Court Of Appeals Rules In Favor Of Karl Gerber On Sexual Harassment Case

California Rules of Court, rule 8.1115, restricts cita-tion of unpublished opinions in California courts.

Court of Appeal, Second District, Division 7, Califor-nia.

Anita ORTEGA, Plaintiff and Appellant,

v.

INTER-CON SECURITY, INC., Defendant and Re-spondent.

No. B168761.

(Los Angeles County Super. Ct. No. BC274626).

March 15, 2004.

APPEAL from a judgment of the Superior Court of Los Angeles County. Richard Fruin, Judge. Reversed with directions.

Danz & Gerber, Karl Gerber and Stephen Danz for Plaintiff and Appellant.

Gutierrez, Preciado & House, Calvin House, Nohemi Gutierrez Ferguson and Sara S. Petit for Defendant and Respondent.

JOHNSON, J.

*1 Plaintiff Anita Ortega brought this action against her former employer, Inter-Con Security, Inc.,seeking damages for sexual harassment by a former employee, Kim Sieng. The complaint alleges sexual harassment in violation of the Fair Employment and Housing Act (FEHA) and the California Constitution, common law assault and battery, sex-ual battery under Civil Code section 1708.5 and in-tentional infliction of emotional distress. The trial court granted Inter-Con’s motion for summary judgment on the grounds: (1) Sieng’s conduct was not sufficiently severe or pervasive to create a hostile work environment; (2) Inter-Con was not vicariously liable under the FEHA for Sieng’s conduct because he was not her supervisor; (3) Inter-Con took prompt and effective corrective action to prevent future harassment after it received notice of Sieng’s conduct and (4) Sieng’s conduct was outside the scope of his employment.FN1 For the reasons explained below, we conclude there are triable issues of material fact as to Ortega’s cause of action for sexual harassment in violation of the FEHA but there are no triable issues of fact, and Inter-Con is entitled to summary adju-dication, as to the causes of action for assault, bat-tery and intentional infliction of emotional distress.

FN1. The trial court also held Ortega could not state a cause of action for sexual har-assment under the California Constitution. Ortega does not challenge this ruling.

FACTS AND PROCEEDINGS BELOW

Because this is an unreported opinion and the parties are familiar with the facts, we dispense with their recitation here. To the extent they are relevant we discuss the facts in our resolution of the issues below.

DISCUSSION

I. TRIABLE ISSUES OF FACT EXIST AS TO WHETHER SIENG’S CONDUCT WAS SUFFI-CIENTLY SEVERE OR PERVASIVE TO CREATE A HOSTILE WORK ENVIRONMENT.

To succeed on a claim of sexual harassment based on the creation of a hostile work environment the plaintiff must show the harassment was suffi-ciently severe or pervasive as to alter the conditions of employment and create an abusive work envi-ronment.FN2 “[T]he question of whether or not there is a hostile work environment must be determined from the totality of the circumstances.” FN3 Those circum-stances include “(1) the nature of the unwelcome sexual acts or words (with physical touching general-ly considered more offensive than mere words); (2) the frequency of the offensive acts or encounters; (3) the total number of days over which all the offensive conduct occurred; and (4) the context in which the sexually harassing conduct occurred.” FN4

FN2. Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 149 (hereafter Herberg ).

FN3. Sheffield v. Los Angeles County Dept. of Social Services (2003) 109 Cal.App.4th 153, 162.

FN4. Herberg, supra, 101 Cal.App.4th at page 150.

The following facts are undisputed.

At the time of the events triggering this lawsuit Ortega was a security guard employed by Inter-Con which had a contract to provide security services at the Tarzana Regional Medical Center. Sieng was her shift supervisor. David Jones was the post com-mander and Sieng’s immediate supervisor.

During a period of approximately two weeks in December 2001 Sieng engaged in the following unin-vited and unwelcome conduct toward Ortega. On at least three occasions Sieng told Ortega “I want to lick you from head to toe.” On one occasion Sieng put his arm around Ortega’s neck. After Ortega pushed Sieng away he told her: “I want to get into those panties” and “I want to be in those panties.” On another day Sieng slapped and grabbed at Ortega’s buttocks and on a different day he “poked” her buttocks with the antenna of his walkie-talkie. The final incident oc-curred on an elevator. Sieng followed Ortega on to the car and after the doors closed he began doing a “dance move” in front of her. He then pressed his chest against Ortega’s and grabbed her buttocks. A day or two after the elevator incident Sieng was fired-not for harassing Ortega but for grabbing the buttocks of a high school Christmas caroler in the hospital lobby.

*2 The trial court found as a matter of law these facts were insufficient to establish severe or perva-sive sexual harassment. Applying our independent review,FN5 we hold a reasonable trier of fact could find Sieng’s conduct both severe and pervasive.

FN5. Herberg, supra, 101 Cal.App.4th at page 148.

In a case involving sexual harassment of a woman, the severity of the conduct is viewed from the standpoint of a reasonable woman.FN6 The more frequent the conduct the more likely it is to be con-sidered severe.FN7 And, as previously mentioned, physical touching is generally considered more of-fensive than mere words.FN8

FN6. Fisher v. San Pedro Peninsula Hospi-tal (1989) 214 Cal.App.3d 590, 609, foot-note 7.

FN7. See Ellison v. Brady (9th Cir.1991) 924 F.2d 872, 878.

FN8. Herberg, supra, 101 Cal.App.4th at page 150.

Here Sieng’s conduct included both physical touching and offensive language. On several occa-sions he rubbed up against Ortega’s chest, slapped her on the buttocks, put his arm around her neck and poked her with a walkie-talkie antenna.FN9 On other occasions he told Ortega “I want to lick you from head to toe” and “I want to get into those panties.”

FN9. Compare Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 409 [up-holding jury verdict for sexual harassment where supervisor “touched [plaintiff’s] breast and crotch and … regularly pinched her buttocks”]; and see Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 998-999 [supervisor engaged in sexual harassment when he touched trainee “on the back and front of her thighs three or more times” and “grabbed or slapped [an-other trainee] on the buttocks]; Davis v. Continental Airlines, Inc. (1997) 59 Cal.App.4th 205, 208 [supervisor rubbed against plaintiff’s buttocks and grabbed her breast].

This conduct took place over a relatively short time period, a few weeks, and occurred on the job. The physical nature of Sieng’s harassment escalated from putting his arm around Ortega in a public place to pressing his body against hers and grabbing her buttocks while the two of them were alone in an ele-vator.

It is difficult to believe any reasonable woman would not find such behavior severely offensive. Clearly Ortega found it so because she complained to Jones, Inter-Con’s supervisor at the hospital, on at least two occasions in the two week period and asked to be transferred to a different shift because, she tes-tified, “I couldn’t stand working with him.”

Based on these facts a jury could reasonably determine Ortega’s conditions of employment were drastically changed by Sieng’s behavior and she was in a hostile work environment.

II. A TRIABLE ISSUE OF FACT EXISTS AS TO WHETHER SIENG WAS ORTEGA’S SUPERVISOR.

“[U]nder the FEHA, an employer is strictly liable for all acts of sexual harassment by a supervisor.” FN10

FN10. State Dept. of Health Services v. Su-perior Court (2003) 31 Cal.4th 1026, 1042 (italics in original). An employer may, how-ever, plead as an affirmative defense to damages the employee acted unreasonably in not reporting the harassment to the em-ployer. (Id . at p. 1034.) This “avoidable consequences” defense is not before us in the current appeal which only pertains to Inter-Con’s liability.

The FEHA defines a supervisor as “any individ-ual having the authority, in the interest of the em-ployer, to hire, transfer, suspend, lay off, recall, pro-mote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if in connection with the foregoing, the exercise of that authority … requires the use of inde-pendent judgment.” FN11

FN11. Government Code section 12926, subdivision (r) (italics added).

The FEHA definition of supervisor is obviously quite broad. Just how broad, California courts have yet to determine.

One treatise on the FEHA comments the power to direct an employee’s work activities “arguably means that a foreperson or lead worker, who other-wise would not be considered part of management, may be regarded as a ‘supervisor’ for whose mis-conduct the employer is strictly liable.” FN12 Under EEOC guidelines for title VII cases, an employer may be liable for harassment by a “supervisor” even if the harasser is outside the employee’s actual chain of command so long as the employee reasonably be-lieves the harasser has supervisory power over her.FN13

FN12. Chin et al., Cal. Practice Guide: Em-ployment Litigation (The Rutter Group 2003) Paragraph 10:319, page 10-46, (rev. # 1 2003) (hereafter Employment Litigation).

FN13. EEOC, Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 1999), Paragraph III.B, quoted in Employment Litigation, supra, Paragraph 10:322, page 10-47. In Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at page 607 we found EEOC guidelines for title VII to be a relevant source of guidance in inter-preting the FEHA.

*3 Conversely, employees whose “supervisory” roles are limited to scheduling other employees’ cof-fee breaks or deciding whose turn it is to go pick up a pizza probably do not exercise the supervisory power contemplated by the Legislature under the FEHA.FN14

FN14. See Babbitt Engineering & Machin-ery v. Agricultural Labor Relations Bd. (1984) 152 Cal.App.3d 310, 327-328 [em-ployee whose duties involved supervising the loading of plants had no supervisory authority under the Agricultural Relations Act which defines a supervisor in the same terms as the FEHA].

In the present case it is undisputed an Inter-Con shift supervisor, such as Sieng, had no power to fire, demote, suspend, lay off or transfer employees, adjust their grievances or evaluate their performances. On the other hand Jones, Inter-Con’s post com-mander at the hospital, testified at his deposition shift supervisors can and have recommended a secu-rity guard be terminated or disciplined.FN15 Shift su-pervisors can also impose discipline. Jones further testified Sieng had the authority to direct the activi-ties of the security guards on his shift. He recalled a time prior to the harassment incidents when Ortega complained to him about the way Sieng was super-vising her and the other employees on her shift. He told Ortega “something to the effect that ‘Whether you agree or disagree with, you know, his decision, you know, abide by it. Then if you have a complaint … come to me.” According to Jones, the shift super-visor was “in charge” when Jones was not on duty.

FN15. Inter-Con submitted no evidence on the weight management gave these recom-mendations.

Ortega testified she viewed Sieng as her supervi-sor. Jones’s testimony summarized above supports her view. In particular it suggests in directing the ac-tivities of the other guards on his shift Sieng was au-thorized to use his independent judgment.

We conclude the evidence submitted on the mo-tion for summary judgment raises a triable issue of fact as to whether Sieng was Ortega’s supervisor.

III. TRIABLE ISSUES OF FACT EXIST AS TO WHETHER INTER-CON KNEW OR SHOULD HAVE KNOWN OF SIENG’S CONDUCT AND FAILED TO TAKE IMMEDIATE AND APPROPRIATE CORREC-TIVE ACTION.

Even if a jury determines Sieng was not Ortega’s supervisor, Inter-Con could still be liable for his har-assment if it, or its supervisor Jones, knew or should have known of Sieng’s conduct and failed to take “immediate and appropriate corrective action.” FN16

FN16. Government Code section 12940, subdivision (j)(1); Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132, 1136-1137; Sheffield v. Los Angeles County Dept. of Social Services, supra, 109 Cal.App.4th at page 164.

Evidence in the present case shows Ortega first complained to Jones about Sieng’s conduct on De-cember 7th. She told Jones that Sieng was “bugging” her, “that he was getting too close” and about the incident in which Sieng poked her in the buttocks with his walkie-talkie antenna. She asked Jones to move her to a different post or a different shift. Jones responded by telling Ortega if Sieng started to make her feel uncomfortable again “tell him to back away or ‘I’m going to tell Jones.’ “ This conversation be-tween Ortega and Jones occurred approximately a week before Sieng did his elevator dance and told Ortega he wanted to “get into those panties .”

A reasonable jury could find from this evidence Inter-Con knew about Sieng’s harassment and failed to take immediate and corrective action.

Inter-Con argues nothing in Ortega’s December 7th report reasonably could have put Jones on notice Sieng was sexually harassing Ortega. If Ortega had simply reported Sieng was “bugging” her, we might agree. Ortega, however, also informed Jones that Sieng was “getting too close” and had poked her in the buttocks with the antenna of his walkie-talkie. She asked to be reassigned away from Sieng. We believe a jury could find a reasonably trained super-visor would have realized from Ortega’s statements there was at least a possibility sexual harassment was going on and further investigation was warranted.

*4 When the Legislature imposed liability for co-worker harassment in cases in which the employer “knows or should have known” about the con-duct,FN17 it did not intend to reward employers for putting their heads in the sand. To avoid creating such an incentive the Legislature also imposed liabil-ity for failing to “take all reasonable steps necessary to prevent … harassment from occurring.” FN18 A jury could find throwing the problem back in the lap of the complaining employee, as Jones allegedly did here, was not a “reasonable step” in preventing fu-ture harassment. As we all remember from our school days, the kid who whined “I’m gonna tell!” usually got picked on even more.

FN17. Government Code section 12940, subdivision (j)(1).

FN18. Government Code section 12940, subdivision (k); and see Note, Title VII Sexual Harassment: Recognizing An Em-ployer’s Non-Delegable Duty To Prevent A Hostile Workplace (1995) 95 Colum. L.Rev. 724, 737-738.

IV. ORTEGA CANNOT ESTABLISH INTER-CON IS LIABLE FOR SIENG’S ASSAULT, BATTERY AND INTENTIONAL INFLICTION OF EMOTIONAL DIS-TRESS.

There appears to be little doubt Sieng’s conduct toward Ortega constituted common law assault and battery as well as sexual battery under Civil Code section 1708.5.FN19 To impose liability on Inter-Con for such conduct, however, Ortega must be able to establish Inter-Con ratified it. She cannot.

FN19. See discussion at page 4, ante.

The question of Inter-Con’s liability for Sieng’s assault and battery does not turn on whether the as-sault and battery were committed in the course and scope of Sieng’s employment or whether Sieng was Ortega’s supervisor or simply a co-worker.

If Sieng acted outside the course and scope of his employment then his employer cannot be held vicariously liable for his intentional torts.FN20 Ortega’s cause of action for intentional infliction of emotional distress can be disposed of on this ground because the cause of action is based on conduct constituting sexual harassment and “[a]s a matter of law … sexu-al harassment is not within the scope of employment even where the harassing employee is the plaintiff’s supervisor.” FN21

FN20. Lisa M. v. Henry Mayo Newhall Me-morial Hospital (1995) 12 Cal.4th 291, 296.

FN21. Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 852; see Farm-ers Ins. Group v. County of Santa Clara, supra, 11 Cal.4th at pages 1011-1015.

If Sieng acted within the course and scope of his employment, either as a co-worker or a supervisor, then Ortega’s civil action against Inter-Con is preempted by the Workers’ Compensation Act.FN22

FN22. See Labor Code section 3600, subdi-vision (a).

In Fretland v. County of Humboldt the court held the Workers’ Compensation Act bars a civil ac-tion against an employer for the intentional torts of a co-worker.FN23 The court noted under Labor Code section 3601, subdivision (a)(1) an employee may bring a civil suit against another employee when the injury “is proximately caused by the willful and un-provoked physical act of aggression of the other em-ployee.” This exception, however, does not authorize a civil suit against the employer based on the other employee’s willful and unprovoked physical act of aggression because subdivision (b) of section 3601 states: “In no event … shall the employer be held liable, directly or indirectly, … for a liability incurred by the other employee under paragraph (1) or (2) of subdivision (a).” The court concluded, “Section 3601, subdivision (b), unambiguously prohibits imposing civil liability on an employer for one employee’s as-sault and battery of another.” FN24

FN23. Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1486-1487.

FN24. Fretland v. County of Humboldt, su-pra, 69 Cal.App.4th at page 1487.

*5 We have found no reported decision ad-dressing the question whether the workers’ compen-sation law bars a civil suit against an employer for the intentional torts of a supervisor. For the reasons discussed below, we conclude such actions are preempted.

It is clear the Workers’ Compensation Act does not bar a civil action for assault and battery against an employer. This employer exception is set forth in Labor Code section 3602, subdivision (b) which pro-vides “[a]n employee … may bring an action at law for damages against the employer, as if this division did not apply … (1)[w]here the employee’s injury … is proximately caused by a willful physical assault by the employer.” An “employer” is defined in Labor Code section 3300 as the state, a political subdivision or agency of the state, a public corporation or agency and “every person including any public service cor-poration, which has any natural person in service.” We do not believe Sieng, who was himself a “natural person in service” of Inter-Con, can be considered the employer of Ortega, another person in the service of Inter-Con.

We are aware that in Meyer v. Graphic Arts In-ternational Union another division of this district held notwithstanding the Workers’ Compensation Act an employee could state a cause of action against her employer for assault, battery and false impris-onment by the employer’s “agent.” FN25 We find Meyer distinguishable on several grounds.

FN25. Meyer v. Graphic Arts International Union (1979) 88 Cal.App.3d 176, 178.

The court in Meyer was addressing the suffi-ciency of the complaint which alleged the defendant Smith was the “agent” and “employee” of the de-fendant union. The court noted it was not its function “to speculate on the ability of a plaintiff to support, at trial, allegations well pleaded.” FN26 Here, Ortega only alleges Sieng was “employed” by Inter-Con. She does not allege Sieng was an “agent” of Inter-Con. Furthermore, the present case comes to us after the granting of a motion for summary judgment where the ability of the plaintiff to support her allegations has been tested.

FN26. Meyer v. Graphic Arts International Union, supra, 88 Cal.App.3d at page 179.

In upholding the complaint in Meyer the court relied on Magliulo v. Superior Court in which the sole defendant was the plaintiff’s “boss” who was apparently the sole proprietor of the restaurant where she worked and where her “boss” assaulted her.FN27 Thus Meyer could be read to mean the Workers’ Compensation Act does not bar a civil action against the “agent” of an employer where the agent is the employer’s “proxy.” FN28 Here, the evidence shows at most Sieng was a low-level supervisor.

FN27. Magliulo v. Superior Court (1975) 47 Cal.App.3d 760, 762-763.

FN28. See Faragher v. Boca Raton (1998) 524 U.S. 775, 789-790 [employer strictly li-able under Title VII for harassment by pro-prietor, partner, corporate officer or super-visor holding “high position ‘in the man-agement hierarchy of the company’ …”].

Finally, we believe Meyer might not be decided the same way today. The court handed down its de-cision in 1975, prior to the enactment of section 3602(b)(1) of the Labor Code, quoted above, ex-cepting from workers’ compensation preemption suits for physical assaults by employers.FN29 Had the Mey-ers court had the language of that section before it, the court might well have reached the same conclu-sion we reach in the present case.

FN29. See Statutes 1982, chapter 922, sec-tion 6.

*6 Even if Ortega’s tort claims against Inter-Con would otherwise be barred by the course-of-employment rule or workers’ compensation preemption, she can establish liability on the part of Inter-Con if she can establish the company ratified Sieng’s tortious conduct.FN30

FN30. Civil Code section 2339; Jameson v. Gavett (1937) 22 Cal.App.2d 646, 652 [rati-fication of employee’s acts outside employ-ee scope of employment]; Herrick v. Quali-ty Hotels, Inns & Resorts, Inc. (1993) 19 Cal.App.4th 1608, 1617-1618 [ratification of employee’s conduct by employer triggers the employer exception to workers’ com-pensation preemption].

In the employment context, ratification is nor-mally shown by evidence the employer failed to take any disciplinary action against the wrongdoing em-ployee after being informed of the employee’s tor-tious conduct.FN31 In the present case, Jones denies Ortega made any complaint to him about Sieng’s conduct until after Sieng had already been terminat-ed for molesting the female Christmas caroler. Given this testimony, the burden shifted to Ortega to show a triable issue of fact exists as to Jones’s ratification of Sieng’s assaultive behavior.FN32

FN31. Iverson v. Atlas Pacific Engineering (1983) 143 Cal.App.3d 219, 228 and cases cited.

FN32. Code of Civil Procedure section 437c, subdivision (p)(2).

According to Ortega’s deposition testimony, when Sieng poked her with his walkie-talkie antenna she was standing, looking at a report over Jones’s shoulder. Sieng and another security guard were also in the room. When she felt someone poke her but-tocks she said “Knock it off.” Jones turned around and, seeing Ortega rubbing her buttock, said “Hey, no touching.” In addition, Ortega testified she com-plained to Jones that Sieng was getting “too close” and “bugging” her. She made these complaints to Jones at least once and perhaps twice before Sieng was fired but neither Jones nor any other Inter-Con official took any action to discipline Sieng.

The facts show Jones responded to the antenna incident by stating to Sieng and the other security guard: “Hey, no touching.” Given the undisputed evidence this was the first and only time before Sieng was fired that Jones was aware of a battery on Orte-ga his reprimand was appropriate in the circum-stances.

Ortega argues the fact she complained to Jones that Sieng was getting “too close” to her put Jones on notice Sieng was assaulting her. Ortega’s complaint was insufficient to raise a triable issue of fact on the issue of ratification of assault. An assault is “an un-lawful attempt, coupled with present ability, to commit a violent injury on the person of another.” FN33 Nothing in Ortega’s complaint Sieng was getting “too close” would suggest to a reasonable person Sieng was attempting to commit a violent injury on Ortega’s person.

FN33. Penal Code section 240.

For the reasons set forth above, we conclude that although the evidence may be sufficient to prove Inter-Con was negligent in failing to prevent harassment, FN34 it is not sufficient to raise a triable issue of fact as to ratification of Sieng’s assault and battery.

FN34. See discussion in Part III, ante and compare Fretland v. County of Humboldt, supra, 69 Cal.App.4th at page 1491.

DISPOSITION

The judgment is reversed and the cause is re-manded to the trial court with directions to vacate its order granting summary judgment to defendant In-ter-Con and to enter a new and different order granting summary adjudication to defendant on the causes of action for assault, battery, sexual battery and intentional infliction of emotional distress. Each party to bear its own costs on appeal.

We concur: PERLUSS, P.J., and WOODS, J.

Cal.App. 2 Dist.,2004.

Ortega v. Inter-Con Sec., Inc.

Not Reported in Cal.Rptr.3d, 2004 WL 501017 (Cal.App. 2 Dist.), 69 Cal. Comp. Cases 228