Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. 37-2007-00069180- CU-DE-CTL Judith F. Hayes, Judge.
NARES, Acting P. J.
In this action for sexual harassment and discrimination, Debra Blumenfeld alleged that her supervisor at Qualcomm, Inc. (Qualcomm), Jeffrey Tange, subjected her to unwelcome sexual comments, inappropriate touching, and battery. Qualcomm brought a motion for summary judgment, asserting that (1) the evidence showed the conduct was not unwelcome as Blumenfeld regularly participated in the same kind of conduct with Tange and others, never complained about Tange's conduct, and in fact stated she enjoyed working for him; (2) she could not show Tange's conduct was based upon her gender as Tange engaged in similar conduct with males he supervised; (3) because she failed to complain about Tange's conduct her damages claims were barred by the doctrine of "avoidable consequences;" (4) her discrimination claim was not viable as she could not show she suffered any adverse employment action because she remained employed at Qualcomm; and (5) her common law claims were barred by the exclusivity provisions of the workers' compensation system.
The court granted Qualcomm's motion, finding as a matter of law (1) Blumenfeld could not show Tange's conduct was unwelcome; (2) Blumenfeld could not show Tange's actions were directed at her because of her gender; (3) she did not suffer any adverse employment action because she was still employed by Qualcomm; and (4) her common law claims were subject to the exclusive remedy of the workers' compensation system. Based upon its ruling, the court did not reach Qualcomm's "avoidable consequences" defense.
On appeal Blumenfeld asserts the court erred in granting summary judgment because (1) whether she acted reasonably in not reporting Tange's conduct sooner was a factual dispute that could not be resolved by summary judgment; (2) triable issues of fact exist as to whether Tange's conduct was directed at her because of her gender; and (3) because her claims for sexual harassment and discrimination were viable, her common law claims were not subject to the exclusivity of the workers' compensation system.
We conclude that the evidence presented by Blumenfeld, construed in the light most favorable to her, creates a triable issue of fact as to both whether Tange's conduct was unwelcome and whether it was directed at her because of her gender. Accordingly, we reverse the court's grant of summary judgment as to Blumenfeld's causes of action for harassment and failure to prevent harassment. We further conclude that the court did not err in summarily adjudicating Blumenfeld's cause of action for discrimination as she cannot show that she has been subject to an adverse employment action because she remains employed by Qualcomm. We also conclude that because Blumenfeld's claim for harassment is viable, her common law claim for intentional infliction of emotional distress is not subject to the workers' compensation system. However, the remainder of her common law claims─for assault, battery and negligent retention/supervision─are subject to the exclusive remedy of the workers' compensation system, and the court correctly summarily adjudicated those claims. Accordingly, we reverse the judgment as to Blumenfeld's causes of action for harassment, failure to prevent harassment, and intentional infliction of emotional distress. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
A. Blumenfeld's Employment with Qualcomm
Blumenfeld began working for Qualcomm in 1998 as a security secretary. In 2001 Blumenfeld applied for and received a transfer into a programmer analyst position, reporting to Tange.
Tange began working for Qualcomm in 1990 as a night shift network operator. In 2001, when Blumenfeld was transferred to his group, Tange was a network analyst, supervising five or six individuals.
B. Blumenfeld's Complaint
In June 2007 Blumenfeld filed an action against Qualcomm for sex discrimination/sexual harassment, assault, battery, intentional infliction of emotional distress, and negligent retention/supervision. In Blumenfeld's complaint she alleged that during the five years Tange supervised her he harassed her verbally, physically and sexually and intimidated her in an effort to prevent her from complaining about his behavior. She alleged that he had influence with the human resources department and was privy to information provided to them by employees under his supervision. Blumenfeld alleged that because of this she endured his treatment until she reached a breaking point which forced her to go out on disability leave for serious mental and emotional health problems.
The physical and sexual harassment allegedly included twisting her arm behind her back, bending her wrist back, groping, throwing her over a couch, looking down her shirt, throwing candy down her shirt and pulling the shirt away from her body, and poking her breasts with a pen and a fork. She also alleged Tange provided her with a copy of the movie "Nobody's Fool, " and he asked her to do what Melanie Griffith did to Paul Newman, namely, show her breasts. She was told by Tange she had hairy nipples, and he asked her to prove otherwise in front of other employees. Tange called her and another employee "The Double Ds." Tange asked her, while pointing to her breasts, "Are those things getting bigger?" According to Blumenfeld, Tange brought a bullet into a staff meeting and rolled it on the table in a menacing manner, stating it was a "[n]ine millimeter hollow-tip bullet."
Blumenfeld alleged Qualcomm was aware of Tange's conduct, but did nothing to intervene until she and other employees "mustered the strength to discuss this despicable conduct with Human Resources [(HR)] notwithstanding Tange's warnings and threats."
C. Qualcomm's Motion for Summary Judgment
Qualcomm brought a motion for summary judgment, alleging (1) Tange's conduct was not unwelcome; (2) his conduct was not directed at her based upon her sex; (3) her damages were barred by the doctrine of avoidable consequences because she did not report his conduct to supervisors; and (3) her common law claims were barred by the exclusive remedy provisions of the workers' compensation act.
In support of its motion, Qualcomm provided evidence that Blumenfeld and the other employees Tange supervised never complained about any harassment or inappropriate treatment, even though there were means to complain confidentially. According to Qualcomm, Blumenfeld never sought a transfer to a different position. Rather, Blumenfeld and the other employees Tange supervised "raved about him" in performance reviews submitted confidentially to his supervisor. Blumenfeld referred to Tange as "an outstanding manager and a great mentor." She stated that Tange had "encouraged, supported, and assisted me in each of my new endeavors." Blumenfeld referred to Tange as an "outstanding leader."
According to Qualcomm, in June of 2006 one of Tange's subordinates, Debbie Von Stockhausen, complained to HR that Tange had retaliated against her because she refused to forward to him an inappropriate e-mail sent to her by another employee. That same day, two male subordinates complained that Tange had treated them unfairly. One told his supervisor that Tange had been verbally abusive to him for many years and that he was afraid for his job.
In response, Qualcomm launched an investigation. During that investigation Qualcomm interviewed Blumenfeld on three occasions. She told Qualcomm that while many people in their group joked around physically and verbally, Tange was the only one who took it over the line. She told Qualcomm that once Tange poked her in the breast accidentally and on one occasion poked her with a fork. She told Qualcomm that once in a staff meeting he had told her she was dispensable and that he had brought part of a bullet into that meeting. She related that he had bent her wrist back until it hurt and had flipped her over a couch. Blumenfeld said once Tange put her outside his "circle of trust" for a week and called her a "walrus."
Qualcomm also argued that Blumenfeld herself engaged in conduct similar to Tange's. She admitted she would "open hand slap" people, including Tange, and "flick" one coworker between the eyes. She would snap Tange's supervisor's suspenders. She would share inappropriate jokes and complimented Tange's butt. She would hug Tange and make fake punches at his groin. She told them that she threw things around and would steal chairs, erasers or other things from other peoples' offices and would play pranks on others. She told Qualcomm that everyone in her group liked each other a lot, including Tange. She never told Qualcomm that she was treated differently because of her sex. Rather, she said that it was Tange's "inner circle, " two men and her, that were subject to most of the inappropriate conduct.
Qualcomm concluded that Tange had engaged in inappropriate conduct, and he was terminated. Blumenfeld went out on medical leave, but remains employed by Qualcomm.
D. Blumenfeld's Opposition
In her opposition, Blumenfeld stated that she did try to transfer out of her position, but did it through an informal and confidential request because she feared retribution from Tange. She admitted praising Tange in performances reviews but did so only because it was what she believed Tange wanted her to write. She made the positive comments because she feared retaliation from Tange and did so to protect her job.
She did not dispute that she never complained to any supervisors about Tange's conduct. However, she did not do so because she feared she would lose her job.
She also did not dispute most of Qualcomm's evidence concerning her own conduct in the workplace. However, she did dispute the characterization of her conduct. She asserted she would hit or slap people in a playful manner. She also stated she and another employee would shoot Nerf disc shooters at each other to "blow off steam." She said she and another female coworker would flick each other between the eyes.
Blumenfeld also submitted additional disputed facts in support of her opposition. She submitted evidence Tange had previously been subjected to discipline as a result of his sexual harassment of another female coworker. He was originally demoted, but a few years later was returned to a supervisor's position.
She also detailed the fact that during the five years she worked for Tange she was subject to repeated sexual harassment and abuse.
Tange forced her to watch a scene from the movie "Nobody's Fool, " in which Melanie Griffith flashed her breasts to Paul Newman. In response, Blumenfeld stated she was going to report the conduct to HR. Tange told her HR would not believe her and he would lie.
Tange made repeated comments about her breasts. In response, she would tell him to stop doing so. Tange would throw candy down her shirt, and physically stuck his finger down her shirt and looked down her shirt. He poked her in the breasts with his finger and a fork.
Tange would bend her wrist back, pinch her very hard and grope her every opportunity that arose. Blumenfeld would tell Tange he was hurting her, and on one occasion she yelled, "Help, harassment." Tange slammed the door and told her to be quiet.
Blumenfeld also submitted evidence that during the investigation of Tange, Qualcomm discovered that he had sexually harassed two other female employees.
E. Court's Ruling
The court granted Qualcomm's motion for summary judgment. The court first found there was no triable issue of fact as to whether Tange's conduct was unwelcome because she admitted to "participating in activity similar to that which she alleges constitutes sexual discrimination/harassment." The court also noted that "despite defendant's policies and mechanisms for making a complaint, plaintiff never once complained about Tange's alleged misconduct toward her."
The court rejected Blumenfeld's contention she participated in the conduct and never complained because she was afraid to lose her job, finding "[s]uch an excuse has been determined insufficient to overcome the requirements of unwelcome behavior and conduct based on sex."
The court also found that Blumenfeld failed to raise a triable issue of fact that the alleged harassment was based on her gender. The court based this finding upon the fact the alleged harassment was only directed at Tange's " 'inner circle'.... The 'inner circle' consisted of two men and plaintiff. The men in the inner circle suffered the same allegedly offensive conduct."
The court granted the motion as to her cause of action for failure to prevent harassment because she could not establish a viable claim for discrimination. The court adjudicated her third cause of action for discrimination because she did not suffer any adverse employment action because she remains employed by Qualcomm. The court declined to rule on Qualcomm's avoidable consequences defense because it was unnecessary given its adjudication of her discrimination/harassment claims. The court granted summary adjudication of her remaining common law causes of action based upon the exclusive remedy provided by the workers' compensation system as the conduct was not "incidental to Qualcomm's business, " there was no actionable sexual harassment claim, exceptions to the exclusive remedy of workers' compensation did not apply to negligence claims, and there was no proof of an intent to injure.
The court granted summary judgment and dismissed Blumenfeld's action.
DISCUSSION
I. STANDARD OF REVIEW AND BURDEN OF PROOF
The standard of review for summary judgment is well established. The motion "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A moving defendant has met his or her burden of showing that a cause of action has no merit by establishing that one or more elements of a cause of action cannot be established or that there is a complete defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850; Lackner v. North (2006) 135 Cal.App.4th 1188, 1196.)
"We independently review an order granting summary judgment, viewing the evidence in the light most favorable to the nonmoving party." (Lackner v. North, supra, 135 Cal.App.4th at p. 1196; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) In performing our independent review of the evidence, "we apply the same three-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue." (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.)
In determining whether there are triable issues of material fact, "we consider all the evidence set forth by the parties, except that to which objections have been made and properly sustained. (Code Civ. Proc., § 437c, subd. (c); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We accept as true the facts supported by plaintiff's evidence and the reasonable inferences therefrom (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 148), resolving evidentiary doubts or ambiguities in plaintiff's favor. (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 768.)" (Lackner v. North, supra, 135 Cal.App.4th at p. 1196.)
II. SEXUAL HARRASSMENT
"The Fair Employment and Housing Act (FEHA) 'prohibits a variety of unfair labor practices including discrimination "in terms, conditions or privileges of employment" on the basis of sex.' " (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 516.) Government Code section 12940, subdivision (j)(1) makes it unlawful for an employer, because of sex, to "harass an employee, an applicant, or a person providing services pursuant to a contract." "There are two recognized categories of sexual harassment claims. The first is quid pro quo harassment, where a term of employment or employment itself is conditioned upon submission to unwelcome sexual advances. [Citation.] 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.' " (Beyda v. City of Los Angeles, supra, 65 Cal.App.4th at pp. 516-517.)
Here, Blumenfeld does not allege "quid pro quo" sexual harassment, only hostile work environment. Therefore, we shall address the requirements of establishing a hostile work environment claim.
The Supreme Court has described a hostile work environment in the context of sexual harassment as a workplace "permeated with 'discriminatory intimidation, ridicule and insult, ' that is [citation] 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment....' " (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21.) " 'Sexual harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives its victim of her statutory right to work in a place free of discrimination, when the sexually harassing conduct sufficiently offends, humiliates, distresses or intrudes upon its victim, so as to disrupt her emotional tranquility in the workplace, affect her ability to perform her job as usual, or otherwise interferes with and undermines her personal sense of well-being.'" (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.)
" '[W]hether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.' " (Harris v. Forklift Systems, Inc., supra, 510 U.S. at p. 23.) "The plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended." (Beyda v. City of Los Angeles, supra, 65 Cal.App.4th at p. 517, italics added.)
A. Whether the Conduct was "Unwelcome"
"[T]he conduct at issue must be 'unwelcome' in that the plaintiff neither solicited it nor invited it and regarded the conduct as undesirable or offensive." (Scusa v. Nestle U.S.A. Co., Inc.(8th Cir. 1999) 181 F.3d 958, 966 (Scusa).) "The correct inquiry is whether [the victim] by her conduct, indicated that the alleged sexual advances were unwelcome." (Meritor Savs. Bank, FSB v. Vinson (1986) 477 U.S. 57, 68.) Courts have noted that the " 'inherently subjective question of whether particular conduct was indeed unwelcome presents difficult problems of proof and turns primarily on credibility determinations which are inappropriate for summary judgment.' " (Clegg v. Falcon Plastics, Inc. (3rd Cir. 2006) 174 Fed.Appx. 18, 25, fn. 7; see alsoBales v. Wal-Mart Stores, Inc.(8th Cir.1998) 143 F.3d 1103, 1108 [whether conduct is unwelcome is a fact question for the jury and will largely turn on credibility determinations].)
"Sexual harassment is also prohibited by title VII of the federal Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.). Although the wording of title VII differs in some particulars from the wording of FEHA, the antidiscriminatory objectives and overriding public policy purposes of the two acts are identical.... [Thus, ] it is appropriate to consider federal cases interpreting title VII....' " in assessing Blumenfeld's harassment claim. (Beyda v. City of Los Angeles, supra, 65 Cal.App.4th at p. 517.)
After examining the evidence set forth by the parties in support of and in opposition to the motion for summary judgment, we cannot conclude that undisputed evidence demonstrates as a matter of law that Tange's conduct toward Blumenfeld was in fact welcome.
1. Blumenfeld's engaging in "similar" conduct
A plaintiff must indicate by her conduct that the harassment is unwelcome, and evidence that she "engaged in behavior similar to that which she claimed was unwelcome or offensive" is evidence that the behavior is not unwelcome. (Scusa, supra, 181 F.3d at p. 966.)
The evidence indicates that Blumenfeld engaged in some conduct that was similar to the conduct she alleges Tange directed at her. However, by engaging in such conduct, she did not forfeit her right to object to Tange's alleged acts of sexual harassment. (Beard v. Southern Flying J, Inc. (8th Cir. 2001) 266 F.3d 792, 798 [("Evidence that [the plaintiff] spoke in sexually suggestive terms, moreover, hardly proves as a matter of law that she would welcome having her breasts touched, particularly in light of the fact that there was evidence that she specifically objected to [her supervisor's] conduct. The jury was thus free to conclude that the sexual attention was unwelcome."]; Burns v. McGregor Elec. Indus., Inc. (8th Cir. 1993) 989 F.2d 959, 963 [use of foul language or sexual innuendo in consensual setting does not waive legal protections against unwelcome harassment]; Dobrich v. General Dynamics Corp. (D.Conn. 2000) 106 F.Supp.2d 386, 391 [though plaintiff was "no shrinking violet" and sometimes used foul language at job, she did not waive protections against unwelcome sexual harassment].).
Moreover, the acts Blumenfeld engaged in were for the most part not sexual in nature, while his were. We cannot equate Blumenfeld's conduct which, as Qualcomm characterizes it, amounted to "horseplay" with Tange's conduct that was overtly sexual, and, if proven, constituted serious acts of harassment. Moreover, Blumenfeld did complain to Tange about his conduct and asked that it cease. Thus, a jury could find that Blumenfeld "indicated by [her] conduct that the alleged harassment was unwelcome.' " (Scusa, supra, 181 F.3d at p. 966.)
Indeed, one of the actions cited by Qualcomm, that she would make "fake punches at his groin, " is a misstatement of the record. In fact, when questioned about this in her deposition, Blumenfeld stated she did not recall ever doing so.
In this regard, the cases the Qualcomm relies upon, and the court relied upon in ruling in Qualcomm's favor, are distinguishable. In Reed v. Shepard (7th Cir. 1991) 939 F.2d 484, 487, the evidence showed that the plaintiff was put on probation for her use of offensive language, participated in suggestive behavior, and "reveled in the sexual horseplay." In Scusa, supra, 181 F.3d at page 966, the only allegation of harassment was use of foul language, and the plaintiff admitted that she had yelled at other employees, used foul language, and teased other employees. In Hocevar v. Purdue Frederick Co. (8th Cir. 2000) 223 F.3d 721, 736-737 the court found the plaintiff could not establish the conduct was unwelcome because she used the same crude language about which she complained. None of those cases involved the overt sexual comments, touching and fondling that Blumenfeld alleges she was subjected to, and to which she objected.
Moreover, as we stated, ante, whether a supervisor's conduct was "welcome" is a factual issue normally inappropriate for resolution by way of summary judgment. (Bales, supra, 143 F.3d at p. 1108.) On this record we conclude the evidence submitted by Blumenfeld, construed in the light most favorable to her, was sufficient to raise a triable issue of fact as to whether Blumenfeld's own conduct indicated Tange's alleged harassment was unwelcome.
2. Failure To Complain
The court also found the conduct was not unwelcome because Blumenfeld never complained about the harassment to supervisors, even though there were policies and mechanisms in place that she could have utilized. However, she did provide evidence she objected to Tange's conduct at the time it occurred.
Moreover, a failure to complain to management or take advantage of an internal mechanism designed to remedy sexual harassment/discrimination is not fatal to a harassment claim. As our Supreme Court has held, "An employee's failure to report harassment to the employer is not a defense on the merits to the employee's action under the FEHA, but at most serves to reduce the damages recoverable. And it reduces those damages only if, taking account of the employer's antiharassment policies and procedures and its past record of acting on harassment complaints, the employee acted reasonably in not sooner reporting the harassment to the employer. " (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1049.) This is because, among other things, "the employee may reasonably fear reprisal by the harassing supervisor or other employees. Moreover, in some cases an employee's natural feelings of embarrassment, humiliation, and shame may provide a sufficient excuse for delay in reporting acts of sexual harassment by a supervisor. The employee's conduct is judged by a standard of reasonableness...." (Id. at p. 1045.) For this reason, a determination of when a reasonable employee would have reported the harassment "will in many and perhaps most instances present disputed factual issues to be resolved by application of practical knowledge and experience...." (Id. at p. 1044.) Thus, because a failure to timely report harassment is not a complete defense, summary judgment may not be sustained on this ground. (Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1420-1421.)
In this case Blumenfeld presented evidence that she did not complain and in fact praised Tange because she feared retaliation from him and feared for her job. She also presented evidence that Tange had engaged in harassment before, and after initially being demoted was reinstated to a supervisorial position at Qualcomm. Evidence an employer failed to act on prior acts of harassment may support a plaintiff's claim he or she acted reasonably in failing to utilize the employer's established procedures for resolving harassment complaints. (State Dept. of Health Services v. Superior Court, supra, 31 Cal.4th at p. 1046.) This evidence thus provides a triable issue of fact as to whether Blumenfeld's actions were "reasonable" in failing to report his conduct until after he was removed.
Moreover, we cannot, as Qualcomm requests, sustain the court's grant of summary judgment on the basis of this avoidable consequences defense. Qualcomm asserts that because it had adequate mechanisms in place to deal with sexual discrimination and harassment, and she never availed herself of these mechanisms, we should determine as a matter of law that she has suffered no damages. Qualcomm goes into detail about the avenues employees have to remedy sexual harassment and asks that we find Blumenfeld's failure to avail herself of these mechanisms was unreasonable as a matter of law. However, whether Qualcomm had adequate mechanisms in place to handle harassment claims, and whether Blumenfeld was unreasonable in failing to avail herself of those mechanisms, is, as we have held, a question of fact. Blumenfeld has presented evidence that she did not feel she could complain because she feared retaliation. She has also submitted evidence that Tange had engaged in discriminatory conduct in the past, but after initially being demoted was reinstated to a supervisorial position. This evidence creates a triable issue of fact for the jury to determine as to how much of her damages could have been avoided had she acted earlier to report Tange's conduct. (State Dept. of Health Services v. Superior Court, supra, 31 Cal.4th at p. 1044; see also Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506-507 (Seffert) [the amount of damages awardable is a question of fact for the trier of fact]; Jegen v. Berger (1946) 77 Cal.App.2d 1, 11 [whether the injured party has acted reasonably to mitigate damages is a question of fact].)
B. Whether the Alleged Conduct Was Based Upon Blumenfeld's Gender
One necessary element of a sexual harassment claim is that a plaintiff is treated differently because of his or her gender. As our Supreme Court has held "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." (Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 280.) Here, the court found there was no triable issue of fact on this element because Tange's conduct extended "only to Tange's inner circle, " and employees "not in the inner circle were not subject to the allegedly offensive conduct." The court also found that the "inner circle" consisted of "two men and plaintiff. The men in the inner circle suffered the same allegedly offensive conduct."
However, what the court's ruling ignores is that while the men in the group may have also been treated badly by Tange, only Blumenfeld was the subject of alleged sexual harassment. Where a supervisor is abusive to male employees but directs sexual comments or conduct only towards women, an employer may not escape liability by arguing an "equal opportunity" defense. (Steiner v. Showboat Operating Co. (9th Cir. 1994) 25 F.3d 1459, 1463 [while supervisor was abusive to men, his abuse of women was different, relying on "sexual epithets, offensive, explicit references to women's bodies and sexual conduct"]; EEOC v. R&R Ventures (4th Cir. 2001) 244 F.3d 334, 338 [although supervisor may sometimes have been abusive toward male employees, he directed his sexually pointed comments exclusively at the young women who worked for him]; Duncan v. General Motors Corp. (8th Cir. 2002) 300 F.3d 928, 933 [although supervisor's hostile behavior was directed at both male and female employees, plaintiff pointed to 10 incidents where behavior was directed at her alone and at least five of these could arguably be based on sex].)
Blumenfeld has raised a triable issue of fact whether Tange's conduct was based upon her gender because she presented evidence that his conduct directed towards her was different than it was towards the male members of her team in that it was overtly sexual in nature. It consisted not only of comments about her body, but inappropriate touching and fondling. There is no evidence the male members of the inner circle suffered from this type of conduct. Thus, the court erred in granting summary judgment on this ground as well.
III. FAILURE TO PREVENT HARASSMENT/SEX DISCRIMINATION
As discussed, ante, the court granted summary adjudication on Blumenfeld's cause of action for failure to prevent harassment because she could not establish a viable claim for harassment and granted summary adjudication of her cause of action for discrimination because she was not subject to an adverse employment action based upon her gender because she remains employed by Qualcomm.
Blumenfeld asserts that because her harassment claim is viable, her claim for failure to prevent harassment should also be revived. In a footnote in its brief Qualcomm requests that we affirm the court's order because it is undisputed that it took all reasonable steps to prevent harassment and remedy Tange's conduct. We conclude that because triable issues of fact exist on Blumenfeld's harassment claim her claim for failure to prevent harassment also remains viable. As with the harassment claim, triable issues of fact exist as to whether Qualcomm's actions were reasonable, particularly given the evidence of Tange's prior harassment of another employee.
As to Blumenfeld's discrimination claim, she does not assert on appeal that the court erred in concluding she did not suffer any adverse employment action because she is still employed by Qualcomm. Accordingly, she has forfeited the right to challenge the court's ruling as to that cause of action on appeal, and we affirm the court's summary adjudication of that cause of action.
IV. COMMON LAW TORT CLAIMS
In granting Qualcomm's motion for summary judgment, the court also dismissed Blumenfeld's common law tort claims for assault, battery, intentional infliction of emotional distress, and negligent retention/supervision, based upon the exclusivity provisions of the Workers' Compensation Act. Blumenfeld asserts that because her harassment claims have merit, the exclusivity provisions of the Workers' Compensation Act do not apply. Qualcomm admits that revival of Blumenfeld's harassment and discrimination claims also revives her claim for intentional infliction of emotional distress, but asserts her remaining common law claims remain barred.
We conclude that because we have held that triable issues of fact exist on Blumenfeld's harassment claims, Blumenfeld's cause of action for intentional infliction of emotional distress is not subject to the exclusivity provisions of the workers' compensation act. (See Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 347, 352.) This is so because such a claim, if based upon the employer's harassment or discrimination, is " 'founded upon actions that are outside the normal part of the employment environment.' " (Murray v. Oceanside Unified Sch. Dist. (2000) 79 Cal.App.4th 1338, 1363.)
However, Blumenfeld does not address whether her remaining common law claims for assault, battery and negligent retention/supervision are barred by the exclusive remedy of the workers' compensation system. Claims for assault and battery, even when brought in conjunction with a viable claim for discrimination or harassment, are barred by workers' compensation exclusivity. (Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1486-1488.) Moreover, Blumenfeld does not address on appeal the one possible exception to this rule where there is a "willful physical assault" with an "intent to injure." (See Torres v. Parkhouse Tire Service, Inc (2001) 26 Cal.4th 995, 1006-1007.) Thus this issue has been waived on appeal. Moreover, as the court found, Blumenfeld, in opposing summary judgment, pointed to no evidence to support this exception.
Blumenfeld also does not assert the court erred in summarily adjudicating the negligent retention/supervision cause of action based upon the fact that negligence claims are barred by the exclusive remedy of the workers' compensation system. At any rate, it is clear that such claims are barred by workers' compensation exclusivity. (Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, 1606 [while harassment claim against employer was not barred, claim against employer for negligent supervision of harasser was].)
Blumenfeld also briefly asserts the court erred in sustaining certain objections to her evidence submitted in opposition to Qualcomm's motion for summary judgment. However, as Qualcomm points out, she did not rely on that evidence in opposing summary judgment, and it is unnecessary to our holdings in this opinion. Therefore, we need not reach this issue.
DISPOSITION
The judgment is reversed as to the claims for harassment, failure to prevent harassment and intentional infliction of emotional distress. In all other respects the judgment is affirmed. Parties to bear their own costs.
WE CONCUR: O'ROURKE, J., AARON, J.