Accardi v. Superior Court

California Courts of Appeal Reports

 

 

ACCARDI v. SUPERIOR COURT, 17 Cal.App.4th 341 (1993)

 

21 Cal.Rptr.2d 292

 

DEBBRA J. ACCARDI, Petitioner, v. THE SUPERIOR COURT OF VENTURA COUNTY,

 

Respondent; CITY OF SIMI VALLEY et al., Real Parties in Interest.

 

Docket No. B072215.

 

Court of Appeal of California, Second District, Division Six.

 

July 21, 1993.

 

 

Frederick A. Jones, Judge.

Page 342

 

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COUNSEL

 

Rehwald, Rameson & Lewis, William Rehwald and Sylvia J. Simmons

for Petitioner.

Page 345

 

No appearance for Respondent.

 

Beach, Procter & McCarthy, Thomas E. Beach and Sean D. Cowdrey

for Real Parties in Interest.

 

OPINION

 

It need not have anything to do with lewd acts, double entendres

or sexual advances. Sexual harassment may involve conduct,

whether blatant or subtle, that discriminates against a person

solely because of that person's sex.

 

when an employer creates a hostile environment for an employee

because of that employee's sex. We also hold that a claim for

sexual harassment is not time-barred when there are continuous

acts of discrimination over a period of time provided that some

of those acts fall within the limitations period. We further hold

that a claim of emotional distress arising out of sexual

harassment is not preempted by workers' compensation law.

 

police officer with the City of Simi Valley. On October 11, 1991,

she filed sexual discrimination complaints with the California

Department of Fair Employment and Housing (DFEH). On October 17,

1991, Accardi obtained a "right to sue letter" from DFEH. On

March 13, 1992, she filed a lawsuit against real parties, the

City of Simi Valley, James Bartholomew, Richard Wright, Anthony

Harper III, and Mark Layhew, and others. Her complaint alleges

causes of action for sexual harassment in violation of Government

Code section 12940 et seq., constructive discharge, intentional

interference with business relationship, and intentional

infliction of emotional distress.

 

for sexual harassment and intentional infliction of emotional

distress are preempted by the exclusive provisions of workers'

compensation laws. (Lab. Code, §§ 132a, 3601; Cole v. Fair

Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 151

[233 Cal.Rptr. 308, 729 P.2d 743].) They also asserted that the cause

of action for sexual harassment was barred by the statute of

limitations. (Gov. Code, § 12960.) Respondent superior court

sustained the demurrers with leave to amend.

 

parties demurred to the amended complaint upon grounds similar to

their first demurrers.

Page 346

 

as to the causes of action for sexual harassment and emotional

distress. It held that Accardi did not state a cause of action

for sexual harassment and emotional distress. The court also

ruled that Labor Code section 132a preempted the cause of action

for intentional infliction of emotional distress and held that

the cause of action for sexual harassment was time-barred. The

claim of constructive discharge was the only cause of action to

survive the demurrers.

 

way of a petition for extraordinary writ from this court. We have

issued an alternative writ of mandate. (Omaha Indemnity Co. v.

Superior Court (1989) 209 Cal.App.3d 1266, 1273-1274

[258 Cal.Rptr. 66].)

 

contained in a complaint (White v. Davis (1975) 13 Cal.3d 757,

765 [120 Cal.Rptr. 94, 533 P.2d 222]), this court assumes

the truth of all well-pled allegations contained in the

complaint. "The question of plaintiffs' ability to prove these

allegations, or the possible difficulty in making such proof,

does not concern the reviewing court." (Fisher v. San Pedro

Peninsula Hospital (1989) 214 Cal.App.3d 590, 604 [262 Cal.Rptr. 842]

.)

 

an officer of the Police Department of the City of Simi Valley in

November 1980. During her tenure, between November 1980 and July

1991, she claims to have been subjected to numerous and

continuing episodes of discrimination and harassment because of

her sex. The misconduct she specifies includes, among other

things, spreading untrue rumors about her abilities, deliberately

singling her out for unfavorable work assignments and work

shifts, making unsubstantiated complaints about her performance,

making statements that her baton was only useful to perform sex

acts, stuffing her shotgun barrels with paper so that the weapon

would explode if fired, spreading rumors that she had slept with

superior officers in order to receive favorable assignments, and

threatening to disrupt her wedding.

 

overburdening her with double work assignments; denying

assistance when she requested it; deliberately circumventing

established procedures when she was assigned to duty as a court

officer in order to make her work more difficult; excluding her

from group activities; mimicking and making fun of her before her

peers in the unit; admitting to her that there were double

standards and telling her she must live with them; allowing

threats of bodily harm to be made to her in front of a room

filled with officers; allowing derogatory and condescending

remarks to be made about her, and women in general; and making

sexual advances to her.

Page 347

 

her fellow officers by: advising her to accept the double

standard and not doing anything about the harassment; allowing

the filing of false reports; assigning duties to her only because

she was a woman; causing false and misleading medical reports to

be filed alleging that petitioner was 100 percent fit

notwithstanding a permanent Workers' Compensation Appeals Board

declaration that she was 28 3/4 percent disabled; excluding her

from work details to which all other partially disabled officers

were assigned; ordering her to either declare herself 100 percent

fit, or file for early retirement; and telling petitioner she

would be eligible for early retirement only if she were 30

percent disabled.

 

concert as the representative, employee, or agent, of the other

defendants.

 

of employment. (Jones v. Los Angeles Community College Dist.

(1988) 198 Cal.App.3d 794 [244 Cal.Rptr. 37].) 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. (Meninga v. Raley's, Inc. (1989)

216 Cal.App.3d 79, 90 [264 Cal.Rptr. 319].)

 

lies within the provisions of Labor Code section 132a This

section provides remedies for employees whose employers have

retaliated against them for filing a workers' compensation claim.

The intent of the statute is to deter employers from

discriminating against injured employees who assert their rights

under the workers' compensation laws. (Judson Steel Corp v.

Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 658, 668

[150 Cal.Rptr. 250, 586 P.2d 564].) A claim under section 132a lies

within the exclusive jurisdiction of the Workers' Compensation

Appeals Board. (Portillo v. G.T. Price Products, Inc. (1982)

131 Cal.App.3d 285 [182 Cal.Rptr. 291].)

 

not claim her employer retaliated against her because she filed a

workers' compensation claim. She claims she is the victim of

sexual harrassment.

 

individual because of their sex. (42 U.S.C. § 2000e-2(a)(1); Gov.

Code, § 12940 et

Page 348

seq.) Article I, section 8 of the California Constitution

prohibits the discrimination in employment based on "sex, race,

creed, color, or national or ethnic origin."

 

(Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 67 [91

L.Ed.2d 49, 59, 106 S.Ct. 2399]; Katz v. Dole (4th Cir. 1983)

709 F.2d 251, 254; Lindemann et al., Sexual Harassment in

Employment Law (1992) pp. 9-10.) There are two actionable types

of sexual harassment: 1. Quid pro quo harassment. This form of

harassment occurs when a term of employment is conditioned upon

unwelcome sexual advances. (Highlander v. K.F.C. Nat.

Management Co. (6th Cir. 1986) 805 F.2d 644.) 2. The creation of

a hostile work environment for the employee because of that

employee's sex. (Chamberlin v. 101 Realty, Inc. (1st Cir.

1990) 915 F.2d 777, 782, quoting 29 C.F.R. § 1604.11(a) (1983).)

Hostile environment and quid pro quo harassment claims are not

always separate and distinct, but in this case the sexual

harassment claim arises out of a hostile work environment.

(Fisher v. San Pedro Peninsula Hospital, supra,

214 Cal.App.3d at p. 607.)

 

the first type of sexual harassment, that which involves

unwelcome sexual advances. For example, in Henson v. City of

Dundee (11th Cir. 1982) 682 F.2d 897, a female police dispatcher

stated a claim for sexual harassment where she alleged she had

been denied promotion because she had rejected her supervisor's

request for sexual favors. (See also Sampayo-Garraton v. Rave,

Inc. (D.P.R. 1989) 726 F. Supp. 18.)

 

hostile work environment, need not have anything to do with

sexual advances. (Andrews v. City of Philadelphia (3d Cir.

1990) 895 F.2d 1469, 1485; McKinney v. Dole (D.C. Cir. 1985)

765 F.2d 1129, 1138 [246 App.D.C. 376]; see Lindemann & Kadue,

Sexual Harassment in Employment Law (1992) p. 174.) It shows

itself in the form of intimidation and hostility for the purpose

of interfering with an individual's work performance.

(Chamberlin v. 101 Realty, Inc., supra, 915 F.2d at p. 782,

quoting 29 C.F.R. § 1604.11(a) (1983).) To plead a cause of

action for this type of sexual harassment, it is "only necessary

to 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.'" (Tomkins v.

Public Serv. Elec. & Gas Co. (3d Cir. 1977) 568 F.2d 1044,

1047, fn. 4.)

 

(Andrews v. City of Philadelphia (3d Cir. 1990)

895 F.2d 1469, 1485 [". . . the pervasive use

Page 349

of derogatory and insulting terms relating to women generally and

addressed to female employees personally may serve as evidence of

a hostile environment."]; Hall v. Gus Const. Co., Inc. (8th

Cir. 1988) 842 F.2d 1010 [incidents of cruel practical jokes,

although not conduct of a sexual nature, may be properly

considered to constitute sexual harassment]; Broderick v.

Ruder (D.D.C. 1988) 685 F. Supp. 1269 [supervisor obtains sexual

favors from subordinates other than complainant].)

 

creates a hostile, offensive, oppressive, or intimidating work

environment and deprives its victim of her statutory right to

work in a place free of discrimination, when the sexually

harassing conduct sufficiently offends, humiliates, distresses or

intrudes upon its victim, so as to disrupt her emotional

tranquility in the workplace, affect her ability to perform her

job as usual, or otherwise interferes with and undermines her

personal sense of well-being.' [Citation.]" (Fisher v. San

Pedro Peninsula Hospital, supra, 214 Cal.App.3d at p. 608.)

 

discrimination, under the provisions of FEHA, must first file a

claim with the DFEH. The administrative complaint must be filed

within one year of the date upon which the alleged act of

discrimination occurred. (Gov. Code, § 12960.)

 

that is known as the continuing violation doctrine. (Waltman v.

International Paper Co. (5th Cir. 1989) 875 F.2d 468, 474-475.)

Under this doctrine, a complaint arising under FEHA is timely if

any of the discriminatory practices continues into the

limitations period. (Valdez v. City of Los Angeles (1991)

231 Cal.App.3d 1043, 1053 [282 Cal.Rptr. 726]; see also Abrams v.

Baylor College of Medicine (5th Cir. 1986) 805 F.2d 528,

532-533.) Thus, a "`. . . ". . . systematic policy of

discrimination is actionable even if some or all of the events

evidencing its inception occurred prior to the limitations

period." . . .'" (Watson v. Department of Rehabilitation

(1989) 212 Cal.App.3d 1271, 1290-1291 [261 Cal.Rptr. 204].)

 

is not available to Accardi because there is no pattern of

continuous sexual harassment. Her allegations of events occurring

within one year prior to the filing of the DFEH complaint do not

relate to sexual harassment. In support of this proposition, they

note that those allegations merely concern a disputed workers'

compensation claim, job assignments, and disability claims. Real

Page 350

parties, therefore, assert that Accardi has failed to plead a

continuous pattern of discrimination and, as such, her claim is

barred by the statute of limitations. (Fisher v. San Pedro

Peninsula Hospital, supra, 214 Cal.App.3d at p. 613.)

 

harassment claim. "Sexual harassment can take place in many

different ways. A female worker need not be propositioned,

touched offensively, or harassed by sexual innuendo — all of

which occurred here." (Burns v. McGregor Electronic

Industries, Inc. (8th Cir. 1993) 989 F.2d 959, 964.)

 

Department waged a decade-long campaign against her. This

campaign is founded upon the department's unwritten policy that

law enforcement has traditionally been "a man's job" and, hence,

"no women need apply." (See Schultz, Telling Stories About Women

and Work: Judicial Interpretations of Sex Segregation in the

Workplace in Title VII Cases Raising the Lack of Interest

Argument (1990) 103 Harv. L.Rev. 1750.)

 

pervasive so as to establish the existence of a long-standing

abusive working environment. (Meritor Savings Bank v. Vinson,

supra, 477 U.S. at p. 67 [91 L.Ed.2d at p. 59]; see also

Jordan v. Wilson (M.D.Ala. 1986) 649 F. Supp. 1038, 1058

["discriminating against women because they are women was and

remains the `standard operating procedure' within the City of

Montgomery Police Department."].)

 

with the hostile environment in 1980. Upon reporting for duty,

she was advised that male officers did not wish to have a female

officer on patrol with them. She claims that, in the ensuing

years, she was the object of discrimination that took the form of

threats, rejection, mockery, application of double standards,

sexual advances, and intimidation. The amended complaint alleges

a well-established pattern of conduct that created a hostile work

environment from 1980 through 1989.

 

claims that in 1989 she suffered a knee injury and was placed on

restrictive duty. She alleges that in 1991 she was excluded from

certain light duty assignments that were given to injured male

officers. Accardi asserts that in 1991 city employees filed false

and misleading medical reports that stated she was no longer

disabled. She was told by her superiors to either declare herself

100 percent fit, or quit the police force.

 

place in 1989 through 1991 may not be actionable for sex

discrimination. But, a complaint

Page 351

for sexual harassment must not be read too narrowly. (Burns v.

McGregor Electronic Industries, Inc. (8th Cir. 1992)

955 F.2d 559, 564.) A single photograph of two sumo wrestlers engaged in

combat may give the impression they are dancing a pas de deux.

One must witness the entire match to appreciate its meaning and

significance. "A play cannot be understood on the basis of some

of its scenes but only on its entire performance, and similarly,

a discrimination analysis must concentrate not on individual

incidents, but on the overall scenario." (Andrews v. City of

Philadelphia, supra, 895 F.2d at p. 1484.)

 

"`the record as a whole'" and "`the totality of circumstances. .

. .'" (Meritor Savings Bank v. Vinson, supra, 477 U.S. at p.

69 [91 L.Ed.2d at p. 61]; Snell v. Suffolk County (2d Cir.

1986) 782 F.2d 1094, 1103.) A view of the events from beginning

to end enables the trier of fact to see their relationship to one

another, and consequently their meaning and significance. That

there are gaps between specific incidents of sexual harassment

does not preclude a finding of continuing violation. (Waltman

v. International Paper Co., supra, 875 F.2d at pp. 475-476.)

 

1989 through 1991, if viewed as solitary events, could be

nondiscriminatory, and therefore legitimate. A seemingly

nondiscriminatory reason for an employment decision, however, may

be a pretext for what in fact is a discriminatory reason for the

employer's decision. (Sims v. Cleland (6th Cir. 1987)

813 F.2d 790, 792.)

 

1989 through 1991 were a continuation of prior discriminatory

practices and that these actions were used as a pretext to

provide a deceptive cover of legitimacy. The seemingly

nondiscriminatory activities relating to job assignments because

of disability may have been undertaken with the purpose of

ridding the police department of female officers.

 

classified as partially disabled. She would have been assigned to

light duty tasks and would have been allowed to remain with the

police force. This assertion, when coupled with the other actions

which allegedly took place during Accardi's association with the

Simi Valley Police Department, form a deliberate pattern of

discrimination that continued during the entire period of her

employment. (Teamsters v. United States (1977) 431 U.S. 324,

336 [52 L.Ed.2d 396, 416, 97 S.Ct. 1843]; Waltman v.

International Paper Co., supra, 875 F.2d at pp. 474-477;

Shrout v. Black Clawson Co. (S.D.Ohio 1988) 689 F. Supp. 774,

778-779.) If credited, these acts constitute a continuous

manifestation of a sex-based animus that would bring the prior

acts within the statute of limitations.

Page 352

 

relations involving, for example, promotions, demotions,

criticism of work practices, negotiations as to grievances, is a

normal part of the employment environment. A cause of action for

such a claim is barred by the exclusive remedy provisions of the

workers' compensation law. (Lab. Code, § 3601, subd. (a); Cole

v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d at p.

160.) The Legislature, however, did not intend that an employer

be allowed to raise the exclusivity rule for the purpose of

deflecting a claim of discriminatory practices. (Flait v.

North American Watch Corp. (1992) 3 Cal.App.4th 467, 480

[4 Cal.Rptr.2d 522]; Goldman v. Wilsey Foods, Inc. (1989)

216 Cal.App.3d 1085, 1095-1096 [265 Cal.Rptr. 294].)

 

out of employment, is not barred where the distress is engendered

by an employer's illegal discriminatory practices. (Watson v.

Department of Rehabilitation, supra, 212 Cal.App.3d at pp.

1285-1286.) "`. . . A responsible attorney handling an employment

discrimination case must plead a variety of statutory, tort and

contract causes of action in order to fully protect the interests

of his or her client. . . .' [Citation.] Although the common law

theories do not per se `relate to discrimination,' they are

nonetheless a standard part of a plaintiff's arsenal in a

discrimination case." (Rojo v. Kliger (1990) 52 Cal.3d 65, 74

[276 Cal.Rptr. 130, 801 P.2d 373], italics deleted.)

 

[16 Cal.Rptr.2d 330], in support of their assertion

that the exclusivity provision of the workers' compensation act

bars petitioner's claim. In Davaris, the plaintiff claimed that

she had been discriminated against when, after informing her

employer that she needed time off in order to have a

hysterectomy, she was terminated from employment.

 

action for intentional infliction of emotional distress. It ruled

that the injuries alleged fell within the purview of the

exclusivity provision of the Workers' Compensation Act. Plaintiff

appealed. She asserted that her employer's conduct violated "`the

public policy of this state to encourage proper medical care.'"

(Davaris v. Cubaleski, supra, 12 Cal.App.4th at p. 1589.)

 

that plaintiff had failed to allege a cognizable public policy

which was violated by her termination. (Davaris v. Cubaleski,

supra, 12 Cal.App.4th at p. 1589.) It concluded that plaintiff's

emotional distress injuries are subsumed under the exclusive

remedy provisions of workers' compensation. (Id., at p. 1588.)

 

alleges that she suffered emotional distress because of the

pattern of continuing violations

Page 353

which were discriminatory; her cause of action for emotional

distress is founded upon actions that are outside the normal part

of the employment environment and violate this state's policy

against sex discrimination. As such, her claim for emotional

distress arising out of sexual harassment is not barred by the

exclusivity provisions of workers' compensation laws. (Gantt v.

Sentry Insurance (1992) 1 Cal.4th 1083, 1100 [4 Cal.Rptr.2d 874,

824 P.2d 680].)

 

same set of facts as alleged in the claim of discrimination. Her

discrimination claims are based upon allegations of actions

outside the normal part of her employment environment. Therefore,

her claim for discrimination is not barred by the exclusivity

provisions of workers' compensation law.

 

Accardi's common law cause of action for emotional distress is

not tolled under the doctrine of continuing violations. They did

not raise this argument in the trial court, nor did they raise it

in their response to the original writ petition. (9) It is

elemental that an issue may not be raised on appeal unless it has

first been made in the court below. (Bogacki v. Board of

Supervisors (1971) 5 Cal.3d 771, 779-780 [97 Cal.Rptr. 657,

489 P.2d 537].) To what extent, if any, Accardi's claim for emotional

distress falls outside the statute of limitations will have to be

the subject of future proceedings.

 

that one "`. . . run a gauntlet of sexual abuse. . . .'"

(Meritor Savings Bank v. Vinson, supra, 477 U.S. at pp. 66-67

[91 L.Ed.2d at p. 59], quoting Henson v. Dundee, supra, 682

F.2d at p. 902.) Accardi alleges that because of her sex she was

forced to suffer sexual harassment for 11 years while employed

with the Simi Valley Police Department. She shall have the

opportunity to prove these allegations.

 

court set aside its order sustaining the demurrers to the first

and third causes of action of the first amended complaint, and

enter a new order overruling the demurrers. The alternative writ,

having served its purpose, is discharged.

 

opinion was modified to read as printed above. The petition of

real parties in interest for review by the Supreme Court was

denied November 16, 1993.

Page 354

 

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