NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

(Super. Ct. No. NCO21275)

Susan Duffy et al.,

Plaintiffs and Appellants

vs.

Trustees of the California State University, et al.,

Defendants and Respondents

APPEAL from a judgment of the Superior Court for the County of Los Angeles. James L. Wright, Judge. (Judge of the Municipal Court Long Beach Judicial District assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.) Affirmed in part and reversed in part.

Michelle A. Reinglass and Michael E. Raabe for Plaintiffs and Appellants.

Christine Helwick and Lee R. Rydalch for Defendants and Respondents

Trustees of the California State University, David Henry and Raymond Zueschner. . Jerry H. Langer for Defendant and Respondent Michael Fahs.

(received Jan 21, 2000)

 

SUMMARY

Favoring male professors over female in decisions about tenure, salaries, promotion criteria, performance awards, performance critiques, course

scheduling, course offerings, work equipment, and the like, is sex discrimination not sex harassment. Supervisors and managers are not individually liable for sex discrimination; only the employer is liable in a sex discrimination case. Public entity employers are not immune from suits for sex discrimination, even if the individual supervisors committing the acts of discrimination are immune.

Defendants prevailing in a sex harassment case are entitled to attorneys fees only if plaintiff's case was frivolous.

FACTS AND TRIAL COURT PROCEEDINGS

Appellants Susan Duffy and Lorraine Jackson are professors in the Speech Department at Cal State University in San Luis Obispo. They sued respondent Trustees of the University and three male Speech professors, respondents David Henry, Mike Fahs, and Raymond Zeuschner, for sexual discrimination and sexual harassment in violation of the Fair Employment and Housing Act, and for the intentional and negligent infliction of emotional distress, common law torts.

Repondents demurred to the 46-page second amended complaint, which in material outline alleged as follows:

Duffy was hired in 1988, given tenure in 1992, and continues to teach at University. From 1998 continuing through 1997 she was mistreated because of her gender. As a result of Henry's unfounded disparagement of her scholarship, she was denied a salary increase in 1989 and denied tenure in 1991. In 1993 male colleagues failed to congratulate her for a teaching award, though males routinely received such congratulations. Male colleagues ridiculed her clothing. Job notices for positions at other universities were sent her anonymously. Fahs and Henry attempted to have her course removed from the required-course list. In 1994 Henry circulated to the faculty a letter criticizing her refusal to sign an unfair review of a female lecturer. Henry referred to her as "she-duffy." She was excluded from a 1994 meeting at which male colleagues revised promotion criteria. A letter authored by male colleagues requested her removal from the

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Department. Scheduling requests were denied her while male colleagues' similar requests were granted. In 1995 similarly situated male colleagues were given larger salary increases than she was. In 1996 she was denied a salary increase to which she was entitled; she claimed the denial was in retaliation for filing her administrative complaint which preceded this suit.

Duffy complained to University about the discrimination, but no corrective action was taken.

Duffy did not allege any requests for sexual favors, touching, or explicitly sexual comments, jokes, or insults.

Jackson alleged that after hiring in 1992 she was subject to similar discrimination. Her teaching was criticized in ways male colleagues' teaching was not. Henry threatened to vote against her tenure application because she

associated with Duffy. Henry suggested her for a position at another university, though she had not sought the position. Zeuschner assigned her more lower division courses than he did male colleagues. Henry humiliated her in front of students. A performance evaluation in 1995 contained false and discriminatory comments. Male faculty excluded her from a reception in 1996. Her 1996 request for early tenure and promotion was denied though a peer review committee recommended it, and though male faculty routinely receive early tenure. Her request for new computer equipment was. denied, while males received new equipment. Male faculty members entered her locked private office without her consent, though they did not do so with other male faculty members.

Jackson alleged no sexually explicit comments or requests for sexual favors, but did allege that Fahs on one occasion touched her arm and thigh. Cartoons derogating women, not further described in the complaint, were anonymously circulated.

Like Duffy, Jackson's complaints about her mistreatment went unheeded. Duffy and Jackson filed complaints alleging sex discrimination and

harassment with the Department of Fair Housing and Employment in April 1997, and were given letters authorizing suit in May 1997, filing the present suit within several days thereafter.

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The trial court sustained all defendants' demurrers to all counts of the complaint, and dismissed the action. Subsequently the trial court awarded attorneys fees and costs of suit to respondents.

Appellants appealed separately from the judgment of dismissal following sustaining of the demurrers (B-122808) and from the later order awarding fees and costs (B 130164.) Oral argument in appeal B 122808 was heard in November 1999, and appeal B 130164,in January 2000. The two appeals are interrelated and therefore have been consolidated and decided together in this opinion.

DISCUSSION

Both sexual discrimination and sexual harassment are barred by the Fair Employment and Housing Act. Government Code section 12940, subdivision (a), forbids employers from discriminating based on sex in hiring, firing, compensation, and terms and conditions of employment. Government Code section 12940, subdivision (h) bars employers, various organizations, and any other persons from harassing employees based on sex. The statute holds individual supervisors and managers personally liable for harassment, but only employers liable for discrimination. (Reno v. Baird (1998) 18 Cal.4th 640, 643.)

Discrimination includes improperly motivated personnel management decisions and actions, such as hiring, firing, promotion, demotion scheduling, job assignment, performance evaluation, meeting invitation, and the like. (Reno, supra, at pp. 645-647.)

Harassment is improper conduct outside the scope of supervisorial activity. (Ibid.) Sexual harassment typically has involved either requests for sexual favors in exchange for favorable treatment in -the workplace, or the creation of a "hostile environment." Sexual harassment includes "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature." (29 Code of Federal Regulations 1604.1 1, subd. (a), cited in Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 600, 607, [doctor hugged, kissed, fondled other nurses in plaintiff s presence, and made sexually explicit comments, over period of four years].) Plaintiff must prove the workplace was so permeated with "discriminatory intimidation, ridicule, and insult" as to fundamentally alter

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the working environment for a reasonable person (not an "eggshell" plaintiff.) (Harris v. Forklift Systems, Inc. (I 9@93) 5 1 0 U.S. 17, 21-22.)

Both sex discrimination and sex harassment are motivated by animus based on sex; the difference lies in the nature of the conduct rather than the motivation.

The conduct alleged in this case was discrimination, not harassment. The mistreatment Ms. Duffy and Ms. Jackson alleged in detail overwhelmingly involved promotions, tenure, salaries, scheduling, work equipment, criticism of work performance, privacy of personal offices, and the like. All of this falls within the ambit of personnel management and thus, if wrongly motivated, constituted discrimination, not harassment.

Further, Duffy and Jackson did not allege that they were asked to provide sexual favors, or made the target of improper sexual advances. Their complaint is devoid of the kind of repetitive, pervasive, explicitly sexual conduct and comments typical in sexual harassment cases. They do not allege sexually offensive jokes or comments, nor with one exception, that they or other women were fondled or improperly touched.

Jackson does allege that she was touched on the thigh and arm on a single occasion. This is the type of conduct which could comprise part of a pattern creating a "hostile environment," as are the comments addressed to Duffy's clothing, and the anonymous derogatory cartoons. But these facts are insufficient to show the pervasively hostile environment required to pursue a sexual harassment claim. In this case the alleged discriminatory conduct was pervasive, but the harassment was not.

The individual respondents could not properly be held personally liable for discriminatory conduct. The trial court did not err in dismissing the individual defendants. (Reno, supra.)

However, Duffy and Jackson are entitled to pursue their discrimination claims against the employer, the University, unless that entity has some other defense.

University argues that all of appellants' claims were time barred, save those based on respondents' acts within a year before appellants filed their administrative complaints.

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Administrative discrimination complaints must be filed within a year after the alleged unlawful practice. (Gov. Code, 12960.) However, where- there is a pattern of continuing violations, the complaint is timely if discriminatory conduct continued into the limitation period. (Ccardi v. Superior Court (1993) 17 Cal.App.4th 341, 349; Watson v. Department of Rehabilitation (1989) 212 Cal.App.3d 1271, 1291 [systematic policy of discrimination is actionable even if some of the events occurred prior to limitations period].)

Here, appellants alleged that some of the discriminatory acts occurred less than a year before appellants filed their administrative complaint. For example, Fahs and Zeuschner are alleged to have submitted false and discriminatory performance reviews for Jackson in November 1996 and, together with Henry, to have unjustifiably excluded Jackson from an April 1996 meeting. Respondents allegedly denied Duffy an earned salary increase after April 1996, and wrote an unwarranted letter of reprimand containing false information in May 1997. Further, these acts are a continuation of an alleged pattern of discrimination that began much earlier. Both appellants sufficiently alleged the pattern to state a cause of action and to survive a statute of limitations challenge at the pleading stage.

Respondents also argue that Zeuschner, Henry and Fahs were immune from liability for their discretionary governmental activities (Gov. Code 820.2), and that University is immune because governmental entities are immune from liability based on immunized conduct of their employees. (Gov. Code, 815.2.)

It is open to question whether the conduct of Henry, Zeuschner, and Fahs wasimmune. (Johnson vs. State of California(1968)69Cal.2d782,793-794 [immunity reserved for "basic policy decisions"].) Assuming the activities were of the kind protected by immunity for governmental discretionary acts, then the employees would be immune under Caldwell v. Montoya (1995) 10 Cal.4th 972 [school board members who fired plaintiff school superintendent held immune though plaintiff alleged that they were motivated by racial animus and had violated FEHA].

But it would not follow that University is immune. Government Code section 815.2 says that public entities are not liable for their employees'

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immunized conduct "except as otherwise provided by statute." The Fair Housing and Employment Act prohibits a variety of discriminatory practices by employers, and specifically defines "employer" to include "the state, or any political or civil subdivision thereof, and cities." (Gov. Code, 12940, subd. (h)(3)(A).) Thus liability of state subdivisions, such as respondent University, is "'otherwise provided by statute" and University has no immunity.

Appellants also argue that the trial court erred in dismissing their claims for intentional or negligent infliction of emotional distress.

The demurrer to each of these causes of action was properly sustained. The Supreme Court has held that the exclusive remedy of the Workers' Compensation Act (Lab. Code 3200 et seq.) prevents an employee's lawsuit based on an employer's intentional or negligent infliction of emotional distress. (Livitsanos v. Superior Court, (1992) 2 Cal.4th 744, 754.) Nor may such claims be asserted against the individual respondents. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.)

Appellants also challenge the trial court's award of attorneys fees and costs to respondents.

The Fair Employment and Housing Act specifies that the court in its discretion may award reasonable attorneys fees and costs to the prevailing party in a suit under the Act. (Gov. Code, 1296.5, subd. (b).) Federal courts interpreting the similar and facially neutral attorneys fee provision of Title VII have held that while prevailing plaintiffs should routinely recover fees, prevailing defendants should recover fees and costs only if plaintiff s claim was frivolous, unreasonable or vexatious. (Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, 42 1.) Following the federal lead, California courts have adopted a similarly asymmetrical rule in employment discrimination cases under FEHA. (Stephens v. Coldwell Banker Commercial Group (I 988) 199 Cal.App.3d 1394, 1405-1406.) Thus a California trial court in a FEHA case should award prevailing defendants fees and costs only if plaintiff s claims were frivolous, unreasonable or vexatious.

Appellants' claims against the individual respondents here were not frivolous. Before the California Supreme Court held that individual managers and supervisors are not personally liable for employment discrimination (Reno vs. Baird, supra.)

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it was not frivolous to urge that they were liable. The court of appeal in Reno in fact had so held. -The individual respondents were entitled to be dismissed from the suit, but not to recover attorneys fees.

Respondent University should not have prevailed on demurrer in the trial court, and so should not have recovered fees or costs.

DISPOSITION

The judgment dismissing respondents Henry, Fahs, and Zeuschner is affirmed, but the attorney fee and cost award in their favor is reversed. The judgment in favor of University is affirimed as to the harassment claims and the emotional distress claims, reversed as to the discrimination claims, and remanded for further proceedings. Appellants shall recover their costs from University.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

NEAL, J.

We concur:

JOHNSON, Acting P.J.

WOODS, J

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