Fact dispute over application of "continuing violation" doctrine precludes summary judgment on timeliness of harassment and retaliation claims
Friday, July 10, 2020

Fact dispute over application of "continuing violation" doctrine precludes summary judgment on timeliness of harassment and retaliation claims

By Robert Margolis, J.D.

Court also finds disputed facts over employer’s knowledge and whether harassed female employee’s termination was retaliatory or justified by performance issues

A federal district court in California has denied Equilon Enterprises LLC’s motion for summary judgment seeking to dismiss claims by a female employee who contends that for the approximately ten months of her employment, until her termination, she was subject to sexual harassment and inappropriate sex-related behavior from a male co-employee, which the employer failed to address. In addition, the employee put forth sufficient evidence that the employer’s preferred reason for terminating her, poor performance, was pretextual because at least one male employee was performing at a lower level than the employee. The court dismissed the employee’s punitive damages claim, however, finding that there was no evidence that the employer ratified the alleged harasser’s conduct (Babot v. Equilon Enterprises LLC, July 8, 2020, Ryu, D.).

Inappropriate conduct. The employee worked at the employer’s Martinez, California refinery as a probationary refinery process operator between January and October 2016, when she was terminated. During that time, a male process operator sexually harassed the employee and others, and subjected them to sexist and inappropriate comments and behavior. The employee contends that she reported his behavior several times to her supervisors, but no action was taken. Instead, she contends that they retaliated against her by scrutinizing her work excessively, blaming her for others’ errors, and making negative entries in her employee file. She was terminated within weeks of her final complaint about the male employee.

She brought claims under the California Fair Employment and Housing Act ("FEHA") for sex harassment, sex discrimination, failure to prevent harassment and discrimination, and retaliation. She also brought state law claims for whistleblower retaliation under the California Labor Code, and common law claims for intentional infliction of emotional distress and wrongful termination in violation of public policy.

Evidentiary objections. The employer objected to summary judgment evidence that the employee presented in her affidavit, including certain testimony at her deposition. The employer argued that the employee’s affidavit and deposition testimony included statements about her reporting "unlawful conduct" by the male employee that she did not include in interrogatory responses requesting that she identify all complaints she made about such conduct. She never amended her interrogatory responses to include these additional complaints. The employer sought to exclude evidence of any complaints not included in her interrogatory response.

The court denied the employer’s request, citing to the employee’s interrogatory response, which stated "Discovery is continuing. There may be more information." It should be up to a jury to determine whether the failure to include these incidents in the interrogatories affects the employee’s credibility when she raises them at trial, the court reasoned. Moreover, the employer was on notice of these additional incidents when she testified about them at her deposition in April 2019, well before the close of discovery. Because this information was made known to the employer, the obligation to supplement did not apply. Fed. R. Civ. P. 26(e)(1)(A).

The "sham affidavit" rule prohibits a party examined at length in a deposition from presenting an affidavit that contradicts that testimony. The employer contended that this rule should result in excluding her affidavit testimony about eight incidents of harassment that she did not testify about at her deposition, since at her deposition she was asked to identify all incidents of harassment. The court found no conflict sufficient to support the exclusion. At her deposition the employee testified that the male employee made "so many" comments that were "sexual in nature" and "inappropriate" that it was hard to list them. She also said he made sexual jokes "all the time," and "never stopped doing anything" even when he was told to stop. Her affidavit testimony elaborates on and clarifies this testimony, rather than contradicting it, the court held.

Continuing violation doctrine. The court denied the employer’s motion for summary judgment on the claims for sexual harassment and failure to prevent sexual harassment. Before suing under the FEHA, an employee must file a complaint with the California Department of Fair Employment and Housing ("DFEH") within one year of the alleged unlawful occurrence. The employer contended that the employee’s claim was time-barred for failing to meet this requirement. She filed her complaint with DFEH on October 18, 2017, and there were no allegations of harassment between October 18, 2016 and that filing date one year later. The court denied the motion, based on the "continuing violation doctrine," finding that acts occurring before the one-year limitations period were sufficiently connected to acts that she complained about in October 2016. As the court framed it, the employee’s testimony that harassment occurred regularly throughout her employment created a disputed issue of fact as to whether "the harassment occurred with reasonable frequency and did not acquire a degree of permanence until she was terminated," which are the requirements for applying the doctrine under California law.

Disputed material facts. An employer may be liable for harassment by a non-supervisor employee when it knows or should have known of the misconduct and fails to take appropriate action. While the employer did not contend that knowledge acquired by supervisors was not imputed to the employer, it disputed that the complaints were actually made. This raised fact issues that could not be resolved on summary judgment. And whether the employer took reasonable steps to prevent the harassment was also disputed, given the employee’s testimony that the harassment continued after she complained.

Sex discrimination and retaliation. The court denied summary judgment on these claims as well. The employer contended that the employee could not make out a prima facie case for sex discrimination because there was no evidence that her termination had to do with her sex, rather than performance issues. She argued that two employees with performance issues were not terminated. While the employer contended that the two employees were not comparators, that raised a fact question that could not be decided on summary judgment, the court held.

Based on the employer’s argument that the termination was performance based, the employee had to come up with evidence suggesting pretext. She presented evidence that two days before her termination, a supervisor admitted that other employees, including at least one male, were performing at a lower level than her. Thus, a fact issue was raised as to pretext.

Emotional distress. Because California courts have recognized that by its nature, "sexual harassment in the work place is outrageous conduct as it exceeds all bounds of decency usually tolerated by a decent society," the court denied the employer’s motion for summary judgment on the employee’s claim for intentional infliction of emotional distress.

Punitive damages. The court granted the employer’s motion for summary judgment on the employee’s claim for punitive damages. Such damages may be available against a corporate defendant when, with actual knowledge of offending conduct, it ratifies that conduct. Because there was no evidence that the employer’s alleged managing agent had actual knowledge of the alleged harassment and the supervisors’ alleged failure to address it, this claim was dismissed.

The case is No. 4:18-cv-04802-DMR.

Attorneys: Aaron Paul Minnis (Minnis & Smallets LLP) for Sheila Babot. Barbara Louise Lyons (Lafayette and Kumagai LLP) for Equilon Enterprises LLC d/b/a Shell Oil Products US.

Companies: Equilon Enterprises LLC d/b/a Shell Oil Products US

Cases: Discrimination SexDiscrimination SexualHarassment RemediesDamages TortClaims GCNNews CaliforniaNews

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