California Court of Appeal Feb 4, 2015 No. D065443Unpublished
Filed 2/4/15 Montiel CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SARITA MONTIEL, D065443
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2010-00094241- CU-WT-CTL) PATENAUDE & FELIX, APC, et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County, Joan M.
Lewis, Judge. Affirmed in part, reversed in part, remanded with directions.
Keegan & Baker and Brent Jex for Plaintiff and Appellant.
Paul, Plevin, Sullivan & Connaughton, J. Rod Betts and Michael J. Etchepare for
Defendants and Respondents.
Sarita Montiel, an employee of Patenaude & Felix, APC (P&F), sued P&F and
William Nelson (Nelson and P&F, together Respondents) alleging several causes of
action under the California Fair Employment and Housing Act (Gov. Code, § 12900 et
seq.;1 FEHA) as well as other claims, including battery and intentional infliction of
emotional distress. The superior court entered judgment for Respondents after granting
their motion for summary judgment. Montiel appeals the judgment.
We determine that summary adjudication was proper as to all but one of Montiel's
claims. Montiel has raised a disputed issue of material fact in regard to her battery claim.
As such, we reverse the judgment as to that claim only and remand this matter for further
proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
P&F is a law firm, managed by Raymond Patenaude, representing clients in
litigation and recovery of unpaid consumer debt. P&F hires legal account representatives
to contact debtors and obtain payment. Collection teams are supervised by a team lead,
and the firm has an assistant collections manager, collections manager, and attorneys.
P&F has a policy prohibiting harassment, discrimination, and retaliation in the
workplace. P&F also has a policy that prohibits workplace violence: "Acts or threats of
physical violence, including intimidation, harassment, and/or coercion, that involve or
affect P&F or that occur on P&F property or in the conduct of P&F business off P&F
property, will not be tolerated . . . . Violations of this policy, by any individual, will lead
to disciplinary and/or legal action as appropriate."
P&F hired Nelson in 2001, promoted him to assistant collections manager in 2004,
and to collections manager in 2009.
1 Statutory references are to the Government Code unless otherwise specified. 2
P&F hired Montiel as a legal account representative in 2006, and she was assigned
to the "Target Team," resolving debt for Target Corporation. Montiel reported to team
lead David Jauregui, who reported to assistant collections manager Robert Merrigan, who
reported to Nelson.
Montiel claims Nelson engaged in a variety of unwanted conduct in 2009 and
2010. He massaged her shoulders, touched her inappropriately, flirted with her, asked
her to kiss him on the cheek, and stared at her. She also claims some conduct (including
more unwanted touching, attempts to kiss Montiel in an elevator, and pushing up against
her) may have occurred in 2011, but she does not specify any actual dates, not even the
month any of the actions occurred. Montiel admits this alleged conduct "slowed down"
in 2011, and states Nelson allegedly shifted attention to a different employee at that time.
Montiel reported Nelson's alleged conduct to P&F in January or February 2011,
when she made an oral complaint to Danielle Warner, human resources manager. It is
unclear from the record what Montiel told Warner Nelson was doing. Although Warner
generally requested employees to make written complaints, Montiel did not do so in
regard to Nelson.
On March 29, 2011, Montiel complained to Warner that her supervisors would
stand behind her and listen to her phone calls. Montiel also complained to Patenaude,
stating she just needed to "vent" and was upset with her supervision. Despite these
complaints, Montiel praised P&F, and stated "I love working here I think you
[Patenaude] are a good boss and you know I like you . . . ." Montiel did not mention
concerns about Nelson or any sexual harassment. Montiel also spoke to Nelson regarding
3
her issues with the supervision. Montiel thanked Nelson for meeting with her and Nelson
responded by telling Montiel she was "a great collector and a great person."
On April 6, 2011, Montiel alleges she was talking to a male coworker (Keith
Austin) regarding eating sweets. Merrigan overhead the conversation and allegedly said,
"It's going to all the right places." Montiel complained and Warner set up a meeting the
same day to investigate. Montiel later thanked Warner for "making [her] feel
comfortable" during the meeting. On April 12, 2011, Montiel told Warner she wanted to
drop the complaint. Warner still investigated, including interviewing Merrigan and
Austin, but could not verify the statement was made. Both Merrigan and Austin denied
the incident completely.
On May 3, 2011, Nelson overheard Montiel yelling at Jauregui because Jauregui
was moving Montiel's desk next to his. As part of P&F's regular procedure of monitoring
employee phone calls for legal compliance, Montiel had been observed making personal
phone calls during work hours in violation of company policy, and Jauregui wanted her
to move next to him to monitor the issue. When Nelson intervened, Montiel threatened
him, stating she had spoken to her attorney and Nelson was "going down," he needed to
"watch his back," and she had "shit on [him]." Nelson reported the threats to Warner and
Patenaude.
Montiel e-mailed Patenaude and complained she did not like the way Nelson
spoke to her about the incident, and he should have taken her into a private office to
discuss the situation. Patenaude met with Montiel, but she did not report any sexual
harassment. Montiel thanked Patenaude for meeting and apologized to Nelson via
4
e-mail, stating she did not want to jeopardize their friendship: "[I don't want] to throw all
those yrs [sic] down the drain," and "I JUST FELT LIKE WE WERE SUCH GOOD
FRIENDS THAT WHEN U DON'T HAVE MY BACK 100% I GET LIKE THAT BUT
I DO UNDERSTAND UR [sic] POSITION . . . ."
On August 3, 2011, Montiel complained she was being "harassed" by coworker
Muriely Carter, and Carter was trying to hit coworkers with her car. Warner investigated,
but found nothing to substantiate these claims. Montiel complained again on August 11,
2011 that Carter was "talking poop," and Montiel stated "one day it's going to turn
another way once I have had it . . . ." Warner facilitated a meeting between Carter and
Montiel. During the meeting, Montiel told Carter they should take the matter "to the
streets," which Warner and attorney Michael Boulanger, also in attendance, interpreted as
a threat. Montiel admitted making the statement. Warner issued written warnings to both
Carter and Montiel. Montiel was informed she would be discharged if she engaged in
further threatening behavior.
In response, Montiel wrote a resignation e-mail on August 12, 2011. She stated:
"I do like my boss [Jauregui] he is a good boss and friend . . . and [Patenaude] you have
always been there for me I really like having you as a boss you have always had my back
and I love you for that I could always go to you and for some reason you understand me .
. . and [Nelson] you have always been there for me and I want to thank you . . . ."
Montiel then e-mailed two coworkers and stated "I just quit." However, Montiel did not
resign.
5
On August 17, 2011, coworker Broderick Crawford complained Montiel called
him a "terrorist." Warner met with Montiel to discuss the incident. Montiel was
extremely defensive, and while Warner assured her the meeting was to get Montiel's side
of the story, Montiel became disrespectful, unprofessional, and raised her voice. Given
Montiel's behavior and recent warning for threatening a coworker, Warner suspended
Montiel for seven days, and issued her a final warning: "P&F cannot have this behavior
continue; therefore this is your LAST and FINAL WARNING. [¶] . . . Further, if you are
found violating or conducting yourself in a less than professional manner again, you will
be terminated immediately."
On September 13, 2011, Montiel e-mailed Warner to report an alleged incident
from almost a month earlier, on August 17, 2011, but that Montiel had not previously
reported. Montiel claimed Merrigan told her she needed to think with her head. Montiel
told Merrigan she thought with her heart, to which he allegedly responded, "And what
two big hearts you have." Warner investigated, but was unable to substantiate the
complaint. In fact, on the same day Merrigan allegedly made this comment, Montiel
e-mailed Merrigan and told him, "I just want to thank you I feel like you're the only one
here who has both sides . . . ."
Less than a month after receiving a written warning and seven-day suspension for
aggressive behavior, Montiel threatened coworker Milton Jones on September 15, 2011,
stating, "I can get you handled." Jones believed the statement, which occurred during an
argument, was a threat and reported it to Warner. Carter also overheard the comment and
reported it as a threat.
6
Warner promptly interviewed Jones, Carter, and Montiel. Jones and Carter
independently corroborated the incident, and Warner substantiated the statement was
made and perceived as a threat by multiple employees. Warner immediately telephoned
Patenaude, who was out of the office, and informed him of the incident. Patenaude
considered the new incident, the two previous incidents, and that Montiel was on a "final
warning," and directed Warner to terminate Montiel for repeated violations of P&F's
workplace violence policy. Patenaude was the sole decision maker. At the time of the
decision, Patenaude was unaware of any alleged harassment complaints by Montiel.
Montiel e-mailed Patenaude at 4:32 p.m. on September 15, 2011, complaining about
sexual harassment. Patenaude, who was not in the office, apparently did not see the e-
mail before making the termination decision. Montiel admits she had either already been
informed of the termination or knew termination was imminent when she sent the e-mail.
Warner informed Montiel of the termination, and Montiel threatened Warner,
implying she knew where Warner lived.
In response to her termination, Montiel filed suit. In the second amended
complaint, which was the operative complaint, Montiel names P&F, Nelson, Patenaude,
and Target Corporation as defendants. The complaint contained 13 causes of action:
(1) hostile work environment sexual harassment in violation of section 12940,
subdivision (j) (against all defendants); (2) quid pro quo sexual harassment in violation of
section 12940, subdivision (j) (against all defendants); (3) sex-based discrimination in
violation of section 12940, subdivision (a) (against Patenaude & P&F); (4) failure to
prevent sexual harassment in violation of section 12940, subdivision (k) (against
7
Patenaude & P&F); (5) unlawful retaliation in violation of section 12940, subdivision (h)
(against Patenaude & P&F); (6) wrongful termination in violation of public policy
(against P&F); (7) intentional infliction of emotional distress (against Nelson and P&F);
(8) battery (against Nelson); (9) failure to engage in interactive process regarding
disability in violation of section 12940, subdivision (n) (against Patenaude & P&F); and
causes of action 10 through 13, consisting of various alleged Labor Code violations.
Montiel dismissed these last four cases of action with prejudice.
Respondents filed a motion for summary judgment, or in the alternative, a motion
for summary adjudication, which was supported by evidence and pleadings, including a
separate statement of undisputed material facts. Montiel filed an opposition that was
supported by evidence and pleadings, including her response to Respondents' separate
statement of disputed facts as well as her separate statement of undisputed facts.
Respondents filed a reply in support of their motion for summary judgment and objected
to some of the evidence submitted by Montiel in support of her opposition to the motion
for summary judgment.
After hearing oral argument and considering the pleadings and evidence, the court
granted the motion for summary judgment. In doing so, the court sustained 22 of 25
evidentiary objections made by Respondents. The court subsequently entered judgment
in favor of Respondents.
Montiel timely appealed.
8
DISCUSSION
Montiel claims the superior court committed reversible error in granting
Respondents' motion for summary judgment. Specifically, she contends: (1) the superior
court erred when it found Montiel had not presented evidence that the reason for her
termination was pretextual; (2) Respondents did not carry their burden in establishing a
statute of limitations defense as to the first two causes of action; (3) her complained of
conduct was sufficiently severe and pervasive to alter her terms and conditions of
employment; (4) there was sufficient evidence of quid pro quo harassment; (5) there was
adequate evidence that P&F failed to engage in an interactive process; (6) her claim of
battery was not subject to the workers' compensation exclusivity rules; and (7) the fourth
and seventh causes of action should have survived summary judgment.
I
THE MOTION FOR SUMMARY JUDGMENT
A. Standard of Review
"On appeal after a motion for summary judgment has been granted, we review the
record de novo, considering all the evidence set forth in the moving and opposition
papers, except that to which objections have been made and sustained." (Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) Generally, if all the papers submitted
by the parties show there is no triable issue of material fact and the "moving party is
entitled to a judgment as a matter of law" (Code Civ. Proc., § 437c, subd. (c)), the court
9
must grant the motion for summary judgment. (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 843 (Aguilar).)2
In performing our independent review, we apply the same three-step process as the
trial court. "Because summary judgment is defined by the material allegations in the
pleadings, we first look to the pleadings to identify the elements of the causes of action
for which relief is sought." (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 159
(Baptist).)
"We then examine the moving party's motion, including the evidence offered in
support of the motion." (Baptist, supra, 143 Cal.App.4th at p. 159.) A defendant moving
for summary judgment has the initial burden of showing that a cause of action lacks merit
because one or more elements of the cause of action cannot be established or there is a
complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o); Aguilar,
supra, 25 Cal.4th at p. 850.)
If the defendant fails to make this initial showing, it is unnecessary to examine the
plaintiff's opposing evidence and the motion must be denied. However, if the moving
papers make a prima facie showing that justifies a judgment in the defendant's favor, the
burden shifts to the plaintiff to make a prima facie showing of the existence of a triable
2 There is some confusion whether the superior court ruled on Respondents' motion as a motion for summary judgment or a motion for summary adjudication. This distinction, however, does not matter for purposes of our review. We review rulings on motions for summary judgment and summary adjudication de novo, applying the same rules and procedures. (Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal.App.4th 807, 819; Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1726-1727.) 10
issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th
at p. 849; Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003.)
In determining whether the parties have met their respective burdens, "the court
must 'consider all of the evidence' and 'all' of the 'inferences' reasonably drawn therefrom
[citations], and must view such evidence [citations] and such inferences [citations], in the
light most favorable to the opposing party." (Aguilar, supra, 25 Cal.4th at p. 843.)
"There is a triable issue of material fact if, and only if, the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the party opposing the
motion in accordance with the applicable standard of proof." (Id. at p. 850, fn. omitted.)
Thus, a party "cannot avoid summary judgment by asserting facts based on mere
speculation and conjecture, but instead must produce admissible evidence raising a triable
issue of fact." (LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977,
981.)
B. Respondents' Objections to Evidence
Although a review of a judgment following the granting of a summary judgment
requires an independent review, "[a] different analysis is required for our review of the
trial court's . . . rulings on evidentiary objections. Although it is often said that an
appellate court reviews a summary judgment motion 'de novo,' the weight of authority
holds that an appellate court reviews a court's final rulings on evidentiary objections by
applying an abuse of discretion standard." (Carnes v. Superior Court (2005) 126
Cal.App.4th 688, 694.) Here, the court sustained 22 of Respondents' 25 objections to
evidence. It does not appear from the record that Montiel challenged the objections with
11
the superior court. Nor did she argue that court abused its discretion or otherwise erred in
sustaining the objections.
Instead, Montiel ignores both the objections and the superior court sustaining the
objections and relies on excluded evidence in her opening brief. Further, she omits
Respondents' objections from her appendix although she included all other pleadings and
evidence filed in support of and in opposition to the motion for summary judgment.
Because Montiel has not challenged the superior court's ruling on these objections,
we will not review the court's evidentiary rulings nor will we consider any of the
evidence that has been excluded.
C. Causes of Action Nos. Three, Five, and Six
Montiel contends the superior court erred in finding that she had not presented
evidence to create a disputed material fact as to whether P&F's stated reason for her
termination was pretextual. Because of this claimed error, Montiel insists her third, fifth
and sixth causes of action should have survived Respondents' motion for summary
judgment. We disagree.
As a threshold matter, we note that the three causes of action at issue here involve
Patenaude's motivation to terminate Montiel's employment. For her third cause of action
for sex-based discrimination in violation of section 12940, subdivision (a), Montiel
claims she was fired because of her "sex as a woman."3 To support her fifth cause of
3 Montiel does not attempt to show she was terminated based on her gender. The entirety of her brief argues she was terminated for making complaints, not because she was a woman. To prove gender discrimination Montiel must demonstrate P&F engaged 12
action for unlawful retaliation in violation of section 12940, subdivision (h), Montiel
contends she was terminated for engaging in protected conduct (reporting sexual
harassment). And, for her sixth cause action for wrongful termination in violation of
public policy, Montiel insists she was fired for complaining about being harassed.
For causes of action based on FEHA like these, "California has adopted the three-
stage burden-shifting test established by the United States Supreme Court . . . ." (Guz,
supra, 24 Cal.4th at p. 354.) This approach requires the plaintiff "to establish a prima
facie case of [an unlawful employment practice]. . . . [¶] . . . If the plaintiff meets this
burden, ' " 'the burden shifts to the defendant to [articulate a] legitimate
nondiscriminatory reason for its employment decision. . . .' . . ." ' . . . [¶] . . . [I]f the
defendant presents evidence showing a legitimate, nondiscriminatory reason, the burden
again shifts to the plaintiff to establish the defendant intentionally [engaged in an
unlawful employment practice] against him or her. [Citation.] The plaintiff may satisfy
this burden by proving the legitimate reasons offered by the defendant were false,
creating an inference that those reasons served as a pretext for [the unlawful employment
practice]." (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159-160 (Wills).)
"A defendant's summary judgment motion 'slightly modifies the order of these . . .
showings.' [Citation.] Consequently, the [defendant] ha[s] the initial burden to either (1)
negate an essential element of [the plaintiff's] prima facie case [citation] or (2) establish a
in the offending conduct because of her gender. (See Guz, supra, 24 Ca1.4th at p. 358.) Here, there is no evidence of a man being treated more favorably after repeatedly threatening employees. There is simply no evidence Montiel was terminated because she is a woman. For this reason alone, we reject all of Montiel's arguments in support of her third cause of action. 13
judgment [once the employer makes the foregoing showing], an employee . . . must offer
substantial evidence that the employer's stated nondiscriminatory reason for the adverse
action was untrue or pretextual, or evidence the employer acted with a discriminatory
animus, or a combination of the two, such that a reasonable trier of fact could conclude
the employer engaged in [an unlawful employment practice].' " (Wills, supra, 195
Cal.App.4th at p. 160.)
"In discrimination cases, proof of the employer's reasons for an adverse action
often depends on inferences rather than on direct evidence. . . . [E]ven though we may
expect a plaintiff to rely on inferences rather than direct evidence to create a factual
dispute on the question of motive, a material triable controversy is not established unless
the inference is reasonable. And an inference is reasonable if, and only if, it implies the
unlawful motive is more likely than defendant's proffered explanation." (Cucuzza v. City
of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.) Also " '[s]peculation cannot be
regarded as substantial responsive evidence.' [Citation.] In order to raise an issue as to
the employer's credibility, the employee must set forth specific facts demonstrating '
"such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the
employer's proffered legitimate reasons for its action that a reasonable factfinder could
rationally find them 'unworthy of credence." ' " (Ibid.; italics omitted.)
1. Legitimate Reason for Terminating Montiel
To establish a legitimate reason for disciplinary action, the employer must
" 'clearly set forth, through the introduction of admissible evidence, the reasons for the
14
[termination or demotion]. The explanation provided must be legally sufficient to justify
a judgment for the [employer].' " (Sada v. Robert F. Kennedy Medical Center (1997) 56
Cal.App.4th 138, 149.) Here, we find Respondents established a legitimate reason for
terminating Montiel's employment. They have provided evidence that during a meeting
with Warner and Carter, Montiel threatened Carter. After the meeting, Warner issued a
written warning to both Carter and Montiel. Montiel also was informed she would be
discharged if she engaged in further threatening behavior. Montiel later called a
coworker a terrorist and was suspended for seven days after she became disrespectful,
unprofessional, and repeatedly raised her voice during an interview with Warner. Along
with her suspension, Warner issued Montiel a final warning: "P&F cannot have this
behavior continue; therefore this is your LAST and FINAL WARNING. . . . [¶] . . .
Further, if you are found violating or conducting yourself in a less than professional
manner again, you will be terminated immediately."
Less than a month after receiving a written warning and seven-day suspension for
aggressive behavior, Montiel threatened Jones. Jones reported the threat to Warner.
Carter, another coworker, overheard the comment and reported it as a threat.
Warner investigated the manner, including talking to Montiel and determined
Montiel had threatened Jones. Warner then telephoned Patenaude and informed him of
the incident. Patenaude considered the new incident, the two previous incidents, and that
Montiel was on a "final warning," and directed Warner to terminate Montiel for repeated
violations of P&F's workplace violence policy.
15
Based on this evidence, we are satisfied Respondents have shown that Montiel's
employment was terminated because she violated P&F's employment policy against
workplace violence multiple times, including after she had received a written warning.
Violation of an employer's workplace violence policy is a legitimate nondiscriminatory
reason for termination. (Wills, supra, 195 Cal.App.4th at p. 168.)
2. Montiel's Assertion of Pretext
After the employer articulates a legitimate justification for termination, the
employee must prove, by substantial evidence, the reason was pretext for illegal
discrimination or retaliation. (Scotch v. Art Institute of California (2009) 173
Cal.App.4th 986, 1004 (Scotch).) Here, Montiel makes three arguments of pretext. First,
she argues, in passing, that she did not threaten Jones. Next, she maintains her
supervisors threatened her and tried to prevent her from complaining about the
harassment. Finally, Montiel insists other employees who made threats were not
terminated.
Montiel asserts the superior court erred in finding no evidence of pretext because
it is a disputed fact whether she even threatened Jones. She claims that she did not
threaten Jones, but, instead, in arguing with Jones after he called her a name, stated,
"[Y]ou shouldn't call a woman that. You should talk to a man like that." However,
Montiel's reliance on this disputed fact does not carry the day.
An employer does not have to prove its termination decision was correct. Rather,
an employer must merely prove it had an honest, good faith belief that termination was
warranted based on the facts as it understood them at the time. (Slatkin v. University of
16
Redlands (2001) 88 Cal.App.4th 1147, 1157.) Thus, an employer's perception, based on
the facts revealed during a good faith investigation, form a legitimate basis for the
decision even if later called into question. (Wills, supra, 195 Cal.App.4th at pp. 171-172;
King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 436 ["It is the
employer's honest belief in the stated reasons for firing an employee and not the objective
truth or falsity of the underlying facts that is at issue in a discrimination case"].)
In Wills, the employer terminated plaintiff for threatening coworkers. (Wills,
supra, 195 Cal.App.4th at p. 151.) In appealing a judgment following a successful
motion for summary judgment, Wills argued a triable issue of material fact existed on
whether her conduct reasonably could be interpreted as a threat. (Id. at p. 171.) The
Court of Appeal determined this was not "sufficient to create a triable issue of material
fact because the question is not whether Wills's comments and conduct reasonably could
be construed as threatening. Rather, the question is whether the [employer] honestly
believed Wills violated its written policy against verbal threats, threatening conduct, and
violence." (Id. at pp. 171-172.) And although Wills did not challenge the content of her
alleged threatening statement and Montiel does, we are satisfied, on the record before us,
the court's reasoning in Wills applies here.
Montiel does not dispute that she threatened Carter. She does not dispute that she
was unprofessional and raised her voice when she met with Warner after she called a
coworker a terrorist. She merely disputes what she said to Jones was actually a threat. In
other words, she disputes the last link in a chain of similar events that lead to Patenaude's
decision to terminate her employment. We do not find this argument so dissimilar to the
17
argument Wills proffered to distinguish the instant action from Wills, supra, 195
Cal.App.4th 143. It is not insignificant to our analysis that Montiel does not give more
than superficial treatment to this argument in her opening brief. In her 46-page brief, she
devotes one sentence and one footnote to this argument. She does not provide any
authority for her position nor does she address the holding of Wills. As such, we interpret
Montiel's lack of development of this argument to underscore its lack of merit.
Montiel's next claim of pretext is based on her argument that her supervisors
threatened her and tried to prevent her from making harassment complaints. Montiel
ignores that the people who allegedly "threatened" her employment for making
complaints about Nelson played no role in the termination. To state a claim for
retaliation, Montiel must show the decision maker was "aware of the protected activities."
(Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69-70
(Morgan).) The supposed retaliatory animus of someone who played no part in the
decision is irrelevant. (Id. at pp. 72-74.)
Morgan, supra, 88 Cal.App.4th 52 is instructive. In that case, the appellant
alleged retaliation because supervisors made the following comments: "[I]t was poor
judgment for appellant to use the grievance procedure and his doing so was 'probably a
detriment' [to his career]; [plaintiff] would never be rehired because he had filed the
grievance and . . . 'filing a grievance and the retaliation stuff may come up'; [if he
reapplied] it was a waste of [plaintiff's] time to file applications for rehire." (Id. at p. 70.)
The court disagreed, noting none of the supervisors were "authorized by [the
employer] to speak on the subject they addressed," and none "were involved in the
18
decisions not to rehire appellant." (Morgan, supra, 88 Cal.App.4th at p. 70.) Nor were
the comments "general examples of unlawful company policy" because they were
"speculation as to the likely outcome of appellant's job search by individuals who played
no role in the decisions regarding that search." (Id. at pp. 70-71.)
Here, Montiel complains her supervisors made the following comments:
(1) Merrigan stated, "You know, I'm going to tell you something. If it's between you or
Monty, you're going to be the one to go"; (2) Nelson stated, "You used to be like a fixture
in [P&F]. You weren't going anywhere"; and (3) Merrigan stated "he would fight fire
with fire," and he would "not stand by this time and do nothing."
Yet, in relying on these statements as evidence of pretext, Montiel fails to address
the fact that it is undisputed that Patenaude was the sole decision maker in deciding to
terminate her employment. There is no evidence Merrigan, Jauregui, or Nelson played
any role in that decision. Instead, coworkers Jones and Carter reported Montiel's threat to
Warner and Warner investigated. Warner informed Patenaude of her findings by
telephone, and Patenaude made the decision, while still on the phone, to terminate
Montiel. The threat, investigation, phone call, termination decision, and termination
meeting all occurred on the same day. There is no evidence that Patenaude solicited
input from Merrigan, Jauregui, or Nelson or that they provided any. Although Montiel
alleges several comments by Jauregui, Nelson, and Merrigan, these comments are
19
analogous to the "speculation" from nondecision makers dismissed in Morgan, supra, 88
Cal.App.4th 52.4
Also absent in the record is any indication that Patenaude had knowledge of
Montiel's complaints or harbored any animus against Montiel. The correspondence in
the record indicated that Montiel and Patenaude enjoyed a good, professional
relationship. And the evidence shows that Patenaude decided to terminate Montiel's
employment based solely on her threatening conduct in August and September 2011.5
Montiel's final argument that she presented sufficient evidence to establish
pretext depends on her claim that other employees were not terminated for violations
of the workplace violence policy. Specifically, she claims two employees once
shoved each other, another employee brought a knife to work, and Carter was an
aggressive employee with a 21-year-old felony conviction. Despite these "violations,"
Montiel asserts none of these employees were terminated. To establish pretext
4 Montiel for the first time in her reply brief argues that Nelson was involved in the investigation of Montiel's alleged threats and thus played some role in the decision to terminate Montiel. However, we need not address arguments made for the first time in a reply brief. (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894-895, fn. 10.) We also note Respondents filed a motion to strike certain portions of Montiel's reply brief for similar reasons. We deny the motion as moot as we will not consider arguments Montiel first makes in her reply brief.
5 Montiel contends Patenaude must have known about the harassment complaint when he made the termination decision because she sent him a complaint at 4:32 p.m. on September 15, 2011; the day of her termination. It is undisputed Patenaude was out of the office, and there is no evidence he received the e-mail prior to making the termination decision. This conclusion is further supported by Montiel's own testimony that she sent the e-mail after the investigatory meeting with Warner, and she was aware termination was imminent when she sent the e-mail. 20
because other "similarly situated employees" were not terminated, Montiel must show
other employees are similarly situated in all respects, that is, they " ' "engaged in the
same conduct without any mitigating or distinguishing circumstances." ' " (Wills,
supra, 195 Cal.App.4th at p. 172.)
First, Montiel claims that Jim Heidman and Frank Vargas pushed each other,
and neither was terminated. The only evidence Montiel offers to support this claim is
the testimony of a third party who admits he did not see the incident and does not
recall what was said or reported about the incident. Montiel presents no evidence
regarding what actually occurred, why it occurred, and the discipline each participant
received if any. Nor does she have evidence that they engaged in later misconduct
after being disciplined.
Montiel also complains Broderick Crawford brought knives to work, but was
not terminated. The evidence in the record shows that Crawford brought knives to
work and a coworker who noticed Crawford brought a knife to work told him that he
could not do so. Montiel presents no evidence regarding when or if management
learned about the incident, what discipline Crawford received, and whether he
violated the policy after being warned.
Additionally, Montiel complains P&F did not discipline or terminate Carter
although she threatened other employees. However, the superior court excluded most,
if not all the evidence showing Carter's threats. Montiel fails to address any of these
evidentiary rulings. Accordingly, we do not review the court's rulings for an abuse of
discretion and we will not consider the evidence. Montiel therefore has offered no
21
evidence of Carter making threats, being disciplined for those threats, or making a
threat after she received a warning. The only admissible evidence of threats involving
Carter show that P&F held a meeting to investigate Montiel's complaints about Carter.
During that meeting, Montiel threatened Carter, causing Warner to discipline both
Carter and Montiel, even though Carter did not threaten Montiel at the meeting.
Although Montiel now complains other coworkers had issues with Carter, there is no
evidence in the record to support Montiel's position.
In short, Montiel fails to offer evidence that shows another employee was
warned and suspended for violating the workplace violence policy, but was not
discharged for a final incident. Thus, she has not shown pretext by identifying a
similarly situated employee who was treated more favorably.
In summary, we conclude Montiel has not offered evidence to create a triable
issue of material fact supporting her claim that P&F's stated justification for
terminating her employment was pretextual. As such, causes of action nos. three,
five, and six should not have survived Respondents' motion for summary adjudication.
D. Causes of Action Nos. One and Two
Montiel challenges the court's grant of Respondents' motion as to causes of action
nos. 1 (hostile work environment sexual harassment) and 2 (quid pro quo sexual
harassment) on multiple grounds. She argues Respondents did not carry their burden of
establishing a statute of limitations defense. In the alternative, she asserts that even if
Respondents established the elements of a statute of limitations defense, the continuing
violation doctrine prohibited granting summary adjudication as to the first cause of action
22
in any event. Montiel also maintains the complained of conduct was sufficiently severe
and pervasive to alter the terms and conditions of her employment. Finally, Montiel
insists there was sufficient evidence of quid pro quo harassment. We conclude Montiel's
contentions are without merit.
1. Sexual Harassment Law in California
California law prohibits sexual harassment in the workplace. Under California
law, "an unlawful employment practice" is defined as an employer's refusal to hire,
employ, or select for a training program leading to employment, any person because of
that person's "race, religious creed, color, national origin, ancestry, physical disability,
mental disability, medical condition, genetic information, marital status, sex, gender,
pp. 1013-1016.) Only then is the employer required to engage in the interactive process.
(See Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1252-1253 (Avila)
[affirming summary judgment, holding that doctor's notes and three absences did not put
the employer on notice of a disability or need for accommodation].)
Montiel argues she submitted the following evidence of her disability such that
P&F was required to engage in the interactive process: (1) a January 2011 e-mail to
Warner where Montiel told her she was "stressed out"; (2) a March 2011 e-mail to
31
Patenaude where Montiel told him she was "stressed out" and taking "pills to calm [her]
nerves"; and (3) during a conversation with Patenaude in May 2011, he advised Montiel
to see a doctor.
Montiel's evidence falls short of establishing that P&F was on notice of Montiel's
disability. In Avila, supra, 165 Cal.App.4th 1237, the plaintiff provided the employer
with two doctors' notes indicating he was ill, had been hospitalized, and needed four days
off. (Id. at p. 1249.) The notes did not identify any disability or work restrictions that
required accommodation. (Ibid.) The superior court granted summary judgment, finding
the notes did not identify the employee's illness, "let alone a disability" that required
accommodation. (Id. at pp. 1247-1248.) The Court of Appeal affirmed, determining the
employee failed to put the employer on notice that he had a disability or needed an
accommodation, and as such, there was no requirement to engage in the interactive
process. (Id. at pp. 1248-1249; see Prilliman v. United Air Lines, Inc. (1997) 53
Cal.App.4th 935, 943-944 [employer required to engage in interactive process when it
learned plaintiff's AIDS prevented him from flying]; Faust v. California Portland
Cement Co. (2007) 150 Cal.App.4th 864, 887 [employer required to engage in interactive
process when employee submitted documents identifying medical condition and work
limitations].)
Further, there is nothing in the record indicating Montiel submitted any medical
notes or other evidence showing she had a disability or needed accommodation. Indeed,
the only medical document Montiel submitted excused her for missing two days of work
and returned her to work without any restrictions. After returning to work, Montiel chose
32
to continue working, and would, from time to time, not to come to work if she suffered
from headaches.
In her opening brief, Montiel does not cite to any evidence whereby she asked for
an accommodation. Respondents point out that during her deposition, Montiel stated she
asked for a mouse pad for her wrist. Apparently, she had seen another coworker use it
and wanted one for her work station. She did not provide a doctor's note suggesting she
needed a wrist device, never followed up with a formal request, and does not explain how
a mouse pad would have alleviated her stress or headaches. Moreover, during her
deposition, Montiel stated that she would not refer to herself as disabled, but was hurting.
It is not clear from the record that she told P&F the source of her pain and what she
needed to alleviate it.
In short, we do not find any evidence that Montiel put P&F on notice of any
disability or need for accommodation. As such, Montiel's ninth cause of action should
not have survived summary adjudication.
F. Cause of Action No. Eight
Montiel contends the superior court erred in finding her eighth cause of action for
battery barred by the workers' compensation exclusivity doctrine. We agree.
" ' "A battery is any intentional, unlawful and harmful contact by one person with
the person of another. . . ." ' " (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495.)
" 'The elements of a civil battery are: " '1. Defendant intentionally did an act which
resulted in a harmful or offensive contact with the plaintiff's person; [¶] 2. Plaintiff did
not consent to the contact; [and] [¶] 3. The harmful or offensive contact caused injury,
33
damage, loss or harm to the plaintiff.' " [Citation.]' [Citation.]" (Ibid.)
Here, the parties do not dispute that evidence shows a battery was committed.
Nevertheless, this agreement does not resolve the issue before us. The battery occurred at
work. The workers' compensation laws include broad exclusivity provisions, setting
forth the rule that those laws will provide the sole remedies for many job-related injuries.
(See, e.g., Lab. Code, § 3600.) Typically, when a coworker is injured by another
coworker, the injured coworker may only seek compensation through the workers'
compensation scheme of laws. (Lab. Code, § 3601, subd. (a).) However, the injured
coworker can bring an action for damages directly against the coworker if the injured
employee's harm was "proximately caused by the willful and unprovoked physical act of
aggression of the other employee." (Lab. Code, § 3601, subd. (a)(1).)
As a threshold matter, we note Montiel and Nelson disagree regarding what
constitutes a willful act of aggression as set forth in Labor Code section 3601,
subdivision (a)(1). Montiel contends it merely requires a willful act. Therefore,
according to Montiel, the battery claim is not barred by the exclusivity provision of the
workers' compensation scheme of laws as long as Nelson intended to touch her. Montiel
does not cite any authority to support her position.
Nelson counters that the willful act of aggression requires, not only the intent to
perform the act of aggression, but also the intent to injure. Nelson is correct. Our
Supreme Court made clear that to fall within the exception to the exclusivity of workers'
compensation, there must be an intent to injure. (Torres v. Parkhouse Tire Service, Inc.
(2001) 26 Cal.4th 995, 1006 (Torres) ["We conclude, as a general rule, that a 'willful and
34
unprovoked physical act of aggression' includes an intent to injure requirement."].)
Therefore, we must look at the record to determine if there exists a disputed fact
regarding Nelson's intent to injure Montiel.
In support of his motion for summary judgment, Nelson proffered the material fact
that he did not intend to harm or offend Montiel. To establish this fact, Nelson offered
his own declaration in which he states: "I never intended to harm Montiel in any
fashion." He also declared that he believed he was friends with Montiel and emphasized
his positive interaction with Montiel. Montiel disputed the material fact by offering
evidence of numerous examples of Nelson allegedly harassing her (e.g., rubbing his hand
up her leg, massaging her, hugging her tightly) from sometime prior to 2009 to present
day. In her reply brief here, however, Montiel all but concedes that the conduct in 2009
would be time-barred under battery's two-year statute of limitations (see Code Civ. Proc.,
§ 335.1), but argues Nelson's 2009 conduct is "relevant to the issue of Defendant Nelson's
intent while grabbing [her] butt and giving her unwanted should rubs within the [statute
of limitations]." Thus, by Montiel's own admission, the conduct supporting the battery
claim is limited to unwanted shoulder rubs and Nelson grabbing Montiel's rear twice.
Based on Nelson's acts of grabbing Montiel's backside twice, we conclude there is
a disputed issue of material fact whether Nelson intended to injure Montiel. Montiel has
provided evidence of Nelson's past acts of touching or attempting to touch her in a sexual
manner. There also exists evidence that Montiel had told Nelson through her own actions
and verbally that she did not desire a romantic relationship with him. This evidence
supports the inference that Nelson knew that Montiel did not wish to have a sexual
35
relationship with him. And, Montiel testified that she was upset by Nelson touching her
backside and Nelson apologized for touching it and claimed to be walking too close to
her. Yet, even with this knowledge, Nelson touched Montiel in a sexual manner when he
grabbed her backside twice. And at least one of those grabs followed the earlier grab to
which Montiel responded negatively and let Nelson know she did not appreciate being
touched that way by him. This evidence supports a conclusion that Nelson entertained a
desire to injure her, and not simply that he engaged in intentional conduct. (See Torres,
supra, 26 Ca1.4th at p. 1006.) We cannot say, as a matter of law, that an employee
touching another employee on an intimate part of his or her body, without permission,
does not constitute an intent to injure the victim. Accordingly, the superior court erred in
finding Montiel's battery claim was barred by workers' compensation exclusivity.
G. Causes of Action Nos. Four and Seven
Montiel argues that the court erred in granting summary adjudication of the fourth
cause of action for failure to prevent harassment based on its erroneous rulings on the
first and second causes of action. Because we conclude the superior court did not err as
to the first and second causes of action, Montiel's argument regarding her fourth cause of
action lacks merit.
Similarly, Montiel asserts the court erred in granting summary adjudication of the
seventh cause of action for intentional infliction of emotional distress based on its
erroneous findings that there was no unlawful gender discrimination, retaliation, or
harassment. Having determined no error exists as to any of these findings, Montiel's
assertion regarding her seventh cause of action must fail as well.
36
DISPOSITION
We reverse the judgment as to the battery claim. We remand this matter back to
the superior court with the following instructions: The superior court is to enter an order
granting summary adjudication as to causes of action Nos. one through seven and nine.
The order shall state that summary adjudication is denied as to Montiel's eighth cause of
action for battery. The superior court shall engage in further proceedings consistent with
this opinion.
The parties are responsible for their own costs on appeal.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
37
AI Brief
AI-generated · verify before citing
Holding. The court held that summary adjudication was proper for all claims except for the battery claim, as the plaintiff raised a triable issue of material fact regarding that specific cause of action. The judgment was otherwise affirmed because the employer established a legitimate, non-discriminatory reason for termination that the plaintiff failed to rebut with evidence of pretext.
Issues
Did the trial court err in granting summary judgment on the plaintiff's claims for sexual harassment, discrimination, and retaliation?
Did the employer establish a legitimate, non-discriminatory reason for the plaintiff's termination?
Did the plaintiff raise a triable issue of material fact regarding her battery claim?
Did the trial court err in its evidentiary rulings regarding the summary judgment motion?
Disposition. Affirmed in part, reversed in part, and remanded.
Quotations verified verbatim against the opinion
“We determine that summary adjudication was proper as to all but one of Montiel's claims. Montiel has raised a disputed issue of material fact in regard to her battery claim.”
“As such, we reverse the judgment as to that claim only and remand this matter for further proceedings consistent with this opinion.”