Sacramento Sexual Harassment Lawyer Blog

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

PLAINTIFF'S SEVENTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS IS NOT BARRED
In some exceptional circumstances a separate civil action may lie where the employee's injury results from employer conduct that is outside the normal risk of employment. The Workers' Compensation Act does not preempt such actions. Charles J. Vacanti, M.D., Inc. v. State Comp., Ins. Fund (2001) 24 Cal.4th 800, 819-820. Sexual harassment in the workplace is not a normal incident of employment. Therefore, a claim for damages based on sexual harassment is not preempted by the Worker's Compensation Act. Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 347; Murray v. Oceanside Unified School Dist., (2000) 79 Cal.App.4th 1338, 1363.

Similarly, discrimination on the basis of race, religion, age or gender is not a normal incident of employment, and therefore workers' compensation is not the exclusive remedy for injury from such discriminatory conduct. Jones v. Los Angeles, Comm. College District (1988) 198 Cal.App.3d 794, 802 (holding that a claim for emotional and psychological damages is not barred where distress was allegedly caused by employer's illegal discriminatory practices.) Discrimination in employment is not a normal incident of employment. A claim for damages under the Fair Employment and Housing Act (FEHA) ( Gov. Code, § 12900 et seq.) is not preempted by the workers' compensation act. Accardi v. Superior Court, 17 Cal. App. 4th 341, (1993). Here Plaintiff is the victim of sex discrimination. See Accardi at p. 347.

The Legislature ...did not intend that an employer be allowed to raise the exclusivity rule for the purpose of deflecting a claim of discriminatory practices. Id. at 353. Thus, a claim for emotional and psychological damage, arising out of employment, is not barred where the distress is engendered by an employer's illegal discriminatory practices. Id. ... [S]ection 132a does not provide an exclusive remedy and does not preclude an employee from pursuing FEHA and common law wrongful discharge remedies. Moorpark v. Sup. Ct., 18 Cal. 4th 1143, 1998.

Continue reading " Employee At Sacramento Company Sues For Retaliatory Firing, Part 4 of 7 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

C. DEFENDANTS' DEMURRER FAILS TO CITE TO THE CORRECT LAW
PLAINTIFF HAS PLED A PRIMA FACIE CLAIM FOR RETALIATION AGAINST THE INDIVIDUAL DEFENDANT AND THE MANAGERIAL PRIVILEGE DOES NOT BAR HER CLAIM

Defendants have demurred to Plaintiffs Third Cause for Retaliation against Defendant Mr. Jones without any legal or factual basis. The law on retaliation is clear. Contrary to Defendants' assertions, an employee (supervisor) the Fair Employment and Housing Act makes it unlawful for "any employer or person to retaliate against an employee for protected activities." Government Code §12940(h). Supervisors are subject to personal liability for retaliation under FEHA. Page v. Superior Court, (1995) 31 Cal.App.4th 1206, 1211-1212.

Defendants' analogy to Janken v. Hughes (1996) 46 Cal.App.4th 55 and Reno v. Baird, (l998) 18 Cal.4th 640, indicating that the actions taken against Plaintiff were common personnel management actions, is undeniably a misstatement of law. In Janken, the court clearly distinguished between a supervisor's actions that are commonly necessary personnel management actions and allegation of conduct hat violation FEHA. Janken at 62-63. The Janken court concluded that INDIVIDUAL supervisory employees should be held personally liable for conduct which violates FEHA unless their conduct is based solely on managerial decisions that are inherently necessary to perform their supervisory functions. Discussing the discrimination between harassment and discrimination, the Janken court stated, we conclude that the legislature's differential treatment of harassment and discrimination is based on the fundamental distinction between harassment as a type of conduct not necessary to a supervisor's job performance as contrasted with business or personnel management decisions. Id. The court in Reno confirms Janken's conclusion that the imposition of indivdual liability is appropriate. Reno at 645. Therefore, Defendant Mr. Jones is individually liable.

Further, individual defendants can be liable for retaliation. Wintaro v. Toshiba America Electronics Components, Inc., (9th Cir. 2001) 274 F3d 1276, 1288. Supervisors are persons and potentially liable for retaliation. Wintaro v. Toshiba America Electronics Components, Inc., (9th Cir. 2001) 274 F3d 1276, 1288. See also Liberto-Blanck v. City of Arroyo Grande (CD CA1999) 33 F. Supp.2d 1241, 1244;; Walrath v. Sprinkel (2002) 99 Cal.App.1237, 1242,

Continue reading " Sexual Harassment By Owner of Sacramento Company, Part 3 of 7 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

LEGAL ARGUMENT
A. LEGAL STANDARD FOR DEMURRER
The function of a demurrer is to test the sufficiency of a Plaintiffs pleadings by raising questions of law, such that the Plaintiff must show that the Complaint alleges facts sufficient to establish every element of each cause of action. Title Ins. Co. v. Commercial Bank-California (1994) 27 Cal.App.4th 800, 807. The Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of law. Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43.

The Court also considers matters that are judicially noticeable under C.C.P. § 430.30(a). The Court must sustain a demurrer only where the Complaint itself is defective, incomplete, or discloses some defense that would bar recovery. C.C.P. §§ 430.10, 430.30, 430.50; Harboring Villas Homeowners Ass'n. v. Superior Court (1998) 63 Cal.App.4th 426, 429.

B. FOR THE PURPOSE OF A DEMURRER. ALL MATERIAL ALLEGATIONS OF PLAINTIFF'S COMPLAINT MUST BE ACCEPTED AS TRUE
The only issue that can be raised by a demurrer is whether the facts pled on the face of the Complaint state a valid cause of action, not whether the allegations are true or whether they can be proven at trial. Serrano v. Priest (1971) 5 Cal.3d 584, 591. Plaintiff's allegations in the pleadings must be liberally construed with a view to substantial justice between the parties. National Auto & Cas. Ins. Co. v. Payne (1968) 261 Cal.App.2d 403, 408; C.C.P. § 452. This rule applies no matter how unlikely the allegations may be. Dell E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App.3d 593, 604; Meyer v. Graphic Arts Int'l. Union Local No. 63-A, 63-B (1979) 88 Cal.App.3d 176.

Continue reading " Sacramento Company Sued For Workplace Harassment, Part 2 of 7 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

Plaintiff Gina Smith's Opposition to Defendants' Demurrer to Complaint. This Opposition is based on the accompanying Memorandum of Points and Authorities, the pleadings and records on file herein and upon such other documentary and oral evidence as may be presented at the hearing.

MEMORANDUM OF POINTS & AUTHORITIES
INTRODUCTION
Plaintiff Gina Smith ( Plaintiff ) was employed by Defendants as a Sales Associate at a Sacramento company. Plaintiff worked for Defendants from August 2005 to March 2007. While working for Defendants, Defendants subjected Plaintiff to a hostile work environment based on sex. Defendant Mr. Jones regularly made unwelcome, inappropriate comments and or/suggestive non-verbal signals to Plaintiff. Examples of this include but are not limited to the following:

a. telling PLAINTIFF that she was hired because she was good looking;
b. telling PLAINTIFF to go outside the store and bend over in order to attract more customers;
c. threatening to spank PLAINTIFF;
d. telling PLAINTIFF that he refused to hire male employees;
e. constantly cursing at PLAINTIFF;
f. constantly staring at PLAINTIFF'S breasts;
g. telling PLAINTIFF that her boobs are nice and firm ;
h. asking PLAINTIFF to show more cleavage at work by lowering her shirts;
I. asking PLAINTIFF how her breasts looked;
j. commenting on how nice PLAINTIFF'S manicures and pedicures were;
k. hugging and kissing PLAINTIFF;
l. constantly rubbing PLAINTIFF'S shoulders.

Continue reading " Sacramento Woman Sues For Sexual Harassment, Part 1 of 7 " »