Proksel v. Gattis
A supervisor’s favoritism toward a romantic partner is not, without more, sex discrimination or sexual harassment under FEHA — and California courts will not police consensual office relationships.
Proksel v. Gattis (1996) 41 Cal.App.4th 1626
Harassment
Paramour favoritism
FEHA (Gov. Code § 12900)
In brief. The Court of Appeal affirmed summary adjudication against a former legal secretary who claimed that her employer’s favoritism toward a coworker he was romantically interested in amounted to sex discrimination and sexual harassment. The court held that “a romantic relationship between a supervisor and an employee does not, without more, give rise to a sexual discrimination or sexual harassment claim either under the FEHA or the public policy of the state.” (Proksel v. Gattis (1996) 41 Cal.App.4th 1626, 1630.) Because the plaintiff showed “nothing more than such a relationship,” her claims failed as a matter of law. (Ibid.) The court reasoned that it would be “impracticable and unwarranted” for courts to assume “a generalized police power over intimate consensual relationships between co-employees.” (Id. at pp. 1630–1631.)
By Jonathan J. Delshad
Founder & Editor-in-Chief
Facts
The California Fair Employment and Housing Act makes it an unlawful employment practice for an employer, because of sex, to harass an employee and to discriminate against an employee in the terms, conditions, or privileges of employment. (Gov. Code, § 12900 et seq.) To establish a hostile working environment, the conduct must be more than “occasional, isolated, sporadic, or trivial”; rather, “the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.” (Proksel v. Gattis (1996) 41 Cal.App.4th 1626, 1630, fn. 5, quoting Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 610.) The plaintiff also pursued a parallel theory under the public policy of the state. (Proksel, supra, 41 Cal.App.4th at p. 1629.)
Karen A. Proksel began working for the defendant, attorney Richard E. Gattis, on May 23, 1989, as his personal secretary and office manager. (Proksel, supra, 41 Cal.App.4th at p. 1628.) She worked four to six hours a day for Gattis and devoted the remainder of her hours to a freelance paralegal business. (Ibid.) When Proksel started, Gattis already employed Sherry Burton — a full-time word processor employed since 1985 and his only full-time clerical employee. (Ibid.)
According to Proksel, in October 1990 she began noticing events leading her to believe Gattis was romantically interested in Burton. (Proksel, supra, 41 Cal.App.4th at p. 1628.) She observed Gattis “looking down Burton’s low-cut blouse and following Burton’s movements as she left the premises.” (Ibid.) At the office Christmas party, Gattis told Burton she was beautiful; Burton received a larger year-end bonus than any other employee, more valuable Christmas gifts, and a private birthday lunch with Gattis. (Ibid.) Proksel also noticed that Gattis and Burton “seemed to be having clandestine meetings in and out of the office.” (Ibid.)
In January 1991, Gattis separated from his wife and moved out of the family home. (Proksel, supra, 41 Cal.App.4th at p. 1628.) At the separation, Gattis’s wife told Proksel she suspected Gattis was having an affair with Burton; Gattis responded that his wife “blew everything out of proportion when it came to Burton.” (Ibid.) On August 14, 1991, Proksel arrived at work early and saw Burton blowing kisses at Gattis; the two “quickly left the area,” and Proksel reported what she saw in a telephone conversation with Gattis’s wife. (Ibid.) Two days later, on August 16, 1991, Gattis terminated Proksel’s employment. (Ibid.) Burton took over Proksel’s duties and was given a pay raise. (Ibid.)
Procedural history
Proksel filed a complaint against Gattis, which she amended twice. (Proksel, supra, 41 Cal.App.4th at p. 1628.) The second amended complaint alleged breach of contract, breach of the implied covenant of good faith and fair dealing, fraud and deceit, sex discrimination, and wrongful discharge in violation of public policy. (Id. at pp. 1628–1629.) By order granting summary adjudication, the trial court dismissed Proksel’s sex discrimination and public policy causes of action. (Id. at p. 1629.) Following Proksel’s opening statement, the court granted Gattis’s motion for nonsuit on the fraud and deceit cause of action and dismissed as redundant her bad-faith claim, but allowed her to pursue a claim for breach of an implied promise not to be terminated except for good cause. (Ibid.) The jury found Proksel was an at-will employee, and the trial court entered judgment for Gattis. (Ibid.) Proksel appealed. (Ibid.)
The Court of Appeal affirmed. (Proksel, supra, 41 Cal.App.4th at p. 1631.) The opinion was certified for publication except parts I, III, and IV; only part II, addressing the sex discrimination and harassment theories, is published and citable. (Id. at p. 1626 & fn. 1; see Cal. Rules of Court, rule 8.1115.) The panel was unanimous, with Justices Haller and McDonald concurring without separate opinion. (Proksel, supra, 41 Cal.App.4th at p. 1631.)
Issue
The published question was narrow and squarely framed by the plaintiff’s theory: whether an employer’s or supervisor’s “preferential treatment of a fellow employee with whom the employer or supervisor is romantically involved” — so-called paramour favoritism — itself states a claim for sex discrimination or sexual harassment under FEHA or California public policy. (Proksel, supra, 41 Cal.App.4th at p. 1627.) Put precisely, the court was asked “to recognize a species of employment discrimination based solely on an employer’s or supervisor’s preferential treatment of a fellow employee with whom the employer or supervisor is romantically involved.” (Ibid.) Embedded in that question was whether the favoritism Proksel described — flattering remarks, gifts, a bonus, lunches, and a blown kiss — could, standing alone, establish a hostile work environment. (Id. at p. 1630 & fn. 5.)
Holding
The court declined to recognize a paramour-favoritism theory and affirmed. It held that “a romantic relationship between a supervisor and an employee does not, without more, give rise to a sexual discrimination or sexual harassment claim either under the FEHA or the public policy of the state.” (Proksel, supra, 41 Cal.App.4th at p. 1630.) Because Proksel “has shown nothing more than such a relationship, her sexual discrimination and harassment claims were properly dismissed.” (Ibid.) The court was careful about what it did not decide: it did not hold that romantic relationships are irrelevant to harassment litigation, observing that such evidence “might well be relevant in establishing liability” on recognized theories and that its holding “should not be interpreted as precluding admission of such evidence to prove these theories.” (Id. at p. 1629.)
Reasoning
The plaintiff pointed to nothing beyond favoritism toward a paramour. The court began by isolating the evidentiary record. “Significantly, other than the favoritism she believes Gattis demonstrated toward Burton, Proksel does not point to any other act of sexual discrimination or harassment.” (Proksel, supra, 41 Cal.App.4th at p. 1629.) The court then walked through the recognized theories that romantic-favoritism facts might otherwise support and found each unsupported. Proksel did “not contend that Gattis led Burton or any other employee to believe that they could obtain favorable treatment from him if they became romantically involved with him” — the implicit quid pro quo theory recognized in Toscano v. Nimmo (D.Del. 1983) 570 F.Supp. 1197, 1200. (Proksel, supra, 41 Cal.App.4th at p. 1629.) Nor had she shown that the affair “was conducted [in a manner] so indiscreet as to create a hostile work environment,” or any “other pervasive conduct by Gattis which created a hostile work environment.” (Ibid.) The court took “pains to set forth these well-recognized theories of recovery” precisely to mark the boundary: such evidence can be relevant, but it was absent here. (Ibid.)
The favoritism, measured against the hostile-environment standard, fell short as a matter of law. In a footnote that does real work, the court applied the governing severity-and-pervasiveness test. To establish a hostile working environment, “acts of harassment cannot be occasional, isolated, sporadic, or trivial,” and the plaintiff “must show a concerted pattern of harassment of a repeated, routine or a generalized nature.” (Proksel, supra, 41 Cal.App.4th at p. 1630, fn. 5, quoting Fisher v. San Pedro Peninsula Hosp., supra, 214 Cal.App.3d at p. 610.) Measured against that standard, “Gattis’s flattering remarks about Burton, his favoritism toward her, and the kiss she blew at him do not meet this standard.” (Proksel, supra, 41 Cal.App.4th at p. 1630, fn. 5.) The conduct was directed at — and benefited — Burton, not Proksel, and it was neither pervasive nor severe as to Proksel.
The overwhelming weight of authority rejects a freestanding paramour-favoritism claim. The court then surveyed the case law and found near-unanimity. “Where, as here, there is no conduct other than favoritism toward a paramour, the overwhelming weight of authority holds that no claim of sexual harassment or discrimination exists.” (Proksel, supra, 41 Cal.App.4th at p. 1630.) The court strung a long line of federal and state authority behind that proposition, including Drinkwater v. Union Carbide Corp. (3d Cir. 1990) 904 F.2d 853, 862, Ellert v. University of Texas (5th Cir. 1995) 52 F.3d 543, 546, and DeCintio v. Westchester County Medical (2d Cir. 1986) 807 F.2d 304, 306–307. (Proksel, supra, 41 Cal.App.4th at p. 1630.) It leaned heavily on the EEOC’s own policy guidance, quoting: “‘An isolated instance of favoritism toward a “paramour” (or a spouse, or a friend) may be unfair, but it does not discriminate against women or men in violation of Title VII, since both are disadvantaged for reasons other than their genders.’” (Ibid., quoting EEOC Notice No. 915-048 (Jan. 12, 1990).) The logic is one of causation: paramour favoritism disadvantages men and women alike, so the disadvantage is not “because of sex.”
The court engaged and rejected the principal contrary authority. The opinion did not ignore the case cutting the other way. It identified King v. Palmer (D.C. Cir. 1985) 778 F.2d 878, 880, as “[t]he principal contrary authority,” a decision that “assumed without deciding, that a romantic relationship between a supervisor and a subordinate was sufficient to make out a prima facie case of sexual discrimination.” (Proksel, supra, 41 Cal.App.4th at p. 1630.) The court declined to follow it for two stated reasons: King “did not directly reach the merits of the paramour theory,” and “its statement about the issue has been almost unanimously rejected.” (Ibid.) Treating the assumption as dictum that had not weathered the subsequent caselaw, the court found King “not persuasive.” (Ibid.)
Courts should not police consensual office relationships. The court grounded its result in an institutional-competence rationale. Agreeing “with the weight of authority,” it concluded “that it would be both impracticable and unwarranted for the courts to assume a generalized police power over intimate consensual relationships between co-employees.” (Proksel, supra, 41 Cal.App.4th at pp. 1630–1631, citing DeCintio v. Westchester County Medical, supra, 807 F.2d at p. 308.) From that premise the court announced its holding and, applying it, affirmed: Proksel “has shown nothing more than such a relationship,” so dismissal was proper. (Id. at p. 1630.)
Significance
Proksel is the leading California authority for the proposition that paramour favoritism, standing alone, is not actionable sex discrimination or sexual harassment under FEHA. It imports into California law the federal and EEOC consensus that disadvantaging both sexes equally because of a consensual romance is not discrimination because of sex. (Proksel, supra, 41 Cal.App.4th at p. 1630.) For a generation of employment litigation, Proksel has supplied the rule and the rationale: courts will not sit as a “generalized police power over intimate consensual relationships between co-employees.” (Id. at pp. 1630–1631.)
Its importance is sharpened by what came after. In Miller v. Department of Corrections (2005) 36 Cal.4th 446, the California Supreme Court confirmed and cabined the rule — holding that isolated instances of paramour favoritism are not actionable, consistent with Proksel, but that widespread sexual favoritism can convey a demeaning, sexualized message that creates a hostile environment for employees of both sexes. Proksel remains the floor: the bare fact of a workplace romance, plus favoritism toward the romantic partner, does not state a claim. The careful reader should treat Proksel’s “without more” qualifier as load-bearing; the case decides the easy end of a spectrum whose harder end the Supreme Court later addressed.
Proksel also models how courts keep romance-favoritism evidence in play even while rejecting it as a freestanding claim. The opinion expressly preserves the relevance of such evidence to recognized theories — quid pro quo, indiscreet conduct creating a hostile environment, and broader pervasive misconduct — by surveying each. (Proksel, supra, 41 Cal.App.4th at p. 1629.) Practitioners should not over-read the holding: it bars a claim built solely on favoritism, not the use of favoritism evidence to prove a properly pleaded harassment or discrimination theory.
Key quotes
“[A] romantic relationship between a supervisor and an employee does not, without more, give rise to a sexual discrimination or sexual harassment claim either under the FEHA or the public policy of the state.” (Proksel, supra, 41 Cal.App.4th at p. 1630.)
“[I]t would be both impracticable and unwarranted for the courts to assume a generalized police power over intimate consensual relationships between co-employees.” (Id. at pp. 1630–1631.)
“[E]vidence of a romantic relationship between a supervisor and a subordinate might well be relevant in establishing liability on one of these theories and our holding in this case should not be interpreted as precluding admission of such evidence to prove these theories.” (Id. at p. 1629.)
Practice pointer
For plaintiffs, Proksel is a warning against pleading a harassment or discrimination claim that rests only on the boss’s favoritism toward a romantic partner — that theory fails on summary adjudication. Build instead toward a recognized theory the opinion expressly leaves open: an implied quid pro quo (that romantic involvement was a path to advancement), conduct of the affair “so indiscreet as to create a hostile work environment,” or a broader pattern of pervasive, sexualized conduct directed at the workplace. (Proksel, supra, 41 Cal.App.4th at p. 1629.) Where the favoritism is widespread rather than isolated, plead and prove the Miller v. Department of Corrections (2005) 36 Cal.4th 446 theory — that pervasive sexual favoritism conveys a demeaning message that the way to get ahead is to submit. For defense counsel, Proksel supplies a clean summary-adjudication vehicle: pin the plaintiff to her own record, show that the conduct was directed at the paramour rather than the plaintiff, and invoke the severity-and-pervasiveness standard of Fisher to argue the conduct is “occasional, isolated, sporadic, or trivial.” (Id. at p. 1630 & fn. 5.)
Open questions
The opinion’s “without more” framing reserves the larger terrain. The court expressly declined to hold that romance-favoritism evidence is irrelevant, noting it “might well be relevant in establishing liability” on recognized theories. (Proksel, supra, 41 Cal.App.4th at p. 1629.) It thus left open how much “more” converts favoritism into an actionable hostile environment — the very question the California Supreme Court would later take up in Miller v. Department of Corrections (2005) 36 Cal.4th 446, where favoritism becomes pervasive. Proksel also did not decide whether an affair conducted with sufficient indiscretion could, on a fuller record, create a hostile environment; it held only that no such facts were shown. (Proksel, supra, 41 Cal.App.4th at p. 1629.) Nor did the published portion address the implied-quid-pro-quo theory of Toscano v. Nimmo on its merits, because the plaintiff never advanced facts to support it. (Ibid.) Finally, because parts I, III, and IV are unpublished, the opinion supplies no citable guidance on the contract, good-faith, fraud, or wrongful-discharge theories Proksel separately litigated. (Id. at p. 1626 & fn. 1.)