Sexual harassment continues to be an issue of significant concern in the workplace. While California law prohibits harassment and requires training to prevent it, those of us who practice in this area know that harassment, unfortunately, continues to occur. If you find yourself representing either side in a sexual harassment matter, a review of a recent opinion of the Fourth Appellate District, Stephanie Beltran v. Hard Rock Hotel Licensing, Inc., Case No. G062736, offers both procedural and substantive guidance.
In this case, the plaintiff worked as a server in a Hard Rock Hotel (HRH) in Palm Springs. An HRH Human Resources Consultant received a report that the General Manager made a statement implying that he had sexual relations with a server (not the plaintiff); and repeatedly grabbed the plaintiff’s buttocks and tried to dance with her while not allowing her to perform her job. The HR Consultant investigated the report and learned about further instances of harassment by the General Manager leading up to the groping incident. Nevertheless, the Consultant concluded in her report that while the General Manager was under the influence during the incidents and had some inappropriate interactions with staff, the interactions were not sexual and the two servers embellished their complaints. The Consultant recommended the company re-commit to its drug and alcohol policies, have the General Manager apologize to the plaintiff, issue a warning to the General Manager about maintaining professionalism and following drug and alcohol policy, and have the General Manager lead a discussion about tightening up professionalism in the workplace. A corporate HR representative later determined the allegations of inappropriate touching were not substantiated. Thereafter, the plaintiff’s supervisor told the HR Consultant that she did not believe the complaints had been handled appropriately. The supervisor noted the company’s zero-tolerance policy for sexual harassment that was supposed to result in immediate termination and opined that conducting a meeting for the General Manager to apologize to the plaintiff was inappropriate. Shortly thereafter, HRH suspended and then terminated the General Manager but only for being intoxicated in the workplace.
Procedural and substantive guidance for litigation of sexual harassment claims.The plaintiff filed a case, alleging, among other claims, sexual harassment. The defendants—HRH, a management services company that employed the plaintiff, and the HR Consultant—filed motions for summary judgment, each of which the trial court granted. On appeal, the Forth District discussed procedural issues with the motions as well as substantive issues concerning harassment claims, resulting in a reversal as to the harassment claim.
The procedural issues concerned the parties’ separate statements. Each of the defendants’ separate statements included over 600 paragraphs of purportedly material facts comprising over 100 pages. The appellate court noted that these statements, as well as those in other recent cases before it, led it to conclude that a document that was intended to be helpful to the court and provide due process to the parties was, in many cases, no longer serving either purpose. The court then stated that it was writing about this issue to remind litigants and trial courts about the appropriate scope of the separate statement.
The Fourth District began with a review of the summary judgment statute (Code of Civil Procedure section 437c), which provides that a separate statement sets forth all material facts that the moving party contends is undisputed. The court also noted that the California Rules of Court (rule 3.1350) also indicates that the separate statement should only include material facts and not any facts that are not pertinent to the disposition of the motion. Specifically, material facts are those that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and could make a difference in the disposition. (Cal. Rules Ct., rule 3.1350(a)(2).) The court then made clear that neither the statute nor rule requires the moving party to include every fact they intend to include in their motion. For example, background information that has no relevance to a cause of action or defense is not to be included in the separate statement. The court stated that the point of a separate statement is not to craft a narrative, but to be a concise list of material facts and supporting evidence.
The appellate court also found fault with the plaintiff’s responses to the separate statements. The court noted that the response must be in good faith, responsive, and material. If a fact is not in dispute, the opposing party must so admit. The court criticized the plaintiff for providing evasive responses to create disputes where none existed. As an example, in response to a purported material fact that when the HR Consultant began working at HRH, the plaintiff worked in different parts of the Hotel, the plaintiff disputed her hire date. This was not directly responsive and her hire date was not a material fact.
The appellate court concluded its discussion of separate statements by stating that trial courts should not hesitate to deny summary judgment motions when the moving party fails to draft a compliant separate statement, such as an overly long document that includes multiple nonmaterial facts. It also stated that courts should not hesitate to disregard attempts by the opposing party to game the system by claiming facts are disputed when the uncontroverted evidence clearly shows otherwise.
Based on the foregoing, litigators should be careful about which facts they include in summary judgment separate statements. The narrative, including material and immaterial facts, can be laid out in the memorandum. Whereas, the separate statement is for material facts only. Likewise, counsel for opposing parties must be careful in their responses so as to directly respond to the material facts and, likely, acknowledge that some of the facts are undisputed.
Turning to the substantive issue, the Fourth District discussed the “severe or pervasive” standard for harassment claims. It noted that prior to 2019, that requirement was a high bar for plaintiffs to clear. But after the Fair Employment and Housing Act was amended to add section 12923, effective January 1, 2019, the bar was lowered. For one, section 12923 provides that a single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive work environment. Section 12923 also clarified that a hostile work environment exists when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon the plaintiff so as to disrupt their emotional tranquility in the workplace, affect their ability to perform the job as usual, or otherwise interfere with and undermine their personal sense of well-being. Furthermore, the plaintiff is not required to show a decline in productivity, only that a reasonable person would find that the harassment so altered working conditions as to make it more difficult to do the job. More, the statute specifically provides that harassment cases are rarely appropriate for disposition on summary judgment. The court then noted that in response to section 12923, the Judicial Council of California revised its jury instructions on sexual harassment to incorporate the foregoing standards.
The Fourth District then noted that there was only one published California case applying section 12923, in which the appellate court reversed summary judgment. The Fourth District also surveyed a few federal courts that had applied the new standard, noting three holdings that even one instance of harassment can be sufficient.
The appellate court then applied the new standard to the case before it. The court found that the trial court heavily relied on case law decided before the adoption of section 12923, which failed to take into account several key principles, including that a single incident of harassing conduct can be sufficient and that harassment cases are rarely appropriate for disposition on summary judgment. The Fourth District concluded that two cases were no longer good law for summary judgment purposes: Mokler v. County of Orange (2007) 157 Cal.App.4th 121, which held that three incidents of harassment over five weeks was not severe and pervasive; and Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, which stated that the plaintiff must show a concerted pattern of harassment of a repeated, routine, or generalized nature.
The Fourth District concluded that the defendants failed to demonstrate that no actionable sexual harassment occurred. The court pointed to evidence of multiple incidents of conduct over a period of months, including leering gestures, hand massages, and inappropriate questions, which culminated in the groping incident. This was more than sufficient to raise a triable issue of fact as to whether a reasonable person would find the harassing conduct so altered the working conditions to make it more difficult to do the job.
Based on the foregoing, defendants’ counsel must consider whether their harassment case is truly one of the rare cases that is suitable for disposition on summary judgment. And plaintiffs’ counsel have the law on their side to successfully oppose summary judgment concerning harassment claims in most cases.
Dean Royer is an Associate at Leoni Law, a labor and employment firm. Leoni Law represents clients before the state and federal courts, State Personnel Board, PERB, NLRB, mediations and arbitrations, and other boards and commissions.