Lewis v. City of Benicia

Facts

The Fair Employment and Housing Act (FEHA; Gov. Code § 12900 et seq.) prohibits a “broad range of conduct, ranging from expressly or impliedly conditioning employment benefits on submission to or tolerance of unwelcome sexual advances, to the creation of a work environment that is hostile or abusive on the basis of sex.” (Lewis, supra, 224 Cal.App.4th at p. 1524.) A hostile-work-environment claim requires the plaintiff to show that he or she “was subjected to unwelcome sexual advances, conduct or comments,” that “the harassment was based on … sex,” and that it “was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.” (Ibid.) An individual employee who harasses a coworker may be held personally liable. (Ibid.; Gov. Code § 12940, subd. (j)(3).)

Critically here, FEHA’s definitional provision states that “’harassment’ because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.” (Gov. Code § 12940, subd. (j)(4)(C), as amended by Stats. 2013, ch. 88, § 1; see Lewis, supra, 224 Cal.App.4th at p. 1527, fn. 8.) The court observed that the italicized “need not be motivated by sexual desire” language was added by the 2013 amendment. (Ibid.)

Plaintiff Brian Lewis, “a heterosexual man,” worked at the City of Benicia’s water treatment plant in three stints between March 2008 and May 2009: first as a volunteer, then as a paid intern for a 60-day internship, and finally as a volunteer again. (Lewis, supra, 224 Cal.App.4th at pp. 1522–1523.) He alleged that two supervisors sexually harassed him — Steve Hickman (his supervisor during the first volunteer period and most of the internship) and Rick Lantrip (his supervisor during the last weeks of the internship and the second volunteer period). (Id. at p. 1523.)

As to Hickman, Lewis testified that Hickman gave him “about 30 different items as gifts,” including “’tuxedo underwear,’ with ruffles and a bow tie,” along with hats, T-shirts, wine, shot glasses, and backpacks; “frequently bought lunch for Lewis”; once said, when Lewis picked up Hickman’s cigarette, “’[W]hy don’t you just kiss me[?]’”; and once said Lewis “should visit his home.” (Lewis, supra, 224 Cal.App.4th at p. 1527.) Hickman also showed Lewis pornographic images on his office computer — “a video of a penis in a rat trap and an image of a woman with lopsided breasts” — and told “’risqué’” jokes. (Ibid.) As to Lantrip, Lewis testified that two or three times while Lantrip was his supervisor, Lantrip “displayed pornographic images” on a secretary’s work computer and “called Lewis and others over to look at them,” and that Lantrip frequently massaged or rubbed the shoulders of the secretary, Cindy Hirakawa, in front of others. (Id. at p. 1530.) Lewis testified Lantrip “did not sexually harass him” while supervising him as a volunteer. (Id. at p. 1531.)

Procedural history

Lewis sued the City, Hickman, and Lantrip for sexual harassment, intentional infliction of emotional distress, and failure to prevent sexual harassment, and sued the City alone for retaliation. (Lewis, supra, 224 Cal.App.4th at p. 1523.) The trial court granted summary judgment for Hickman and Lantrip, then granted the City’s motion for judgment on the pleadings on the harassment, failure-to-prevent, and emotional-distress claims. (Ibid.) The retaliation claim against the City proceeded to a jury, which returned a special verdict finding that Lewis participated in protected activity, that the City took adverse action materially affecting his employment, and that his protected activity was a motivating reason — but that the City’s conduct “was not a substantial factor in causing harm to Lewis.” (Ibid.) Judgment was entered for the City and, later, for the two supervisors. (Ibid.)

The Court of Appeal consolidated for argument and decision Lewis’s appeal of the judgment for the City (No. A134078) and his appeal of the judgments for Hickman and Lantrip (No. A134114). (Lewis, supra, 224 Cal.App.4th at p. 1523.) The court reviewed the summary judgment rulings de novo, considering “only the evidence submitted to the trial court with the parties’ summary judgment papers,” and reviewed the in limine and expert-exclusion rulings for abuse of discretion. (Id. at pp. 1524, 1535, 1537.)

Issue

Three questions framed the appeal. First, whether the evidence raised a triable issue that each supervisor’s same-sex conduct was “because of sex” and was severe or pervasive enough to be actionable under FEHA. (Lewis, supra, 224 Cal.App.4th at pp. 1524–1525, 1530.) Second, whether the judgment on the pleadings for the City could stand once the underlying harassment theory was reexamined. (Id. at p. 1532.) Third, whether the trial court prejudicially erred by excluding all evidence of sexual harassment, and by excluding the plaintiff’s expert psychologist, at the retaliation trial. (Id. at pp. 1533–1534.)

Holding

Reasoning

Same-sex harassment must still be “because of sex,” and Oncale supplies the evidentiary routes. Drawing on Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75 and California’s Lyle and Kelley decisions, the court reaffirmed that “sexual harassment can occur between members of the same gender as long as the plaintiff can establish the harassment amounted to discrimination because of sex.” (Lewis, supra, 224 Cal.App.4th at p. 1525.) Oncale identified “alternative ‘evidentiary route[s]’”: an inference is “easy to draw” where there are “’explicit or implicit proposals of sexual activity’” coupled with “’credible evidence that the harasser was homosexual’”; conduct motivated by “general hostility to the presence of [one sex] in the workplace”; and “direct comparative evidence about how the alleged harasser treated members of both sexes.” (Id. at pp. 1525–1526.) But “[w]hatever evidentiary route the plaintiff chooses,” he must “always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimination … because of … sex.’” (Id. at p. 1526.)

The court navigated the Singleton–Kelley split by resting on genuine sexual interest — and so reserved the § 12940(j)(4)(C) question. The opinion candidly noted that “California appellate courts have disagreed as to the evidentiary showing needed to support an inference that same-gender harassment constitutes discrimination on the basis of sex.” (Lewis, supra, 224 Cal.App.4th at p. 1526.) Singleton and Mogilefsky held a plaintiff “need not prove the alleged harasser was motivated by sexual interest” where the conduct was designed to humiliate and challenge his gender identity; Kelley disagreed, requiring “evidence the alleged harasser was acting from genuine sexual interest.” (Id. at pp. 1526–1527.) The court declined to choose: “We need not determine whether a same-gender sexual harassment claim based on sexual propositions or comments is viable in the absence of evidence the harasser was motivated by sexual interest, because the evidence in the present case allows an inference Hickman was motivated by sexual interest.” (Id. at p. 1527.) For the same reason, it expressly reserved the effect of the newly amended provision that “[s]exually harassing conduct need not be motivated by sexual desire,” reasoning that “even if evidence of sexual desire is necessary, triable issues of material fact preclude summary adjudication.” (Id. at p. 1527, fn. 8.)

Hickman’s course of conduct supported an inference of sexual interest and pervasiveness; Kelley was distinguishable. Viewing the gifts, frequent lunches, the “’kiss me’” remark, the suggestion that Lewis visit his home, and the pornographic images together, the court held “a reasonable jury could conclude Hickman engaged in ‘sexual advances, conduct, or comments’ … and acted from ‘genuine sexual interest.’” (Lewis, supra, 224 Cal.App.4th at pp. 1527–1528.) Kelley was distinguishable because there the conduct was “an isolated outburst of profane insults,” whereas Hickman “allegedly engaged in a course of conduct from which a reasonable jury could infer he was pursuing a relationship with Lewis.” (Id. at p. 1528.) On severity or pervasiveness, the court applied the totality-of-the-circumstances test from Miller and Harris, holding that “numerous gifts and frequent lunch purchases, along with some sexual jokes and displays of pornographic computer images, over a period of several months” supported an inference of a “pervasive pattern of harassing conduct.” (Id. at p. 1529.) That Lewis did not refuse the gifts and that his work performance was not shown to suffer were not dispositive, because “no single factor is required.” (Id. at pp. 1529–1530.)

Lantrip’s conduct, by contrast, was neither because of sex nor pervasive. Unlike Hickman, “there is no evidence Lantrip pursued a romantic or sexual relationship with Lewis, made any explicit or implicit proposals of sexual activity, or acted from genuine sexual interest in Lewis.” (Lewis, supra, 224 Cal.App.4th at p. 1531.) Nor was there evidence of the Singleton-style attack on Lewis’s “sexual identity as a heterosexual male.” (Ibid.) The court rejected Lewis’s reliance on Miller: Lantrip’s massaging of Hirakawa did not show “the type of widespread sexual favoritism” that, in Miller, created a demeaning atmosphere conveying that “the way required for women to get ahead … is to engage in sexual conduct with their supervisors.” (Id. at pp. 1531–1532.) Because no triable issue existed on either the Singleton theory or genuine sexual interest, the court — again — did not reach the § 12940(j)(4)(C) amendment. (Id. at p. 1531, fn. 16.)

Excluding all harassment evidence and the plaintiff’s expert at the retaliation trial was prejudicial error. Evidence of Hickman’s conduct was “probative as to whether Lewis engaged in protected activity,” “relevant to whether City’s subsequent alleged adverse employment actions were motivated by Lewis’s complaints,” and relevant to “whether City’s retaliatory acts caused harm, such as emotional distress.” (Lewis, supra, 224 Cal.App.4th at pp. 1535–1536.) The trial court’s “blanket exclusion of all evidence of sexual harassment” under Evidence Code section 352 was an abuse of discretion because the City never argued that “admission of any evidence of Hickman’s alleged sexual harassment … would have caused undue prejudice.” (Id. at p. 1536.) Excluding the plaintiff’s psychologist was likewise error: the trial court’s order to produce test results “forthwith” was “ambiguous” as to recipient, so producing them to the City’s expert reasonably complied. (Id. at pp. 1537–1538.) Both errors were prejudicial because the jury had found no causation of harm, and the excluded evidence — expert testimony on emotional distress and the harassment context — went directly to that element. (Id. at pp. 1538–1539.) The court refused a partial retrial limited to causation, because reversing only that finding “would leave a partial special verdict … and would not establish City’s liability,” and a second jury would not know which acts the first found retaliatory. (Id. at pp. 1539–1540.)

Significance

Lewis is a useful waypoint in the law governing same-sex sexual harassment under FEHA. It crisply restates the Oncale evidentiary framework as adopted in California and applies it side by side to two supervisors on the same record, illustrating where the “because of sex” line falls: a sustained, individualized course of attention from which a jury could infer romantic or sexual pursuit (Hickman) crosses it; group displays of pornography and shoulder-rubbing of a third person directed at no one in particular (Lantrip) do not. (Lewis, supra, 224 Cal.App.4th at pp. 1527–1532.)

The decision is equally notable for what it withheld. By twice declining to decide the effect of the 2013 amendment to Gov. Code section 12940, subdivision (j)(4)(C) — which codified that “[s]exually harassing conduct need not be motivated by sexual desire” — the court left the Singleton–Kelley conflict over the necessity of proving the harasser’s sexual interest unresolved at the appellate level, while flagging that Taylor v. Nabors Drilling USA, LP had recently sided with Singleton against Kelley. (Id. at pp. 1527 & fn. 8, 1531 & fn. 16.) Practitioners should treat Lewis as confirming that the genuine-sexual-interest route remains available, not as settling whether it is required. The opinion is fully published; no portion is certified for partial publication.

Key quotes

“We need not determine whether a same-gender sexual harassment claim based on sexual propositions or comments is viable in the absence of evidence the harasser was motivated by sexual interest, because the evidence in the present case allows an inference Hickman was motivated by sexual interest.” (Lewis, supra, 224 Cal.App.4th at p. 1527.)

“Based on the course of alleged conduct summarized above, which included numerous gifts and frequent lunch purchases, along with some sexual jokes and displays of pornographic computer images, over a period of several months, a reasonable jury could conclude Hickman engaged in a pervasive pattern of harassing conduct.” (Id. at p. 1529.)

“In contrast to the evidence pertaining to Hickman … there is no evidence Lantrip pursued a romantic or sexual relationship with Lewis, made any explicit or implicit proposals of sexual activity, or acted from genuine sexual interest in Lewis.” (Id. at p. 1531.)

Read the full opinion (Justia) →

Practice pointer

Open questions

The central reserved question is whether, after the 2013 amendment, a same-sex FEHA harassment plaintiff must still prove the harasser acted from genuine sexual interest, or whether Singleton‘s gender-identity-attack theory suffices without it. The court twice declined to resolve the Singleton–Kelley conflict or to construe section 12940, subdivision (j)(4)(C). (Lewis, supra, 224 Cal.App.4th at p. 1527, fn. 8; id. at p. 1531, fn. 16.) It also left open whether FEHA’s protections extend to unpaid volunteers — Lantrip raised the issue, but the court resolved his appeal on other grounds and “need not address this argument.” (Id. at p. 1532, fn. 17.) Finally, the court declined to reach the City’s alternative discovery-sanction ground for excluding the computer-image testimony and several of Lewis’s other claimed trial errors. (Id. at pp. 1534, 1536, fn. 19.)