2007-16

Summary Judgment Reversed On Sexual Harassment Claim Where Triable Issues Existed As To Whether Supervisor’s Behavior Was Work Related

 In Myers v. Trendwest Resorts, Inc., the California Court of Appeal reversed summary judgment for the employer on the plaintiff’s claims for sexual harassment, failure to prevent harassment, and punitive damages. The court held that triable issues existed as to whether the alleged activities took place at least partially inside the scope of employment, and that there remained a dispute as to whether the employee was provided information about the legal remedies and complaint process available to her.

 Shortly after Plaintiff Alissia Myers began working for Trendwest Resorts, Inc. (“Trendwest”), a company devoted to timeshare sales, she began experiencing “unwanted and unwelcome sexual advances” from her project director, Ayman Damlahki. On May 29, 2003, Damlahki persuaded Myers to accompany him in his car on a “driving for dollars” sales trip, during which Damlahki allegedly physically assaulted Myers. Such trips, while not necessarily sanctioned by Trendwest, were a common method by which Trendwest representatives would solicit timeshare sales. In July 2003, a co-employee contacted Trendwest’s complaint hotline and stated that she was being forced to work in a hostile work environment which included the sexual harassment of Myers. Trendwest did not contact Myers regarding this allegation.

 On December 13, 2003, Trendwest discharged Myers from her employment, allegedly “in significant part because plaintiff had complained about the misconduct” of Damlahki. In January 2004, Myers contacted Trendwest’s complaint hotline and complained that Damlahki sexually harassed several months prior. Once again, Trendwest took no apparent action.

 Myers filed suit alleging causes of action for: (1) sexual harassment under the Fair Employment and Housing Act; (2) failure to take reasonable steps to prevent sexual harassment, (3) sexual battery; (4) intentional infliction of emotional distress; (5) retaliatory discharge; (6) false imprisonment; and (7) quid pro quo sexual harassment. The trial court granted Trendwest’s motion for summary judgment in its entirety. It held that the first, third and fourth counts failed because the alleged incidents took place outside of the workplace. It ruled that the second count failed because the underlying harassment claim failed, and also because of insufficient evidence “that Trendwest knew it needed to take additional steps to prevent sexual harassment beyond those in its established sexual harassment program.” Myers conceded that she had no evidence in support of her retaliation claim. The sixth count for false imprisonment “failed because Damlahki acted for his own personal gratification, and his conduct could not be imputed to Trendwest.” The seventh count for quid pro quo harassment failed because Myers lacked evidence “that her employment or advancement was conditioned in any way on a favorable response” to Damlahki’s overtures. Because there was no underlying wrongful conduct by Trendwest, the punitive damages claim failed as well. The trial court also granted Trendwest’s motion for attorneys’ fees in the amount of $40,000 (out of $125,000 requested), finding that some of Myers’ claims were frivolous.

 The Court of Appeal reversed the summary judgment as to the first and second counts and the punitive damage claim, reversed the attorney fee award, and otherwise affirmed the judgment. On the sexual harassment claim, the court cited State Dept. of Health Services v. Superior Court, 31 Cal. 4th 1026 (2003), for the proposition that “in order for the employer to avoid strict liability for the supervisor’s actions under the FEHA, the harassment must result from a completely private relationship unconnected with the employment. Otherwise, the employer is strictly liable for the supervisor’s actions regardless of whether the supervisor was acting as the employer’s agent.” The court concluded that the harassment did not result from a completely private relationship unconnected with Myers’ employment. There was no personal dating between Myers and Damlahki, and the “driving for dollars” trip, though not sanctioned by Trendwest, were of benefit to the company and “obviously connected with the employment.”

 The court held that Trendwest misapplied the doctrine of respondeat superior when considering an employer’s strict liability for a supervisor’s misconduct under the FEHA. Applying the rationale of Farmers Ins. Group v. County of Santa Clara, 11 Cal. 4th 992 (1995), the court held that the FEHA is designed to ensure that all employers maintain their worksites free from prohibited sexual harassment, regardless of whether the foreseeability of the acts involved. Based on the facts before it, the court held:

 The court also reversed summary adjudication on the second cause of action for failure to prevent, because it found triable issues as to the underlying harassment claim, and also because there was a triable issue as to whether Trendwest complied with Government Code section 12950, which imposes a statutory obligation to inform employees of remedies available through the Department of Fair Employment and Housing (“DFEH”) and the Fair Employment and Housing Commission (“FEHC”). Although Trendwest claimed that it distributed information about its anti-harassment policy to employees, Trendwest’s statement of undisputed facts did not state that Trendwest informed its employees about the DFEH and FEHC.

 The court upheld summary adjudication as to the common law claims for sexual battery, intentional infliction, and false imprisonment. Unlike the statutory sexual harassment claim, these common law claims required proof that Damlahki’s conduct was within the scope of his employment. The court held that Damlahki’s actions were “outside of the scope of employment as a matter of law,” because they were “motivated by personal reasons unrelated to his job duties and in violation of the employer’s sexual harassment policy.”

 Because the court overturned summary adjudication as to Myers’ FEHA claims, it also reversed as to punitive damages and attorneys’ fees.

Civil Service Commission Improperly Reduced Penalty Imposed On Sheriff’s Office Employee Who Made Inmate Sentencing Errors

 In Kolender v. San Diego County Civil Service Commission, the California Court of Appeal affirmed the trial court’s judgment that the San Diego County Civil Service Commission abused its discretion in reducing the San Diego County Sheriff’s decision to demote a supervisory employee in his office.

 Margaret Gant worked for the sheriff’s office as a detention processing technician for more than 10 years when she was promoted to a supervisory role in 1998. Among other performance deficiencies, Gant erroneously entered sentencing information into the sheriff’s computer system, resulting in a calculation of an inmate’s imprisonment of 91 days as opposed to 57 days. In another situation, Gant supervised a technician who improperly entered sentencing information which resulted in an inmate serving less than his full sentence. The error was discovered but Gant did not ensure that it was corrected.

 Internal Affairs investigated Gant and issued an order of demotion on October 6, 2005. Gant immediately appealed. Also at that time, Gant was appealing her 2004-2005 performance evaluation which showed over 20 areas of performance as “needing improvement,” including the two sentencing errors. After the internal appeal, a “fully competent” evaluation was issued on October 21, 2005, but none of the areas of recommended improvement were deleted. Although Gant admitted responsibility for the two sentencing errors, the Civil Service Commission reduced her penalty to a temporary demotion and reinstated her as a supervisor, based solely on her overall rating as “fully competent.”

 The sheriff filed a petition for writ of administrative mandate, requesting that the superior court vacate the Commission’s order. The trial court granted the petition and found that the Commission had abused its discretion in reducing the penalty in light of the admitted sentencing errors Gant had made and due to her prior discipline. The Court of Appeal affirmed, agreeing that the Commission abused its discretion by focusing only on the modified conclusion of Gant’s 2004-2005 evaluation, “which was not well supported by the body of the evaluation. [The] 20 plus factors identified as ‘needing improvement’ … strongly suggest, as part of the circumstances surrounding the misconduct, a clear likelihood of recurrence. These comments may not be entirely discounted merely because the rating is on its face favorable to the employee’s position.” The court agreed with the trial court’s comments in its statement of decision: “To condone sentencing errors, failing to report overdetentions to supervisors and ignoring Department directives regarding staffing would directly result in harm to the inmates, departmental staff and the public at large.”

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