Kelley v. The Conco Cos.
126 Cal. Rptr. 3d 651
Cal. Ct. App.2011Background
- Kelley, an apprentice ironworker for Conco and Local 378, experienced graphic sexually explicit comments by supervisor Seaman and later harassment by coworkers.
- Conco moved Kelley to different worksites and he reported the conduct to Conco management; he was ultimately suspended by the union for six months, making him ineligible for employment.
- After the union suspension, Kelley was not rehired by Conco and sought work with other contractors, facing ongoing harassment and job instability.
- Kelley filed suit alleging FEHA sex discrimination/harassment, retaliation, and related torts; the trial court granted summary judgment for Defendants on several claims.
- The appellate court reversed as to Kelley’s retaliation claim, but affirmed on the other FEHA and non-FEHA claims; issues center on whether conduct was sex discrimination, whether it was severe/pervasive, and whether retaliation and public-policy discharge claims survive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kelley was subject to discrimination because of sex | Kelley argues same-sex harassment shows sex discrimination. | Defendants contend lack of credible evidence of sex-based discrimination. | No sex-based discrimination established. |
| Whether the harassment was severe or pervasive enough to create a hostile environment | Kelley asserts severe, sexually explicit harassment by Seaman and coworkers. | Harassment did not prove pervasive or sexually discriminatory animus. | Insufficient evidence of pervasive, sex-based hostile environment. |
| Whether Kelley established a prima facie retaliation claim under FEHA | Kelley contends Conco retaliated for complaints about Seaman by suspending him and failing to rehire. | Defendants argue lack of causation and legitimate nonretaliatory reasons; no actionable adverse action shown. | Summary adjudication improper; triable issues exist. |
| Whether Conco’s termination action violated public policy | Kelley contends firing/reduction to nonemployment violated public policy. | Kelley was terminated due to union suspension; no policy violation shown. | Claim upheld as to public policy only to extent not shown; affirmed. |
Key Cases Cited
- Lyle v. Warner Bros. Television Prods., 38 Cal.4th 264 (Cal. 2006) (definition of hostile work environment under FEHA; discrimination focus)
- Oncale v. Sundowner Offshore Services, 523 U.S. 75 (U.S. 1998) (same-sex harassment can be discrimination based on sex if causal discrimination shown)
- Jones v. Department of Corrections & Rehabilitation, 152 Cal.App.4th 1367 (Cal. App. 2007) (elements of FEHA sex harassment claim; discrimination required)
- Yanowitz v. L'Oreal USA, Inc., 36 Cal.4th 1028 (Cal. 2005) (retaliation standards; collective assessment of actions; knowledge by employer)
- Gunnell v. Utah Valley State College, 152 F.3d 1253 (10th Cir. 1998) (employer liability for coworker retaliation depends on supervisor knowledge/condonation)
- Singleton v. United States Gypsum Co., 140 Cal.App.4th 1547 (Cal. App. 2006) (same-sex harassment framework; debate over gender-specific harassment)
- Mogilefsky v. Superior Court, 20 Cal.App.4th 1409 (Cal. App. 1993) (same-sex harassment can constitute sex discrimination under FEHA)
- Davis v. Coastal International Security, Inc., 275 F.3d 1119 (D.C. Cir. 2002) (evidence requirement for sex-based harassment; not automatically actionable)