Dickson v. Burke Williams, Inc.
184 Cal. Rptr. 3d 774
Cal. Ct. App.2015Background
- Plaintiff Domaniqueca Dickson, a massage therapist at a spa, sued defendant Burke Williams, Inc. under FEHA for sex discrimination, sexual harassment, racial harassment, retaliation, and failure to prevent harassment and discrimination.
- Trial evidence showed harassing conduct by two customers; harassment found by the jury but alleged to be not severe or pervasive.
- Defendant proposed a special verdict form barring deliberation on failure-to-prevent claims unless underlying harassment/discrimination was found; the court declined to give it.
- The jury found no liability for sexual harassment or sex discrimination, but found harassment occurred and awarded compensatory and punitive damages.
- Post-trial, defendant moved for judgment notwithstanding the verdict (JNOV) on several grounds; the trial court denied the JNOV motion.
- The appellate court reverses, holding that a FEHA claim for failure to prevent harassment or discrimination cannot prevail when the underlying harassment or discrimination is not established.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in not giving the defendant’s special verdict form and in denying JNOV on failure-to-prevent sexual harassment. | Dickson contends the failure-to-prevent claim can stand if harassment occurred, regardless of severity. | Burke Williams argues there can be no failure-to-prevent liability without underlying actionable harassment. | Reversed: no failure-to-prevent liability without actionable harassment; JNOV should have been granted. |
| Whether the failure-to-prevent sex discrimination claim is viable where underlying sex discrimination was not established. | Dickson argues the preventive-and-discriminatory liability stands with any harassing conduct. | Burke Williams contends no liability without an adverse employment action or actionable discrimination. | Reversed: no liability when underlying discrimination is not proven. |
Key Cases Cited
- Trujillo v. North County Transit Dist., 63 Cal.App.4th 280 (Cal. Ct. App. 1998) (limits recovery for failure-to-prevent when no actionable harassment occurred (confirms require underlying harassment for §12940(k)))
- Carter v. California Dept. of Veterans Affairs, 38 Cal.4th 914 (Cal. 2006) (discusses requirement of actual harassment before a §12940(k) claim can attach (in pari materia context))
- Hughes v. Pair, 46 Cal.4th 1035 (Cal. 2009) (requires harassment to be sufficiently severe or pervasive to alter conditions of employment)
- Scotch v. Art Institute of California, 173 Cal.App.4th 986 (Cal. Ct. App. 2009) (discusses dependency of §12940(k) on actionable discrimination)
- State Dept. of Health Services v. Superior Court, 31 Cal.4th 1026 (Cal. 2003) (limits supervisor/employee harassment liability framework under FEHA)
- Faragher v. City of Boca Raton, 524 U.S. 775 (Supreme Court 1998) (establishes Ellerth-Faragher defense framework for harassment liability)
- Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (Supreme Court 1998) (anticipates affirmative defense to harassment liability when employer acted reasonably)