not render
transfer a “constructive discharge”].)
Second, and even if we ignore the first ground, the transfer
to the Thousand Oaks store is not objectively less desirable as a
matter of law because plaintiff expressed a preference for that
transfer. In her direct communications with Vons, plaintiff
indicated she would accept a change in her shift at the Simi
Valley store or a transfer to a different store; indirectly through
her union representative, plaintiff subsequently indicated that
she preferred a transfer, but one that let her keep her status as a
night crew employee. Because plaintiff never alleged or argued
below that changing her shift was an adverse employment action,
she elected to forego a nonadverse employment action for what
she now claims to be an adverse employment action.
Consequently, the action plaintiff now complains is an adverse
employment action is not an action Vons imposed upon her; it
was a product of her own choice.
Plaintiff resists this conclusion with two arguments.
First, she argues that Vons misunderstood her preference
because she subjectively preferred to stay in the Simi Valley store
29
because she has “friends at the store” and “live[s] close.” As
noted above, plaintiff communicated to Vons that she was fine
with a change in shift or a transfer, and then communicated a
preference—through her union representative—for the transfer.
Plaintiff’s contention that her union representative
misunderstood her preference is irrelevant, as Vons had no
knowledge of the mix-up. Vons’s deference to plaintiff’s choice
does not become an adverse employment action merely because
plaintiff has explained in subsequent litigation that she actually
told her union representative—but not Vons—something
different. What is more, plaintiff’s subjective preferences to work
with “her friends” are irrelevant to whether something is an
adverse employment action, which, as noted above, is an objective
standard. (Momah, supra, 239 Fed.Appx. at p. 123.)
Second, plaintiff argues that either option—a change in
shift or a transfer—was an adverse employment action because
either was necessary to get away from Duhm. The premise of
this argument is that an employer commits an adverse
employment action whenever it elects to separate the accuser and
accused by moving the accuser rather than the accused. Alas,
this is not the law. “If [an employer] decides to separate two
employees in the workplace, the employer may properly consider
the relative ease of moving them and their respective importance
to its business operations.” (Swensen, supra, 271 F.3d at p.
1194.) Here, Vons determined that that plaintiff’s claims could
not be substantiated but that she should be separated from
Duhm to avoid any potential issues in the future; its subsequent
decision to transfer a relatively new and lower-level employee
like plaintiff rather than transfer its night crew chief with years
30
of experience in the Simi Valley store fits comfortably within its
discretion.
III. Intentional Infliction of Emotional Distress
To prevail on a claim for intentional infliction of emotional
distress, a plaintiff must establish “‘(1) extreme and outrageous
conduct by the defendant with the intention of causing, or
reckless disregard of the probability of causing, emotional
distress; (2) the plaintiff’s suffering severe or emotional distress;
and (3) actual and proximate causation of the emotional distress
by the defendant’s outrageous conduct.’” (Wilson v. Hynek (2012)
207 Cal.App.4th 999, 1009; Haberman v. Cengage Learning, Inc.
(2009) 180 Cal.App.4th 365, 389; Trerice v. Blue Cross of Cal.
(1989) 209 Cal.App.3d 878, 883 (Trerice).) Conduct is
“outrageous” only if it “‘exceed[s] all bounds of that usually
tolerated in a civilized community’”; it is not enough that the
conduct cause “discomfort, worry, anxiety, upset stomach,
concern [or] agitation.” (Hughes, supra, 46 Cal.4th at p. 1051;
Trerice, at p. 883; Fowler v. Varian Assocs. (1987) 196 Cal.App.3d
34, 44.)
Plaintiff’s claim for intentional infliction of emotional
distress against Vons is without merit as a matter of law for two
reasons. First, plaintiff’s exclusive remedy is the workers’
compensation system because, as explained above, plaintiff’s
claims for sexual harassment, sex- and gender-based
discrimination and retaliation against Vons fail as a matter of
law. (Miklosy v. Regents of University of Cal. (2008) 44 Cal.4th
876, 902-903; cf. Light, supra, 14 Cal.App.5th at pp. 97-98 [“A
number of California authorities have concluded claims for
intentional infliction of emotional distress in the employment
context may be asserted where the actionable conduct also forms
31
the basis for a FEHA violation.”; citing cases]; Accardi v. Superior
Court (1993) 17 Cal.App.4th 341, 352 [emotional distress arising
out of employment not barred where distress “is engendered by
an employer’s illegal discriminatory practices”]; Nazir v. United
Airlines Inc. (2009) 178 Cal.App.4th 243, 288 [same]; Hughes,
supra, 46 Cal.4th at p. 1051 [“If properly pled, a claim for sexual
harassment can establish ‘the outrageous behavior element of a
cause of action for intentional infliction of emotional distress.’”].)
Second, and independent of the workers’ compensation bar, the
sole conduct for which Vons is responsible—that is, conducting
investigations into plaintiff’s two complaints, declining to
discipline Duhm, and transferring plaintiff to another store per
her request—does not, as a matter of law, constitute extreme or
outrageous conduct. (See Trerice, supra, 209 Cal.App.3d at p. 883
[court can decide this issue in first instance]; Fowler, supra, 196
Cal.App.3d at p. 44 [same]; Alcorn v. Anbro Engineering, Inc.
(1970) 2 Cal.3d 493, 499 [jury decides this issue only if reasonable
minds may differ].)
Plaintiff’s claim for intentional infliction of emotional
distress against Duhm, however, raises triable issues of material
fact. Because, as we have concluded above, plaintiff’s claim for
sexual harassment against him survives, that actionable,
underlying conduct forms the basis of plaintiff’s claim for
intentional infliction of emotional distress against Duhm. Her
claim against him therefore is not barred by the exclusive remedy
provisions of the workers’ compensation law. Further, there are,
at a minimum, triable issues of material fact regarding whether
Duhm’s harassment of plaintiff was sufficiently extreme and
outrageous. We accordingly reverse summary adjudication of
32
plaintiff’s intentional infliction of emotional distress claim as
against Duhm and remand that claim for further proceedings.
IV. Wrongful Constructive Discharge
To prevail on a claim for wrongful termination in violation
of public policy, a plaintiff must establish: “‘(1) an employer-
employee relationship, (2) the employer terminated the plaintiff’s
employment, (3) the termination was substantially motivated by
a violation of public policy, and (4) the discharge caused the
plaintiff harm.’” (Nosal-Tabor v. Sharp Chula Vista Medical
Center (2015) 239 Cal.App.4th 1224, 1234-1235.) An employer
“terminates” a plaintiff’s employment either by actually firing the
employee or if the employee resigns but that resignation amounts
to a “constructive discharge” because the resignation was
“employer-coerced, [and] not caused by the voluntary action of the
employee or by conditions . . . beyond the employer’s control.”
(Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1248
(Turner); Vasquez v. Franklin Management Real Estate Fund,
Inc. (2013) 222 Cal.App.4th 819, 826-827 (Vasquez).) A
resignation is “employer-coerced” only if the “employer either
intentionally created or knowingly permitted working conditions
that were so intolerable or aggravated at the time of the
employee’s resignation that a reasonable employer would realize
that a reasonable person in the employee’s position would be
compelled to resign.” (Turner, at p. 1251; accord, Vasquez, at p.
826.) “[A]dverse working conditions must be unusually
‘aggravated’ or amount to a ‘continuous pattern’ before the
situation will be deemed intolerable.” (Turner, at p. 1247.)
“‘[S]ingle, trivial, or isolated acts’” are generally not sufficient to
support a finding of constructive discharge. (Ibid.; Valdez v. City
of Los Angeles (1991) 231 Cal.App.3d 1043, 1056.) Although the
33
question whether conditions were so intolerable as to amount to a
constructive discharge is usually one of fact, summary judgment
may be appropriate where the plaintiff-employee’s decision to
resign is unreasonable as a matter of law. (Vasquez, at p. 827;
Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986,
1022.)
The trial court properly granted summary adjudication of
plaintiff’s claim for wrongful termination in violation of public
policy. Because it is undisputed that Vons did not terminate
plaintiff, the viability of this claim turns on whether plaintiff’s
resignation qualifies as a constructive discharge. As a matter of
law, it does not. The courts appear to be split over whether the
showing of intolerable and aggravated working conditions
necessary to show a constructive discharge requires the same
showing—or instead an even greater showing—of intolerability
and aggravation than is necessary to show an adverse
employment action. (Compare Keeton, supra, 429 F.3d at p. 265
[some adverse employment actions do not “rise to the level” of
being constructive discharges] with Darnell, supra, 731 F.Supp.
at p. 1313 [equating the concepts of adverse employment action
and constructive discharge].) Because we have concluded that
Vons’s conduct did not amount to an adverse employment action,
however, that conduct cannot constitute a constructive discharge
under either approach.
Plaintiff responds that we must examine the entire “chain
of events” that occurred during her employment at Vons, which
shows a “continuous pattern” of “adverse conditions” that
“render[ed] the situation intolerable” and hence led to her
resignation. For support, she cites Cloud v. Casey (1999) 76
Cal.App.4th 895, 903, which held that courts must look beyond
34
the employee’s stated reason for resigning and examine the full
context leading up to that resignation in assessing the true
reason for that resignation. This argument does not alter our
analysis because we have already considered the full context of
events leading up to plaintiff’s decision to resign—including all of
Duhm’s conduct, Vons’s investigations of that conduct, plaintiff’s
indication that she would be fine with a different shift in the
same store or a transfer to a different store, and plaintiff’s
expression of a preference for a transfer. Even with this full
spectrum of background facts in mind, plaintiff’s resignation still
does not constitute a constructive discharge as a matter of law.
V. Punitive Damages
A jury may award punitive damages upon finding that a
defendant is “guilty of oppression, fraud, or malice.” (Civ. Code, §
3294, subd. (a).) However, punitive damages are not a free-
floating remedy; they must be attached to a viable cause of
action. Because we have concluded that all of plaintiff’s claims
against Vons were properly dismissed on summary adjudication,
her prayer for punitive damages against Vons necessarily fails as
well. In contrast, because we have concluded that the dismissal
of plaintiff’s claims against Duhm for sexual harassment and
intentional infliction of emotional distress must be reversed, it
follows plaintiff’s prayer for punitive damages against Duhm is
still viable.
35
DISPOSITION
The judgment in favor of Vons is affirmed. Summary
adjudication of plaintiff’s claims for harassment and intentional
infliction of emotional distress against Duhm is reversed. The
parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
36