Blue Fountain Pools and Spas Inc. v. Superior Court

Filed 8/10/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
BLUE FOUNTAIN POOLS AND SPAS
INC. et al.,
E074121
Petitioners,
(Super.Ct.No. CIVDS1715712)
v.
OPINION
THE SUPERIOR COURT OF SAN
BERNARDINO COUNTY,
Respondent;
DAISY ARIAS,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for writ of mandate. Donald Alvarez,
Judge. Petition denied.
Law Offices of Robert E. Williams and Robert E. Williams for Petitioners.
Hannemann Law Firm, Brian G. Hannemann; Broslavsky & Weinman, Zack
Broslavsky and Jonathan A. Weinman for Plaintiff and Real Party in Interest.
No appearance for Respondent.
1
Daisy Arias suffered sustained, egregious sexual harassment for most of the time
she was employed by defendant and petitioner, Blue Fountain Pools & Spas Inc. 1 The
primary culprit was defendant and petitioner, Sean Lagrave, a salesman who worked in
the same office as Arias. Arias says Lagrave did everything from repeatedly asking her
for dates to grabbing her buttocks to praising his own sexual prowess to describing his
sexual conquests to confronting her with smartphone photographs of himself engaging in
sex acts with other women. This list is not complete.
Arias complained about Lagrave’s conduct repeatedly over the course of her
employment, but things came to a head on April 21, 2017. On that day, Lagrave yelled at
Arias in front of coworkers, used gender slurs, and then physically assaulted her,
bumping her chest with his own. Arias called the police and later left work.
Arias told the owner, defendant and petitioner, Farhad Farhadian, she wasn’t
comfortable returning to work with Lagrave. Farhadian did nothing initially, refused to
remove Lagrave, then terminated Arias’s health insurance, and finally told Arias to pick
up her final paycheck. Though Farhadian claimed Arias had quit, she says she was fired.
The termination wasn’t Farhadian’s only alleged misconduct. Arias also says he
ignored several complaints and participated himself in creating a sexualized environment
in the office. Arias says Farhadian’s own misconduct started at an office Christmas party
in December 2015, where he openly ogled Lagrave’s girlfriend, commented on her breast
1 Ownership of the company changed in January 2015. Before that, the company
was known as Blue Fountain Pools, Inc. We will refer to the company as Blue Fountain
throughout and note the change of ownership where relevant.
2
implants, and then planned to continue the celebration with Lagrave and the girlfriend at
a local strip club. Arias says Lagrave later made a habit of discussing Farhadian’s
conduct in repeated trips to the strip club. She says Lagrave also made it known to
coworkers, including Arias, that Farhadian was engaging in sexual relations with dancers
from the club.
Arias filed a complaint with the Department of Fair Employment and Housing and
received a right to sue letter on August 14, 2017. She then filed this lawsuit alleging,
relevant to this appeal, hostile work environment sex discrimination and failure to
prevent sexual harassment. Petitioners filed a motion for summary adjudication in the
trial court seeking, among other things, to have the hostile work environment claim
dismissed as time-barred and the failure to prevent harassment claim dismissed as having
an insufficient basis after limiting the allegations to the conduct that wasn’t time-barred.
The trial court concluded Arias had created a genuine issue of material fact as to all her
causes of action and denied the motion.
Petitioners brought a petition for writ of mandate, renewing their statute of
limitations argument. They point out Arias began working at the company around
October 2006, Lagrave engaged in workplace sexual misconduct almost from the time
she started, and Arias consistently complained about his conduct to her supervisors, who
didn’t correct the situation. Petitioners argue that means the one-year statute of
limitations has run on her hostile work environment claim unless she can establish a
continuing violation under the test set out in Richards v. CH2M Hill, Inc. (2001) 26
Cal.4th 798 (Richards). They say she can’t establish a continuing violation because she’s
3
admitted she had concluded further complaints were futile. That means she can’t
establish, as required by Richards, that the discrimination hadn’t reached a degree of
permanence, triggering her obligation to bring her claim within one year.
There are three problems with their argument. First, Arias has presented evidence
several incidents of sexual harassment occurred in the one-year period preceding her
termination, that is, during the limitations period. That means it would have been
improper for the trial court to dismiss her cause of action, even if the court concluded the
incidents outside the limitations period can’t be the basis for liability and excluding
evidence about them is warranted because it would be more prejudicial than probative.
Second, as petitioners themselves emphasize, Farhadian purchased the business and took
over operations in January 2015. Thus, even if the conduct of prior management made
further complaining futile, the arrival of new management created a new opportunity to
seek help. We conclude Arias has shown she can establish a continuing violation with
respect to all the complained of conduct that occurred during Farhadian’s ownership of
the company. Third, there is a factual dispute over whether and when Arias’s employer
made clear no action would be taken and whether a reasonable employee would have
concluded complaining more was futile. On this record, where Arias continued
complaining about obviously harassing conduct and tried complaining to different
people, we conclude that question must be resolved by a jury.
We will therefore deny the petition so Arias’s claims may proceed to trial.
4
I
FACTS
A. The Parties and the Transfer of Ownership
Defendant and petitioner Blue Fountain Pools and Spas Inc. is a pool and spa
construction business. Defendant and petitioner Farhad Farhadian owns and operates
Blue Fountain and was one of Arias’s supervisors starting when he bought the company
in January 2015.
Plaintiff and real party in interest Daisy Arias worked for Blue Fountain long
before Farhadian bought the company. She started working for Blue Fountain as a
customer service representative around October 2006 and by the time of her discharge,
around May 2017, she was their office manager. Defendant and petitioner Sean Lagrave
was a salesman at Blue Fountain and supervised Arias.
B. The Harassment and Arias’s Complaints
Shortly after Arias started at Blue Fountain, Lagrave began to make sexual
overtures to her. He started by asking her out on a date. Arias refused, but she overheard
Lagrave telling another employee, “Oh, I’ll get her. I’ll go out with her.” The parties
agree “[b]eginning in or about November 2006, [Arias] was sexually harassed by
defendant Lagrave,” and “[w]ithin one week of Lagrave’s initial harassment, [Arias]
complained to [her direct supervisor] Don Hubbell about Lagrave harassing her by asking
her out on a date.”
5
Lagrave continued his advances, and Arias continued to turn him down. Around
December 2006, Lagrave escalated. He came up to Arias, used his whole hand to grab her
butt, and made a sexual noise. Arias complained again to Hubbell, who said he would
talk with Lagrave. If anything, Lagrave’s conduct got worse. He began to hit on Arias
and make sexual passes at her on a regular basis. He would also compare himself to other
men, telling Arias “I’m better” and repeatedly bragged about his own sexual prowess,
saying things like “girls always call me,” “I’m a sex toy,” and “I should start charging for
sex.” She complained about these comments frequently to Hubbell. Lagrave also
frequently touched her waist and hair in passing, and Arias complained about that
conduct too.
Lagrave also began to confront Arias with unwanted stories and photographs of
his own sex life, a practice which continued over the course of years. He regularly talked
about going to a nearby strip club, discussed his sexual exploits, and eventually started
showing Arias and other employees photographs on his cell phone of nude women and
women engaging in sex acts with him. According to Arias, he would show photographs
of himself having anal sex with a woman and talk about “fucking in the ass.” He would
show photographs of himself receiving oral sex and talk about receiving “blowjobs.” He
would discuss engaging in threesomes and show her pictures of three people engaged in
sex. He would show photographs of nude women with semen on their faces or breasts.
6
Hubbell was Arias’s direct supervisor from November 2006 to sometime in 2012,
and she regularly complained to him about Lagrave’s conduct. She said Hubbell at times
promised to talk to Lagrave, but the harassment continued. She says on at least one
occasion, Blue Fountain suspended Lagrave in connection with his conduct toward her.
At some point, Arias also began complaining about Lagrave to the first owner of the
business, Arnold Zauss. Nevertheless, Lagrave persisted.
Petitioners claim Arias admitted at her deposition that the failure of her manager
and the first owner to take effective corrective action against Lagrave led her to think her
complaints were futile. When asked whether around 2009 she “fe[lt] like making the
complaints to Mr. Hubbell was not going to do any good,” she responded yes. She agreed
to the same question when posed in relation to an incident when Lagrave showed her a
picture of a woman with semen on her bare breasts, which occurred sometime between
2011 and 2013. She said she couldn’t remember if she complained about that specific
photograph, but she said she continued to complain and began complaining directly to the
owner sometime after Hubbell left the company. Arias also contests petitioners’
characterization of her testimony. In responding to their statement of undisputed facts,
she said her complaints about Lagrave’s conduct did result in at least one temporary
suspension. She also says she continued to complain to Hubbell and Zauss in the hope
that they would initiate appropriate corrective action.
7
In January 2015, Farhadian purchased Blue Fountain from Zauss. Arias said the
sale gave her hope for a change and she continued complaining about Lagrave’s conduct
under the new regime. She says when she first met Farhadian, she reported her problems
with Lagrave and asked Farhadian to observe him closely. She said she also opposed
Lagrave’s harassing conduct in other ways, telling him to stop, ignoring him as much as
possible, and by reporting his conduct to Sheila Anderson as well as Farhadian.
Farhadian himself said Blue Fountain has a “zero tolerance” harassment and
discrimination policy. He also said their policy is any such conduct should be reported
directly to him and he would investigate the complaint personally.
Nevertheless, the situation appeared to deteriorate rather than improve. According
to Arias, Farhadian began to participate in the hostile work environment and sexual
harassment. During a Christmas party in December 2015, Arias heard Farhadian and
Lagrave engaged in a detailed discussion about Lagrave’s girlfriend’s breast implants.
Later that night, Farhadian and Lagrave talked about the girlfriend’s breasts again in front
of Arias, and Farhadian commented on how her breasts looked nice in her blouse while
staring at the girlfriend’s chest. Another day, Arias walked into Farhadian’s office to talk
to him about work but found the two again discussing the girlfriend’s breast implants.
Lagrave turned to Arias and asked what she thought about breast augmentation.
Farhadian and Legrave also bonded over their mutual enjoyment of strip clubs and
especially the local strip club Lagrave previously had bragged of frequenting. Arias says
the pair went to the strip club after the company Christmas celebration and went there
8
together frequently. Lagrave began telling Arias details about their trips. Lagrave also
told Arias that Farhadian had begun taking dancers from the club to a hotel near the Blue
Fountain office. Arias asked Lagrave to stop talking about sex and stop talking about
Farhadian’s sexual encounters.
Lagrave seemed emboldened by Farhadian’s conduct. As his sexually harassing
comments increased, Arias continued to object to Lagrave and others. Lagrave would
simply laugh at Arias and walk away. In January 2016, Lagrave made hip thrusting
gestures simulating sex near Arias. When she objected and told him she was going
complain to Farhadian, Lagrave said “fuck Frank” and made the gesture again.
Lagrave continued to show Arias sexual photographs during this period. In the
year after Farhadian bought Blue Fountain, Lagrave showed Arias sexually explicit
photographs of his girlfriend around five to eight times. Sometime during 2015, Lagrave
also talked about his girlfriend’s breast implants and the fact she was “addicted to
implants,” “wanted to go bigger,” and even wanted an “ass implant,” among other things.
He also told Arias the girlfriend paid for lap dances at the strip club and had sexual
encounters with the dancers as well.
According to Arias, conduct of this sort went on throughout 2016 and until she left
the company in April 2017. Though petitioners claimed it was undisputed “Lagrave’s
flirting with, hitting on and making passes at plaintiff continued until sometime in 2015
(2 years prior to the end of her employment with Blue Fountain Pools),” Arias denied this
as a mischaracterization of her allegations and the evidence. She said Lagrave continued
9
making inappropriate sexual comments towards her, describing sexual activities with his
girlfriend, and talking about sex toys in front of her. She says his sexual thrusting
gestures and other sexually suggestive movements continued throughout the period from
2015 through the last months of her employment. She also says he took opportunities to
touch her on the hair, waist, and shoulders without permission during the same period.
Finally, on April 21, 2017, Lagrave physically assaulted Arias at work. When she
objected to additional inappropriate comments, 2 Lagrave unleashed a verbal tirade in
front of their coworkers. He called Arias a “dumb bitch” and yelled “fuck you bitch.”
When Arias objected further, Lagrave got in her face and used his chest to bump her
chest. Arias called the police, who came to the scene. The police interviewed witnesses,
one of whom corroborated Arias’s account of the assault. Arias left work and didn’t
return.
C. The Termination
The next day, Farhadian reached out to Arias. He said by text message that
Lagrave had told him what happened, and he wanted to hear Arias’s side of the story.
Arias said by text message that she was extremely shaken by the assault and wasn’t doing
well. “I will be in Monday at [7:00 a.m.] we can talk then. I’m extremely [shocked] by
what Sean put [me] through. Never in my life have [I] been so disrespected and
2
Petitioners claimed in the trial court that the assault arose from a dispute over a
customer complaint and not over sexual harassment. Arias contested that
characterization, pointing out that she complained to Lagrave for belittling her and
degrading her by calling her an “idiot” and a “bitch” after a customer complaint.
Lagrave’s conduct clearly could play a role in establishing a hostile work environment
for women.
10
humiliated by someone, [never mind have] a male get in [my] face and with so much
aggression I feared he was going to hurt me. I am not doing good at all.”
On Monday, Arias told Farhadian she wasn’t feeling well and wasn’t able to come
to work that day. She told him she had gone to the hospital because of anxiety and pain.
He made it clear he was upset she wasn’t coming in. Arias nevertheless took more time
off work to recover but kept Farhadian notified of her status and set up a time to speak
with him. The same day, Farhadian cancelled Arias’s employer-provided health insurance
plan.
The two met a week later, on May 1, and Arias told Farhadian she wasn’t
comfortable returning to work with Lagrave in the office acting as one of her supervisors.
Farhadian agreed with Arias that Lagrave’s behavior toward her was inappropriate, but
said he “needed” Sean, and he “could not let him [Lagrave] go.” He told her he wanted
her to come back to work but said she could take her time. When he offered to change her
schedule so she wouldn’t have to see Lagrave, she said she didn’t think that would work
and said she wanted Lagrave to be terminated.
Between May 1, 2017 and May 5, 2017, Arias worked for Blue Fountain from
home while waiting for Farhadian to decide whether to discipline or terminate Lagrave.
Farhadian never told Arias what he planned to do. On May 5, Arias sent Farhadian a text
message asking about her employment and whether he planned to terminate her or
Lagrave. She said, “It’s not fair that I’m the one out of the work place because of other
[people’s] actions and behavior.” Farhadian responded by saying Arias had quit her job
11
by not returning to work and he had “no choice but to hir[e] another person because my
business is suffering.” Arias objected she hadn’t quit, but Farhadian had failed to provide
a safe work environment and had failed to address Lagrave’s inappropriate conduct.
Farhadian responded, “I’m not saying what Sean did was ok. What I’m saying is that I
can’t be sitting in the office babysitting my employees making sure they don’t argue with
each other.”
On May 8, 2017, Farhadian directed Arias to pick up her last paycheck.
D. Arias’s Complaint
Arias filed charges of sexual harassment, failure to prevent discrimination and
harassment, discrimination, retaliation, assault and battery, and constructive wrongful
termination against Lagrave, Farhadian, and Blue Fountain with the California
Department of Fair Employment and Housing. She received notice dated August 14,
2017 of her right to sue in a California Superior Court under Government Code section
12965, subdivision (b).
The next day, Arias filed the complaint in the Superior Court of San Bernardino
County, alleging the same causes of action.
E. The Motion for Summary Adjudication and the Trial Court’s Ruling
Blue Fountain, Farhadian, and Lagrave brought a motion for summary
adjudication. Among other things, they asked the trial court to dismiss her hostile work
environment claim as coming too late. They argued Arias’s “cause of action for sexual
harassment accrued prior to the one-year limitations period of Govt. Code § 12940 (d).
12
Her claim for such harassment is therefore time-barred unless she can establish a
continuing violation. [Citation.] However, plaintiff cannot establish a continuing
violation because the violation achieved a state of permanence prior to the
commencement of the one-year limitations period. [Citation.] Plaintiff’s own testimony
establishes that because plaintiff’s complaints of harassment had proven futile, the
alleged harassment achieved a state of permanence no later than 2013.” As for Arias’s
claim for failure to prevent harassment, Blue Fountain and Farhadian argued that claim
should be dismissed as well, because the only incidents of alleged harassment that
occurred within the statutory period were insufficient to sustain a claim for sexual
harassment.
On October 25, 2019, the trial court ruled on the motion by minute order because
the parties were going to a settlement conference and requested an immediate ruling. The
court denied the motion for summary adjudication as to both causes of action. It held
there are issues of material fact whether Arias’s sexual harassment cause of action is
time-barred.
Petitioners brought a timely petition for writ of mandate, asking us to direct the
trial court to dismiss Arias’s hostile work environment sexual harassment cause of action
and her failure to prevent sexual harassment cause of action. We ordered Arias to file a
return showing why we shouldn’t grant petitioners’ request.
13
II
ANALYSIS
Petitioners argue Arias’s claim for hostile work environment sexual harassment
under Government Code section 12940, subdivision (j) is barred by the one-year statute
of limitations set out in Government Code section 12960, subdivision (d).
They acknowledge Arias may rely on the continuing violation doctrine to avoid
the statute of limitations but argue her claims, to the extent they’re based on events more
than one year before she filed her complaint with the Department of Fair Employment
and Housing, don’t fall under the doctrine because a reasonable employee would have
long ago understood from Blue Fountain’s actions that any further efforts to resolve her
complaints and end the harassment were futile.
They attempt to extend this bar to gain dismissal of her hostile work environment
cause of action in its entirety, even to the extent it’s based only on acts that occurred
within the one-year statutory period. They argue when a cause of action for harassment
accrues prior to the one-year limitations period and the plaintiff is unable to establish a
continuing violation, the whole claim is barred, even if the harassment continues. 3
Petitioners’ argument turns the continuing violation doctrine on its head and
transforms the statute of limitations from a shield into a sword. Under Government Code
3 We review the trial court’s ruling denying summary adjudication de novo,
construing all facts in favor of Arias. (Birschtein v. New United Motor Manufacturing,
Inc. (2001) 92 Cal.App.4th 994, 999 (Birschtein).) Resolution of the statute of limitations
is normally a question of fact, and summary judgment is proper only where the
undisputed facts allow only one legitimate inference. (Clark v. Baxter Healthcare Corp.
(2000) 83 Cal.App.4th 1048, 1054-1055.)
14
section 12960, subdivision (d), “[a] plaintiff suing for violations of FEHA ordinarily
cannot recover for acts occurring more than one year before the filing of the DFEH
complaint.” (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1400.) Under
the continuing violations doctrine, however, “an employer is liable for actions that take
place outside the limitations period if these actions are sufficiently linked to unlawful
conduct that occurred within the limitations period.” (Yankowitz v. L’Oreal USA, Inc.
(2005) 36 Cal.4th 1028, 1056.) If there was no continuing violation, the statute of
limitations would stop Arias from establishing liability for acts that occurred more than
a year before she filed her complaint with the Department of Fair Employment and
Housing. But finding there wasn’t a continuing violation because the earlier abuse
and failure to respond had become “permanent” doesn’t stop her from establishing
liability for later abusive acts that occurred within the limitations period.
As our Supreme Court explained when it adopted the current test for a continuing
violation, the doctrine “allows liability for unlawful employer conduct occurring outside
the statute of limitations if it is sufficiently connected to unlawful conduct within the
limitations period.” (Richards, supra, 26 Cal.4th at p. 802, italics added.) Put another
way, the continuing violation doctrine provides a way for employees to escape the effects
of the statute of limitations and reach back in time to base liability on earlier acts. It
doesn’t provide employers a way to expand the scope of the statute of limitations to reach
forward to bar claims based on acts within the statutory period.
15
The way the Supreme Court set up the issue in Richards makes this perfectly
clear. “The Court of Appeal correctly concluded that some of [the employer’s]
misconduct was within the relevant limitations period for FEHA actions—e.g., the
persistent blocking of hallway access and access to the supply room, the failure to
prepare a fire escape plan, the failure to adjust the timing of the elevator door to provide
access to the lunchroom. Other misconduct occurred outside the limitations period.
Richards argues that these actions were nonetheless properly presented to the jury, both
for evidentiary purposes and for purposes of proving damages, because they were
brought in by the continuing violation doctrine. The Court of Appeal held, and [the
employer] argues, that only those incidents of failure to reasonably accommodate that
occurred within the limitations period were properly placed before the jury. To decide
which party is correct, we must determine the proper scope of the continuing violation
doctrine.” (Richards, supra, 26 Cal.4th at p. 812, italics added.)
The Birschtein decision, on which petitioners rely, is instructive as well. In
Birschtein, the Court of Appeal explicitly extended the continuing violation doctrine
announced in Richards to a claim of hostile work environment sexual harassment. The
question the Birschtein court faced was whether plaintiff could avail herself of the
doctrine where she was first subjected to a series of overtly sexual remarks before the
statute of limitations period, complained about her coworker’s conduct, and her coworker
then stopped the comments but began a campaign of hostile staring within the statutory
period. The Court of Appeal held the incidents of staring could support a harassment
16
claim on their own, but also held the harasser’s conduct before and after the statutory
period were sufficiently continuous to satisfy the Richards test and allow the victim to
recover based on the earlier incidents in addition to the later incidents. (Birschtein, supra,
92 Cal.App.4th at pp. 1001-1002, 1006.)
That means we can put to rest the idea that the trial court in this case should have
dismissed Arias’s hostile work environment cause of action in its entirety based on the
statute of limitations. There is evidence of conduct within the statutory period, ending
with the incident of April 21, 2017, when Lagrave used gender slurs against Arias and
physically assaulted her. Though petitioners argue the other incidents of misconduct all
occurred more than a year earlier, their position isn’t supported by the agreed undisputed
facts or other evidence Arias submitted. Arias intends to prove at trial that Lagrave
continued making inappropriate sexual comments towards her, describing sexual
activities with his girlfriend, and talking about sex toys in front of her. She says his
sexual thrusting gestures and other sexually suggestive movements continued throughout
the period from 2015 through the last months of her employment. She also says he took
opportunities to touch her on the hair, waist, and shoulders without permission during the
same period. Therefore, at a minimum, Arias is entitled to pursue her hostile work
environment claim and failure to prevent discrimination claim based on such conduct.
We would dismiss the writ petition on that basis alone.
17
But we also hold Arias may seek recovery based on any unlawful discriminatory
conduct that occurred during the entire period when Farhadian owned and operated Blue
Fountain. That conduct forms part of a continuing violation within the meaning of
Richards. “[A]n employer’s persistent failure . . . to eliminate a hostile work environment
. . . is a continuing violation if the employer’s unlawful actions are (1) sufficiently similar
in kind . . .; (2) have occurred with reasonable frequency; (3) and have not acquired a
degree of permanence.” (Richards, supra, 26 Cal.4th at p. 823.) Petitioners don’t argue
the incidents Arias complains of weren’t sufficiently similar or didn’t occur frequently
enough. They argue the pattern of harassment by Lagrave and Blue Mountain’s refusal to
take corrective action were so established by 2013 (at the latest) that its failure to end the
harassment had acquired a degree of permanence, meaning the cause of action had
accrued by that time.
With regard to the incidents Arias complains about from 2015 on, we reject that
argument as a matter of law. “[W]hen an employer engages in a continuing course of
unlawful conduct under the FEHA . . . and this course of conduct does not constitute a
constructive discharge, the statute of limitations begins to run, not necessarily when the
employee first believes that his or her rights may have been violated, but rather, either
when the course of conduct is brought to an end, as by the employer’s cessation of such
conduct or by the employee’s resignation, or when the employee is on notice that further
efforts to end the unlawful conduct will be in vain. Accordingly, an employer who is
confronted with an employee seeking . . . relief from . . . harassment may assert control
18
over its legal relationship with the employee either by accommodating the employee’s
requests, or by making clear to the employee in a definitive manner that it will not be
granting any such requests, thereby commencing the running of the statute of
limitations.” (Richards, supra, 26 Cal.4th at pp. 823-824.)
In this case, Farhadian and Blue Fountain took no action to assert control over the
legal relationship. Farhadian acquired the company and took over operations in early
2015. Even if it were futile for Arias to complain further about her working conditions
under prior management, it wasn’t futile for her to complain once Farhadian took over.
As Arias points out, Farhadian purports to have a “zero tolerance” policy for workplace
sexual discrimination and he said the company policy was that he would look into any
claims of harassment himself. It was reasonable for Arias to think—and even expect—
that renewing her complaints about Lagrave’s ongoing discrimination would result in
corrective action once Farhadian took over operations.
According to Arias, Lagrave committed various acts of straightforward sex
discrimination from January 2015 to April 2017, and Farhadian appears to have added to
the mix. At a Christmas party in December 2015, the two engaged in a long discussion
about Lagrave’s girlfriend’s breast implants that night and again later in the office, both
times in front of Arias. They also bonded over strip clubs and went to a strip club the
night of the Christmas party and frequently thereafter. Lagrave started telling Arias about
their trips and also told her Farhadian had begun taking dancers from the club to a hotel
near their office.
19
Arias complained to Lagrave about these conversations, but he seemed
emboldened. When Arias objected, Lagrave would laugh at Arias and walk away. When,
in January 2016, she objected to Lagrave making hip thrusting gestures near her and
threatened to complain to Farhadian, Lagrave said “fuck Frank” and made the gesture
again. He continued to show Arias sexual photographs, including sexually explicit
photographs of his girlfriend on several occasions. Sometime during 2015, Lagrave also
talked about his girlfriend’s breast implants and the fact that she was “addicted to
implants,” “wanted to go bigger,” and even wanted an “ass implant.” He also told Arias
the girlfriend paid for lap dances at the strip club and had sexual encounters with the
dancers as well.
Arias says she complained about the discrimination, but there’s no evidence
Farhadian or anyone else at Blue Fountain ever attempted to assert control by
accommodating her complaints—they certainly didn’t stop the harassment. Nor did they
make clear to her in a definitive manner that they weren’t going to attempt to solve the
problem. Instead, they allowed the situation to simmer until it boiled over into physical
violence when the two got into a dispute over a customer complaint, and Lagrave called
Arias a “dumb bitch,” yelled “fuck you bitch,” and then assaulted her by using his chest
to bump her chest. Arias left work and didn’t return. Farhadian refused to terminate
Lagrave, terminated Arias’s health insurance, and then terminated her (whether actually
or constructively is disputed).
20
We conclude the trial court was correct to refuse to dismiss Arias’s cause of action
for hostile work environment sex discrimination based on conduct that occurred from
2015 onwards. If credited by the jury, the evidence she presented is sufficient to establish
such conduct was part of a continuing violation. (Birschtein, supra, 92 Cal.App.4th at
p. 1006 [our “conclusion, of course, means only that plaintiff presented sufficient
evidence to survive defendant’s motion for summary judgment; whether a properly
instructed jury would conclude plaintiff’s evidence was sufficient as a matter of fact to
establish a continuing violation and support an award of damages outside the limitations
period remains an open question”].)
We also conclude the trial court was correct to refuse to bar evidence of Lagrave’s
misconduct from 2006 to 2014, before Farhadian took over at Blue Fountain. The
question is really one of notice to the employee. The Richards court interpreted
Government Code section 12960 to mean when a continuing pattern of wrongful conduct
occurs partly in the statutory period and partly outside the statutory period, the limitations
period begins to accrue, and past acts may slip out of the statutory period, once an
employee is on notice of the violation of his or her rights and on notice that “litigation,
not informal conciliation, is the only alternative for the vindication of his or her rights.”
(Richards, supra, 26 Cal.4th at p. 823.)
The cases finding prior courses of discriminatory conduct had reached permanence
involved plaintiffs who had pursued formal grievance procedures and been denied relief.
In Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, the Court of Appeal held
21
an employer’s alleged sexual discrimination had reached a state of permanence after the
plaintiff’s supervisor repeatedly refused to respond to her requests to be permitted to
work in a particular job and she filed internal grievances challenging these decisions,
which were unsuccessful. (Id. at pp. 1035-1037, 1042-1043.) When Cucuzza filed a
formal grievance complaining about the loss of job duties, the city employer’s only
response was to give her the opportunity to transfer out of the department, a move she
accepted. (Id. at p. 1043.) The Cucuzza court held the plaintiff “should have known that
further efforts to resolve the situation would be futile” because there was “little that
would be a more definitive denial of plaintiff’s request to perform certain job duties than
an offer to transfer her out of the job altogether.” (Id. at pp. 1042-1043.) Similarly, the
Court of Appeal found discrimination had become permanent in Jumaane v. City of Los
Angeles, supra, 241 Cal.App.4th at p. 1403 only where the plaintiff “protested racism in
the Department in a 1991 letter to the City Council, in a 1994 interview with the city
personnel department, in a 1994 City Council hearing, and in a 1997 deposition,” and had
filed several union grievances alleging racism.
Blue Fountain took no such definitive action. Instead, according to Arias’s
testimony, her supervisor seemed to take her complaints seriously. Arias spent a lot of
time complaining about Lagrave to Don Hubbell and she said he was bothered by
Lagrave’s conduct and told Arias he would speak to Lagrave on numerous occasions and
suspended Lagrave on at least one of them. It’s clear these efforts were ineffectual, but
there’s no evidence Hubbell understood he was dealing with actionable sexual
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harassment or communicated that Arias’s only recourse would be suing her employer.
(See Richards, supra, 26 Cal.4th at pp. 823-824 [“an employer who is confronted with an
employee seeking . . . relief . . . may assert control over its legal relationship with the
employee either by accommodating the employee’s requests, or by making clear to the
employee in a definitive manner that it will not be granting any such requests”] italics
added.) Instead, it appears neither the employee nor the employer engaged with the
problem in a sufficiently formal and professional manner, with the result that Lagrave
skated through and Arias continued to suffer from and complain of harassment.
Here, there’s a factual dispute over whether a reasonable employee would have
concluded Blue Fountain had acted definitively to refuse to address the misconduct
putting Arias on notice. The unlawful conduct certainly went on for a ridiculous amount
of time, and Arias did agree she had the thought that complaining about a new act of
unlawful conduct would “do no good.” But her statement doesn’t have the definitive
meaning petitioners try to impute to it. She appears to have meant not that she no longer
believed her earlier supervisors were willing to intervene, but that Lagrave was such an
inveterate abuser he would continue his misconduct anyway. An employee
“entertain[ing] notions that the harassment would not stop . . . cannot be said, as a matter
of law, [to establish] that the racial harassment prior to the limitations cutoff reached a
degree of permanence such that it would have been clear to a reasonable employee in
Plaintiff’s position that further efforts to end the harassment would be futile.” (Harris v.
City of Fresno (E.D. Cal. 2009) 625 F.Supp.2d 983, 1025 [denying summary judgment
23
and allowing continuing violation theory to proceed to trial].) In addition, it’s undisputed
Arias continued to complain and complained to the owner of the company after repeated
complaints to her direct supervisor didn’t produce results. We conclude, under these
circumstances, it’s for the jury to decide whether Arias was reasonable to await a more
definitive act like Farhadian’s refusal to discipline Lagrave for the assault and his
decision to terminate her instead. (Richards, supra, 26 Cal.4th at p. 812.)
III
DISPOSITION
We deny the petition. Arias is entitled to her costs.
CERTIFIED FOR PUBLICATION
SLOUGH
J.
We concur:
MILLER
Acting P. J.
FIELDS
J.
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