Daily Blast May 14, 2013

On May 14, 2013, the Court of Appeal, Division Four (L.A.), issued an opinion in McCoy v. Pacific Maritime Association (May 14, 2013, B210953) ___ Cal.App.4th ___, analyzing several issues pertinent to employment litigation cases. The Court of Appeal held that: (1) summary adjudication of a sexual harassment claim under the hostile workplace theory was appropriate because, as a matter of law, the evidence plaintiff presented was not sufficiently pervasive to support a claim; (2) at trial, evidence of retaliation of two other employees could be relevant to the plaintiff’s retaliation claim; and (3) constructive discharge is not a prerequisite to an award of economic damages for discrimination under FEHA. (Slip opn., pp. 7-9, 12-13, 24-26.)

Female plaintiff employee filed suit against employer defendants for sexual harassment, intentional infliction of emotional distress and retaliation in violation of FEHA among other claims. (Slip opn., p. 5.) The trial court granted summary adjudication in favor of defendants on all claims except for the retaliation cause of action. (Ibid.) Before trial, the court granted a motion in limine to exclude evidence of allegations that defendants had retaliated against other employees. (Id. at p. 6.) After three days of deliberation, the jury returned a verdict for plaintiff and awarded $660,00 in economic damages and $540,000 in emotional distress damages. (Ibid.) The trial court granted judgment notwithstanding the verdict (JNOV) concluding there was no substantial evidence to support the jury verdict, but denied the motion for partial JNOV with respect to the economic damages. (Id. at pp. 6-7.) In the alternative, the trial court granted the motion for new trial on five separate grounds. (Id. at p. 7.)

The Court of Appeal upheld summary adjudication of the sexual harassment claim finding that plaintiff’s factual allegations were insufficient to support a sexual harassment claim under the workplace theory (Slip opn., p. 8.) To prevail on workplace sexual harassment claim, plaintiff must demonstrate that the conduct was severe enough or sufficiently pervasive to create a hostile work environment. (Id. at p. 7.) The claim is evaluated under the totality of the circumstances, including, the frequency of the discriminatory conduct, the severity, whether it is physically threatening or humiliating, and whether it unreasonably interferences with the an employee’s work performance. (Ibid.) Although the plaintiff does not need to be a direct target of the harassment, sexual conduct that is aimed at others is considered less offensive and severe than conduct that is directed at plaintiff. (Id. at p. 8.) The McCoy court explained that over the four months plaintiff was working, there were approximately 5 to 9 comments made by a male employee. (Id. at p. 8.) The comments included discussions of other women’s bodies outside of their presence and none were directed at plaintiff. (Ibid.) Although the comments were “crude and offensive, remarks were not so severe and pervasive as to alter the conditions of appellant’s employment; the conduct did not create a work environment ‘permeated’ with sexual harassment.” (Id. at pp. 8-9.) Further, because plaintiff admitted that she never informed management of these remarks, it could not be shown that defendants knew, or should have known of the alleged harassment and failed to take appropriate action. (Id. at p. 9.)  

The appellate court also determined that the trial court erred in excluding evidence based on relevance regarding retaliation against two other female employees similarly situated to plaintiff. (Slip opn., p. 12.) The court reasoned that “ intent is an element in an unlawful retaliation case, evidence that defendant intentionally retaliated against other employees for the same conduct engaged in by the plaintiff would be relevant.” (Ibid.) The court remanded for retrial and instructed the trial court to reconsider the evidence regarding retaliation against other employees. (Id. at p. 13.)

Finally, the Court of Appeal held that a constructive discharge is not a prerequisite to an award of economic damages. (Slip opn., p. 26.) Many federal courts have ruled that a constructive discharge is a prerequisite to recover economic damages. (Id. at p. 24.) However, the federal courts were applying this approach with employment discrimination under Title VII, not FEHA. (Ibid.) The McCoy court decided that federal court interpretations of Title VII are not instructive to interpreting FEHA because there are significant differences between federal law and FEHA. (Id. at pp. 24-25.) The court determined that although FEHA does not specify what damages are recoverable, it does not limit damages. (Id. at p. 25.) Therefore, under FEHA, all forms of relief are available “regardless of whether the party aggrieved was constructively discharged.” (Id. at p. 26.)

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