Merriweather v. City of Los Angeles

Filed 5/27/10 Merriweather v. City of Los Angeles CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

James R. Dunn, Judge. Affirmed.

Law Offices of David Peter Cwiklo, David Peter Cwiklo for Plaintiffs and Appellants.

Carmen A. Trutanich, City Attorney, Paul L. Winnemore, Deputy City Attorney for Defendants and Respondents.

_______________

Tishandra Merriweather, Tisha Webber, and Darrell Ballard sued their employer, City of Los Angeles (the "City"), as well as individual City employees Leroy Castellano, Dennis Wake, Raul Martinez, Arthur Pacheco, Laz Ruiz, Sammy Recendez, Max Montgomery, and Humberto Rios, for workplace harassment and discrimination in violation of the Fair Employment and Housing Act, Government Code section 12900 et seq. ("FEHA"). On summary adjudication, most of the individual defendants were dismissed, as were two of plaintiffs' causes of action. At the trial against the remaining defendants, the City and Ruiz, the jury returned a verdict in favor of defendants. Plaintiffs' motions for judgment notwithstanding the verdict and for a new trial were denied. Plaintiffs appeal those rulings.

FACTUAL AND PROCEDURAL SUMMARY

Ballard is an African-American male, and Merriweather and Webber are African-American female, employees of the City's Department of Public Works, Urban Forestry Division, Street Tree Division. All three were assigned from time to time to the Small Tree Yard ("STY") located near Dodger Stadium. Merriweather, a gardener caretaker, and Webber and Ballard, assistant tree surgeons, have held these positions since 1999, 2000, and 2001, respectively, and continue to work for the City. The individual defendants were all City employees alleged to hold supervisory positions.

In 2007, plaintiffs sued the City and the individual defendants for conduct amounting to racial and gender harassment and discrimination in the workplace. The two women also sued for violation of their constitutional right to privacy.

The conduct at issue was alleged to have occurred over a seven-year period, from 2000 to 2007, and included the displaying of nooses in the workplace, the use of a "peep hole" to observe the women's use of the restroom, and leaving pornographic magazines in the lunchroom and the women's restroom.

All individual defendants save one, Laz Ruiz, won summary judgment. In addition, the causes of action based on invasion of privacy and failure to take reasonable steps in response to the harassment were summarily adjudicated in favor of defendants, as was a claim for intentional infliction of emotional distress.

At trial, the jury returned a special verdict finding that each of Merriweather and Webber was "subjected to unwarranted harassing conduct because she was female," but that the harassment was not severe and pervasive. The jury also found that all three plaintiffs were subject to a hostile work environment on account of their race, but again, the jury did not deem the harassment severe and pervasive. Plaintiffs moved for judgment notwithstanding the verdict and for a new trial; the trial court denied both motions.

Plaintiffs challenge four rulings on appeal: (1) the summary adjudication of the invasion of privacy claims of Merriweather and Webber; (2) the summary judgments entered in favor of three of the individual defendants with respect to the harassment claims of Merriweather and Webber; (3) the denial of their motion for judgment notwithstanding the verdict with respect to the racial and gender harassment and discrimination claims; and (4) the denial of their new trial motion with respect to the racial and gender harassment and discrimination claims. We consider each contention in turn.

DISCUSSION

1.      Trial court's grant of summary adjudication

Summary adjudication of right to privacy claims

Merriweather and Webber alleged that the City violated their right to privacy when supervisors Martinez, Ruiz, Recendez and Rios "engaged in the vile and despicable conduct of watching five of their subordinate African American female employees use the women's toilet through the 'peep hole' located in the wall directly behind the woman's toilet." Following the City's motion for summary judgment or summary adjudication of this cause of action, the trial court ruled that plaintiffs failed to produce admissible evidence in support of their claim which, if believed by a jury, would support a verdict in their favor.

Appellate review of a ruling on a summary judgment or summary adjudication motion is de novo. (Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195, 210.) That is to say, this court independently reviews the record to determine whether a triable issue of fact exists. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) We consider all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained. (State Dept. of Health Services v. SuperiorCourt (2003) 31 Cal.4th 1026, 1035.) We construe the moving party's evidentiary submissions strictly, construe the opponent's evidence liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it. (Wiener v. Southcoast Childcare Center, Inc., supra, 32 Cal.4th at p. 1142.)

An appellate court applies the same legal standard governing the trial court and affirms the ruling if it is correct on any ground, regardless of the trial court's rationale. (Richards v. Department of Alcoholic Beverages Control (2006) 139 Cal.App.4th 304, 312.) A three-step analysis is used by the reviewing court: (1) identify the issues framed by the pleadings; (2) determine whether the moving party has established facts negating the opposing party's claims and justifying judgment in the movant's favor; and (3) if the motion prima facie justifies a judgment, determine whether the opposition has demonstrated the existence of a triable issue of material fact. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252-1253.) Summary judgment is properly granted where there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

The state constitutional right to privacy (Cal. Const., art. I, 1) protects an individual's reasonable expectation of privacy against a serious invasion. (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.) The elements of a cause of action for violation of this right include: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy under the circumstances; and (3) conduct by the defendant which constitutes a serious invasion of the privacy interest. (Ibid.) The third element requires proof that the defendant intentionally invaded plaintiff's privacy. (Ibid.; see also Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 231, 232 ["To prove actionable intrusion, the plaintiff must show the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the plaintiff."].) A defendant may prevail on summary judgment by negating any of these three elements. (Sheehan v. San Francisco 49ers, Ltd., supra, 45 Cal.4th at p. 998.)

The evidence which Merriweather and Webber maintain supports their invasion of privacy claim against the City includes the following: There were holes in the wall of the women's restroom; some of the holes were patched with plywood, others with tape. There was an open hole behind the toilet. On one occasion, after using the toilet, Merriweather saw an eye looking through this latter hole, but could not identify who it belonged to. Martinez would comment on, and correctly identify the color of, Webber's underwear virtually every day. None of the plaintiffs or any other witness observed any individual defendants looking through a hole in the restroom wall, although Ballard observed, on more than one occasion, Ruiz, Recendez and Rios leave the "tool room," that is, the room on the other side of the "peep hole," laughing and snickering at the same time a woman exited the restroom.

The City submitted the following evidence to negate the invasion of privacy claim: No employee, including plaintiffs, directly observed any individual looking through a hole in the restroom wall. Merriweather did not report or complain to any supervisor that she had seen an eyeball watching her through the hole. Ballard did not report that some employees were regularly laughing coincidentally with the exit of a woman from the restroom. Webber did not report or complain that Martinez commented on the color of her underwear. The individual defendants denied looking through the holes while the restroom was occupied.

The City maintained, and the trial court agreed, that the evidence could not support liability against the City for violation of the privacy rights of Merriweather and Webber. Said the court: "There is no evidence here, no direct evidence that anybody from the City was responsible for that alleged hole in the wall or no evidence that anyone from the City looked through it. The only evidence essentially here is that Mr. Ballard claimed he saw some people run out and laugh about it."

We concur with the trial court that the evidence presented on summary adjudication did not present a triable issue of material fact requiring a trial on the invasion of privacy cause of action. While plaintiffs assert that, based on Ballard's testimony regarding the behavior of Ruiz, Recendez and Ruiz upon exiting the tool room as well as Webber's testimony regarding Martinez's comments on the color of her underwear, a jury could infer that one or more of these individual defendants had invaded plaintiffs' privacy by viewing them through the restroom peep hole, such an inference is not warranted. Rather, that inference is based on sheer speculation. "'While substantial evidence may consist of inferences, such inferences must be "a product of logic and reason" and "must rest on the evidence" [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding.'" (Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1144.)

Summary judgment in favor of Martinez, Recendez and Rios

Merriweather and Webber also claimed that four of the individual defendants harassed them on the basis of their race and sex: Plaintiffs "identified the 'Gang of Four'; Supervisors Martinez, Ruiz, Recendez and Rios as the offending deviants who attended the daily 'Peep Show' who watched 4-5 African American female employees, including Merriweather and Webber, remove their pants, remove their underwear and use [the] toilet." These defendants moved for summary judgment, which was granted as to three of them: Martinez, Recendez and Rios; the motion was denied as to Ruiz.

The evidence in support of the gender harassment and discrimination claims against these defendants included the foregoing evidence relevant to the invasion of privacy claim, as well as the following: Supervisor Martinez made sexist comments to Merriweather about various parts of her body. On one occasion, Martinez commented that it looked as if she had lost some weight and said: "You didn't lose any weight in those titties, did you?" On another occasion, Martinez came up from behind Merriweather and said that her legs were "looking good" and to "spread those legs a little more." Martinez inappropriately touched the buttocks of Merriweather, Webber, and another African-American female co-worker. Merriweather did not report Martinez's behavior to a supervisor, and Martinez denied making the comments.

Martinez regularly asked Webber questions about her sex life with her husband; declared his desire to have sex with any attractive African-American woman who wore nothing but a hat and boots; asked what color underwear Webber was wearing; and inappropriately touched her buttocks. Martinez denied that he hugged female co-workers or inappropriately touched any female co-workers' buttocks.

One or more plaintiffs testified that: a Playboy calendar hung on the wall where the employees ate lunch; they observed a pornographic photo of a naked Black woman posted on a workplace bulletin board; pornographic magazines were left in the Tool Room and the women's restroom. Defendants denied all of the foregoing, and plaintiffs did not lodge a complaint with their superiors concerning this behavior.

Webber testified that four of the individual employees frequently used the word "bitch" and made sexual jokes. The men denied this, although Ruiz testified that he occasionally told non-sexual jokes.

Summary judgment in favor of Martinez

On appeal, defendant Martinez does not defend the trial court's dismissal on summary judgment of the sexual harassment claims against him, but argues only that the ruling should be affirmed for lack of prejudice. He thus acknowledges that the female plaintiffs presented evidence in support of their sexual harassment claims: "Merriweather declared that Martinez routinely made sexist comments about her body, inappropriately touched her buttocks during a hug, and inappropriately touched Webber's and another female co-worker's buttocks during hugs. Webber declared that Martinez routinely asked about her sex life, routinely mentioned his desire to have sex with attractive African-American women, routinely asked about the color of her underwear, and on one occasion inappropriately touched her buttocks during a hug." Martinez argues, however, that evidence relevant to plaintiffs' harassment claims against him was presented to the jury to prove the City's liability as the employer of supervisor Martinez; the jury found the City not liable on plaintiffs' harassment claims. From this fact Martinez concludes that plaintiffs have failed to establish prejudicial error: "[I]t is not reasonably probable that the jury would have found supervisor Martinez liable for sexual harassment but not the City. [Citations.] Summary judgment for Martinez should not [be] set aside, nor a new trial granted, because any error in the trial court's ruling did not result in a miscarriage of justice. [Citations.]"

As Martinez notes, FEHA imposes liability for unlawful harassment not only on the employee engaging in the harassing behavior, but against the employer for unlawful harassment by a supervisor and for failure to take immediate and appropriate corrective action when informed of harassment by a non-supervisory employee. (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1014.) Under FEHA, an employer is strictly liable for all acts of unlawful harassment by a supervisor. (State Dept. of Health Services v. Superior Court, supra, 31 Cal.4th at p. 1042.) Plaintiffs presented to the jury their sexual harassment claims against the City based substantially on Martinez's conduct in his undisputed supervisory position over plaintiffs. The jury returned a verdict in favor of the City on the sexual harassment claims based on that conduct. Martinez contends that because the jury rejected plaintiffs' claims as to the City, and because the City's liability, if any were found, would be based solely on Martinez's conduct as a supervisor, plaintiffs have failed to establish that they were prejudiced by any error in the trial court's dismissal of Martinez on summary judgment.

We concur in this analysis. No reasonable jury would have found Martinez liable for sexual harassment, but also found the City not liable. Rather, the jury's verdict exonerating the City for sexual harassment can only be understood as a finding that Martinez was not personally liable to plaintiffs for sexual harassment.

Summary judgment in favor of Recendez

Recendez argues that summary judgment as to him was proper. He points out that neither Merriweather nor Webber named him in their respective DFEH complaints, a contention they do not deny; thus, they failed to exhaust their administrative remedies. We concur in this conclusion.

As this court has held: "In order to bring a civil lawsuit under the FEHA, the defendants must have been named in the caption or body of the DFEH charge." (Cole v. Antelope Valley Union High School Dist. (1996) 47 Cal.App.4th 1505, 1515.) An individual defendant in a civil action is entitled to summary judgment where the plaintiff failed to exhaust FEHA administrative remedies by not naming that defendant in the DFEH complaint. Consequently, the trial court properly granted Recendez summary judgment.

Summary judgment in favor of Rios

Rios also maintains that Merriweather filed no FEHA claim against him, a claim which Merriweather does not contest; he therefore argues that he was entitled to summary judgment as to her claim. For the reasons set forth above, we agree.

With respect to Webber's claim against him, Rios contends that she presented no competent evidence that he engaged in unlawful harassment. In response, Webber identifies no conduct of Rios which she maintains constituted sexual harassment. Rather, she simply characterizes Rios as one of the "Gang of Four" who was observed from time to time chortling as he exited the Tool Room. This conduct does not constitute substantial evidence of sexual discrimination. The trial court therefore properly granted summary judgment in favor of Rios.

2.      Trial court's denial of plaintiffs' motion for judgment notwithstanding the verdict

Plaintiffs challenge as reversible error the trial court's denial of their motion for judgment notwithstanding the verdict. Such a motion challenges the legal sufficiency of the opposing party's evidence now embodied in the jury's verdict. The trial court cannot weigh the evidence or judge the credibility of witnesses; if there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied. (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110.) A motion for JNOV may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) Substantial evidence is evidence that a rational trier of fact could find to be reasonable, credible, and of solid value. (Fassberg Const. Co. v. Housing Authority of City of Los Angeles(2007) 152 Cal.App.4th 720, 746.) The appellate court independently reviews the ruling to determine whether substantial evidence, contradicted or uncontradicted, supports the verdict and whether the moving party is entitled to judgment as a matter of law. (Sweatman v. Department ofVeterans Affairs, supra, 25 Cal.4th at p. 68; Fassberg Const. Co. v. Housing Authority of City of Los Angeles, supra, 152 Cal.App.4th at p. 746.)

An order denying a motion for JNOV must be affirmed if an examination of the entire record, viewed in the light most favorable to the verdict, discloses substantial evidence to support the verdict. (Fassberg Const. Co. v. Housing Authority of City of Los Angeles, supra, 152 Cal.App.4th at p. 746.)

In their brief on appeal, plaintiffs set forth all of the evidence which they believe establishes their racial harassment and discrimination claims. Briefly, this evidence includes the following: One or more of the plaintiffs testified that: certain of the supervisory employees made racist jokes; the word "nigger" was uttered once, and the word "mayate," reportedly the Hispanic equivalent of "nigger," was used by some of the Hispanic employees; ropes knotted in a "hangman's noose" were observed around the workplace; a federal government fire protection poster of a raccoon that had a female African-American co-worker's name handwritten on it was posted on a bulletin board outside a supervisor's office. Plaintiffs rely on Williams v. New York City Housing Authority (2001 S.D.N.Y.) 154 F.Supp.2d 820, to argue that this conduct is more than sufficient to establish a hostile work environment. It is noteworthy that plaintiffs fail to mention the defense evidence undermining their credibility and contradicting their claims. As but one example, although Ballard testified that the experience of seeing nooses in the workplace was devastating to him, he made no mention of nooses in his complaint to the Department of Fair Employment and Housing.

The jury returned a special verdict finding that each of Merriweather and Webber was "subjected to unwarranted harassing conduct because she was female," and that all three plaintiffs were subject to a hostile work environment on account of their race. However, the jury concluded that the harassment was not severe and pervasive,^[1]and consequently returned a verdict in favor of defendants. Plaintiffs seem to argue that because the jury believed some of the plaintiffs' evidence, it believed all of the plaintiffs' evidence; the plaintiffs testified that the harassment was severe, pervasive, and highly offensive to them; therefore, the jury had no choice but to find that the harassing conduct was severe and pervasive. We cannot concur in this analysis.

It is clear from the special verdict that the jury believed that some harassing conduct occurred, but did not believe that the conduct which did occur was of sufficient severity to amount to a hostile work environment. This conclusion is supported by substantial evidence. Plaintiffs testified that the conduct in question continued over a period of years, and yet they never lodged a complaint with their employer, or took any other action to stop the behavior. From this fact a reasonable factfinder could determine that the racist and sexist conduct which did occur was not severe. As plaintiffs argue, the analysis of Williams v. New York City Housing Authority, supra, 154 F.Supp.2d 820, would support a jury finding that the conduct here at issue was sufficient to establish a hostile work environment; it does not, however, mandate that finding. To conclude that an employee is subject to a hostile work environment, the factfinder must take into account "the surrounding circumstances, such as 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 employee's work performance.'" (Hughes v. Pair, supra, 46 Cal.4th at p. 1042, quoting Clark County School Dist. v. Breeden (2001) 532 U.S. 268, 270-271.) After taking those matters into account, the jury determined that, while plaintiffs were subject to unwarranted harassing conduct on account of their race and gender, the conduct was not so severe as to create a hostile work environment. Because that conclusion is supported by substantial evidence, the trial court properly denied plaintiffs' motion for judgment notwithstanding the verdict.

3.      Trial court's denial of plaintiffs' new trial motion

Finally, plaintiffs contend that the trial court erred in denying their new trial motion.

"Code of Civil Procedure section 657 states: 'A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.' A trial court has broad discretion in ruling on a new trial motion, and the court's exercise of discretion is accorded great deference on appeal. (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871-872.) An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court's decision exceeds the bounds of reason and results in a miscarriage of justice. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479; Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) Accordingly, we can reverse the denial of a new trial motion based on insufficiency of the evidence or excessive damages only if there is no substantial conflict in the evidence and the evidence compels the conclusion that the motion should have been granted." (Fassberg Const. Co. v. Housing Authority of City of Los Angeles, supra, 152 Cal.App.4th at pp. 751-752.)

At the hearing on the motion, the trial court stated: "After hearing that trial and after reading the papers here, the court, as I say, is not bound by the factual resolutions made by the jury. The court may grant a new trial even though there is sufficient evidence to sustain the jurors' verdict on appeal so long as the court determines the weight of the evidence is against the verdict. [] The court does not find that the weight of the evidence is against the verdict in this case." And later, "Essentially, a new trial is not granted unless after weighing the evidence, the court is convinced from the entire record, including reasonable inferences therefrom, that the court or the jury clearly should have reached a different verdict or decision. The court does not make that finding." The court specifically noted that there was "a lot of evidence in the case going both ways and a lot of evidence from the defense."

The trial court clearly understood the proper standard to apply and the scope of its discretion in considering plaintiffs' request for a new trial. As there was a substantial conflict in the evidence, we cannot say that it was an abuse of discretion to deny plaintiffs' motion for new trial.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, Acting P. J.

We concur:

MOSK, J.

KRIEGLER, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

^[1]The correct standard is "severe or pervasive." (See Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.) Plaintiffs point out the discrepancy but do not claim prejudicial error based on incorrect jury instructions.