Singleton v. United States Gypsum Co.

Facts

The statutory framework. Singleton brought his claims under the harassment provision of the California Fair Employment and Housing Act (FEHA). As the court explained, the relevant subdivision “prohibits an employer from harassing an employee because of sex or sexual orientation.” (Singleton, supra, 140 Cal.App.4th at p. 1556.) The court then quoted the operative text of the statute’s liability standard for nonsupervisory harassment: “Harassment of an employee, an applicant, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.” (Gov. Code, § 12940, subd. (j)(1); Singleton, supra, at p. 1556.) That dual structure—conduct because of sex, plus employer knowledge and inaction—frames the entire appeal.

The hostile-environment theory. Drawing on Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, the court set out the two recognized theories of sexual harassment. The first is “quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances.” (Singleton, supra, 140 Cal.App.4th at p. 1557.) “The second is hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.” (Ibid.) Critically, “a cause of action for sexual harassment on a hostile environment theory need not allege any sexual advances whatsoever,” and is stated “where it is alleged that an employer created a hostile environment for an employee because of that employee’s sex.” (Ibid.) Singleton’s “action is predicated on the second of the two theories.” (Ibid.)

The employment and the parties. United States Gypsum Company (USG) operates a manufacturing plant in Torrance. (Singleton, supra, 140 Cal.App.4th at p. 1551.) USG hired John Singleton in February 2002 in the engineering department “as a maintenance mechanic to repair production equipment.” (Ibid.) After four or five months he was moved to the graveyard shift, where he “was the only mechanic on duty during this shift.” (Ibid.) Singleton received USG’s “Quality of Life” policy at orientation, which prohibited harassment and directed employees to “promptly and accurately” report it. (Id. at p. 1552.)

The taunts: Ross. According to Singleton’s deposition testimony—which must be accepted as true on summary judgment—the harassment began in September 2002. Coworker Kevin Ross “would say things that I would say challenged me as a man,” and “would make gestures as far as I was out there performing oral sex and things of that sort to my supervisor.” (Singleton, supra, 140 Cal.App.4th at p. 1552.) Singleton testified that Ross made comments about “[m]e performing oral sex on my supervisor, his screwing me in the behind out in the silo, me performing oral sex on himself, just one thing after another,” and that “these kinds of comments were made continuously, every night.” (Ibid.)

The taunts: Umi. Coworker Lawrence Umi made comparable comments. Singleton testified that Umi told him “he would hold my hair and screw from behind,” that he would “take you out to the silo, too, and you can perform oral sex on me,” and that Singleton “was having oral sex on my supervisor in the mornings out by the silo,” which was supposedly “why I was still employed by USG.” (Singleton, supra, 140 Cal.App.4th at p. 1553.) According to Singleton, “these comments were made every night.” (Ibid.)

The nickname. Ross coined—and Umi later adopted—the nickname “Sing-a-ling” for Singleton, which Singleton understood to refer to “a character in the movie Life, who was a homosexual whose male partner was called ‘Ding-a-ling.’” (Singleton, supra, 140 Cal.App.4th at p. 1553.) Singleton was not alone in reading it sexually: coworker Horton “believed that the nickname was sexual in nature,” and “thought that the name referred to Singleton’s genitals.” (Ibid.) Singleton testified that, “as a result of Ross’s and Umi’s comments and taunting, work became a ‘living hell,’ and that his performance was adversely affected.” (Id. at pp. 1553–1554.)

The complaints—and the responses. Singleton “frequently complained to his supervisors” about the comments and the nickname. (Singleton, supra, 140 Cal.App.4th at p. 1554.) He told supervisor Thyfaut that Ross had made sexual gestures and explicit remarks he did not “appreciate,” and Thyfaut responded: “[j]ust do your job and if you have any problem[s], let me know.” (Ibid.) When he raised it again, Thyfaut “did not say anything.” (Ibid.) Production supervisors Mafia and Uiato told him: “Just tell him ‘f— you’ and keep on working, John.” (Ibid.) Singleton testified he “complained every night to Mafia or Uiato.” (Ibid.) Department manager Evans replied: “Just ignore them and do your job.” (Ibid.) The genesis of the conflict, on Singleton’s account, was that he had reported Ross to management—Ross “confronted Singleton on September 20, 2002, calling him a variety of vulgar names for having reported him to management.” (Ibid.)

The disputed record. USG vigorously disputed nearly all of this: it relied on Ross’s and Umi’s testimony and declarations “in which they denied making these comments,” and disputed “the claim that Singleton informed his supervisors about the comments.” (Singleton, supra, 140 Cal.App.4th at pp. 1553, 1555.) The opinion repeatedly flagged that “[w]hat, if anything, Umi and Ross actually said … is sharply disputed.” (Id. at pp. 1552–1553.)

Procedural history

Singleton’s complaint alleged four causes of action under FEHA: sex discrimination; sexual harassment; failure to take reasonable steps to prevent discrimination and harassment; and retaliation for opposing the discrimination and harassment. (Singleton, supra, 140 Cal.App.4th at p. 1555.) The trial court (Hon. Elizabeth Grimes) granted USG’s motion for summary judgment. (Id. at p. 1551.) It concluded “as a matter of law that none of the harassing behavior about which plaintiff complained is sex discrimination or sex harassment.” (Id. at p. 1555.) The court found that the September 20 altercation, “while liberally sprinkled with vulgarities, did not contain any sexual elements or overtones,” that Singleton “‘didn’t go into any specifics as far as what was actually said,’” and that although the graveyard-shift conduct “was hostile and abusive, … there is no triable issue of fact that the hostility or abuse was related to plaintiff’s gender or sexual orientation.” (Id. at pp. 1555–1556.) Because the discrimination, failure-to-prevent, and retaliation claims all rested on the alleged harassment, the harassment ruling “disposed of” all four causes of action. (Id. at p. 1556.) Singleton appealed. The Court of Appeal, Second Appellate District, Division Eight, reversed in a unanimous opinion by Justice Flier, with Presiding Justice Cooper and Justice Boland concurring. (Id. at pp. 1551, 1564.) There was no dissent or separate concurrence. A rehearing petition was denied, and the Supreme Court denied review. (Id. at p. 1565.)

Issue

The pivotal question was whether the allegedly harassing conduct was “because of sex” within the meaning of Government Code section 12940, subdivision (j). The court treated the first and third hostile-environment elements—unwelcomeness and severity/pervasiveness—as satisfied on the summary-judgment record, narrowing the dispute. As the court framed it: “The question is whether the harassment was ‘because of sex.’” (Singleton, supra, 140 Cal.App.4th at p. 1561.) Subsumed within that question was whether same-sex harassment must take a “sexual desire” form, and whether the employer’s knowledge of, and failure to correct, the conduct presented triable issues under subdivision (j)(1). Because summary judgment turned on disputed testimony, the threshold issue was also whether the trial court improperly disregarded or selectively credited Singleton’s deposition testimony.

Holding

Reasoning

Summary-judgment posture: the plaintiff’s testimony must be taken as true. The court’s analysis began—and largely turned—on the governing standard of review. “The facts alleged in the affidavits of the party against whom the motion is made must be accepted as true.” (Singleton, supra, 140 Cal.App.4th at p. 1558.) Describing this as “a rule of long standing,” the court held “the trial court was not free to disregard Singleton’s testimony, or to select only those parts of his testimony that supported the trial court’s ruling.” (Ibid.) That principle exposed the central defect in the ruling below: the trial court had reduced Singleton’s account to a single sexless altercation and a vague complaint about “sex playing,” while ignoring his detailed deposition testimony.

The trial court mischaracterized the record. The court methodically corrected the trial court’s factual framing. “[C]ontrary to the trial court’s findings, Ross’s comments were not limited to the altercation on September 20, 2002,” nor was it “correct, as the trial court found, that Singleton did not go into ‘any specifics as far as what was actually said.’” (Singleton, supra, 140 Cal.App.4th at p. 1558.) The trial court “also erred in disregarding the bulk of Singleton’s testimony about Umi’s comments,” and “erred in seizing on one statement … that Umi was ‘sex playing’ Singleton” while ignoring “Singleton’s testimony describing Umi’s sexually explicit and offensive comments.” (Ibid.) It “also erred in dismissing use of the nickname ‘Sing-a-ling’ as inconsequential,” especially because Horton independently “thought that the nickname was sexual in nature.” (Id. at p. 1559.)

Elements one and three were satisfied. Adopting the tripartite hostile-environment test articulated by the California Supreme Court in Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, the court found two of the three elements easily met. As to unwelcomeness, “Singleton presented more than adequate evidence that showed that Ross’s and Umi’s comments were unwelcome.” (Singleton, supra, 140 Cal.App.4th at p. 1560.) As to severity or pervasiveness, “Singleton testified that work became a ‘living hell’ and that his performance suffered,” and the trial court itself “found that the conduct of other employees … was hostile and abusive.” (Id. at pp. 1560–1561.) That left the contested element: whether the conduct was “because of sex.” (Id. at p. 1561.)

“Because of sex” requires disparate treatment, not merely sexual content. The court took the meaning of “because of sex” directly from Lyle and Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75. FEHA, like Title VII, “‘does not prohibit all verbal or physical harassment in the workplace; it is directed only at “discriminat[ion] … because of … sex.”’” (Singleton, supra, 140 Cal.App.4th at p. 1561.) Conduct is not actionable “‘merely because the words used have sexual content or connotations’”; the “‘critical issue … is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’” (Ibid.) For FEHA, the plaintiff must show “‘that gender is a substantial factor in the discrimination, and that if the plaintiff “had been a man she would not have been treated in the same manner.”’” (Id. at p. 1562.) Thus “it is the disparate treatment of an employee on the basis of sex—not the mere discussion of sex or use of vulgar language—that is the essence of a sexual harassment claim.” (Ibid.)

The disparate-treatment finding: attacking heterosexual identity. Applying that standard, the court located disparate treatment in the targeting of Singleton’s sexual identity. “Referring to Ross’s statements, Singleton testified … : ‘He would say things that I would say would challenge me as a man.’” (Singleton, supra, 140 Cal.App.4th at pp. 1561–1562.) The comments “would ‘challenge’ any heterosexual male ‘as a man,’” and showed that “Ross and Umi targeted Singleton’s heterosexual identity, and attacked it by and through their comments.” (Id. at p. 1562.) From that premise the disparate-treatment inference followed logically: “given that Ross and Umi had targeted Singleton’s identity as a heterosexual male, it is axiomatic that they would treat women ‘differently,’ i.e., not attack them for the same reason.” (Ibid.) Therefore “the harassment was ‘because of sex,’ i.e., it employed attacks on Singleton’s identity as a heterosexual male as a tool of harassment.” (Ibid.)

Rejecting USG’s three “propositions.” USG argued that, under Oncale, a same-sex plaintiff must prove one of three things: an “earnest sexual solicitation,” “general hostility to males in the workplace,” or that the harasser “treated men and women differently.” (Singleton, supra, 140 Cal.App.4th at p. 1562.) The court flatly rejected this reading: “there is nothing in Oncale that supports any one of these three ‘propositions,’” and “a fair reading of Oncale leads one to conclude that the court rejected narrowly defined categories of same-gender sexual harassment.” (Ibid.) Reviewing Oncale’s facts, the court emphasized that the high court had recognized same-gender harassment claims and required only proof that the conduct “actually constituted discrimination because of sex.” (Id. at pp. 1562–1563.) Same-gender harassment, the court held, “cannot be boiled down to oversimplified propositions such as ‘general hostility to males in the workplace’ or ‘the alleged harasser treated men and women differently.’” (Id. at p. 1564.)

Factual and social context: the Oncale lens. The court applied Oncale’s instruction that the “objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position,” requiring “careful consideration of the social context in which particular behavior occurs.” (Singleton, supra, 140 Cal.App.4th at p. 1563.) On the factual context, “the ‘conditions of employment’ were clearly affected,” as work became “a ‘living hell.’” (Id. at pp. 1563–1564.) On the social context, what occurred “was not ‘male-on-male horseplay’ … but the acting out, on the part of Ross and Umi, of their anger and rage at Singleton.” (Id. at p. 1564.) Ross’s motive “was that he was angry with Singleton for having reported him,” and “Umi appears to have been Ross’s camp follower.” (Ibid.)

The core doctrinal move: no sexual-desire requirement. The decision’s most consequential holding is that retaliatory or hostile motive, expressed through sexual taunting, can satisfy “because of sex.” “[T]here is no requirement that the motive behind the sexual harassment must be sexual in nature. ‘[H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.’” (Singleton, supra, 140 Cal.App.4th at p. 1564.) The court distilled the principle: “Sexual harassment occurs when, as is alleged in this case, sex is used as a weapon to create a hostile work environment.” (Ibid.) Finally, the court rejected USG’s “implausible contention” that Singleton could not be offended because he himself “used some vulgar expressions,” reiterating that “one must consider the social setting … What is, in one setting, a simple vulgarity, is, in another setting, an act of harassment.” (Ibid.)

Employer knowledge and the derivative claims. The court did not lose sight of the second statutory requirement—employer notice. Singleton testified he “told USG supervisors Thyfaut, Mafia, Uiato and Evans about Ross’s and Umi’s comments,” complaining “every night.” (Singleton, supra, 140 Cal.App.4th at p. 1558.) Yet, instead of taking “‘immediate and appropriate corrective action,’ as Government Code section 12940, subdivision (j)(1) requires, USG supervisory personnel did nothing but advise Singleton to ‘keep working.’” (Id. at p. 1559.) Because the sex-discrimination, failure-to-prevent, and retaliation causes of action all depended on the harassment, the reversal swept them back into the case as well: with triable issues on harassment, “the trial court’s rulings on all four causes of action must be set aside.” (Id. at p. 1564.)

Significance

Singleton is a clean, citable California application of Oncale and Lyle to a same-sex hostile-environment claim, and it does two doctrinally important things. First, it confirms that the “because of sex” element is satisfied where harassers weaponize sexual taunts to attack a coworker’s sexual identity, even absent any desire to have sex with the target. The court’s formulation—“sex is used as a weapon to create a hostile work environment”—captures a wide swath of conduct that defendants routinely try to recharacterize as mere personal animus, retaliation, or vulgar “horseplay.” (Singleton, supra, 140 Cal.App.4th at p. 1564.) Here the harassers’ motive was anger at Singleton for reporting Ross, yet the court held that motive irrelevant to the “because of sex” inquiry once the chosen instrument of harassment was an assault on Singleton’s heterosexual male identity.

Second, Singleton firmly rejects efforts to confine same-sex harassment to Oncale’s illustrative evidentiary routes. The court refused USG’s attempt to convert Oncale’s examples into mandatory “propositions,” holding instead that same-gender harassment “cannot be boiled down to oversimplified propositions.” (Singleton, supra, 140 Cal.App.4th at p. 1564.) That makes the case a useful counterweight whenever a defendant argues that a same-sex plaintiff must prove the harasser is gay, generally misogynistic, or demonstrably treated the sexes differently in parallel circumstances. The decision also reaffirms the bedrock summary-judgment principle that a plaintiff’s deposition testimony must be credited in full—a holding with reach well beyond harassment law. The decision’s limits are equally clear: it resolves only that triable issues exist, not that Singleton will prevail, and the entire record remained “sharply disputed.” (Id. at pp. 1552–1553.)

Key quotes

“[T]here is no requirement that the motive behind the sexual harassment must be sexual in nature. ‘[H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.’ … Sexual harassment occurs when, as is alleged in this case, sex is used as a weapon to create a hostile work environment.” (Singleton, supra, 140 Cal.App.4th at p. 1564.)

“[I]t is the disparate treatment of an employee on the basis of sex—not the mere discussion of sex or use of vulgar language—that is the essence of a sexual harassment claim.” (Id. at p. 1562.)

“[I]nstead of taking ‘immediate and appropriate corrective action,’ as Government Code section 12940, subdivision (j)(1) requires, USG supervisory personnel did nothing but advise Singleton to ‘keep working.’” (Id. at p. 1559.)

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Practice pointer

Open questions

Whether the Lyle and Fisher tests are identical. The court noted “some question whether the tripartite test set forth in Lyle is actually the same as that applicable to FEHA cases under California law, notably as found in Fisher,” but treated any difference as immaterial because the Supreme Court “has held that the standards on this issue are the same” and “any textual differences … are in any event of no moment in this case.” (Singleton, supra, 140 Cal.App.4th at p. 1560, fn. 7.) The precise contours of any divergence were left undecided.

The merits of the harassment and the ultimate liability. The court was explicit that it was not resolving the truth of the allegations: “Whether Singleton is to be believed about Ross’s and Umi’s comments and the lack of any action by USG supervisors is, of course, not the issue when it comes to the motion for summary judgment.” (Singleton, supra, 140 Cal.App.4th at p. 1559.) Whether the conduct in fact occurred, was reported, and went uncorrected remained for the trier of fact.

The derivative claims on remand. Because the discrimination, failure-to-prevent, and retaliation causes of action were reinstated solely as a consequence of the harassment ruling, the court did not separately analyze their elements; their independent viability was left for further proceedings. (Singleton, supra, 140 Cal.App.4th at pp. 1556, 1564.)