Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. CGC-07-463212
Reardon, J.
After appellant Maria Coreas complained to management that a coworker was sexually harassing her, respondent City and County of San Francisco took various steps against him, eventually terminating his employment. Coreas sued the city for inter alia sexual harassment, creating a hostile work environment, and failure to protect her from harassment. The trial court granted summary judgment to the city, based in part on its prompt response to her complaint. She appeals, contending inter alia that the trial court erred in granting summary judgment because the city (1) failed to take prompt remedial action against her coworker; and (2) did not take reasonable steps to prevent the harassment from occurring in the first instance. We affirm the judgment.
On July 24, 2009, Coreas filed a notice of appeal from the June 30, 2009 order granting summary judgment. An order granting summary judgment is not an appealable order. (Islander Yachts, Inc. v. One Freeport 36-Foot Vessel (1985) 173 Cal.App.3d 1081, 1086 fn. 6.) One may only appeal from a judgment entered after summary judgment is granted. (See Code Civ. Proc., § 904.1, subd. (a)(1); see also 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 160, pp. 236-237.) A judgment was filed on August 27, 2009 dismissing Coreas’s case against the city with prejudice. We liberally construe the notice of appeal from the order granting summary judgment to constitute an appeal from the subsequent judgment. (Cal. Rules of Court, rule 8.100(a)(2).) We deem the premature July 2009 notice of appeal-filed after the trial court announced its intended ruling but before judgment was rendered-to be filed immediately after the filing of the August 2009 judgment. (Id., rule 8.104(e)(2).)
I. FACTS
Appellant Maria Coreas began working as a custodian for respondent City and County of San Francisco’s Municipal Transit Authority (MTA) in 1997. By 2004, Coreas was working at the Green Division. At that worksite, coworker David Chan-a technician assigned to maintain city vehicles-told her that he liked her, that he liked chubby women like her. Coreas told him to leave her alone. She did not report Chan’s comments to management because she did not think anyone would pay attention to her complaints.
During her years of employment, Coreas filed numerous complaints with management about conduct she believed was inappropriate. For example, in February 2006, she filed a sexual harassment complaint with MTA’s Equal Employment Opportunity (EEO) section based on an unrelated September 2005 incident. The EEO section concluded that the complaint was unsubstantiated.
In 2005, Coreas was transferred to the Potrero Division, but by 2006 she had arranged to return to the Green Division, which was closer to her child’s school. In January, Chan said that he was happy to see Coreas. During meal breaks, he talked about sex. In March, he suggested that they “go boom boom, ” which Coreas viewed as an invitation to engage in sexual intercourse. In May, he brought pornographic movies to work and watched them on a portable DVD player. He invited Coreas to watch with him. Sometimes, he had pornographic magazines. In June, Chan told Coreas that he had purchased a water bed, and invited her to his home to use it.
All subsequent dates refer to the 2006 calendar year unless otherwise indicated.
In July, Chan suggested that Coreas go “fuck” with him in Las Vegas. She told him he was crazy, to leave her alone, and to stop saying such things to her. Chan replied, “Let’s go, Maria.” Coreas felt so badly after this encounter that she left work an hour before her shift was over. Two weeks later, Coreas encountered Chan in the workplace kitchen. In front of two other coworkers, Chan said “Maria, let’s go fuck.” Coreas was very embarrassed, and it seemed that her coworkers were, too, as they left the room. Later, she learned that her coworkers had confronted Chan, telling him not to speak to her in this manner. They told Chan that his conduct was sexual harassment, but Chan replied that he did not care. In November, Chan stuck out his tongue at Coreas and moved his hand in a sexually provocative manner.
Coreas chose not to report these incidents to management. Perhaps as early as July or August, Chan’s supervisor-Hue Khuu-heard rumors of Chan’s conduct toward Coreas. Khuu asked Coreas if Chan was behaving improperly toward her, and she told him that Chan was not.
By December, Coreas was unwilling to bear Chan’s conduct any longer. In the first week of December, he made sexual hand gestures in her presence. On December 12, Coreas contacted the EEO section to schedule a December 19 interview with that office. She offered no details of her complaint at that time.
On December 14, Chan behaved in such a manner that Coreas yelled at him to leave her presence. After he left, her coworkers saw her crying and asked her what had happened, so she told them. She also spoke to a union representative, Fernando Leal, who opined that Chan was crazy. Coreas told Leal that someone had to stop Chan because he was hurting her. She expressed her intention to complain to the EEO section. Leal told Coreas that he would speak to Chan’s supervisor.
On December 16, Khuu learned that Coreas had made a sexual harassment complaint against Chan. On December 18, Leal also reported Coreas’s concerns to Khuu. Khuu and Leal spoke with her for an hour, asking about everything that had happened. Chan was then on a vacation scheduled to end on January 2, 2007. Khuu called Chan at home, reported Coreas’s allegations and ordered him to stay away from her. Despite receiving this instruction, when Chan came in to meet with Khuu about the allegations, he located Coreas and attempted to apologize to her.
Khuu also informed his supervisor, Michael Ellis, the superintendent of rail fleet maintenance, of Coreas’s allegations. Ellis spoke with Coreas the same day. By the next morning, Ellis had made the EEO section aware of the report. He took steps to ensure that Coreas and Chan had no further contact. That day, Coreas also told her supervisor about her interactions with Chan. Her supervisor reported to the EEO section that Coreas was concerned for her safety. Coreas was interviewed by a representative of the EEO section, which began an investigation. She declined an offer of a position at another facility to minimize the possibility of contact with Chan. On December 22, Coreas filed a written complaint, alleging that Chan subjected her to repeated lewd gestures, pornographic material and requests for sexual favors.
Coreas was within her rights to reject this proposal. A victim is not required to accept a transfer to a less desirable work location to remedy sexual harassment. (See Ellison v. Brady (9th Cir. 1991) 924 F.2d 872, 882.)
On January 2, 2007, Chan returned to work. Coreas observed him making a masturbatory gesture with his hands on his private parts. Immediately, Coreas reported this incident to the EEO section and to her supervisor. Coreas had no further encounters with Chan after January 2, 2007.
Coreas asserted that she testified at her deposition that she saw Chan at work after this date. As the record on appeal does not contain the cited part of her deposition, we conclude that the city’s contrary assertion of facts is undisputed.
When confronted with Coreas’s allegations about the January 2, 2007 incident, Chan admitted making this gesture, but indicated that it had been directed at someone other than Coreas. On January 4, 2007, Chan was placed on 30 days’ unpaid administrative leave because of his January 2, 2007 conduct. On January 8, 2007, Coreas sent a complaint letter to the EEO section, complaining that Chan had failed to stay away from her and that he had repeated his lewd conduct toward her.
On January 17, 2007, Ellis and Khuu attended a disciplinary conference with Chan. Ellis believed that Chan did not appreciate the seriousness of his conduct and recommended that MTA terminate Chan’s employment. On February 4, 2007, at the end of his administrative leave, Chan was transferred to another worksite to prevent further contact with Coreas. On February 5, 2007, he and MTA entered into a “Last Chance Agreement.” In it, they agreed that he would work a different shift from Coreas in order to avoid her. This agreement was made instead of termination, but it was agreed that violation of the agreement would result in immediate dismissal.
Later in February 2007, Coreas filed a complaint with the state Department of Fair Employment and Housing and received a “right-to-sue” letter from that agency. On February 23, 2007, Coreas obtained a temporary restraining order against Chan. In April 2007, the EEO section found that Coreas’s complaints about Chan’s 2004 behavior were untimely, but that her reports of sexually inappropriate conduct in 2006 had been substantiated. It found that Chan subjected Coreas to repeated visual and verbal conduct of a sexual nature. It also concluded that he twice violated a stay-away order during his vacation and continued to engage in inappropriate sexual conduct at Coreas’s workplace on January 2, 2007. Coreas was advised that discipline-including termination-against Chan was recommended by the EEO section.
In May 2007, Coreas filed a complaint against the city, the MTA, and Chan. She alleged causes of action for sexual harassment, gender discrimination, creating a hostile work environment, intentional infliction of emotional distress, retaliation and failure to prevent harassment. These claims were alleged to be violations of the California Fair Employment and Housing Act (FEHA). (See Gov. Code, § 12900 et seq.) She obtained a new restraining order against Chan.
Chan filed a cross-complaint against Coreas, which was later dismissed with prejudice.
All statutory references are to the Government Code unless otherwise indicated.
In her brief, Coreas asserts that she was forced to resign her employment in order to avoid further harassment. The record on appeal contains no evidence that Coreas quit her job for any reason, nor does her statement of undisputed facts in opposition to summary judgment claim this consequence of Chan’s conduct. Thus, we deem this assertion to be a misstatement of fact.
The city answered Coreas’s complaint in September 2007. That month, the city terminated Chan’s employment because of his sexual harassment of Coreas and his violation of the terms of his “Last Chance Agreement.” In April 2009, the city moved for summary judgment on all causes of action.
In June 2009, the trial court granted the city’s motion for summary judgment. It dismissed her causes of action for sexual harassment and hostile work environment because Chan’s conduct was not severe and pervasive and because the city took immediate remedial action when it learned of his misconduct. It dismissed her failure to prevent cause of action because undisputed facts showed that Coreas was not harassed or subjected to retaliation. It also rejected her three other causes of action. Judgment entered accordingly in August 2009.
As Coreas’s appeal only challenges the trial court’s grant of summary judgment on her sexual harassment, hostile work environment, and failure to prevent causes of action, our statement of facts focuses on evidence related to those rulings.
II. PROMPT REMEDIAL ACTION
A. Legal Principles
1. Affirmative Defense
It is unlawful for an employer to harass an employee on the basis of sex. (§ 12940, subd. (j)(1); see 42 U.S.C. § 2000e-2(a)(1).) An employer is liable for an employee’s harassment of a coworker if the employer, its supervisors or agents knew or should have known of this conduct and failed to take immediate and appropriate action. (§ 12940, subd. (j)(1); McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 471.)
Although Coreas alleged no violation of federal title VII, California courts may look to cases interpreting this federal statute for guidance in interpreting similar aspects of the FEHA. (See Reno v. Baird (1998) 18 Cal.4th 640, 647.)
If the employer takes prompt remedial action, no unlawful employment practice has occurred within the meaning of the FEHA. (Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132, 1135-1136; see McClung v. Employment Development Dept., supra, 34 Cal.4th at p. 470 [noting that another holding in Carrisales was superseded by statutory amendment].) In such circumstances, the employer is relieved of liability because its remedial actions are deemed sufficient. (Steiner v. Showboat Operating Co. (9th Cir. 1994) 25 F.3d 1459, 1464.) The prompt remedial action constitutes an affirmative defense to a claim of liability for sexual harassment. (See, e.g., Nichols v. Azteca Restaurant Enterprises, Inc. (9th Cir. 2001) 256 F.3d 864, 875; see Faragher v. Boca Raton (1998) 524 U.S. 775, 780, 805.)
Although Coreas alleged separate causes of action for sexual harassment and hostile work environment, case law makes it clear that hostile work environment is a theory on which a sexual harassment cause of action may be based. (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21; Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 65-67; Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1045.) As Coreas did not allege any other theory of sexual harassment, these two causes of action are essentially a single claim for recovery. Thus, if the city established an affirmative defense to her hostile work environment claim, that defense also constitutes a defense to her sexual harassment cause of action, as well.
2. Standard of Review
The trial court found that there was no triable issue of fact on the sexual harassment and hostile work environment causes of action, based on undisputed facts. It was undisputed that Coreas did not complain of Chan’s conduct until December 2006. It was also undisputed that as soon as the city became aware of Chan’s inappropriate sexual conduct, it took immediate remedial action, including changing his shift and-once it verified his conduct-terminated him. Thus, the trial court granted the city’s motion for summary judgment on these two causes of actions.
On review of a trial court grant of summary judgment, we consider those facts that were in the record at the time that the trial court issued its ruling. We review the ruling de novo, based on the evidence set forth in the moving papers and the opposition to the motion, unless objections to that evidence were made and sustained. We liberally construe any evidence in opposition to the motion and resolve any doubts concerning the evidence in favor of the opposing party. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.)
B. Before Complaint
Coreas contends that the trial court erred in granting the city summary judgment because there was a triable issue of material fact about whether the city knew or should have known of the harassment and failed to take prompt remedial action. She contends that the city became liable for harassment once a coworker complained to Khuu and that the city should have known of Chan’s harassment well before she first reported it in December.
An employer is liable for failing to remedy or prevent a hostile work environment once management level employees know-or in the exercise of reasonable care should have known-of it. (Ellison v. Brady, supra, 924 F.2d at p. 881.) An employee can demonstrate that the employer knew of the sexual harassment by showing that (1) the employee complained to management about it, or (2) the sexual harassment was pervasive, giving rise to an inference of knowledge or constructive knowledge. (Henson v. City of Dundee (11th Cir. 1982) 682 F.2d 897, 905.)
Coreas argues that there was a triable issue of material fact about whether the city should have known of Chan’s conduct before she made her December complaint. She claims that coworkers brought his conduct to the attention of management at an earlier time. The evidence does not support her claim of error. The evidence that a coworker brought Chan’s sexual harassment to Khuu’s attention was unclear about the time at which this report was made. Construing this evidence in Coreas’s favor, a report of Chan’s conduct appears to have reached Khuu in July or August. However, Coreas also testified that Khuu asked her if Chan was bothering her, advised her she should let him know, but she did not complain about Chan to Khuu. Having declined to bring the matter to the attention of management when specifically invited to do so, Coreas cannot now object that the city should have known of Chan’s conduct when she appears to have denied that any misconduct had occurred. Thus, her testimony was consistent with the city’s evidence-that Khuu was unaware that Chan had engaged in sexually inappropriate behavior, or that he had sexually harassed Coreas until she made her December 16 complaint. We find that there was no evidence supporting her claim that the city should have known of Chan’s conduct before she made her December 2006 complaint.
C. After Complaint
Coreas also contends that the city failed to take prompt remedial action after she made her sexual harassment complaint. The trial court dismissed her sexual harassment cause of action in part because it concluded that the city did take immediate and appropriate remedial action against Chan once it learned of his conduct. It specifically cited his transfer to another worksite and his eventual termination as evidence of that prompt remedial action.
Once an employer learns that sexual harassment has occurred, it must take some disciplinary action against the offending employee. (Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 1007; see Hunter v. Allis-Chalmers Corp., Engine Div. (7th Cir. 1986) 797 F.2d 1417, 1422.) The remedies must be reasonably calculated to end the sexual harassment, persuading the current harasser to discontinue any unlawful conduct and discouraging potential harassers to refrain from similar conduct. (Nichols v. Azteca Restaurant Enterprises, Inc., supra, 256 F.3d at p. 875; Star v. West (9th Cir. 2001) 237 F.3d 1036, 1038; Ellison v. Brady, supra, 924 F.2d at p. 882.) The key to determining the sufficiency of disciplinary measures is whether the employer’s actions adequately remedy the situation. (Star v. West, supra, 237 F.3d at p. 1039.)
Counseling or admonishment may constitute sufficient discipline, as a first resort. (Star v. West, supra, 237 F.3d at p. 1039; Intlekofer v. Turnage (9th Cir. 1992) 973 F.2d 773, 780.) In our case, as soon as he spoke with Coreas about her allegations, Khuu ordered Chan to stay away from Coreas. Chan did not heed this advice. Khuu also asked Chan to come in to see him that day, so that he could hear Chan’s view of the situation. When Chan came to the workplace for this meeting on December 18, before he met with Khuu, he spoke with Coreas and tried to apologize to her.
At her deposition, Coreas testified that Khuu had told her that he would tell Chan to apologize and perhaps buy her a gift, in order to persuade her not to complain to the EEO section. She testified that she told Khuu not to do so. At his deposition, Khuu testified that he had instructed Chan to see him, at which point he planned for them both to speak with Coreas so that Chan could offer an apology. Instead, Chan tried to apologize on his own. Although Coreas asserted that other evidence offered in the trial court supported her view that Chan’s apology was made at Khuu’s instigation, the cited evidence-her declaration and parts of her deposition testimony-were not part of the record on appeal. We note that the trial court sustained the city’s objections to her declaration.
The employer must do more than merely ask the employee to refrain from discriminatory conduct. Some discipline is required. (Ellison v. Brady, supra, 924 F.2d at p. 882.) Those remedies might include reprimand, removal from the common workplace, scheduling employees to work different shifts, or dismissal of the harassing employee. (See id. at pp. 882-883 & fn. 19.) Khuu reminded Chan of the city’s zero tolerance policy regarding sexual harassment and barred him from the workplace until his vacation was over.
On January 2, 2007-his first day back at work after vacation-Chan again engaged in inappropriate conduct. Coreas immediately complained about this conduct. Once an employer learns that the harassing employee continues his or her sexual harassment after being disciplined, it must take more severe disciplinary measures. (Intlekofer v. Turnage, supra, 973 F.2d at p. 779.) That is precisely what the city did in this case. When Chan failed to comply with the city’s initial remedial attempts, he was subjected to more severe discipline. Two days after the January 2, 2007 incident, he was placed on administrative leave. When that leave period had run, Chan was moved to another worksite away from Coreas. Chan was warned that he might be terminated and, ultimately was terminated from employment as a direct result of his improper conduct toward Coreas.
The city’s actions adequately remedied Chan’s conduct against Coreas. (See, e.g., Star v. West, supra, 237 F.3d at p. 1039.) We conclude-as the trial court did-that the city took prompt remedial steps, once Chan’s conduct was brought to the attention of management. As the city established an affirmative defense to Coreas’s sexual harassment and hostile work environment causes of action, no unlawful employment practice occurred that is actionable under the FEHA. Thus, the trial court properly granted summary judgment to the city on Coreas’s sexual harassment and hostile work environment causes of action.
As the city established a complete defense to Coreas’s sexual harassment and hostile work environment causes of action, we need not determine whether Chan’s conduct was severe or pervasive for purposes of Coreas’s hostile work environment cause of action.
III. PREVENTION OF SEXUAL HARASSMENT
Coreas also contends that the city did not take reasonable steps to prevent sexual harassment from occurring in the first instance. The trial court dismissed this cause of action because undisputed facts showed that Coreas was not harassed or subjected to retaliation. In California, an unlawful employment practice occurs if an employer fails “to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (§ 12940, subd. (k).) This statute does not create an independent, private right of action if no discrimination or harassment occurred. (See, e.g., Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 287-289.) As Coreas did not show that any actionable harassment or retaliation occurred, she cannot state a cause of action for failure to prevent sexual harassment from occurring.
The judgment is affirmed.
We concur: Ruvolo, P. J., Sepulveda, J.