>Derr
v. Kern County Fire Dept.

















Filed
1/22/13 Derr v. Kern County Fire Dept.
CA5















NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

FIFTH APPELLATE DISTRICT


>

DAVID DERR, Plaintiff and Appellant, v. KERN COUNTY FIRE DEPARTMENT et al., Defendants and Respondents.

F064539 (Super. Ct. No. CV272247) >OPINION

APPEAL
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Kern County. William D. Palmer, Judge.

Shegerian
& Associates, Carney R. Shegerian and Astineh Arakelian for Plaintiff and
Appellant.

Theresa
A. Goldner, County Counsel, and Marshall S. Fontes, Deputy County Counsel, for
Defendants and Respondents.

-ooOoo-







This is an appeal from a judgment of
dismissal entered when the court sustained, without leave to amend, defendants’
demurrer to plaintiff’s fifth amended complaint. Upon review under the proper standards for
demurrers and when properly construed in light of the earlier versions of the
complaint, we conclude the first and third causes of action, for href="http://www.fearnotlaw.com/">discrimination and retaliation, are
fatally flawed. Plaintiff has, however,
sufficiently stated a cause of action for harassment, and the trial court erred
in sustaining the demurrer as to the second cause of action. Accordingly, we affirm in part and reverse in
part.

STANDARD OF REVIEW

On appeal from
dismissal after an order sustaining a demurrer, we review the order de novo,
exercising our independent judgment
about whether the complaint states a cause of action as a matter of law. (Moore
v. Regents of University of California (1990) 51 Cal.3d 120, 125.) “On appeal from a
judgment dismissing an action after sustaining a name="SR;2761">demurrer without leave
to amend, the standard of review
is well settled. We give the complaint a
reasonable interpretation, reading it as a whole and its parts in their
context. [Citation.] Further, we treat the demurrer as admitting
all material facts properly pleaded, but do not assume the truth of
contentions, deductions or conclusions of law.
[Citations.] When a demurrer is
sustained, we determine whether the complaint states facts sufficient to
constitute a cause of action.
[Citation.]” (>City of Dinuba v. County of Tulare (2007)
41 Cal.4th 859, 865.) Where allegations
in the operative complaint conflict with allegations of fact in earlier complaints,
however, and the plaintiff fails to provide an explanation for the change, the
reviewing court may “read into the amended complaint the allegations of the
superseded complaint.” (>Owens v. Kings Supermarket (1988) 198
Cal.App.3d 379, 384 (Owens); see also
Deveny v. Entropin, Inc. (2006) 139
Cal.App.4th 408, 425-426 & fn. 3.)

>FACTS AND PROCEDURAL
HISTORY

Plaintiff David
Derr was a firefighter employed by defendant Kern County Fire Department (the
department), presumably (but not explicitly alleged to be) a department of
defendant Kern County (the county).
Defendant James Rummell (Rummell) is alleged to be a captain in the
department and plaintiff’s supervisor.
Plaintiff filed suit against Rummell, the department, the county, and
others in July 2010. The complaint
alleged discrimination, harassment and retaliation claims based on plaintiff’s
medical condition, and discrimination, harassment and retaliation claims based
on his daughter’s sexual orientation and adverse actions taken against
plaintiff because of his association with herhref="#_ftn1" name="_ftnref1" title="">^[1]. The harassment causes of
action were alleged against Rummell and other individual defendants, as well as
the governmental defendants; the discrimination and retaliation claims were
against the county and the department only.


Defendants’
demurrer to plaintiff’s second amended complaint was subsequently sustained
without leave to amend as to the disability causes of action and certain
individual defendants were dismissed from the case. Plaintiff filed two further amended
complaints against the county, the department and Rummell, alleging only claims
based on sexual orientation. The court
sustained demurrers to those two amended complaints with leave to amend. Thereafter, plaintiff filed the href="http://www.fearnotlaw.com/">fifth amended complaint. The court sustained defendants’ demurrer to
that complaint without leave to amend and granted judgment for the county, the
department and Rummell. >

The
allegations in the fifth amended complaint, coupled with conflicting
allegations from prior complaints for which plaintiff has failed to provide an
explanation for the change (Owens
allegations), are as follows.

Plaintiff
was employed by defendants as a firefighter for 29 years and “[a]t all times …
performed his duties in an exemplary manner.”
During the first year Rummell and plaintiff worked the same shift (“A
shift at Station 76”), Rummell expressed his “condemnation of
homosexuals.” Plaintiff responded that
he was offended by the remarks as he had “family members who [were] gay.”

Approximately
one year “after the first time Rummell made anti-gay remarks in plaintiff’s
hearing, Rummell stated, after watching a news report on gay issues, that
people [became] homosexual either by being ‘led in that direction’ or as a
result of childhood traumas that ‘twist’ them.”
Plaintiff told Rummell that he was misinformed and that plaintiff “did
not want to hear any more such commentary.”
He once again informed Rummell that he had family members who were
gay.

Plaintiff told a coworker that his
daughter was gay, but that he did not want Rummell to know. Rummell apparently found out.

In
October 2008, plaintiff had a “‘No on 8’” sign in his yard (referring to an
initiative measure on the November 4, 2008, ballot, limiting “marriage” to
opposite-sex couples (see Strauss v.
Horton (2009) 46 Cal.4th 364, 385)), and a “corresponding bumper sticker on
his car.” On October 25, 2008, Rummell
told plaintiff someone had tried to give him a bumper sticker supporting Proposition
8 but he had refused it “because he worked with a man who had a gay
daughter.” Rummell then “yelled at
[plaintiff], ‘But you didn’t show me the same respect!’” Plaintiff responded that “he had never
intentionally disrespected Rummell, but that his first loyalty was to his
children.” Plaintiff alleges that,
because he never drove to work, “Rummell would have had to go past
[plaintiff’s] house” to see the bumper sticker and yard sign.

On
November 1, 2008, plaintiff “forwarded a few amusing e-mails” to a mailing list
composed of “friends, family members, and co-workers, including Rummell and his
wife.” On November 3, 2008, “plaintiff
received an offensive anti-gay e-mail” from Mrs. Rummell. The e-mail “accused [plaintiff’s] ‘embrace’
of homosexuality as a ‘blatant opposition to the commands of God’” and accused
plaintiff of standing “‘with fist in [God’s] face’” and “‘mocking His plan for
marriage.’” The e-mail cited to a
specific Bible verse and then used several strong adjectives vilifying homosexuality.

On Election Day,
November 4, 2008, plaintiff discovered that Mrs. Rummell had sent to him, and
everyone on his November 1st, e-mail list (including his children and members
of his church), two more offensive e-mails.
The first e-mail stated, “‘[T]he reason that God is smiling is that he
just crapped all over those who mock His word!
Now, go have yourself a great day and remember to check your shoulder
occasionally!’” The second e-mail cited
a Bible verse and read, “‘It would be better to be thrown into the sea with a
millstone hung around your neck than to cause one of those little ones to fall
into sin.’” Plaintiff alleged that
“Rummell was asked if he agreed with his wife’s hate e-mail, and Rummell said
that he did. It was clear to plaintiff
that Rummell adopted the hateful statements written by his wife.”href="#_ftn2" name="_ftnref2" title="">^[2] “Extremely distraught by
this, plaintiff returned to the station, gathered his things, and told Rummell
that he was going home because he was too upset to stay at work.”

Sometime
after the Election Day e-mails, plaintiff asked a firefighter from a different
shift if he would exchange shifts. The
coworker agreed as “he knew of Rummell’s history of anti-gay e-mails and
remarks about [plaintiff] and his family.”
Plaintiff went to the fire chief, Brent Moon, told him about the e-mails
and his confrontation with Rummell, and Moon agreed to the shift change.href="#_ftn3" name="_ftnref3" title="">^[3]

In
the third, fourth and fifth amended complaints, plaintiff alleges Rummell had a
long history in the department of his crew members leaving his crew and
switching shifts. Plaintiff’s shift
change greatly embarrassed and angered Rummell and Rummell continued to harass
plaintiff at work. In the fifth amended
complaint, plaintiff alleges Rummell did this by “continuingly going out of his
way to target and single out [plaintiff], calling him in front of other people
despite his knowledge that [plaintiff] was trying to avoid him, staring at him,
sarcastically smiling at him, and making sarcastic comments to [plaintiff] on
an almost daily basis.” (>Sic.)
“Every time the fire fighters’ shift changed, Rummell would make
statements in front of other people like ‘Hello!’ and ‘Morning, Dave!’ in a
sarcastic tone and try to talk to plaintiff as if nothing had ever happened.” Plaintiff alleged that his captain and fire
chief “were well aware of plaintiff’s situation with Rummell,” but did not take
“any corrective step at this point.”

In
mid-December 2008, plaintiff began to see a therapist through the department’s
Employee Assistance Program (EAP). He
started “to feel better as a result of the counseling,” but “after only three
sessions the EAP cut off the counseling sessions.” The EAP “informed plaintiff that no further
treatment [w]as available and advised him to ‘suck it up.’” Plaintiff complained to Captain Louis
Monterrosso. Monterrosso said it was
clear that Rummell had “victimized” plaintiff and that the department had
failed to take action. Monterrosso said
he would file a workers’ compensation claim for plaintiff and sent plaintiff
home. (Plaintiff alleges that his
physical symptoms from the stress included insomnia, headaches, anxiety,
chronic diarrhea and cramping, but that “plaintiff was still able to perform
his job in an exemplary manner at that time.”)
Shortly thereafter, the county’s risk management department told
plaintiff “he was not eligible to work until he saw one of the County’s
doctors.”

Plaintiff saw
Dr. Irene Sanchez on January 26, 2009; “she told him that the emotional toll on
him was 100% job-connected.” She
prescribed medication and “told plaintiff that he could not go back to work
until he felt better.” Plaintiff was
then required to see a county psychiatrist, but was told that it would be about
a month before an appointment was available.


In
the meantime, Moon investigated the situation.
He received opinions from Rummell and another firefighter that
“plaintiff’s emotional distress was the result of plaintiff’s problems at home
and had nothing to do with the personal attacks by the Rummell family.” Moon concluded this was the case, and made a
report to risk management.

In early
February 2009, Rummell approached the new captain on plaintiff’s shift and
“falsely informed [him] that plaintiff had a severe drinking problem.” The captain “responded that this was a
serious matter and that Rummell could be liable for creating a hostile work
environment.” (No further context or
details of this conversation are alleged.)


In plaintiff’s
interview with risk management on February 20, 2009, the representative raised
plaintiff’s personal problems as a possible cause of his illness, but plaintiff
“explained that those things were in the past and that his distress resulted
directly from Rummell’s harassment” of him.
At some point, apparently during this period, Moon again came to
plaintiff’s home. Plaintiff again
complained about harassment by Rummell; plaintiff also requested that his sick
leave be reinstated since he had not been off work voluntarily but, instead,
because of Monterrosso’s and Sanchez’s instructions. During this interview, Moon told plaintiff
that in his (Moon’s) own religious views, homosexuality is wrong and a sin, and
he “did not want to be involved in the situation.”

In
February 2009, the county denied plaintiff’s workers’ compensation claim and
our record does not indicate that plaintiff sought review of that denial.

Plaintiff
contacted Sanchez and asked her to release him to return to work, “as otherwise
he would be forced to go off payroll, although he had left work at Monterrosso’s
instruction to address the emotional issues caused by defendants.”

Plaintiff
returned to work on February 21, 2009.
On February 22, 2009, plaintiff’s supervisor told plaintiff to come in
late and leave early so that plaintiff could avoid seeing Rummell at shift
changes.

Rummell’s
“conduct continued” after plaintiff’s return to work: even though they now worked different shifts,
Rummell “would purposely stay in the fire station well into plaintiff’s shift
in order to run into plaintiff”; in particular, Rummell “would still stare
[plaintiff] down, comment on him, sarcastically wave and say ‘morning Dave,’ to
[plaintiff], and go out of his way to target [plaintiff] and intimidate
him.” In addition, Rummell continued to
make “condescending and harsh anti-gay comments to plaintiff,” “going out of
his way to walk by plaintiff and come within his personal space. Plaintiff continually complained to [his fire
chief] about Rummell’s continued and escalating behavior toward plaintiff, but
to no avail.”href="#_ftn4"
name="_ftnref4" title="">^[4] On one occasion in March
2009 Rummell issued an order during shift change that ignored plaintiff’s years
of experience and thereby demeaned him.
On May 3, 2009, Rummell, while in an official vehicle, made an obscene
gesture toward plaintiff when plaintiff was walking through town. Later that same day, Rummell saw plaintiff
again and “proceed[ed] to smile and wave at plaintiff in an exaggerated,
sarcastic, and antagonizing manner.” The
next day, plaintiff complained to a supervisor, who told plaintiff to look in
the fire station’s official log book.
There, Rummell had reported that plaintiff had made the obscene gesture
to him and that plaintiff spat on the ground in front of Rummell’s official
car. Plaintiff disputed this entry, but
his supervisors “did not take any action to delete Rummell’s false entry from
the log book or to investigate Rummell’s version of events.”

In
June 2009, plaintiff was transferred to a different fire station, away from
Rummell. He and Rummell were called to
fire headquarters where they had separate but simultaneous meetings with deputy
fire chiefs. After plaintiff detailed
his complaints about Rummell to a deputy chief, she left the room. When she returned she informed plaintiff that
he would be returned to his original fire station and Rummell would be
transferred to a different location.
Plaintiff told the deputy chief he not only wanted Rummell “to leave him
and his family alone,” but that, in addition, he wanted his sick leave restored
so that he would have time available to resolve his remaining medical issues.href="#_ftn5" name="_ftnref5" title="">^[5] The deputy chief said she
“would see what she could do.”
Plaintiff’s leave balances, however, were never restored.

There
were no further incidents with Rummell or plaintiff’s superiors. In early July 2009, plaintiff’s condition was
diagnosed as ulcerative colitis and plaintiff began “a six-week treatment plan,
which consisted of regular high doses of steroids.” The steroids caused side effects of “severe href="http://www.sandiegohealthdirectory.com/">anxiety, insomnia, and emotional
distress” that prevented plaintiff from working. “Because he did not have enough sick time to
stay off work until his symptoms were resolved, plaintiff found himself forced
to retire on or about July 26, 2009 because to stay on would have subjected him
to intolerable working conditions caused by defendants’ harassing,
discriminatory, and retaliatory conduct.”
“Had his medical leave not been exhausted by his forced leave, plaintiff
would have had enough sick days to cover the ulcerative colitis treatment, and
plaintiff believes that in that case he would still be working today.” After plaintiff terminated his employment,
Rummell contacted some of plaintiff’s friends to turn them against plaintiff.href="#_ftn6" name="_ftnref6" title="">^[6]

DISCUSSION

As
previously stated, plaintiff’s first and third causes of action, for
discrimination and retaliation, are alleged only against the county and the
department. Those two causes of action
are similar to one another, in that both require, as relevant here, that plaintiff
was subjected to adverse employment action.
(See § 12940, subd. (a) [discrimination]; id., subd. (h) [retaliation].)
For a harassment claim, different considerations apply. (Id.,
subd. (j)(1) [“[l]oss of tangible job benefits shall not be necessary in order
to establish harassment”]; Roby v.
McKesson Corp. (2009) 47 Cal.4th 686, 706.href="#_ftn7" name="_ftnref7" title="">^[7]) We first discuss the
discrimination and retaliation claims together, and then turn to the harassment
cause of action.

Plaintiff
contends he has alleged adverse employment action in the discrimination and
retaliation causes of action because “he was forced to retire, given that he
had ‘no choice’ in response to defendants’ actions, and this resulted in the
constructive termination of his employment.”
(Fn. omitted.) Because of
Rummell’s treatment of him, plaintiff alleges, he “developed emotional and
physical conditions that became severely exacerbated, to the point that he
could no longer return to such intolerable working conditions and was forced to
retire.”href="#_ftn8" name="_ftnref8"
title="">^[8] Plaintiff’s theory
fails. First, it directly conflicts with
the facts alleged in the fifth amended complaint: Plaintiff specifically alleges that a few
weeks prior to his retirement, the department had acted to resolve his
working-conditions complaint by transferring Rummell to a different fire
station. Plaintiff also alleges that “he
would still be working today” if the county had restored to him the sick leave
he had taken earlier in 2009.href="#_ftn9" name="_ftnref9" title="">^[9] Thus, under the allegations
of the complaint, the working conditions, per se, were no longer “intolerable”
at the time he retired, even if they previously had been. Second, there was a prior administrative
determination by the county that, as alleged in the complaint, plaintiff was
not eligible for workers’ compensation benefits for his time off earlier in
2009, and the inference from the fifth amended complaint is that the reason for
denial of benefits was that plaintiff’s medical condition was not
job-related. Plaintiff does not contend
the county or the department applied the standards for workers’ compensation or
sick leave in a discriminatory or retaliatory manner. (Reno
v. Baird (1998) 18 Cal.4th 640, 646-647 [actions by management in applying
ordinary rules and making ordinary business decisions do not constitute
harassment under the Act, even though the discriminatory application of such
rules can support a cause of action for discrimination or retaliation].)

Plaintiff
did not sufficiently allege he was subjected to adverse employment action
because of his association with his daughter.
The fifth amended complaint, viewed most favorably to plaintiff, shows
that the county and the department remedied plaintiff’s uncomfortable working
conditions prior to his voluntary termination of employment. It also shows that the county’s application
of its workers’ compensation and sick leave policies were not discriminatory or
retaliatory. The trial court correctly
sustained the demurrer to the first and third causes of action.

The
harassment cause of action presents different issues. We emphasize that at this stage of the case
we deem true all facts properly alleged in the operative complaint, and we do
not speculate about any difficulty plaintiff may have in carrying his burden of
proof of those facts. Accordingly, the
issue presented is whether the fifth amended complaint alleges a course of
conduct “sufficiently severe or pervasive to create a working environment a
reasonable person would find hostile or abusive.” (Jones
v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th
1367, 1377 (Jones); see also >Lyle, supra, 38 Cal.4th at p. 284.) We must look at all the circumstances,
including the frequency and severity of the harassing conduct. (Miller
v. Department of Corrections (2005) 36 Cal.4th 446, 462.) “[H]arassment focuses on situations in which
the social environment of the
workplace becomes intolerable because the harassment (whether verbal, physical,
or visual) communicates an offensive message to the harassed employee.” (Roby
v. McKesson Corp., supra, 47 Cal.4th at p. 706.href="#_ftn10" name="_ftnref10" title="">^[10])

The
fifth amended complaint adequately meets this standard. (See generally Miller v. Department of Corrections, supra, 36 Cal.4th at pp.
460-466.) It alleges that plaintiff’s
supervisor, Rummell, made or adopted statements that criticized homosexuals and
impliedly criticized plaintiff for having and supporting a homosexual
daughter. It adequately alleges that
Rummell harassed plaintiff by continually greeting him sarcastically and by
making condescending and “anti-gay” remarks to him. Even after plaintiff had arranged to change
shifts to avoid Rummell, Rummell went out of his way to create opportunities to
interact with plaintiff. Additionally,
it alleges, Rummell made untrue statements about plaintiff’s mental condition,
about a drinking problem, and about aggressive behavior outside the work
environment, all, inferentially, for the purpose of punishing plaintiff for
having or producing a homosexual child.
Such behavior by Rummell continued, it alleges, after it was made clear
to him that the conduct was unwelcome and should be avoided.

In
Jones, supra, 152 Cal.App.4th 1367,
an appeal arising from an order granting summary judgment for the defendants,
the court was faced with a somewhat similar course of conduct, alleged to have
been taken against the plaintiff because of her gender and her race. At her deposition, however, the plaintiff
testified she did not know whether the actions were taken because of her gender
and her race, and most of the incidents were facially neutral, but were
explained by the defendants as occurring for nondiscriminatory reasons. (Id.
at pp. 1378-1379.)

Similarly,
in Lyle, supra, 38 Cal.4th 264,
another summary judgment appeal, the plaintiff alleged a course of highly
offensive sexual banter in the workplace (the writers’ room for the television
show Friends). (See, e.g., id. at p. 276 & fn. 2.)
The evidence on the summary judgment motion established that the
comments were not directed at the plaintiff and for the most part were not
directed at any individual, and were a part of the creative process in writing
a television show that dealt largely in sexual situations and innuendo, about
which the plaintiff had been warned in general terms prior to her hiring. (Id.
at pp. 287-288.)

In the present
case, at the demurrer stage, we do not know what evidence plaintiff may have,
unlike the plaintiff in Jones, to
prove the behavior was, in fact, motivated by bias against homosexuals. Nor do we know whether defendants may have
evidence to establish that the offensive behavior did not occur or, as in >Lyle, was not motivated by animus
against a protected class of persons. At
this stage, the operative pleading adequately alleges a substantial course of
offensive conduct motivated by sexual-orientation bias, and plaintiff is
entitled to proceed on his second cause of action for harassment.

It
is apparent in our summary of the facts alleged in the fifth amended complaint
that the county and the department took some steps to ameliorate Rummell’s
harassment of plaintiff. In the case of
harassment by a coworker, we would be required to determine whether these steps
were reasonable attempts to provide plaintiff with a workplace free from
harassment. (See State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th
1026, 1040-1041.) In the case of
harassment by a supervisor, however, the employer is strictly liable for the
supervisor’s conduct, and reasonable but unsuccessful attempts at
ameliorization do not defeat a plaintiff’s harassment cause of action. (Id.
at p. 1041.) Of particular
importance in the rather unique facts alleged here, the department’s action in
ultimately transferring Rummell to a different station, thereby potentially
resolving the harassment issue, may affect the damages to which plaintiff may
be entitled, but it does not affect defendants’ liability for the original
harassment. (See id. at p. 1042.)

DISPOSITION

As
to the first and third causes of action in the fifth amended complaint, the
judgment is affirmed. As to the second
cause of action, “Harassment on the
Basis of Sexual Orientation by Association in Violation of FEHA,” the
judgment is reversed. The order
sustaining the demurrer to the fifth amended complaint is vacated insofar as it
sustains the demurrer to that second cause of action, and the matter is
reversed with directions to enter a new and different order overruling the
demurrer to the second cause of action.
The parties shall bear their own costs
on appeal.





_____________________

DETJEN, J.

WE CONCUR:





_____________________

LEVY,
Acting P.J.





_____________________


CORNELL, J.