Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. David L. Minning, Judge. Affirmed.
Law Offices of Susan J. Hartley and Susan J. Hartley for Plaintiff and Appellant.
Morgan, Lewis & Bockius, Clifford Sethness and Mirna Villegas for Defendant and Respondent Pacific Maritime Association.
Holguin & Garfield, Steven Holguin and John J. Kim for Defendant and Respondent International Longshore and Warehouse Union, Local 13.
Leonard Carder, Beth A. Ross and Eleanor Morton for Defendant and Respondent International Longshore and Warehouse Union, Local 63.
ROTHSCHILD, J.
Shannon S. Van Heyningen, who describes herself as a “Caucasian female,” brought this action against the Pacific Maritime Association (PMA) and Locals 13 and 63 of the International Longshore and Warehouse Union (the Union) alleging that the defendants discriminated against her based on her sex and race in violation of California’s Fair Employment and Housing Act. The trial court granted the defendants’ motions for summary judgment and dismissed the action. We affirm.
FACTS AND PROCEEDINGS BELOW
The following facts are undisputed.
We need not decide whether the Union and PMA waived their objections to some of plaintiff’s evidence by failing to obtain rulings by the trial court. Assuming all of plaintiff’s evidence was admissible she failed to raise a triable issue of fact as to her claims of sexual and racial discrimination.
A. The Parties
Plaintiff is a former “casual” longshore worker employed by PMA at the ports of Long Beach and Los Angeles. A “casual” worker is one who is called in for work on a shift-by-shift basis according to the needs of the ports.
The PMA is an association of shipping, stevedoring and marine terminal companies. It represents these companies in collective bargaining with the Union.
The Union represents the longshore workers and marine clerks at the ports of Long Beach and Los Angeles. It also represents “casuals” such as plaintiff who are not members of the Union but whose terms and conditions of employment are governed by the collective bargaining agreement between the Union and the PMA. This agreement contains specific provisions for hearing and determining grievances, including grievances by casuals, based on allegations of sex and race discrimination.
B. Harassment of Plaintiff by Her Co-workers
Plaintiff began employment as a casual longshore worker in April 2001. She worked for a year and a half without experiencing any conduct she considered sexual or racial harassment.
Plaintiff alleges that on an unspecified date a female co-worker made a remark about plaintiff’s breasts but that plaintiff simply “ignored her.”
In October 2002 plaintiff and another casual, Thomas Beecher, got into an argument over a parking place at the dispatch hall. Beecher screamed at plaintiff: “Fuck you bitch, you fucking bitch, you drive like an idiot.” Plaintiff responded: “No, fuck you. You are the one driving like an idiot and almost hit me.” Two days later, on the street in front of the dispatch hall, Beecher pointed a gun at plaintiff and screamed: “You fucking bitch. Fuck you. I’m going to fuck your shit up.” When plaintiff reported Beecher’s conduct to the Union representatives they told her to go to the police but not to file a grievance. Plaintiff filed a report of the incident with the police and Beecher was prosecuted.
A few days after the gun incident plaintiff had a third encounter with Beecher. When plaintiff left work in her car Beecher followed her closely, flashed his headlights and yelled something at her. Plaintiff reported Beecher’s conduct to the dispatchers at the dispatch hall. They told her that they would talk to Beecher and that she should file a police report. The dispatchers paged Beecher over the loudspeaker but he did not respond.
At about the same time as the tailgating incident Beecher and other casuals who were friends of his began taunting plaintiff in and near the dispatch hall. They called her names such as “fucking bitch,” “fat ass,” “fucking white bitch,” and other variations on this theme. Two of Beecher’s friends made physical threats against plaintiff such as: “Bitch, you’re going to get hurt up in here” and “I’m going to blow your fucking head off, fucking white bitch.” When plaintiff complained to the Union about these threats, union representatives met with plaintiff, Beecher and one of the persons who had threatened plaintiff. Plaintiff detailed the incidents of harassment she had suffered beginning with the parking space incident. One of the Union’s representatives told Beecher, “This is not high school and this shit has to stop” and that if it did not stop Beecher would lose his labor card.
The harassment did not stop, however. Following the meeting with the Union’s representatives Beecher and his friends added new taunts to their harassment of plaintiff including “snitch,” “fat rat,” “rat snitch” and “fucking fat ass rat.” Derogatory drawings and slogans referring to plaintiff appeared on vehicles and buildings in the port areas and on the internet. The internet postings accused plaintiff of getting pregnant to collect welfare and child support and referred to her as a “bowling ball bitch.” One of Beecher’s female friends yelled at plaintiff: “Aren’t you in enough shit? Haven’t you caused enough trouble for those guys?” Beecher and his friends persisted in this harassment up to the time PMA terminated plaintiff’s employment in February 2004.
C. Plaintiff’s Grievance Hearings
Under the collective bargaining agreement between the Union and PMA grievances that allege sex or race discrimination are heard by an area arbitrator. The area arbitrator’s decision may be appealed to a west coast arbitrator and the west coast arbitrator’s decision may be appealed to a labor relations committee made up of representatives from the Union and PMA. A grievance must be filed within 10 days of the incident grieved.
In December 2002 plaintiff filed a grievance with the area arbitrator accusing Beecher and others of sexual and racial harassment based on incidents that had occurred a few days earlier. After hearing testimony from plaintiff, the accused, and neutral witnesses the arbitrator ruled “it is quite evident . . . that the involved individuals have a dislike for each other” but “this aversion as it pertains to the filing of a [sex and race harassment claim] does not hold up[.]”
Plaintiff appealed this decision to the west coast arbitrator who affirmed the area arbitrator’s decision that there was insufficient evidence to support plaintiff’s allegations of sex and race discrimination as they pertained to the specific incident grieved. The west coast arbitrator also agreed with the area arbitrator “that there is animosity among the parties.” The arbitrator noted that because the parties’ dispatch numbers were close in sequence they were frequently sent to the same job. The arbitrator ordered that plaintiff’s dispatch number be changed to reduce the chance she would be sent out on the same job as Beecher and his friends.
Although changing plaintiff’s dispatch number prevented plaintiff from being assigned to the same job as Beecher and his friends, it did not prevent the continued harassment of plaintiff. Two months after the west coast arbitrator’s decision plaintiff and Vivian Martinez, one of Beecher’s friends, filed sex and race discrimination grievances against each other arising from an incident that occurred near the dispatch hall. The grievances were forwarded directly to the labor relations committee which concluded both parties had engaged in “inappropriate behavior” not amounting to sex or race discrimination. The committee further found that “both parties have caused much disruption in the normal harmony of the workplace and the dispatch hall.” Plaintiff and Martinez were barred from taking any job assignments for 90 days and told that any subsequent violation of work rules would result in their “immediate and automatic removal from the list of active identified casual longshore workers, with no further appeal provided.”
After her 90-day suspension ended plaintiff returned to work. She did not report any new instances of harassment. A dispatcher filed a complaint against plaintiff, however. The dispatcher alleged that on a particular morning plaintiff drove past the dispatch hall several times yelling obscenities at casual workers in front of the hall. A hearing was held before the labor relations committee which found plaintiff “guilty of disrupting dispatch and creating a negative work environment.” Based on its previous ruling that any further work violations would result in her termination, the committee ordered plaintiff removed from the list of active identified casual longshore workers.
D. Plaintiff’s Complaint
Following her dismissal, plaintiff filed complaints with the federal Equal Employment Opportunity Commission and the California Department of Fair Employment and Housing charging the Union and PMA with sex and race discrimination. Both agencies issued plaintiff right-to-sue letters She then brought this action against the Union and PMA alleging that the defendants violated California’s Fair Employment and Housing Act (FEHA) by encouraging and condoning sexual and racial harassment, maintaining and encouraging a hostile work environment, retaliating against plaintiff for protesting violations of the FEHA and failing to prevent sexual and racial harassment.
PMA contends plaintiff failed to exhaust her administrative remedies because she did not serve PMA with two of the complaints she filed against it with the Department of Fair Employment and Housing. Because we affirm the judgment for PMA on other grounds we do not reach this issue.
The defendants moved for summary judgment. The trial court granted the motions and entered judgment for the defendants. Plaintiff filed a timely appeal.
DISCUSSION
Plaintiff’s principal claim is that she suffered harassment because of her sex and race which resulted in a hostile work environment. Her claims of retaliation and failure to prevent sexual and racial harassment flow from the harassment allegations.
The undisputed evidence showed that plaintiff suffered verbal and physical harassment by Beecher and his friends and that this harassment created a hostile work environment for plaintiff. Harassment at the workplace, no matter how hateful, despicable and repugnant, however, is actionable under the FEHA only when it occurs “because of” an employee’s sex, race or other protected characteristic.
This causation requirement is explicit in Government Code section 12940 which states in relevant part: “It shall be an unlawful employment practice . . . (a) For an employer, because of the race [or] . . . sex . . . of any person . . . to discriminate against the person . . . in terms, conditions, or privileges of employment. . . . [¶] (h) For any employer [or] labor organization . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part . . . . [¶] (i) For any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part . . . . [¶] (j) For an employer [or] labor organization . . . because of race [or] . . . sex . . . to harass an employee . . . . [¶] (k) For an employer [or] labor organization . . . to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Italics added.) “Accordingly, it is the disparate treatment of an employee on the basis of sex—not the mere discussion of sex or use of vulgar language—that is the essence of a sexual harassment claim.” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 280.)
A. Plaintiff Was Not Harassed Because of Her Sex or Race
The evidence submitted in this case permits only one conclusion: that the hostility toward plaintiff was rooted in personal enmity and had nothing to do with her sex or race. Plaintiff admitted she worked on the docks for a year and a half without experiencing sexual or racial harassment. The persecution she suffered began after a parking dispute with Beecher, a co-worker. It escalated after she complained to the police and the Union about Beecher brandishing a gun and threatening to “fuck her up.” Beecher’s friends, male and female, joined in the verbal abuse portraying plaintiff as a “rat” and a “snitch” and berating her for causing them “trouble.”
The facts in the present case are similar to those in Brown v. Henderson (2nd Cir. 2001) 257 F.3d 246, a Title VII action, in which the court affirmed a summary judgment for the defendant because the plaintiff could not prove that she was harassed “because of such individual’s . . . sex[.]” (42 U.S.C. § 2000e-2(a)(1).) Brown was subjected to a steady stream of obscenities, remarks were made about her weight and sexual activities with a co-worker, and sexually explicit caricatures of her were posted in the work and bathroom areas. The court concluded, however, that although her co-workers’ behavior was highly cruel and vulgar it was rooted in a bitterly contested union election in which plaintiff was a candidate and in her purported affair with a co-worker. In other words, Brown’s co-workers attacked her because of her personal conduct, not because of her sex. (Brown v. Henderson, supra, 257 F.3d at pp. 255-256.)
The evidence that plaintiff’s co-workers frequently called her “bitch” does not raise a triable issue of fact regarding sexual harassment. A reference to a female worker as a bitch “is not so sex-specific and derogatory that its mere use necessarily constitutes harassment because of sex.” (Lyle v. Warner Brothers Television Productions, supra, 38 Cal.4th at p. 282.) In addition to the word itself, we must consider the context. Here, the word bitch was usually coupled with words such as rat and snitch reflecting personal animosity toward plaintiff based on her complaints to the police and the Union rather than animosity toward women in the longshore work force or animosity toward the idea female longshore workers are entitled to equal treatment with males. (Cf. Galloway v. General Motors Service Parts Oper. (7th Cir. 1996) 78 F.3d 1164, 1168 [co-worker’s repeatedly calling plaintiff “sick bitch” reflected co-worker’s personal animosity toward plaintiff after she broke off their relationship, not a misogynistic attitude toward women].)
B. Plaintiff Was Not Subjected to Retaliation Because She Opposed Sexual or Racial Harassment
In order to prevail on a claim of retaliation plaintiff must be able to prove she suffered discrimination because she “opposed any practices forbidden” by the FEHA. (Gov. Code § 12940, subd. (h).) The evidence does not support an inference that plaintiff suffered retaliation because she opposed such practices.
Assuming plaintiff reasonably could have believed her grievance to the Union was based on sexual and racial harassment, the evidence does not support her contention that any employment action taken thereafter by the Union and PMA constituted retaliation for complaining about such harassment. The motions for summary judgment by the Union and PMA documented legitimate business reasons for every job action they took with respect to plaintiff. For example, plaintiff contends the order giving her a new dispatch number was intended to remove her from the protection of her friends and make her more vulnerable to physical and verbal harassment from her enemies. This is just speculation on plaintiff’s part, however. She offered no evidence of defendants’ intent in giving her a new dispatch number. Defendants, on the other hand, presented undisputed evidence showing the switch in dispatch numbers had the exact opposite intent—to remove her from work assignments where she would come into contact with her enemies. Defendants also presented uncontradicted evidence that plaintiff was suspended from work for getting into a verbal altercation with another worker and disrupting the dispatch hall, not for complaining about harassment. In addition, defendants showed that the other worker involved in the incident received the same suspension as plaintiff. Finally, defendants produced evidence that plaintiff was ultimately terminated for disrupting the workplace (screaming obscenities at co-workers in front of the dispatch hall) in violation of the order which allowed her to return to work after her suspension on condition she refrain from further violation of work rules. Plaintiff produced no evidence showing the legitimate, nondiscriminatory reasons given for her suspension and termination were untrue or pretextual.
A retaliation claim may be brought by a plaintiff who reasonably believes she has opposed unlawful discrimination even though a court later determines the conduct complained of did not violate the FEHA. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1043.)
C. Defendants Did Not Fail to Prevent Sexual or Racial Harassment of Plaintiff
Because plaintiff’s evidence does not allow an inference that she was subjected to harassment because of her sex or race it necessarily follows she has not raised an inference that defendants failed to prevent such harassment. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 288-289.)
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
We concur: MALLANO, Acting P. J. VOGEL, J.