Polkinghorne v. State Farm

Filed 6/28/06 Polkinghorne v. State Farm CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Arthur E. Wallace, Judge.

Thomas Anton & Associates, Thomas J. Anton and Stephen P. Wainer for Plaintiff and Appellant.

Littler Mendelson, Philip L. Ross, J. Kevin Lilly, and Kara L. Jassy for Defendant and Respondent State Farm Mutual Auto Insurance Company.

LeBeau-Thelen, Dennis R. Thelen and Franklin D. Gordon for Defendant and Respondent Gerry Fuentes.

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Consider the following scenario: A supervisor makes a sexual overture to his employee, is rebuffed, and reacts with hostility and anger over a period of several weeks. The employee experiences clinical symptoms of anxiety and goes on sick leave. While she is on leave, the supervisor downgrades his evaluation of the employee's performance. Ultimately, she is terminated for not returning to work. If these facts are proved, the employee has made out a case of sexual harassment. If triable issues of material fact supporting all the elements of this scenario exist at the summary judgment stage, summary judgment must be denied.

The trial court granted defendants' summary judgment motions when faced with this scenario. Renee Polkinghorne (plaintiff) sued her supervisor, Gerry Fuentes, and her employer, State Farm Mutual Auto Insurance Company (defendants). Polkinghorne alleged sexual harassment, retaliation, and failure to prevent sexual harassment, all in violation of the Fair Employment and Housing Act (FEHA), as well as common-law wrongful termination in violation of California's public policy against sexual harassment. She also alleged defamation and intentional infliction of emotional distress. The trial court granted both defendants' motions for summary judgment and entered judgment for defendants.

With the exception of a quid pro quo theory of sexual harassment (which plaintiff has withdrawn) and the retaliation claim, we hold that triable issues of material fact exist with respect to all elements of all the claims based on alleged sexual harassment. We reverse the judgments and the orders on those claims. We agree with the trial court's ruling on the claims of retaliation, intentional infliction of emotional distress, and defamation. On those claims and on the quid pro quo theory, we direct the court to grant defendants' alternative motions for summary adjudication.

FACTUAL AND PROCEDURAL HISTORIES

After two years with another employer, Polkinghorne resumed a 12-year career with State Farm, accepting a position as Fuentes's secretary on January 28, 2002. Fuentes was an assistant manager of human resources at State Farm's regional office in Bakersfield. Polkinghorne worked for Fuentes for 14 months--until April 1, 2003--when she began a paid medical leave of absence, citing stress as the reason. State Farm terminated Polkinghorne's employment on October 3, 2003, asserting that she had refused to return to work and failed to provide adequate documentation to continue her leave.

Polkinghorne filed her original complaint in superior court on November 20, 2003, and her second amended complaint, which was operative at the time of the summary judgment motions, on June 7, 2004. She alleged several instances of unwelcome behavior by Fuentes, culminating in a telephone conversation in which he asserted that the two of them (who were both married) â€