GREGORY CASTILLO, Plaintiff and Appellant, v. COMMUNITY MEDICAL GROUP OF THE WEST VALLEY, INC., Defendant and Respondent.

GREGORY CASTILLO, Plaintiff and Appellant, v. COMMUNITY MEDICAL GROUP OF THE WEST VALLEY, INC., Defendant and Respondent.
B185657 c/w B187734
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE
Whether There is a Triable Issue of Fact as to Plaintiff's Cause of Action for Sexual Harassment

Plaintiff submits that there is a triable issue of material fact concerning his cause of action for sexual harassment. We disagree.

For sexual harassment to be actionable under the Fair Employment and Housing Act (FEHA), it must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. (Sheffield v. Los Angeles County Dept. of Social Services (2003) 109 Cal.App.4th 153, 160-161.) Factors considered by the court in evaluating the totality of the circumstances, in a claim of a sexual harassment hostile working environment, include: "(1) the nature of the unwelcome sexual acts or words (with physical touching generally 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 [*10] conduct occurred." (Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 150.)


To establish a prima facie case of unlawful retaliation, a plaintiff must demonstrate that he or she engaged in a protected activity, the employer subjected him or her to an adverse employment action, and there was a causal link between the protected activity and the employer's action. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042; Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476.) If the employee can state a prima facie case, the burden shifts to the employer to demonstrate that the adverse employment action was taken for a reason other than retaliation. (Yanowitz, supra, at p. 1042; Flait, supra, at p. 476.) If the employer is able to do so, the presumption of retaliation is removed, and the burden shifts back to the plaintiff to produce evidence demonstrating that the employer's articulated [*12] reason was merely a pretext, and there was intentional retaliation. (Yanowitz, supra, at p. 1042; Flait, supra, at p. 476.)

SUSAN BRADFORD and LAVONA STANLEY, Plaintiffs and Respondents, v. MOONSTONE MANAGEMENT CORPPORATION et al., Defendants and Appellants.

Sexual Harassment of Stanley

Stanley, a single parent, worked as a waitress from May 1999 through August 2000. On the first day of work, Estrada rubbed Stanley's arm, touched and sniffed her hair, and rubbed his crotch on her buttocks. Stanley tried to [*3] disregard the sexual advances. Estrada phoned her at the bar and said, "Don't you ever fucking walk away from me again."

Estrada taunted Stanley by touching, grabbing, pinching, and poking her. On one occasion, he demanded that she "sit on my fucking lap." Estrada caressed and pinched her arm, startled her when she was carrying food and drinks, crowded her at the bar, called her a "fat ass," and told her "You know you love me."

After Stanley complained, Estrada refused to speak to her and made her feel "really uncomfortable." Within four to six weeks, the sexual harassment resumed. Estrada asked Stanley "have you gotten laid yet?" and offered her company at home. He left a message on Stanley's phone answering machine that said, "Have you ever sucked a dick all you wanted[?]"

Stanley was embarrassed, humiliated, and angry. Estrada continued [*4] to harass her at work, touched her when she picked up drinks at the bar, and made sexually suggestive comments.

Stanley wrote to Moonstone Manager Robert Hunt and Moonstone Owner Dirk Winter but nothing was done. She also complained to Dirk Winter's administrative assistant, Cathy Coordt Cichoski, about the sexual harassment. Cichoski testified that Winter laughed about Stanley's sexual harassment letter.

Sexual Harassment of Bradford

Susan Bradford worked at Cambria Pines Lodge from September 1999 through March 2001 as a receptionist, administrative assistant, and front desk manager. A few days after starting work, Estrada came up behind her and rubbed his groin against [*5] her buttocks. Embarrassed and disgusted, Bradford complained. She was told there had been prior complaints and that Moonstone Owner Dirk Winter would not do anything.

Bradford became the focus of Estrada's attention. He asked if she liked younger men, asked her to date him, and interrupted work with sexual comments. Estrada asked if she was "wet" and rubbed his groin into her buttocks at a management meeting. On another occasion, Estrada simulated sexual intercourse with Tawny Winter, the owner's daughter, in front of Bradford.

Here the sexual harassment was continuous and pervasive. Stanley's complaints led to more harassment. Estrada retaliated by yelling at Stanley, interfering with her work, taunting her with sexual comments, unjustly reprimanding her, and cutting her shifts until she was forced to quit. As an employer, Moonstone was strictly liable for all acts of sexual harassment by its supervisor, Estrada. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1042.)

Substantial [*17] evidence supported the finding that Stanley and Bradford were sexually harassed, subjected to demands for sexual favors in return for employee advancement or perquisites, and retaliated against when they complained. Appellants created a hostile, offensive, and oppressive work environment that altered the conditions of Stanley's and Bradford's employment. (Sheffield v. Los Angeles County Dept. of Social Services (2003) 109 Cal.App.4th 153, 160-161.) "Sexual harassment does not necessarily involve sexual conduct. It need not have anything to do with lewd acts, double entendres or sexual advances. Sexual harassment may involve conduct, whether blatant or subtle, that discriminates against a person solely because of that person's sex." (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 345.)

Continuing Violation Doctrine

Appellants argue that the trial court erred in not instructing on the continuing violation doctrine. ⁵ A plaintiff who sues for sexual discrimination under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) must first file a written complaint with the Department of Fair [*18] Employment and Housing within one year of the alleged employment discrimination. (Gov. Code, § 12960.) The continuing violation doctrine is an equitable exception to the one-year statute of limitations period. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 813-814; Accardi v. Superior Court, supra, 17 Cal.App.4th at p. 349.) It applies to actions for sexual harassment and retaliation. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1057-1058.) Under the continuing violation doctrine, evidence of past incidents occurring outside the limitations period may be received " 'if the employer's unlawful actions are (1) sufficiently similar in kind. . ., (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence. [Citation.]' [Citation.]" (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1041.)

MARLEE M. BEYDA, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

^CA(3)(3) ^HN2The Fair Employment and Housing Act (FEHA) "prohibits a variety of unfair labor practices including discrimination 'in terms, conditions or privileges of employment' [**550] on [***5] the basis of sex. ([Gov. Code,] § 12940, subd. (a).)" ( Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d 590, 605 [262 Cal. Rptr. 842].) Government Code section 12940, subdivision (h)(1) makes it unlawful for an employer, because of "sex, to harass an employee or applicant." There are two recognized categories of sexual harassment claims. The first is quid pro quo harassment, where a term of employment or employment itself is conditioned upon submission to unwelcome sexual advances. ( Mogilefsky v. Superior Court (1993) 20 Cal. App. 4th 1409, 1414 [26 Cal. Rptr. 2d 116].) The second, and the one at issue in this case, is hostile work environment, "where the harassment is sufficiently [*517] pervasive so as to alter the conditions of employment and create an abusive work environment." (Ibid.)

^HN3Sexual harassment is also prohibited by title VII of the federal Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.). ^CA(4)(4) Although the wording of title VII differs in some particulars from the wording of FEHA, the antidiscriminatory objectives and overriding public policy purposes of the two acts are identical. ( County of Alameda v. Fair Employment & Housing [***6] Com. (1984) 153 Cal. App. 3d 499, 504 [200 Cal. Rptr. 381].) "[I]n an area of emerging law, such as employment discrimination, it is appropriate to consider federal cases interpreting title VII." ( Mogilefsky v. Superior Court, supra, 20 Cal. App. 4th at p. 1416, fn. 5.)

^CA(5)(5) ^HN4The Supreme Court has described a hostile work environment in the context of sexual harassment as a workplace "permeated with 'discriminatory intimidation, ridicule and insult,' [citation] 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. (1993) 510 U.S. 17, 21 [114 S. Ct. 367, 370, 126 L. Ed. 2d 295].) " ^HN5'Sexual harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives its victim of her statutory right to work in a place free of discrimination, when the sexually harassing conduct sufficiently offends, humiliates, distresses or intrudes upon its victim, so as to disrupt her emotional tranquillity in the workplace, affect her ability to perform her job as usual, or otherwise interferes with and undermines her personal sense of well-being.' [***7] [Citation.]" ( Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal. App. 3d at p. 608.)

^HN6"[W]hether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." ( Harris v. Forklift Systems, Inc., supra, 510 U.S. at p. 23 [114 S. Ct. at p. 371].) "^HN7The plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended. [Citation.]" ( Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal. App. 3d at pp. 609-610, fn. omitted.)

"[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering 'all the circumstances.' " ( Oncale v. Sundowner Offshore Services, Inc. (1998) [*518] U.S. [118 S. Ct. 998, 1003, [***8] 140 L. Ed. 2d 201].) "[T]hat inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. . . . The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed." (Ibid.)

BRISENO v. DIAMOND VIDEO WORLD, INC., 2002 Cal. App. Unpub. LEXIS 1123

B148463
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SIX
2002 Cal. App. Unpub. LEXIS 1123

May 15, 2002, Filed
NOTICE: [*1] NOT TO BE PUBLISHED. CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR PURPOSES OF RULE 977.

PRIOR HISTORY: Superior Court County of Santa Barbara. Super. Ct. No. SM 112443. Zel Canter, Judge.

DISPOSITION: Trial court's award of damages for sexual harassment affirmed. Costs on appeal awarded to Respondent.

CORE TERMS: sexual harassment, sex, causes of action, fired, Compensation Act, civil action, leave to amend, sexual, box, heterosexual, harness, struck, right to sue, exclusive remedy, riding crop, photograph, sexual orientation, work environment, summary judgment, homosexual, terminated, harassed, collar, intentional infliction of emotional distress, workers' compensation, parties stipulated, lay persons, psychological, harassment, interfered

COUNSEL: Roger L. Stanard for Defendant and Appellant.

William K. Gamble for Plaintiff and Respondent.

JUDGES: COFFEE, J. We concur: YEGAN, Acting P.J., PERREN, J.

OPINION BY: COFFEE

OPINION

Respondent sold sexual novelty items in an adult store. He was fired and sued his employer, alleging sexual harassment. We affirm the trial court's finding in favor of the respondent.

FACTS

Appellant Diamond Video World, Inc. (DVW) hired respondent Zachary Briseno as a sales clerk. He worked at Diamond Adult World, which sold a variety of sex-related products. Briseno was fired after four weeks of employment and filed a claim for discrimination with the Department of Fair Housing and Employment (DFEH). He [*2] alleged that his supervisor, Anna Moore, had fired him because 1) she did not believe he could get along with the other employees while she was on vacation; 2) she claimed that he had failed to fill out a shift form; and 3) she believed he did not fit in because he is heterosexual and most of the other employees are homosexual.

The DFEH issued a "right to sue" letter. Four months later, Briseno filed a civil complaint in superior court alleging causes of action for assault, battery and intentional infliction of emotional distress. DVW moved for summary judgment on the grounds that that the tort actions were barred by the exclusive remedy of the Workers' Compensation Act and the elements of the torts had not been met. Briseno moved for leave to amend to add a cause of action for sexual harassment. The trial court granted his motion.

In his first amended complaint, Briseno claimed that Moore had engaged in "verbal and physical sexual harassment and discrimination." He alleged that she had approached him and another male employee, telling them that she wanted to tie them up "in a sex object type 'harness' [and] to take their picture and that this was their initiation." Briseno also [*3] contended that Moore struck him "numerous times on the buttocks area with a sex object type 'horse riding crop.'" She made him submit to being spanked whenever he failed to operate the cash register properly. Briseno alleged that he complied because he was afraid of losing his job. After amending his civil complaint, Briseno amended his DFEH complaint to add these allegations. The DFEH issued a notice acknowledging that the amended administrative complaint had been filed, but indicated that the case would not be reopened.

DVW again moved for summary judgment on the grounds that that the tort actions were barred by the exclusive remedy of the Workers' Compensation Act, the elements of the torts had not been met and there were insufficient facts to allege a cause of action for sexual harassment. The parties stipulated to the dismissal of all counts against Moore and the trial court denied summary judgment as to Briseno's claim for sexual harassment.

At trial, Briseno testified that Moore told him she would fire any employee who had "hang-ups" about the store's products. He allowed Moore to photograph him in the harness because he thought his refusal would cost him his job. Whenever [*4] Briseno made an error on the cash register, Moore struck him on the buttocks with a riding crop. This occurred on eleven separate occasions. In another incident, Moore placed a leather collar with a leash around Briseno's neck and walked him around the store. She also asked him to apply sex balm lotion to his genitals. He went to another part of the store and did as she requested.

Moore told Briseno that she was a lesbian, and jokingly referred to him as a "breeder" because he was heterosexual. She told a homosexual employee that they would "break [Briseno] in." When Briseno was terminated, Moore told him that he was unable to get along with the other employees and there was concern about his job performance. She later indicated that he did not fit in because he was not gay. As a result of her actions, Briseno suffered mental anguish for a year following his termination.

Moore testified that she customarily asked prospective employees if they would be comfortable selling products pertaining to sex. New employees were shown how to operate the sex harness. Briseno requested that Moore photograph him in the harness and then he placed the photograph in the video room. She denied having [*5] placed a collar around his neck or having struck him with a riding crop. Nor did she refer to him as a "breeder" or say that she would change his sexual orientation. Moore terminated Briseno because he was unable to cover his shifts without another person there, even after a month of employment. He failed to complete his shift reports although she had discussed the matter with him on several occasions. Briseno also had conflicts with other employees.

The trial court acknowledged that the matter was a credibility contest. It rejected Moore's testimony and found she had required Briseno to pose in the swing and submit to being struck with the riding crop. The court stated, "I don't think he wanted to get trussed up in this sexual swing and have his picture taken. I think he was required to do that. He felt that he was forced to do that as a condition of employment, and that itself is sexual harassment. [P] . . . [P] . . . None of this adds up to being fired because he's heterosexual. It adds up to harassment on the job under FEHA. And so I'm not even going to reach whether he was fired because he was heterosexual." The court concluded that Briseno had been subjected to sexual harassment [*6] and was wrongfully terminated. It awarded him $ 608 in lost wages, $ 10,000 in general damages and $ 19,123 in attorney's fees and costs.

DISCUSSION

DVW argues that the trial court abused its discretion by granting Briseno leave to amend his civil complaint, that his tort claims are barred by the exclusive remedy of the Workers' Compensation Act and Moore's acts do not constitute sexual harassment. We turn to DVW's first contention.

Leave to Amend

The trial court may grant leave to amend to allow a plaintiff to add a new theory of recovery, provided the cause of action arises from the same operative facts. ( Delaney v. Superior Fast Freight (1993) 14 Cal.App.4th 590, 594.) DVW acknowledges that the tort and sexual harassment causes of action had the same factual basis. It argues, however, that the trial court's ruling was procedurally defective because Briseno's amended administrative complaint was untimely.

In order to bring a civil action based on violations of the Fair Employment and Housing Act (FEHA), an employee must exhaust his administrative remedy by filing a complaint with the DFEH and obtain from the DFEH a notice of the right to sue. (Gov. [*7] Code, §§ 12960, 12965, subd. (b); Rojo v. Kliger (1990) 52 Cal.3d 65, 88, 276 Cal. Rptr. 130, 801 P.2d 373.) ¹ The employee has one year from the date of the right to sue letter to bring a civil action. ( § 12965, subd. (b).) The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA. ( Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 63.)

FOOTNOTES

1 All further statutory references are to the Government Code, unless otherwise indicated.


Briseno filed his civil action four months after he received his right to sue letter from the DFEH. Sixteen months later, he moved for leave to amend his civil complaint, and also filed an amended administrative complaint alleging sexual harassment. DVW reasons that the amended administrative complaint was time barred because it was filed one and a half years after the date of the incident. Thus, there was no basis upon which to amend the civil complaint. [*8] To address this argument, we look to the allegations in the original administrative complaint.

The DFEH complaint for discrimination utilizes a fill-in-the box format. In the section requesting the particulars of the claim, Briseno checked the boxes indicating that he had been both harassed and fired by the store manager, Anna Moore. Under a different section concerning the type of discrimination that occurred, Briseno did not check the box marked "sex." Instead, he checked the box marked "other," but did not specify the type of discrimination he had allegedly experienced.

Another section of the form stated the following: "The reason given by [Anna Moore] was because of [please state what you believe to be reason(s)]." Briseno alleged that Moore did not believe he could get along with the other employees while she was on vacation; 2) she claimed that he had failed to fill out a shift form; and 3) she believed he did not fit in because he is a heterosexual and most of the other employees are homosexual. Briseno provided no information concerning how he was allegedly harassed.

The purpose of the administrative complaint is to allow the DFEH to investigate claims of discrimination. [*9] ( Mora v. Chem-Tronics, Inc. (S.D. Cal. 1998) 16 F. Supp. 2d 1192, 1201.) Because this process is initiated by lay persons, "claimants are not held to specify the charges with literary exactitude." (Ibid. [claimant failed to check appropriate boxes on DFEH complaint, stated his claim summarily and did not expand on his allegation].) Rather, the administrative charge must be construed with "'the utmost liberality,' mindful of the fact that these charges are made by lay persons 'unschooled in the technicalities of formal pleading.'" (Ibid.)

Briseno's indication that he was harassed was sufficient, without further elaboration, to allege a cause of action for sexual harassment. Therefore, the civil action was properly instituted, and Briseno's motion for leave to amend was timely. It is unnecessary for us to consider the timeliness of the amended DFEH complaint.

Workers' Compensation

The FEHA provides that it is unlawful to discriminate on the basis of sex or sexual orientation. ( §§ 12920 & 12940, subd. (a).) Employers will be held liable for the discriminatory actions of their supervisory employees. ( § 12926, subd. (d); Reno v. Baird (1998) 18 Cal.4th 640, 644, 957 P.2d 1333.) [*10] DVW argues that it bears no responsibility because Briseno's tort claims are pre-empted by the exclusive remedy of the Workers' Compensation Act. (Lab. Code, §§ 3600, 3601, subd. (a).)

We reject this argument. A claim arising from sexual harassment is not barred by the exclusivity provisions of workers' compensation laws. ( Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 353.) "'The . . ."compensation bargain" cannot encompass conduct, such as sexual or racial discrimination, "obnoxious to the interests of the state and contrary to public policy and sound morality."'" ( City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1153, 959 P.2d 752; Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1101, 824 P.2d 680, overruled on other grounds in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 71, 79-80 & fn. 6, 960 P.2d 1046.) We need not consider the applicability of the Workers' Compensation Act to Briseno's claims for assault, battery and intentional infliction of emotional distress, because the parties stipulated to their dismissal.

Sexual Harassment

There are two types of sexual harassment. The [*11] first is quid pro quo harassment, in which an individual's employment is "conditioned upon unwelcome sexual advances." The second is the "creation of a hostile work environment for the employee because of that employee's sex." ( Accardi v. Superior Court, supra, 17 Cal.App.4th at p. 348.) Briseno's allegations fall into the second category. To be actionable, this type of sexual harassment must be sufficiently severe or pervasive to alter the conditions of employment. ( Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21, 126 L. Ed. 2d 295, 114 S. Ct. 367; Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 1000.) We look at the totality of the circumstances to determine whether there was a pattern of continuous, pervasive sexual harassment. ( Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d 590, 609, 262 Cal. Rptr. 842.) In order to prevail, the plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's work performance, seriously affected his psychological well-being and caused him to be offended. ( Id. at pp. 609-610.) [*12]

Briseno was required to have his photograph taken in the sexual harness, submit to being struck with a riding crop, wear a leather collar and apply sex balm lotion to his genitals. He testified that he complied for fear of losing his job and suffered mental anguish for a year after he was fired. Moore's conduct offended Briseno, interfered with his work environment and seriously affected his psychological well-being. Examining the totality of the circumstances, there was substantial evidence that Briseno was subjected to a hostile work environment.

Although the trial court included the words "wrongful termination" in its finding, Briseno did not, in fact, plead such a cause of action. Nor was there evidence in the record to support it. We may not consider whether Briseno suffered sexual orientation discrimination because the trial court did not reach that issue.

DISPOSITION

The trial court's award of damages for sexual harassment is affirmed. Costs on appeal are awarded to Respondent.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

DAMITA-JOE ARMSTEAD, Plaintiff and Respondent, v. AAA BUILDERS et al.

B152107 and B153850
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION EIGHT
2002 Cal. App. Unpub. LEXIS 10390

November 8, 2002, Filed
NOTICE: [*1] NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR PURPOSES OF RULE 977.

PRIOR HISTORY: APPEAL from the judgment of the Superior Court of Los Angeles County. Super. Ct. No. BC 216342. Richard Montes, Judge. (Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

DISPOSITION: Affirmed.

CORE TERMS: sexual harassment, quid pro quo, sexual, work environment, hostile, peremptory challenges to excuse, harassment, juror, sexual advances, cause of action, leg, substantial evidence, sex, harasser, sexual acts, damage award, conditions of employment, non-economic, conditioned, supervisor, unwelcome, pervasive, closing argument, misconduct, mistrial, touched, male, group bias, prima facie case, term of employment

COUNSEL: Lascher & Lascher, Wendy C. Lascher and Denise Brogna for Defendants and Appellants.

Law Offices of Gregory W. Smith and Gregory W. Smith for Plaintiff and Respondent.

JUDGES: RUBIN, J. We concur: COOPER, P.J., BOLAND, J.

OPINION BY: RUBIN

OPINION

Defendant and appellant AA Builders, dba AAA Builders and William Carlisle (collectively Carlisle) appeal from the judgment entered against them and in favor of plaintiff and respondent Damita-Joe Armstead following a jury trial on Armstead's complaint alleging sexual harassment. Carlisle contends: (1) Armstead "stacked" the jury; (2) the trial court erred [*2] in instructing the jury on the "quid pro quo" theory of sexual harassment; (3) Armstead's counsel engaged in prejudicial misconduct during closing argument; (4) the verdict was not supported by substantial evidence; and (5) the damage award was excessive. After review, we affirm the judgment.

FACTUAL AND PROCEDRUAL BACKGROUND

Armstead was a 22-year veteran of the construction industry, a certified construction estimator and negotiator, and a licensed general contractor in the state of Washington when she moved to California. She met Carlisle, who owned AAA Builders, when Carlisle came to assess work to be done at Armstead's mother's home. After discussing Armstead's qualifications, Carlisle offered Armstead a job at AAA Builders for a salary of $ 9 per hour.

Armstead began working for AAA Builders on or about March 15, 1999. After a week or two, Carlisle began making inappropriate comments. He told her he preferred her to wear dresses; made comments about her legs, dress and mouth; asked how she satisfied herself sexually and if she ever dated her employees. On one occasion, Carlisle grabbed Armstead around the waist, hugged her, kissed her on the neck, and told her she was [*3] going to be an asset to the company. On another occasion, while Armstead was in Carlisle's office looking at plans, Carlisle rubbed her leg. On yet another occasion, he touched her back and arms, commenting, "I can tell you work out."

While at a restaurant in April 1999, just a month after she began working for him, Carlisle said to Armstead, "I want you to have sex with me once a month." On that same occasion, Carlisle touched Armstead's arm and upper leg, asked how she satisfied herself and told her he had "something better" for her to put in her mouth besides her lunch.

Carlisle called Armstead at home and asked her for a date on her birthday, May 14, 1999. While at Sizzlers that same month, Carlisle told Armstead she was attractive and touched her leg.

On June 24, 1999, Carlisle pressed his body against Armstead's while she was looking through file cabinets. As he did so, he asked when her boyfriend was coming down, how she satisfied herself and how she could wait so long without satisfying herself. Armstead left Carlisle's employ that day.

On June 29, 1999, Armstead filed a sexual harassment complaint against AAA Builders with the Department of Fair Employment and Housing. [*4] After receiving a right-to-sue notice, Armstead filed the instant action on September 8, 1999. Armstead alleged Carlisle's conduct amounted to a systematic policy of discrimination on account of sex in violation of the California Constitution, constituted sexual harassment and created a hostile work environment.

The evidentiary portion of the trial began on May 15, 2001. Armstead testified to Carlisle's conduct and described the effect it had on her: she had not returned to the construction industry because she felt uncomfortable working around men; she felt overwhelmed and no longer herself; she felt dirty, abused, used, and without control over her life; she felt angry, depressed, withdrawn; her sleep was affected; she no longer socialized; she had crying spells; her relationship with her children was affected; she was frightened by men in elevators and at the supermarket. Carlisle denied engaging in the conduct testified to by Armstead. Other witnesses testified that they never saw these things happen.

The jury began deliberating on May 23, 2001. That afternoon, they returned a unanimous special verdict finding Armstead "was subjected to a hostile work environment or quid pro [*5] quo harassment" by Carlisle, that she suffered non-economic damages in the amount of $ 90,000, plus economic damages in the amount of $ 2,700. The jury found further that Carlisle acted with oppression, but not malice. After hearing additional evidence, the jury awarded punitive damages against Carlisle in the amount of $ 100.

DISCUSSION

Armstead's Counsel Did Not "Stack" the Jury

Carlisle contends the trial court erred in not granting his motion for mistrial based upon the use by Armstead's counsel of peremptory challenges to excuse male jurors. He argues he did not receive a fair trial because the jury ultimately selected, comprised of three men and nine women, was not balanced. We disagree.

Similar concerns in civil proceedings warrant compliance with the constitutional exercise of peremptory challenges as announced by the court in People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal. Rptr. 890, 583 P.2d 748, for criminal proceedings. ( Holley v. J & S Sweeping Co. (1983) 143 Cal. App. 3d 588, 590, 592, 192 Cal. Rptr. 74.) Under Wheeler, a party who believes its opponent is using peremptory challenges to strike jurors on [*6] the ground of group bias alone, must make a prima facie case of such discrimination. He must establish not just that the persons excluded are members of a cognizable group, but also that there is a strong likelihood that they are being excluded because of their group association. ( People v. Turner (1994) 8 Cal.4th 137, 164-165, 878 P.2d 521.) If the trial court finds that a prima facie case has been established, the burden shifts to the party exercising the peremptory challenges to provide a neutral " 'explanation related to the particular case to be tried' for the peremptory challenge. [Citations.] However, the explanation need not be sufficient to justify a challenge for cause. [Citations.] Jurors may be excused based on 'hunches' and even 'arbitrary' exclusion is permissible, so long as the reasons are not based on impermissible group bias. [Citation.] . . . We give great deference to the trial court in distinguishing bona fide reasons from sham excuses. [Citations.]" ( Id. at pp. 164-165.)

Here, Carlisle's counsel objected to the use by Armstead's counsel of his first four peremptory challenges to excuse male jurors, and asked the court [*7] to either summon more male prospective jurors to be voir dired or to declare a mistrial. Armstead's counsel denied basing challenges on gender and explained he dismissed one juror because he was in the construction business, another because he was a truck driver who said he would prefer to be on the road than in a trial, another because he was a security supervisor who said he was aware of a groundless sexual harassment complaint against one of his employees and the fourth because the juror struck counsel as being less than frank in his responses. ¹ The trial court credited these explanations and found them adequate to overcome any prima facie showing of discrimination. We see no error in this conclusion.

FOOTNOTES

1 Armstead's counsel pointed out to the court that Carlisle's counsel had thus far used all of his own peremptory challenges to excuse women.


The Trial Court Did Not Err in Giving an Instruction on

"Quid Pro Quo" Sexual Harassment

Carlisle contends the trial court erred in giving BAJI No. [*8] 12.06, ² regarding quid pro quo sexual harassment. He argues Armstead did not allege quid pro quo sexual harassment as a basis for recovery in her complaint, there was no evidence at trial to support the instruction and the special verdict forms given to the jury did not include this theory.

FOOTNOTES

2 As given, BAJI No. 12.06 reads: "The plaintiff also seeks to recover damages based upon a claim of quid pro quo sexual harassment. The essential elements of this claim are: [P] One, the defendant was an employer; [P] Two, the plaintiff was an employee of the defendant; [P] Three, the defendant engaged in quid pro quo sexual harassment of the plaintiff; [P] Four, this harassment caused plaintiff injury, damage, loss or harm. [P] Quid pro quo sexual harassment is a form of discrimination based upon sex and may consist of unwelcomed sexual advances, requests for sexual favors or other verbal, visual, or physical conduct of a sexual nature when, [P] (1) Submission to the conduct is made either explicitly or implicitly a term or condition of the individual's employment, of plaintiff's provision of services; or [P] (2) Submission to or rejection of the conduct by the individual is used as a basis for employment decisions affecting that individual. [P] In determining whether conduct constitutes sexual harassment, you must consider all of the circumstances, such as: [P] (1), the nature of the unwelcomed sexual acts or words; [P] (2), the frequency of the offensive encounters; [P] (3), the total number of days of which all of the offensive conduct occurs; and [P] (4), the context in which the alleged sexual harassing conduct occurred."


[*9] " 'California case law recognizes two theories upon which sexual harassment may be alleged. The first is quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances. The second is hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment. [Citation.]' [Citation.]" ( Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1045.) "A cause of action for quid pro quo harassment involves the behavior most commonly regarded as sexual harassment, including, e.g., sexual propositions, unwarranted graphic discussion of sexual acts, and commentary on the employee's body and the sexual uses to which it could be put. [Citation.] To state a cause of action on this theory, is it sufficient to allege that a term of employment was expressly or impliedly conditioned upon acceptance of a supervisor's unwelcome sexual advances. [Citation.] [P] By contrast, a cause of action for sexual harassment on a hostile environment theory need not allege any sexual advances whatsoever. [Citation.] A cause of action on this theory is stated where [*10] it is alleged that an employer created a hostile environment for an employee because of that employee's sex. [Citation.] . . . As might be expected, cases sometimes involve a hybrid of these two theories. A hostile work environment may result from inappropriate sexual conduct in the workplace. Under such circumstances the plaintiff may allege that the unwelcome sexual advances were sufficiently pervasive so as to also alter the conditions of employment and create an abusive work environment. [Citations.]" ( Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414-1415.)

Counsel for Carlisle objected to the giving of BAJI No. 12.06 on the grounds that there was no evidence Armstead's employment was conditioned on Carlisle's request for sexual favors. He did not argue that this theory of sexual harassment was not alleged in the complaint. The trial court found there was sufficient evidence for the jury to infer, in accordance with BAJI No. 12.06, that submission to Carlisle's conduct was explicitly or implicitly a condition of Armstead's continued employment. We agree.

The evidence established that Carlisle owned and managed AAA Builders. Although there was [*11] no evidence that Carlisle ever expressly made submission to his conduct a term or condition of employment, that this was so could reasonably be inferred from the evidence that Carlisle owned the business and was himself the harasser. Moreover, we find the allegations of the complaint that Carlisle was a manager, officer, or supervisor of AAA Builders and was in the chain of command over Armstead with "sufficient actual or reasonably perceived power or control or direction in [Armstead's] work environment to significantly affect [her] employment status[,]" that Carlisle interviewed and hired Armstead, and that he was the harasser, sufficient to state a cause of action for sexual harassment under the quid pro quo theory.

Any Misconduct During Closing Argument was

Cured by the Trial Court's Admonition

Carlisle contends the following comments by counsel for Armstead during closing argument constituted prejudicial misconduct, warranting reversal: "Carlisle is not going to touch, and like so many harassers, is not going to touch an individual on the leg where everybody is going to see what happens. That's not what harassers do. They don't wait for a witness [*12] to come around and spot what's going on. They do these things in secret. That's what it's all about. They don't do it in front of people." (Italics added.)

To the extent these comments may have been improper, Carlisle's counsel interposed a timely objection which the trial court sustained followed by an admonishment to the jury that comments by counsel were not evidence. This admonition was sufficient to ensure Carlisle received a fair trial. Appellants' motion for mistrial and new trial on this ground was properly denied.

There Was Substantial Evidence of Sexual Harassment

Carlisle contends the trial court also erred in denying his motion for new trial because Armstead failed to show harassment under either the quid pro quo or hostile work environment theories. He argues that the evidence did not establish the harassment was sufficiently severe or pervasive. We disagree.

To constitute substantial evidence, evidence "must be reasonable in nature, credible, and of solid value. . . ." ( Cochran v. Rubens (1996) 42 Cal.App.4th 481, 486, internal citations and quotation marks omitted.)

Here, Armstead testified to Carlisle's repeated unwanted sexual propositions, [*13] comments on Armstead's body and sexual uses to which it could be put, graphic discussion of sexual acts and touchings. The jury believed the testimony. This evidence was sufficient to establish quid pro quo sexual harassment as well as sexual harassment on a hostile environment theory. (Cf. Mogilefsky v. Superior Court, supra, 20 Cal.App.4th at p. 1414.)

Damages

Carlisle contends the $ 90,000 in non-economic damages awarded to Armstead was excessive in light of the fact that she was only unemployed for three months after leaving her job with AAA Builders, she was paid more money in her new job, she received non-economic damages of just $ 2,700 and the punitive damage award was only $ 100. We disagree.

Apart from whether Carlisle has waived this contention by failing to cite any legal authority in support of it ( Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700), we find the damage award was supported by substantial evidence of the crippling effect the sexual harassment had upon Armstead's emotional well-being.

DISPOSITION

The judgment is affirmed. Armstead shall recover her costs on appeal.

RUBIN, [*14] J.

We concur:

COOPER, P.J.

BOLAND, J.

ROCKY GREER et al., Plaintiffs and Appellants, v. UNITED PARCEL SERVICE, INC., et al., Defendants and Respondents.

The sexual harassment of an employee is prohibited by the Fair Employment and Housing Act (FEHA). (Rieger v. Arnold (2002) 104 Cal.App.4th 451, 459.) Such harassment consists of any unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. (Ibid.) However, to be actionable, the harassment must be sufficiently severe or pervasive to the point of creating an abusive environment that alters job conditions, judged on both an objective and subjective basis. (Ibid.) The law does not exhibit "'zero tolerance'" for offensive words and conduct. (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 467.)

A person who brings a cause of action for sexual harassment must first file a claim with the DFEH. (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 349.) [*7] Moreover, this administrative complaint must be filed within one year of the date upon which the alleged harassing act occurred. (Ibid.) The failure to do so is jurisdictional and thus is a ground for a defense summary judgment. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.)