Fuentes v. AutoZone

Filed 9/10/07 Fuentes v. AutoZone CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Elizabeth A. Grimes, Judge. Affirmed in part, reversed in part, and remanded.

Rastegar & Matern, Matthew J. Matern, Sandra M. Falchetti, Paul J. Weiner and Caroline H. Lee for Plaintiff and Appellant.

Littler Mendelson, Jeremy A. Roth, Gregg C. Sindici and Tina M. Fryar for Defendant and Respondent.

_____________________

Marcela Fuentes appeals from summary judgment in favor of her employer, AutoZone, Inc. (defendant, sometimes referred to as AutoZone) on her complaint for sexual harassment, intentional infliction of emotional distress and slander. Plaintiff argues that she presented evidence that her individual harassers were supervisors and therefore defendant is strictly liable. Defendant argues that since the undisputed facts demonstrate that the harassers were coworkers, it is liable only if it failed to take immediate and appropriate corrective action once it knew of the harassment. The parties also contest whether the harassment was severe or pervasive. We find triable issues of material fact precluding summary judgment as to whether the individual harassers were supervisors and as to whether the harassment was severe. Plaintiff also appeals from the denial of her motions for new trial and for relief pursuant to Code of Civil Procedure section 473. We need not and do not reach these further arguments in light of our reversal of the summary judgment as to the first cause of action for sexual harassment.

We conclude that defendant is not entitled to summary adjudication on the cause of action for intentional infliction of emotional distress because it is not superfluous to the slander cause of action. Defendant is entitled to summary adjudication on the slander cause of action because the harassers were not acting within the scope of their employment in making the allegedly defamatory statements about plaintiff. Defendant is not entitled to summary adjudication on the availability of punitive damages on the sexual harassment claim because it did not negate any issue of material fact as to whether defendant ratified the conduct by the employees alleged to have committed it.

FACTUAL AND PROCEDURAL SUMMARY

It is undisputed that plaintiff worked as a part-time cashier for defendant, which sells auto parts. (Her job title was customer service representative.) She worked at the Florence and Normandie store until June 2003. During the relevant period, the store manager was Juan Vaca, the assistant store manager was Melvin Garcia, and the parts sales manager was Gonzalo Carrillo. Vaca went on leave May 16, 2003, making Garcia acting store manager. A major issue on appeal is whether Garcia or Carrillo were supervisors or managers within the meaning of the relevant statute, Government Code section 12940, subdivision (j) (a part of the California Fair Employment and Housing Act (FEHA), Gov. Code,  12900 et seq.).[1]

From May 16 to June 19, 2003, when plaintiff was transferred to another store, Garcia was acting manager. During that period, plaintiff was told by coworkers that Garcia had circulated rumors that she had herpes. She also submitted evidence that Garcia forced her to twirl around in order to show her buttocks to customers. Plaintiff testified at deposition that Garcia threatened to fire her if she talked about his starting the herpes rumor, claiming that he had a photo of her with a coemployee, Ricardo Jimenez, which established a violation of the company dating policy. Plaintiff also based her harassment claim on Carrillos conduct during the same period. This included asking her why she did not work as a stripper to earn better money; the herpes rumor; making a bet with another employee that plaintiff and Jimenez were having sex; telling Jimenez to wash his dick because of his sexual contact with plaintiff; and asking Jimenez repeatedly whether he was sleeping with plaintiff.

It is undisputed that in June 2003, plaintiff complained to Carrillo about Garcias conduct. Carrillo reported the complaint to the office of the regional manager, Edward Beltran, the next day. The parties dispute whether defendant took prompt and appropriate corrective action from that point. Plaintiffs last day of work at the store was June 19, 2003, when she was transferred to another store by Beltran. She had no further interaction with Garcia or Carrillo and, insofar as the record before us shows, she continues to work for defendant. Garcia and Carrillo were fired on August 9, 2003 for violation of internal company policy, including rules against inappropriate comments and unprofessional behavior.

In January 2004, plaintiff filed complaints with the Department of Fair Employment and Housing against defendant and Garcia, alleging sexual harassment by Garcia. The complaints did not mention Carrillos conduct and Carrillo was not named as a harasser in the complaints. After receiving right to sue letters, plaintiff sued defendant, as well as Garcia and Carrillo individually, for sexual harassment in violation of FEHA, intentional infliction of emotional distress, and slander. She sought compensatory and punitive damages and attorney fees.[2]

Defendant moved for summary judgment.[3] There is no indication in the record on appeal that either Garcia or Carrillo joined in the motion.[4] Plaintiff opposed the motion and filed two versions of her separate statement of disputed facts, labeling the second a corrected copy. Issues arose concerning the timeliness of plaintiffs opposition papers and her failure to comply with format requirements in several respects. Plaintiff also sought a continuance of the hearing pursuant to Code of Civil Procedure section 437c, subdivision (h) in order to complete discovery necessary to her opposition.

The trial court denied the request for continuance on the ground that plaintiff failed to specify what facts could be discovered and provided no explanation for her failure to complete discovery. Plaintiff filed her opposition on April 11, 2005. The court noted that the discovery cutoff date was April 22, 2005, and that plaintiff had not requested a continuance of the trial or discovery cutoff dates. The court found merit in many of defendants objections to the untimeliness and procedural deficiencies of plaintiffs opposition papers: This court finds plaintiffs unexplained, unjustifiable violation of the rules warrants granting of the motion in favor of the moving party. However, the court will address the merits of the motion, because the court would also grant the motion on the merits.[5] Plaintiffs evidentiary objections were overruled. The trial court sustained defendants objections to rough drafts of transcripts of Edward Beltran and Ricardo Bonilla.

The trial court concluded that defendant was entitled to summary adjudication of the first cause of action for sexual harassment on the merits: The undisputed facts before the court show that plaintiff endured indignities, insults, and office gossip, for about a month, that do not as a matter of law amount to actionable sex harassment. . . .  [T]he undisputed facts here demonstrate there is no material factual dispute as to whether plaintiff suffered sex discrimination or was subjected to a hostile work environment within the meaning of the law. Certainly, FEHA does not create a duty on the part of a retail employer to prevent or protect its employees against ordinary flirting by customers, however unwelcome the flirtation may be, . . .  and plaintiff has not presented evidence of anything beyond ordinary flirtation.

The court went on to say that even if there was a triable issue of material fact as to whether plaintiff was subjected to actionable sex harassment, the undisputed facts also demonstrate that neither Garcia or Carrillo were supervisors as defined by FEHA, and accordingly, defendant is not strictly liable for their behavior toward plaintiff. A defendant is not liable for sex harassment by a nonsupervisory employee unless it knew or should have known of their behavior and failed to take reasonable steps to prevent it and to protect plaintiff. The court found that [t]he undisputed facts demonstrate that defendant had neither actual nor constructive knowledge of the behavior of Garcia and Carrillo until plaintiff complained, and defendant then acted reasonably to protect plaintiff and to investigate her complaint.

The trial court also found defendant was entitled to summary adjudication of the cause of action for intentional infliction of emotional distress and the third cause of action for slander because the conduct of Garcia and Carrillo was outside the course and scope of their employment. Finally, the court found that undisputed facts showed that neither Garcia nor Carrillo was an officer, director, or managing agent of defendant, a necessary finding for an award of punitive damages. Summary judgment in favor of defendant was granted.

The trial court denied plaintiffs motions for new trial and for relief pursuant to Code of Civil Procedure section 473.[6] This appeal followed.

DISCUSSION

I

The standards applicable to summary judgment are well established and require little discussion. 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. (Code Civ. Proc., 437c, subd. (c); see also id., 437c, subd. (f) [summary adjudication of issues].) 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.] (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460 (Miller).) [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 . . . . [Citations.] (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.) [] On appeal from the granting of a motion for summary judgment, we examine the record de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party. [Citation.] (Miller, supra, 36 Cal.4th at p. 460.) (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274 (Lyle).)

II

A major issue on appeal is whether the trial court correctly concluded there were no triable issues of material fact as to whether Garcia and Carrillo were plaintiffs supervisors. As we explain, this question significantly impacts the burden placed on plaintiff.

[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).) These prohibitions represent a fundamental public policy decision regarding the need to protect and safeguard the right and opportunity of all persons to seek and hold employment free from discrimination. [Citations.] (Lyle, supra, 38 Cal.4th at p. 277.)

An employer is strictly liable under FEHA for sexual harassment by a supervisor. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1034 (Health Services).) The statute provides a broad definition: Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment. ( 12926, subd. (r), italics added.)

A negligence standard applies to harassment by a coworker: It shall be an unlawful employment practice . . . . [] [F]or an employer . . . because of . . . sex . . . 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. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, . . . where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. . . .  An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment. ( 12940, subd. (j)(1), italics added; see Health Services, supra, 31 Cal.4th at p. 1041.) Agency principles come into play only where the harasser is not a supervisor. (Ibid.)

In the context of sexual harassment, FEHA defines employer to include any person acting as an agent of an employer, directly or indirectly. ( 12940, subd. (j)(4)(A).) Alternatively, FEHA makes it a separate unlawful employment practice for an employer to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. ( 12940, subd. (k).)

In Chapman v. Enos (2004) 116 Cal.App.4th 920, an investigator for a county district attorneys office sued the county, Enosthe deputy district attorney who allegedly harassed her and directed her workand others for sexual harassment and retaliation under FEHA. The plaintiff conceded that Enos did not have the authority to hire, fire, promote or transfer her. (Id. at p. 929.) Instead, she argued that he was her supervisor because he was responsible for directing her work. The court found evidence that Enos was plaintiffs supervisor within the meaning of FEHA because he directed her day-to-day duties to conduct investigations and trial preparation, and outlined her role in meetings and trainings. In addition, the chief investigator testified that in order to evaluate plaintiff, he would obtain information from Enos; plaintiff always cleared time off with Enos before it was approved by the chief investigator; and plaintiff believed Enos was her supervisor. (Id. at p. 930.)

The Chapman court also looked to the Equal Opportunity Commissions construction of title VII: Also useful here, although not controlling, is the Equal Employment Opportunity Commissions enforcement guidance construing title VII, which answers the question of who qualifies as a supervisor: An individual qualifies as an employees supervisor if: [] . . . [] (b) the individual has authority to direct the employees daily work activities. (EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 1999) III.A.) The guide also explains that a supervisor who does not have actual authority over an employee may nonetheless create vicarious liability for the employer if the employee reasonably believed that the harasser had such power. The employee might have such a belief because, for example, the chains of command are unclear. Alternatively, the employee might reasonably believe that a harasser with broad delegated powers has the ability to significantly influence employment decisions affecting him or her even if the harasser is outside the employees chain of command. (Id. at III.B., fn. omitted.) (Chapman v. Enos, supra, 116 Cal.App.4th at p. 930, fn. 10.)

Applying the mandate that FEHA provisions are to be interpreted broadly, the court concluded that it was error to instruct the jury that to qualify as a supervisor under the statute, a person must be fully accountable and responsible for the employees performance and work product. The error significantly restricted the class of employees subject to liability for sexual harassment contrary to the FEHA. (Chapman v. Enos, supra, 116 Cal.App.4th at p. 931.)

We turn to the application of these principles to the evidence presented on summary judgment.

Plaintiff argues that both Garcia and Carrillo were her supervisors, thus exposing defendant to strict liability if their conduct was sufficiently harassing. In support of the motion for summary judgment, defendant submitted a declaration by Garcia. He said that while serving as acting store manager during Vacas leave, he reported to Edward Beltran, the district manager. Garcia described his responsibilities: In my capacity as Assistant Store Manager/Acting Store Manager, I monitored the day-to-day business activities of the store (e.g., the stores sales performance) and reported to the District Manager regarding those activities. I also ensured that the stores visual image was an organized and tidy one by making certain that retail items were maintained in an orderly and organized fashion. Garcia said that he had no authority to hire, fire, promote, demote, transfer or increase or decrease the pay of other store employees.

Defendant also submitted the declaration of Kerry Williams, its regional manager in Los Angeles during the relevant period. She supervised district managers and store managers, including managers at the store where the alleged harassment occurred. Williams explained that district managers are responsible for hiring and firing employees, including store managers. They are responsible for terminating employees for performance issues, including sexual harassment, cash shortages and other issues, subject to the approval or recommendation of AutoZoner Relations at defendants corporate headquarters. The district managers have the authority to promote, demote, transfer, and discipline store employees, subject to the approval or recommendation of AutoZoner Relations.

Williams described the authority of assistant store managers who are temporarily acting as store manager, such as Garcia: Some AutoZone stores have an Assistant Store Manager who is responsible for assisting the Store Manager with his/her duties as requested and may assist the Store Manager in setting work schedules. If the Store Manager is temporarily unavailable, the Assistant Store Manager may function as an Acting Store Manager. In this capacity, the Assistant Store Manager/Acting Store Manager continues performing his/her day-to-day duties and monitors the day-to-day activities of the store. Additionally, in the Store Managers absence, he/she will communicate information to store personnel from the District Mangers office, the Regional Managers office and AutoZoner Relations as requested. The Assistant Store Manager/Acting Store Manager will also gather information from store personnel as requested by the District Mangers office, the Regional Managers office and AutoZoner Relations. Although an Assistant Store Manager may temporarily serve as an Acting Store Manager, he/she still has no authority to hire, fire, promote, demote, or transfer other store employees. Even if an Assistant Store Manager/Acting Store Manager recommends to the District Manager that such action be taken, the actual decision must be made by the District Manager and approved by AutoZoner Relations and the District Manager will implement any of the foregoing actions.

Williams also described the role of parts sales managers [PSMs], such as Carrillo. PSMs are non-exempt, hourly wage employees whose primary duties consist of assisting customers with purchasing auto parts, cashiering, inventory, and carrying out routine tasks related to store support as need[ed] at the direction of the Assistant Store Manager, Store Manager, and/or District Manager. PSMs do not have the authority to hire, fire, promote, demote, or transfer other store employees. PSMs do not have the authority to make work schedules for other employees without the approval of the Store Manager. PSMs may report and prepare documentation of violations of company policies, such as dress code violations, absenteeism or cash shortages, through written corrective actions to the Store Manager or at the Store Managers request. However, PSMs lack the authority to discipline store employees. Additionally, PSMs have limited monitoring functions of a ministerial nature and may request assistance from other employees to perform routine tasks related to inventory, sales, cashier, or other store support when needed.

Plaintiff argues that Garcia and Carrillo were supervisors as defined by FEHA because she worked under their active direction, and was subjected to evaluation by both men. Plaintiff also points to evidence that she was disciplined by both Garcia and Carrillo, who wrote her up for dress-code violations.

In support of her position, plaintiff cites Garcias deposition testimony that after Vaca left on a leave of absence, Garcia was in charge of the store as acting store manager. His duties as acting store manager were to run the business and meet sales goals. He was responsible for inventory. Garcia made recommendations for promotions to the district manager, who had final approval. His recommendation was followed. Garcia testified that he directed Carrillo to write plaintiff up for a dress code violation. In addition, Garcia himself wrote up many employees, including plaintiff. He did so without consulting the district manager. In disciplining plaintiff on one occasion (for a dress code violation), Garcia warned her further disciplinary action will be taken if this problem continues up to and including termination. In one instance, after Carrillo sent another employee home, the employee complained to Garcia. Garcia spoke to Carrillo and told him not to send employees home because they might be needed in the store.

Carrillo testified that Garcia was his direct supervisor. He received directions and orders regarding the running of the store from Garcia. Carrillo disagreed with Garcias implementation of the dress code because it was harsh, but he followed Garcias direction to impose discipline. Based on a complaint by plaintiff, Carrillo inferred that Garcia had instructed her to ring up customers for items without their knowledge, which was contrary to the training Carrillo had received.[7]

Defendants evidence that Garcia and Carrillo were not supervisors under FEHA focused on their lack of authority to hire, fire, lay off, recall, promote, demote, transfer, suspend or increase or decrease the pay of other employees. But as we have discussed, the definition of supervisor under FEHA goes beyond such authority and addresses the responsibility to direct the plaintiff. Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment. ( 12926, subd. (r), italics added.)

The Garcia and Williams declarations, together with the evidence submitted by plaintiff, establish that Garcia, as acting store manager, had responsibility for the daily operation of the store. Based on the statement that the parts sales manager cannot schedule work for other employees without approval of the store manager, we infer that the store manager does have that authority. Williamss description of the PSM position held by Carrillo reveals that he had the authority to request assistance from other employees to perform routine tasks related to inventory, sales, cashier, or other store support when needed. This raises a triable issue of material fact as to whether Carrillo had the authority to assign or direct plaintiff within the meaning of section 12926, subdivision (r).

Under section 12926, subdivision (r) and Chapman v. Enos, supra, 116 Cal.App.4th 920, we conclude there are triable issues of material fact as to whether Garcia and Carrillo were supervisors under FEHA, which would subject defendant to strict liability for sexual harassment. We turn to the question of whether the evidence demonstrates that the conduct by Garcia and Carrillo constitutes hostile environment sexual harassment.

III

The trial court ruled that defendant was entitled to summary adjudication of the sexual harassment cause of action on the merits, finding that plaintiff had not presented evidence of anything beyond ordinary flirtation. We disagree with this characterization of the evidence, and find triable issues of material fact precluding summary judgment on this cause of action.

In sexual harassment cases, California courts frequently look to federal title VII decisions in interpreting FEHAs prohibitions against sexual harassment. (Miller, supra, 36 Cal.4th at p. 463.) The Supreme Courts of California and United States agree that to prevail, an employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex. (Lyle, supra, 38 Cal.4th at pp. 278-279, quoting Miller, supra, 36 Cal.4th at p. 462, see also Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130 (Aguilar), Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21 (Harris).) The Supreme Court in Lyle quoted Harris: [A] workplace may give rise to liability when it is permeated with discriminatory [sex-based] intimidation, ridicule, and insult, [citation], that is sufficiently severe or pervasive to alter the conditions of the victims employment and create an abusive working environment[.] (Harris, supra, 510 U.S. at p. 21.) (Lyle, supra, 38 Cal.4th at p. 279.)

To establish a hostile environment claim, the plaintiff must show that gender is a substantial factor in the discrimination, and that if the plaintiff had been a man she would not have been treated in the same manner. [Citation.] (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 348 (Accardi); see Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 1001 [quoting Accardi].) Accordingly, it is the disparate treatment of an employee on the basis of sexnot the mere discussion of sex or use of vulgar languagethat is the essence of a sexual harassment claim. (Lyle, supra,38 Cal.4th at p. 280.)

The test for hostile environment sexual harassment contains both objective and subjective elements: To be actionable, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. (Faragher v. Boca Raton (1998) 524 U.S. 775, 787; see Harris, supra, 510 U.S. at pp. 21-22; Beyda v. City of Los Angeles [(1998)] 65 Cal.App.4th [511,] 518-519.) That means a plaintiff who subjectively perceives the workplace as hostile or abusive will not prevail under the FEHA, if a reasonable person in the plaintiffs position, considering all the circumstances, would not share the same perception. Likewise, a plaintiff who does not perceive the workplace as hostile or abusive will not prevail, even if it objectively is so. (Lyle, supra, 38 Cal.4th at p. 284.)

California courts have adopted the title VII standard for hostile work environment sexual harassment claims under FEHA. A plaintiff must show she was subjected to sexual advances, conduct, or comments that were (1) unwelcome [citations]; (2) because of sex [citation]; and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment [citations]. In addition, she must establish the offending conduct was imputable to her employer. [Citation.] (Lyle, supra, 38 Cal.4th at p. 279.)

Several categories of harassment have been recognized in California. In the context of sex discrimination, prohibited harassment includes verbal, physical, and visual harassment, as well as unwanted sexual advances. (Cal. Code Regs., tit. 2,  7291.1, subd. (f)(1).) In this regard, verbal harassment may include epithets, derogatory comments, or slurs on the basis of sex; physical harassment may include assault, impeding or blocking movement, or any physical interference with normal work or movement, when directed at an individual on the basis of sex; and visual harassment may include derogatory posters, cartoons, or drawings on the basis of sex. (Cal. Code Regs., tit. 2, 7287.6, subd. (b)(1)(A), (B) & (C); see Miller, supra, 36 Cal.4th at p. 461.) (Lyle, supra, 38 Cal.4th at p. 280.)

Courts have struggled to identify the point at which workplace conduct crosses the line from ordinary banter and interplay to actionable harassment. All the circumstances in which the alleged harassment occurred must be taken into account. [T]he prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the conditions of the victims employment and create a hostile or abusive work environment. (Oncale [v. Sundowner Offshore Services, Inc. (1998)] 523 U.S. [75,] 81 [Oncale].) [W]hether an environment is hostile or abusive can be determined only by looking at all the circumstances [including] 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. (Harris v. Forklift Systems, Inc., supra, 510 U.S. at p. 23.) (Miller, supra, 36 Cal.4th at p. 462.) Therefore, to establish liability in a FEHA hostile work environment sexual harassment case, a plaintiff employee must show she was subjected to sexual advances, conduct, or comments that were severe enough or sufficiently pervasive to alter the conditions of her employment and create a hostile or abusive work environment. (Miller, supra, 36 Cal.4th at p. 462; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610; accord, Oncale, supra, 523 U.S. at p. 81; Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 67.) Although annoying or merely offensive comments in the workplace are not actionable, conduct that is severe or pervasive enough to create an objectively hostile or abusive work environment is unlawful, even if it does not cause psychological injury to the plaintiff. (Harris, supra, 510 U.S. at pp. 21-22.) (Lyle, supra, 38 Cal.4th at pp. 282-283, italics added.)

Plaintiff cites evidence of physical touching by Garcia, as well as sexually explicit and hostile statements by both Garcia and Carillo as the basis for her hostile environment claim. Mindful that we must consider all the circumstances of the alleged harassment (Lyle, supra, 38 Cal.4th at page 283) we examine each category of conduct before considering the cumulative impact of the evidence.

A. Physical Exploitation and Humiliation of Plaintiff

The most odious incidents cited by plaintiff occurred when Garcia required her to display her body to customers in order to boost sales. Plaintiff testified at deposition that Garcia physically turned her while asking her to show her buttocks to customers. Plaintiff said, [W]ell, he grabbed me by my hand and spin me and said, Turn around and he was talking to me and to the customers at the same time, and then the customers were like whistling, and they were talking to him in Spanish, and he would say like, Just turn around so you can sell more. Plaintiff testified that this happened more than twice. Later in her deposition, plaintiff elaborated on what Garcia said, Just showjust show your butt to them. This isthis is how we can sell more. Then he said, If me and you was to own this store, we would be rich because you sell a lot. All you have to do is just turn around and show your butt to them, and theyll buy anything that you give them. Coworker Guadalupe Garcia witnessed one of these incidents and gave a statement to defendant to that effect during its investigation.

On another occasion, Garcia threatened to fire plaintiff, and said, Keep selling more and just turn around and show your butt. Garcia also encouraged male customers to whistle at her. In describing an incident in which she was ordered to turn around to show her buttocks to customers, plaintiff testified that Garcia would, like, tell them, Look, look, look at her. And they would whistle because he would tell them, like, Look at her, and he would clap.

These incidents, if proven at trial, would establish that Garcia was exploiting and humiliating plaintiff because of her sex. He went so far as to physically turn her to display her body to customers, while encouraging them to whistle at plaintiff. Garcias statements to plaintiff made it clear that this conduct was likely to continue because he referred to plaintiffs ability to improve sales by showing her buttocks to customers.

Defendant minimizes this evidence in its brief: An examination of the facts of this case discloses that the objectionable conduct about which Fuentes complains consisted only of occasional and sporadic commentsmany of which Fuentes did not even personally hearof a crude and vulgar nature and only one incident in which Garcia allegedly grabbed Fuentes hand and twirled her aroundthere was no sexual touching of any body parts. (Italics added, other emphasis in original.) Sexual touching of intimate body parts is not required in order to establish a claim for hostile environment sexual harassment. [T]here is no legal requirement that hostile acts be overtly sex- or gender-specific in content, whether marked by language, by sex or gender stereotypes, or by sexual overtures. (E.E.O.C. v. National Educ. Assn, Alaska (9th Cir. 2005) 422 F.3d 840, 844; Hall v. Gus Const. Co., Inc. (8th Cir. 1988) 842 F.2d 1010 [conduct other than explicit sexual advances correctly considered because intimidation and hostility was because plaintiffs were women]; McKinney v. Dole (D.C. Cir. 1985) 765 F.2d 1129, 1138-1139, abrogated on another point by Stevens v. Dept. of Treasury (1991) 500 U.S. 1, 8 [physical force toward employee because of employees sex, although not overtly sexual, may be enough to establish hostile environment].)

We cannot dismiss these incidents so lightly. Plaintiff was subjected on more than two occasions to sexual humiliation and exploitation by her supervisor in front of customers for the stated purpose of increasing sales. Garcia invited the customers to treat plaintiff as a sexual object.

There is a triable issue of material fact as to whether Garcia physically interfered with plaintiffs normal work or movement on the basis of sex by grabbing her hand and spinning her around, forcing her to show her buttocks to customers while they whistled at her. (Cal. Code Regs., tit. 2, 7287.6, subd. (b)(1)(B) [defining physical harassment as interference with normal work or movement on basis of sex].) In addition, his exploitation of plaintiffs body in this crude manner could be found by a reasonable trier of fact as severe enough to create a hostile and abusive work environment in violation of FEHA. We cannot say as a matter of law that such conduct by the store manager is outside the purview of FEHA.

B. Sexually Charged Comments by Garcia

Plaintiff was told by five coworkers that Garcia was spreading rumors that she had herpes after plaintiff came to work with cold sores around her mouth.[8] In addition, Ricardo Jimenez came to plaintiff and asked whether she had heard what Garcia was saying about her. Then he added, Now theyre blaming me; that supposedly I gave it to you because you were supposedly sucking my dick. Plaintiff testified: This is what Gonzalo [Carrillo] told them. He said, Why dont you [Jimenez] wash your dick right before she sucks it? Plaintiff felt that these comments were not right, and brought a coworker to Jimenez to discuss these comments.

Garcia corroborated Jimenezs account of this incident. He testified that he, another worker, Carrillo, Jimenez and a customer were looking at store reports. Carrillo said, Ricardo, you should be careful with Marcela. When Ricardo asked what Carrillo was talking about, Carrillo said, [Y]ou know, about what she got in her mouth, you know, be careful where you put . . . your dick at with Marcela. According to Garcia, he asked Carrillo what he was talking about. Carrillo mentioned that plaintiff had herpes in her mouth. Jimenez became very upset and left. Garcia testified that he admonished Carrillo not to talk about such matters. Garcia made the same charge about Carrillos comment in a report to defendant during its investigation of plaintiffs complaint.

At one point, plaintiff took a telephone call from an employee at another AutoZone store, and the man said, I heard you have herpes. Are you the girl with herpes? Plaintiff said she did not and asked who told him this. The employee said, Through one of your managers at the store. But he refused to identify which manager. Carrillo testified that a delivery man came to the store and asked, Who is the girl who has the herpes?

Plaintiff also testified that when she walked by Garcia and Carrillo, they would say to Jimenez, You know, you have been beating up them cheeks. She understood this to be a reference to Jimenez having sex with her because Jimenez told her that Garcia and Carrillo had asked him about that.

C. Threats by Garcia

After hearing the herpes rumors, plaintiff confronted Garcia, accompanied by coworker Jennifer: [H]e got all red and all scared, and he said, Both of you guys had better get back to work. You go front face, and if you guys ever bring this up, Im going to write you guys up. Garcia sent Jennifer to work on one of the aisles, and plaintiff followed Garcia, saying that she was not done with the discussion. She asked why he lied and told people that she had herpes. Garcia said, I dont ever want to talk about this with you. He said, Dont ever bring this up. If not, Im going to fire you, and Im going to show you a picture I have, and I can fire you with that picture.

Plaintiff asked what picture, and Garcia replied, I have a picture of you and Ricardo [Jimenez], and I dont want to show it to you because if I do, youre going to be fired. Plaintiff demanded to see the picture, saying that Garcia was lying because she had never gone out with Jimenez. Garcia avoided answering, saying that they would discuss it later. He repeated that plaintiff was not to bring it up again and that he would fire her if she did.

D. Statements by Carillo

Evidence also was presented concerning harassment by Carrillo. Plaintiff testified that Carrillo pointed to a magazine on his desk and asked, Why dont you work as a stripper instead of you working here? He said, You would make more money working doing this than being here at Autozone. Carrillo also told plaintiff he had bet a coworker that Jimenez and plaintiff were having sex. Carrillo asked Jimenez constantly whether he was sleeping with plaintiff.

Our conclusion that plaintiff raised triable issues of material fact as to whether either Garcia or Carrillo were plaintiffs supervisor bears on whether their conduct was sufficiently severe or pervasive to create an actionable hostile environment. Conduct by supervisors is viewed differently than conduct by co-workers. In Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30 (Dee), the Court of Appeal recognized that California courts apply the same standards to claims of racial and sexual harassment based on hostile environment. (Id. at p. 35, citing Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 464-465.) The plaintiff in Deeclaimed she was subjected to a racially hostile work environment because of her Filipino ethnicity in violation of FEHA. The evidence revealed only one overtly racial comment made by plaintiffs supervisor that related to her ethnicity.

The Deecourt rejected the defendant employers argument that one racial comment is insufficient as a matter of law to establish a hostile environment. It reasoned: But there is neither a threshold magic number of harassing incidents that gives rise . . . to liability . . . nor a number of incidents below which a plaintiff fails as a matter of law to state a claim. (Dee, supra, 106 Cal.App.4th at pp. 35-36, quoting Rodgers v. Western-Southern Life Ins. Co. (7th Cir. 1993) 12 F.3d 668, 674.) The court in Deerecognized that in many cases, a single offensive act by a coemployee is not enough to establish employer liability for a hostile work environment. (Dee, at p. 36.) It distinguished situations where a single offensive act is caused directly by a supervisor, citing Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 927 (Brooks).

In Brooks, the Ninth Circuit held that a single incident in which a coworker fondled the breast of the plaintiff under her clothing was insufficient to support a hostile environment claim under title VII. But it said: A different question would arise if [the perpetrator] were [the plaintiffs] supervisor, rather than her co-worker. Because the employer cloaks the supervisor with authority, we ordinarily attribute the supervisors conduct directly to the employer. (Brooks, supra, 229 F.3d at p. 927, fn. 9.) The Brooks court held that a sexual assault by a supervisor, even on a single occasion, may well be sufficiently severe so as to alter the conditions of employment and give rise to a hostile work environment claim. (Ibid.) The Ninth Circuit held that the required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct. Ellison [v. Brady]924 F.2d [872,] 978 [(9th Cir. 1991)] (citing King v. Board of Regents, 898 F.2d 533, 537 (7th Cir. 1990)). If a single incident can ever suffice to support a hostile work environment claim, the incident must be extremely severe. (Brooks, supra, 229 F.3d. at pp. 925-926.)

The Brooks court found that sexual harassment was not established by an entirely isolated incident without precursors, that was never repeated. (Brooks, supra, 229 F.3d at p. 927; cf. Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142 [for 24 hours institute displayed art students sexually graphic drawing depicting staff member; artwork removed voluntarily while administration reviewed situation. Held: 24-hour display did not constitute severe or pervasive harassment].) Here, plaintiff provided evidence of more than a single incident involving Garcia and Carrillo. Garcia subjected plaintiff to humiliation in front of customers on several occasions, he and Carrillo repeatedly made crude sexually charged comments about plaintiffs sex life, and spread rumors that she had herpes.

Defendant argues that the rumors about herpes should be interpreted as referring to herpes simplex virus which manifests as cold sores, and points out that none of the comments expressly referred to genital herpes. This argument ignores the statements made by Garcia and Carrillo to Jimenez, which can only be understood as references to whether plaintiff had sexually transmitted herpes. In addition, Garcia threatened to fire plaintiff when she complained about the herpes rumors.

Defendant has three responses to the evidence of the sexually charged comments about plaintiff. First, it characterizes these incidents as isolated and occasional, emphasizing that all of them occurred between May 23, 2003 and June 19, 2003. Second, defendant argues that plaintiff did not personally hear many of these comments, and that her claims are based on second and third hand statements, gossip, and rumors. Finally, defendant characterizes these statements as gender neutral because they were made about both plaintiff and Jimenez.

As we have seen, no magic number of incidents is required to establish a hostile environment. (Dee, supra, 106 Cal.App.4th at pp. 35-36.) Defendant focuses on the number of days plaintiff worked when either Garcia or Carrillo was present. But our focus is on the environment created by the two men when plaintiff worked. Plaintiff presented evidence that Garcia and Carrillo subjected her to wide-spread gossip about having sexually transmitted herpes, graphic and crude comments and inquiries about her alleged sexual relationship with Jimenez, and suggestions that she could earn a better living as a stripper. This evidence was sufficient to raise a triable issue of material fact as to whether the conduct was sufficiently severe or pervasive to have altered the conditions of plaintiffs employment in violation FEHA. (See Lyle, supra, 38 Cal.4th at p. 278.)

The fact that plaintiff did not personally hear some of the statements made by Garcia and Carrillo is not dispositive. In Torres v. Pisano (2d Cir. 1997) 116 F.3d 625, Torres sued for hostile work environment harassment under title VII and New York law. The Second Circuit rejected the employers argument that the plaintiffs allegations of harassment did not, as a matter of law, establish a hostile work environment. After reviewing the evidence presented by plaintiff, the court concluded: A reasonable woman would find her working conditions altered and abusive when her own supervisor repeatedly referred to her as a dumb cunt, suggested that she was in the habit of performing oral sex for money, ridiculed her pregnancy, commented on her anatomy and his desire to have sex with her, and allowed friends of his who visited him at the office to make crude sexual remarks about her. (Id. at p. 632.) The Torres court expressly found that the fact that many of the offensive statements were not made in the plaintiffs presence did not matter: an employee who knows that her boss is saying things of this sort behind her back may reasonably find her working environment hostile. (Id. at p. 633.)

The fact that some of the statements made by Garcia and Carrillo targeted Jimenez also does not diminish their significance. (See Beyda v. City of Los Angeles, supra, 65 Cal.App.4th at p. 519.) In Beyda we concluded: [A] reasonable person may be affected by knowledge that other workers are being sexually harassed in the workplace, even if he or she does not personally witness that conduct. (Ibid.) Significantly, all of the evidence of the crude comments made to Jimenez concerned his alleged sexual contact with plaintiff. Plaintiff was aware of those comments and that they were directed toward her as well. The comments to Jimenez further demonstrated that Garcia and Carrillo openly were focused on plaintiffs alleged sexual activities.

Defendant fails to address the cumulative impact of the evidence of harassment. In Rodgers v. Western-Southern Life Ins. Co., supra, 12 F.3d 668, an African-American employee sued for racial harassment by a supervisor in violation of title VII. He presented evidence of five isolated racial comments (two of which involved use of the word nigger) which the Seventh Circuit concluded could not be said to constitute a pervasive pattern. (Id. at p. 674.) But the Rodgers court approved an approach focusing on the cumulative weight of the incidents: In examining the totality of circumstances giving rise to Rodgers action, the district court properly considered the cumulative weight of [the supervisors] several isolated racial comments. (Id. at p. 675.) The court held these comments would have adversely affected a reasonable employees ability to perform his or her work and thus constituted evidence of liability. (Ibid.)

We cannot say as a matter of law that the conduct of Garcia and Carrillo did not create a sexually hostile environment. The trial court erred in concluding that it could not. Plaintiffs cumulative evidence was sufficient to raise triable issues of material fact as to whether a reasonable woman would have found the behavior of Garcia and Carrillo so objectively offensive as to alter the conditions of her employment. [T]he prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the conditions of the victims employment and create a hostile or abusive work environment. (Oncale, supra, 523 U.S. at p. 81.) [W]hether an environment is hostile or abusive can be determined only by looking at all the circumstances [including] 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. (Harris v. Forklift Systems, Inc., supra, 510 U.S. at p. 23.) (Miller, supra, 36 Cal.4th at p. 462.) (Lyle, supra, 38 Cal.4th at pp. 282-283.) The trial court erred in granting summary adjudication on the cause of action for sexual harassment.

IV

Defendant argues it is not liable for sexual harassment committed by Carrillo because Carrillo was not named in the administrative complaints filed by plaintiff under FEHA. Under the FEHA, the employee must exhaust the administrative remedy provided by the statute by filing a complaint with the [Department] and must obtain from the Department a notice of right to sue in order to be entitled to file a civil action in court based on violations of the FEHA. [Citations.] The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA. [Citations.] (Medix Ambulance Service, Inc. v. Superior Court (2002) 97 Cal.App.4th 109, 116, quoting Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492.)

Plaintiff filed two FEHA complaints with the Department of Fair Employment and Housing. One names AutoZone and the other names Garcia. The bodies of the complaints are identical, each naming Garcia as the harasser. Plaintiff complained: While employed at Auto Zone, Complainant was subjected to sexual harassment by Melvin Garcia, a Manager. After Complainant reported the harassment, she was subjected to retaliation by her employer. Her employer Auto Zone failed to take any action to investigate the harassment. Auto Zone, knew or should have known of the harassment and failed to take action to prevent further harassment from occurring and it ratified Melvin Garcia and other employees conduct.

The failure to name Carrillo in the administrative complaint may bar plaintiffs civil action against him individually. (Medix Ambulance Service, Inc. v. Superior Court, supra, 97 Cal.App.4th at pp. 116-117.) But Carrillo is not a moving party on summary judgment and has not appeared in this appeal. Defendant asserts, without supporting authority: [F]uentes failed to exhaust her administrative remedies as to Carrillo and any claims against AutoZone based on his conduct, should be dismissed.

This argument is contrary to the law. [A] DFEH charge is not intended as a limiting device. (Watson v. Department of Rehabilitation (1989) 212 Cal.App.3d 1271, 1288.) Incidents not described in a DFEH charge can be included in the subsequently filed lawsuit if they would necessarily have been discovered by investigation of the charged incidents, i.e., if the allegations in the civil complaint were like or related to those specified in the DFEH charge. (Okoli v. Lockheed Technical Operations Co. [(1995) 36 Cal.App.4th 1607,] 1615; Sanchez v. Standard Brands, Inc.[(5th Cir. 1970) 431 F.2d 455,] 466.) Essentially, if an investigation of what was charged in the [administrative agency filing] would necessarily uncover other incidents that were not charged, the latter incidents could be included in a subsequent [civil] action. (Okoli v. Lockheed Technical Operations Co., supra, 36 Cal.App.4th at p. 1615, original italics.) (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 381.)

Defendants investigative file submitted in support of its motion for summary judgment demonstrates that it uncovered the incidents concerning Carrillo in the course of its investigation of plaintiffs complaints. We conclude that plaintiff is entitled to pursue her claims based on conduct by Carrillo.

V

Defendant argues that plaintiffs cause of action for intentional infliction of emotional distress (IIED) fails as a matter of law because it is superfluous and therefore subject to dismissal. It contends: The face of Fuentess pleadings illustrate that her IIED claim is based on the same factual allegations as those of simultaneous sexual harassment and slander claims, which makes the IIED claim superfluous. . . .  Courts consistently reject IIED claims based on this type of artful pleading. Defendant also asserts that plaintiff is entitled to only one measure of damages, and therefore her IIED claim is duplicative of the sexual harassment and slander claims and subject to dismissal.

When claims for invasion of privacy and emotional distress are based on the same factual allegations as those of a simultaneous libel claim, they are superfluous and must be dismissed. (Kapellas v. Kofman (1969) 1 Cal.3d 20, 35, fn. 16; Selleck v. Globe International, Inc. (1985) 166 Cal.App.3d 1123, 1136; see also McClatchy Newspapers, Inc. v. Superior Court (1987) 189 Cal.App.3d 961, 965.) (Couch v. San Juan Unified School Dist. (1995) 33 Cal.App.4th 1491, 1504.) In Couch, the plaintiffs claims for false light invasion of privacy and emotional distress incorporated all the factual allegations of his libel claim and added no further allegations. The Court of Appeal affirmed an order sustaining a demurrer on the ground that the causes of action were superfluous in light of the libel claim. (Ibid.)

Here, plaintiffs second cause of action for IIED incorporates the allegations of paragraphs 1 through 30. The complaint is misnumbered. The first 20 paragraphs are general factual allegations applicable to each cause of action. The allegations of the first cause of action for sexual harassment are numbered paragraphs 16 through 20, repeating the use of the same numbers from the general factual allegations. We infer that plaintiff intended to incorporate the factual allegations and the allegations of the first cause of action. After incorporating the preceding paragraphs, the second cause of action alleges that the conduct was outrageous, malicious, and intentional. Plaintiff alleges that she suffered harm and is entitled to an award of punitive damages.

The third cause of action for slander incorporates preceding paragraphs 1 through 34. It adds allegations that statements by Garcia and Carrillo that plaintiff had herpes and had sexual relations with a coworker were false and defamatory. Plaintiff alleges Garcia and Carrillo published these false accusations to th