Cranford
Beach
Filed 3/2/12 Cranford v. City of Huntington Beach CA4/3
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opinion has not been certified for publication or ordered published for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
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
CATHERINE DENISE CRANFORD,
Plaintiff and Appellant,
v.
CITY OF HUNTINGTON
BEACH,
Defendant and Respondent.
G043791
(Super. Ct. No. 30-2008-00106397)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, Jamoa A. Moberly, Judge. Affirmed.
Alexander Krakow &
Glick, Bernard Alexander and Tracy L. Fehr for Plaintiff and Appellant.
Neal Moore, Senior City
Attorney, and John M. Fujii, Deputy City Attorney, for Defendant and
Respondent.
Catherine Denise
Cranford appeals from the judgment in her action against her former employer,
the City of Huntington Beach (the
City). Cranford alleged she suffered
workplace harassment by a co-worker due to her sexual orientation, and
retaliation by the City for having complained about the harassment in violation
of the California Fair Employment and
Housing Act (FEHA) (Gov. Code, § 12940). Cranford also alleged
her medical privacy rights were violated by the City when a letter written by
her therapist in connection with her worker’s compensation claim containing Cranford’s
allegations of workplace sexual orientation harassment was released to
investigators outside the City’s worker’s compensation unit. The trial court granted the City’s motion for
summary adjudication on the FEHA causes of action, and a jury found that
although Cranford’s medical privacy rights were
violated, she was not harmed. On appeal,
Cranford contends: (1) there were
material issues of fact as to the FEHA causes of action precluding summary
adjudication; (2) insufficient evidence supports the special verdict;
(3) the trial court abused its discretion by denying her
(4) the trial court erred by denying her motions for judgment notwithstanding
the verdict and new trial. We find no
error and affirm the judgment.
THE
OPERATIVE COMPLAINT
title="">[1]
& PROCEDURAL FACTS
After
two rounds of successful demurrers, Cranford filed her
third amended complaint (hereafter the complaint) against the City and Kelli
Herrera (who was eventually voluntarily dismissed by Cranford). Cranford, who is gay,
alleged she was an employee at the City’s jail and Herrera was a coworker. Both were detention officers at the jail and
both were promoted to detention supervisor positions in 2004. The two apparently did not get along. In October 2005, Cranford
learned some of her coworkers, led by Herrera, were talking about Cranford’s
sexual orientation and private life. She
believed that once two jail detention officers were looking at a picture of “a
‘real ugly butchie girl’” on the computer and one commented “‘we should show
this to [Cranford]’.” Cranford
was considering filing a complaint with her (and Herrera’s) supervisor, Jail
Administrator Dale Miller, when she learned Herrera had already complained to
Miller about her. Herrera had threatened
to file a complaint against Cranford if she “did not
stop asking questions about [Herrera’s] conduct.” Cranford felt
intimidated so she did not file a complaint against Herrera. When Cranford later approached Herrera to
attempt to resolve their differences, telling Herrera to not discuss Cranford’s
sexual orientation and personal life with coworkers, Herrera told Cranford
“[not to] ‘play the gay card.’ . . . ” Herrera retaliated against Cranford
by repeatedly complaining to Miller about Cranford’s job
performance and constantly confronting Cranford about
job-related matters.
Cranford
alleged that for his part, Miller knew Herrera’s complaints were
unfounded. Miller never disciplined Cranford
in any way as a result of Herrera’s complaints and in fact nominated her as
Supervisor of the Year for 2006.
Nonetheless, Herrera’s harassing behavior, which Cranford
believed was motivated by Cranford’s sexual orientation,
created a hostile workplace for Cranford, and Miller
conducted no investigation. Around
January 2007, when Cranford was serving as acting jail
administrator, she wrote a memorandum to employees about food consumption in
the jail, which Herrera openly mocked.
One time in 2007, when a “homosexual man” was being brought in for
booking, the “arresting officer yelled that the prisoner had HIV.” When Cranford tried to
“chastise the officer for violating the prisoner’s right of privacy[,]” the
officer looked at Cranford
“dismissively . . . and walked away, inferring that the
prisoner’s homosexuality did not warrant respect for his right of
privacy.”
In
April 2007, Cranford left work on stress leave and filed
a worker’s compensation claim. In June
2007, Cranford’s treating therapist, Denise Davis, sent
the City’s worker’s compensation office a letter (hereafter the Davis Letter)
summarizing Cranford’s treatment. The Davis Letter mentioned workplace
harassment due to her sexual orientation as one of the causes of Cranford’s
stress. The Davis Letter also contained
other personal information about Cranford including her
“diagnoses, medications, and private information including [her] sexual
orientation, a breast cancer scare, details about [her] domestic partnership
termination, foreclosure on [her] home, and other private and confidential
information.”
In
August 2007, Cranford learned the police chief obtained
a copy of the Davis Letter, when he directed a police department lieutenant and
a sergeant interview Cranford about her claim of being
harassed due to her sexual orientation.
As a result of the harassment by Herrera and the unauthorized disclosure
of the Davis Letter, Cranford became so distraught she
could not return to work, and she resigned in April 2008.
Based
on the foregoing, Cranford’s complaint contained a cause of action for improper
disclosure of medical information in violation of the Confidentiality of
Medical Information Act (CMIA) (Civ. Code, § 56 et seq.), and worker’s
compensation laws (Lab. Code, § 3762), and a cause of action for invasion
of privacy. Her complaint also contained
three causes of action for violation of the FEHA, including for hostile
workplace sexual orientation harassment, retaliation, and failure to prevent
harassment (Gov. Code, § 12940).
The
City filed a motion for summary judgment or in the alternative summary
adjudication. The trial court denied
summary judgment but granted summary adjudication of the FEHA causes of
action. The court found the harassment
cause of action failed because the City presented undisputed evidence showing
Cranford could not establish harassment based on her sexual orientation. The court concluded Cranford could not
prevail on her retaliation cause of action because she could not show she
suffered any adverse employment action.
Cranford could not rely on disclosure of the Davis Letter as an adverse
employment action because her complaint did not plead the letter’s disclosure
as an act of retaliation. And, in any
event, neither disclosure of the Davis Letter nor Herrera’s alleged harassment
constituted adverse employment actions by the City. Finally, the court concluded Cranford’s
failure to prevent harassment cause of action fell with her harassment cause of
action.
Following
a jury trial on the remaining causes of action, the jury returned a special
verdict finding the City had improperly disclosed Cranford’s private medical
information, but the disclosure was not a substantial factor in causing any
harm to Cranford. The trial court
entered judgment for the City and denied Cranford’s motions for judgment
notwithstanding the verdict and for a new trial.
PHASE
I: SUMMARY ADJUDICATION OF FEHA CLAIMS
A. Facts
City’s
Undisputed Facts
The
City’s separate statement contained the following facts that were either
specifically designated undisputed by Cranford, or were ineffectively disputed
in her responsive statement. Cranford
began working at the jail as a detention officer in 2001. Between 2001 and 2004, Cranford discussed with
various coworkers the fact she was gay, and she never directed anyone to keep
it a secret. Cranford admitted because
her domestic partner called her at work once or twice a week yelling and
screaming, most jail personnel knew she was gay. Cranford told Miller about instances of
domestic violence with her partner.
Cranford told other coworkers about her breast cancer scare, her break
up with her domestic partner, and her bad financial situation. She told at least three coworkers she was
receiving mental health treatment and taking medication because of an overdose
incident. Cranford was not present
during the alleged incident where two detention officers looked at a picture of
a woman on the computer and made reference to Cranford, but the incident
involved two of Cranford’s coworker friends and happened at the end of 2004 or
beginning of 2005. The alleged harassing
comment by Herrera was made in 2005 when she told Cranford “‘she had a friend
that was also gay and she didn’t care that [Cranford] was gay, but that
[[Cranford] should] not to [sic] play
the gay card[,]’” and it would “‘piss people off’” if she did.
As
early as 2006, Cranford believed Herrera was complaining to Miller about
Cranford once or twice a week about her job performance and those complaints
resulted in Cranford being called into Miller’s office over 50 times. Cranford was designated to be Miller’s acting
jail manager in 2006 and 2007 when he was not present, and he nominated her as
Supervisor of the Year in 2006. Cranford
knew the City policy prohibiting sexual harassment, requiring sexual harassment
be reported to the supervisor, and the procedure for filing a complaint about
harassment. Cranford never told Miller,
any other supervisor, or any other coworker she was being harassed by Herrera
because of her sexual orientation.
Cranford told Miller that Herrera was harassing her by making repeated
complaints to Miller about job-related matters.
On November 1, 2005, Cranford met with Miller to tell him she heard
coworkers were gossiping about her sexual orientation. Miller asked Cranford if she wanted to file a
complaint; she said she did not.
Cranford claimed Herrera made a “‘preemptive strike’” by telling Miller
she was considering filing a complaint against Cranford, which coerced Cranford
into not filing a formal complaint against Herrera.
Cranford
agreed neither Herrera nor any other City employee ever told Cranford she
should not have received her promotion to supervisor because of her sexual
orientation, called her derogatory names, or said anything derogatory to her
about her sexual orientation, said they disliked Cranford because of her sexual
orientation, or said they disapproved of Cranford’s gay lifestyle. No City employee ever touched Cranford
offensively, physically threatened her, or demanded sexual favors from
her. The City never took away any of
Cranford’s pay, demoted her, transferred her, reprimanded her, or disciplined
her. As to the 2007 booking incident,
Cranford agreed as a detention officer she was concerned about the transmission
of communicable diseases and wanted to know if an inmate was HIV positive so
appropriate precautions could be taken when handling the inmate.
With
regard to how the Davis Letter was released, the City provided declarations
from various City employees. The City
Attorney, Jennifer McGrath, declared she had been notified by the City’s
worker’s compensation staff the Davis Letter contained allegations of workplace
harassment due to sexual orientation.
McGrath obtained the letter and believed that if substantiated the
allegations could expose the City to liability and might warrant disciplinary
action against the alleged harasser. She
discussed the matter with the Police Chief Kenneth Small. McGrath ultimately determined she should
provide Small with the letter so the allegations could be investigated by the
police department’s confidential investigative unit, the Professional Standards
Unit. McGrath’s sole motive in providing
Small the Davis Letter was to have the sexual orientation harassment
allegations investigated; she had “no other ulterior or retaliatory motive.”
Small
declared the Professional Standards Unit was supervised by the department’s
executive officer, Lieutenant Craig Junginger, who reported directly to
Small. It conducted completely
confidential investigations of department matters including complaints against
personnel. Its records were locked up
and inaccessible to anyone not in the unit, including the police chief. After being told by McGrath about the
allegations in the Davis Letter, Small asked her for a copy, which was sent to
him via e‑mail. Small did not
recall actually reading the letter. He
provided a copy to Junginger and directed him to use the letter only in
conjunction with a confidential Professional Standards Unit investigation into
the harassment allegations. Junginger
declared he received the letter from Small, not from anyone in the worker’s
compensation division. He put the letter
in the unit’s confidential files and did not authorize anyone to copy the
letter.
In
her own separate statement, Cranford added the following additional facts
relating to alleged harassment by Herrera.
In her deposition, Herrera acknowledged she made at least 15 complaints
to Miller about Cranford, about once a month.
Herrera’s complaints were about such things as Cranford’s asking for
“unpaid leave to volunteer for Hurricane Rita . . . [when
Herrera felt Cranford] had no relatives personally affected,” Cranford’s
memorandum to staff concerning jail personnel eating jail trustees’ snack
items, and Cranford’s scheduling herself for available overtime hours and not
making those hours available to other jail employees. Cranford complained to Miller that “Herrera’s
complaints were excessive and borderline harassment.”
Cranford
stated as an undisputed fact that Herrera believed Miller favored Cranford
because she was gay. The fact was
supported by page 132 from Herrera’s deposition, where she agreed with
Cranford’s counsel that Cranford’s sexual orientation might have been a factor
in Miller’s favoritism. In its reply,
disputing the fact, the City provided pages 131 through 133 from Herrera’s
deposition placing the testimony in context.
In full, Herrera testified she felt Miller generally sided with Cranford
because he liked her and they were friends.
When Herrera asked if Cranford’s homosexuality could have also been a
factor, Herrera speculated it could have made Miller “tiptoe[]” around Cranford
more, but it was equally plausible it was as simple as Miller liked Cranford
and did not like Herrera— “I don’t know . . . How would I
know that.”
With
regard to disclosure of the Davis Letter, Cranford provided deposition
testimony from Small and another City employee to the effect that production of
the full Davis Letter was not necessary to initiate an investigation into
allegations of sexual harassment it contained.
Allegations of employee workplace harassment were not generally within
the purview of the police department’s Professional Standards Unit, but rather
were normally investigated by the human resources department. Cranford’s worker’s compensation claim file
was confidential and should not have been released outside the worker’s
compensation unit. The worker’s compensation
case manager overseeing Cranford’s claim (Janice Gannon), her supervisor (Patti
Williams), and the human resources director (Michelle Carr) were the only
persons within the worker’s compensation unit who should have had access to
Cranford’s file and each denied they released the letter. Gannon and Williams could not recall any
other time where information from a confidential worker’s compensation file was
released outside the unit. McGrath did
not contact Cranford to ask her permission to release the Davis Letter.
2. Summary Adjudication Standard of Review
Cranford
contends the trial court erred by granting summary adjudication of her FEHA
claims. The same standards applicable to
summary judgments apply to summary adjudications. (Westlye
v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1727.) “Summary judgment is appropriate only if
there is no triable issue of material fact and the moving party is entitled to
judgment in its favor as a matter of law.
[Citation.] . . . A defendant moving for
summary judgment . . . must show that one or more elements
of the plaintiff’s cause of action cannot be established or that there is a
complete defense. [Citation.] The defendant can satisfy its burden by
presenting evidence that negates an element of the cause of action or evidence
that the plaintiff does not possess and cannot reasonably expect to obtain
evidence needed to support an element of the cause of action. [Citation.]
If the defendant meets this burden, the burden shifts to the plaintiff to
set forth ‘specific facts’ showing that a triable issue of material fact exists. [Citation.]
[¶] We review the trial court’s
ruling de novo, liberally construe the evidence in favor of the party opposing
the motion, and resolve all doubts concerning the evidence in favor of the
opposing party. [Citation.] We will affirm an order granting summary
judgment . . . if it is correct on any ground that the
parties had an adequate opportunity to address in the trial court, regardless
of the trial court’s stated reasons.
[Citations.]” (
Superior Court (2011) 197 Cal.App.4th 115, 119‑120.)
3. Sexual Orientation Harassment
Cranford
contends triable issues of fact exist as to whether she suffered hostile
workplace sexual orientation harassment in violation of the FEHA. We disagree.
134 Cal.App.4th 577, 587-588 (Hope)
cogently sets forth the legal principles:
“The FEHA states that ‘[i]t shall be an unlawful employment
practice . . . [¶] . . . [¶] . . . [f]or
an employer, . . . because
of . . . sexual orientation[ ] to harass an employee
. . . . Harassment of an
employee . . . by an employee, other than an agent or
supervisor, shall be unlawful if the entity, or its agents or supervisors,
knows or should have known of this conduct and fails to take immediate and
appropriate corrective action.’ (Gov.
Code, § 12940, subd. (j)(1) . . . .) [¶]
‘[A]n employee claiming harassment based upon a hostile work environment
must demonstrate that the conduct complained of was severe enough
conditions of employment and create a work environment that qualifies as
hostile or abusive to employees because of their [sexual
orientation]. . . . The working environment must be
evaluated in light of the totality of the circumstances: “[W]hether an environment is ‘hostile’ or
‘abusive’ can be determined only by looking at all the circumstances. These may include the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employees work performance.”’ [Citation.]
[¶] ‘In determining what
constitutes “sufficiently pervasive” harassment, the courts have held that acts
of harassment cannot be occasional, isolated, sporadic, or trivial, rather the
plaintiff must show a concerted pattern of harassment of a repeated, routine or
a generalized nature.’ [Citation.] [¶]
The harassment must satisfy an objective and a subjective standard. ‘“[T]he objective severity of harassment
should be judged from the perspective of a reasonable person in the plaintiff’s
position, considering ‘all the
circumstances.’ . . . ”’
[Citation.] And, subjectively, an
employee must perceive the work environment to be hostile. [Citation.]
Put another way, ‘[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 [she] was actually offended.’
[Citation.] [¶] Further, ‘[t]he FEHA imposes two standards of
employer liability for sexual [orientation] harassment, depending on whether
the person engaging in the harassment is the victim’s supervisor or a
nonsupervisory coemployee. The employer
is liable for harassment by a nonsupervisory employee only if the employer
(a) knew or should have known of the harassing conduct and (b) failed to
take immediate and appropriate corrective action. (§ 12940, subd. (j)(1).) This is a negligence standard. . . . Because
the FEHA imposes this negligence standard only for harassment “by an employee
other than an agent or supervisor” (§ 12940, subd. (j)(1)), by implication the FEHA makes the employer
strictly liable for harassment by a supervisor.’ [Citation.]”
The evidence submitted
in conjunction with the summary judgment/adjudication motion established
Cranford could not prove essential elements of a sexual orientation harassment
claim. First and foremost, there was no evidence
to support a conclusion Cranford was harassed because of her sexual orientation
or that any such sexual orientation harassment was sufficiently severe or
pervasive so as to alter the conditions of her employment. (Lyle
v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283 (
Cranford relies on
evidence that Herrera repeatedly complained to Miller, who was both Cranford’s
and Herrera’s supervisor about Cranford’s job
performance and Cranford and Herrera had frequent confrontations in the
workplace about job related matters.
During that time, Miller uniformly took Cranford’s side in disputes, designated her as his acting jail
manager in his absence, and nominated her as Supervisor of the Year.
There is no evidence
Cranford was being harassed by Herrera, or anyone else, because of her sexual
orientation. Indeed, the only evidence
in any way related to Cranford’s sexual orientation being an issue in the
workplace was that Cranford heard that in late 2004 or early 2005 two of
picture of woman on the computer and one suggested they show the picture to
Cranford. Cranford was not present when
the incident took place. Cranford
believed her coworkers “openly discussed” her sexual orientation and her
personal life and Herrera was the instigator of such discussions, but there was
no evidence of any specific thing said about Cranford by any particular person
and no evidence Cranford personally witnessed any such discussions: mere allegations of workplace gossip are not actionable. (Beyda
v. City of Los Angeles (1998) 65 Cal.App.4th 511, 518-519, 521 [incidents
that a plaintiff does not witness and of which he is not aware “cannot affect
his or her perception of the hostility of the work environment”; “mere
workplace gossip is not a substitute for proof”; rather “[e]vidence of
harassment of others, and of a plaintiff’s awareness of that harassment, is
subject to the limitations of the hearsay rule.
It is not a substitute for direct testimony by the victims of those
acts, or by witnesses to those acts”]; see also Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860,
878-879.)
The only substantiated
comment ever made having anything to do with Cranford’s sexual orientation was
when Cranford confronted Herrera about workplace gossip and Herrera told
Cranford “‘she had a friend that was also gay and she didn’t care that
[Cranford] was gay, but that [[Cranford should] not to [sic] play the gay card[,]’” and that it would “‘piss people off’”
if she did. Cranford admitted this was
the only comment Herrera ever made to her relating to her sexual
orientation. Neither Herrera nor any
City employee ever called Cranford derogatory names, said anything derogatory
about her sexual orientation, said they disliked her because of her sexual
orientation, or that they disapproved of her lifestyle.
The acts of harassment
alleged against Herrera fall far short of “‘establishing “a pattern of
continuous, pervasive harassment” [citation], necessary to show a hostile
working environment under FEHA.’” (
180 Cal.App.4th 365, 382.)
Indeed, they stand in stark contrast to the evidence found to be
sufficient in other cases to support a claim of sexual orientation harassment. For example in Hope, supra, 134 Cal.App.4th at page 580, plaintiff was a cook
at a juvenile detention facility. He was
repeatedly called “‘motherfuckin’ faggot’ and a ‘homo’” by his immediate
supervisor in front of other employees.
The supervisor would “‘rant and rave’” to the next level supervisor that
he would not work with “‘this gay guy’” and the next level supervisor would do
nothing to correct the behavior. (
called plaintiff “‘faggot ass bitch,’” “‘faggot ass motherfucker,’” told the
wards that plaintiff “looked at them because he thought they were pretty[,]”
instructed them to not to assist plaintiff with duties, and tore up incident
reports plaintiff wrote on wards. (
Here, the evidence
showed only that Cranford and Herrera did not get along, and Herrera
disapproved of many things Cranford did in performing her job. There is nothing that would support a
conclusion Herrera acted because of Cranford’s sexual orientation. (See Jones
v. Department of Corrections and Rehabilitation (2007)
152 Cal.App.4th 1367, 1378 [absence of nexus between alleged
harassment and protected classification negates FEHA claim].) Herrera’s repeated complaints to Miller about
Cranford may well have been misplaced petty nitpicking, but the FEHA is not a
workplace civility code. (
As noted in Guthrey v. State of
California (1998) 63 Cal.App.4th 1108, 1110: “Anyone who has ever worked in an office or,
for that matter, been a schoolchild on the playground knows that petty
differences arise which cannot always be resolved without hurt feelings. Does that mean that these festering disputes
in the workplace should find their way into the courts for resolution Absolutely not. This case is a prime example of where such
work-related differences have no place in the courtroom.”
Cranford’s sexual
orientation harassment claim fails for another reason as well. Cranford concedes that because Herrera was
not a supervisory employee (both were detention supervisors supervised by
Miller, and it was Cranford who served as the acting jail manager in Miller’s
absence), her claim required proof the City knew or should have known of
the harassing conduct and failed to take immediate and appropriate corrective
action. (Gov. Code, § 12940, subd.
(j)(1).) The City’s separate statement
contained undisputed evidence Cranford never complained to Miller or anyone
else at the City that she was being harassed because of her sexual
orientation. Cranford’s complaint to
Miller that Herrera’s incessant complaints to him about her were “borderline
harassment” did not put the City on notice Cranford was being harassed because
of her sexual orientation. Cranford did
complain to Miller that she believed coworkers were talking about her sexual
orientation and personal life, but when asked if she wanted to file a
complaint, she declined. And in any
event, her belief that coworkers were gossiping about her did not put the City
on notice she was being harassed because of her sexual orientation.
In
short, the incidents upon which Cranford bases her sexual orientation
harassment claim are insufficient to support a hostile workplace sexual
harassment claim under the FEHA.
Accordingly, the trial court properly granted summary adjudication on
the sexual orientation harassment cause of action (Gov. Code, § 12940,
subd. (j)(1)), and the failure to prevent sexual orientation harassment
cause of action as well. (See
(1998) 63 Cal.App.4th 280, 286‑287 [no cause of action for violation of
Gov. Code, § 12940, subd. (k) [formerly subd. (i)], absent a finding
plaintiff suffered actionable harassment]; in accord, Tritchler v. County of Lake (9th Cir. 2004) 358 F.3d 1150, 1154
[plaintiff must “be found to have been subjected to sexual harassment stemming
from a hostile environment” before jury can reach issue of whether Gov. Code,
§ 12940, subd. (k), was violated; see also Chin et al., Cal. Practice
Guide: Employment Litigation (The Rutter Group 2011) [¶] 10:481.2,
p. 10‑86 [“[n]o [Gov. Code, § 12940, subd. (k)[,] action
lies for failure to take necessary steps to prevent harassment if no harassment
in fact occurs”].)
4.
Retaliation
Cranford
contends there were triable issues of fact regarding her FEHA retaliation cause
of action. She contends release of
confidential medical information from her worker’s compensation claim file was
an adverse employment action because it ultimately caused her to resign from her
employment and was done in retaliation for her having complained about sexual
orientation harassment. We disagree.
We
need not spend undue time on Cranford’s complaint the trial court erred by
deeming the Davis Letter impermissible grounds for opposing summary
adjudication because it was not pled in her complaint as a retaliatory
act. Cranford’s third amended complaint
alleged only Herrera’s harassment of her as the retaliatory conduct, i.e., that
after she complained to Miller about Herrera’s conduct, Herrera “retaliated” by
stepping up her constant criticisms of Cranford.
A
plaintiff cannot raise new and unpleaded issues in opposing a summary judgment
motion. (Government Employees Ins. Co. v. Superior Court (2000)
79 Cal.App.4th 95, 98-99, fn. 4.)
The trial court correctly concluded release of the Davis Letter as an
act of retaliation was a new and unpleaded theory. But the City’s summary judgment/adjudication
motion specifically addressed the Davis Letter in conjunction with the
retaliation claim. And in any event, the
trial court addressed the theory on its merits, concluding Cranford presented
no evidence from which it could be concluded release of the letter constituted
an adverse employment action.
Accordingly, we address the merits of Cranford’s argument.
In order to establish a
prima facie case of retaliation, Cranford must show (1) she engaged in a
“protected activity” (e.g., reporting or complaining about sexual orientation
harassment), (2) the City subjected her to an adverse employment action, and
(3) a causal link between the protected activity and the adverse employment
action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (
actionable, Cranford’s report of it is protected activity if she reasonably
believed she was reporting a violation of the FEHA. (Id.
at p. 1043.)
We apply the
well-accepted burden shifting paradigm specified by McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-804 (
termination/retaliation claim. (
121 Cal.App.4th 95, 111-112 (Reeves).) In the trial context, the
plaintiff to present sufficient evidence supporting prima facie case of
retaliation, which gives rise to a presumption the employer acted
unlawfully. The employer may then dispel
the presumption by articulating a legitimate, nondiscriminatory reason for its
action. If the employer does that, the
presumption disappears and the issue then becomes one of whether the plaintiff
has proven by a preponderance of the evidence the existence of discriminatory
animus and a causal link between it and the adverse action she suffered. (Mamou
v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715 (
Cal.App.4th at pp. 111-112.)
In the summary judgment
context, the employer as the moving party “has the initial burden to present
admissible evidence showing either that one or more elements of the plaintiff’s
prima facie case is lacking or that the adverse employment action was based
upon legitimate, nondiscriminatory factors.”
(Hicks v. KNTV Television, Inc.
(2008) 160 Cal.App.4th 994, 1003.) If
the employer meets that initial burden, “the plaintiff then has the burden to
produce ‘substantial evidence that the employer’s stated nondiscriminatory
reason for the adverse action was untrue or pretextual, or evidence the
employer acted with a discriminatory animus, or a combination of the two, such
that a reasonable trier of fact could conclude the employer engaged in
intentional discrimination.’” (
To survive a summary judgment motion, the plaintiff must produce
evidence that creates a material factual dispute pertaining to the employer’s
asserted reason, evidence sufficient to support “a reasoned inference that the
challenged action was the product of discriminatory or retaliatory
animus.” (Mamou, supra, 165
Cal.App.4th at p. 715.)
Here, the City met its
burden to show a legitimate reason for releasing the Davis Letter and doing so
was not for any retaliatory reason. The
City Attorney declared she was apprised of the letter’s contents by the City’s
worker’s compensation unit because it contained allegations of sexual
orientation harassment. The City
Attorney reviewed the letter and made the decision to provide a copy of the
letter to the police chief directing him that the harassment allegations should
be investigated by the police department’s confidential Professional Standards
Unit. The City Attorney, the police
chief, and the supervisor of the Professional Standards Unit, all declared the
Davis Letter was not released beyond those select few persons.
The burden then shifted
to Cranford to present evidence creating a triable issue as to whether the
City’s proffered reason for releasing the Davis Letter was a pretext for
retaliation. She did not carry her
burden.
Cranford presented no
evidence she engaged in a protected activity.
She admitted she never reported or complained to her supervisor or any
City employee that she was being subjected to sexual orientation
harassment. She did complain to Miller
about Herrera’s constant complaints to Miller about her job performance. But there is absolutely no evidence
supporting any causal link between Cranford’s complaints to Miller and the City
Attorney’s decision to release the Davis Letter to the police chief for
investigation of the allegations therein.
There is no evidence the City Attorney had any knowledge of the
animosity between Cranford and Herrera, or of any complaints Cranford made to
Miller. Without a causal link between
the protected activity (i.e., complaining to Miller about Herrera) and the
adverse employment action (i.e., release of the Davis Letter) the retaliation
claim fails (Yanowitz, supra, 36
Cal.4th at p. 1042), and the trial court properly granted summary adjudication
of the FEHA retaliation cause of action.
5. Due Process/Overlong Reply
Cranford
contends her due process rights were violated when the trial court granted the
City permission, over Cranford’s objection, to file a 15-page memorandum of
points and authorities in reply to her opposition to the summary judgment
motion, and then overruled Cranford’s evidentiary objections to additional
evidence put forth by the City in a reply to her separate statement of material
facts. We find no prejudicial error.
Although
the rules of court provide for a 10-page limit to reply papers on a summary
judgment motion, it rests within the sound discretion of the trial court to
grant a request to exceed that limit.
(Cal. Rules of Court, rule 3.1113(e).) Cranford has not shown the trial court abused
its discretion by allowing the City five additional pages for reply in view of
the already lengthy moving and opposition papers (25 pages each), the lengthy
separate statement (53 pages), and Cranford’s lengthy response to the separate
statement (93 pages). Nor has Cranford
demonstrated a due process violation—she does not suggest the City raised any
new arguments in its reply to which she was unable to respond.
Cranford’s
contention the City’s overlong reply was unfairly supplemented by a reply
separate statement in which new evidence was introduced is similarly
unavailing. The new evidence consisted
of a section from the City’s city charter regarding who has authority to bind the
City to contracts and three additional pages of Herrera’s deposition to place
in context the one page Cranford quoted from in her separate statement. Whether to consider such new evidence rest
within the sound discretion of the trial court.
(San Diego Watercrafts, Inc. v.
Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.) Cranford has not shown that discretion was
abused. In her reply brief, she concedes
the City’s submission of the additional pages from Herrera’s deposition was
proper. And the city charter provision
was offered by the City in relation to the two causes of action on which the
trial court denied summary adjudication.
PHASE
II: TRIAL OF INVASION OF PRIVACY/RELEASE
OF CONFIDENTIAL MEDICAL INFORMATION CLAIMS
A. Sufficiency of the Evidence
1. Standard of Review
Cranford’s
causes of action for disclosure of confidential medical information in
violation of the CMIA (Civ. Code, § 56 et seq.) and worker’s compensation
laws (Lab. Code, § 3762), and invasion of privacy, went to trial. The jury returned a special verdict finding
the City improperly disclosed Cranford’s private medical information in
violation of her privacy rights, the CMIA, and Labor Code section 3762,
but the disclosure was not a substantial factor in causing harm to Cranford. Cranford contends the weight of the evidence
does not support the jury’s finding and the overwhelming evidence at trial was
that release of confidential medical information contained in the Davis Letter
caused her “non-trivial harm.” We will
not disturb the jury’s special verdict.
Our
standard of review is well-established.
“Under the substantial evidence standard of review, our review begins
and ends with the determination as to whether, on the entire record, there is
substantial evidence, contradicted or uncontradicted, which will support the
trial court’s factual determinations.
[Citations.] Substantial evidence
is evidence of ponderable legal significance, reasonable in nature, credible,
and of solid value. [Citation.]” (Ermoian
v. Desert Hospital (2007) 152 Cal.App.4th 475, 501; see
870, 873-874.) We review the relevant
trial evidence in view of that standard.
Gannon,
the City’s worker’s compensation claims examiner handling Cranford’s claim
testified she sent Cranford a worker’s compensation authorization so she could
obtain information from Cranford’s medical and psychological providers. Cranford at first did not want to sign the
authorization expressing her concern that confidential information would get
back to the jail. Gannon promised
Cranford all documents would remain in the physical custody of the worker’s
compensation unit, would remain confidential, and would only to be used to
process the worker’s compensation claim.
Cranford signed and returned the authorization so her worker’s
compensation claim would be processed.
The worker’s compensation unit had a duty to keep Cranford’s medical information
confidential, and the only people who were supposed to have access to
Cranford’s file were the human resources director (Carr), the risk manager
(Williams), and the worker’s compensation adjuster (Gannon).
When
the Davis Letter was released from Cranford’s file, initially no one knew how
it happened. Cranford learned about it
when she received a telephone call from the Police Chief Small on August 22,
2007, asking her about the harassment allegations in the letter. Cranford was alarmed and called Gannon to
find out how the chief got the letter.
Gannon promised to investigate.
Gannon had no doubt Cranford was very upset about the letter’s release.
City
Attorney McGrath, testified she learned about the Davis Letter from Williams,
the risk manager. McGrath made the
decision to send the Davis Letter to the police chief for investigation of
allegations of sexual orientation harassment, although she recognized it
contained confidential medical information as well. McGrath conceded releasing the medical
information in the letter violated “HIPPA” (Health Insurance Portability and
Accountability Act of 1996, 42 U.S.C. § 1320d-2 [confidentiality of
medical records]; and the CMIA (Civ. Code, § 56, et seq. [same]), and she
could have initiated the harassment investigation without releasing the entire
letter (by either redacting it, or summarizing the harassment portion). McGrath testified that as City Attorney she
had an obligation to investigate and/or prevent illegal harassment in the
workplace and she had to act on the allegations in the Davis Letter.
Cranford’s
therapist, Davis, testified she had begun conducting therapy sessions with
Cranford in November 2004, treating her for stress and depression, and they
were making progress. In March 2007,
Cranford fainted during a workplace training exercise, prompting her to go out
on stress leave. From March 2007, until
Cranford learned from the police chief the Davis Letter had been released to
him, Davis believed Cranford was “slowly and surely . . . getting better and
stabilizing[]” working through the issues causing her stress. Davis believed Cranford would eventually be
able to return to work. Davis described
Cranford as a very private person and she was very concerned about signing the
release allowing the worker’s compensation unit to have access to her
psychological records. Davis testified
the release of the Davis Letter outside of the worker’s compensation unit was
the main cause of Cranford’s emotional distress. Davis did not believe Cranford’s emotional
distress was due to the actual investigation of her sexual orientation
harassment claims.
Anthony
Reading, a clinical psychologist, testified as an expert witness for
Cranford. Before Cranford left work on
stress leave, she had significant personal issues that were causing her stress. Cranford had been successfully working
through these issues with Davis from 2004 through March 2007, but her
work-related stress was increasing.
Cranford’s panic attacks in early 2007 were tied to her job. Up until August 2007, Cranford was
improving and intended to return to work.
Reading opined release of the Davis Letter was “a fracturing experience
for [Cranford] arising from the notion of a complaint, the notion that there
would be an investigation, [and] the notion that that would be seen to be
originating from her.” It affected her
mood and caused problems throughout her personal life. Following release of the Davis Letter,
Cranford’s major depression became more severe and as of September 2009, she
was still suffering from major depression and a panic disorder. Reading agreed the investigation of
allegations of workplace sexual orientation harassment was something Cranford
did not want to occur and when the letter was released triggering the
investigation, the fact the investigation had occurred made it too untenable
for her to return to work.
Cranford’s
former domestic partner, with whom Cranford was involved from September 2006
through the relevant times in 2007, testified that after Cranford received the
telephone call from the police chief in August 2007, Cranford became a
different person, more “stressed out” about work, and increased the frequency
of her appointments with Davis.
Cranford
testified she was reluctant to sign the authorization for release of medical
information to the worker’s compensation unit because she was very concerned
about her medical and psychological records being released outside the worker’s
compensation unit. Cranford testified
she had discussed her sexual orientation with several coworkers over the years—at
least 10 of the 18 to 20 people who worked at the jail—and she received routine
telephone calls at work from her domestic partner in which they would be
arguing. Cranford had also discussed
with her supervisor Miller, and/or other trusted coworkers, her disintegrating
and sometimes violent relationship with her domestic partner, her treatment
with Davis and medication for depression, her breast cancer scare, and
financial troubles she was having.
Cranford testified that prior to August 2007, her emotional state was
improving and she had “every intention of going back to work.” Cranford conceded she had been applying for
other jobs prior to August 2007, but said she was not seriously looking for a
new job. Cranford was extremely upset
when she learned the Davis Letter had been released to the police chief and had
been given to the police department’s Professional Standards Unit for
investigation as investigators who rotated through the unit would have
knowledge of her personal information, and there would be a lingering stigma
attached to her. Cranford feared the
Davis Letter would be shown by investigators to other persons interviewed
during the investigation or its contents would be leaked.
The
City presented expert testimony from Stephen Signer, a psychiatrist. He originally examined Cranford in September
2007 in connection with her worker’s compensation claim, and then again in the
Fall of 2009. In the 2007 examination,
Cranford told Signer she felt she was being harassed and unfairly criticized by
coworkers after she had been promoted.
Cranford had a fainting-type episode on March 22, 2007, during a
training session, which she associated with being stressed. Cranford explained to Signer that at the time
she had been in the process of terminating her seven-year domestic partnership,
they were having difficulties with dividing property and dealing with the
horses they had, and she was having financial difficulties as well. Cranford had also been caught up in an
“internet scam.” Cranford told Signer
she was more recently having panic and anxiety over the release of the Davis
Letter to the police chief. The chief
had indicated to Cranford he needed to investigate her allegation of sexual
orientation harassment. Cranford “tried
to deflect” his call for an investigation, and “started to panic and she knew
she would be in the investigation and everybody would be interviewed, although
she realized that ultimately this might be good for herself or others.” In that September 2007 interview, Cranford
only expressed being “upset” over the fact there was going to be an
investigation of the sexual orientation harassment allegations, and she did not
express concern the Davis Letter also contained medical information about her
that had been divulged.
In
their interview, Cranford told Signer her history of stress related to a breast
cancer scare in 2004, a volatile relationship with her previous domestic
partner which included domestic violence and her partner’s threatening to
commit suicide using Cranford’s gun.
Cranford denied any problems with her current domestic partner. Cranford had taken medication for anxiety and
panic. Cranford indicated she ultimately
wanted to get out of working at the jail and perhaps return to school to study
veterinary medicine, although she thought it was not financially feasible. Cranford’s social history predating her
employment with the City included that she grew up in a family with step‑siblings
and her father was an alcoholic. She
enlisted in the military, but briefly went AWOL when she was having financial
difficulties and trying to avoid having her car repossessed. She returned to her base, was briefly placed
on a suicide watch, and ultimately discharged from the military under honorable
conditions. Signer diagnosed Cranford
with “adjustment disorder with mixed emotions, anxiety and depression, non‑industrial.” He did not find her to be disabled from being
able to work.
Signer
examined Cranford again in October 2009, interviewing her for almost three
hours. Signer asked Cranford if she had
any corrections to offer about his September 2007 report, and she did not. Cranford discussed with Signer her move to
Texas, applying for various jobs there, her domestic relationship, and her
current treatment and symptoms. Cranford
was still depressed and anxious and had “panics, particularly over what was
happening with her lawsuit.” Cranford
did not suggest to Signer that she was upset about the release of confidential
medical information contained in the Davis Letter. Signer had also reviewed psychological
testing performed on Cranford by a neuropsychologist and Reading’s deposition
as part of his current evaluation.
Cranford suffered from a long-standing “low level chronic depressive
condition,” post-traumatic stress disorder going back to childhood trauma
involving a variety of disruptive and violent incidents, adjustment disorder,
anxiety, and depression. Signer opined
the release of the full Davis Letter had not contributed anything more than
“transient upset” to Cranford. Cranford
indicated to Signer it was the initiation of an investigation into her
allegations of harassment that was upsetting, not the release of her
confidential medical information.
On
cross-examination, Cranford’s counsel endeavored to impeach Signer with his
deposition testimony he did not recall any specific question he asked Cranford
about the release of the Davis Letter.
Signer agreed release of a confidential medical record would cause
someone anxiety and because Cranford had “trust issues” she would be more
affected. On redirect, Signer testified
he had specifically discussed the release of the Davis Letter with Cranford,
and she indicated it was investigation of sexual orientation harassment
allegations that was distressing.
Analysis
Causation and damages
are ordinarily questions of fact for the jury’s determination. (Ortega
v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205; Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th
269, 288; R.J. Land & Associates
Construction Co. v. Kiewit-Shea (1999) 69 Cal.App.4th 416, 429.) Substantial evidence supports the jury’s
finding on causation.
As the City points out,
the issue in this case was not the release of the Davis Letter per se. The letter contained allegations of workplace
sexual orientation harassment the City was obligated to investigate. The issue was whether Cranford was harmed by
the prohibited release of confidential
medical information contained therein.
Cranford concedes as much. There
is substantial evidence supporting the City’s defense that Cranford’s emotional
distress was not the result of the disclosure of her medical information.
Signer,
the City’s examining expert psychiatrist, testified that when he examined
Cranford in September 2007, they discussed the myriad stressors Cranford was experiencing
in her life. Signer testified that as he
documented in his written report, Cranford indicated to Signer the panic and
anxiety she was having with regards to the release of the Davis Letter to the
police chief was because there would be an investigation into her allegation of
workplace sexual orientation harassment.
Cranford “tried to deflect” the chief’s call for an investigation, and
“started to panic and she knew she would be in the investigation and everybody
would be interviewed, although she realized that ultimately this might be good
for herself or others.” Cranford did not
express concern that with release of the unredacted Davis Letter, confidential
medical information was also divulged.
When Signer examined Cranford again in October 2009, Cranford had
nothing she wanted to correct in Signer’s 2007 report. Cranford again gave no indication her current
anxiety and depression was because confidential medical information contained
in the Davis Letter had been divulged, it was the initiation of an
investigation into her allegations of harassment that was upsetting. Signer’s medical opinion was that the release
of the full Davis Letter had not contributed anything more than “transient
upset” to Cranford.
Cranford’s
assertion Signer’s testimony “should be disregarded in its entirety” because he
never asked Cranford how she felt about release of the Davis Letter is
meritless. Although at his deposition
Signer could not recall the specific questions he asked Cranford about the
release of the Davis Letter, he testified he had specifically discussed the
release of the Davis Letter with Cranford.
Signer’s
conclusion it was investigation of sexual orientation harassment allegations
that was distressing to Cranford, is consistent with other testimony. Cranford’s expert psychologist, Reading,
testified release of the Davis Letter was “a fracturing experience” for
Cranford because from its release arose “the notion of a complaint, the notion
that there would be an investigation, the notion that that would be seen to be
originating from her.” There is other
evidence that would allow the jury to draw the permissible inference that
release of confidential medical information contained in the Davis Letter was not
a substantial cause of Cranford’s emotional condition. There is abundant evidence that before the
letter was released, Cranford was suffering anxiety and depression and
suffering stress from any number of personal factors. Virtually every personal fact discussed in
the Davis Letter (her sexual orientation, turbulent break up with her domestic
partner, financial distress) and most of the medical information discussed in
the letter (breast cancer scare, treatment and medication for depression), had
previously been disclosed by Cranford to various coworkers over the years. Although we certainly do not condone the City
Attorney’s compromising Cranford’s medical privacy by disclosing the entire
Davis Letter to the police chief and internal affairs investigators, we cannot
say the jury’s finding divulging her private medical information was not a
substantial factor in causing harm to Cranford is unsupported by the
evidence.
B. Evidentiary Issues
Cranford contends
she was denied a fair trial because the trial court erroneously denied her
pre-trial motions in limine to exclude:
(1) evidence concerning a specific romantic relationship she became
involved in after the Davis Letter was released; and (2) Signer’s expert
testimony. The trial court’s ruling on a
motion in limine is reviewed for abuse of discretion. (Piedra
v. Dugan (2004) 123 Cal.App.4th 1483, 1493.) Even if an abuse of discretion is found, we
cannot reverse absent a showing of prejudice, i.e., that but for the alleged
error, it is reasonably probable the jury would have returned a more favorable
verdict. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801-802.) Neither is the case here.
1. Cranford’s Relationship with “Shannon”
Before
trial, Cranford moved to exclude certain evidence concerning her personal life
including about her relationship with “‘Shannon’ or Shannon’s life
circumstances, marriage, and relationship issues.” Apparently, the details of the relationship
surfaced during the deposition of Cranford’s expert witness, Reading. Shannon was a married woman with young
children who lived in Texas, with whom Cranford had become romantically
involved. Cranford argued “Shannon has a
number of personal issues and unsavory life circumstances which, if revealed,
would be embarrassing.” The trial court
deferred ruling on the motion, noting the relevance of any particular
information concerning Cranford’s personal life “was contextual,” and
objections to the evidence would have to be raised as appropriate as trial
proceeded.
At
trial, Cranford’s counsel elicited testimony from Reading concerning Cranford’s
relationship with Shannon as an example of her poor decision-making abilities
after leaving employment with the City.
The testimony was brief, Reading testified Cranford had described the
relationship as a “bad relationship.”
Although “initially a loving relationship,” Shannon was disabled,
married, and conflicted about whether she wanted to be with Cranford. On cross-examination, the City’s counsel
asked Reading only a few questions concerning this relationship. The questions spanned just over one page of
the reporter’s transcript and none elicited any objection from Cranford. Reading testified on cross-examination that
Cranford met Shannon on-line before resigning from the City, moved to Texas,
and moved in with her, and there were problems in the relationship including
that Shannon was married to a man and disabled.
The City made no reference to Shannon in its closing argument.
Cranford
contends the trial court abused its discretion by allowing evidence about Shannon. Cranford asserts the evidence unfairly
allowed the City to parade before the jury salacious details of her personal
life “paint[ing her] as an unsympathetic homewrecker, i.e., a ‘bad
person’ . . . unworthy of receiving justice.” We disagree.
The trial court specifically directed that objections to testimony
concerning Cranford’s personal life would have to be raised during trial as the
relevance of any such information could only be assessed as the case unfolded. It was Cranford
who then specifically elicited the testimony about Shannon from her own expert
witness. Accordingly, her complaints are
waived. (People v. Moran (1970) 1 Cal.3d 755, 762 [defendant cannot complain
on appeal that admission of evidence was error where he offers it].) Furthermore, we cannot say Cranford suffered
any prejudice from the evidence. It was
only briefly mentioned during her expert’s testimony and not mentioned at all
during closing argument, and certainly never argued by the City in the manner
Cranford suggests.
2. Signer’s Expert Testimony
Cranford
contends the trial court should have granted her motion in lim
| Description | Catherine Denise Cranford appeals from the judgment in her action against her former employer, the City of Huntington Beach (the City). Cranford alleged she suffered workplace harassment by a co-worker due to her sexual orientation, and retaliation by the City for having complained about the harassment in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940). Cranford also alleged her medical privacy rights were violated by the City when a letter written by her therapist in connection with her worker’s compensation claim containing Cranford’s allegations of workplace sexual orientation harassment was released to investigators outside the City’s worker’s compensation unit. The trial court granted the City’s motion for summary adjudication on the FEHA causes of action, and a jury found that although Cranford’s medical privacy rights were violated, she was not harmed. On appeal, Cranford contends: (1) there were material issues of fact as to the FEHA causes of action precluding summary adjudication; (2) insufficient evidence supports the special verdict; (3) the trial court abused its discretion by denying her motions to exclude certain evidence; and (4) the trial court erred by denying her motions for judgment notwithstanding the verdict and new trial. We find no error and affirm the judgment. |
| Rating |
