Chapman v. Enos

Facts

Liability for harassment under the FEHA runs along a line drawn by status. As the court restated the rule, “[u]nder the FEHA, an employer is strictly liable for the harassing actions of its supervisors and agents,” but “‘is only liable for harassment by a coworker if the employer knew or should have known of the conduct and failed to take immediate corrective action.’” (Chapman v. Enos (2004) 116 Cal.App.4th 920, 928, quoting Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1046.) And at the time of trial, an individual harasser faced no personal liability to a coworker absent a supervisory relationship: the case “proceeded on the theory that an employee is not personally liable to a coworker for sexual harassment under the FEHA absent a supervisory relationship.” (Id. at p. 928, citing Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132, 1134.) Everything in the case therefore turned on one statutory word.

The FEHA borrows its definition of that word from labor law. Government Code section 12926, subdivision (r) defines a supervisor as “‘any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.’” (Chapman, supra, 116 Cal.App.4th at p. 926.) That subdivision was added to the FEHA in 1999 to import “the definition of supervisor employed by the Agriculture Labor Relations Act,” and the Legislative Counsel’s Digest described the amendment as “declaratory of existing law.” (Ibid.) The standard pattern instruction, BAJI No. 12.08, tracked that statutory text verbatim. (Ibid.)

April Chapman became an investigator for the Sonoma County District Attorney’s Office in 1988, after ten years as a deputy sheriff. (Chapman, supra, 116 Cal.App.4th at p. 922.) Her work involved investigating criminal and civil complaints, interviewing witnesses, and evaluating information, all “‘under limited direction.’” (Ibid.) Structurally, Chapman “performed her duties under the direction of the deputy district attorney assigned to her unit but was under the supervision of the senior and chief investigators.” (Ibid.) The senior and chief investigators and the district attorney hired and fired investigators; the senior or chief investigator approved vacation leave. (Ibid.) But an investigator assigned to a vertical-prosecution unit “worked as a team with the deputy district attorney assigned to that unit and received instructions from that attorney.” (Ibid.)

In January 1997, Chapman was assigned to the major fraud unit, where Bruce Enos was the deputy district attorney in charge. (Chapman, supra, 116 Cal.App.4th at p. 923.) The unit sat in a satellite office suite; Enos and Chapman worked there for most of the day while the other deputies came only in the mornings or late afternoons. (Ibid.) Chapman did front-line investigations — interviewing witnesses, obtaining search warrants, preparing cases — and during her time in the unit, “Enos directed her in virtually all of her duties,” while “[s]he received no assignments from her direct supervisors, the senior and chief investigators.” (Ibid.) Although Enos could neither promote her nor prepare her evaluations, “the chief investigator would ordinarily seek his input in evaluating Chapman.” (Ibid.) Chapman also “routinely ‘cleare[d]’ her time off with Enos prior to seeking approval from the chief investigator, and believed that this was required,” and she understood Enos to be her supervisor, or her “boss.” (Ibid.) Enos and the County took the contrary view: Enos testified that he was not responsible for Chapman’s work performance and was not subject to discipline if her work was deficient, and the deputies “do not tell investigators how to do their work, but do ‘direct’ the investigators’ work in the sense of describing and assigning the tasks to be done.” (Id. at pp. 923–924.) “In effect, both Enos and the County denied that Enos exercised any supervisory authority over Chapman.” (Id. at p. 924.)

The harassing conduct itself was largely uncontested. Within two months Enos’s behavior changed: he eavesdropped on Chapman’s phone calls and grew preoccupied with her social life, conceding that he had “developed a crush” on her. (Chapman, supra, 116 Cal.App.4th at p. 924.) He asked to accompany her on field trips and noontime walks, commented on watching her change clothes, gave her gifts, asked her to join him on a cruise, prepared a sexualized caricature business card, and asked, “‘If I kill my wife, would you run away with me?’” (Ibid.) After Chapman told him his attentions were inappropriate, another deputy left her a heavy-breathing voice mail with Enos audible in the background, laughing. (Ibid.) The conduct left Chapman “‘[r]eally miserable,’” causing chronic stomach problems, sleeplessness, and loss of concentration. (Ibid.) On November 10, 1998, she reported Enos to the District Attorney, who transferred her to the main office and suspended Enos for one week. (Id. at pp. 924–925.)

Procedural history

Chapman sued in November 1999 for sexual harassment, retaliation, failure to promote, public disclosure of private facts, breach of contract, breach of the implied covenant, and negligent and intentional infliction of emotional distress, naming the County, the District Attorney (Mullins), Enos, and others. (Chapman, supra, 116 Cal.App.4th at p. 925.) On summary judgment the trial court disposed of the contract, covenant, and negligent-infliction claims, but “denied defendants’ motion for summary judgment on the sexual harassment claim, finding that there was a triable issue of fact as to whether Enos’s conduct constituted sexual harassment and whether he was a supervisor.” (Ibid.)

The remaining claims went to a jury, which returned a special verdict: “Chapman had not proven by a preponderance of the evidence that Enos was her supervisor.” (Chapman, supra, 116 Cal.App.4th at p. 925.) On the retaliation claim the jury found that Mullins took an adverse employment action motivated by Chapman’s harassment complaint, but that a legitimate, nondiscriminatory reason justified it; it also rejected the private-facts claim. (Ibid.) Chapman moved for a new trial, “contending that the court erroneously modified the language defining a supervisor in BAJI No. 12.08.” (Ibid.) The trial court denied the motion, ruling that its modified instruction was a correct statement of the law and that, even if erroneous, Chapman had failed to object and had invited the error by citing a First Circuit case, Maine Yankee Atomic, etc. v. N.L.R.B. (1st Cir. 1980) 624 F.2d 347, in her trial brief. (Ibid.)

On appeal, the Court of Appeal first dispatched a threshold objection that Enos was not properly a party because Chapman had failed to serve him with the notice of appeal. The court rejected it: under former rule 1(a)(3) of the California Rules of Court, “‘[f]ailure to serve the notice of appeal neither prevents its filing nor affects its validity, but the appellant may be required to remedy the failure,’” and Chapman had cured the defect by obtaining Enos’s agreement to waive any service defects. (Chapman, supra, 116 Cal.App.4th at p. 926.) The court then reached the merits and reversed; the panel was unanimous, Justice Rivera writing for Presiding Justice Kay and Justice Sepulveda. (Id. at pp. 922, 933.)

Issue

The appeal posed a question of statutory construction with a direct line to liability: did the trial court err when it modified BAJI No. 12.08 to require, as a condition of supervisor status under the FEHA, that the person directing the employee’s work “‘be directly responsible for the performance of his or her department or unit and … be fully accountable and responsible for the performance and work product of the employees in his or her department or unit’”? (Chapman, supra, 116 Cal.App.4th at pp. 926–927.) Chapman’s theory was that Enos qualified as her supervisor not through any power to hire, fire, promote, or transfer — which she conceded he lacked — but solely “because he had the responsibility to direct her work.” (Id. at p. 929.) Two antecedent questions had to be cleared first: whether Chapman had waived the error by failing to object, and whether she had invited it. And if the instruction was wrong, a third question followed — whether the error was prejudicial enough to require reversal under article VI, section 13 of the California Constitution.

Holding

Reasoning

The supervisor question was the whole case. The court began by fixing the stakes of the instruction. “Enos’s and County’s liability for sexual harassment devolved almost entirely on the issue of whether Enos was a supervisor within the meaning of the FEHA.” (Chapman, supra, 116 Cal.App.4th at p. 928.) Strict liability attaches to an employer for a supervisor’s harassment, while a coworker’s harassment is actionable only on a knew-or-should-have-known showing; and the case had been tried on the premise — drawn from Carrisales — that an individual is “not personally liable to a coworker for sexual harassment under the FEHA absent a supervisory relationship.” (Ibid.) The court noted in a footnote that the Legislature had since amended the FEHA to make coworkers personally liable for harassment (Gov. Code, § 12940, subd. (j)(3)), and that the retroactivity of that amendment was then pending before the Supreme Court, but Chapman did not press the point on appeal. (Id. at p. 928, fn. 7.) The case therefore stood or fell on whether Enos was a supervisor, which in turn depended on the instruction the jury received.

No waiver: a party who defends the correct instruction is deemed to have excepted to its modification. Defendants argued Chapman had forfeited the issue by failing to object when the court modified BAJI No. 12.08. The court disagreed. The instruction conference was unreported and the record showed “Chapman interposed no objection to the modified instruction.” (Chapman, supra, 116 Cal.App.4th at p. 927.) But “Chapman did maintain that the BAJI instruction was accurate and that no revisions were necessary,” and on that record she “is deemed to have excepted to the court’s modified instruction” under Code of Civil Procedure section 647, which deems excepted to the giving, refusing, or modifying of an instruction. (Id. at pp. 927–928.) Quoting Agarwal v. Johnson (1979) 25 Cal.3d 932, 949, the court explained that requiring a party to correct an adversary’s erroneous instructions “‘would be in contravention of section 647,’” which preserves the exception except where an instruction states the law correctly but is merely too general. (Id. at p. 928.) The court conceded the “question is a close one,” but found “no waiver.” (Id. at pp. 927, 928.)

No invited error: the court used the defendants’ authority, not the plaintiff’s. Defendants separately claimed Chapman had invited the error by citing a federal NLRB case in her trial brief. The record refuted the charge. The court had requested briefing on the meaning of “responsibility to direct,” and Chapman responded by citing N.L.R.B. v. Fullerton Publishing Co. (9th Cir. 1960) 283 F.2d 545 — quoting its definition that “‘[t]o be responsible is to be answerable for the discharge of a duty or obligation’” — while also taking the position that the unmodified BAJI No. 12.08 “was sufficient.” (Chapman, supra, 116 Cal.App.4th at p. 927.) The trial court, however, “did not employ the Fullerton language Chapman quoted in her brief.” (Id. at p. 928.) Instead, it built the modification from Maine Yankee — “a case upon which Enos relied in his trial brief” and whose “fully accountable and responsible” language only Enos, not Chapman, had quoted. (Id. at pp. 927–928.) The court noted that the trial court had “mistakenly” attributed the Maine Yankee citation to Chapman’s brief, and concluded “there was no invited error.” (Id. at p. 928 & fn. 6.)

Borrowing NLRA gloss to construe the FEHA was itself suspect. Turning to the merits, the court observed that the trial court had drawn its “fully accountable and responsible” formula from Maine Yankee, which construed the identical supervisor definition under the National Labor Relations Act. (Chapman, supra, 116 Cal.App.4th at p. 929.) That reliance was problematic. California courts look to federal interpretations of Title VII when the FEHA’s language is similar, but “‘while federal cases may be instructive in interpreting the FEHA, they are not controlling.’” (Ibid., quoting Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 643, and Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 74.) The danger was sharper here, the court said, because “the court’s reliance on federal law involved, not title VII, but the NLRA and an interpretation of the statutory language in an unrelated factual context.” (Id. at p. 929, fn. 8.)

And Maine Yankee did not even support the gloss. The court read the federal case on its own terms. Maine Yankee concerned whether a shift-operating supervisor at a nuclear plant was a statutory supervisor exempt from a bargaining unit; the court there found him so because he directed three employees per shift and bore unique answerability for the plant’s “‘nerve center,’” the control room, where operator error could imperil the surrounding countryside. (Chapman, supra, 116 Cal.App.4th at pp. 929–930.) That the Maine Yankee supervisor happened to be “‘held fully accountable and responsible for the performance and work product of the [employees] in his department’” was a feature of those extraordinary facts, not a definitional requirement. (Id. at p. 930.) Thus, the court held, “while full accountability and responsibility are certainly indicia of supervisory power, they are not required elements of either the Maine Yankee, or the FEHA definition of supervisor.” (Ibid.) “Indeed, many supervisors with responsibility to direct others using their independent judgment, and whose supervision of employees is not merely routine or clerical, would not meet these additional criteria though they would otherwise be within the ambit of the FEHA supervisor definition.” (Ibid.)

The statute’s plain language fixes its own limiting condition. Defendants fell back on the dictionary, arguing that “responsibility to direct” is the functional equivalent of being “fully accountable and responsible” because “responsible” means “marked by accountability.” (Chapman, supra, 116 Cal.App.4th at pp. 930–931.) The court found the argument “unhelpful for two reasons.” (Id. at p. 931.) “First, one can be accountable for one’s own actions without being accountable for those of others.” (Ibid.) Second, the argument “‘ignore[s] the plain language of … the statute which itself defines the circumstances under which the exercise of the responsibility to direct will be considered supervisory, i.e., “if … [it] is not of a merely routine or clerical nature, but requires the use of independent judgment.”’” (Ibid.) The statute, in other words, already supplied the qualifier the trial court thought it was adding — and the qualifier was independent judgment, not full accountability. Construing the FEHA “broadly, to protect employees’ rights to seek and hold employment without discrimination” (id. at p. 931, citing Kelly v. Methodist Hospital of So. California (2000) 22 Cal.4th 1108, 1114), the court concluded the modification “significantly restricted the class of employees subject to liability for sexual harassment, contrary to the FEHA,” and “impaired Chapman’s rights under the statute.” (Ibid.)

There was real evidence Enos was a supervisor — making the over-strict instruction consequential. The court underscored that this was no harmless abstraction: “there is evidence that Enos was a supervisor within the meaning of the FEHA.” (Chapman, supra, 116 Cal.App.4th at p. 930.) Though the senior and chief investigators ultimately supervised Chapman, “it was undisputed that Enos directed her day-to-day duties,” that in two years she received “only three assignments from others,” that the chief investigator “would ordinarily obtain information from the deputy district attorney … in order to evaluate the investigator,” that Chapman “always cleared her time off with Enos,” and that she “believed Enos was her supervisor or ‘boss.’” (Ibid.) The court found EEOC enforcement guidance “useful here, although not controlling,” for its view that an individual qualifies as a supervisor if he “‘has authority to direct the employee’s daily work activities,’” and that even a harasser without actual authority can create vicarious liability “‘if the employee reasonably believed that the harasser had such power.’” (Id. at p. 930, fn. 10.) It also brushed aside Enos’s oral-argument point that “responsibility to direct” is qualified by “in the interest of the employer,” since no one claimed Enos’s directions were not in the County’s interest. (Id. at p. 930, fn. 9.)

The error was prejudicial because it controlled the pivotal finding. An erroneous instruction “‘is not inherently prejudicial’” and requires reversal only where it is probable that it “‘“prejudicially affected the verdict,”’” judged against the state of the evidence, the other instructions, counsel’s arguments, and any indication the jury was misled. (Chapman, supra, 116 Cal.App.4th at pp. 931–932, quoting Soule v. General Motors Corp. (1994) 8 Cal.4th 548, and Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 983.) Every factor pointed the same way. The error “centered on the key issue in the case,” and without a supervisor finding the jury could never reach whether Enos’s conduct was harassment. (Id. at p. 932.) The record held “substantial evidence” of a responsibility to direct, making a supervisor finding “likely, or at least possible” but for the added requirements. (Ibid.) Counsel had hammered the very language at issue: the County called full accountability “‘the critical factor’” and Enos’s counsel told the jury the “‘real key’” and “‘critical element’” was whether Enos was “‘held fully accountable and responsible for Ms. Chapman’s work performance.’” (Ibid.) And in an “unusual circumstance,” the jury appended a statement to its verdict expressing concern that its verdicts “‘could send some unintended messages’” about “‘business as usual’” on workplace harassment. (Id. at pp. 932–933.) The court declined to rely on two juror declarations Chapman offered, holding they impermissibly impeached the verdict by probing the jurors’ “subjective reasoning process” under Evidence Code section 1150. (Id. at p. 933, fn. 11.) Even without them, “[t]he record as a whole leaves little doubt that the modified jury instruction was instrumental in leading the jury to find that Enos was not a supervisor,” making a miscarriage of justice reasonably probable. (Ibid.)

Significance

Chapman is a precise guardrail around the FEHA’s borrowed definition of “supervisor” (Gov. Code, § 12926, subd. (r)) — the gateway to both employer strict liability and, for harassers, personal exposure. Its doctrinal contribution is the refusal to convert indicia of supervisory power into elements of it: full accountability for subordinates’ work product is evidence a person is a supervisor, but its absence does not defeat supervisory status where the person has the independent-judgment responsibility to direct another’s work. (Chapman, supra, 116 Cal.App.4th at p. 930.) That distinction matters in the very common fact pattern this case presents: a project lead, lead attorney, or working manager who controls a subordinate’s daily tasks without sitting in the formal chain of hiring, firing, and evaluation. After Chapman, such a person can be a FEHA supervisor.

The opinion also reinforces two methodological points that recur across FEHA litigation. It restates the limit on importing federal labor and Title VII gloss — instructive but “not controlling,” and least persuasive when drawn from an unrelated statute (the NLRA) and an unrelated factual context. (Chapman, supra, 116 Cal.App.4th at p. 929 & fn. 8.) And it applies the broad-construction canon of Kelly to resolve an instructional dispute in the employee’s favor, treating any judicial narrowing of the statutory class of supervisors as an impairment of the FEHA’s protective purpose. (Id. at p. 931.) The decision sits within the line — running through Carrisales and the subsequent statutory response in Government Code section 12940, subdivision (j)(3) — that defines who, individually, may be held to answer for workplace harassment. Its reach is bounded by its posture: it is an instructional-error reversal, not a holding that Enos was a supervisor. The court held only that a properly instructed jury could so find. (Id. at pp. 930, 933.)

Key quotes

“[W]hile full accountability and responsibility are certainly indicia of supervisory power, they are not required elements of either the Maine Yankee, or the FEHA definition of supervisor.” (Chapman v. Enos (2004) 116 Cal.App.4th 920, 930.)

“We, therefore, conclude the court erred in instructing the jury that a supervisor must be fully accountable and responsible for the employee’s performance and work product. In our view, the error significantly restricted the class of employees subject to liability for sexual harassment, contrary to the FEHA.” (Id. at p. 931.)

“The record as a whole leaves little doubt that the modified jury instruction was instrumental in leading the jury to find that Enos was not a supervisor. … We, therefore, conclude it is reasonably probable that the instructional error resulted in a miscarriage of justice.” (Id. at p. 933.)

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Practice pointer

Open questions

The opinion expressly reserved the coworker-liability question that the Legislature’s post-Carrisales amendment raised. Chapman had argued below that Government Code section 12940, subdivision (j)(3) — making coworkers personally liable for harassment — applied retroactively, but the trial court ruled it did not, the issue was “currently pending before our Supreme Court” in a granted-review case, and “Chapman does not urge the applicability of … subdivision (j)(3) on appeal.” (Chapman, supra, 116 Cal.App.4th at p. 928, fn. 7.) The court therefore did not decide whether, on retrial or in future cases on these facts, an alleged harasser who is not a supervisor could nonetheless be personally liable as a coworker — leaving the individual-liability question to turn, as it did at trial, entirely on supervisory status.

The decision also leaves the ultimate factual question undecided. The court held only that there was “evidence that Enos was a supervisor” sufficient to make the instructional error prejudicial; it did not hold that Enos was a supervisor as a matter of law. (Chapman, supra, 116 Cal.App.4th at pp. 930, 933.) On remand, whether the responsibility-to-direct evidence — day-to-day direction, near-exclusive assignment authority, input into evaluations, time-off clearance, and Chapman’s reasonable belief — adds up to FEHA supervisor status was for a properly instructed jury to decide. The opinion thus marks the outer boundary of the definition without fixing where, on this record, the line falls.