Houle v. Steinke
Filed 8/7/12 Houle v. Steinke CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION EIGHT
ANNE E. HOULE,
Plaintiff
and Appellant,
v.
ALAN STEINKE et al.,
Defendants
and Respondents.
B233891
(Los
Angeles County
Super. Ct.
No. BC420137)
APPEAL
from a judgment of the Superior Court
of
County. Luis A. Lavin,
Judge. Affirmed.
The Aikins Law
Firm and Lenton Aikins for Plaintiff and Appellant.
Jeffer
Mangels Butler & Marmaro, Louise Ann Fernandez, Barbra A. Arnold and Brett
Greving for Defendants and Respondents.
__________________________
Anne E. Houle appeals from the trial
court’s summary judgment dismissing her employment
discrimination and defamation complaint against respondents Northrop
Grumman Corporation and Northrop Grumman employee Alan Steinke. We affirm.
FACTS AND PROCEEDINGS
Respondent
Northrop Grumman Corporation (Northrop) hired appellant Anne E. Houle in
1993. Following a series of positive job
evaluations and promotions, appellant began working in 2006 in Northrop’s
Advanced Technology Development Center (ATDC).
In 2007, respondent Alan Steinke transferred into ATDC.
Many
of Steinke’s coworkers, including appellant, did not like Steinke. Appellant repeatedly called Steinke a “mole,”
“stinking mole,” and “stinky” behind his back.
Steinke returned his colleagues’ dislike for him. He often stood behind appellant’s desk
breathing hard, and once or twice a week stood behind a male coworker’s desk
waiting for the coworker to acknowledge him.
He often stared at appellant and male coworkers. During a meeting in February 2008, he told
appellant she had a “big mouth” and was “ineffective” in her job. The next month in another meeting, he told
appellant she was “paranoid.” In a
meeting in April or May 2008, he repeated his “big mouth” remark and told
appellant she had a reputation for speaking her mind. And in an August 2008 meeting, he called
appellant a “bitch.”
Appellant
complained to Northrop’s human resources department about Steinke’s calling her
a bitch. A human resources
representative interviewed Steinke, who admitted making the remark and agreed
it was inappropriate. The human
resources department instructed Steinke’s supervisors to “strongly counsel”
Steinke about his language. One
supervisor reprimanded Steinke, and another supervisor told Steinke his
language was “inappropriate” and “instructed him never to speak like that to a
coworker.”
In
November 2008, Northrop transferred appellant to the Master Scheduling
Department. The transfer came four
months after appellant had requested to transfer out of the ATDC to get away
from Steinke, but the center’s managers turned her down at the time because
they continued to need her services.
Appellant’s position in the Master Scheduling Department provided the
same title, duties, “job code,” “market rate structure,” and salary
($85,571.20) as her position in the ATDC.
In her new position, appellant spent half her time supporting the ATDC
and the other half supporting the Master Scheduling Department.
Nine
months later in August 2009, appellant filed her Fair Employment and Housing
complaint against respondents Northrop and Steinke. She alleged five causes of action involving
retaliation, and failure to prevent discrimination, harassment, and retaliation. (Gov. Code, § 12940, subds. (a), (j)(1), (k),
(i), & (j)(3).) She also alleged a
cause of action for defamation for Steinke’s calling her a “big mouth,”
“paranoid,” and not good at her job.
About
a month after appellant filed her complaint, she asked in September 2009 that
Northrop let her telecommute part time to allow her to stay home to care for
her special needs son. Northrop approved
her request that month. “Happy” in her
new position, appellant’s telecommuting schedule worked well for her. But telecommuting was incompatible with her
continuing to provide support to the ATDC because the center’s work involved a
classified military program, and government security rules required that all of
the center’s work be done on-site. The
government further required that employees who worked on the center’s
classified programs have “special government ‘access,’ ” and that Northrop
“de-access” employees when they stopped working on classified programs. Because of the government’s rules, Northrop
“de-accessed” appellant in December 2009.
Appellant complains that Northrop leap-frogged her to the top of the
“de-accessing” list ahead of other employees who had been on the list
longer. Appellant’s de-accessing did not
reduce her salary, but she asserts it limited her opportunity for future
promotion.
Following
her de-accessing, appellant attempted to amend her complaint to add allegations
about de-accessing, but the court rejected her attempt. In November 2010, appellant filed a separate
complaint alleging her de-accessing was retaliatory. Appellant does not raise on appeal any cogent
legal argument that the court’s refusal to permit her to amend her complaint
was error, although in a passing reference she does miscite
636 F.3d 544 for the proposition that the court’s ruling was error. That decision stands for the proposition that
an employer’s lack of even-handedness in applying security rules to employees
may give rise to an inference of discrimination. (Id.
at p. 555.) But that proposition is
not before us at this stage of appellant’s two-complaint litigation against
Northrop because the de-accessing allegations are not part of the complaint at
issue here. As the pleadings determine
the scope of issues a party moving for summary judgment must address, we do not
discuss further appellant’s de-accessing allegations. (Nieto
v. Blue Shield of California Life & Health Ins. Co. (2010)
181 Cal.App.4th 60, 74; Government
Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98, fn.
4.)
In
December 2010, respondents moved for summary judgment. They asserted they had not taken any action
against appellant because of her gender or sex.
They also argued Northrop’s workplace was not a hostile work
environment, and appellant did not suffer any adverse employment action. Finally, they asserted that Steinke’s
allegedly defamatory statements were non-actionable opinion and appellant’s
defamation cause of action was untimely.
The
court granted summary judgment for respondents.
It noted that appellant’s failure to properly dispute respondents’ facts
resulted in appellant’s failing to create any triable issue of material
fact. The court found that appellant’s
gender and sex discrimination, harassment, and retaliation claims failed
because respondents’ conduct was not sufficiently severe or pervasive to alter
the conditions of appellant’s employment.
While noting the offensiveness of Steinke’s “bitch” comment, the court
deemed the remark to have been too isolated to be actionable. Additionally, the court found that Steinke
stared at, and stood behind the desk of, not only appellant, but one or more
male co-workers. Finally, the court
found appellant’s defamation claims were untimely because she had filed her
complaint more than one year after Steinke uttered them. The court entered judgment for
respondents. This appeal followed.
STANDARD OF REVIEW
“ ‘A
trial
court properly grants a motion for summary judgment only if no issues of
triable fact appear and the moving party is entitled to judgment as a matter of
law. [Citation.] The moving party bears the burden of showing
the court that the plaintiff “has not established, and cannot reasonably expect
to establish, a prima facie case . . .
.” [Citation.]’ ‘[O]nce a moving defendant has “shown that
one or more elements of the cause of action, even if not separately pleaded,
cannot be established,” the burden shifts to the plaintiff to show the
existence of a triable issue; to meet that burden, the plaintiff “may not rely
upon the mere allegations or denials of its pleadings . . . but, instead, shall
set forth the specific facts showing that a triable issue of material fact
exists as to that cause of action. . . . .”
[Citation.]’ [Citation.]” (Lyle
v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274 (
1.
No Triable
Issue of Fact in Support of Gender-based Claims
Appellant
claims Northrop permitted a hostile work environment by allowing Steinke to
harass her because of her gender. The
elements of a claim for sexual harassment or hostile work environment are: “(1) plaintiff belongs to a protected
group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the
harassment complained of was based on sex; (4) the harassment complained of was
sufficiently pervasive so as to alter the conditions of employment and create
an abusive working environment; and (5) respondeat superior.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d
590, 608.) To prevent sexual harassment
law from expanding into a “general civility code,” the harassing conduct must
be sufficiently persistent and offensive that it would affect any reasonable
person’s well-being and ability to perform his or her job. “The conduct must be extreme: ‘ “simple teasing,” offhand comments,
and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the “terms and conditions of employment.” ’ [Citation.]
The harassment cannot be occasional, isolated, sporadic, or trivial; the
plaintiff must show a ‘ “concerted
of harassment of a repeated, routine or a generalized nature.” ’ [Citation.]
[¶] Thus, for example,
‘ “mere utterance of an . . . epithet which engenders
offensive feelings in a employee,” [citation] does not sufficiently affect the
conditions of employment . . . .’
[Citation.] Rather,
‘ “[s]exual harassment creates a hostile, offensive, oppressive, or
intimidating work environment and deprives its victim of her statutory right to
work in a place free of discrimination, when the sexually harassing conduct
sufficiently offends, humiliates, distresses or intrudes upon its victim, so as
to disrupt her emotional tranquility in the workplace, affect her ability to
perform her job as usual, or otherwise interferes with and undermines her
personal sense of well-being.” ’
[Citation.]” (
(2007) 152 Cal.App.4th 1367, 1377-1378.)
A court may decide as a matter of law whether conduct is sufficiently
pervasive to support a claim. (
p. 292.)
Here,
Steinke name-called appellant, labeling her a “big mouth” and “paranoid,”
derided her as ineffective at her job with a reputation for speaking her mind,
and one time called her a bitch. He also
stared at her and stood behind her desk, conduct he also directed toward men. But vulgarity, coarseness, and rudeness are
not enough by themselves to sustain a cause of action for discrimination,
harassment, or hostile work environment.
The misconduct must alter the conditions of employment. Workplace anti-discrimination laws are
“ ‘not
a “civility code” and [are] not designed to rid the workplace of
vulgarity. [Citation.] While [those laws] prohibit[] harassing
conduct that creates a work environment that is hostile or abusive on the basis
of sex, it does not outlaw sexually coarse and vulgar language or conduct that merely
offends.’ ” (Lyle, supra, 38 Cal.4th at p. 295.)
Appellant’s
gender-based causes of action fail because Steinke’s misconduct was not
sufficiently pervasive to alter the conditions of appellant’s employment, and
even if his misconduct were pervasive, appellant offers no link between her
gender and Steinke’s acts. Appellant
testified in her deposition “I don’t know” why Steinke harassed
her. Steinke never asked her out
socially, never touched her, and never inquired about her personal life. And other than her one-time report to
Northrop’s human resources department when Steinke called her a “bitch,”
appellant did not complain to Northrop that Steinke was mistreating her because
of her gender.
title="">[2] She testified in her deposition: “Q. Did you ever tell anyone at Northrop that you
thought you were being sexually harassed
A. Not that I recall, using the
word ‘sexually.’ Q. Did you ever tell anyone at Northrop that you
thought Mr. Steinke was doing these things to you because of your sex as
opposed to the fact that you criticized him
A. I don’t think I ever made that
statement.”
Appellant
contends the court granted summary judgment because she did not use the correct
“nomenclature.” The thrust of her
contention appears to be that the court penalized her because she could not
“specifically place the correct nomenclature upon [Steinke’s] intentions,”
which she characterizes as the court’s requiring her to utter the right “legal
terms or buzzwords” or else lose her lawsuit.
In the same vein, she asserts the court deemed her deposition admission
that she did not know why Steinke mistreated her as dispositive for dismissing
her claims; according to her, the court required her “to know exactly that she was discriminated [against] because of her
gender/sex.” Appellant is mistaken.
The court understood appellant alleged gender and sex discrimination
regardless of whatever “nomenclature” she used.
The court rejected those allegations, however, because appellant offered
no evidence that Steinke treated her differently because she was female, given
that Steinke acted similarly towards males.
The court highlighted for appellant the Achilles heel in her case when
it asked her to describe the link between her gender and Steinke’s
misconduct. The court told appellant:
“What I’m saying is I’m struggling with the issue with the nexus between the .
. . admittedly boorish behavior by Mr. Steinke, and whether that boorish
behavior was based on gender. . . . A
nexus between the harassment and the fact that your client was female and Mr.
Steinke was male.”
title="">[3]
The
court did not, contrary to appellant’s contention, deem as dispositive
appellant’s deposition testimony that
she did not know why Steinke acted as he did.
Rather, the court suggested that the admission was one fact which tended
to show the absence of any triable issue.
In doing so, the court gave appellant the benefit of the doubt, because
case law would have supported the court’s summary adjudication turning on that
fact alone. Indeed, during the summary
judgment hearing the court cited that case law when it recalled
page 1378. In that decision, the
plaintiff failed to present a triable issue of material fact when she answered
“no” and “I don’t know” during her deposition whether the defendant’s offensive
behavior was based on the plaintiff’s gender.
The Jones court held “The absence of
the nexus between the alleged harassment and [the plaintiff’s] gender negates
her . . . claim.” (Jones, at p. 1378.)
The
trial court correctly found no triable issues of material fact exist to support
appellant’s gender-based claims.
2.
No Triable Issue of Fact in
Support of Retaliation
Appellant
claims her transfer to the Master Scheduling Department in November 2008 was an
adverse employment action constituting retaliation. Retaliation for what is not exactly
clear. For lack of anything else in the
record, we will assume the transfer was retaliation for appellant’s having
complained about Steinke (despite Northrop’s having vindicated appellant’s
complaint when it reprimanded Steinke).
transfer was retaliation since it seemingly fulfilled appellant’s request to
get away from Steinke.
name="_ftnref5" title="">[5] Be that as it may, appellant contends her
transfer to the Master Scheduling Department was an adverse employment action.
Appellant
asserts one must look to the totality of an employment decision to determine
whether the decision is adverse to an employee.
Her assertion is not quite right.
A decision is adverse when it “materially affects the terms,
conditions, or privileges of employment,” and we must assess those workplace
changes in their totality instead of in piece-by-piece isolation from one
another. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1036,
1051.)
Appellant
contends her transfer to the Master Scheduling Department was adverse because
it required her to assume “two jobs,” her implication being that two jobs
imposed “double duty” requiring her to work harder. The record does not support her
contention. Her work week remained the
same length after her transfer, the only change being that she divided her time
equally between two departments and two managers. Her brief states that two Northrop managers
support her claim, but neither stated that her transfer worsened her working
conditions or made her work longer or harder.
Appellant
also contends the transfer to Master Scheduling moved her to a “dead end”
position. (Patten v. Grant Joint Union High School Dist. (2005)
134 Cal.App.4th 1378, 1387 [lateral transfer can be adverse if it affects
employee’s opportunity for career advancement].) We disregard this contention because the
court sustained respondents’ objection to appellant’s evidence in support of
it, a ruling that appellant acknowledges but then ignores: “Appellant contend[s] that the transfer . . .
was in fact a demotion, a ‘dead-end’ position as a scheduler. (This part of [appellant’s] Declaration was
erroneously sustained, Plaintiff believes, by the trial court.)” Because she does not present any argument
that the court erred in sustaining respondents’ objection, she waives the point
on appeal.
The
trial court correctly found no triable issues of material fact exist to support
appellant’s retaliation claim.
3.
No Triable
Issue in Support of Defamation
Appellant’s
response to respondents’ separate statement of undisputed facts established
that her cause of action for defamation rested on Steinke’s calling her a “big
mouth” and “paranoid” and his accusing her of not doing her work and being
inefficient at her job. During the
hearing on respondents’ motion for summary judgment, the court observed that
the purportedly defamatory statements occurred more than one year before
appellant filed her complaint in August 2008, and were therefore untimely. Scrambling to save her cause of action,
appellant identified for the first time a prediction by Steinke to a co-worker
that appellant would not be interviewed for a job opening posted in Northrop’s
on-line employment board. Although
appellant did not include in her response to respondents’ separate statement
Steinke’s assessment that she was unqualified for the job opening,
Steinke’s following deposition testimony in her appellate brief (her full
quotation is much longer; we repeat only its gist): “Q.
Did you tell Matt [Jasinski] that [appellant] was not going to be interviewed
for that position. A. I did.
Q. How did you know that
A. I’m not clear. . . I think Roger told me, or there was a time
when they delegated to me permissions to look at [Grumman’s on-line career
website for posting and applying for job openings].”
Appellant
contends Steinke’s prediction was defamation per se because it impugned her
professional qualifications. Her
contention fails. Opinions are not
defamatory when they involve no provable facts, even if those opinions involve
another’s job qualifications. Unless one
falsely accuses “an employee of criminal conduct, lack of integrity, dishonesty,
incompetence or reprehensible personal characteristics or behavior [citation],
it cannot support a cause of action for libel.
This is true even when the employer’s perceptions about an employee’s
efforts, attitude, performance, potential or worth to the enterprise are
objectively wrong and cannot be supported by reference to concrete, provable
facts.” (Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 965;
see also Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th
1137, 1153 [alleging worker’s “poor performance” is not defamatory because it
is opinion]; accord, Mamou v. Trendwest
Resorts, Inc. (2008) 165 Cal.App.4th 686, 728 [statement employee was
dishonest and unethical could be libelous if speaker implied knowing
undisclosed supporting facts].)
Steinke’s prediction went to Northrop’s response to appellant’s job
application. Steinke did not accuse
appellant of criminality, dishonesty, or other reprehensible conduct. And even if his prediction could be understood
as his implying she was unqualified for the job, one’s opinion about a
colleague’s job performance is not actionable.
(Gould, at p. 1153.)
The
trial court correctly found no triable issues of material fact exist to support
appellant’s defamation claim.
The judgment is affirmed.
Respondents to recover their costs on appeal.
RUBIN,
J.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.
name="_ftn1" title="">[1] Appellant
also alleged, but has not pursued on appeal, causes of action for discrimination
based on marital status (Gov. Code, § 12940, subd. (a)(3)); negligent
hiring, supervision, training, discipline, and retention; intentional and
negligent infliction of emotional distress; violation of the Unruh Act; and
“tort in essence.”
name="_ftn2" title="">[2] We
accept that the insult “bitch” especially stings when hurled against a
woman. (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 119, fn. 3
[word has particular import for woman],
but see Lyle, supra, 38 Cal.4th
at p. 282 [“it has been cautioned the term ‘bitch’ is not so
sex-specific and derogatory that its mere use necessarily constitutes
harassment because of sex”].) But that
word’s sting does not overcome a fatal flaw in appellant’s case, which is the
missing gender-component to Steinke’s other misconduct. (See Jones v. Department of Corrections and Rehabilitation, supra,
152 Cal.App.4th at pp. 1377-1378 [“ ‘ “mere utterance of an . . . epithet which engenders
offensive feelings in a employee,’ does not sufficiently affect the conditions
of employment” ’ ”].)
