HANIN ATALLA v. RITE AID CORPORATION et al.
F082794
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Filed 2/24/23; Certified for Publication 3/14/23 (order attached)
(Super. Ct. No. 19CECG00569)
Kristi Culver Kapetan, Judge.
APPEAL from a judgment of the Superior Court of Fresno County. Kristi Culver Kapetan, Judge.
Ken Fitzgerald and C. Athena Roussos, for Plaintiff and Appellant.
Klein, Hockel, Iezza & Patel, Thomas K. Hockel, Jonathan A. Klein, Mark P. Iezza, for Defendant and Respondent.
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PROCEDURAL HISTORY
Atalla filed the present action against defendants Rite Aid Corporation, Thrifty Payless, Inc., dba Rite Aid, and Erik Lund, in the Fresno County Superior Court.1 Atalla‘s first amended complaint (complaint) asserted the following causes of action: (1) sexual harassment under the Fair Employment and Housing Act (FEHA) (
Rite Aid thereafter filed a motion for summary judgment, which Atalla opposed. The supporting papers to Atalla‘s opposition included a declaration from her as well as a
Almost three months later, Atalla filed a “Supplemental Separate Statement of Additional Material Undisputed Facts,” along with a supporting declaration. (Unnecessary capitalization omitted.) Rite Aid filed a reply, in which it objected to the “Supplemental Separate Statement.”
Shortly thereafter, the trial court heard oral argument on Rite Aid‘s summary judgment motion. That same day, the court issued a minute order adopting, as its final ruling, its previously issued, tentative ruling. The court ruled it would not consider the “untimely” supplemental opposition papers filed by Atalla. The court also declined to rule on Atalla‘s objections to certain facts included in Rite Aid‘s separate statement of undisputed facts. In addition, the court did not rule on Rite Aid‘s objections to evidence adduced by Atalla in support of her opposition.3
The court granted Rite Aid‘s motion for summary judgment. As to Atalla‘s claims of workplace sexual harassment (the first and fourth causes of action in the complaint), the court observed: “The question is whether the harassment arose from a completely private relationship unconnected with the employment. I think defendants have met their burden of showing that this is the case.” The court granted Rite Aid‘s motion as to these claims. With regard to Atalla‘s claim for constructive termination (the third cause of action in the complaint), the court ruled: “The undisputed facts show that plaintiff quit — she was not constructively terminated. The motion should be granted as to the third
FACTUAL BACKGROUND
On review of summary judgment, wе view the facts in the light most favorable to plaintiff as the losing party below. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 884, fn. 5.)
A. Atalla and Lund Developed a Friendship Before Atalla Began Working at Rite Aid; the Friendship Continued While Atalla Was Employed at Rite Aid
Lund was a district manager or district leader for Rite Aid. Within Rite Aid‘s Region 13, Lund oversaw one district; his district encompassed “the greater Fresno area.” The district included part of the city of Fresno and areas to the north, including Los Banos, Newman, Mariposa, and Oakhurst. Lund oversaw the operations of “14 to 16” Rite Aid stores in his district.
Atalla and Lund met in the “early fall” of 2017, during her last year of pharmacy school, when she did a six-week “business administrative rotation with Rite Aid.” The rotation entailed Atalla “shadow[ing]” Lund. Lund was Atalla‘s “preceptor” for the rotation. Atalla did six other rotations besides the Rite Aid rotation as part of her pharmacy school requirements. When Atalla‘s rotation with Rite Aid ended, Atalla celebrated at a dinner with Lund and his wife. Atalla stayed in close touch with Lund thereafter.
From May 2017 to February 2018, while she was in pharmacy school, Atalla worked as a pharmacy intern at CVS. In March 2018, while still in pharmacy school, Atalla began working as a pharmacy intern, on a part-time basis, at Rite Aid; she would
Starting from the time Atalla did her six-week rotation with Lund, she and Lund developed a social relationship. Over time, they became close friends. They were friends before Atalla started working at Rite Aid. Atalla also viewed Lund as a mentor.
Atalla and her husband celebrated a Friendsgiving at the home of Lund and his wife in 2017. Atalla and Lund texted frequently; they joked with one another in texts; they texted about personal matters; they texted about a wide range of things; and they sent multimedia messages to one another as well. They would go out to lunch together. At her deposition, Atalla was asked: “Before you ever worked at Rite Aid with Mr. Lund, you had a relationship that was wholly unconnected to your work at Rite Aid, correct?” Atalla answered: “Yes.” For Lund‘s part, he similarly stated in his deposition that he and Atalla had been friends outside of work well before she joined Rite Aid; he felt Atalla was one of his best friends.
Atalla‘s friendship with Lund continued after Atalla began working at Ritе Aid in March 2018. They continued to text frequently about all kinds of things, including travel and vacations, exercise, weight loss, food, restaurants, getting together for meals, religious observances, family and relatives, their respective spouses, pets, social media,
B. Atalla and Lund Had an Extensive Texting Relationship
Rite Aid adduced, in an exhibit attached to its motion for summary judgment, over 500 pages filled with text messages (along with images and photographs) exchanged between Atalla and Lund. Rite‘s Aid brief describes, in detail and over at least 10 pages, the contents of these text messages. Rather than reproducing that level of detail, we will highlight some of the text exchanges between Atalla and Lund to give a flavor of their texting relationship.
(i) Texts About Food, Restaurants, and Meeting Up for Lunch or Coffee
Atalla and Lund texted frequently about food, restaurants, or getting together for coffee or lunch. In October 2017, Atalla and Lund texted about getting dinner together, along with their spouses. Lund suggested a Thursday at 6:30 p.m. Atalla texted, “Yes! Annex?” Lund responded, “Yеs I already booked.” Atalla said, “OK cool! Can‘t wait.” Lund replied, “Me too.” Atalla later texted she and her husband had a great time. They also texted in several other contexts about the Annex restaurant.
On February 1, 2018, Atalla texted Lund during the noon hour, “Hey can we have lunch at 4?” Lund said that “might be a little late” and asked whether they could “do earlier tomorrow?” The next day, shortly after 11:00 a.m., Atalla texted Lund, “Are you still free for lunch?” Lund responded in the affirmative and they decided to meet up at House of Juju. After lunch, Lund texted, “Enjoyed lunch two tickets to the gala are yours if you want it.” Atalla replied: “I was just going to text you ... saying the same! It was fun, we should do it more often! I‘ll take them if you don‘t want them.”
On February 8, 2018, Atalla sent Lund a picture of a Yelp review for La Elegante Taqueria, writing, “I think I hit the jack pot.” In the ensuing exchange about food and
On March 2, 2018, Atalla texted Lund to say, “let‘s have lunch sometime!” On March 7, 2018, Lund and Atalla exchanged numerous texts about meeting up for lunch at “Gastro [G]rill.” In another thread, from September 8, 2017, Atalla asked Lund for “the name of the noodle place we went to,” and he replied with the name (“Q [N]оodle Fresno/Ashlan“).
In October 2018, Lund sent Atalla a screen shot showing that Atalla had started following him on Instagram. In the ensuing exchange, Atalla texted, “We should do coffee sometime and catch up.”
On November 7, 2018, Lund sent a text to Atalla suggesting they meet for coffee or lunch that week to catch up. Atalla sent Lund a text the next day asking whether he was still free for coffee. They discussed plans to meet at Kuppa Joy (local coffee shop), but Lund suggested they reschedule for another day when they had more time. Atalla replied with disappointment, “Aww man.”
(ii) Texts About Vacation and Travel
Another subject of the texts exchanged by Lund and Atalla was vacation and travel. For example, Lund sent Atalla a picture from a beach, they exchanged texts about Lund‘s vacation in Hawaii, Atalla‘s trip to Florida, trips to Southern California, various trips to Disneyland, Lund‘s visit to Pennsylvania, Atalla‘s trips to Mexico and Thailand, Lund‘s planned cruises and Hawaii trip, Atalla‘s birthday trip to Las Vegas, and Lund‘s planned trip to Monterey.
(iii) Texts About Exercise and Weight Loss
Lund and Atalla texted on the subjects of exercise, dieting, and weight loss, as well. For example, they texted about Lund running 5K and 10K races, a spinning studio, Atalla hurting herself doing yoga, Lund‘s dislike of running on pavement, Atalla‘s efforts
During an exchange in which Lund told Atalla that his cholesterol was down 130 points, Atalla sent Lund a text saying, “That‘s awesome,” and added, “You look great btw.” In another exchange, Atalla told Lund, “You and Vanessa [Lund‘s wife] are looking so good!” In another text Lund shared he was excited to be wearing size large again.
In an exchange discussing Lund‘s diet and exercise, Atalla asked whether he was taking a statin. Lund explained he was going to go see a cholesterol specialist, while Atalla said she needed to get on his level and lose weight. Lund described his routine of going to the gym at lunchtime and Atalla replied, “Wow! That‘s really good.” Atalla added, “My diet officially starts tomorrow.”
(iv) Texts About Family, Personal Matters, and Work
Lund and Atalla would text one another about personal matters, including, for example, family, spouses, kids, relatives, pets, social media, religion, and birthdays.
In one text, Atalla sent Lund a suit recommendation. In another, Atalla sent Lund someone‘s Facebook profile picture saying, “She does NOT look like that,” to which Lund replied, “She a hottie,” and Atalla responded, “She‘s really not.”
In June 2018, Atalla asked how Lund was and he replied with a picture of his daughter holding her new kitten, together with a tеxt stating, “Good[,] got a new family member.” A series of texts about pets followed. On another occasion, they joked about “Snuggies.”
They talked about the menu for a Friendsgiving to be held at Lund‘s house, which Atalla and her husband would be attending; they also texted about a good place to buy a turkey. They joked about the dishes Atalla could bring to complete the meal. They exchanged texts about Atalla‘s efforts to track down cherry pie, which she was craving. The day of the Friendsgiving, November 18, 2017, Atalla sent Lund a text stating, “Can‘t
Texts about various work-related topics were interspersed with innumerable texts about myriad personal topics, lighthearted jokes, and random check-ins. All the text communication occurred on Lund‘s and Atalla‘s respective personal cell phones.
C. Lund Sent Inappropriate and Offensive Texts to Atalla
One month after Atalla and Lund dined together in celebration of her birthday, they engaged in their final text exchange, also on their personal cell phones. Lund was at a hotel in Modesto; earlier he had met his “wine group” at a restaurant there. Atаlla was at home sitting on the couch with her husband. It was January 4, 2019, a Friday night.
In a text at 11:07 pm, Lund asked, “How did my newest pharmacist survive.”7 Atalla responded with texts stating, “I honestly don‘t know” and “I think it was ok, tough [because] I was fighting my cold but I‘m picking it up.” Lund replied, “You are my girl [so] conquer“; Atalla texted back, “I‘m trying my best.”8 Atalla added: “[The senior pharmacist] says once I‘m comfortable with everything she would love for me to cover for her ... that she trusts me.” Lund responded, “That is high praise.” Atalla replied, “But I never know if people are being nice or if they‘re serious.”
Lund then sent Atalla a photo of five bottles of wine, and texted, in succession, “Here is Erik covering” and “4 of us tonight.” Atalla replied, in a series of texts, “I‘ll take the first bottle,” “Thanks,” and “I‘m doing the same with vodka, clearing my cold the Russian way.” Lund texted, “Great choice,” and sent a photo of a bottle of wine and another text stating, “The eagle way.” Atalla replied, “What kind of wine is that.” Lund
Lund then texted Atalla a “Live Photo”9 of him masturbating. Atalla—who was in her living room, sitting next to her husband on the couch, when she received the text—could tell at first glance it was an image of his penis. Atalla put her phone face down on her coffee table for 10 minutes, then went into the bathroom and viewed the Live Photo in private so her husband would not see it. While she was in the bathroom, Atalla received another text message from Lund that said, “I am so drunk right now. ” Atalla deleted that text and the Live Photo.10
Lund then sent another text stating, “Meant to send to wifey,” followed by a text that said, “Going to go die.” Atalla responded, “It‘s ok, I deleted it before I end up in a divorce.” Atalla called her friend and went into her bedroom. While on the phone with her friend, Atalla received texts from Lund stating, “Both of us” and “Race to the bottom,” accompanied by a photo of his penis.11 Atalla texted Lund, “Erik, stop please,” to which he replied, “You are right.” That was the end of the exchange.
The next morning, Lund texted Atalla, “Wanted to apologize I was embarrassing drunk last night.” Atalla did not respond.
D. Rite Aid Quickly Fired Lund; Atalla Did Not Return to Work
On Sunday, January 6, 2019, Atalla called her training pharmacist and said she was not feeling well and would not be able to work that week. On Monday, January 7,
On January 10, 2019, Atalla‘s counsel, John Waterman sent a letter to Rite Aid asserting a claim of sexual harassment. Waterman‘s letter was forwarded to in-house counsel for Rite Aid, Emily Edmunds.
Edmunds spoke with Atalla‘s counsel on January 11, 2019. Atalla‘s counsel told Edmunds that Lund sent Atalla a video of himself masturbating and a still picture of his penis. Atalla‘s counsel also advised that Atalla “will not be returning to work at Rite Aid.” Atalla‘s counsel said he had already obtained a right-to-sue letter and would be filing a complaint that coming Monday, January 15, 2019. He observed the question was damages and proposed early mediation.
Edmunds immediately directed Divisional Human Resources Leader Rodney Lachin (Lachin) to investigate Atalla‘s complaint. Lachin met with Lund the same day, January 11, 2019. Lund admitted sending Atalla the photo and video of his penis. Lachin handed Lund a copy of Rite Aid‘s anti-retaliation policy and placed him on suspension. Rite Aid investigated whether there were any other complaints of sexual harassment against Lund; the investigation revealed none.
Rite Aid made the decision to terminate Lund on Monday, January 14, 2019.12 That same day, Edmunds emailed a letter to Atalla‘s counsel advising of Lund‘s termination and assuring them, “Ms. Atalla remains an active employee in our system, and she is welcome to return to work.” Edmunds‘s letter invited Atalla to call the pharmacy scheduler so shе could get back on the schedule (Edmunds provided the number). Edmunds also attached information about Rite Aid‘s Employee Assistance Program, through which Atalla could receive mental health counseling, financial advice, and other assistance.
On January 16, 2019, Edmunds spoke to Atalla‘s other counsel, Ken Fitzgerald. During the call, Fitzgerald reiterated that Atalla would not be returning to work at Rite Aid.
Edmunds waited the rest of the week but heard nothing further. Based on the statements of Atalla‘s counsel and the lack of any communication to the contrary, Edmunds concluded that Atalla had no intention of returning to work at Rite Aid and, rather, had decided to resign and pursue litigation. Accordingly, on January 21, 2019, Atalla‘s status in Rite Aid‘s system was changed to “resignation with the possibility of re-hire.” On January 22, 2019, Rite Aid sent Atalla a separation notice, along with her vacation payout.
After Atalla received the separation notice, she did not communicate with anyone at Ride Aid for any needed clarification. She never contacted Rite Aid to indicate she wanted to return to work. Edmunds stated in her declaration: “Ms. Atalla would have been welcomed back at any time, but neither she nor her attorneys ever contacted Rite Aid to say she had any intention of returning to work at Rite Aid.”
DISCUSSION
I. Summary Judgment: Standard of Review
Any party may move for summary judgment in an action if it is contended that the action has no merit. (
“Summary judgment is granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (
“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court‘s action in his favor bears the burden of persuasion thereon. (See
“[S]ummary judgment law in this state [no] longer require[s] a defendant moving for summary judgment to conclusively negate an element of the plaintiff‘s cause of action.... All that the defendant need do is to ‘show[] that one or more elements of the
II. Atalla‘s Sexual Harassment Claims
A. Sexual Harassment: Applicable Legal Framework
Atalla‘s first and fourth causes of action allege sexual harassment under FEHA. FEHA prohibits sexual harassment in the workplace. (See
” ‘[T]he prohibition against sexual harassment includes protection from a broad range of conduct, [including] the creation of a work environment that is hostile or abusive on the basis of sex.’ ” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 277 (Lyle).) ” [A] plaintiff in a sexual harassment suit must show ‘the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted “discrimina[tion] ... because of ... sex.” ’ ” (Lyle, supra, 38 Cal.4th at p. 280, italics omitted.) ” ‘To plead a cause of action for ... sexual harassment, it is “only necessary to show that gender is a substantial factor in the discrimination, and that if the plaintiff ‘had been a man [or a woman he or] she would not have been treated in the same manner.’ ” [Citation.]’ [Citations.] Accordingly, it is the disparate treatment of an employee on the basis of sex—not the mere discussion of sex or use of vulgar language—that is the essence of a sexual harassment claim.” (Ibid.)
“[P]rohibited harassment includes ‘verbal, physical, and visual harassment, as well as unwanted sexual advances.’ [Citation.] In this regard, verbal harassment may include epithets, derogatory comments, or slurs on the basis of sex; ... visual harassment may include derogatory posters, cartoons, or drawings on the basis of sex.” (Lyle, supra, 38 Cal.4th at pp. 280-281.) The plaintiff “must establish the offending conduct was imputable to [his or] her employer.” (Id. at p. 279.)
The underlying goal of FEHA in this context is to provide effective measures to prevent workplace harassment. (Health Services, supra, 31 Cal.4th at pp. 1046-1047.) ” ‘Under the FEHA ... there is a need to determine whether sexual conduct that occurs off the worksite or after working hours constitutes an “unlawful employment practice” within the ambit of the act.’ ” (Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1422, quoting
Under FEHA, an employer is strictly liable for harassment by a supervisor. (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1236-1237, citing Health Services, supra, 31 Cal.4th at pp. 1040-1041.) However, an employer is only strictly liable under FEHA for harassment by a supervisor “if the supervisor is acting in the capacity of supervisor when the harassment occurs.” (Health Services, supra, at p. 1041, fn. 3.) “The employer is not strictly liable for a supervisor‘s acts of harassment resulting from a completely private relationship unconnected with the employment and not occurring at the workplace or during normal working hours.” (Ibid., italics added.)
Here, there is no dispute that Lund was a supervisor. With respect to summary judgment on Atalla‘s sexual harassment claims, the issue below was and the issue on appeal is, whether Lund was acting in the capacity of a supervisor in the text exchange in which he sent the inappropriate texts, such that Rite Aid could properly be held strictly liable for that conduct.
B. Background: Trial Court‘s Ruling on the Sexual Harassment Claims
The trial court concluded Atalla had not raised a triable issue of fact as to the required showing that Lund was acting in the capacity of a supervisor when he sent the inappropriate texts. The trial court granted Rite Aid‘s motion for summary judgment as to Atalla‘s sexual harassment claims against Rite Aid (the employer). The trial court ruled:
“FEHA protects against harassment in the workplace based on sex. (
Cal. Gov. Code § 12940(j) .) However, under FEHA ‘there is a need to determine whether sexual conduct that occurs off the worksite or after working hours constitutes an “unlawful employment practice” within the ambit of the act.’ (Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1422.) ‘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.) The [Health Services] court added, however, that an employer is only strictly liable under FEHA for harassment by a supеrvisor if the supervisor is acting in the capacity of supervisor when the harassment occurs. (Id. at fn. 3.) The employer is not strictly liable for a supervisor‘s acts of harassment that results from a completely private relationship unconnected with the employment and not occurring at the workplace or during normal working hours. (Ibid.)“The acts of harassment clearly did not occur at work or during normal working hours. That cannot be disputed. The question is whether the harassment arose from a completely private relationship unconnected with the employment. I think defendants have met their burden of showing that this is the case.
“Plaintiff admitted in her deposition that before she worked at Rite Aid, she had a relationship with Lund that was wholly unconnected to her work at Rite Aid. [Citation.] They socialized together and became close friends outside of work. [Citation.] They had dinner together with their spouses [citation], had lunch together without spouses [citation], got coffee together [citation], and celebrated birthdays and holidays together [citation].
“Plaintiff and Lund had an extensive personal texting relationship. As plaintiff points out they did text a lot about work, but they texted frequently and extensively about personal matters unconnected to work. [Citation.] This is consistent with how work friends communicate.
“Plaintiff contends in her opposition that she engaged with Lund in this way merely to foster a business relationship with a ‘mentor’ who could help her career. She claims in her declaration that her subjective motivation — her desire to further her career — was the reason she maintained a personal relationship with Lund and texted him all the time about personal matters, and ‘but for’ those subjective professional aspirations, the harassment would not have occurred. (See Atalla Dec.)
” ‘Whether an employee is acting within the scope of his employment is generally a question of fact; however, if the undisputed
evidence would not support an inference that the employee was acting within the scope of his employment, it becomes a question of law.[13]’ (Capital City Foods, Inc. v. Superior Court (1992) 5 Cal.App.4th 1042, 1048.) “Plaintiff contends that the offensive text messages were connected to work. After the initial inquiry about [how] plaintiff‘s week at work went (a common inquiry for a friend), Lund said, ‘You‘re my girl, so conquer.’ [Citation.] Plaintiff testified that she did not find this highly personal text offensive because she and Lund were equally friendly with one another in the past. [Citation.] The texting then moved onto the topic of alcohol, a common topic for plaintiff and Lund. [Citation.] Lund sent pictures of wine, bragging about how much he was drinking and how expensive the wine was. Plaintiff engaged in the talk, saying ‘I‘ll take the first bottle’ and telling Lund that she was ‘doing the same with vodka.’ [Citation.] After several more messages about the wine Lund was drinking [citation], plaintiff furthered the discussion by asking if Lund was celebrating New Year‘s Eve. [Citation.] That prompted four more texts between them [citation], and the inappropriate texts followed.
“It cannot reasonably be disputed that those texts were spawned from a personal exchange that arose from a friendship between plaintiff and Lund. Plaintiff‘s assertions in her declaration about how the relationship was entirely professional, for her purposes, is self-serving and inconsistent with the large volume of evidence of an outside-the-workplace friendship. There was nothing work related about the messages exchanged that evening. And this texting clearly indisputably occurred outside the workplace and outside of work hours. [Citation.]
“Plaintiff has not raised a triable issue of fact, and the motion should be granted.”
We affirm the trial court‘s conclusion that Atalla has not raised a triable issue of material fact with respect to the required showing that Lund was acting in the capacity of a supervisor in the text exchange in which he sent the inappropriate texts. Rather, as the trial court found, Lund and Atalla had “an extensive texting relationship” and their January 4, 2019 late-night text exchange, which “occurred outside the workplace and outside of work hours,” was “spawned from a personal exchange that arose from a friendship between [them].” Summary judgment is therefore proper as to Atalla‘s sexual harassment claims.
Atalla and Lund both stated in their depositions that they were close friends and that their friendship predated Atalla‘s taking a pharmacy intern position at Rite Aid and continued thereafter. Atalla candidly admitted in her declaration that her friendship with Lund developed before she ever worked at Rite Aid and that this preexisting relationship was wholly unconnected to her work at Rite Aid. As for Lund, he testified he thought Atalla was “one of [his] best friends.”
Both before and after Atalla worked at Rite Aid, she and Lund texted about a range of topics, extensively and frequently, including topics concerning family, vacations, food and dining, alcohol and drinking, people and pets, exercise, as well as chit chat about work. They regularly mеt for coffee and lunch, got together for holiday and birthday dinners, and were acquainted with each other‘s spouses.
Atalla states, in a declaration attached to her opposition to Rite Aid‘s motion for summary judgment, that “Lund was simply a career mentor and supervisor” and that she only interacted with him to further herself in her career. Not only do these statements in her declaration contradict her deposition testimony, but they are undercut by the hundreds of texts she exchanged with Lund over the time she knew him. Rather than the occasional networking contact, their interactions were frequent, familiar, candid, and wide-ranging.
Indeed, had their relationship been strictly professional as Atalla states in her declaration, they would not have been texting after 11:00 p.m. on a Friday night (as they did on January 4, 2019), in the first place. Their banter over texts that night — prior to Lund‘s texting of the inappropriate photos later in the exchange — was no different in tone and subject matter than loads of their other text exchanges as personal friends. Although Lund began the exchange by asking how Atalla‘s week at work went, that is, as the trial concluded, “a common inquiry for a friend.”14 Even with Lund‘s inquiry into how Atalla‘s week at work went, their text exchange was highly personal, as reflected in Lund‘s feedback, “You‘re my girl, [so] conquer.” Atalla testified she was not offended by the personal phrasing because they had previously exchanged similarly friendly text messages with one another. After the introductory inquiry, their text exchange devolved into bantering about alcohol, a subject that frequently came up in their texts. Atalla acknowledged at deposition that they frequently texted about drinking and alcohol. Indeed, on a prior occasion, Lund had texted Atalla, “I drunk help.”
Significantly, when the January 4, 2019 text exchange occurred, both participants were away from the workplace, and it occurred well outside working hours. Lund was in a hotel in Modesto, where he had traveled to meet with his wine group; he had met with the wine group at a restaurant and was back at his hotel. Atalla was at home, sitting on the couch with her husband, sipping vodka and nursing a cold. Atalla testified at deposition that their banter about alcohol that night was unconnected with her employment at Rite Aid and Lund was not supervising her in those texts. They bantered over texts as they usually did, until Lund texted the inappropriate photos. Up until Lund sent the lewd photos, there was nothing remarkable about their text exchange, given their tеxting history. The timing of the exchange, the fact that the participants were engaged in
We conclude Rite Aid has met its burden to show there is no triable issue of material fact on the question whether Lund‘s texting of the inappropriate photos was work-related. The evidence does not support an inference, under the applicable standard of proof, that the text exchange culminating in the inappropriate photos was work-related in that Lund was acting in his capacity as a supervisor, and the conduct was in turn properly imputable to Rite Aid. (See Health Services, supra, 31 Cal.4th at p. 1041, fn. 3 [an employer is strictly liable for the harassing conduct of a supervisor if “the supervisor is acting in the capacity of supervisor when the harassment occurs“].) Rite Aid is entitled to summary judgment on Atalla‘s sexual harassment claims.
D. Relevant Caselaw
(i) Capitol City Foods, Inc. v. Superior Court
The cases cited by the parties support our conclusion. The case that is most instructive here is Capital City Foods, Inc. v. Superior Court (1992) 5 Cal.App.4th 1042 (Capital City Foods). The facts of Capital City Foods are succinctly summarized therein:
intercourse. Johnson then dropped Mary off at an auto repair store, and he went to the Burger King. The next day Mary told the manager what had happened, and quit shortly thereafter. [¶] Mary [then] filed a complaint for sexual harassment, a form of sex discrimination [under“Mary T. began working at defendant‘s Burger King franchise in January of 1989. Vernon Johnson was the night shift supervisor. On January 29, Mary and a coworker asked Johnson to go with them for a drink. Johnson could nоt go then, but suggested another time. Mary and Johnson made arrangements to go out on the 31st. They both believed the coworker would accompany them. Neither Johnson nor Mary was scheduled to work that day, but unbeknownst to Johnson, Dan Singh had changed the schedule and scheduled Mary to work that day at 5 p.m. At that time Mary was still in training and had a flexible schedule as she learned the job alongside more experienced workers. On January 31, as arranged, Johnson picked up Mary, who was in her Burger King uniform, at a grocery store at 4 p.m.; the co-worker did not show up. They drove around for 45 minutes, during which time Johnson made two phone calls. He called the Burger King and told Dan Singh that he should not have changed the schedule without Johnson‘s approval and that if Mary wanted to work she would come in late. He also called his parents’ house. Johnson took Mary to his parents’ house, where they had sexual