Campise v. Morrison Health Care 12/31/01 CA5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: F034128

Case Date: 03/14/2002

Preview:Filed 12/31/01

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT KARI CAMPISE, F034128 Plaintiff and Appellant, (Super. Ct. No. 616761-2) v. MORRISON HEALTH CARE, INC., Defendant and Respondent.

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Lawrence Jones, Judge. Doyle, Penner, Bradley & Armstrong, David Douglas Doyle and Peter Sean Bradley, for Plaintiff and Appellant. Sheppard, Mullin, Richter & Hampton, Tracey A. Kennedy, and Lisa N. Davis, for Defendant and Respondent. -ooOoo-

On August 13, 1998, Kari Campise (Campise) filed a complaint against Morrison Health Care, Inc. (Morrison) and Valley Children's Hospital (VCH) pursuant to Government Code1 section 12900 et. seq., the Fair Employment and Housing Act (FEHA). Morrison filed a motion for summary judgment, which was granted. We reverse because the pleadings filed in support of and opposition to the motion for summary judgment disclose that there are triable issues of material fact. PROCEDURAL SUMMARY The initial complaint named VCH and numerous doe defendants and asserted a cause of action pursuant to section 12940. An amendment identifying Morrison as one of the doe defendants was filed on October 8, 1998. Campise's complaint set forth a single cause of action against VCH and Morrison, alleging sexual harassment and retaliation. VCH filed an answer on October 5, 1998. On November 23, 1998, Morrison filed an answer generally denying the allegations of the complaint and asserting various affirmative defenses. Morrison and VCH filed separate summary judgment motions pursuant to Code of Civil Procedure section 437c. Morrison's motion was filed on June 3, 1999; VCH's on June 4, 1999. In addition to the motion, Morrison filed a memorandum of points and authorities, separate statement of undisputed facts, declarations, and numerous deposition transcripts. Campise filed a response disputing purported undisputed facts contained in Morrison's statement of undisputed facts, declarations in opposition to the motion, a memorandum of points and authorities in opposition, and a separate statement of undisputed material facts.

1

References to code sections are to the Government Code unless otherwise specified.

2.

By order dated July 29, 1999, the trial court granted the motion for summary judgment filed by Morrison. Judgment was entered on October 28, 1999, in favor of Morrison. DISCUSSION Pursuant to Code of Civil procedure section 437c, subdivision (c), summary judgment is proper if the supporting papers are sufficient to sustain a judgment in favor of the moving party as a matter of law and the opposing party presents no evidence giving rise to a triable issue as to any material fact. "To prevail on a summary judgment motion, the defendant must conclusively negate a necessary element of the plaintiff's case or establish a complete defense. Where the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.... Where there is no material issue of fact to be tried and the sole question before the court is one of law, it is the duty of the trial court on a motion for summary judgment to hear and determine the issue of law." (Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 886, citations omitted.) As the reviewing court, we determine de novo whether an issue of material fact exists and whether the moving party was entitled to summary judgment as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) In other words, we must assume the role of the trial court and reassess the merits of the motion. (Pensinger v. Bowsmith, Inc. (1998) 60 Cal.App.4th 709, 717.) Ordinarily, we first identify the issues framed by the pleadings since it is these allegations to which the motion must respond. Second, we determine whether the moving party's showing satisfies its burden of proof and justifies a judgment in its favor. Third, if the summary judgment motion prima facie justifies a judgment, we finally determine whether the opposition demonstrates the existence of a triable, material factual issue. (Ibid.)

3.

Our review and analysis of the evidence is governed by the premise that evidence of the moving party, Morrison, is to be strictly construed and that of the opposing party, Campise, liberally construed. (Coppola v. Superior Court (1989) 211 Cal.App.3d 848, 862.) For brevity's sake, we will focus on determining whether the existence of a triable, material factual issue was established by the pleadings in opposition to Morrison's motion. A. Sexual Harassment Claim Section 12940, subdivision (j)(1), provides that: "For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation, to harass an employee, an applicant, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, or a person providing services pursuant to a contract by an employee other than an agent or supervisor shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment." Due to the similarities of the FEHA and title VII of the federal Civil Rights Act (title VII), codified at 42 United States Code, section 2000e et seq., federal cases interpreting title VII may offer guidance. "While the California act and title VII differ in some particulars, their objectives are identical, and California courts have relied upon federal law to interpret analogous provisions of the state statute." (Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1316; accord Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) California courts, however, must construe FEHA liberally and are not bound by federal cases that apply a stricter view. (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 493.)

4.

To prove a cause of action for sexual harassment based on hostile work environment, the plaintiff must show that she was subjected to unwelcome conduct that was based on sex and was sufficiently severe to create an abusive or hostile working environment. (Aguilar v. Avis Rent A Car Sys., Inc. (1999) 21 Cal.4th 121, 130.) To prevail on a cause of action for quid pro quo sexual harassment, the plaintiff must prove that an individual explicitly or implicitly conditioned a job benefit, or the absence of a job detriment, on plaintiff's acceptance of sexual conduct. (Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414.) Implicit conditions are far more likely to occur than explicit conditions. (Nichols v. Frank (9th Cir. 1994) 42 F.3d 503, 511.) With respect to the sexual harassment claim, Morrison asserted that summary judgment should be granted because: (1) Negroe was not a supervisor, thus there was no strict liability; (2) Morrison took prompt remedial action after Campise formally complained about Negroe's conduct; (3) Campise was not subjected to a hostile environment; and (4) Campise continued to be able to perform her job duties. The trial court granted summary judgment on the sexual harassment claim on the grounds that: (1) Negroe did not qualify as a supervisor as that term is used in section 12940, because he did not have "authority over the ultimate conditions of her employment" and the ability to direct day-to-day activities of employees did not qualify Negroe as a supervisor, thus strict liability did not apply; (2) if Negroe were a supervisor, Morrison had established an affirmative defense; and (3) even though Campise claimed "tangible employment actions" were taken against her, she was still able to perform her job. Factual Summary In our discussion, we address only those facts set forth in the various declarations and deposition transcripts which were submitted in support of, or in opposition to, Morrison's motion for summary judgment.

5.

Campise was hired in 1996 by VCH as a Dietary Assistant and Kitchen Helper. Her position was eventually changed to Cook's Assistant. In late 1997, Morrison entered into a contract with VCH whereby Morrison agreed to manage the dietary department and cafeteria of VCH. To that end, the contract specified that Morrison would provide two full-time employees: Rod Miranda as Director of Dietary Services and Rafael Negroe as Executive Chef and Assistant Director of Food and Nutrition Services. Between 1996 and 1998, Campise's job performance was satisfactory. After Morrison entered into its contract with VCH, Miranda divided the Dietary Department into teams and placed Campise on the culinary team. Miranda did not have the unilateral authority to hire, fire, promote, or fix the salary of the individuals on the culinary team; those actions had to be cleared through VCH. Negroe had the ability to assign job duties, direct daily activities; and adjust the schedules of those assigned to the culinary team. All employees were expected to be subject to the orders of all supervisors. Supervisor The term supervisor, as used in FEHA, is defined in section 12926, subdivision (r), as follows: " `Supervisor' means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not merely of a routine or clerical nature, but requires the use of independent judgment." (Italics added.) We have found no published decision interpreting this definition of "supervisor," perhaps because the language of the statute is abundantly clear. The plain language of the statute does not restrict that term to one who directly supervises the employee subjected to harassment, he or she need only be a supervisor within the company. (

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