Opinion
G052216
01-13-2017
KEUNJUN CHOI, Plaintiff and Appellant, v. DAVID PARK, Defendant and Respondent.
Law Offices of Jason A. Pollack and Jason A. Pollack for Plaintiff and Appellant. Daniel E. Park Law Corporation, Daniel E. Park and Christopher C. Cianci for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2014-00742833) OPINION Appeal from a judgment of the Superior Court of Orange County, Ronald Lawrence Bauer, Judge. Affirmed. Law Offices of Jason A. Pollack and Jason A. Pollack for Plaintiff and Appellant. Daniel E. Park Law Corporation, Daniel E. Park and Christopher C. Cianci for Defendant and Respondent.
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Plaintiff Keunjun Choi sued his former employer and supervisor, alleging various tort causes of action, labor code violations, and Fair Employment and Housing Act (FEHA) claims. (Gov. Code, § 12900 et seq.) Choi was a professor associated with a private university operated by defendant David Park. Choi claims he was fired because he refused Park's demand to inflate the grades of female students Park was having sexual relations with. The private university answered the complaint. Park's demurrer was sustained without leave to amend as to all 10 causes of action pleaded against Park. On appeal, Choi claims two of the causes of action against Park should have survived: harassment under FEHA, and intentional infliction of emotional distress (IIED). However, Choi was not harassed as defined in FEHA, and he failed to state a claim for IIED. Accordingly, we affirm.
FACTS
The second amended complaint (SAC) alleges, in relevant part, the following facts.
Park founded defendant California University of Management & Science (CalUMS), a private university offering varying degrees in business and economics, including a sports management degree with an emphasis in golf. In May 2008, CalUMS and Park hired Choi, who is a professional golfer, as a teacher of sports management. Choi was instrumental in establishing the sports management major with an emphasis in golf at that time.
CalUMS is not a party to this appeal.
Several years ago, Park began a sexual relationship with a female student. In April 2011, Choi gave an "F" grade to this student due to her failure to attend class. Park ordered Choi to change the grade to an "A," threatening to fire Choi if he did not comply. (This appears to have been an empty threat, as Choi claims he refused to change the grade — yet he was not fired at that time.) When this student graduated in 2013, Park hired her as dean of student affairs. Choi objected. Park verbally reprimanded Choi and criticized Choi to other teachers.
Sometime later Park began a sexual relationship with a second female student. Park forced Choi to change the second female student's grade from an "F" to an "A." The second female student was likewise offered employment, to which Choi objected, which resulted in another severe reprimand from Park. Again Choi refused to change the grades.
The language in the SAC makes it unclear as to whether plaintiff actually changed the grades or not.
In May 2014, Park resumed his sexual relationship with the first woman. The second found out and threatened a sexual harassment lawsuit. Park ordered Choi to convey the following message to the second woman: "[I]f you were to really file a sexual harassment lawsuit, then your sister will get hurt because she is married." Park was referring to the fact he also had a sexual relationship with the second woman's sister, who was married with children at the time. When the second woman heard this, she sobbed uncontrollably. Choi tried to comfort her and said, "If you were my own sister, then even I may desire to kill or beat up David Park." The second woman was surreptitiously recording the conversation.
Park settled with the second woman and Choi's comment was brought to Park's attention. Park became upset and reprimanded Choi. Choi "raised his issues with PARK's inappropriate activities at CalUMS and CalUMS' illegal activities of inflating grades." Park fired Choi.
Choi filed suit in September 2014 against Park and CalUMS. Park demurred. The record does not reveal whether the court ruled on the demurrer, but Choi filed a first amended complaint in December 2014. Choi asserted causes of action for (1) wrongful termination in violation of public policy, (2) breach of implied covenant of good faith and fair dealing, (3) breach of implied promise not to terminate without good cause, (4) failure to pay overtime wages, (5) failure to allow meal and rest breaks, (6) waiting time penalties, (7) failure to furnish accurate wage statements, (8) unfair business competition (Bus. & Prof. Code § 17200, et seq.), (9) intentional infliction of emotional distress, (10) discrimination (FEHA), (11) harassment (FEHA), (12) retaliation (FEHA), and (13) defamation. All causes of action were asserted against Park except for the tenth and twelfth. Park demurred, and the demurrer was sustained without leave to amend to all causes of action except for the ninth and eleventh, to which the court granted leave to amend. Choi filed a second amended complaint that, so far as we can discern, changed little other than to omit the defamation claim and to omit Park from the causes of action for which leave was not granted. Park demurred again, and this time the court sustained the demurrer without leave to amend. Choi timely appealed from the order sustaining the demurrer, which we deem to be an appeal from the subsequent dismissal. (Green Valley Landowners Assn. v. City of Vallejo (2015) 241 Cal.App.4th 425, 431 fn. 5.)
DISCUSSION
We review the sustaining of a demurrer de novo. (WA Southwest 2, LLC v. First American Title Ins. Co. (2015) 240 Cal.App.4th 148, 151.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be. [Citation.] The courts, however, will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts which are judicially noticed." (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) We review the court's denial of Choi's request for leave to amend for abuse of discretion. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
Choi Did Not State a Cause of Action for Harassment Under FEHA
Government Code section 12940, subdivision (j)(1), which is part of FEHA, prohibits an employer from harassing an employee on the basis of "race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status . . . ." "Under the statutory scheme, '"harassment' because of sex" includes sexual harassment and gender harassment. [Citation.] These prohibitions represent a fundamental public policy decision regarding 'the need to protect and safeguard the right and opportunity of all persons to seek and hold employment free from discrimination.'" (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 277 (Lyle).)
"'[T]he prohibition against sexual harassment includes protection from a broad range of conduct, ranging from expressly or impliedly conditioning employment benefits on submission to or tolerance of unwelcome sexual advances, to the creation of a work environment that is hostile or abusive on the basis of sex.'" (Lyle, supra, 38 Cal.4th at p. 277.) There is no allegation that Choi was subject to unwelcome sexual advances, so we focus on whether the allegations amount to a hostile work environment.
"[A] hostile work environment sexual harassment claim requires a plaintiff employee to show [he or she] was subjected to sexual advances, conduct, or comments that were (1) unwelcome [citation]; (2) because of sex [citation]; and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment [citations]." (Lyle, supra, 38 Cal.4th at p. 279.) Importantly, the second requirement, "because of sex," does not refer to romantic sexuality, but to one's biological gender: "[H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted 'discrimina[tion] . . . because of . . . sex.'" (Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 80-81.)
Choi's harassment claim fails in at least two respects. First, even a hostile workplace claim requires proof of "sexual advances, conduct, or comments . . . ." (Lyle, supra, 38 Cal.4th at p. 279.) There was no allegation that Choi was the target of any sexual advances, conduct, or comments. Second, there is no allegation suggesting Choi was mistreated "because of sex."
Choi relies heavily on Miller v. Department of Corrections (2005) 36 Cal.4th 446, but that case is readily distinguishable. There, due to multiple sexual affairs the warden was having with female employees, he created a hostile environment for other female employees where "the demeaning message is conveyed to female employees that they are viewed by management as 'sexual playthings' or that the way required for women to get ahead in the workplace is to engage in sexual conduct with their supervisors or the management." (Id. at p. 451.) Here, by contrast, nothing about Park's involvement with two female students could convey such a message to Choi, a male employee.
We recognize that male employees can allege a hostile work environment where the sexual favoritism towards female employees is sufficient pervasive to convey the message that female employees are mere sexual playthings (Miller v. Department of Corrections, supra, 36 Cal.4th at pp. 465-466), but plaintiff alleged no facts to support such a conclusion here.
In substance, Choi's claim is one for retaliation, not harassment. He was allegedly fired because he opposed Park's harassment of two women. But there is a reason Choi pleaded the way he did: supervisors are subject to personal liability for harassment (Gov. Code, § 12940, subd. (j)(3) ["An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action"]). Supervisors are not subject to personal liability for retaliation claims. (Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173 (Jones) ["we conclude that the employer is liable for retaliation under [Government Code] section 12940, subdivision (h), but nonemployer individuals are not personally liable for their role in that retaliation"].) Because Park is not liable for retaliation, Choi failed to state a claim under FEHA.
We note that the majority in Jones, in response to a dissent by Justice Moreno (Jones, supra, 42 Cal.4th at p. 1175 (dis. opn. of Moreno, J.), added a footnote and left open the question of "whether an individual who is personally liable for harassment might also be personally liable for retaliating against someone who opposes or reports that same harassment" (id. at p. 1168 fn. 4). We do not address this issue because plaintiff did not plead a retaliation claim against Park, nor has plaintiff even mentioned, much less briefed, this footnote in Jones. --------
Choi Failed to State a Claim for Intentional Infliction of Emotional Distress
A claim for intentional infliction of emotional distress requires proof of the following elements: "'"(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. . . ."'" (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)
As a general matter, courts have rejected attempts by plaintiffs to plead around the liability restrictions in FEHA by recasting a claim in the form of a more general tort. For example, in Reno v. Baird (1998) 18 Cal.4th 640 the plaintiff alleged she was fired due to her medical condition in violation of FEHA. (Reno, at pp. 643-644.) After holding only the employer could be held liable for discrimination under FEHA, not a supervisor (Reno, at p. 643), the court likewise rejected a tort claim against the supervisor for wrongful termination in violation of public policy: "It would be absurd to forbid a plaintiff to sue a supervisor under the FEHA, then allow essentially the same action under a different rubric." (Id. at p. 664.)
Similarly, in Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, the plaintiff employees alleged IIED arising out of various age-related discriminatory employment practices, including terminating older employees or forcing them into retirement. (Id. at p. 61.) Rejecting the claim against plaintiffs' supervisors, the court stated, "A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged. If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination." (Id. at p. 80, italics added.)
Here, Choi is essentially attempting to plead around the limitations on liability in FEHA for retaliation by recasting the cause of action as IIED. We reject that attempt. In Jones, supra, 42 Cal.4th 1158, our high court articulated a sound rationale for the Legislature's decision to limit retaliation and discrimination liability to employers. The Jones court started by contrasting discrimination with harassment, for which an individual employee can be personally liable: "'"harassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. . . . [¶] Discrimination claims, by contrast, arise out of the performance of necessary personnel management duties. . . . While it is possible to avoid making personnel decisions on a prohibited discriminatory basis, it is not possible either to avoid making personnel decisions or to prevent the claim that those decisions were discriminatory. . . . Making personnel decisions is an inherent and unavoidable part of the supervisory function."'" (Id. at pp. 1164-1165.)
"'"[I]mposing liability on individual supervisory employees would do little to enhance the ability of victims of discrimination to recover monetary damages, while it can reasonably be expected to severely impair the exercise of supervisory judgment." (Jones, supra, 42 Cal.4th at p. 1165.) "'"[I]t is manifest that if every personnel manager risked losing his or her home, retirement savings, hope of children's college education, etc., whenever he or she made a personnel management decision, management of industrial enterprises and other economic organizations would be seriously affected."'" (Id. at p. 1166.) "'"Plaintiffs' theory would place a supervisory employee in a direct conflict of interest with his or her employer every time that supervisory employee was faced with a personnel decision . . . . [It] would coerce the supervisory employee not to make the optimum lawful decision for the employer. Instead, the supervisory employee would be pressed to make whatever decision was least likely to lead to a claim of discrimination against the supervisory employee personally, or likely to lead only to that discrimination claim which could most easily be defended. The employee would thus be placed in the position of choosing between loyalty to the employer's lawful interests at severe risk to his or her own interests and family, versus abandoning the employer's lawful interests and protecting his or her own personal interests. The insidious pressures of such a conflict present sobering implications for the effective management of our industrial enterprises and other organizations of public concern. We believe that if the Legislature intended to place all supervisory employees in California in such a conflict of interest, the Legislature would have done so by language much clearer than that used here."'" (Ibid.)
"All of these reasons for not imposing individual liability for discrimination — supervisors can avoid harassment but cannot avoid personnel decisions, . . . sound policy favors avoiding conflicts of interest and the chilling of effective management, corporate employment decisions are often collective, and it is bad policy to subject supervisors to the threat of a lawsuit every time they make a personnel decision — apply equally to retaliation." (Jones, supra, 42 Cal.4th at p. 1167.)
Permitting Choi here to maintain an IIED claim arising from what amounts to a retaliation claim under FEHA would upset the balance struck by the Legislature and lead to the inefficiencies described above. Accordingly, we reject Choi's claim.
DISPOSITION
The judgment is affirmed. Respondent shall recover his costs incurred on appeal.
IKOLA, J. WE CONCUR: ARONSON, ACTING P. J. THOMPSON, J.