Opinion
Patrick C. Kelley was an apprentice ironworker employed by respondent The Conco Companies (Conco). He complained that he was subjected to a barrage of sexually demeaning comments and gestures by his male supervisor, and later to similar comments by male coworkers, and that he was also subjected to physical threats by coworkers in retaliation for his complaints about his supervisor. Kelley’s employer changed his worksite to separate him from his harassers, but Kelley was later suspended by his union from its apprenticeship program, rendering him ineligible for employment.
I. Background
In October 2007, Kelley sued Conco and David Seaman (collectively, Defendants) for sex discrimination and sexual harassment in violation of FEHA (§ 12940); retaliation; termination in violation of public policy; failure to prevent discrimination; intentional infliction of emotional distress; and negligent infliction of emotional distress. Defendants moved for summary judgment. We summarize the evidence offered in support of and opposition to summary judgment, construing Kelley’s evidence liberally and Defendants’ evidence narrowly and drawing, as we must, all reasonable inferences in favor of Kelley. (Nazir v. United Airlines, Inc. (2009)
The Emeryville Jobsite Incidents
Conco is one of the largest concrete construction companies in California. Kelley was an apprentice ironworker with Ironworkers Union Local 378 (Local 378) and Conco was a union shop. To get work, Kelley would contact companies such as Conco directly and, once hired, he would inform the union and obtain a dispatch slip.
On July 28, 2006, Kelley was hired as an apprentice ironworker at Conco and began working at a jobsite in Emeryville with Seaman as his supervisor. On about July 30, 2006,
Kelley confronted Seaman and said Seaman was “fucking gay.” Seaman responded angrily and “puffed up,” took off his tool bag and said he was going to “kick [Kelley’s] ass.”
Kelley remained on the job, ate lunch on the jobsite and did not interact with anyone. After lunch, Kelley spoke to Conco field safety manager Joseph Anthony Gallegos, Jr., for 20 to 30 minutes and told him “exactly what happened.”
On the afternoon of the Seaman incident, two coworkers called Kelley a “bitch” and one “got in [Kelley’s] face” and “talk[ed] shit” to him. Seaman twice told them to leave Kelley alone, but Kelley heard them continue to say they were going to jump him after work. When Kelley got home, he called the Conco dispatcher, Scott Nava, asked to be assigned to a different jobsite, and explained why. Nava agreed and told him to report the next day to a Vallejo worksite.
Kelley’s Work in Vallejo and Redwood City
After leaving the Emeryville jobsite, Kelley worked on a Conco job in Vallejo for two days. On both days coworkers called him a “bitch,” “faggot,” and “narc” or “snitch” for complaining and two of them told him he would be lucky if he did not get his ass beat after work. A supervisor was within earshot but ignored the comments. Kelley reported the incident to Nava at the end of the day and Nava said, “ ‘Well, that’s the way the trade is, man. That’s just the way these guys are.’ ”
A week or two after the Emeryville job, Seaman called Kelley and asked if he wanted a ride to a Conco job in Redwood City. Kelley accepted the ride because he was afraid he would lose his job if he declined. Seaman was not Kelley’s supervisor on that job, and Kelley worked there for three or four days without incident. According to Seaman, Kelley’s job performance was better in Redwood City than in Emeryville.
Kelley’s Other Work for Conco
Kelley never worked with Seaman again, but he worked for Conco on other jobs over the next three months. On some jobs, he had no problems. At others, he heard remarks daily about what had happened with Seaman. He was called “punk bitch,” “snitch” or “fag,” and people would “get in his face” and would threaten to jump him after work. Kelley complained about this conduct to Scott Nava “two [to] three times a week” and asked to be removed from the jobs. Nava regularly moved him. Kelley also complained to at least one other person (“Tony”) at Conco on two or three occasions about the behavior.
Kelley was required to attend classes in order to maintain his status as a union apprentice. He wrote the union a letter asking for a day off so he could attend his brother’s wedding and handed it to union representative Dana Fairchild before a class. After Kelley took the day off (which was after the incident with Seaman), Fairchild told Kelley he never received the letter and the absence was unauthorized. Fairchild raised the issue with the apprenticeship board and on October 3, 2006, Kelley was asked to leave a Conco job to attend a board meeting on the issue. At the meeting, the board suspended him for six months.
The apprenticeship board notified Conco on October 10, 2006, that Kelley had been dropped from the program effective October 3 and was not eligible for employment or training under the terms of the union’s collective bargaining agreement with Conco. Kelley never again worked at Conco.
Kelley’s Subsequent Search for Work
After the suspension expired in about April 2007, the union told Kelley never to call or go back to Conco because there was no longer any kind of work for him there. When Kelley later tried to get work from other companies, he would be released after the first week of pay. When he asked the union why he was getting released, Fairchild “got on his case,” “yelled at him for what happened at Conco,” and said that was the reason he could not get work.
Kelley worked for short durations for other contractors including Brodhead Steel, Mission City Steel, Harris Salinas, and Shepard Steel. While working at Brodhead, Kelley’s coworkers called him a “bitch” and a “narc” and one coworker who said he was a friend of Seaman’s told Kelley he was a “punk for doing what [he] did.” There were three incidents at Brodhead involving two workers. Kelley was fired from the Harris Salinas job because he tested positive for marijuana. The company told him to check back for work in a few months, but he was never rehired. Kelley’s boss at Shepard said he wanted to keep Kelley, saying Kelley was a good worker, but told Kelley “the guys upstairs” did not think he was going to work out so he was let go.
Kelley’s Resignation from the Union
Kelley said that by October 2007, he was suffering a deep depression and did not want to go back to ironworking. He asked the union for a six-month
Trial Court Rulings
At the hearing on the summary judgment motion, the court summarized its understanding of the evidence as follows. “[D]istilling as best I can[,] ... all of a sudden, on one day, [Seaman] goes ballistic and gets so mad at Mr. Kelley that tie lets loose with a great volume of extremely-unpleasant, ugly, sexually-ladened language and that that provokes something of a confrontation, in which [Kelley] challenges [Seaman] and the two of them square off, but, for some reason, no physical altercation ensues. And then, you know, things kind of go back to being more or less normal. [][] . . . There doesn’t appear to be any kind of a pervasive nature of this conduct[.] [f] The question in my mind is, is the incident in and of itself so severe, ... so inherently destructive of [Kelley’s] work environment that in and of itself it should be considered sexual harassment? . . . [T]hat’s really the only question I have.” After hearing argument, the court took the matter under submission and subsequently issued a written order granting summary judgment to Defendants.
II. Discussion
A. Summary Judgment Standard
Summary judgment is appropriate “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “[T]he 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. . . . There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001)
An order granting summary judgment is reviewed de novo. (Aguilar, supra,
B. Sexual Harassment and Sex Discrimination Cause of Action
FEHA’s “ ‘prohibition against sexual harassment includes protection from a broad range of conduct, ranging from expressly or impliedly conditioning employment benefits on submission to or tolerance of unwelcome sexual advances, to the creation of a work environment that is hostile or abusive on the basis of sex.’ [Citation.]” (Lyle v. Warner Brothers Televison Productions (2006)
“The elements of such a cause of action are: ‘(1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment
Kelley argues the trial court erred both in ruling that the evidence did not support an inference that he was harassed because of his sex, and in ruling that the harassment was not severe or pervasive enough to amount to an adverse employment action actionable under FEHA.
1. Discrimination Based on Sex
The sine qua non of any sexual harassment claim is that the plaintiff suffered discrimination because of sex. (Lyle, supra, 38 Cal.4th at pp. 279-280; Oncale v. Sundowner Offshore Services, Inc. (1998)
In Oncale, the United States Supreme Court held that sexual harassment within the meaning of title VII could occur between members of the same sex as long as the plaintiff could establish that the harassment amounted to discrimination because of sex. (Oncale, supra, 523 U.S. at pp. 79-80.) We have no difficulty concluding that the same rule applies to FEHA actions, as our sister courts have held both before and after Oncale was decided. (Mogilefsky v. Superior Court (1993)
Oncale suggests alternative “evidentiary route[s]” that could support an inference that same-sex harassment was discrimination because of sex. (Oncale, supra, 523 U.S. at pp. 80-81.) An inference of discrimination may be “easy to draw” in male-female sexual harassment situations where there are explicit or implicit proposals of sexual activity, and “[t]he same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual.” (Id. at p. 80.) An inference of discrimination on the basis of sex could be drawn where, for example, “a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser was motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff [might] also . . . offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.” (Id. at pp. 80-81.)
While we agree with Kelley’s assertion that these are not necessarily the exclusive means of establishing that inference, “[w]hatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimina[tion] . . . because of . . . sex.’ ” (Oncale, supra,
The statements made to Kelley were crude, offensive and demeaning, as it was evident that they were intended to be. No evidence, however, was presented from which a reasonable trier of fact could conclude that they were an expression of actual sexual desire or intent by Seaman, or that they resulted from Kelley’s actual or perceived sexual orientation. The mere fact that words may have sexual content or connotations, or discuss sex, is not sufficient to establish sexual harassment. (Lyle, supra, 38 Cal.4th at pp. 279-280.) “[W]hile the use of vulgar or sexually disparaging language may be relevant to show discrimination, it is not necessarily sufficient, by itself, to establish actionable conduct.” (Id. at p. 281.)
Courts have routinely insisted on evidence that an alleged harasser was acting from genuine sexual interest before holding that the fact of a sexual proposition supported an inference of discrimination because of sex. (Davis v. Coastal Intenat. Security, Inc. (D.C. Cir. 2002) 348 U.S. App.D.C. 375 [
Kelley cites Singleton, supra,
The Singleton court found evidence that Singleton was disparately treated because of bis sex because the statements “targeted Singleton’s heterosexual identity, and attacked it by and through their comments” thereby treating him “ ‘differently’ ” than they would have treated a woman. (Singleton, supra,
We respectfully disagree. Singleton finds that the gender-specific nature of the harassment establishes disparate treatment based on sex. Singleton’s reasoning inevitably leads to the conclusion that any hostile, offensive and harassing comment or conduct, with or without sexual content or innuendo, made to one gender and which would not be made to the other, would constitute discrimination because of sex within the scope of FEHA. (Singleton,
While Kelley was undoubtedly subjected to grossly offensive comments and conduct, he did not produce evidence which would support a claim that he suffered discrimination in the workplace because of his gender.
2. Severe and Pervasive Harassment
Since we find that Kelley failed to meet his burden of establishing sex-based discrimination, we need not address the trial court finding that he also failed to establish that the conduct was “ ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” (Harris v. Forklift Systems, Inc., supra,
“[T]o establish liability in a FEHA hostile work environment sexual harassment case, a plaintiff employee must show [he] was subjected to sexual advances, conduct, or comments that were severe enough or sufficiently pervasive to alter the conditions of [his] employment and create a hostile or abusive work environment. [Citations.]” (Lyle, supra,
We believe the trial court correctly determined that Kelley failed to establish that he was subjected to a sexually discriminatory environment that altered the conditions of his employment. We affirm the trial court’s summary adjudication of the sexual harassment claim in favor of Defendants.
C. Failure to Prevent Sexual Harassment
The trial court granted summary adjudication to Conco on Kelley’s claim for failure to prevent sexual harassment because Kelley “failed to show that he was subjected to unlawful sexual harassment while employed by Conco. See Carter v. California Dept. of Veterans Affairs (2006)
D. Retaliation
The trial court granted summary adjudication of Kelley’s claim for retaliation under section 12940, subdivision (h) because Kelley “failed to present sufficient evidence to create a triable issue of material fact regarding the contention that he was subjected to an adverse employment action by Defendants because he complained about Seaman’s misconduct to Joseph Gallegos and/or other managers of Conco. [Kelley] has completely failed to show that Conco’s assertion that it had no choice but to terminate [his] employment on or about November 8, 2006, because he was dropped from the ironworkers apprenticeship program was pretextual. [Kelley’s] contention that Conco now refuses to hire him after he was reinstated to the apprenticeship program because he has been blacklisted is not supported by any admissible evidence.”
It is an unlawful employment practice for an employer to “discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part . . . .” (§ 12940, subd. (h) (section 12940(h)).) “[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘ “ ‘drops out of the picture,’ ” ’ and the burden shifts back to the employee to prove intentional retaliation. [Citation.]” (Yanowitz, supra,
2. Protected Activity
“It is well established that a retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited by the FEHA. [Citations.] [f] Strong policy considerations support this rule. Employees often are legally unsophisticated and will not be in a position to make an informed judgment as to whether a particular practice or conduct actually violates the governing antidiscrimination statute. A rule that permits an employer to retaliate against an employee with impunity whenever the employee’s reasonable belief turns out to be incorrect would significantly deter employees from opposing conduct they believe to be discriminatory. [Citations.]” (Yanowitz, supra,
Moreover, a mistake of either fact or law may establish an employee’s good faith but mistaken belief that he or she is opposing conduct prohibited by FEHA. (Miller, supra,
We conclude Kelley has produced sufficient evidence to support an inference that he engaged in protected activity within the meaning of FEHA when he complained of Seaman’s conduct.
3. Adverse Employment Action and Causal Link
Section 12940(h) provides that it is an unlawful employment practice for an employer “to discharge, expel, or otherwise discriminate against any person” because the person opposed prohibited conduct. The term “otherwise discriminate” refers to and encompasses the same forms of adverse employment activity that are actionable under section 12940, subdivision (a)’s prohibition against discrimination because of sex. (Yanowitz, supra, 36 Cal.4th at pp. 1050-1051.) Creation or tolerance of a hostile work environment for an employee in retaliation for the employee’s complaining about prohibited conduct is an adverse employment action within the meaning of section 12940(h). (Yanowitz, at pp. 1052-1053.) Moreover, an employer’s alleged retaliatory responses may be considered collectively to determine whether the employee was subjected to an adverse employment action under section 12940(h). (Yanowitz, at pp. 1055-1056.)
Kelley argues that his termination from Conco upon his suspension from the union and Conco’s failure to rehire him following his suspension were adverse employment actions taken in retaliation for his complaints about
a. The Union Suspension
Kelley produced evidence that union representative Fairchild fabricated reasons for Kelley’s suspension from the union in October 2006. However, Kelley fails to present any evidence that would support an inference that Conco caused his union to suspend him from its apprenticeship program. Kelley cites only Fairchild’s hostile comments about Kelley’s complaints about Conco, and Jeffrey Thomas’s admission that he spoke to the union about Kelley’s suspension. He also notes that Thomas was a longtime union member. But Thomas was the superintendent of the Conco ironworkers, Fairchild was the apprentice coordinator for the union, and Kelley was the only Conco employee on the union list of dropped apprentices. It was Thomas’s responsibility to then let the job foreman know that an apprentice was ineligible to work. Kelley makes no showing that any communication between Thomas and Fairchild on his union status was unusual or suspicious, and offers nothing more than speculation that the union’s action was at Conco’s behest. Whatever Fairchild’s motivation, nothing Kelley presented would support an inference of collusion or management involvement in the union suspension.
Kelley raises no triable issue about whether Conco caused the union to suspend him in retaliation for Kelley’s complaints about harassment, and he acknowledges that he was ineligible for continued employment after that suspension. He therefore fails to show that Conco’s basis for terminating him was pretextual.
b. Failure to Rehire
Kelley also argues that Conco’s failure to rehire him after the expiration of his suspension was in retaliation for his complaints about sexual harassment.
c. Retaliatory Harassment
Kelley’s final claim of retaliation is for continuing harassment at Conco worksites following his complaint about Seaman’s harassment, including express references to Kelley’s complaints about Seaman and threats of retaliatory violence. Kelley’s evidence established a clear inference that he was subjected to retaliation by at least some of his coworkers as a result of his complaints against Seaman. Not only did the threatening statements allude to Kelley’s prior complaint, but as Mark Benedet, Conco’s superintendent of carpenters and Seaman’s supervisor at the Emeryville jobsite testified, in the construction trades news of altercations between a supervisor and an employee passes “around the whole community.” In fact, Kelley alleged that he heard similar comments, and received similar threats, from coworkers on other non-Conco jobsites on three occasions.
Mere ostracism in the workplace is insufficient to establish an adverse employment decision. (Brooks v. City of San Mateo (9th Cir. 2000)
Section 12940(h) does not specifically address whether an employer can be held liable for retaliation by nonmanagement employees. Few California courts have considered the issue. In Birschtein v. New United Motor Manufacturing, Inc. (2001)
While no evidence was presented here that any Conco supervisory personnel orchestrated retaliatory action against Kelley, he did aver that he complained about this conduct to Scott Nava “two [to] three times a week” and at least one other person (“Tony”) at Conco on two or three occasions about the behavior.
We agree that an employer may be found to have engaged in an adverse employment action, and thus liable for retaliation under section 12940(h), “by permitting . . . fellow employees to punish [him] for invoking [his] rights.” (Knox, supra, 93 F.3d at p. 1334.) We therefore hold that an employer may be held liable for coworkers’ retaliatory conduct if the employer knew or should have known of the coworkers’ retaliatory conduct and either participated and encouraged the conduct, or failed to take reasonable actions to end the retaliatory conduct.
Kelley has raised triable issues as to whether coworkers engaged in retaliatory harassment sufficiently severe to constitute an adverse employment action, whether Conco had actual or constructive knowledge of the improper conduct, and whether it took appropriate action in response. Summary adjudication of this cause of action was therefore improper.
E. Termination in Violation of Public Policy
The trial court granted summary adjudication to Conco on Kelley’s claim for termination in violation of public policy because Kelley “failed to show that Conco’s assertion that it terminated his employment on November 8, 2006 because he was dropped from the ironworkers apprenticeship program was false or against the public, policy of the State of California as expressed through its statutes and regulations.”
Sex discrimination in employment may support a claim of tortious discharge in violation of public policy. (Rojo v. Kliger (1990)
Kelley does not cite legal authority that an employer is liable in tort for failing to rehire an employee in violation of public policy. (Cf. Daly v. Exxon Corp. (1997)
We affirm the trial court’s grant of summary adjudication of this claim.
E Intentional Infliction of Emotional Distress
The trial court granted summary adjudication to Conco on Kelley’s claim for intentional infliction of emotional distress, explaining, “Although the Court does not accept Defendants’ contention that failure of the First Cause of Action [for sexual harassment] precludes the possibility that [Kelley] can prevail on the Fifth Cause of Action [for intentional infliction of emotional distress], the Court does not find sufficient evidence in the record to support [Kelley’s] assertion that the conduct of Seaman and other Conco employees was ‘so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ See Garamendi v. Golden Eagle Ins. Co. (2005)
“A cause of action for intentional infliction of emotional distress exists when there is ‘ “ ‘ “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” ’ ” ’ [Citations.] A defendant’s conduct is ‘outrageous’ when it is so ‘ “ ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ” ’ [Citation.] And the defendant’s conduct must be ‘ “ ‘intended to inflict injury or engaged in with the realization that injury will result.’ ” ’ [Citation.] [f] Liability for intentional infliction of emotional distress ‘ “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” [Citation.]’ [Citations.] If properly pled, a claim of sexual harassment can establish ‘the outrageous behavior element of a cause of action for intentional infliction of emotional distress.’ (Fisher v. San Pedro Peninsula Hospital (1989)
“An employer is liable for the wilful and malicious torts of its employees committed in the scope of employment. [Citation.]” (Fisher v. San Pedro Peninsula Hospital, supra,
As the trial court observed, the context in which Seaman’s behavior occurred is significant. In the environment in which Kelley was employed, profanity, vulgarity and sexual taunting were commonplace and apparently generally accepted. Whether Seaman’s behavior in that setting would be considered “so extreme as to exceed all bounds of that usually tolerated in a civilized community” is at least arguable. But even if we assume for purposes of argument that Seaman’s conduct was sufficiently extreme and outrageous behavior to be actionable, we conclude Kelley cannot establish an intentional infliction tort claim because the record does not support an inference that he suffered severe emotional distress as a result of that harassment.
Although a reasonable fact finder could find that Kelley ultimately suffered serious distress,
The grant of summary judgment is reversed. Summary adjudication of the second cause of action is reversed. Summary adjudication of all other claims is affirmed. The parties shall bear their own costs on appeal.
Jones, P. J., and Simons, J., concurred.
Notes
All statutory references are to the Government Code unless otherwise indicated.
The record is unclear about which dates and for how many days Kelley worked on the Emeryville job. Kelley testified that he worked two days at Emeryville and that the main incident with Seaman occurred on the second day. He also testified that he drove himself back and forth from work each day he worked at Emeryville. Seaman testified that Kelley worked at Emeryville four days and that the main incident occurred on Kelley’s fourth workday. Seaman also testified that he drove Kelley back and forth from work on two of Kelley’s four workdays at Emeryville. In his response to Defendants’ statement of undisputed material facts, Kelley did not dispute that he worked at Emeryville for four days, despite his contradictory testimony. However, Robyn Read, a Conco human resources assistant responsible for maintaining the company’s personnel records, averred that Kelley was hired on July 28, 2006, and Gallegos averred that he spoke to Seaman and Kelley at the Emeryville jobsite on July 30, 2006. Both Seaman and Kelley stated that Gallegos spoke to them at the jobsite on the same day as the incident between Seaman and Kelley.
Seaman knew that fighting would be a basis for termination for both him and Kelley.
The parties dispute how the matter came to Gallegos’s attention. Kelley testified that a coworker had expressed concern to Kelley about the incident and Kelley saw that coworker talk to Gallegos before Gallegos spoke to Kelley. Gallegos and Seaman testified and averred that Seaman asked Gallegos to come to the jobsite so he could observe Kelley’s slow and inefficient job performance. Gallegos said he spoke to Seaman both before and after he talked to Kelley, but Seaman testified at his deposition that he spoke to Gallegos only after Kelley had already spoken to him.
Fairchild later told Kelley he found the letter. The suspension was not reversed, however.
As noted, Kelley’s first cause of action is based on both section 12940, subdivision (a)’s prohibition against discrimination because of sex and section 12940, subdivision (j)(l)’s prohibition against harassment because of sex. These are distinct causes of action that require different showings by plaintiff. (See Roby v. McKesson Corp. (2009)
“Because FEHA is considered a counterpart of the federal antidiscrimination statute (42 U.S.C. § 2000e et seq.), federal decisions construing the latter may be relied on when interpreting FEHA. [Citation.]” (Dominguez v. Washington Mutual Bank (2008)
The threatening comments Kelley says were made by two coworkers later in the day on July 30 were apparently related to an argument about cigarettes, rather than to any altercation between Kelley and Seaman. As we discuss post, although Kelley points to continuing verbal harassment by coworkers “talking shit” to him at other jobsites at later dates, those statements expressed apparent anger at Kelley and hostility for being a perceived “snitch” and “narc” for complaining about Seaman. Kelley quotes coworkers on other dates as referring to him as a “bitch.” “[T]he term ‘bitch’ is not so sex-specific and derogatory that its mere use necessarily constitutes harassment because of sex.” (Lyle, supra,
None of Kelley’s managers or supervisors was trained on sexual harassment or discrimination until after Kelley filed his lawsuit. All agreed, based on their postlawsuit training, that Seaman’s and other employees’ sexual comments violated company policy.
But see Hamm v. Weyauwega Milk Products, Inc. (7th Cir. 2003)
In the trial court, Kelley argued that Conco caused him to be blacklisted in the ironworker industry following the expiration of his union suspension, but he does not reassert this claim on appeal.
Section 12940(h) affords employees who engage in protected activities protection the same range of protection from adverse employment actions that are prohibited by section 12940,
At oral argument, counsel for Conco argued that Nava was merely a “dispatcher” and not a supervisor whose knowledge could be imputed to Conco. For purposes of summary judgment, the evidence established that Nava had sufficient supervisory authority to redirect employees to alternative job locations at his discretion. While Kelley would have the burden of proof on this issue at trial, on summary judgment the defendant “must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not . . . .” (Aguilar, supra,
Kelley said that he experienced stress, sexual impotence, fatigue, overeating, short temper, withdrawal, bouts of crying, depression, and sleeplessness for which he took medication.