Roe v. County of Orange CA4/2

Filed 2/9/22 Roe v. County of Orange CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
JANE ROE,
Plaintiff and Appellant, E074261
v. (Super.Ct.No. RIC1803575)
COUNTY OF ORANGE, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Randall S. Stamen,
Judge. Affirmed.
Alexander Morrison + Fehr, J. Bernard Alexander III and Tracy L. Fehr; Markson
Pico, Brett S. Markson and Timothy A. Pico for Plaintiff and Appellant.
Woodruff, Spradlin & Smart, Daniel K. Spradlin, Barbara Raileanu and Roberta
A. Kraus for Defendant and Respondent.
1
Plaintiff, Jane Roe, appeals from an order granting summary adjudication of issues
in favor of the County of Orange (County), on her cause of action for sexual harassment
in violation of the Fair Employment and Housing Act (FEHA), as well as Government
Code section 12920, et seq., and Government Code section 12940 et seq., arising from a
sexual assault committed by another Orange County Deputy Sheriff during the
extradition of an inmate to Texas. The County’s motion for summary adjudication of that
cause of action was granted, and, after plaintiff settled her claim against the individual
deputy involved in the assault, she dismissed the remaining causes of action1 and filed
this appeal.
On appeal, plaintiff argues the trial court erred in granting the motion for summary
adjudication by (1) erroneously finding that the individual deputy who committed the
assault was not her supervisor within the meaning of the FEHA and Government Code
sections 12920 and 12926, subdivision (t); (2) finding the County not liable despite
plaintiff’s reasonable belief that Medina was her supervisor; and (3) finding the County
not liable for coworker sexual harassment. We affirm.
BACKGROUND
We set out the undisputed material facts as ascertained from the parties’ moving
and opposing papers (see Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 327) and
state other facts and draw inferences from them in the light most favorable to plaintiffs.
1 Much ado is made over the fact that plaintiff dismissed otherwise viable causes
of action in order to expedite the appeal as to the adverse ruling on the second cause of
action. It is irrelevant to us.
2
(Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 843 (Aguilar).)
Plaintiff began working for the Orange County Sheriff’s Department (OCSD) in
2012, and completed her training at the academy in February 2013, after which she was
assigned as a Deputy I to work as a bailiff at the Orange County Superior Court, Central
Justice Center (CJC). After a time as bailiff, plaintiff transferred to working detention at
CJC in August 2016. Plaintiff’s supervisors at CJC were Sergeants Arredondo, Chivara,
and Hilton, but when she transferred to detention, her supervisors were Sergeants Carpio
and Schuch. Between January 2017 and August 2017, plaintiff’s supervisors were
Sergeants Gilbert and Naranjo. In August/September 2017, plaintiff transferred to
Harbor Justice Center.
Plaintiff received positive evaluations from her CJC sergeant and received yearly
raises. In October 2016, plaintiff made a sexual harassment complaint against Deputy
Rudy Rodriguez, a nonparty to this action, who arrived at CJC a few months after
plaintiff. Plaintiff and Rodriguez had become friends and Rodriguez became flirtatious
in the summer of 2016, commenting on plaintiff’s body and grabbing her butt several
times. By October, Rodriguez asked plaintiff to meet him in the guard station, and, when
she did so, he closed the door, grabbed her and pressed himself against her, trying to kiss
her. Plaintiff pushed him away, told him she was married, and reported the incident to
Sergeant Arredondo, but she did not want an investigation. Instead, she asked a
supervisor that she not have to work with Rodriguez again.
3
In 2014, plaintiff first met Joseph Medina at a fundraiser for a first responders
football team. Medina was a Deputy II who worked patrol at OCSD. He asked plaintiff
to start a cheer team for the football team after someone suggested it to him. Plaintiff did
so, and her team cheered at the games in 2015 and 2016. Plaintiff socialized with Medina
at fundraisers for the team and at post-game dinners, which Medina’s wife also attended.
Medina never flirted with plaintiff; she considered him to be a friend, and the two did not
normally work together, except for when plaintiff accompanied Medina on a ride along in
2016.
In November 2016, Medina asked plaintiff if she wanted to accompany him on an
extradition to Houston, Texas. To do so, plaintiff was required to get approval from her
supervisor, Sergeant Carpio, which she did. She was aware this would not be an
overtime assignment, and that she would receive only eight hours pay per day for the
time she was scheduled to work at CJC. Plaintiff and Medina were to transport a male
inmate to Houston on November 22-23, 2016, which were regularly scheduled workdays
for plaintiff. The extradition would involve staying one night in Houston. Plaintiff was
aware of this and had no reservations about going on the extradition with Medina.
Pursuant to OCSD policy, an extradition consists of two deputies transporting an
inmate from Orange County to another state, or vice versa. At least one deputy must
have patrol experience and must therefore be a Deputy II. However, a Deputy II is not
considered a supervisory position. Prior to their first extradition, deputies must watch a
PowerPoint training on extraditions, which covers federal requirements and procedures
4
for boarding an aircraft with a firearm. Plaintiff watched the PowerPoint training
presentation.
Following the OCSD policies, plaintiff and Medina got the inmate, put him in
restraints, checked out a patrol vehicle, drove to the airport, boarded the aircraft, and flew
to Houston, Texas. Upon landing in Houston, Medina rented a car and the inmate was
transported to Huntsville prison, where the inmate was checked in. Thereafter, plaintiff
and Medina drove to their hotel in Houston, checked in, and went to their respective
rooms.
After spending some time in their own rooms, they took a shuttle to go out for
dinner in Houston at around 8:00 p.m. They each drank an alcoholic beverage at the bar,
where they stayed for approximately one and one-half hours. They each paid for their
own dinner and kept receipts to turn them in for reimbursement. After dinner, they went
to another bar where they had another alcoholic drink and talked for an hour, laughing,
and enjoying themselves. At around 11:00 p.m., they walked to another bar where they
consumed more alcohol. They went to yet another bar after midnight where they stayed
for one to two hours, with no physical contact between them, and where plaintiff felt
comfortable with Medina. Plaintiff and Medina left this last bar when it closed, taking a
Uber back to the hotel.
Plaintiff was intoxicated at approximately 2:00 a.m. when they returned to the
hotel, where Medina, who was also drunk, walked with plaintiff to her room. Plaintiff
entered her room with Medina following behind her, and the two continued their
5
conversation while plaintiff changed into a T-shirt. Plaintiff was thirsty and did not have
water, so Medina got her a glass of water, and returned with it as plaintiff was sitting on
her bed, starting to doze off. Plaintiff drank the water and fell asleep. Plaintiff awoke
early on the morning of November 23, 2016, to find Medina sleeping in her bed with his
hand on her breast. She moved his hand, rolled over, scooted closer to the edge of the
bed, and went back to sleep. Approximately an hour later, she awoke again to find
Medina touching her vagina with his hand, after which, plaintiff felt something penetrate
her anus. She was in shock for a second or two, and then got out of bed without saying
anything to Medina. She went into the bathroom, locked the door, and took a shower.
She stayed in the bathroom for a while after showing, and then looked out to find Medina
gone from her room. She noticed carbonation in her water glass from the previous night
and believed Medina had drugged her.
At 11:00 a.m., Medina knocked on plaintiff’s door and they went to the lobby
together to check out. Afterwards, the two drove around for the day, stopping for lunch
in Galveston, and then returning to Houston for their return flight. Upon arriving in
Orange County, plaintiff and Medina drove to the Intake Release Center where their cars
were parked. A week later, plaintiff reported the incident to Sergeant Arredondo and a
criminal investigation was initiated, but OCSD turned the matter over to the Houston
Police Department, which declined to prosecute.
Following the report, plaintiff filed a complaint alleging causes of action for
(1) sexual battery against Medina; (2) sexual harassment against Medina and the County;
6
(3) retaliation in violation of the FEHA; (4) failure to prevent harassment, discrimination,
and retaliation against the County, (5) false imprisonment against Medina, (6)
whistleblower protection violation against the County, (7) declaratory relief against the
County, and (8) injunctive relief against the County. Plaintiff dismissed the first and fifth
causes of action against the County on April 23, 2018.
On March 22, 2019, the County filed its motion for summary adjudication of
issues respecting the second cause of action for sexual harassment in violation of
Government Code sections 12926, subdivision (t), 12940, subdivision (j)(1), 12960
(untimely claim), and Civil Code section 51.9 (county lacks duty where sexual
harassment is between two coworkers). Plaintiff opposed the motion and made
objections to statements in the declarations of Robert Seamans and Commander Park. On
June 28, 2019, the trial court granted the County’s motion for summary adjudication of
issues on the grounds Medina was not plaintiff’s supervisor, that any directions he gave
to plaintiff during the extradition were routine and clerical, not directions requiring
independent judgment, and that the incident involved coworker harassment for which the
County was not liable under the FEHA. In light of the adverse ruling on the second cause
of action, plaintiff requested dismissal of the third, fourth, sixth, seventh and eighth
causes of action against the County in order to expedite the appeal. Plaintiff then settled
her claims against Medina, resulting in dismissal of the second and fifth causes of action
against Medina individually.
On December 5, 2019, plaintiff filed her appeal.
7
DISCUSSION
Plaintiff’s arguments can be summarized as challenges that (1) the court erred in
finding Medina was not her supervisor, and that (2) the court erred in finding the County
not liable for sexual harassment even if Medina were not her supervisor. In making her
argument that the court erroneously ruled Medina was not plaintiff’s supervisor, plaintiff
also challenges, in passing, evidentiary rulings made by the court.
Summary judgment is appropriate, and the defendant is entitled to judgment as a
matter of law, where (1) the defendant carries its initial burden of showing the
nonexistence of one or more elements of the plaintiff’s claim(s), and (2) the plaintiff
thereafter fails to show the “existence of a triable issue of material fact” as to those
elements. (Aguilar, supra, 25 Cal.4th at pp. 850, 853; Tsasu LLC v. U.S. Bank Trust,
N.A. (2021) 62 Cal.App.5th 704, 714-715; see Code of Civ. Proc., § 437c, subds. (a)(1),
(c), (o)(1), (p).) We independently review a trial court’s grant of summary judgment,
while “liberally construing the evidence supporting” the nonmoving party and “resolving
any doubts” against summary judgment. (Patterson v. Domino’s Pizza, LLC (2014) 60
Cal.4th 474, 499–500.) Our review focuses on the propriety of the trial court’s ruling,
not its rationale. (Coral Construction, Inc. v. City and County of San Francisco (2010)
50 Cal.4th 315, 336.)
At its foundation, this appeal hinges on the trial court’s determination that Medina
was not plaintiff’s supervisor, within the meaning of the FEHA, and all the associated
claims depend on that determination for their survival. Because “supervisor” is defined
8
by statute (Gov. Code, § 12926, subd. (t)), resolution of the issue depends on statutory
interpretation. (See Carrisales v. Dept. of Corrections (1999) 21 Cal.4th 1132, 1134-
1135 [issue of whether a non-supervisor could be personally held liable under the FEHA,
as a matter of statutory interpretation, is a question of law].) As a matter of statutory
interpretation, the issue presented is a question of law, which we review de novo.
(Coburn v. Sievert (2005) 133 Cal.App.4th 1483, 1492.)
1. Preliminary Matters: Any Challenges to the Trial Court’s Evidentiary
Rulings Have Been Forfeited.
Plaintiff challenges several of the trial court’s evidentiary rulings but fails to
establish any error using legal authority or establishing prejudice. It is well settled that an
appellate brief must provide argument and legal authority for the positions taken.
(Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) “When an
appellant fails to raise a point or asserts it but fails to support it with reasoned argument
and citations to authority, we treat the point as waived. [Citations.]” (Badie v. Bank of
America (1998) 67 Cal.App.4th 779, 784–785.)
“[E]videntiary questions at summary judgment are ‘“‘subject to the overarching
principle that the proponent’s submissions are scrutinized strictly, while the opponent’s
are viewed liberally”’ [citation].” (Mackey v. Trustees of California State University
(2019) 31 Cal.App.5th 640, 657) “The party challenging an evidentiary ruling bears the
burden of establishing the court exceeded the bounds of reason.” (Ibid., citing DiCola v.
9
White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679; see also,
Jennifer C. v. Los Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, 1332.)
Because plaintiff has failed to provide meaningful analysis, or relevant authority,
demonstrating reversible error in any of the evidentiary rulings, we consider the issues
forfeited. (Aghaian v. Minassian (2021) 64 Cal.App.5th 603, 614.)
2. The Trial Court Correctly Ruled, as a Matter of Law, that the County Was
Not Liable Because Medina Was Not Plaintiff’s Supervisor.
The crux of the sexual harassment claim under the Government Code is whether
Medina was plaintiff’s supervisor. Plaintiff claims alternatively that (1) the County is
liable because he was her supervisor; (2) the County is liable because she reasonably
believed he was her supervisor; and (3) the County is liable even if Medina was not her
supervisor.
The purpose of the FEHA, Government Code section 12900, et seq., is to
eliminate the practice of discrimination because of race, color, religion, sex, gender,
gender identity, gender expression, sexual orientation, marital status, national origin,
ancestry, familial status, source of income, disability, veteran or military status, or
genetic information in employment and housing accommodations and to provide
effective remedies that will eliminate these discriminatory practices. (Gov. Code,
§ 12920.) California’s FEHA thus prohibits employment discrimination based on sex
(Gov. Code, § 12940, subd. (a)), and it expressly and separately prohibits workplace
10
harassment based on sex. (Gov. Code, § 12940, subd. (j)(1); State Dept. of Health
Services v. Superior Court (2003) 31 Cal.4th 1026, 1039.)
The FEHA prohibits “an employer . . . or any other person” from harassing an
employee. (Gov. Code, § 12940, subd. (j)(1), italics added.) It defines a “person” as
including “one or more individuals, partnerships, associations, corporations, limited
liability companies, legal representatives, trustees, trustees in bankruptcy, and receivers
or other fiduciaries.” (Gov. Code, § 12925, subd. (d); Reno v. Baird (1998) 18 Cal.4th
640, 644.) Government Code section 12926, subdivision (d) defines the term “employer”
as including “any person regularly employing five or more persons, or any person acting
as an agent of an employer, directly or indirectly; the state or any political or civil
subdivision of the state, and cities.” (Italics added; State Personnel Bd. v. Fair
Employment & Housing Com. (1985) 39 Cal.3d 422, 429.) The Act thus covers counties
as employers.
Government Code, section 12940 provides that an employer is liable for sexual
harassment of an employee by an employee other than an agent or supervisor shall be
unlawful only if the employer knows or should have known of the harassment and fails to
intervene. However, Government Code section 12940 reflects that harassment by a
supervisor is unlawful regardless of whether the employer knows or should have known
and fails to intervene. (Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 415.)
Because the FEHA imposes this negligence standard only for harassment “by an
employee, other than an agent or supervisor” (Gov. Code, § 12940, subd. (j)(1)), by
11
implication the FEHA makes the employer strictly liable for harassment by a supervisor.
(State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1041.) Thus,
the Supreme Court has held that under the FEHA, an employer is strictly liable for all
acts of sexual harassment by a supervisor. (State Dept. of Health Services v. Superior
Court, supra, at p. 1042.)
For this reason, it is incorrect to say that the term “supervisor” is subject to a
liberal interpretation.Because plaintiff’s primary theory was that the County was strictly
liable for sexual harassment committed by a supervisor, we turn our attention to that
issue.
(a) The County Is Not Liable Because Medina Was Not Plaintiff’s Supervisor.
Plaintiff argues that Medina was her supervisor within the meaning of the FEHA,
rendering the County strictly liable for the sexual assault that occurred during the
extradition. We disagree.
Government Code section 12926, subdivision (t), defines the term “supervisor” as
it is used in the Act. “‘Supervisor’ means any individual having the authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or the responsibility to direct them, or to
adjust their grievances, or effectively to recommend that action, if, in connection with the
foregoing, the exercise of that authority is not of a merely routine or clerical nature but
requires the use of independent judgment.” (Gov. Code, § 12926, subd. (t).) In terms of
the FEHA, a supervisor exercises the authority actually delegated to him by his
12
employer, such that by making or threatening to make decisions affecting the
employment status of his subordinates, his or her actions are properly imputed to the
employer whose delegation of authority empowered the supervisor to undertake them.
(Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 70-71 [106 S.Ct. 2399, 2407,
91 L.Ed.2d 49, 62].)
Under the FEHA, an employer is strictly liable for the harassing actions of its
supervisors and agents. (Chapman v. Enos (2004) 116 Cal.App.4th 920, 928, citing State
Dept. of Health Services v. Superior Court, supra, 31 Cal.4th at p. 1042; Doe v. Capital
Cities (1996) 50 Cal.App.4th 1038, 1046.) An employer, however, “is only liable for
harassment by a coworker if the employer knew or should have known of the conduct
and failed to take immediate corrective action.” (Doe v. Capital Cities, supra, at p.
1046.)
While this section has been interpreted to mean that the employer is strictly liable
for the harassing actions of its supervisors and agents (Kelly-Zurian v. Wohl Shoe Co.
(1994) 22 Cal.App.4th 397, 415 & 416; Fisher v. San Pedro Peninsula Hospital (1989)
214 Cal.App.3d 590, 608, fn. 6), it also means that the employer is only liable for
harassment by a coworker if the employer knew or should have known of the conduct
and failed to take immediate corrective action. Thus, characterizing the employment
status of the harasser is very significant. (Doe v. Capital Cities, supra, 50 Cal.App.4th at
p. 1046.)
13
Plaintiff argues that Medina was her supervisor because he held a higher rank than
she and he handled most of the arrangements for the extradition. She also asserts that
because she looked to him as a mentor, she reasonably believed he was her supervisor.
Yet plaintiff’s assertions are belied by her own testimony at her deposition where she
named her direct supervisors, who were responsible for her training, evaluation, and
recommendations for pay increases.
Medina, as a Deputy II, was considered the same rank as plaintiff, and while he
had more experience, including the necessary experience as a patrol officer to meet the
qualifications for the extradition assignment, he was not her supervisor. He did not even
work in the same unit as plaintiff, so it would be difficult for him to oversee or direct her
activities. The fact he handled air reservations, car rentals, etc., and gave her instructions,
was merely routine, and did not involve independent judgment, where Medina simply
followed the protocol established by the OCSD. Although plaintiff was not yet familiar
with extradition routine, that does not convert Medina’s functions during the trip into a
supervisory role.
To be considered a supervisor, the exercise of authority cannot be merely routine
or clerical in nature; it requires the use of independent judgment. (Chapman v. Enos,
supra, 116 Cal.App.4th at p. 931.) In Chapman, supra, the deputy district attorney
directed the plaintiff investigator in virtually all her duties and while the plaintiff there
had senior and chief investigators who supervised her work, the plaintiff received
virtually no assignments from her direct supervisors, receiving them instead from the
14
defendant, who directed her in virtually all of her duties. (Id., at p. 923.) And while the
defendant in that case did not have the authority to promote or evaluate plaintiff, the chief
investigator regularly sought his input in evaluating her work. (Ibid.) Under those
circumstances, the court found the deputy district attorney was plaintiff’s supervisor,
within the meaning of the FEHA.
Here, on the other hand, plaintiff and Medina did not regularly work together save
for a single ride along and the extradition to Texas. He did not supervise her work and
had no authority to promote or evaluate plaintiff. By plaintiff’s own testimony, other
supervisors filled the role of supervisor. The fact he took care of certain aspects of the
extradition assignment did not convert him into a supervisor where he simply followed a
mandatory protocol. Such duties do not involve independent judgment.
Similarly, in Doe v. Capital Cities, supra, the plaintiff alleged that the individual
defendant was an associate director of casting at ABC; that ABC was developing
television shows that could be suitable for plaintiff; that pursuant to the individual
defendant’s request, plaintiff interviewed with him for an acting position; that the
individual defendant introduced him to his supervisor and told plaintiff that he was his
manager; and that the individual defendant gave plaintiff many directions in preparation
for auditions. (Doe v. Capital Cities, supra, 50 Cal.App.4th at p. 1047.) In addition, the
individual defendant, acting as agent for the studio, instructed the plaintiff to attend a
brunch at the defendant’s home for the purpose of having plaintiff meet ABC executives,
such that the event was sufficiently work-related to meet the FEHA elements.
15
Here, Medina did not direct plaintiff to accompany him on the extradition
assignment and the bar hopping occurred after work hours. He did not typically work
with plaintiff because he was assigned to a different division. Medina, as a Deputy II,
which is not a supervisory rank, was considered the same rank as plaintiff, although a
Deputy II must have a minimum of one year experience as a law enforcement officer,
trained in patrol duties and performing related functions, using more independent
judgment in the performance of his own assigned duties. Absent any supervisory
assignments vis-à-vis other OCSD employees, a Deputy II is not responsible for
supervising lower level employees, so Medina did not qualify as a supervisor under the
FEHA.
The trial court correctly determined, as a matter of law, the County was not strictly
liable for the sexual harassment because the sexual assault was not committed by a
supervisor within the meaning of the FEHA.
(b) The County Is Not Liable Based on a Reasonable Belief Medina Was Her
Supervisor.
Plaintiff argues that even if Medina was not a supervisor, he was her temporary
supervisor during the extradition trip to Houston and that based on the various examples
of directions Medina gave her during the extradition, the County was liable because she
reasonably believed he was her supervisor. We disagree.
The FEHA includes a statutory definition of a supervisor, which governs judicial
analysis unless the chain of command within a business or entity is unclear. Plaintiff
16
relies on dicta in a footnote in the case of Chapman v. Enos, supra, but omits to point out
that the relevant footnote expressly does not hold that an employer is strictly liable for
sexual harassment committed by a person who does not actually have authority over the
employee who is harassed. Instead, the footnote reveals that vicarious liability may result
under certain circumstances, such as those present in the Chapman case where the named
defendant had daily supervisory authority over plaintiff’s work.
There, the court held that the indicia of supervision, oversight, evaluation, and
work assignments led to liability, and, in the footnote, discussed the related provision of
the Equal Employment Opportunity Commission’s enforcement guidance, which
discusses who qualifies as a supervisor: “‘An individual qualifies as an employee’s
“supervisor” if: [¶] . . . [¶] (b) the individual has authority to direct the employee’s
daily work activities.’ [Citation.] The guide also explains that a supervisor who does not
have actual authority over an employee may nonetheless create vicarious liability for the
employer ‘if the employee reasonably believed that the harasser had such power. The
employee might have such a belief because, for example, the chains of command are
unclear. Alternatively, the employee might reasonably believe that a harasser with broad
delegated powers has the ability to significantly influence employment decisions
affecting him or her even if the harasser is outside the employee’s chain of command.’
[Citation.]” (Chapman v. Enos, supra, 116 Cal.App.4th at p. 933, fn.10.)
Unfortunately, in the present case, plaintiff did not establish any of those
circumstances. She did not establish that Medina had “broad delegated powers,” or the
17
“ability to significantly influence employment decisions affecting her,” and, more
importantly, she did not show that the chain of command was unclear within the OCSD.
Indeed, as the undisputed facts establish, plaintiff was well-aware of the chain of
command, including the identity of her supervisors and she even had to get permission
from one of them to participate in the extradition.
Plaintiff’s opposing papers did not raise a triable issue of material fact as to
whether Medina, a more experienced deputy, was a ranking deputy within the meaning of
the OCSD Policy Manual, section 200.7. Nor did she establish a triable issue of material
fact as to whether an employee with seniority is necessarily considered—or reasonably
believed⸺to be a supervisor. Nor did plaintiff establish circumstances that would justify
a reasonable belief he was her supervisor. After all, she was familiar with the chain of
command and knew her supervisors. The statutory definition of supervisor was adequate
to inform the trial court and the interpretation of that definition is a question of law. The
trial court correctly ruled that the County was entitled to judgment as a matter of law on
this theory.
(c) The County Is Not Liable for Coworker Sexual Harassment.
Plaintiff’s final claim is that even if Medina were not her supervisor, the County is
liable for sexual harassment by a coworker. We disagree.
Under the FEHA, an employer is strictly liable for harassment committed by its
agents or supervisors but is liable for harassment committed by its other employees only
if it knew or should have known of the harassment and failed to take immediate and
18
appropriate corrective action when reasonably made aware of the situation. (Jones v.
Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1377, citing
Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132, 1134–1140.) Plaintiff
makes no such claims here.
The elements of such a cause of action are: “(1) plaintiff belongs to a protected
group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment
complained of was based on sex; (4) the harassment complained of was sufficiently
pervasive so as to alter the conditions of employment and create an abusive working
environment; and (5) respondeat superior.” (Fisher v. San Pedro Peninsula Hospital
(1989) 214 Cal.App.3d 590, 608; see also, Jones v. Department of Corrections &
Rehabilitation, supra, 152 Cal.App.4th at p. 1377.) When the harasser is a
nonsupervisory employee, employer liability turns on a showing of negligence (that is,
the employer knew or should have known of the harassment and failed to take
appropriate corrective action). (Gov. Code, § 12940, subd. (j)(1); Roby v. McKesson
Corp. (2009) 47 Cal.4th 686, 707.)
The second cause of action of plaintiff’s complaint purports to allege a claim for
hostile work environment, but none of the materials or papers presented in opposition to
the motion for summary adjudication establish the existence of a hostile environment.
Further, none of the evidentiary materials presented in opposition to the motion
establishes that the County or the OCSD had any knowledge of the harassment or failed
to take corrective action. To the contrary, the undisputed material facts repeatedly refer
19
to the fact that she never felt uncomfortable around Medina, who had never been known
to commit any acts of sexual harassment in the past. Moreover, the only other incident
involving sexual harassment by a different coworker was not repeated after plaintiff
reported it. As such, defendant is entitled to judgment on the second cause of action as a
matter of law.
Plaintiff argues that the County is liable because it knew or should have known of
Medina’s sexual harassment and failed to take corrective action. However, all of the
materials submitted in opposition to the motion demonstrate that plaintiff never felt
uncomfortable around Medina, that he had never previously made any sexual overtures
toward her and had never previously acted in a flirtatious manner. If plaintiff could not
have known he would sexually assault her, it goes without saying she has not
demonstrated that the County knew or should have known of the situation such that it
was obligated to take corrective action.
Plaintiff’s remaining theory is that because she reported the assault by Medina a
week after the extradition, the County is liable because it knew or should have known of
the sexual harassment and failed to take corrective action. This argument is circular and
fails to establish judicial error in granting the motion for summary adjudication. The
County could not have known about the sexual harassment until plaintiff reported it, and
there is no evidence—nor even an allegation in the complaint—that any sexual
harassment occurred after the complaint was made, and there is no evidence of prior
written complaints about Medina from other employees or third parties. By plaintiff’s
20
own acknowledgment, after a covert phone call to Medina, she did not see or speak to
Medina again after the incident. Moreover, the incident occurred away from the
workplace, during off-duty hours, and not in a work related context. (Carriasales v.
Dept. of Corrections (1998) 65 Cal.App.4th 1492, 1508, fn. 7, citing Capitol City Foods,
Inc. v. Superior Court (1992) 5 Cal.App.4th 1042, 1048-1049.) Bar hopping after hours
is not work related, nor was any conduct in the hotel room.
Plaintiff’s remaining causes of action were dismissed and the second cause of
action does not allege sufficient factual allegations to establish a claim for sexual
harassment by a coworker, nor do the undisputed material facts establish that such a
claim could be established. The trial court properly granted summary adjudication of the
second cause of action.
DISPOSITION
The judgment is affirmed. The County is entitled to costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
RAPHAEL
J.
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