Rehmani v. Superior Court

Facts

The Fair Employment and Housing Act makes it an unlawful employment practice to harass an employee because of religion or national origin. (Gov. Code, § 12940, subd. (j).) Harassment can take the form of “discriminatory intimidation, ridicule and insult” that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” (Rehmani, supra, 204 Cal.App.4th at p. 951.) Critically here, the Act also requires an employer to take all reasonable steps to prevent harassment, and “[w]hen the harasser is a nonsupervisory employee, employer liability turns on a showing of negligence (that is, the employer knew or should have known of the harassment and failed to take appropriate corrective action).” (Id. at p. 952; see Gov. Code, § 12940, subds. (j)(1), (k).)

Mustafa Rehmani, a Muslim born in Pakistan, worked as a system test engineer for Ericsson, Inc., from February 2007 until his termination on November 13, 2009. (Rehmani, supra, 204 Cal.App.4th at p. 948.) His coworkers came from at least 12 countries. Three Indian coworkers — Amit Patel, Aneel Choppa, and Ashit Ghevaria — allegedly harassed him based on his Pakistani nationality and Muslim faith, and his supervisor, director Afarin Daftari, took no remedial action when he reported the conduct. (Ibid.)

The conduct, initially manifested as an unwillingness to help Rehmani with projects, allegedly became “overtly discriminatory” after the November 2008 Mumbai terrorist attacks. (Id. at pp. 952–953.) In February 2009 Patel said that “Pakistan and Afghanistan need[ed] to be bombed and wiped out.” (Id. at p. 953.) In April 2009, when Rehmani asked for help, Patel said, “You’re not going to blow me up, right?” (Ibid.) Daftari advised Rehmani to treat the remark as a joke and “not worry about it.” (Ibid.) In May 2009 Choppa asked Rehmani why “you people” did not do something about terrorism in Pakistan, then rolled his eyes and walked away; when Rehmani reported it, Daftari said in “an exasperated and harsh tone” that she did not want to hear his complaints. (Ibid.) On September 11, 2009 — while Rehmani was out sick — Patel told coworkers that Rehmani was “celebrating 9/11 and planning terrorist attacks.” (Id. at pp. 953–954.) Rehmani stated the jokes left him “very stressed out, humiliated, and physically ill at the workplace.” (Id. at p. 954.)

Corroborating declarations and deposition testimony from non-Indian coworkers described Ghevaria and Patel openly referring to Chinese-American engineers as “Chinkoos,” ordering non-Indian engineers to perform work for them, yelling at non-Indians but not at Indians, and treating non-Indian engineers as “slaves.” (Id. at p. 957, fn. 6.) Additional testimony described pervasive favoritism toward Indian engineers in hiring, promotions, salary, and project assignments. (Id. at pp. 957–958 & fn. 7.) Rehmani was terminated after admitting he had sent prohibited e-mails under coworkers’ names, and he filed suit the following month. (Id. at pp. 948–949.)

Procedural history

Rehmani’s complaint pleaded eight causes of action; only the first two — harassment based on national origin and harassment based on religion — named the individual coworkers as well as Ericsson. (Id. at pp. 948–949.) Defendants moved for summary judgment or, alternatively, summary adjudication, arguing the comments did not relate to national origin or religion and were neither severe nor pervasive. (Id. at p. 949.) The superior court (Hon. Kevin E. McKenney) granted summary adjudication of the two harassment causes of action and of the religion-discrimination claim, but denied the motion as to national-origin discrimination (regarding promotions), retaliation, failure to investigate and prevent, and wrongful termination. (Ibid.)

Rehmani petitioned for a writ of mandate to forestall the prospect of duplicate trials. The Court of Appeal stayed the trial proceedings and issued an order to show cause. (Ibid.) The court explained that although appeal after trial ordinarily provides an adequate remedy, writ review is proper “where a pretrial ruling has summarily disposed of a large portion of the case, while several causes of action remain for trial,” to avoid a duplicative second trial on overlapping facts. (Id. at pp. 949–950.) By the time of the writ proceeding, summary adjudication in the individual defendants’ favor was no longer challenged; the harassment claims were before the court only against Ericsson. (Id. at p. 952.)

Issue

Where the alleged harassers are nonsupervisory coworkers, did the employer carry its summary-adjudication burden of establishing that the plaintiff could prove neither (1) a hostile work environment based on national origin or religion nor (2) the employer’s negligent failure to take appropriate corrective action after learning of the conduct? As the court framed it, “[w]hether in this case Rehmani’s employer failed to take appropriate steps to curb the verbal abuse he allegedly suffered is the primary issue Rehmani seeks to have restored by our overturning the summary adjudication order.” (Id. at p. 952.)

Holding

Reasoning

The negligence standard for coworker harassment defined the employer’s summary-judgment burden. The court anchored its analysis in the statutory framework: an employer must take all reasonable steps to prevent harassment, and when the harasser is nonsupervisory, “employer liability turns on a showing of negligence (that is, the employer knew or should have known of the harassment and failed to take appropriate corrective action).” (Id. at p. 952, quoting Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707.) Because the individual coworkers were no longer defendants, Ericsson — to win summary adjudication — had to establish that Rehmani could show neither a hostile work environment nor the company’s failure to respond with appropriate corrective action to his reports. (Id. at p. 954.) This dual burden framed everything that followed: even if a hostile environment existed, the employer escaped liability only if its response was, as a matter of law, adequate.

The “totality of the circumstances” test rendered the severity question a jury question. Whether harassment is sufficiently severe or pervasive depends on the totality of the circumstances — frequency, severity, whether it is physically threatening or humiliating, and whether it interferes with work performance. (Id. at pp. 951–952.) Engaging Ericsson’s argument that each remark was an isolated political comment, the court acknowledged that Patel’s “wiped out” statement and Choppa’s “messed up country” remark could each be read innocently as reactions to Middle East politics. (Id. at p. 955.) But the court reasoned that the remarks could not be evaluated in isolation: “Patel’s joke about Rehmani blowing him up, the alleged joke about Rehmani being at home celebrating 9/11 or planning an attack, and Patel’s alleged harassment of other non-Indian employees could, taken together, convince a jury that this conduct was part of a hostile work environment.” (Ibid.) Ghevaria’s escalating hostility — yelling at non-Indians to go away while assisting Indians — might be attributable to temperament or a personality clash, “but those are questions for a jury, not the court, to determine.” (Id. at pp. 955–956.)

Harassment directed at other non-Indians was material, not collateral. Ericsson argued that conduct not specifically targeting Rehmani’s protected classification was immaterial. The court rejected the contention, holding that Rehmani’s grievance was directed not only at disparaging comments about Pakistanis but at the Indian employees’ “general attitudes toward non-Indians, which created the hostile working environment.” (Id. at p. 955.) The court credited the declarations and deposition testimony of other non-Indian engineers — Ghimire, Mushtaq, Khaliq, and others — describing the “Chinkoos” epithet, the “slave” treatment, and yelling reserved for non-Indians. (Id. at p. 957 & fn. 6.) This evidence “suggests rudeness, taunting, and intimidation from Indian engineers toward their non-Indian colleagues,” a “larger picture than just a few interpersonal squabbles.” (Ibid.)

Discrimination evidence could prove the communication of a hostile message. Invoking Roby, the court held that evidence of Ericsson’s favoritism toward Indian engineers in hiring, promotions, salary, and assignments — and the practice of pulling non-Indians off projects to make Indian managers “look good” — “may also be relevant in proving a hostile workplace.” (Id. at pp. 957–958.) Although discrimination and harassment are distinct theories, they “can overlap as an evidentiary matter,” and there is “no basis for excluding evidence of biased personnel management actions … so long as that evidence is relevant to prove the communication of a hostile message.” (Id. at pp. 957, 958, quoting Roby, supra, 47 Cal.4th at pp. 708–709.)

The employer’s investigation evidence did not establish an adequate response as a matter of law. The court addressed the corrective-action prong head-on. Ericsson pointed to HR director Dawn Ehrsam’s investigation, which concluded there was no harassment, and to Daftari’s account of speaking to the team after the 9/11 e-mail. (Id. at pp. 956–957.) But Ehrsam’s tally — that Ghevaria treated some non-Indians “well” and only “negatively” toward nine non-Indian employees — was “insufficient to establish as an undisputed fact that no discriminatory treatment or harassment of non-Indians by Ghevaria had occurred.” (Id. at p. 956.) And the essence of Rehmani’s claim was that “he protested multiple times to his supervisor, Daftari, about unfair treatment,” yet Daftari repeatedly dismissed him as a “complainer” and “whiner” and admitted she “thought after all the apologies it was a done deal” — adding, “I think that was my mistake.” (Id. at pp. 957, 958.) On this record a jury could find the employer’s response inadequate.

The failure to use the words “discrimination” or “harassment” was not dispositive. The court squarely engaged Ericsson’s strongest factual point — that Rehmani admitted he never used the words “discrimination” or “harassment” when reporting his coworkers’ conduct, and did not tie his November complaint to his being Pakistani or Muslim. (Id. at pp. 956, 958.) The court acknowledged this “may be significant in defeating Rehmani’s effort to show that the harassment was based on his national origin or religion.” (Id. at p. 958.) But it declined to make the point dispositive, holding that “in the overall context of the social environment at Ericsson” the court could not say he would be unable to demonstrate that his non-Indian status was “a major basis of the antagonism he experienced.” (Ibid.) Conducting an independent review, the court concluded that hostile-environment liability presents an issue ordinarily one of fact and that the aggregate evidence was sufficient to reach a jury. (Id. at p. 959.)

Significance

Rehmani is a practical, defense-rebutting application of the coworker-harassment negligence standard codified in Government Code section 12940, subdivision (j)(1). Its doctrinal contribution lies less in announcing new law than in operationalizing two principles for the summary-judgment battlefield. First, it confirms that, for nonsupervisory harassment, the employer’s summary-adjudication burden is twofold: it must negate either the hostile environment or its own negligence, and proof of an investigation alone does not establish an adequate response as a matter of law. (Id. at pp. 954, 956.) Second, it applies Roby v. McKesson Corp. to permit harassment plaintiffs to marshal discrimination-flavored evidence — favoritism in hiring, promotions, and assignments — to prove the communication of a hostile message, and to count harassment of other members of the same disfavored group toward building the totality-of-circumstances picture. (Id. at pp. 955, 957–958.)

The decision’s limits are notable. The court repeatedly signaled the weakness of Rehmani’s case, calling it possibly “too weak to withstand the scrutiny of a jury at trial,” and treating the religion claim as surviving only by its evidentiary dependence on the national-origin claim. (Id. at p. 959.) Rehmani thus stands less for the proposition that the plaintiff had a strong case than for the proposition that close, context-laden severity-or-pervasiveness and corrective-action determinations belong to the trier of fact — a posture-specific holding tied to the de novo, evidence-construing-for-the-nonmovant standard of summary-judgment review.

Key quotes

“When the harasser is a nonsupervisory employee, employer liability turns on a showing of negligence (that is, the employer knew or should have known of the harassment and failed to take appropriate corrective action).” (Rehmani, supra, 204 Cal.App.4th at p. 952.)

“But Rehmani offered evidence of a larger picture than just a few interpersonal squabbles. His declaration, together with testimony from coworkers, suggests rudeness, taunting, and intimidation from Indian engineers toward their non-Indian colleagues.” (Id. at p. 957.)

“While Rehmani’s case may be too weak to withstand the scrutiny of a jury at trial, at this stage of the litigation we cannot say as a matter of law that the evidence he wishes to adduce is insufficient in the aggregate to establish a claim for harassment based on national origin.” (Id. at p. 959.)

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Practice pointer

Open questions

The court expressly left the merits for trial, declining to decide whether the conduct was in fact based on national origin or religion, whether Daftari’s responses were adequate, or whether Rehmani’s complaints were even “sufficient to trigger an investigation into harassment within the meaning of the FEHA.” (Id. at p. 959.) The court also did not resolve the legal significance of Rehmani’s failure to use the words “discrimination” or “harassment” when reporting, noting only that the omission “may be significant” without holding it dispositive. (Id. at p. 958.) Finally, the religion-based claim’s continued viability was tied entirely to its evidentiary overlap with the national-origin claim; the court did not decide whether a freestanding religion-harassment claim could have survived on this record. (Id. at p. 959.)