Filed 8/10/26 Dixon v. Eco Services Operations Corp. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
CHAUNTAE DIXON, B342933
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 22STCV20556)
v.
ECO SERVICES OPERATIONS
CORP. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Holly J. Fujie, Judge. Affirmed in part, reversed
in part, and remanded.
Blair & Ramirez, Oscar Ramirez, Matthew P. Blair and
Regina Jurczak; Esner, Chang, Boyer & Murphy, Stuart B. Esner
and Rowena J. Dizon for Plaintiff and Appellant.
Cozen O’Connor, Michele B. Miller, Elizabeth Malloy and
Nicole H. Perkin for Defendants and Respondents.
__________________________
Chauntae Dixon sued her former employer, Eco Services
Operations Corp., and its parent corporation, Ecovyst Catalyst
Technologies LLC (collectively Eco Services) for disability
discrimination and for maintaining a hostile work environment
based on sex. The superior court granted summary judgment in
favor of Eco Services, concluding Dixon’s termination was
legitimately based on her failure to comply with Eco Services’
Return to Work (RTW) policy and the alleged harassment was
not “sufficiently severe or pervasive” to create a hostile work
environment. Dixon appeals. We reverse as to Dixon’s hostile
work environment claim but otherwise affirm.
BACKGROUND
Because we are reviewing the grant of summary judgment,
we view the facts in the light most favorable to Dixon. (Nicoletti
v. Kest (2023) 97 Cal.App.5th 140, 144.)
Dixon worked as a Senior Buyer for Eco Services from April
2019 to February 28, 2022. Eco Services operates chemical
plants. Dixon negotiated bids for supplies at three of those
plants. Dixon’s office was at the Dominguez Plant site, a plant
that processes toxic and flammable chemicals. Stephen Caro was
the Dominguez Plant Manager. Dixon’s immediate supervisor,
Landry Garcia, worked from Houston, Texas. One of Dixon’s
direct reports, Vanessa Brannock, worked, like Dixon, at the
Dominguez Plant.
A. Conduct of Caro and His Assistant
In 2019, Caro’s assistant, a woman, made two comments to
Dixon about how it would be prudent to not delay having children
because delay could increase the risk of having a child with a
disability. Dixon reported the incident to Robert Rice, a regional
human resources manager at Eco Services. Rice investigated and
2
told Caro’s assistant to cease commenting on her coworker’s
personal life. After Dixon reported the incident, Caro tried to
“persuade her to recant her complaint.” Dixon did not complain
about any further comments from Caro’s assistant.
In February 2020, Dixon heard Caro yelling at her direct
report, Brannock, for stepping outside her role. Dixon, who was
down a hallway and standing behind and to the side of Caro, saw
him do something with his hands but she could not see what.
Brannock later went to Dixon’s office and told Dixon that Caro
had grabbed his genitals while yelling at her. Dixon told
Brannock she supported her reporting Caro to human resources.
Afterwards, Caro went into Dixon’s office unannounced, “blocked
the exit” by “plac[ing] his body in the room in a way that
prohibited her from leaving,” and yelled at her for encouraging
Brannock to report him. He said he was “significantly bigger in
size” than Dixon, which she considered an implied threat. Dixon
became terrified of Caro. She told him that because of his
behavior in her office she “no longer fe[lt] safe.”
Although we discount it on our summary judgment review,
Brannock submitted a declaration contradicting Dixon’s evidence.
She averred Caro “was always friendly and kind to me.” She did
not witness him sexually harass anyone and she did not
remember complaining about Eco Services or Caro. The genital-
grabbing incident, she said, never occurred.
In February or March 2020, Dixon began to work remotely.
Part of the reason she believes she was allowed to work remotely
was her fear of Caro. By March 2020, Eco Services allowed many
employees to work from home in response to the COVID-19
pandemic.
3
During her employment, Dixon witnessed Caro demean two
female coworkers, namely Melissa Luu and Wendy Maxwell, and
witnessed Caro yell at Brannock for throwing out his soda. As to
Luu and Maxwell, Dixon saw Caro demean them in safety
meetings. Dixon does not elaborate. She believes Luu told her of
other inappropriate conduct, but she cannot recall details. Dixon
does recall both women telling her they retired because of
incidents with Caro, but, again, Dixon cannot recall details.
Dixon declared that she did not see Caro similarly interact
with male employees. Dixon believed Caro was hostile to women.
She also believed management was aware of this because, as she
declared, her supervisor, Garcia, told her the company would
have to fill Brannock’s role, after she had been laid off, with a
man because of “the way” Caro was.
Rice, for his part, denied receiving complaints from Dixon
about Caro harassing her based on her sex, but acknowledged
both Dixon and Brannock had complained about Caro asking
about their work. Rice had told Caro to relay work concerns
about Dixon and Brannock to their supervisor, Garcia, rather
than engage them directly.
B. Medical Leave and Termination
Dixon requested November 16 to November 17, 2021, off
work for a medical procedure. Garcia granted the request. Just
prior to Dixon’s medical leave, Caro complained to Garcia that
Dixon was not responsive in her work. Garcia canvassed Dixon’s
other internal clients within the company and received
corroborating negative feedback from them. After speaking with
Dixon and telling “her she needed to engage and get involved,”
Garcia decided not to implement a formal improvement plan.
Garcia wrote to Rice to apprise him of the conversation with
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Dixon, and concluded he “would like to press the issue of getting
her back in the plant. I think that is really the key to getting her
involved. Not sure how we attack that based on what I have told
you.”
On November 18, 2021, Dixon emailed Garcia that her
recovery was taking longer and she would contact human
resources to request time off. Four days later, she advised Garcia
she would be off work until January 3, 2022. That same day,
Rice had the benefits coordinator contact Dixon about her
medical leave. Rice also advised the coordinator that Dixon “does
not want to report to the Dominguez Plant due to COVID fears,
however she traveled to Michigan for surgery.” Rice noted the
company learned Dixon was in Michigan, not California, “when a
request was made for her to attend safety training at the
Dominguez plant.” Eco Services provided short-term disability
paperwork that referenced the company’s RTW policy. Dixon
filed a claim and took leave until January 3, 2022.
Dixon returned to work remotely on January 4, 2022.
Garcia informed Dixon two days later that the company needed
clearance from Dixon’s doctor and the company’s occupational
healthcare partner. Dixon claims she was unaware that a
physical exam was required. She provided her own doctor’s
clearance.
Rice then emailed Dixon: “Your role is a plant role due to
the nature of your work and that is the reason you are required
to complete the Dominguez plant RTW process. Your role cannot
be accommodated as a work-from-home position because of the
Dominguez plant employee interface requirements. [¶] I think
the communication gap [regarding RTW] resulted from our
assumption that you were working from home in California. [We]
5
typically send[] communications to an employee’s home address.”
Garcia also believed Dixon’s job required at least some on-site
presence at the Dominguez Plant, as well as travel to two other
plants. Around the fall of 2021, as the COVID-19 pandemic
eased, Rice stated “all employees [had been] asked to return to
the plant.” According to Garcia, however, there was no company
policy, at least back in November 2021 when Dixon’s leave began,
requiring her to work in person as “she was home for COVID.”
Garcia could not remember exactly when COVID-19 travel
restrictions loosened, but thought it was sometime in 2021.
Rice testified that all employees returning from leave had
“to be certified to be able to comply with evacuation procedures”
because the Dominguez Plant handled dangerous chemicals, and
“[a]nybody in the admin[istrative] area is subject to that exposure
depending on operational upsets, which way the wind’s blowing,
those kinds of things.” The company also produced evidence that
two other employees sited at the Dominguez Plant, including
Caro’s assistant, were required to comply with the company’s
RTW policy.
Dixon initially agreed to the RTW physical examination.
When she arrived at the clinic, she was provided a HIPAA
release. She was also told she would be “doing blood work.”
Dixon refused to sign the release and was not allowed to proceed
with the physical examination. Afterwards, Rice told Dixon she
could strike through any objectionable portions of the HIPAA
release. Dixon declined, refused to sign the release, and was
eventually terminated effective February 28, 2022, with the
company citing her refusal. The company paid Dixon from her
return to work in January through her termination.
6
C. Dixon’s Suit
Dixon filed suit against Eco Services and Caro alleging
these seven causes of action: (1) disability discrimination; (2)
retaliation for requesting reasonable accommodations; (3)
unlawful inquiry regarding physical condition; (4) hostile work
environment based on sex; (5) retaliation for engaging in
protected activity; (6) retaliation in violation of the California
Family Rights Act; and (7) wrongful termination in violation of
public policy. (See Gov. Code, §§ 12940, subds. (a), (m), (f), (j), (h),
12945.2; further unspecified statutory references are to the
Government Code.) The complaint’s prayer sought punitive
damages. The first, fifth, sixth, and seventh causes of action
proffer different theories for why Dixon’s termination was
unlawful. The second cause of action asserts Eco Services
demanded “medical disclosure requirements” in retaliation for
Dixon having requested medical leave. The third cause of action
alleges Eco Services made an unlawful medical inquiry when it
required her to undergo a physical exam and sign the provider’s
HIPAA form. The fourth cause of action, for hostile work
environment, referenced Caro’s behavior.
Caro died, and Dixon agreed to his dismissal.
Eco Services moved for summary judgment or, in the
alternative, summary adjudication. Dixon opposed.
The trial court granted summary judgment. Dixon’s
disability discrimination causes of action failed because Eco
Services had shown a legitimate, nondiscriminatory basis for
terminating Dixon: her failure to comply with the company’s
RTW policy. Her hostile work environment cause of action failed
because she had not shown severe or pervasive harassing
conduct. Her termination cause of action in violation of public
7
policy failed because it was derivative of her other causes of
action. Finally, her request for punitive damages failed because
she had not shown “anyone acted with malice, fraud, or
oppression.”
Dixon timely appealed.
DISCUSSION
We review de novo a grant of summary judgment. (County
of Los Angeles v. Quinn Emanuel Urquhart & Sullivan, LLP
(2025) 115 Cal.App.5th 489, 504.) We assess the record in the
light most favorable to the opposing party to determine if there is
a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (c);
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
I. Discrimination Causes of Action
Dixon’s first, second, fifth, sixth and seventh causes of
action, which allege discrimination, retaliation, and wrongful
termination under the Fair Employment and Housing Act or the
California Family Rights Act, are subject to a familiar burden-
shifting analysis. (See Wilkin v. Community Hospital of the
Monterey Peninsula (2021) 71 Cal.App.5th 806, 820 (Wilkin)
[FEHA claims subject to McDonnell Douglas rubric]; Bareno v.
San Diego Community College Dist. (2017) 7 Cal.App.5th 546,
560 [CFRA claims analyzed under same rubric]; see also Hanson
v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229 [wrongful
termination in violation of public policy claim is derivative of
underlying claim].) Under this rubric, established in McDonnell
Douglas Corp. v. Green (1973) 411 U.S. 792, the employer has
“ ‘ “the initial burden to present admissible evidence showing
either that one or more elements of plaintiff’s prima facie case is
lacking or that the adverse employment action was based upon
legitimate, nondiscriminatory factors.” ’ ” (Hodges v. Cedars-
8
Sinai Med. Ctr. (2023) 91 Cal.App.5th 894, 904 (Hodges).) If the
employer surpasses this initial hurdle, the burden shifts, and
“ ‘plaintiff must challenge the employer’s proffered reasons as
pretexts for discrimination or offer other evidence of a
discriminatory motive.’ ” (Wilkin, at p. 821.)
We, like the parties, examine the first, second, fifth, sixth,
and seventh causes of action together. Applying the appropriate
standards, we conclude that summary judgment was proper as to
these causes of action.
A. Refusing to Comply with Eco Services’ RTW
Policy Was a Legitimate, Nondiscriminatory
Reason for Dixon’s Termination.
“Reasons [for adverse employment decisions] are
‘legitimate’ if they are ‘facially unrelated to prohibited bias, and
which, if true, would thus preclude a finding of discrimination.’
[Citation.] Issues that are ‘ “nondiscriminatory on their face” and
“honestly believed” by [the] employer, will suffice even if “foolish
or trivial or baseless” ’; the ‘ultimate issue is whether [the]
employer “honestly believed in the reasons it offers.” ’ ” (Hodges,
supra, 91 Cal.App.5th at p. 910, first bracketed insertion added.)
For example, in Hodges, refusing the flu vaccination was a
legitimate and nondiscriminatory reason for a hospital to
terminate an administrative employee, even though the employee
had no patient contact. (Id. at pp. 898, 910–912.) When
“considering whether implementing [a] policy on a workforce-
wide basis [is] a legitimate, nondiscriminatory reason for
terminating [a] plaintiff, the wisdom of the policy is not at issue.”
(Id. at p. 912.)
Further, an employer may require medical inquiries or
examinations of employees when “job related and consistent with
9
business necessity.” (§ 12940, subd. (f)(1)–(2); see Cal. Code
Regs., tit. 2, § 11071, subd. (d)(1).) Under state regulations, “job
related” means “tailored to assess the employee’s ability to carry
out the essential functions of the job or to determine whether the
employee poses a danger to the employee or others due to
disability,” while “business necessity” means “the need for the . . .
medical examination is vital to the business.” (Cal. Code Regs.,
tit. 2, § 11065, subds. (k), (b).)
Eco Services has shown a legitimate, nondiscriminatory
basis for terminating Dixon. Dixon refused to participate in the
company’s RTW examination. The RTW policy applied to all
employees who were absent for seven or more consecutive days
due to illness or injury. The policy included a RTW physical
examination. There were no exceptions. The rationale for the
RTW physical examination was to ensure all employees could
“comply with evacuation procedures” due to the hazardous and
flammable materials at the company’s plants. The policy applied
to administrative employees because they too were “subject to . . .
exposure depending on operational upsets, which way the wind’s
blowing, those kinds of things.” The physical examination itself
was conducted on a “case by case” basis, tied to the employee’s
medical procedure or condition as assessed by the doctor
conducting the examination. The doctor who conducted the exam
determined what was necessary, which could be a question-and-
answer session or a physical examination.
On appeal, Dixon does not challenge the rationale
underlying the company’s RTW policy. She instead contends the
policy’s requirement that an employee sign a broad HIPAA
release is neither job related nor consistent with business
necessity. She goes so far as to suggest the form would never be
10
legitimate as to any employee. We disagree, as Dixon’s argument
relies on a misreading of the release.
The release states: “I give Concentra authorization to
release to my employer, insurance company, and/or their
representatives any medical information, including any
psychotherapy notes, psychiatric information, sexually
transmitted diseases, alcohol and drug abuse and/or HIV/AIDS
status, which is obtained as part of the evaluation and/or
treatment for this work related injury/illness, or employment-
related examination.” (Italics added.) The release does not
unrestrictedly seek to obtain any particularly sensitive medical
information, such as that involving sexually transmitted
diseases, HIV/AIDS, or the like, which are the portions Dixon
takes issue with. It instead authorizes the medical provider to
release “any medical information” that “is obtained as part of the
. . . employment-related examination.” And, as Dixon
acknowledges elsewhere in her opening brief, the company
“produced evidence that the physical examination component of
its RTW policy was ‘tailored’ to the employee’s position and ‘only
verifies that an employee can perform their job functions and
comply with all Plant safety procedures so that, in the event of an
evacuation, the employee would be able to safely exit the plant
without undue risk to themselves or others.’ ” The release, read
in proper context, simply allowed the medical provider to
transmit to the company the results of a tailored, work-related
examination.
Eco Services, contrary to Dixon’s argument, was not
required to show that the listed potential examples of protected
health information in the release were “job related” and
“consistent with business necessity” if the examination was both.
11
A contrary rule would require impossibly narrow forms tailored
to each employee. And without HIPAA releases, which are a
common feature of interacting with the health care industry, the
employer could not receive any useful information from a medical
provider and a legitimate RTW process would be frustrated.
Moreover, the company allowed Dixon to strike out any offending
language from the release, but she refused this accommodation.
Had the exam delved into Dixon’s HIV status and sexual history
and had she been fired for not having disclosed such information,
we would have a different case. That is not this case. An exam
never occurred.
B. Dixon Has Not Shown Eco Services’ Stated
Rationale Was a Pretext for Discrimination.
The burden thus shifted to Dixon to “ ‘produce evidence
that, taken as a whole, permits a rational inference that
intentional discrimination was a substantial motivating factor in
the employer’s actions toward the plaintiff.’ ” (Zamora v. Security
Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 58, italics
omitted.) Dixon has not.
Dixon argues, in one sentence, that the company couched
the grounds for her termination as noncompliance with the RTW
process when the real reason was her taking leave in Michigan
rather than California. But Dixon presented no substantial
evidence that the location of her leave was a factor in her
termination. Nor has Dixon offered reasoning or legal authority
for why particular statements about her location, in this context,
implicated a decision criterion that FEHA regulates. Dixon also
argues that since she was not required to undergo a physical
examination when she was hired, a jury could disbelieve the
company’s application of its company-wide RTW policy to her was
12
legitimate. But we do not analyze the “wisdom” of Eco Services’
RTW policy. (See Hodges, supra, 91 Cal.App.5th at p. 912.) And
again, Dixon has not offered any reasoning or legal authority to
support her contention. “We may and do ‘ “disregard” ’ ” these
“ ‘ “conclusory arguments that are not supported by pertinent
legal authority or fail to disclose the reasoning by which the
appellant reached the conclusions [appellant] wants us to
adopt.” ’ ” (Bjoin v. J-M Manufacturing Co., Inc. (2025) 113
Cal.App.5th 884, 900.)
Dixon also contends the company’s assertion it had
required all employees, including Dixon, to return to the office
was not credible. Dixon points to an absence of a company
memorandum requiring the Dominguez plant employees to
return to site work and testimony that Dixon’s supervisor,
Garcia, had not, in November 2021, specifically asked her to
return to office even while stating to a colleague it was important
that she do so. But Dixon has not shown any reason to discredit
the testimony that employees were being asked to return to the
office as the COVID-19 pandemic was easing. More germane,
Dixon’s role was ultimately and uncontrovertibly, at least in part,
in person, and she remained subject to the company’s RTW
policy.
Lastly, Dixon has not meaningfully contended with Eco
Services’ showing that it worked with her to assuage her concerns
about the RTW process. For two months, the company paid
Dixon while addressing her concerns with the HIPAA release.
For these reasons, Dixon has failed to show a triable issue
regarding pretext. The trial court did not err in granting
summary judgment to Eco Services on her first, second, fifth,
sixth, and seventh causes of action.
13
II. The Unlawful Inquiry Cause of Action
Dixon’s third cause of action alleges Eco Services
unlawfully inquired into her physical condition. As discussed
above, an employer may inquire of an employee’s physical
condition only when “job related and consistent with business
necessity.” (§ 12940, subd. (f)(1)–(2); Cal. Code Regs., tit. 2, §
11071, subd. (d)(1).) Dixon contends that Eco Services had not
shown the HIPAA release component of its RTW policy met these
requirements because it had not established how “any medical
information, including any psychotherapy notes, psychiatric
information, sexually transmitted diseases, alcohol and drug
abuse and/or HIV/AIDS status” would help determine if Dixon
could evacuate safely.
As discussed above, this argument misreads the HIPAA
release. The release, read in proper context, simply allowed the
medical provider to transmit to the company the results of a
tailored, work-related examination. There was no improper
inquiry based on the topics referenced in the release.
Moreover, the HIPAA release appears to make no inquiries
of Dixon. As Dixon notes elsewhere in her opening brief, a
regulation governing pre-employment practices prohibits
“ask[ing] general questions on disability or questions likely to
elicit information about a disability . . . at any time before a job
offer is made.” (Cal. Code Regs., tit. 2, § 11070, subd. (b)(2).) The
regulation then lists eight examples of “[p]rohibited [i]nquiries,”
such as “[d]o you have any particular disabilities” or “[h]ave you
ever been treated for [certain] diseases or conditions.” (Ibid.)
The HIPAA release, however, did not ask any questions of Dixon.
It did not ask whether she had a sexually transmitted disease,
abused alcohol or drugs, or had HIV/AIDS. It did not ask why
14
she had surgery or whether she had any medical restrictions from
it. The form was a release, not a questionnaire.
Dixon relies on an unpublished federal district court case
from Illinois addressing federal law to argue that the release
itself constitutes an inquiry and, at that, an unlawful one.
(Nawara v. County of Cook (N.D.Ill. Mar. 28, 2019, No. 17 C
2393) 2019 U.S.Dist. Lexis 52632.) There, the court found a
HIPAA waiver, which “would have permitted any of [plaintiff’s]
health care providers to release all of his medical records” to his
employer, was an inquiry under the Americans with Disabilities
Act. (Id. at pp. *1–2, *17–18.) The court noted the employer had
foisted the HIPAA waiver on the plaintiff after singling him out
for seeking to report workplace harassment. (Id. at p. *2.) It also
noted the form was not tailored but would have authorized
disclosure of “ ‘[a]ll healthcare information’ from any medical
provider, without specifying any particular time-frame or medical
condition . . . .” (Id. at p. *23.) The court distinguished a
reported federal decision that concluded a pre-employment
release form “ ‘does not come under the definition of a prohibited
medical inquiry, as it does not ask any questions about an
individual’s medical history or her limitations.’ ” (Id. at p. *19,
quoting Green v. Joy Cone Co. (W.D.Pa. 2003) 278 F.Supp.2d 526,
540.) Even if the HIPAA release here were an “inquiry,” the
release allowed only the disclosure of information gained from
the RTW examination and did not grant access to Dixon’s entire
medical history as in Nawara. The release requirement also
applied to everyone returning to work after leave and did not
single out Dixon as in Nawara. Nawara is distinguishable.
Accordingly, summary judgment was proper as to the third
cause of action.
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III. Hostile Work Environment Cause of Action
Dixon’s fourth cause of action alleges a hostile work
environment due to harassment “on the basis of her sex.” “[I]t is
an unlawful employment practice for an employer, ‘because
of . . . sex, . . . to harass an employee.’ (§ 12940, subd. (j)(1).)
Under the statutory scheme, ‘ “harassment” because of sex’
includes sexual harassment and gender harassment. (§ 12940,
subd. (j)(4)(C).)” (Lyle v. Warner Brothers Television Productions
(2006) 38 Cal.4th 264, 277 (Lyle).) To prevail on her hostile work
environment cause of action, Dixon must establish she endured
“harassing conduct that was (1) unwelcome, (2) because of sex or
gender, and (3) sufficiently severe or pervasive to alter the
conditions of [her] employment and create an abusive work
environment.” (Kruitbosch v. Bakersfield Recovery Services, Inc.
(2025) 114 Cal.App.5th 200, 213; see also Bailey v. San Francisco
Dist. Attorney’s Office (2024) 16 Cal.5th 611, 627 (Bailey).)
Moving for summary judgment, defendants only sought to
defeat Dixon’s hostile work environment cause of action on the
ground that the conduct Dixon alleged was insufficiently severe
or pervasive. Opposing the motion, Dixon primarily relied on the
chain of events that began when she saw Caro doing something
with his hands while yelling at Brannock, Dixon’s subordinate.
Brannock, says Dixon, then told Dixon that Caro had grabbed his
genitals while yelling at her, and Dixon encouraged her to report
the incident. Caro later came to Dixon’s office, blocked the exit,
called out his significantly bigger body size than hers, and yelled
at her for encouraging Brannock to report him to HR.
Generally, “conduct that involves or is aimed at persons
other than the plaintiff is considered less offensive and severe
than conduct that is directed at the plaintiff.” (Lyle, supra, 38
16
Cal.4th at p. 284.) But even “[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
has unreasonably interfered with the plaintiff’s work
performance or created an intimidating, hostile, or offensive
working environment.” (§ 12923, subd. (b).) And an “ ‘isolated
incident of harassing conduct may qualify as “severe” when it
consists of “a physical assault or the threat thereof.” ’ ” (Thomas
v. Regents of University of California (2023) 97 Cal.App.5th 587,
608–609, italics omitted, quoting Hughes v. Pair (2009) 46
Cal.4th 1035, 1049.)
In Sheffield v. Los Angeles County (2003) 109 Cal.App.4th
153, 157–158 (Sheffield), a coworker made unwanted romantic
advances towards plaintiff over the course of several days. Then,
while the plaintiff was trying to avoid that coworker, they crossed
paths in a hallway, and the coworker “made a fist which she
slammed into her other palm while at the same time looking at
[plaintiff] and frowning.” (Id. at p. 158.) Evaluating this
scenario, the Court of Appeal concluded that until the hallway
incident, the coworker’s “actions had amounted to boorish or
overbearing behavior,” but “[t]he slamming the fist into the palm
added an aspect of violence that could be found to have changed
the conditions of . . . employment.” (Id. at p. 163.) Because
“violence or the threat of violence [was] added to the equation, a
trier of fact could determine [plaintiff’s] conditions of employment
had been drastically changed and that she was in a hostile work
environment.” (Id. at pp. 163–164.)
Sheffield counsels that Dixon has presented a triable issue
of fact on the severity of the alleged harassment. Missing here is
the fist gesture, but present are an implicit threat — “I’m bigger
17
than you” — combined with blocking Dixon’s exit and screaming
to instill fear. (See Cal. Code Regs., tit. 2, § 11019(b)(2)(B)
[harassment includes “impeding or blocking movement”].) Caro’s
comment may have been made with a wink and a smile, or it may
never have been made at all, but we cannot reject severity as a
matter of law. This is particularly so given Eco Services, in their
respondents’ brief on appeal, has nothing to say against Dixon’s
opening-brief assertion of a threat of violence. Accordingly, we
will reverse summary judgment on the hostile work environment
cause of action.
Eco Services could be viewed as suggesting we nonetheless
affirm on the ground that none of the alleged harassment was
because of Dixon’s gender. But Eco Services’s did not develop
this alternative argument under a separate subheading of their
respondents’ brief. (See Dameron Hospital Assn. v. Progressive
Casualty Ins. Co. (2025) 111 Cal.App.5th 530, 541 [“Each
argument made in an appellate brief must be ‘under a separate
heading or subheading summarizing the point’ ”].) Regardless,
the “because of sex” issue was not briefed in the trial court, and
we decline to consider it. (See Folberg v. Clara G. R. Kinney Co.
(1980) 104 Cal.App.3d 136, 140.)
IV. Punitive Damages
The trial court concluded no prayer for punitive damages
could survive as to any of the causes of action because Dixon had
not shown Eco Services acted with malice, fraud, or oppression.
(Civ. Code, § 3294, subd. (a).) Summary judgment striking
Dixon’s prayer for punitive damages was proper as to each of her
causes of action that were properly dismissed. (See Atalla v. Rite
Aid Corp. (2023) 89 Cal.App.5th 294, 323 [“damages must attach
to a cause of action”].) We must separately consider Dixon’s
18
surviving hostile work environment claim. Although Dixon
argues on appeal, “[i]t should be up to a jury to decide whether
Eco Services acted oppressively and in conscious disregard of
Dixon’s rights when it conditioned Dixon’s continued employment
on her signing the HIPAA release, and when it terminated Dixon’s
employment because she refused” (italics added), Dixon
conspicuously makes no argument that Eco Services should be
subject to punitive damages for Caro’s harassment. It was
Dixon’s burden to show prejudicial error in the trial court’s
punitive damages ruling. She has not.
DISPOSITION
We affirm the judgment except we reverse as to the fourth
cause of action alleging a hostile work environment. The parties
shall bear their own appellate costs.
SCHERB, J.
We Concur:
WILEY, Acting P. J.
VIRAMONTES, J.
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