The complaint in this action alleges six causes of action. The first three are brought by plaintiff Zavala. The last three are brought by plaintiff Franklin. Zavala's causes of action are as follows: (1) against Walden and Duarte for sexual harassment in violation of Government Code section 12940, subd. (a); (2) against Walden for unlawful termination of her employment in retaliation for her rejection of Duarte's unwelcome conduct and for her complaints about that conduct (Gov. Code, § 12940, subd. (h)); and (3) against Walden for wrongful termination in violation of public policy. Franklin's causes of action are as follows: (4) against Walden for unlawful termination of Franklin's [*3] employment in retaliation for her reports of Duarte's harassment of Zavala and for her efforts to protect Zavala from such harassment (Gov. Code, § 12940, subd. (h)); (5) against Walden for wrongful termination in violation of Labor Code section 1102.5); and (6) against Walden for wrongful termination in violation of public policy.
The judgment in this case resulted from two separate motions for summary judgment. Defendant Walden brought one motion for summary judgment attacking Franklin's allegations (causes of action four, five and six). Defendants Walden and Duarte brought a separate motion for summary judgment attacking Zavala's allegations (causes of action one, two and three). The court held a hearing on the motions, took them under submission, and then issued its order granting both motions. We should note here that appellants concede the correctness of that portion of the court's ruling finding no merit to Franklin's Labor Code section 1102.5 cause of action (i.e., the fifth cause of action). Appellants and respondents also agree that each plaintiff's cause of action for wrongful termination in violation [*4] of public policy (the third and sixth, respectively) stands or falls with that plaintiff's cause of action for retaliatory termination in violation of FEHA (the second and fourth, respectively). Thus our review of the judgment in favor of the defendants and against plaintiff Zavala is in essence a review of whether the court was correct in its determination that there is no triable issue of material fact on the first two causes of action of the complaint, and that those causes of action have no merit. (Code Civ. Proc., § 437c, subd. (f).) Similarly, our review of the judgment in favor of Walden and against plaintiff Franklin is in essence a review of whether the court was correct in its determination that there is no triable issue of fact on the fourth cause of action of the complaint, and that the fourth cause of action has no merit. (Code Civ. Proc., § 437c, subd. (f).)
Because there were two separate motions for summary judgment, and both were granted, we will review each motion. Because our focus is on whether there are triable issues of fact, we will recount the pertinent evidence presented on each motion in our analysis [*5] below of each motion. As an overview, however, the defendants presented evidence that Zavala's termination was due to her unexcused absence from work. Zavala's position was that her absences were due to Duarte's conduct toward her and her complaints to supervisors about Duarte's conduct. (We will describe that conduct in more detail below.) The defendants persuaded the court, however, that Duarte's conduct "was not sufficiently severe or pervasive to state a prima facie case of hostile environment sexual harassment" of Zavala. They also persuaded the court that there was no triable issue of fact as to whether Zavala's termination was in retaliation for her complaints about Duarte's conduct. Defendants presented evidence that Franklin's termination was due to poor job performance and insubordination. Franklin presented evidence that she was told that if she complained about Duarte's treatment of Zavala, she (Franklin) would be fired. The superior court concluded that the person who made the decision to terminate Franklin was unaware that Franklin had ever complained to anyone at Walden about Duarte's treatment of Zavala. Walden's own evidence showed, however, that more than one person [*6] was involved in the decision to terminate Franklin, and that at least one of the persons involved in the decision was aware of Franklin's complaints about Duarte.
We will first present a brief overview of summary judgment law (part I). We will then explain why the court erred in granting Walden's motion for summary judgment against plaintiff Franklin (part II), and why the court erred in granting the defendants' motion for summary judgment against plaintiff Zavala (part III).
I.
SUMMARY JUDGMENT
A "motion for summary judgment shall be granted 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).) "For purposes of motions for summary judgment and summary adjudication: … (2) A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant [*7] has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto." (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 849.)
The purpose of summary judgment law "is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 844.)
"Summary judgment law in this state … continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence…. The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence - as through admissions by plaintiff following extensive [*8] discovery to the effect that he has discovered nothing." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 854-855, fns. omitted.) "The party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) "Generally, how the parties moving for, and opposing, summary judgment may each carry their burden of persuasion and/or production depends on which would bear what burden of proof at trial. … Thus, if a plaintiff who would bear the burden of proof by a preponderance of evidence at trial moves for summary judgment, he must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not - otherwise, he would not be entitled to judgment as a matter of law, but would have to present his [*9] evidence to a trier of fact. By contrast, if a defendant moves for summary judgment against such a plaintiff, he must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not - otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 851, fns. omitted.)
If a defendant moving for summary judgment or summary adjudication has carried his burden of production of evidence and has "caused a shift" (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850), then the plaintiff must present evidence demonstrating the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, sub. (c).) Significant to the case presently before us is the principle that on summary judgment or summary adjudication "the court may not weigh the plaintiff's evidence or inferences against the defendants' as though it were sitting as the trier of fact …." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 856.) [*10] The court may, and in fact "must … determine what any evidence or inference could show or imply to a reasonable trier of fact." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 856.) To state this a bit differently, the court does not determine whether an opposing plaintiff's evidence is credible, but rather determines what inference a reasonable trier of fact could draw from that evidence if the trier of fact were to believe that evidence. (See also Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153-1155.)
On appeal, we conduct a de novo review of the superior court's determination that there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 766-767; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 860.)
II.
WALDEN'S MOTION RE PLAINTIFF FRANKLIN
Vitka Eisen is the Director of the Criminal Justice Program for defendant Walden House. Eisen describes Walden House as "a not-for-profit organization, which provides a full-continuum health case [*11] system specializing in addiction services, including detoxification, comprehensive medical care and mental health services." Walden offers these "contractual services" in prisons. Throughout the period of time encompassing the events pertinent to this case, Walden offered these services at the California Substance Abuse Treatment Facility/State Prison in Corcoran (Corcoran). Plaintiffs Roxanne Zavala and Karen Franklin (formerly known as Karen Miles) were employees of Walden and worked at the Corcoran facility. Zavala was a "Counselor" and Franklin was a "Coordinator" and was Zavala's supervisor. Franklin's employment with Walden was terminated in early October of 2002. Walden contends that Franklin was terminated for poor work performance. Franklin contends that she was terminated for reporting to others at Walden about sexual harassment of Zavala by another Walden employee, David Duarte.
A. Sexual Harassment and Retaliatory Discharge
The parties appear to agree, for the most part, on the basic principles of law applicable to Franklin's fourth cause of action for retaliatory discharge in violation of FEHA. Government Code section 12940 states [*12] in pertinent part: "It shall be an unlawful employment practice … (j)(1) For an employer …, because of … sex … to harass an employee …." Subdivision (j)(4)(A) of the statute defines "employer" to include "any person acting as an agent of the employer." (Gov. Code, § 12940, subd. (j)(4)(A); see also State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1039-1042.) For purposes of subdivision (j) of section 12940, "'harassment' because of sex includes sexual harassment …." (Gov. Code, § 12940, subd. (j)(4)(C).) "Sexual harassment consists of any unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. [Citation.] It usually arises in two contexts. 'Quid pro quo' harassment conditions an employee's continued enjoyment of job benefits on submission to the harassment. 'Hostile work environment' harassment has the purpose or effect of either interfering with the work performance of an employee, or creating an intimidating workplace. [Citation.]" (Rieger v. Arnold (2002) 104 Cal.App.4th 451, 459; see also Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1146.) [*13]
"The FEHA imposes two standards of employer liability for sexual harassment, depending on whether the person engaging in the harassment is the victim's supervisor or a nonsupervisory coemployee. The employer is liable for harassment by a nonsupervisory employee only if the employer (a) knew or should have known of the harassing conduct and (b) failed to take immediate and appropriate corrective action. ( § 12940, subd. (j)(1).) This is a negligence standard. [Citation.] Because the FEHA imposes this negligence standard only for harassment 'by an employee other than an agent or supervisor' ( § 12940, subd. (j)(1)), by implication the FEHA makes the employee strictly liable for harassment by a supervisor. This court and the Courts of Appeal have so stated. [Citations.]" (State Dept. of Health Services v. Superior Court, supra, 31 Cal.4th at pp. 1040-1041.) Pertinent to plaintiff Franklin's retaliation claim is subdivision (h) of Government Code section 12940, which states that it shall be an unlawful employment practice "for any employer … to discharge … or otherwise discriminate against any person because the person has opposed any [*14] practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part."
Franklin contends that she was discharged for complaining to Walden representatives about sexual harassment of Zavala by Duarte. To prevail at trial on a FEHA claim of retaliation, a plaintiff must establish a prima facie case of retaliation. If the defendant then articulates a legitimate nonretaliatory explanation for its acts, the plaintiff must then show that the defendant's proffered explanation is merely a pretext for the illegal termination. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476.) "To establish a prima facie case, the plaintiff must show that he engaged in a protected activity, his employer subjected him to adverse employment action, and there is a causal link between the protected activity and the employer's action." (Ibid.; in accord, see also Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 814.) Walden's motion for summary judgment on plaintiff Franklin's claim of retaliation argued that Walden was entitled to summary judgment because, in Walden's words, Franklin [*15] "cannot establish a prima facie case of retaliation because she cannot demonstrate a causal link between her alleged protected activity and Walden House's decision to terminate her employment" and "alternatively, Walden House has met its burden to provide a legitimate, non-retaliatory explanation for Plaintiff's termination and Plaintiff cannot present specific and substantial evidence that the proffered reasons are a pretext for intentional retaliation."
B. A Triable Issue of Fact Exists
Walden's motion presented a wealth of evidence of Franklin's poor work performance. For reasons which we shall explain shortly, we need not recount all of that evidence here. The final straw was reached when Franklin used work time to process paperwork she wished to submit to the prison so that she could visit an incarcerated relative. According to an October 3, 2002 "Termination Summary" given to Franklin by Walden's Clinical Director, Patti Aiello: "You told me that you had obtained the document you needed to complete from the Custody Administrative Office on F Yard. You explained that all you needed to do was complete the document and return it to the Yard Sergeant. You indicated [*16] that you would give a copy of the signed document to Administrative Manager Pam Weimer, (Unit Manager) Johnny (Hernandez) and me, and that was all you needed to do. I reiterated my concern regarding custody staff contact, time away from your cluster, and the importance of letting me know if you would be deviating from this plan of action at any point. You and I agreed that should you need to deviate from this plan of action that you would inform me in advance of any additional CDC contact or time away, and that you would otherwise do nothing more than fill out the form and return it to the Yard Sergeant, Johnny, Pam and myself." The "Termination Summary" then goes on to describe how Franklin failed to follow the agreed upon plan, contacted the prison Warden directly, and spent "considerable extra time away from your cluster." Franklin was placed on a paid administrative leave on September 26 or 27, 2002 "so that we could look into the matter and discuss what we should do about the situation." Franklin was then terminated in early October 2002. The October 3, 2002 "Termination summary" states in part "the particular rules of conduct that you have violated are 'poor job performance' [*17] and 'unauthorized absence from the work station during the workday.'" The declaration of Walden's Clinical Justice Program Director, Vitka Eisen, states in part: "Ms. Franklin was terminated on or about the beginning of October 2002. The only individuals who were involved in the decisionmaking process resulting in Ms. Franklin's termination were myself, Ms. Aiello, Mr. Hanusa and (Walden House Human Resources Manager) Ms. (Melissa) Rogers. To my knowledge, no one else participated or had the authority to participate in the decision."
Franklin's opposition to the motion included her own deposition testimony. Franklin testified at her deposition that she complained to numerous people about Duarte's treatment of Zavala. These included Darrell Hamilton, Wesley Childress, Darrell Hamilton again, Jean LeFlore, and then a meeting lasting 35 to 40 minutes with Human Resources Director Melissa Rogers. During the meeting with Ms. Rogers, Franklin showed Rogers a written list Franklin had prepared describing Duarte's harassment of Zavala. Franklin had previously shown the list, dated February 26, 2002, to Jean LeFlore. Rogers asked Franklin to fill out a "Supervisor's Accident/Injury Report" [*18] form. Franklin did so. This report described the injury to Roxanne Zavala (then known as Roxanne Quezada) as: "Stress, harass, she had a hard time concentration [sic] at work and completing job task. She would call in sick." The completed form was signed by Franklin (then known as Karen Miles) and dated March 1, 2002. Franklin testified at her deposition, about this report: "I gave it to Melissa. And the moment I gave it to Melissa she started yelling, you better not show this to nobody, Walden House will fire you, sue you. And I got very intimidated by that, I didn't appreciate it. I was already getting treated like dirt from her, and then she going to tell me that I'm going to get fired. I'm only doing my job." Franklin also testified that this exchange was witnessed by three other persons, Jackie Bedcore, Jean LeFlore and Pam Weimer. Franklin also testified that after Jean LeFlore spoke to Darrell Hamilton about Duarte's treatment of Zavala, Hamilton's attitude toward Franklin changed, and Franklin felt that Hamilton and Walden House were retaliating against her by asking her to do tasks she could not by herself, and not giving her any help. She also testified that Zavala's [*19] harasser, Duarte, was Hamilton's brother-in-law.
About two weeks later Franklin received a "written warning" from Clinical Director Jean LeFlore for ending Franklin's clinical program 20 minutes early on March 14, 2002. The first sentence of the written warning states that LeFlore was informed of this event "by Acting Building Manager, David Duarte." Franklin signed the document and wrote "disagree" next to her signature. About two weeks later Franklin received another write-up for not completing paperwork. This one was from Program Director Steve Hanusa and Unit Manager Darrell Hamilton and was dated April 5, 2002. Franklin then received another write-up for incomplete paperwork on or about May 2, 2002. This one was signed by Hanusa and by Unit Manager Johnny Hernandez. Franklin refused to sign the document, but wrote comments on it. These included "I feel Walden does not want to help me only to get rid of me."
On August 9, 2002 Franklin received a memo from Eisen (then Director of Walden's Criminal Justice Adult Services) and Human Resources Manager Melissa Rogers addressing their concerns about Franklin's behavior in singing a song at "farewell ceremony" for a "resident" and [*20] about a verbal altercation Franklin had had with Richard Soza, a man described in the memo as "one of the building managers." Franklin responded with a memo which stated in part: "You are engaged in an obvious campaign to accumulate adverse documentation against me for the purpose of possibly terminating my employment. This is evident since I have made complaints against co-workers on issues that affected the safety of residents and other Walden House workers that have fallen on deaf ears." Then in late September 2002 the incident occurred involving Franklin's handling of her attempt to visit her incarcerated relative. Shortly thereafter she was terminated.
Walden's motion for summary judgment appears to us to either ignore the evidence presented by Franklin or to ask us to deem her testimony not worthy of belief. On summary judgment we can do neither. Franklin testified that she was asked to complete and submit the "Supervisor's Accident/Injury Report" form and that when she did so she was told by Walden's Human Resources Manager (Rogers) that she (Franklin) would be fired. Franklin then accumulated more disciplinary warnings and write-ups and was then indeed fired. Walden argues [*21] that Franklin failed to meet her burden to show "some causal connection between an adverse employment action and the original complaint of discrimination" because "mere sequence is not enough." (Chen v. County of Orange (2002) 96 Cal.App.4th 926, 931.) Even if we assume this is a correct statement of the law (but see Woodson v. Scott Paper Co. (3rd Cir. 1997) 109 F.3d 913, 920 ("Our cases have established that temporal proximity between the protected activity and the termination is sufficient to establish a causal link"), Franklin presented more than just evidence that her termination occurred after her complaints about Duarte's treatment of Zavala. She presented evidence that she was asked to complete and submit a Supervisor's Accident/Injury Report regarding Zavala and then was told by Melissa Rogers that she (Franklin) would be fired for doing so. A triable issue of fact exists as to whether Franklin was terminated in retaliation for supporting Zavala's claim of harassment, as Franklin contends, or whether she was terminated for the reasons stated in the October 3, 2002 termination notice, as Walden contends. The same can be said about Walden's [*22] contention that Franklin has not presented evidence that Walden's "proffered explanation is merely a pretext for the illegal termination." (Flait, supra, 3 Cal.App.4th at p. 476.) Franklin has presented such evidence. Whether that evidence is credible is an issue to be decided by the trier of fact. (Code Civ. Proc., § 437c, subd. (c).)
The trial court's order granting Walden's motion for summary judgment concluded that summary judgment was proper because "at the time Aiello made the decision to terminate Franklin, she was unaware the [sic] Franklin had ever reported to anyone at Walden House harassment complaints made by Zavala." Walden's own evidence, however, included the previously-quoted declaration of Vitka Eisen stating that "the only individuals who were involved in the decisionmaking process resulting in Ms. Franklin's termination were myself, Ms. Aiello, Mr. Hanusa and Ms. Rogers." According to plaintiff Franklin's evidence, Ms. Rogers was the person who told Franklin in March of 2002 that Franklin would be terminated. This was clearly sufficient evidence to demonstrate the existence of a triable issue of fact.
[*23] III.
WALDEN AND DUARTE'S MOTION RE PLAINTIFF ZAVALA
A. Zavala's First Cause of Action for Sexual Harassment
Defendants Walden and Duarte attacked Zavala's first cause of action for sexual harassment on two grounds: first, that Zavala "cannot establish a prima facie case of sexual harassment because she cannot prove that Mr. Duarte's allegedly harassing conduct towards her was based on her sex"; and second, that Zavala's sexual harassment claim "fails because she cannot establish that the allegedly harassing conduct was so severe or pervasive as to alter the conditions of her employment and create an abusive working environment." Defendant Walden attacked Zavala's second cause of action for retaliatory discharge in violation of FEHA on the ground that "Walden House has legitimate non-retaliatory reasons for Plaintiff's termination, and Plaintiff cannot rebut these reasons with specific and substantial evidence of pretext, or otherwise establish that Walden House acted with retaliatory animus." The parties appear to assume, at least for purposes of the motion, that Duarte was Zavala's supervisor, and that Walden could therefore be held liable for any actionable [*24] sexual harassment committed by Duarte. (State Dept. of Health Services v. Superior Court, supra, 31 Cal. 4th at p. 1041.)
The evidence presented on this motion included evidence that at times during Zavala's September 1, 2001 to April 2, 2002 period of employment with Walden, defendant Duarte exhibited a number of behaviors which a reasonable trier of fact could deem to have been based on sex. Zavala testified that Duarte: (1) "would literally just stare at me" and "would look at my breasts" and "watched me all the time"; (2) told her that he was the person who, "about four" times, pressed a button sounding a security alarm and causing the staff to assemble in the building rotunda, and each time told Zavala he did this "so he could see me" and said to Zavala "I had to see you"; (3) on three or four occasions called her out of her counseling "cluster" and then told her that he was "getting his fix"; (4) constantly told her that she "looked nice" and sometimes told her that she "smelled good"; (5) followed her to the bathroom and timed how long she spent in the bathroom; (6) on one occasion invited her to lunch and, among other topics, "was asking me questions about [*25] my husband, how long I'd been married and if I was happily married." Zavala complained to Karen Franklin and to Darrell Hamilton about Duarte's behavior. She and Franklin went together to talk to Hamilton. She also complained to Wesley Childress and Melissa Rogers about Duarte's behavior. Zavala testified that Karen Franklin (then known as Karen Miles) told her that Darrell Hamilton had told Franklin "it's all taken care of." Duarte testified at his deposition: "Darrell (Hamilton) called me one day into his office and he says, stay away from Roxanne. I says, why. He says, just stay away from her. I said, okay. That was it." Duarte denied that he stared at Zavala, that he stared at Zavala's breasts, that he timed her trips to the bathroom, or that he ever called Zavala out of her cluster and told her he had to get his fix, or words to that effect.
Zavala testified that even after Darrell Hamilton placed her in a different "cluster" away from Duarte, Duarte "would still call me out of a cluster and tell me - you know, it wasn't stopping." She testified "It was supposed to stop, but it wasn't." Zavala did testify that after a three-way conversation among herself, Karen Franklin and Duarte, [*26] Duarte did stop telling Zavala that she looked and smelled nice. But Duarte's other behaviors, including apparently his triggering of the building alarm and calling her out of her cluster and telling her that he had to get his "fix," and following her to the bathroom, did continue. Zavala took a medical leave of absence beginning on or about February 28, 2002. She was crying, throwing up, and losing weight. She could not get out of bed.
Zavala reported back to work on April 2, 2002. She had told Karen Franklin the previous day that she (Zavala) would be back at work on April 2. She reported to her cluster at 7:00 a.m. on April 2. She received a phone call asking her to report to Program Director Steve Hanusa's office. She prepared a note stating that she was "advising Walden House that I'm filing a law suit against you for sexual harassment, and harassment against Walden House" and "if you have any questions my attorney will be in contact with you." Hanusa had Darrell Hamilton and Richard Soza paged. Those two men showed up. Zavala gave the note to "them" (apparently Hanusa, Hamilton, Soza, and whoever else may have been present). Zavala testified that Hamilton and Soza then "walked [*27] me off the yard."
Walden's evidence about the end of Zavala's employment was in direct conflict with Zavala's. A written memo dated April 2, 2002 from Hanusa to Zavala states that "on Tuesday, April 2, you did not return to work, and we have accepted your resignation effective today, April 2, 2002." Zavala testified that she did not receive Hanusa's April 2 memo when she was escorted off the yard on April 2, but received it later, in the mail with her last paycheck. She thus received Hanusa's memo only after she had given him the note advising him she would be suing Walden House.
Defendants' argument that Duarte's conduct cannot be considered to have been based on sex is unpersuasive. Defendants argue that "almost none of the conduct complained of contains sexual connotations or content" and that Zavala's complaints about defendant Duarte "center on his close supervision of her work performance and her continuing displeasure with such supervision." Defendants' argument ignores the evidence of Duarte's alleged breast staring, comments about Zavala's looking and smelling nice, setting off the alarm and then telling Zavala "that was me" and "I had to see you", and calling her out of [*28] her cluster and telling her he had to get his "fix." A trier of fact might possibly conclude otherwise.
Defendants' argument that Duarte's conduct could not possibly be deemed by a trier of fact to be sufficiently severe or pervasive to constitute actionable sexual harassment is similarly unpersuasive. In Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, at pages 130-131, the court stated:
"As the United States Supreme Court has recognized in the context of sexual harassment: 'Not all workplace conduct that may be described as "harassment" affects a "term, condition, or privilege" of employment within the meaning of Title VII. [Citations.] For sexual harassment to be actionable, it must be sufficiently severe or pervasive "to alter the conditions of [the victim's] employment and crate an abusive working environment." [Citation.]' (Meritor Savings Bank v. Vinson [(1986)] 477 U.S. 57, 67, 91 L. Ed. 2d 49.) The high court reaffirmed this standard in Harris v. Forklift Systems, Inc. [(1993)] 510 U.S. 17, 21-22, 126 L. Ed. 2d 295: 'Conduct that is not severe or pervasive enough to create an objectively hostile [*29] or abusive work environment -an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation.' Recently, the high court observed that it had 'made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment ….' (Faragher v. City of Boca Raton (1998) 524 U.S. 775, 788, 141 L. Ed. 2d 662.)
"California courts have adopted the same standard in evaluating claims under the FEHA. In rejecting an FEHA claim that alleged acts of sexual harassment directed toward other women had created a hostile work environment for the plaintiff, the Court of Appeal in Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d 590, 262 Cal. Rptr. 842 held that the harassment complained of must be 'sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment ….' (Id. at p. 608.) 'The plaintiff must prove that the defendant's [*30] 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.' (Id. at pp. 609-610, fn. omitted.) 'Harassment cannot be occasional, isolated, sporadic, or trivial['] rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature. [Citation.]' (Id. at p. 610.)" (In accord, see also Sheffield v. Los Angeles County Dept. of Social Services (2003) 109 Cal.App.4th 153, 161.)
The superior court granted summary judgment by reasoning as follows. First, it concluded that Duarte's timing of Zavala's bathroom breaks and close monitoring of her behavior were "not related to her sex." Were the superior court sitting as a trier of fact, as opposed to determining whether there was a triable issue of fact, it could most certainly have reasonably reached that conclusion based upon the evidence presented. The superior court appears to have accepted the defendants' argument that Duarte's conduct was simply appropriate supervision of Zavala. But given that there [*31] was evidence that Duarte "constantly" told Zavala that she looked and smelled nice, and that he triggered the alarm system so that he could look at Zavala, and that he called her out of her cluster so that he could get his "fix," a trier of fact might possibly conclude otherwise. The superior court's explanation for the purported insufficiency of Zavala's evidence makes no mention whatsoever of the evidence that on several occasions, and even after Zavala was no longer assigned to Duarte's cluster, he would call her out of her cluster and tell her he had to get his "fix." As for Duarte's triggering of the alarm, the court stated: "Even if Duarte did trigger the alarm on three or four occasions in order to watch and/or stare at plaintiff (which Duarte denied) the court does not view these isolated actions sufficiently severe to alter the conditions of plaintiff's work place." The court then cited Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, a case in which the court explicitly rejected the argument that "repeated acts of staring at a fellow worker cannot qualify as actionable sexual harassment as a matter of law." (Birschtein v. New United Motor Manufacturing, Inc., supra, 92 Cal.App.4th at p. 1001.) [*32] "Here, we decide only that the superior court erred when it granted the employer's motion for summary judgment on the ground an employee's conduct in staring at plaintiff at her workstation on an automotive assembly line was not actionable as a matter of law." (Birschtein v. New United Motor Manufacturing, Inc., supra, 92 Cal.App.4th at p. 997.) In Birschtein the appellate court reversed a summary judgment granted in favor of the employer, just as we do here. (See also Sheffield v. Los Angeles County Dept. of Social Services, supra, 109 Cal.App.4th 153, summary judgment in favor of employer reversed so that "a trier of fact could determine [whether] Appellant's conditions of employment had been drastically changed and that she was in a hostile work environment" (Id. at p. 164).)
B. Zavala's Second Cause of Action for Retaliation
As for Zavala's retaliatory discharge cause of action, a clear issue of fact exists. The superior court concluded that "plaintiff has failed to create a triable issue of fact that retaliation was defendant's determinative motive for her termination." Zavala's evidence is that she [*33] reported for work on April 2, told her employer she would be suing for sexual harassment, and was terminated. Walden's April 2 memo states that Zavala was terminated for failing to report for work on April 2.
DISPOSITION
The judgment is reversed. Costs on appeal are awarded to appellants.
Ardaiz, P.J.
WE CONCUR:
Harris, J.
Cornell, J.
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