ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT
I. INTRODUCTION
Defendants filed a Motion For Summary Judgment Or, In The Alternative, Motion For Partial Summary Judgment (“the Motion”) on October 27, 2000. For the reasons stated below, Defendants’ Motion is DENIED.
II. BACKGROUND
Plaintiff Del Erdmann, a Caucasian male homosexual, alleges that his employer, Tranquility Inc. (d.b.a. San Miguel Villa), and Velda Pierce (who owns and operates San Miguel Villa) discriminated against him based upon religion and sexual orientation. Specifically, he alleges that Velda Pierce, who is a member of the Church of Jesus Christ of Latter-Day Saints (“Mormon Church”), discriminated against Plaintiff and created a hostile and abusive work environment based on religion — namely, her belief that homosexuality is immoral. He further alleges that Pierce’s conduct gave rise to his constructive discharge.
A. Facts 1
1. Erdmann’s Employment History With San Miguel Villa
In August 1997, Plaintiff Del Erdmann interviewed for a job with San Miguel Villa. Plaintiffs Statement Of Disputed Issues in Support Of Opposition at 1. The interview was conducted by Velda Pierce, whose son was also present at the interview. Deposition of Del K. Erdmann (“Erdmann Depo.”) at 28, Exh. 1 to Declaration of Wendy A. Moss in Support of Defendant’s Motion For Summary Judgment (“Moss Dec!”). 2 In the interview, Pierce asked Plaintiff, whose previous job was in New York, why he had returned to *1155 the San Francisco Bay area. Id. at 22, 28-29. Plaintiff explained that his “significant other” had relocated to the Bay Area and so he had decided to relocate as well. Id. at 29. It is undisputed that Pierce was of the opinion at the time of the interview that Plaintiff was a homosexual. See Plaintiffs Statement of Disputed Issues In Support Of Opposition To Defendant’s Motion For Summary Judgment at ¶ 4. 3 At the end of the interview, Pierce offered Plaintiff the position of MDS coordinator, and Plaintiff accepted the offer. Erdmann Depo. at 31-32, Exh. 1 to Moss Decl.
Until November 1998, Plaintiff was “very happy” in his employment with San Miguel Villa. Id. at 84. In June 1998, Erdmann was promoted to the position of Assistant Director of Nursing and received a salary increase. Id. at 63. This promotion was recommended by Robert Pritchard, the director of nursing at that time, and approved by Velda Pierce. Id at 69; see also Pierce Depo. at 52, Exh. 2 to Declaration of Henry Y. Ku In Support Of Opposition To Defendant’s Motion For Summary Judgment/Summary Adjudication (“Ku Decl.”); Deposition of Robert Allen Pritchard (“Pritchard Depo.”) at 11, Exh. 3 to Ku Decl. In his new position, Plaintiff worked as Mr. Pritchard’s assistant. Erdmann Depo. at 69, Exh. 1 to Moss Decl.
As an employee at San Miguel Villa, Plaintiff did not try to keep his sexual orientation a secret. Erdmann Depo. at 59, Exh. 1 to Ku Decl. On the other hand, aside from a few co-workers with whom he occasionally socialized outside of work, Plaintiff did not tell his co-workers that he was gay. Id. at 60-61. Nor did he tell Velda Pierce or his immediate supervisor, Robert Pritchard, that he was gay, although both were aware that he was gay. Id. at 58-60; Pierce Depo. at 69-70, Pritchard Depo. at 30, Exh. 3 to Ku Decl.
2. Joseph Alagon
Sometime before November 11, 1998, Joseph Alagon, a registered nurse “with more supervisorial duties than other nurses” employed by San Miguel Villa, told Robert Pritchard that he was uncomfortable with Plaintiffs conduct. Pritchard Depo. at 33-34, Exh. 3 to Ku Decl. Alagon told Pritchard that while Pritchard was absent from work due to a serious illness, Plaintiff had asked Alagon to come in to his office to discuss how Plaintiff and Ala-gon could work together to cover for Pritchard in his absence. Id. at 33. Ala-gon was particularly uncomfortable with the fact that Plaintiff had closed the door to his office at the beginning of this meeting. Id. at 34. Alagon also told Pritchard that Plaintiff had approached him more than once to ask him if he needed help. Id. at 33. The first time Plaintiff asked, Alagon declined Plaintiffs offer. Id. The second time Plaintiff offered assistance, Alagon said something like “I don’t want your help, I told you before” and “please *1156 leave me alone.” Id. When Pritchard asked Alagon whether he felt that he had been “harassed,” Alagon said that he did not, but that he felt uncomfortable with Plaintiffs conduct. Id. at 35. Alagon and Pritchard did not discuss Alagon’s feelings about homosexuals during this conversation. Id. at 37. Apparently, Alagon stopped coming to work after this meeting. See Pierce Depo. at 92, Exh. 2 to Ku Decl.
Following the discussion between Pritchard and Alagon, Pritchard informed Velda Pierce of his conversation with Ala-gon. Id. at 36. He and Pierce agreed that Alagon’s reluctance to work with Plaintiff was not good for teamwork and that they should try to resolve the problem by having a meeting with both Plaintiff and Ala-gon present. Id. at 37. Sometime thereafter, Pierce had a telephone conversation with Alagon in which she asked him to come in to discuss his continued employment with San Miguel Villa. Pierce Depo. at 87, Exh. 2 to Ku Decl. On November 12, a meeting was held in which Plaintiff, Ala-gon, Pierce and Pritchard participated (see below).
3. November 11 Meeting
In the meantime, on November 11, Plaintiff asked to talk to Velda Pierce. Erdmann Depo. at 75, Exh. 1 to Ku Decl. According to Plaintiff, he had been told by a co-worker that another co-worker had said that Plaintiff had said Pierce only hired “drunks and drug addicts as nurses.” Id. at 76. Plaintiff went to Pierce’s office to tell her about the statement and let Pierce know that Plaintiff had not made such a statement. Id. at 77. During the course of the conversation, Pierce told Plaintiff that “some people are troublemakers and they may be friends to your face but they’re going to stab you in the back.” Id. at 78. Plaintiff responded by mentioning the incident that had occurred with Joseph Alagon, when Alagon told Plaintiff to leave him alone. Id. He told Pierce, “Well, it’s kind of the way Joseph Alagon was then. He was real nice to me and then all of a sudden I asked him if he needed help and he screamed back at me.” Erdmann Depo. at 78, Exh. 1 to Ku Decl. At that point, Pierce began to discuss Plaintiffs homosexuality. Id.; see also Pierce Depo. at 76, Exh. 2 to Ku Decl. (describing meeting with Plaintiff in which Pierce told Plaintiff that she believed homosexuality was immoral and that when Plaintiff died, “he would go before the Lord and the Lord would question his homosexual ways.”). According to Plaintiff, Pierce told Plaintiff that it is “immoral” to be a homosexual, and that he should become heterosexual and a Mormon or he would go to hell. Id. According to Pierce, Plaintiff was “tearful” during this meeting and told her he did not want to discuss the subject, then walked out of her office. Pierce Depo. at 77, Exh. 2 to Ku Decl. On the same day, Plaintiff told his supervisor, Robert Pritchard, about the meeting. Erdmann Depo. at 80, Exh. 1 to Ku Decl.
4. November 12 Meeting
On November 12, Velda Pierce called Pritchard and instructed him to bring Plaintiff to her office for a meeting with Joseph Alagon. Pierce Depo. at 88, Exh. 2 to Ku Decl. Alagon was already in Pierce’s office when Plaintiff and Pritchard arrived. Id. Pierce then began to talk to Alagon and Plaintiff. Id. Plaintiff describes the meeting as follows:
She said ... “I’ll start this meeting. Joseph is coming back to work here. And one of the reasons the problems had arised was that Joseph listened to gossip and after finding out that — at first he really thought you were a wonderful guy, very helpful and nice, but then after he found out you were homosexual then that changed everything because how we view homosexuals as immoral, indecent and they just want to be *1157 promiscuous and go to bed with everybody. And you had never told him you were involved in a monogamous relationship of three years,” which then I corrected her, of seven, “and that you just better stay in that monogamous relationship or else something bad is going to happen to you.” “And then she directed me to go out and tell all the employees of San Miguel Villa — that I need to go tell everybody that I’m a homosexual and I’m involved in a monogamous relationship and that I don’t want to go to bed with everybody where I work, because if I — I need to tell everybody those kinds of things.”
Erdmann Depo. at 98-99, Exh. 1 to Ku Decl. Pierce then instructed Plaintiff and Alagon to shake hands. Id. at 101. Plaintiff complied because “Mrs. Pierce is the boss, the owner” and he was “scared of losing [his] job.” Id. at 102. It was evident to Pierce, however, that Plaintiff was “very angry.” Pierce Depo. at 96, Exh. 2 to Ku Decl. The two shook hands, but Alagon never came back. Pierce Depo. at 96, Exh. 2 to Ku Deck
Plaintiff resigned the following day, on November 13. Erdmann Depo. at 121, Exh. 1 to Ku Deck 121. He did not tell Pierce the reasons for his resignation. Id. at 123. However, he stated in his deposition that it was clear to him that she knew “exactly why [he] was quitting,” namely, that he was “being persecuted for being a homosexual and [he] was told [he] was going to hell if [he] didn’t think [he] was a Mormon.” Id. at 121-122.
5.Tony Herebia
Sometime during the week following the November 12 meeting, Velda Pierce had a conversation with another homosexual employee, Tony Herebia, about his sexual orientation. Erdmann Depo. at 107-108, Exh. 1 to Moss Deck According to Here-bia, Pierce told him that some employees were uncomfortable with the fact that he was gay and that he should “not let anybody know” that he was homosexual. Deposition of Tony Herebia (“Herebia Depo.”) at 8-9, Exh. 5 to Moss Deck Here-bia responded by telling Pierce, “that’s too bad. I have right to be out at work ... and I’m not going to be pushed in the closet by my employer.” Id. According to Herebia, Pierce conceded that he had “the right to be out at work,” and they never discussed the issue again. Id. Herebia told Plaintiff about this conversation with Pierce while Plaintiff was still working at San Miguel Villa. Erdmann Depo. at 108, Exh. 1 to Moss Deck According to Plaintiff, Herebia told Plaintiff that Velda Pierce had told Herebia to “keep [his homosexuality] in the closet while he [was] at work.” Id. Herebia also told Plaintiff that he had told Pierce that he was gay and that he had said to her, “I act the way I want.” Id. Herebia did not discuss with Plaintiff how Pierce responded to this statement. Id.
6. November 16 Meeting
On November 16, Pierce called Plaintiff into her office, along with Robert Pritch-ard, and told Plaintiff that she was “concerned with [his] everlasting life.” Erd-mann Depo. at 120, Exh. 1 to Moss Deck She said, “I love you and ... want to meet you in heaven some day. However, if you don’t become a Mormon and don’t change to a heterosexual male you can forget about going to heaven.” Id.
7. Daily Prayers
While Plaintiff was employed at San Miguel Villa, a daily prayer was given following the morning communications meeting. Erdmann Depo. at 43, Exh. 1 to Ku Deck Defendants submitted declarations by two employees of San Miguel Villa stating that they were told that participation in the prayer was voluntary. See Declaration of *1158 Edith Boss in Support of Motion For Summary Judgment Or, In The Alternative, Motion For Partial Judgment (“Boss Decl.”) at ¶ 5; Declaration of Yvonne Senn In Support of Motion For Summary Judgment Or, In The Alternative, Motion For Partial Judgment (“Senn Decl.”) at ¶ 5. In addition, Velda Pierce testified in her deposition that when a new person came into the meeting, it was her custom to inform them that participation in the prayer at the end of the meeting was voluntary. Pierce Depo. at 61, Exh. 2 to Ku Decl.; see also Pritchard Depo. at 25, Exh. 4 to Moss Decl. However, Plaintiff could not recall being told that participation was voluntary. Id. Nor did Pierce have a specific memory of informing Plaintiff that participation was voluntary. Pierce Depo. at 61, Exh. 2 to Ku Decl. Plaintiff stayed in the room during the prayer, but was offended by it. Erdmann Depo. at 43, Exh. 1 to Ku Decl. More than once, Pierce asked Plaintiff to give the prayer. Erdmann Depo., at 46, Exh. 1 to Moss Decl. When Plaintiff declined, Pierce did not say anything but “appeared offended.” Id. at 47.
B. Claims
On the basis of the facts alleged above, Erdmann brings the following claims in his First Amended Complaint:
Claim 1: Religious discrimination in violation of Civil Rights Act, 42 U.S.C. §§ 2000 et seq. (against Tranquility Inc.);
Claim 2: Religious discrimination in violation of the California Fair Employment and Housing Act (FEHA), Cal. Gov’t Code §§ 12900 et seq. (against Tranquility Inc.);
Claim 3: Religious harassment in violation of Civil Rights Act, 42 U.S.C. §§ 2000 et seq. (against Tranquility Inc.);
Claim I: Religious harassment in violation of California FEHA, Cal. Gov’t Code §§ 12900 et seq. (against Tranquility Inc. and Pierce);
Claim 5: Sexual orientation harassment in violation of California FEHA, Cal Gov’t Code § 12900 et seq. (against Tranquility Inc. and Pierce);
Claim 6: Discharge in violation of public policy (against Tranquility Inc.);
Claim 7: Sexual orientation discrimination in violation of California FEHA, Cal Gov’t Code § 12900 et seq. (against Tranquility Inc.).
In this motion, Defendants seek summary judgment in their favor on the following grounds: Plaintiff has failed to present evidence showing that he was subjected to a hostile and abusive work environment with respect to his harassment claims under Title VII and FEHA; 2) Plaintiff has failed to establish that Defendants took any adverse employment action — including constructive discharge— against him, which is a prima facie element of Plaintiffs discrimination claims under both Title VII and FEHA, as well as of his constructive discharge claim (Claims 1, 2, 6 and 7). Plaintiff asserts in his opposition that: 1) he has presented sufficient evidence of harassment to establish a genuine issue of material fact as to whether he was subjected to a hostile work environment; 2) he has presented sufficient evidence to establish a genuine issue of material fact with respect to whether he was constructively discharged; and 3) even if he was not constructively discharged, acts creating a hostile work environment constitute adverse employment action for the purposes of Plaintiffs discrimination claims.
*1159 III. ANALYSIS
A. Legal Standard
Rule 56 provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c). In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the nonmoving party’s claim, or to a defense on which the non-moving party will bear the burden persuasion at trial.
Celotex Corp. v. Catrett,
B. Hostile Work Environment
Plaintiff asserts hostile work environment claims based upon Title VII and FEHA (Claims 3, 4 and 5). Title VII provides that “it shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or to otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... religion.” 42 U.S.C. § 2000e-2(a). The FEHA provides that “[i]t shall be an unlawful employment practice ... [f]or an employer, because of ... religious creed ... or sexual orientation of any person ... to bar or to discharge the person from employment ... or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” Cal. Gov.Code § 12940. It is well-established that a violation of these provisions occurs where discrimination gives rise to a hostile or abusive work environment.
See Harris v. Forklift Systems, Inc.,
In order to prevail on a hostile work environment claim under Title VII and FEHA, Plaintiff must establish that the workplace was permeated with “discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”
Harris v. Forklift Systems, Inc.,
Defendants contend that no reasonable jury could conclude that Plaintiff was subjected to a hostile work environment based upon the evidence presented by Plaintiff because Defendants’ conduct was neither “pervasive” nor “severe.” Motion at 14. 4 As to the pervasiveness of Defendants’ conduct, Defendants assert that the alleged harassment was based upon three incidents which occurred over a five-day period — the meetings on November 11, November 12 and November 16 — one of which occurred after Plaintiff had already resigned. In support of their argument that Defendants’ conduct was not “severe,” Defendants make the following points: 1) there is no evidence to show that Pierce’s religious beliefs regarding homosexuality affected her personnel decisions; 2) Plaintiff cannot show that other homosexual employees were pressured by Pierce to become Mormon or heterosexual males; 3) Plaintiffs own conduct — namely, his failure to tell Pierce that he had a right to be openly gay at work, as Tony Herebia had done — belied the fact that he found his work environment to be abusive; 4) Plaintiff continued to work for two weeks after submitting his resignation, showing that the work environment was not intolerable; 5) Plaintiff admitted that he suffered no psychological injury. Motion at 14-15.
Plaintiff, on the other hand, argues that he was subjected to harassment that was both “pervasive” and “severe.” First, Plaintiff argues that Defendants’ conduct was pervasive because it was not limited to a five-day period, as Defendants’ assert, but rather, extended over a much longer period of time, pointing to the daily pray *1161 ers that were conducted at the end of the communications meeting during the entire period Plaintiff was employed by San Miguel Villa. Opposition at 12. According to Plaintiff, he was pressured to stay for the daily prayer, and Velda Pierce was offended when he declined to lead the prayer. Second, Plaintiff argues that Defendants’ conduct was sufficiently outrageous to create a hostile work environment. He relies upon the following conduct in support of this argument: 1) Pierce told Plaintiff that homosexuality was immoral and that he would go to hell if he did not give up his homosexuality and become a Mormon; 2) Pierce told Plaintiff that other employees were uncomfortable with Plaintiffs homosexuality because homosexuals are promiscuous and just want to have sex, and therefore, that Plaintiff should tell the other employees of San Miguel Villa that he was currently engaged in a monogamous relationship and did not want to have a relationship with any employees of San Miguel Villa.
Based on the record before the Court, there exists a genuine issue of fact as to whether a hostile work environment existed. While Defendant has cited a number of facts that will, no doubt, be offered at trial, the Court cannot conclude at this stage of the proceedings that no reasonable jury could find that Defendants’ conduct was sufficiently severe or pervasive to give rise to hostile work environment. The Court denies Defendants’ motion with respect to Plaintiffs harassment claims.
While a hostile work environment claim may be stronger where it is based upon repeated incidents, the pervasiveness of the conduct that must be shown to prevail on a hostile work environment claim varies inversely with the seriousness of the incidents.
Ellison v. Brady,
Defendants rely upon the Seventh Circuit’s decision in
Venters v. City of Delphi,
While the facts in
Venters
differ in some respects from those at issue here, the Court does not find the conduct in
Venters
to be so different from the conduct at issue here as to support the conclusion that Defendants are entitled to summary judgment on Plaintiffs harassment claims. First, the Court rejects the suggestion that
Venters
requires that an employer must threaten to terminate an employee or withdraw job benefits in order for an employee to prevail on a harassment claim. While
Venters
did involve such threats, it is well-established that such
quid pro quo
harassment is just one type of harassment and that harassment that does not involve any threats to job benefits may also give rise to a hostile work environment.
See Harris,
The Court also rejects Defendants’ argument that Plaintiff was not subject to a hostile work environment because he cannot show that other homosexual employees were pressured by Pierce to become Mormon or heterosexual males. Motion at 14. Defendants have cited no authority in support of their argument that Pierce’s treatment of other homosexuals is relevant to whether her conduct subjected Plaintiff to a hostile work environment. Indeed, in Venters, there is no suggestion that the employer in that case pressured any employee other than the plaintiff to adopt his religious views. In any event, the record does not support Defendants’ contention that Pierce never pressured other homosexual employees. To the contrary, there is evidence in the record that soon after the November 12 meeting, while Plaintiff was still employed by San Miguel Villa, Pierce approached another homosexual employee, Tony Herebia, and told him that he should keep his homosexuality a secret. Herebia Depo. at 8, Exh. 5 to Ku Decl. Herebia testified that Pierce raised the issue in the context of a job interview and that he told her that “we are supposed to be evaluating my work status.” Id. He then told Pierce that he had a right to be gay at work and Pierce did not raise the issue again. Id. Regardless of whether Pierce subjected Herebia to further pressure after this incident, a jury could reasonably infer based on Pierce’s conversation with Herebia that she did attempt to pressure another homosexual regarding his sexual preference because of her Mormon beliefs. 5
*1163 Nor is the Court convinced that Plaintiffs ability to work the last two weeks following his resignation indicates that his work environment could not have been hostile or abusive as a matter of law. Defendants have cited no authority for the proposition that an employee’s work environment must be so intolerable that they cannot give two week’s notice in order to prevail on a harassment claim.
Finally, the Court rejects Defendants’ assertion that they are entitled to summary judgment because Plaintiff did not suffer psychological injury serious enough to require medical or psychiatric treatment. It is well-established that Title VII is not limited to conduct that seriously affects a person’s psychological well-being, but rather, proscribes workplace conduct giving rise to “an environment [that] would reasonably be perceived, and is perceived, as hostile or abusive.”
Harris,
C. Constructive Discharge
Plaintiff also claims that he was constructively discharged in violation of public policy (Claim 6). Under California law, a plaintiff “who was constructively discharged because of harassment based on actual or perceived sexual orientation may bring such a claim.”
Kovatch v. California Casualty Management Company,
Under California law, constructive discharge occurs where “the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.”
Turner v. Anheuser-Busch Inc.,
Here, as in Kovatch, there is sufficient evidence to create a material issue of fact on the question of whether Plaintiffs employer intentionally created work conditions that were so intolerable that a reasonable person would have felt compelled to quit. As discussed above, Plaintiffs employer, Velda Pierce, told him he would go to hell if he didn’t become heterosexual and a Mormon, and expressed her view, in front of other employees, that homosexuals are promiscuous. There is also evidence that Pierce required Plaintiff to discuss his private life with at least one other employee in order to reassure that employee that Plaintiff did not want to “go to bed” with him and told Plaintiff he should tell other employees at San Miguel Villa the same thing. Following Plaintiffs resignation, Pierce called Plaintiff into her office again to tell him about her concerns for his salvation. While this evidence may or may not persuade a jury that the conditions of Plaintiffs employment were intolerable, it certainly creates a genuine issue of fact.
The Court rejects Defendants’ assertion that Pierce’s conduct was “enormously different” from the conduct in
Kovatch
because it was motivated by love rather than animosity. The standard for determining whether constructive discharge has occurred is whether a
reasonable
person would find the conditions intolerable and not whether the employer believed her conduct to be offensive. Moreover, to the extent that California law requires that the employer have “actual (rather than mere constructive) knowledge of the intolerable conditions,”
see Turner,
The Court also rejects Defendants’ assertion that they are entitled to summary judgment on Plaintiffs constructive discharge claim because Plaintiff “made no effort to address his concerns with Pierce before departing on November 27.” Motion at 18. First, as noted above, Plaintiff
*1165
has presented evidence from which a reasonable jury could conclude that he did, in fact, tell both Pierce and Pritchard that Pierce’s comments concerning his sexual orientation were inappropriate and unwelcome and that Pierce did not change her conduct in response. Second, as the court explained in
Clowes v. Allegheny Valley Hospital,
although employees will usually explore alternative avenues before resigning, courts “do not require that such steps be taken in all cases. An employee may be able to show working conditions were so intolerable that a reasonable employee would feel forced to resign without remaining on the job for the period necessary to take those steps.”
D. Discrimination Claims under FEHA and Title VII
Plaintiff alleges in Claims 1, 2 and 7 that he was discriminated against in violation of Title VII (based on religion) and FEHA (based on religion and sexual orientation). In order to prevail on a discrimination claim under Title VII or FEHA, a Plaintiff must establish as one of the prima facie elements of his case that he was subjected to some adverse employment action.
Shapolia v. Los Alamos National Laboratory,
As discussed above, Plaintiff has presented evidence from which a reasonable jury could conclude that he was constructively discharged under California law. Therefore, Defendants are not entitled to summary judgment on Plaintiffs discrimination claims under FEHA.
Similarly, Plaintiff has presented sufficient evidence of constructive discharge under federal law to satisfy the adverse employment action requirement under Title VII, for the purposes of summary judgment. In order to determine whether constructive discharge has occurred under Title VII, courts in the Ninth Circuit consider, based upon the totality of the circumstances, whether “ ‘a reasonable person in the employee’s position would have felt that he was forced to quit be
*1166
cause of intolerable and discriminatory working conditions.’ ”
Watson v. Nationwide Ins. Co.,
This standard was applied in
Young v. Southwestern Savings and Loan Ass’n,
The district court entered judgment in favor of the employer on the basis that the plaintiff had voluntarily resigned. However, the Fifth Circuit reversed, finding that the plaintiff had presented sufficient evidence to establish that she was constructively discharged. The court held that the plaintiff could have reasonably inferred that she would eventually be discharge for failing to attend the company meetings and that she was not required to wait to be fired before terminating her association with her employer.
Id.
at 144.
See also Nolan v. Cleland,
E. Punitive Damages
Plaintiff seeks punitive damages on both his federal and state law claims. Under Title VII, as amended, a plaintiff may recover punitive damages where an employer has acted with “malice or reckless indifference to the federally protected rights
of an
aggrieved individual.” 42 U.S.C. § 1981a(b)(l). As the Supreme Court explained in
Kolstad v. American Dental Association,
the reckless indifference standard requires that “an employer must at least discriminate in the face of a perceived risk that its actions will violate federal law to be liable in punitive damages.”
Plaintiff also seeks punitive damages on his state law claims. The California Supreme Court has held that “in a civil action under the FEHA, all relief generally available in noncontractual actions, including punitive damages, may be obtained.”
Commodore Home Systems, Inc. v. Superior Court,
IY. CONCLUSION
For the reasons stated above, Defendants’ Motion for Summary Judgment, Or In The Alternative, Motion For Partial Summary Judgment, is DENIED.
IT IS SO ORDERED.
Notes
. In summarizing the facts, the Court has relied upon undisputed facts whenever possible. Where the facts are in dispute, the Court has drawn all inferences in favor of Plaintiff.
See Yartzoff v. Thomas,
. Both Plaintiff and Defendants rely upon Plaintiff's deposition in the earlier filed state court action, which was dismissed without prejudice. The Court relies on this deposition testimony as well, without reaching Defendants’ request for judicial notice. Pursuant to Fed.R.Civ.P. 56(c), the court may rely upon "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits” in considering a motion for summary judgment. Deposition testimony from a state court action is at least as reliable as a sworn affidavit and therefore, to the extent that the content of the deposition testimony is otherwise admissible, that testimony is admissible on summary judgment.
See Curnow v. Ridgecrest Police,
. There is conflicting evidence in the record on the issue of whether Pierce was aware that Plaintiff was a homosexual when she hired him. In particular, Plaintiff testified in his deposition that Pierce referred to Plaintiff’s "significant other” as "her” during the interview and that Plaintiff did not correct Pierce's apparent assumption that his "significant other” was a woman. Erdmann Depo. at 29, Exh. 1 to Moss Decl. On the other hand, Pierce testified in her deposition that she understood at the interview that Plaintiff was a homosexual because he referred to his significant other as "him.” Deposition of Velda Pierce ("Pierce Depo.”) at 69, Exh. 2 to Moss Decl.; see also Declaration of Velda Pierce in Support of Defendant’s Motion For Summary Judgment Or, In The Alternative, Partial Summary Judgment at ¶ 2. While this may be an issue for trial, the Court assumes for the purposes of this motion that Pierce was aware that Plaintiff was a homosexual when she hired him, as the parties have agreed.
. A court may grant summary judgment on a Title VII and FEHA harassment claims on the basis that no reasonable jury could find the defendant's conduct severe of pervasive.
See., e.g., Kortan v. California Youth Authority,
. Defendants argue that Plaintiff's failure to tell Pierce "how he felt and how he wanted to proceed,” as Herebia had done, shows that he could not have been subjected to a hostile *1163 work environment. Motion at 15. Indeed, Plaintiff testified in his deposition that he became aware while still employed by San Miguel Villa that Herebia had told Pierce that he had a right to be openly gay at work. Erdmann Depo. at 108, Exh. 1 to Moss Deck On the other hand, while Herebia testified in his deposition that Pierce conceded that he had a right to be openly gay at work, there is no evidence in the record that Plaintiff had any knowledge of this aspect of Herebia’s conversation with Pierce. Herebia Depo. at 8, Exh. 5 to Ku Decl. Rather, Plaintiff testified that Herebia did not tell him how Pierce had responded when he told her he would not “go back in the closet.” Erdmann Depo. at 108, Exh. 1 to Moss Deck Whether or not Plaintiff’s reaction to Pierce’s conduct was reasonable in light of his awareness of Herebia’s conversation with Pierce may be an issue at trial. At this stage in the proceeding, however, the Court cannot say that Plaintiff's failure to assert his rights in the manner that Here-bia did shows that Plaintiff was not, as a matter of law, subjected to a hostile work environment.
. Defendants assert that punitive damages cannot be awarded here because Pierce’s actions were well-intentioned and because she viewed Plaintiff as a friend and was concerned about his eternal salvation. However, Defendants have presented no authority in support of the proposition that punitive damages may not be awarded where an employer’s discriminatory conduct was motivated by concern for the employee’s salvation rather than animosity.