Brian Lewis, a heterosexual male, worked at the City of Benicia's water treatment plant as a volunteer (beginning in March 2008), as a paid intern for a 60-day internship (from July to October 2008), and again as a volunteer (from January to May 2009).  Lewis sued the City and two former supervisors, Steve Hickman and Rick Lantrip, under the Fair Employment and Housing Act (FEHA) for sexual harassment and failure to prevent harassment, and asserted a retaliation cause of action against the City.  He also brought a claim for intentional infliction of emotional distress. 

The superior court granted Hickman and Lantrip's motion for summary judgment and the City's motion for judgment on the pleadings as to all claims except for the retaliation claim, which proceeded to trial.  The jury returned a special verdict in which it found in favor of the City.  Lewis appealed the judgment in favor of the City, as well as the court's grant of Hickman and Lantrip's motion for summary judgment.  The Court of Appeal affirmed in part and reversed in part.

Under FEHA, an employee who harasses another employee may be held personally liable.  In order to prove sexual harassment in the form of a hostile work environment, an employee must show (1) he was subjected to unwelcome sexual advances, conduct, or comments; (2) the harassment was based on sex; and (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.  Sexual harassment can occur between members of the same gender so long as the plaintiff can establish that the harassment amounted to discrimination because of sex.  This may include evidence that the harasser engaged in sexual comments and propositions and was motivated by a sexual interest. 

The Court of Appeal held that the trial court should not have granted Hickman's motion for summary judgment because Lewis presented sufficient evidence to create a triable issue of fact regarding whether Hickman, Lewis's supervisor during his first volunteer period and most of his paid internship, harassed Lewis because of his sex.  The Court determined that Lewis alleged sufficient conduct to allow an inference that Hickman was pursuing a romantic or sexual relationship with him.  For instance, Lewis alleged that Hickman gave him numerous gifts, including underwear, and frequently bought lunch for Lewis.  Hickman also allegedly showed Lewis pornographic images on his computer, told Lewis risqué jokes, and once said that Lewis should visit his home, and asked Lewis "[W]hy don't you kiss me[?]."

The Court also held that Lewis created an issue of material fact as to whether Hickman's conduct was sufficiently severe or pervasive enough to alter Lewis's working conditions.  Courts must evaluate the working environment in light of the totality of the circumstances, including the frequency and severity of the conduct.  Lewis alleged conduct that occurred over a period of several months and that included numerous gifts, sexual jokes, and pornographic images.  While Hickman may ultimately prove that he did not sexually harass Lewis, the Court of Appeal held that Lewis raised triable issues of fact and therefore the trial court erred by granting Hickman's motion for summary judgment. 

The Court held, however, that the trial court correctly granted summary judgment in favor of Lantrip, Lewis's supervisor for the last few weeks of his paid internship and his second volunteer period.  Lewis alleged that Lantrip displayed pornographic images on the work computer belonging to a secretary and showed them to everyone "in the general vicinity."  Lantrip also told obscene jokes and frequently massaged the shoulders of the secretary in the presence of other employees.  The Court held that this was insufficient to raise a triable issue of fact as to whether Lantrip sexually harassed Lewis under any sexual harassment theory.  There was no evidence that Lantrip pursued a sexual relationship with Lewis or was motivated by any sexual interest, nor was there evidence that Lantrip attacked Lewis's sexual identity as a heterosexual male.  Lantrip's touching of the secretary was insufficient to raise an inference that Lantrip was engaging in widespread sexual favoritism.  Thus, the Court of Appeal affirmed the superior court's grant of Lantrip's motion for summary judgment.

When the trial court originally found that Hickman and Lantrip did not sexually harass Lewis, it found that the City could not be liable for sexual harassment or failure to prevent harassment and granted its motion for judgment on the pleadings.  When the Court of Appeal reversed summary judgment in favor of Hickman, the possibility of liability for the City was renewed, and the Court of Appeal therefore reversed the grant of judgment on the pleadings for the causes of action against the City for sexual harassment and failure to prevent harassment.

The Courth then addressed Lewis's retaliation claim.In order to prove retaliation, the employee must show that (1) he engaged in protected activity, (2) the employer took adverse action, (3) the protected activity was a motivating reason for the adverse action, and (4) the employer's conduct caused harm to the employee.  The jury found that Lewis proved the first three factors, but that the City's conduct was not a substantial factor in causing harm to Lewis. 

Lewis argued, and the Court of Appeal agreed, that the superior court should have allowed Lewis to present evidence of Hickman's sexually harassing conduct.  The superior court excluded the evidence on the basis that the sexual harassment claims were no longer at issue, and therefore the evidence was irrelevant and unduly prejudicial.  While the court had broad discretion to limit the scope of the harassment evidence, it was abuse of that discretion to exclude all of the evidence.  Evidence of the sexual harassing conduct was relevant to all of the retaliation elements.  For instance, if Lewis's workplace complaint concerned only minor or innocuous conduct, it is less likely that the City would be motived to retaliate against him.  Similarly, if the alleged retaliatory acts were part of a larger course of harassing conduct, it is more likely that the retaliation would have caused Lewis to suffer emotional distress.  Therefore, Lewis should have been able to offer at least some evidence of Hickman's conduct.   

The Court of Appeal rejected Lewis's request for a limited retrial on the causation-of-harm element.  A court may not enter a partial special verdict that fails to dispose of all of the elements of a single cause of action, and it would cause confusion and uncertainty to ask a jury to determine one element of a cause of action.  Therefore, a full retrial on the retaliation claim is necessary.

Note: 

There is currently a split among the Courts of Appeal regarding whether a plaintiff who is alleging same-gender sexual harassment based on sexual propositions or comments is required to show that the harasser was motivated by a sexual interest.  The Court in Lewis declined to decide this issue, but noted that FEHA was recently amended to read: "Sexually harassing conduct need not be motivated by sexual desire."  Gov. Code 12940(j)(4)(C).  In our March, 2014 Client Update, we also reported on the decision in Taylor v. Nabors Drilling USA, Inc. (2014) 222 Cal.App.4th 1228 which held that same-sex sexual harassment does not have to be based on sexual desire or sexual intent.

The Court also declined to address the issue of whether Lewis was entitled to the protections of FEHA while working as a volunteer.  Lantrip, but not Hickman, argued that Lewis was only entitled to FEHA protection while working as a paid intern.  However, because the Court affirmed the grant of summary judgment in Lantrip's favor, it did not have to answer that question.  The question may be answered by the Legislature.  Assembly Bill 1443, which was introduced January 6, 2014, seeks to amend the FEHA to apply existing anti-discrimination protections to interns and other unpaid volunteers.  We will keep you updated on the status of this bill. 

Lewis v. City of Benicia (2014) __ Cal.App.4th __ [2014 WL 1232694].