Parks v.
Filed 10/22/12 Parks v. Port of Oakland CA1/4
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
Plaintiff and Appellant,
v.
PORT
OF OAKLAND,
Defendant and Respondent.
A131903 & A132101
(consolidated)
(Alameda
County
Super. Ct.
No. RG07361568)
Appellant
employed as a plumber by respondent Port
of Oakland (Port). She sued the Port for harassment on the basis
of her gender and sexual orientation, for failure to prevent such harassment,
and for retaliating against her after she complained of the
summary adjudication of the harassment and failure to prevent harassment causes
of action, but permitted the retaliation cause of action to proceed to trial.
The jury
found that the Port did not retaliate against Parks for complaining that she
was being harassed. Accordingly, the
trial court entered judgment in favor of the Port. It also denied Parks’s postjudgment motion to
tax costs.
On appeal,
Parks argues that the trial court erred in granting the Port’s motion for
summary adjudication (the Port’s motion), and in sustaining one of the Port’s
objections to evidence Parks submitted in opposition to that motion. Parks also contends that the trial court
erred in permitting the Port to recover certain disputed cost items. We agree that the excluded evidence was
admissible for a limited purpose, but reject all of Parks’s remaining
contentions, and accordingly affirm both the judgment and the order denying the
motion to tax costs.
Facts and Procedural Background
Parks has
over 20 years of experience as a plumber.
facilities maintenance department on June 4, 2001. Mike Ringbom, Parks’s direct supervisor at
the Port, described her as “the best technical plumber [he has] ever known,â€
and characterized her skills and work as “excellent.†The Port’s February 2006 performance
evaluation of Parks rated the quality of her work, her dependability, and her
initiative and ingenuity as “above standard,†a rating reflecting “exceptional
performance.†(Original capitals
omitted.)
Parks is
the only female plumber employed by the Port, and during the time she has
worked at the Port, it has employed very few tradeswomen. Parks is openly lesbian, and describes
herself as not trying to conform to female gender stereotypes in appearance or
behavior. Parks describes herself as a
union supporter and activist, has participated in at least one union protest at
the Port, and has frequently used the grievance procedure provided for by her
union contract to challenge actions of supervisors and managers that she
considered discriminatory or unfair.
Parks
considers her method of communication to be “direct,†like that of her male
coworkers. Her supervisors, however,
have described her attitude on the job as “strident,†“belligerent,†“openly
aggressive,†“insubordinate,†“emotional,†“disrespectful,†and “unnecessarily
adversarial.â€
In October
2007, Parks filed a complaint with the California Department of Fair Employment
and Housing (DFEH) alleging discrimination
and harassment on the basis of gender and sexual orientation in connection
with her employment at the Port, as well as retaliation against her by the Port
for complaining internally about these matters.
against the Port in the Alameda County Superior Court, pleading four causes of
action under the California Fair Employment and Housing Act (FEHA, Gov. Code,
§ 12900 et seq.): (1) gender harassment; (2) sexual orientation
harassment; (3) failure to prevent discrimination and harassment,
and (4) retaliation.
On June 10,
2009, Parks filed a second complaint with DFEH alleging retaliation for the
filing of her prior DFEH complaint and her lawsuit, and denial of equal pay on
the basis of sex. Parks received a
right-to-sue letter, and on September 21, 2009, she filed an amended complaint,
which pleaded the same causes of action as the original complaint, but added
allegations about events alleged to have occurred during the pendency of the
litigation.
The Port’s
motion was filed on September 15, 2009.
alternative, summary adjudication as to each of Parks’s causes of action. The evidence submitted in support of and in
response to the Port’s motion involved the incidents and Port practices
described below, which we have grouped into categories and arranged
chronologically within each category, so as to summarize the factual basis for
Parks’s contention that she raised triable
issues of fact with regard to her causes of action for harassment based on
gender and sexual orientation.
name="_ftnref5" title="">[5] For the most part, as will appear from our
recitation below, the historical facts are not in dispute, at least for the
purpose of the Port’s motion; rather, the disputes involve the motive or intent
that may be inferred from those facts.
1. Offensive jokes about women:
Parks alleges that in the work environment at the Port, “offensive,
sexist jokes†about “women and women’s genitalia†were generally tolerated and
“endemic.†However, Parks was only able
to provide one specific example of this conduct in her discovery
responses. The example was an incident
that occurred in approximately July 2001, shortly after Parks began working at
the Port. Carl Fill, a foreman in the
utilities department, told a joke in the lunchroom involving an engineer and a
bar, with the word “pussy†(in its slang meaning, referring to women’s
genitalia) in the punchline. The
audience for Fill’s joke was a group of Port employees and supervisors that
included Tim Mogle and Al Avendano.
Parks did not report this, but told Fill at the time that she did not
appreciate the joke, and that it was not funny.
She did not recall how Fill responded.
2. Derogatory comments based on gender: Parks identified the following specific
examples of derogatory comments about women by male workers at the Port during
the course of her employment there.
a.
she started working at the Port. Until
Fill’s retirement in 2004, Fill frequently made derogatory comments about women
to Parks or in her presence, some of which Dave Cuthbertson witnessed. Cuthbertson was the direct supervisor of
Fill, and then of Ringbom when the latter succeeded Fill as Parks’s
foreman. Cuthbertson was aware that Fill
made derogatory sexual comments in the workplace, and told Fill he did not like
him doing so, but did not discipline Fill for this behavior.
b.
plumber Ivan Taylor told Parks that she “didn’t know anything before [she]
worked†at the Port. Parks did not
complain about this statement to anyone.
c.
2003, Parks went to Cuthbertson to complain about unfair work assignments,
and in the course of their conversation, mentioned that someone had made a
sexist remark to her. Cuthbertson said
“he would take care of it,†and asked who had made the remark. Parks declined to identify the culprit. At her deposition, Parks explained that she
wanted to keep the conversation focused on her complaint about work
assignments, and she thought Cuthbertson knew that she was talking about Fill. Fill was “known as a womanizer and regularly
said derogatory statements about women and came on to women.†Parks believed Cuthbertson knew this, “wanted
to get rid of†Fill, and was “ready to jump on it†when Parks complained.
d.
Port contractor Curtis Johnson said to Parks, “I hate women.†As a contractor, Johnson was not an employee
of the Port.
e.
2007, at a morning crew meeting, Ringbom used the expression “their bitch†to
denigrate the members of a club associated with the Hell’s Angels. Parks complained about this remark to Port
management, but did not receive any response.
f.
utilities supervisor at the Port, has referred to Parks as his “favorite female
plumber.†In addition, on one occasion,
Parks observed Cuthbertson intervening in a discussion among Port workers about
a newspaper article and “turn[ing] it toward lewd remarks regarding back page
ads for women who work in the sex industry.†Cuthbertson did not recall making any such
remarks, but stated that if he did, they were not directed at Parks. Parks complained about this incident to Port
management, but did not receive any response.
3. Derogatory
comments based on sexual orientation:
Parks characterized the “bitch†remark and the conversation about
newspaper ads for the sex industry, discussed ante, as derogatory based on sexual orientation as well as
gender. In addition, Parks gave two
examples of derogatory remarks regarding sexual orientation made by Port
workers.
a.
October 2004, while she was on vacation, she was the subject of “vicious
gossip†about her sexual orientation, in that when someone asked where she was,
temporary Port worker Tim Mogle “responded with an obscene gesture of his
tongue between his fingers.†Julius
Perkins, a coworker, told Parks about the incident after she returned from
vacation. Some time later, Parks opined
to Tadeusz (Ted) Mankowski, the harbor facilities manager, that Mogle was
homophobic, as well as having “race issues†and being “derogatory to women,â€
but she did not mention the obscene gesture or any other specific
incident. The Port later hired Mogle to
work at the Oakland International Airport, which the Port also manages. Parks told Mankowski she objected to the Port
hiring Mogle because of his past homophobic, sexist, and racist behavior, but
Mogle was hired despite this. Mogle did
not have supervisory authority at the Port.
b.
morning crew meeting, Ringbom referred to a “man code†precluding men from
sharing an umbrella. Parks interpreted
this reference as homophobic. Parks
complained about this remark to Port management, but did not receive any
response.
c.
someone posted a document on the bulletin board outside Cuthbertson’s office
pointing out that after the federal government seized the Mustang Ranch
brothel, the government was unable to operate it successfully. The document, which remained posted for about
two weeks, concluded that “Now we are trusting the economy of our country and
our banking system to the same nit-wits who couldn’t make money running a whore
house and selling whiskey!†Also, in
October 2009, someone posted a document on the bulletin board in the Port workers’
lunchroom that was used by the Port to post official announcements. The printout was entitled “22 Ways to Be a
Good Liberal Democrat,†and included statements that “You have to believe that
gender roles are artificial but being homosexual is natural,†and “You have to
believe that homosexual parades displaying drag, transvestites, and bestiality
should be constitutionally protected, and manger scenes at Christmas should be
illegal.†Parks took photographs of the
document and showed them to the Port’s Office of Equal Opportunity, but the
document remained on the bulletin board for at least a month.
4. Unequal Restroom and Locker Room Facilities: The Port provides male and female employees
with separate restrooms and adjacent locker rooms. Parks’s sex discrimination claim included
several issues regarding the women’s facilities.
a.
restroom was not private, in that it was used by male janitorial staff as a
means of access to the women’s locker room.
The male foreman of the Port’s contracted janitorial crew admitted that
he occasionally entered the women’s restroom at the Port, but denied that he
did so when female Port employees were using it.
b.
conversation with [Parks] while she was using the toilet,†and on more than one
occasion, put his foot in the locker room door to keep it open so he could talk
to her while she was inside. This
behavior made Parks uncomfortable with using the women’s locker room. Ringbom remembered only one such incident,
during which he recalled standing in the hallway outside the women’s locker
room, knocking on the door, and speaking to Parks, who he thought was just
washing her hands. The Port did not
dispute Parks’s contention that this was not the only time Ringbom intruded
upon Parks while she was using the women’s locker room.
c.
male employees were stored in unused lockers in the women’s locker room. Sign-out sheets indicating that a uniform had
been issued to a particular employee, whose signature appeared on the sheet,
were taped to the doors of the lockers.
Parks concluded from this that the Port was permitting male employees to
enter the women’s locker room to obtain uniforms, but did not aver that she had
actually seen them do so. Joni Mantino,
the female Port employee who handles the uniforms, denied that men entered the
women’s locker room to try them on, explaining that she brings the uniforms out
to the male employees. Mantino did not
explain, however, how the men’s signatures came to be on papers located inside
the women’s locker room. Parks also had
a separate problem with her own uniforms being repeatedly delivered to the
men’s locker room after they were laundered.
Parks found it embarrassing and humiliating to have to go to the men’s
locker room to pick up her uniform. She
eventually stopped using the Port’s uniform service, and purchased and
laundered her own uniforms.
d.
facilities were not fully available for a period of time, because the
janitorial staff admittedly stored supplies in the women’s locker room,
requiring Parks to turn sideways to enter, and precluding her from sitting
down. The cleaning agents and dirty mops
used by the janitorial staff made the women’s locker room unusable on occasion.
e.
the women’s restroom which Parks had not observed to be present in the men’s
facilities when she entered them to fix plumbing. According to Mantino, however, the same odor
was also present in the men’s room, and steps were taken to address the problem
in both restrooms. Parks did not dispute
this.
5. Unfair Performance Evaluations: Parks received performance evaluations that
she believed were unfair in January, February, October, and December 2006, and
January 2008.
a.
evaluation,
title="">[7] though
very complimentary of Parks’s technical skills and work habits, described Parks
as “strident,†“disrespectful,†and “belligerent,†and rated her “short of
standard†in the categories of “cooperation and relationships with people†and
“ability as supervisor.†The Port’s
previous evaluations of Parks, while she was working under a different
supervisor, Mitch Segal, had rated her as standard or above standard in the
same categories. Although the January
2006 evaluation stated that Parks was well liked by her colleagues, it also
described her as being “insulting†to them.
Cuthbertson believed the evaluation was accurate, and denied that it was
based on Parks’s gender or sexual orientation.
b.
attended a meeting with Cuthbertson, Ringbom, and Joni Mantino, facilities
support supervisor, to discuss the January 2006 evaluation. At that meeting, Cuthbertson did not provide
Parks with specific examples of the behavior underlying the criticisms of her
in the January 2006 evaluation. Parks
objected to attending a meeting with three management people without a union
representative present, and filed a grievance regarding this evaluation. At another meeting about the same evaluation,
in June 2006, Mankowski criticized Parks for complaining about the possibility
that the Port would hire Mogle.
c.
unsupported criticisms†in an evaluation dated November 2006, which she
received in December 2006. In this
evaluation, while Parks was praised for the quality and quantity of her work,
she was rated “short of standard†for “cooperation and relationships with
people,†in part because of “complaints of [Parks’s] conduct towards other
employees.â€
d.
November 2007, which Parks did not receive until January 2008, rated Parks
below standard overall, even though she was rated standard in four of the
evaluation form’s seven categories, and exceptional in one. The two below standard (also defined as “need
to improveâ€) ratings were for “work habits†and for “cooperation and
relationships with people.†When Parks
met with Ringbom to discuss this evaluation, he declined to provide specific
examples regarding the criticisms. Parks
stated in her discovery responses that at this meeting, Ringbom could not
explain why Parks’s overall rating did not appear to reflect her ratings in
specific categories. Ringbom’s notes,
however, indicate that he explained he rated Parks “need to improve†overall,
despite her one “exceptional†rating, because her two ratings in that category
were “closer to [u]nacceptable.†Ringbom
averred that he “believe[d] that [he] answered any questions raised by [Parks]
concerning her evaluation,†and denied that the evaluation was based on Parks’s
gender or sexual orientation.
6. Unfair Discipline:
Parks identified a number of incidents in which she believed the Port
had disciplined her unfairly, or threatened to do so.
a.
received a letter of warning for removing certain reference binders from
Ringbom’s office without notifying him.
The binders were maintained for the use of Parks and her coworkers, who
confirmed Parks’s understanding that workers were permitted to enter Ringbom’s
office. According to Parks, she called
Ringbom on the radio from his office to tell him that she had all the binders
except one, and to ask where the other one was.
Parks was later denied an extension of time to file a grievance
regarding the letter of warning. Parks
acknowledged at her deposition that she had removed papers from the binders
without telling Ringbom she was doing so.
She said she returned the papers later, at Ringbom’s request, but
admitted she was not sure she had returned all of them. Parks acknowledged that Ringbom’s request for
the return of the papers had nothing to do with her gender or sexual
orientation. Ringbom stated that he
issued the letter of warning because of Parks’s insubordination, not because of
her gender or sexual orientation.
b.
January 3, 2007, Parks and Ringbom had an argumentative conversation during
which Parks called Ringbom a liar. On
January 8, 2007, Ringbom issued a written reprimand stating that during this
conversation, Parks had been “contentious, disrespectful and argumentative in a
public place and clearly insubordinate.â€
The reprimand also stated that Parks had violated the Port’s “Workplace Security
Policy,†and had attached to it a copy of the Port’s “Workplace Violence
Policy.†It warned that supervisors were
required to report violations of these policies. Parks filed a grievance regarding this reprimand.
c.
2007, Ringbom told Parks he wanted to meet with her regarding her improper use
of personal leave. Parks explained to
Ringbom that he was mistaken, and that she had not taken any improper personal
leave. Ringbom agreed and apologized,
and the matter was dropped. Parks
believed that Ringbom might have acted with a discriminatory motive. There was “a continued pattern of scrutinyâ€
of Parks and her work, and it appeared to Parks that Ringbom “thought he could
get [Parks] on that, and he jumped on it before he looked at the time cards
fully.†Parks filed a grievance in
regard to this incident.
d.
while at work on Port premises, Parks passed by some other employees who were
digging a trench, and had a brief conversation with one of them, Jim Kangas,
about whether a task he was performing should have been assigned to a
carpenter. Other employees reported that
Millie Cleveland, a staff person from Parks’s union, was involved in the
conversation. As a result of this
incident, Mankowski suspended Parks for three days for doing union work on Port
time without informing her foreman, and then misreporting it on her
timecard. At his deposition, however,
Mankowski could not identify how Parks had misreported anything on her time
card. Parks filed a grievance regarding
this suspension.
e.
Parks’s first day back at work after the suspension, Ringbom told her to meet
with him and Mankowski immediately, and bring a union representative. The union representative told Ringbom she was
unavailable, but could meet the following day.
Ringbom said he would get back to her and Parks, but never did.
f.
Cuthbertson issued a warning letter to Parks stating that she had been
“harassing†Port contractors and other Port employees. Parks filed a grievance regarding this
letter. The primary concern expressed in
the letter was Parks’s actions in taking a photograph of a Port landscaping contractor,
Curtis Johnson, and his employee while they were working on the Port
property. Parks took the photograph, on
behalf of her union, in an effort to document the Port’s need to hire a
fulltime landscaper rather than contracting out the work. Johnson did not complain to anyone about
Parks’s conduct, but Mankowski approached him and asked about it. Port worker Lawrence Dirksen investigated the
incident at Mankowski’s request, and ascertained from Johnson that while he
felt uncomfortable having his picture taken, he did not feel harassed by
Parks’s actions. Cuthbertson’s warning
letter acknowledged that Parks had apologized to Johnson after learning that he
had complained, but nonetheless asserted that Parks had taken actions
“bordering on harassment.†The letter
also referred to incidents in which Parks questioned a temporary Port employee,
Richard Billups, and another Port employee who was serving as acting foreman,
Kenneth Taylor. In January 2007,
Parks asked Billups what he was doing for the Port, in a manner he considered
“abusive,†by which he meant she was “not being polite.†Other than that, Billups considered his
relationship with Parks to be functional and workable, and he had no problems
with her. As to Taylor, Parks had asked
him why he had served for so long in the acting foreman position. At the time, Parks was a union steward, and
she was investigating complaints about whether the position was being rotated
fairly. Taylor did not think he was the
appropriate person to ask, as it was not his decision, and he characterized
Parks’s manner in asking the question as “aggressive.†He did not think, however, that it was
inappropriate for Parks to be looking into the issue.
g.
hours: In November 2008, as a result
of an incident that occurred in August 2008, Parks was suspended for three days
for entering a Port office after hours to check on the status of a leave
request she had submitted, and going into Ringbom’s office to check her
mailbox, which was inside it. According
to Parks, other employees sometimes entered the office after hours and were not
disciplined for it. Park entered the
office in order to ascertain whether a leave request she had submitted several
weeks earlier, asking for time off on the day following her entry into the
office, had been approved. The discipline
letter stated that while in the office, Parks made a threatening remark to
Gerard Higareda, who happened to be working on a binder relating to Parks’s
legal action at the time. Higareda said
that Parks told him his deposition might have to be taken, but Parks did not
recall making that statement, and in any event, Higareda denied that Parks was
hostile or threatening to him during this conversation.
7. Differential treatment:
Parks complained of a number of ways in which she believed the Port or
her supervisors had treated her differently from her male colleagues with
respect to the terms or conditions of her employment.
a.
October 2001, while Parks was still in her initial period of probation after
being hired, Cuthbertson placed a note in Parks’s file regarding her
participation in a union protest at the Port involving 20 or 30 employees. Cuthbertson did not place notes in the files
of any of the other workers involved in the protest. Cuthbertson told Parks it was not a good idea
for her to participate in the protest when she had only worked at the Port for
a few months. He characterized Parks’s
participation in the protest, and her response to his questions about it, as “militan[t],â€
“belligerent,†and “forward.â€
b.
September 2006, Parks filed grievances alleging that she should have been given
additional overtime work. Parks does not
dispute, however, that the Port allocates overtime based on an electronic list
generated by a formula that reflects overtime worked, and overtime offered but
refused.
c.
Parks told Cuthbertson that she believed her male colleague, Taylor, had been
assigned more of the jobs involving large diameter pipe. Parks acknowledged at her deposition that her
basis for this belief was her own personal observations, coupled with Taylor’s
own complaint that “he was getting assigned jobs unfairly,†specifically with
respect to jobs involving large diameter pipe, and that “the workload was
unfairly distributed.†Parks believed
Cuthbertson was homophobic, but at her deposition, she could not articulate any
reason why she believed he discriminated against her on the basis of sexual
orientation in making work assignments.
In support of the Port’s motion, the Port submitted a statistical
analysis, based on the Port’s work records, regarding the assignment of work
involving large diameter pipe. Parks
disputed this analysis, in that the Port’s figures were based on the
proposition that Taylor and Parks both worked at the Port from the time Parks
was hired until August 31, 2006, whereas Parks contended that Taylor, though
technically still employed, was actually absent on medical leave starting
sometime in 2004. However, Parks did not
produce any evidence supporting her contention that the work with large
diameter pipe was in fact unfairly distributed.
She does not contend, and has not produced any evidence, that work with
large diameter pipe is more desirable than the other types of work performed by
Port plumbers.
d.
after Fill retired as utilities foreman, the Port held his position open to
permit certain employees to rotate through the position of acting utilities
foreman, and thereby gain supervisory experience. The first two rotations were assigned to male
workers, one of whom was Ringbom. On
April 18, 2005, Parks began serving a rotation in the position. Parks’s tenure was interrupted by two
vacations totaling 30 calendar days. On
July 21, 2005, after Parks had been in the position for over three months,
Cuthbertson and Mankowski told Parks her rotation was over, but she refused to
vacate the position. Cuthbertson
reiterated that Parks needed to step down, because Joan Webster, the Port’s
human resources director, had determined that for safety reasons, the
electricians had to be supervised by a licensed electrician, which Parks was
not. Shortly after Parks was told she
had to vacate the position, Webster reconsidered her view and decided that
Parks could safely supervise electricians and therefore could be reinstated as
acting utilities foreman. However, Parks
took a day’s leave before this decision was communicated to her, and when she
returned to work, she resigned from the position and complained that she was
being discriminated against and forced to work in a “hostile environment.†Parks demanded to see the time records of the
two previous occupants of the position so she could verify how long each of
them had served. Parks’s complaint was
forwarded to the Port’s Office of Equal Opportunity, which determined that
Parks had served at least the same number of calendar days in the position as
each of the prior acting utilities foremen, and that Parks’s complaint did not
have merit.
e.
foreman, Cuthbertson did not treat her in the same way that he had treated
Ringbom, her predecessor in the position, with regard to training in electrical
work. In 2009, after Parks failed to
pass a backflow certification examination, Parks asked Ringbom if she could
take a one-day training seminar before retaking the examination. Ringbom told her the Port did not have money
for the training, but Parks found out three days later that Ringbom himself had
been authorized to take a five-day course on the same subject.
f. Communication
restrictions: In May 2006, Ringbom directed Parks to copy him on emails
relating to Port business, and to advise him if she needed to meet with someone
other than himself or Cuthbertson. The
genesis of Ringbom’s directive appears to have been an incident in which
Ringbom told Parks to remove a specific backflow device; Ringbom and Parks had
a confrontational conversation about the implications of removing the device
for water safety; and Parks then communicated about her concerns directly with
Port environmental scientist Jeff Rubin, without informing Ringbom she was
doing so. Ringbom later explained to
Parks that he was responsible for coordinating the work assignments of the
employees he supervised, and needed to know if Port tenants asked Parks
directly to perform a task for them.
Ringbom did not issue such a directive to other employees, but Parks did
not produce any evidence that any other employees had failed to inform Ringbom
regarding work assignments they had accepted directly from Port tenants. Parks reacted to Ringbom’s directive by
sending him daily emails listing everyone with whom she might discuss Port business
that day. In September 2006, Parks filed
a grievance regarding this directive, indicating she believed she was being
harassed for calling attention to a possible unsafe water condition at the
Port.
g.
On September 1, 2006, Parks filed two grievances regarding the conduct of Bill
Edwards, a maintenance foreman at the Port, in assigning overtime work that was
supposed to be performed by a plumber to a semi-skilled laborer, without first
offering it to a plumber, and in doing pipeline repair work himself, when such
work should have been carried out by a plumber.
h.
2007, Parks made an appointment with a representative of the Port’s human
resources (HR) department to discuss her family medical leave rights. She scheduled the appointment for 11:15 a.m.
without first consulting Ringbom. When
she asked Ringbom if she could attend the appointment as scheduled, he told her
to go at noon on her lunch hour instead.
Parks went to the HR department at noon, as instructed, but could not
meet with the representative, because the latter was at lunch. Parks was able to meet with the
representative a week or two later.
Parks believed Ringbom’s request that she use her lunch hour for the
meeting might have been discriminatory or
retaliatory. Other Port workers were
permitted to meet with HR representatives during work hours. However, Parks was unable to identify
anything Ringbom said that caused her to believe his request was based on her gender
or sexual orientation. Ringbom explained
that under Port policy, employees were supposed to request release time in
advance when they wished to meet with someone in Port administration, and Parks
had not done so on this occasion. Parks was not aware of this policy at the
time.
i.
policy requiring employees to wear protective footwear, or “safety boots,â€
while on the job. In July 2007,
Cuthbertson “admonished†Parks for wearing shoes other than her safety boots in
a Port office. Parks was given a copy of
the Port’s policy regarding foot protection, with the provision regarding
discipline for noncompliance highlighted.
The following day, Parks’s male coworker, Andy Duncan, wore the same
type of non-safety boots in the same office, in Cuthbertson’s presence, and
Cuthbertson did not take any action of the sort he had taken with Parks. Cuthbertson himself did not consistently wear
safety shoes in the office or shop, and “mocked [Parks] regarding his scrutiny
of her and the differential treatment.â€
Cuthbertson acknowledged that he had told Parks to put on her safety
boots, but stated that he had issued such instructions to other employees also,
regardless of their gender or sexual orientation. Other than the one incident with Duncan and
Cuthbertson’s own behavior, Parks did not produce any evidence that Cuthbertson
enforced the safety boot policy differently as to Parks than he did with
respect to male and/or heterosexual workers.
j.
Parks requested 27 nonconsecutive days off as leave without pay. Parks believed that under the union contract,
she was not required to give any reason for this request beyond saying it was
for “personal reasons.†Mankowski,
however, interpreted the contract to require that such a request satisfy
certain requirements, and that “personal reasons†was not a sufficient
explanation for this purpose. Mankowski
requested that Parks give him additional information about the reason for the
request, and Joan Webster asked Parks’s union representative why Parks needed
the time. Mankowski denied that his
request for additional information had anything to do with Parks’s gender or
sexual orientation.
k.
The Port requires employees to obtain permission if they remain on the worksite
after their normal work hours. On two
occasions, in March and April 2008, Parks was confronted by supervisors about
her being on Port property after working hours.
In the March 2008 incident, management investigated Parks, and
threatened to discipline her, even though other workers were not similarly
treated. In April 2008, Cuthbertson
demanded to know why Parks was on the property two minutes after her shift ended. At the time, Parks was filling out her time
card in the company of other workers whom Cuthbertson did not treat
similarly. Also, as noted
2008 for being in the office after hours during August 2008.
l.
and passed a test to qualify for a backflow tester certificate. Parks believed this entitled her to a six
percent pay increase. Neither the Port
nor its agreement with Parks’s union provided for such an increase, and the
Harbor facilities department at the Port considers backflow testing and repair
to be “a normal part of a plumber’s work.â€
Parks does not dispute this.
8.
involving specific terms or conditions of employment, in which supervisory
personnel at the Port treated her in ways she characterizes as discriminatory
and/or retaliatory.
a.
In March 2007, Ringbom directed Parks to repair some backflow devices, but
Parks, consistent with her longstanding practice and the instructions of her
former supervisor, gave priority to testing new backflow devices over repairing
the existing ones. Ringbom sent Parks a
memo about the issue, emphasizing that Parks should have consulted him before
changing her work assignment, and stating that “[t]his is the same standard†to
which he held “all employees who report to me.â€
Parks was not disciplined for this incident, but Mankowski’s notes of a
meeting with Ringbom about the incident reflect the use of the term
“insubordination†to describe her actions.
b.
April 2007, Parks’s former supervisor, Segal, told Parks that Cuthbertson had
told him not to talk to Parks.
name="_ftnref8" title="">[8] Cuthbertson’s declaration in support of the
Port’s motion states that he only told Segal not to talk to Parks or anyone
else about issues related to Parks’s legal claims, and did not tell Segal not
to talk to Parks at all. However,
Mankowski’s notes of a meeting with Cuthbertson on April 12, 2007, reflect that
Cuthbertson’s concern was the amount of time Parks and Segal were spending in
conversation with one another, and the impact on productivity.
c.
Mankowski notified Parks that the Port wanted her to attend a series of
meetings with an outside facilitator in order to “enhance interpersonal
coordination†and improve the communications between Parks and Ringbom. Mankowski declined to give Parks the
assurance she requested that her statements during the facilitation would not
be used against her for disciplinary or evaluation purposes, so Parks refused
to participate without a union representative present, which the Port would not
allow. As a result, Mankowski threatened
to discipline Parks for insubordination, though he did not in fact do so.
d.
December 17, 2007, Cuthbertson and Ringbom filled out and filed a Port of
Oakland form called a “Workplace Violence Incident Report†regarding
Parks. According to Ringbom, he did not
believe Parks actually posed a physical threat to herself or others, but
nonetheless filed the report because he learned from a training session that he
was required by Port policy to do so when an employee “exhibited certain signs
which [Port supervisors] were taught might lead to workplace violence.†Ringbom denied that the report had anything
to do with Parks’s gender or sexual orientation. The Port retained an outside consultant to
interview Cuthbertson and Ringbom regarding the report. The consultant concluded that Parks did not
pose a threat of workplace violence, but that “managing [her] was very
difficult,†and that Cuthbertson and Ringbom filed the report because they
“wanted their frustration reported and acknowledged.†The consultant “did not
perceive that [Cuthbertson and Ringbom’s] frustrations masked an impermissible
motive.†Other than hiring the
consultant, the Port did not take any action due to the filing of the report.
e.
whereabouts: In August 2009, Ringbom informed Parks’s crew that he would
not be at work on the following day. On
the day Ringbom was expected to be out, he called Parks on the radio to
instruct her to shut off a valve due to a water leak. When Parks asked Ringbom whether he was at
work, he “replied in a manner that was irritated and hostile,†and asked Parks
whether she understood that Ringbom was her foreman and when he told her to do
a job, she needed to go do it.
f. “
Parks on various occasions to be “shadowing her at workâ€; similarly, Mankowski
appeared to Parks to be watching her and taking notes.
9.
which she believed she was unfairly treated by Port managers in connection with
her involvement in her union.
a.
observed Parks, who was a union steward, speaking with the chapter president of
the union about a grievance. According
to Parks, Mankowski falsely told maintenance supervisor Bill Morrison that
Parks had been involved in this conversation for half an hour. Mankowski did not recall the exact
conversation, but denied that it had anything to do with Parks’s gender or
sexual orientation, as opposed to her union activity.
b.
talking to Cecilia Meza, a Port carpenter.
Meza’s foreman, Bill Edwards, later admonished Meza that Parks should
not be talking about union business on Port time. As far as Parks knew, Edwards did not know
what the subject of Parks’s and Meza’s conversation was. Edwards denied that his comment to Meza was
based on Parks’s gender or sexual orientation; rather, it was based on her
union activities.
discussion
A.
Evidentiary Issue
The Port
filed formal objections to the evidence submitted by Parks in connection with
the Port’s motion. The trial court ruled
on all of the objections in its order granting summary adjudication. On appeal, Parks contends that one of these
rulings was in error.
Specifically,
in her declaration opposing the motion, Parks testified that her coworker and
former supervisor, Segal, told her that Cuthbertson had told him not to speak
to her. The Port objected to this
portion of Parks’s declaration as hearsay, and the trial court sustained the
objection.
Parks
argues that the statement was offered to show its effect on her, and for that
purpose, it is not hearsay. To that
extent, Parks is correct. Segal’s
statement to Parks is relevant to whether Parks experienced her work
environment as hostile, and it is admissible for that limited purpose, which
does not require that Segal have been telling the truth about what Cuthbertson
said. (See Rufo v. Simpson (2001) 86 Cal.App.4th 573, 591-592 [murder victim’s
statements about ex-husband’s abusive conduct, though inadmissible to show
ex-husband committed acts victim described, were properly admitted to show
victim’s state of mind about ex-husband and reasons for terminating
relationship]; Beyda v. City of Los
Angeles (1998) 65 Cal.App.4th 511, 520-521 [state of mind of plaintiff in
harassment case is relevant to whether hostile work environment existed]; see
generally 1 Witkin, Cal. Evidence (5th ed. 2012) Hearsay, § 5, p. 788
[“out-of-court statements not offered to prove the truth of the matter stated
are not regarded as hearsayâ€].)
On the
other hand, the Port is correct that Segal’s statement was hearsay to the
extent it was introduced to prove that Cuthbertson actually told Segal not to speak to Parks. (See, e.g., People v. Thoma (2007) 150 Cal.App.4th 1096, 1103 [police officer’s
testimony at preliminary hearing was generally admissible under prior testimony
exception to hearsay rule, but officer’s testimony that nurse told him crime
victim was in surgery could not be used to prove seriousness of victim’s
injuries, because nurse’s out-of-court statement was inadmissible to prove
truth of its contents].) Using the
evidence for that purpose requires reliance on the truth of Segal’s
out-of-court statement to Parks about the content of his conversation with
Cuthbertson, and thus violates the hearsay rule.
Parks also
correctly points out that Cuthbertson’s own declaration said he told Segal not
to talk to Parks about her legal dispute
with the Port. But the implications of
Cuthbertson’s giving such an instruction are very different from those urged by
Parks. If a supervisor tells employee
Smith not to speak at all with
employee Jones, this may, in context, tend to show that the supervisor
contributed to creating a hostile work environment for Jones. But if Jones is contemplating legal action
against the employer, it is perfectly reasonable for the supervisor to instruct
Smith not to discuss Jones’s legal claims
with Jones, in an effort to preclude Smith from saying anything that could
potentially affect the employer’s future litigation position. Under the latter circumstances, the issuance
of such an instruction does not tend to establish the existence of a hostile
work environment.
Accordingly,
for the purpose of reviewing the trial court’s ruling on the merits of the
Port’s motion, we treat this portion of Parks’s testimony as admissible, but
solely for the purpose of showing that Segal told Parks Cuthbertson had instructed him not to talk with
her. Segal’s hearsay statement cannot be
relied upon for its truth, and thus does not controvert Cuthbertson’s direct
testimony that what he told Segal was only to refrain from speaking to Parks
about her legal dispute with the
Port.
B.
Summary Adjudication
1.
Standard of Review and Applicable Law
Because
this is an appeal from an order granting summary adjudication, we review the
record de novo. (Birschtein, supra, 92
Cal.App.4th at p. 999.) As the
moving party, the Port “bears the burden of persuasion that there is no triable
issue of material fact and that [it] was entitled to judgment as a matter of
law.†(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850,
fn. omitted.) “A motion for summary
[adjudication] shall be granted when ‘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.’ [Citation.] A moving defendant is entitled to judgment as
a matter of law when the defendant
shows without rebuttal that one or more elements of the plaintiff’s case cannot
be established or there is a complete defense to that cause of action. [Citations.]
[¶] On appeal after a summary [adjudication] has been granted, we
review de novo the trial court’s decision to grant summary [adjudication] and
are not bound by the trial court’s stated reasons.[
title="">[9]] [Citations.]
In reviewing the summary [adjudication], we apply the same three-step
analysis used by the trial court: we (1) identify the issues framed by the
pleadings; (2) determine whether the moving party has negated the
opponent’s claims; and (3) determine whether the opposition has
demonstrated the existence of a triable, material factual issue. [Citation.]
Like the trial court, we view the evidence in the light most favorable
to the opposing party and accept all inferences reasonably drawn
therefrom. [Citation.]†(Hinesley, supra, 135
Cal.App.4th at p. 294.)
The
elements of a cause of action for gender or sexual orientation harassment
against an employer under FEHA are: (1) plaintiff belongs to a protected
group; (2) plaintiff was subject to unwelcome harassment; (3) the
harassment complained of was based on the plaintiff’s gender or sexual
orientation; (4) the harassment complained of was sufficiently pervasive
so as to alter the conditions of employment and create an abusive working
environment; and (5) agents of the employer, such as the plaintiff’s
supervisors or managers, either personally engaged in the harassment, or knew
or should have known of the harassment and failed to take prompt corrective
action. (Jones v. Department of Corrections & Rehabilitation (2007) 152
Cal.App.4th 1367, 1377; Fisher v. San
Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615 (
an employer responsible for a hostile environment, the employee must show that
the employer knew or should have known of the harassment in question; an
employer’s knowledge can be demonstrated by showing the pervasiveness of the
harassment, which gives rise to an inference of knowledge or constructive
knowledgeâ€]; see also id. at
pp. 608-609 & fn. 6 [employer is strictly liable for actions of
its agents or supervisors, and is liable for actions of plaintiff’s coworkers
if agents or supervisors knew or should have known of harassing conduct and
failed to take immediate and appropriate corrective action].)
FEHA’s
prohibition against harassment on the basis of gender or sexual orientation
includes protection from a broad range of conduct, including, as Parks alleges
here, the creation of a work environment that is hostile or abusive. (See Kelley
v. The Conco Companies (2011) 196 Cal.App.4th 191, 202-203.) Claims of a hostile or abusive working
environment due to harassment arise when a workplace is “permeated with
‘discriminatory intimidation, ridicule, and insult[]’ [citation] that is
‘sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment[]’
[citation] . . . .â€
(Harris v. Forklift Systems, Inc.
(1993) 510 U.S. 17, 21.) “ ‘For
. . . harassment to be actionable, it must be sufficiently severe or
pervasive “to alter the conditions of [the victim’s] employment and create an
abusive working environment.â€
[Citation.]’ [Citation.]†(Aguilar v. Avis Rent A Car System, Inc. (1999)
21 Cal.4th 121, 130 (Aguilar v. Avis).)
In other
words, harassment “ ‘cannot be occasional, isolated, sporadic, or
trivial’ â€; instead, “ ‘the plaintiff must show a concerted pattern
of harassment of a repeated, routine, or a generalized nature. [Citation.]’
[Citation.]†(Aguilar v. Avis, supra, 21 Cal.4th at
p. 131.) Thus, in order to
establish a claim for workplace harassment, “ ‘[t]he 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 [the plaintiff] was actually offended.’ [Citation.]â€
(Id. at pp. 130-131.)
An employer
seeking summary adjudication of a harassment cause of action based on the
absence of a causal connection between the alleged harassing acts and the
plaintiff’s membership in a protected class bears the burden of proving that no
reasonable jury could infer such a connection from the evidentiary record as a
whole. (See Begnal v. Canfield &
Associates, Inc. (2000) 78 Cal.App.4th 66, 77
[“ ‘ “[D]eterminations regarding motivation and intent depend on
complicated inferences from the evidence and are therefore peculiarly within
the province of the factfinder†’ â€].) Moreover, as our Supreme Court made clear in
Cal.4th 1028, we must consider the employer’s overall course of conduct as a
whole, because an adverse employment action may consist not of “one swift
blow,†but rather of “a series of subtle, yet damaging, injuries. [Citations.]â€
(Id. at p. 1055.)
Indeed, “[a]s a general matter, the plaintiff in an employment
discrimination action need produce very little evidence in order to overcome an
employer’s motion for summary judgment. This is because ‘the ultimate question is one
that can only be resolved through a searching inquiry—one that is most
appropriately conducted by a factfinder, upon a full record.’ [Citation.]â€
(Chuang v. University of California Davis (9th Cir. 2000) 225
F.3d 1115, 1124.)
In
assessing whether a reasonable jury could infer discriminatory motive or
intent, we must accept Parks’s version of the relevant historical facts, even
if supported only by her own declaration.
(Estate of Housley (1997) 56 Cal.App.4th 342, 359 [“the sole
declaration of a party opposing a summary judgment motion which raises a
triable issue of fact is sufficient to deny that motionâ€]; see also Dart
Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1075
[testimony of even one witness, if believed by jury, is sufficient to support
verdict, even if witness is a party]; In re Marriage of Mix (1975) 14
Cal.3d 604, 614; see also Evid. Code, § 411.) We are not, however, bound to accept Parks’s
conclusions or speculations as to the motive or intent behind those historical
facts. (See Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist.
(2003) 106 Cal.App.4th 1219, 1240; Hayman
v. Block (1986) 176 Cal.App.3d 629, 638-639.)
On a
defense summary judgment motion in a FEHA case, “[i]f the employer has met its
burden [to rebut a prima facie showing of discrimination] by showing a
legitimate reason for its conduct, the employee must demonstrate a triable
issue by producing substantial evidence that the employer’s stated reasons were
untrue or pretextual, or that the employer acted with a discriminatory animus,
such that a reasonable trier of fact could conclude that the employer engaged
in intentional discrimination or other unlawful action. [Citations.]
‘[S]peculation cannot be regarded as substantial responsive
evidence.’ [Citation.] In order to raise an issue as to the
employer’s credibility, the employee must set forth specific facts
demonstrating ‘ “such weaknesses, implausibilities, inconsistencies, incoherences,
or contradictions in the employer’s proffered legitimate reasons for its action
that a reasonable factfinder could rationally find them ‘unworthy of
credence.’ †’ [Citation.] [¶] . . . [E]ven though we may
expect a plaintiff to rely on inferences rather than direct evidence to create
a factual dispute on the question of motive, a material triable controversy is not established unless the inference
is reasonable. And an inference is
reasonable if, and only if, it implies the unlawful motive is
explanation. [Citation.]†(Cucuzza
v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038 (
added.) Thus, our task is to determine
whether the record presented on the summary judgment motion could have
persuaded a reasonable jury to infer, despite the Port’s explanations regarding
the actions about which Parks complains, that these actions were in fact
motivated by her gender and/or sexual orientation.
2.
Analysis
Much of the
evidence Parks relies on to support her harassment claims consists of personnel
actions taken by Ringbom and/or Cuthbertson in their capacity as Parks’s
supervisors—that is, the items summarized ante
under the headings of unfair performance evaluations, unfair discipline, and
differential treatment. Under
properly considered as evidence of harassment, but only if “the supervisor used
those official actions as his means of conveying his offensive message.†(Id.
at p. 708.)
In the
present case, however, Ringbom and Cuthbertson deny any discriminatory or
harassing intent with regard to these actions, and with a few minor exceptions,
the Port has proffered plausible justifications for them that do not reflect
any discriminatory animus.
name="_ftnref10" title="">[10] Thus, as indicated by the authorities cited
to defeat the Port’s motion, Parks had the burden to show that a reasonable
jury could find, based on the evidence as a whole, that the Port’s
justifications for its actions were only pretexts, and that their real purpose
was to harass Parks on the basis of her gender and/or sexual orientation. (See, e.g., Cucuzza, supra, 104
Cal.App.4th at p. 1038.)
Aside from
Cuthbertson and Ringbom’s personnel actions themselves, however, the evidence
on which Parks relies consists of: (1) the issues regarding the restroom
and locker room facilities; (2) the evidence regarding the reaction of
Port personnel to Parks’s union activity; and (3) the presence in the Port
workplace of jokes, derogatory remarks, and other offensive material relating
to women and/or homosexuals. In
assessing whether a reasonable jury could discredit the Port’s justifications
for its personnel actions, we must take into account the weight that a
reasonable jury could assign to this independent evidence.
As to the
restroom and locker room facilities, Parks did raise a triable issue of fact
regarding whether the facilities were equally clean and accessible compared
with those furnished to male employees.
On the other hand, Parks does not dispute that the inequalities of
cleanliness and access—that is, the offensive odors, and the interference with
access caused by the storage of supplies—were temporary. It is also undisputed that they did not
prevent her from using the facilities altogether.
Parks also
raised triable issues of fact regarding whether the women’s facilities were
subject to intrusion by male Port workers (particularly Ringbom) and
janitors. However, Parks did not provide
evidence that any male ever actually entered the women’s facilities while she
was using them. More importantly, Parks
did not provide any evidence that the Port created these conditions
intentionally in order to mistreat Parks in particular, or women in general, or
that she complained about these issues to the Port, and it refused to address
them. In short, the evidence as to the
restroom and locker room facilities does not provide sufficient support for Parks’s
overall picture of the Port as a hostile working environment for women and
lesbians.
As for the
remarks, gestures, and bulletin board postings on which Parks relies, the case
law makes clear that a claim of harassment or a hostile work environment cannot
rest on a handful of off-color jokes and derogatory remarks, over a period of
several years, which were made primarily by the plaintiff’s coworkers rather
than supervisors. (See, e.g.,
Productions (2006) 38 Cal.4th 264, 282-284, 295; Jones, supra, 152 Cal.App.4th
at p. 1377.) Parks does not allege
that any of her supervisors or coworkers at the Port propositioned her sexually
or addressed her personally using derogatory terms. While some of the conduct displayed by Port
workers can certainly be seen as reflecting generalized sexism or homophobia,
it was not severe or pervasive enough to constitute actionable harassment. (See Manatt
v. Bank of America (9th Cir. 2003) 339 F.3d 792, 798-799.) Moreover, it does not contribute
significantly to a showing that the personnel actions taken by Ringbom,
Cuthbertson, and Mankowski were motivated by gender or sexual orientation bias,
rather than by the legitimate reasons proffered by the Port in support of its
motion.
Parks
argues that an inference of sexism and homophobia on the part of Ringbom,
Cuthbertson, and Mankowski can be drawn from their use of terms such as
“strident,†“emotional,†“aggressive,†“belligerent,†and “disrespectful†in
describing Parks and her behavior on the job.
Parks did not introduce any evidence, however, that there were male
and/or heterosexual Port employees who behaved as she did, but were not
described in similar terms. Indeed, it
is undisputed that Mankowski used the term “emotional†to describe Cuthbertson
as well as Parks. Moreover, Parks
herself acknowledges that she “frequently challenge[d] her managers and
supervisors.†For example, Parks called
Ringbom a liar; refused to participate in a facilitation process without a
guarantee that nothing she said would be used against her; refused to step down
from the acting foreman position when asked to do so; and reacted to Ringbom’s
directive that she keep him informed about her interactions with Port employees
and tenants by sending him daily emails listing everyone with whom she might
discuss Port business that day, even after he explained to her that he just
wanted her to coordinate with him regarding her work assignments. In light of these facts, we are not convinced
that a reasonable jury could conclude that these terms were veiled
discriminatory references to Parks’s gender or sexual orientation, as opposed
to legitimate descriptions of her behavior.
The cases
on which Parks relies are distinguishable.
The first such case, Stegall v.
Citadel Broadcasting Co. (9th Cir. 2003) 350 F.3d 1061, was a retaliation
case in which the plaintiff and another female employee were fired nine days
after the plaintiff complained to her employer about a pay disparity between
herself and male coworkers. The Ninth
Circuit reversed a summary judgment in favor of the employer, finding that t
| Description | Appellant Sherri “Jean†Parks is employed as a plumber by respondent Port of Oakland (Port). She sued the Port for harassment on the basis of her gender and sexual orientation, for failure to prevent such harassment, and for retaliating against her after she complained of the harassment. The trial court granted the Port’s motion for summary adjudication of the harassment and failure to prevent harassment causes of action, but permitted the retaliation cause of action to proceed to trial. The jury found that the Port did not retaliate against Parks for complaining that she was being harassed. Accordingly, the trial court entered judgment in favor of the Port. It also denied Parks’s postjudgment motion to tax costs. On appeal, Parks argues that the trial court erred in granting the Port’s motion for summary adjudication (the Port’s motion), and in sustaining one of the Port’s objections to evidence Parks submitted in opposition to that motion. Parks also contends that the trial court erred in permitting the Port to recover certain disputed cost items. We agree that the excluded evidence was admissible for a limited purpose, but reject all of Parks’s remaining contentions, and accordingly affirm both the judgment and the order denying the motion to tax costs. |
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