Opinion
B296411
09-01-2020
PETRA JACKSON, Plaintiff and Appellant, v. PEPPERDINE UNIVERSITY et al., Defendants and Respondents.
Martorell Law, Eduardo Martorell and JoAnn Victor for Plaintiff and Appellant. Call & Jensen, David R. Sugden, Marlynn P. Howe and Melinda Evans for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. YC072683) APPEAL from a judgment of the Superior Court of Los Angeles County, Ramona G. See, Judge. Affirmed. Martorell Law, Eduardo Martorell and JoAnn Victor for Plaintiff and Appellant. Call & Jensen, David R. Sugden, Marlynn P. Howe and Melinda Evans for Defendants and Respondents.
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Appellant Petra Jackson sued her former employer, respondent Pepperdine University (Pepperdine) and its employee, respondent Murzi Kay, under California's Fair Employment and Housing Act (FEHA) (see Gov. Code, § 12900 et seq.), alleging Kay sexually harassed Jackson and that Pepperdine failed to prevent such harassment. Specifically, Jackson alleged Kay made two highly offensive remarks to her at a Pepperdine staff event, and that, at some point thereafter, she learned Kay had "sexually harassed" two other women in some unspecified way. She further alleged that Pepperdine employees failed to appropriately address Jackson's grievance about Kay's comments, did not attempt to limit Jackson's contact with Kay after the incident, defended Kay's actions, and accused Jackson of being too sensitive.
Unless otherwise indicated, all statutory references and citations are to the Government Code.
Jackson now appeals from the trial court's judgment in favor of Pepperdine and Kay, following their successful demurrer to Jackson's second amended complaint. The trial court concluded that Jackson had not alleged conduct sufficiently severe to support a FEHA cause of action—that is, conduct so humiliating it rendered Jackson's working environment objectively hostile and/or would have interfered with a reasonable employee's ability to do his or her job—despite Jackson having twice amended her complaint following successful demurrers on this same basis. On appeal, Jackson argues that, had the court considered the totality of the circumstances, Kay's comments were sufficiently severe to have had such an effect on a reasonable woman in her position. She further argues that section 12923, which went into effect in 2019, supports her position and should apply retroactively to her claims.
We need not address the retroactivity of section 12923, because we conclude that both before and after its enactment, the totality of the circumstances Jackson alleged do not reflect conduct sufficiently severe to constitute actionable sexual harassment. As such, even at this early procedural stage, both her hostile work environment and failure to prevent harassment claims fail. The trial court correctly sustained the demurrer without leave to amend and entered judgment for Pepperdine and Kay. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Allegations in the Second Amended Complaint
The complaint underlying this appeal is Jackson's second amended complaint (the SAC), which alleges the following:
Jackson began working at Pepperdine as an admissions administrator on July 5, 2016. On November 2, 2016, Jackson attended "a Pepperdine . . . staff event," at which Jackson spoke for the first time with Kay, a "well-known" male employee of Pepperdine who was "over twice [Jackson's] age" and who "worked in a superior position." The complaint does not allege what Kay's job title was, nor does it allege that Jackson reported directly or indirectly to Kay. At the staff event, Kay interrupted Jackson's conversation with her pregnant coworker, Rachel Guettler, during which Jackson had been telling Guettler that she hoped the Cleveland Indians would win the World Series that evening. Upon hearing this, Kay remarked to Jackson, " 'You and your husband need to be really careful tonight and take your birth control. Because if the Indians win, you're going to end up like that—' [and he] pointed at Guettler's pregnant stomach '—and have a baby. You're going to really go at it tonight and you need to make sure you wear extra protection.' " Kay then "walked off abruptly, without explanation."
"Later that same day, . . . Kay approached [Jackson] when she was alone at the reception desk" and stated, " 'Whatever you were doing last night, you need to make sure you do the exact opposite thing tonight. Whatever you ate last night, make sure you don't eat it again, even if there are leftovers. If you were wearing clothes, don't wear any clothes tonight while you watch the game. Just watch the game naked. I mean, that would be awkward if you had other friends around and not just your husband, but don't wear any clothes.' "
Jackson had previously experienced sexual harassment "in at least three separate places of employment," and had also experienced sexual abuse in intimate relationships. In part because of this past experience, Jackson viewed Kay's statements as sexually harassing.
At some point after the staff event, Jackson learned that "two other employees had been sexually harassed by [Kay]" and that Pepperdine "had an informal policy of instructing employees not to allow prospective students to call [Kay] because he was 'creepy' on the phone." The SAC provides the names of these two women employees, but no further information regarding how or when Kay had "harassed" them. Nor does it allege how or when Kay had been "creepy" on the phone, with whom, or in whose estimation.
Jackson reported Kay's comments to Pepperdine's associate director of human resources. That same day, Natasha Kobrinsky, executive director of student financial services and admission, called Jackson and told her she had spoken to Kay about what had happened. Kobrinsky told Jackson that Kay had " 'let his guard down' " and become " 'too comfortable' " with Jackson, noted that he was " 'from a different generation' " in which " 'everything goes,' " and that " 'he gained no sexual satisfaction' " from the comments. Kobrinsky then requested that Jackson, Kay, and Kobrinsky have a "mediation" the following day, but Jackson indicated she was not yet comfortable with that.
Around November 4, 2016, Kobrinsky met with Jackson's supervisors, along with three or four other employees, told them the details of the incidents between Jackson and Kay and stated that Jackson was " 'overly sensitive,' " " 'thin skinned,' " and needed counseling. When Jackson learned of this, she said she felt " 'humiliated.' "
Also, on November 4, 2016, Kobrinsky called Jackson and again suggested Jackson meet with Kobrinsky and Kay. Jackson said she was still not comfortable with this. Instead, at Kobrinsky's request, Jackson met with Kobrinsky alone, during which time Kobrinsky again defended Kay's comments. Kobrinsky also stated that Jackson seemed " 'like a very sensitive person' " who needed to have a " 'thicker skin,' " that Jackson should " 'self-reflect and figure out what the problem [is],' " in particular by going to the Pepperdine College of Education and Psychology for counseling and therapy to help with being " 'overly sensitive.' "
On November 14, 2016, Kobrinsky renewed her request that Jackson meet with her and Kay. Jackson again asked to postpone the mediation until she was comfortable, and asked that her direct supervisors be present at the mediation when it did occur. Kobrinsky ultimately scheduled a meeting for November 16, 2016 without including them. Jackson called the associate director of human resources and informed him she felt pressured and cornered into a mediation, and that she feared retaliation, given that Kay and Kobrinsky were friends. The associate director assured Jackson that one of his associates would contact Jackson before the meeting, but this did not happen.
At the November 16 mediation, "Kobrinsky continued to advocate for . . . Kay," and "stated that in the sixteen years she had known . . . Kay, there had been other people he had 'pushed the wrong buttons with,' and so he understood." Kay then apologized by stating, " 'I know what I meant, which had no meaning. But . . . if it was taken a certain way, I was wrong and therefore I apologize.' "
After the mediation, Kobrinsky told Jackson that "Kay was just a man, and whether she 'liked it or not, that was how [Kay] talked.' " Kobrinsky then stated that people just " 'don't take [Kay's behavior] seriously.' "
Pepperdine "failed to offer any support or accommodations" to Jackson, and "the Pepperdine's . . . Policy Manual section 31.1—Employee Grievance Procedure[—]was not followed: [A]n Advisory Committee was never convened, no formal investigation occurred, and there was no conclusion or outcome in the matter." Thus, following the incident with Kay, Jackson was still required to transfer calls to Kay's office. Jackson "was afraid to leave her desk at work for fear she would encounter . . . Kay," including to use the restroom, "resulting in her contracting a urinary tract infection." Jackson felt she "was being blamed for her emotional distress, and her fear, anxiety, and inability to complete her daily work was increasing, while nothing was being done to help her" and she "had no reasonable alternative except to resign," which she did on February 17, 2017, approximately three and one half months after Kay's comments. The SAC does not allege that Kay engaged in any further harassing behavior during that time.
B. Jackson's Lawsuit Against Pepperdine
On February 16, 2018, Jackson filed a complaint against Pepperdine, Kay, and Kobrinsky, alleging six causes of action against all three defendants—discrimination on the basis of sex; sexual harassment; retaliation; defamation; negligent infliction of emotional distress; and intentional infliction of emotional distress—as well as hostile work environment sexual harassment against Pepperdine only. All three defendants demurred, and the court sustained their demurrer with leave to amend, based in part on Jackson's failure to allege conduct sufficiently severe and pervasive to constitute actionable harassment.
Jackson filed her first amended complaint in June 2018, which no longer included discrimination or intentional infliction of emotional distress causes of action. The allegations regarding Jackson having learned that Kay had a reputation for inappropriate remarks appeared for the first time in this version of the complaint. The court sustained the defendants' demurrer to the first amended complaint, based again on a failure to allege conduct that could constitute sufficiently severe and pervasive harassment.
The court again granted Jackson leave to amend, and on September 13, 2018, Jackson filed the SAC, which alleged three causes of action: retaliation and failure to prevent harassment against Pepperdine, and hostile work environment sexual harassment against both Pepperdine and Kay. Jackson no longer asserted claims against Kobrinsky in the SAC, and dismissed her as a defendant.
C. Demurrer to the SAC and Resulting Judgment
Pepperdine and Kay jointly demurred to the SAC, and in a December 11, 2018 order, the trial court sustained the demurrer, this time without leave to amend. As to the harassment claim, the court concluded that the SAC fails to plead facts demonstrating the alleged harassment was either pervasive or sufficiently severe to state a claim. The court noted Kay's comments were "crude and inappropriate" but "[did] not rise to the severity required for actionable sexual harassment," and that Jackson's subsequently hearing from co-workers that Kay had harassed others could not affect the severity of his comments to her. The court noted that the retaliation claim was "dependent on the existence of actual harassment," and thus was not legally cognizable for the same reason the harassment claim was not. Finally, as to the retaliation claim, the court concluded Jackson had failed to allege facts reflecting an adverse employment action.
The court signed a judgment of dismissal on January 7, 2019. Pepperdine and Kay then filed and served a notice of entry of judgment on January 16, 2019, and Jackson timely appealed. Jackson has since clarified that she is appealing the judgment only to the extent it dismisses the harassment and failure to protect causes of action, not the retaliation cause of action.
DISCUSSION
In an appeal from a judgment of dismissal after a sustained demurrer, we engage in a de novo review to determine whether the complaint "alleges facts sufficient to state a cause of action under any legal theory." (Aguilera v. Heiman (2009) 174 Cal.App.4th 590, 595.) We must affirm if the demurrer would be properly sustained on any theory, even if not articulated by the trial court. (Hendy v. Losse (1991) 54 Cal.3d 723, 742.) " 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law.' " (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).)
By contrast, we review for abuse of discretion a court's denial of leave to amend after sustaining a demurrer. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) Jackson does not, however, challenge the court's ruling in this respect, nor does she make any showing based on which we could conclude that the defects in her complaint can be cured by amendment. (See ibid. [on appeal, plaintiff's burden to show defects in complaint could be cured by amendment].)
A. Sexual Harassment Cause of Action
Jackson argues the trial court erred in concluding that the SAC does not allege conduct sufficiently severe to support a FEHA sexual harassment cause of action under section 12940, subdivision (j). "With certain exceptions not implicated here, the FEHA makes it an unlawful employment practice . . . for an employer, . . . 'because of . . . sex, . . . to harass an employee.' (§ 12940, subd. (j)(1).) Under the statutory scheme, ' "harassment" because of sex' includes sexual harassment and gender harassment. (§ 12940, subd. (j)(4)(C).) . . . [¶] . . . '[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.' [Citation.]" (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 277 (Lyle).)
"[T]o prevail, an employee claiming harassment based upon a hostile work environment must demonstrate, [inter alia], that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex." (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462 (Miller); Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 582 [same].) Thus, "annoying or 'merely offensive' comments in the workplace are not actionable." (Lyle, supra, 38 Cal.4th at p. 283, quoting Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21 (Harris).) "The requirement that the conduct be sufficiently severe or pervasive to create a working environment a reasonable person would find hostile or abusive is a crucial limitation that prevents sexual harassment law from being expanded into a 'general civility code.' " (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1377 (Jones).) Thus, although the severity of alleged conduct is a highly fact-specific inquiry, courts must and do play an important role—even at the pleading stage—in "filter[ing] out complaints attacking 'the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.' " (Faragher v. City of Boca Raton (1998) 524 U.S. 775, 788 (Faragher), quoting B. Lindemann & D. Kadue, Sexual Harassment in Employment Law (1992) 175; see, e.g., Ramirez v. Wong (2010) 188 Cal.App.4th 1480, 1488 (Ramirez) [affirming dismissal following successful demurrer of sexual harassment claim under Civil Code section 51.9, based on alleged conduct being neither severe nor pervasive]; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 614 (Fisher) [affirming trial court order sustaining demurrer to FEHA sexual harassment and retaliation causes of action because the complaint had not alleged pervasive conduct]; see also, e.g., Lyle, supra, 38 Cal.4th at p. 291 [affirming grant of summary judgment on hostile work environment sexual harassment claim where conduct alleged insufficiently severe]; Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 145 (Herberg) [same].)
Our state Supreme Court agree[s] with the United States Supreme Court's interpretation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) in this regard, and "[o]ur courts frequently turn to federal authorities interpreting Title VII . . . for assistance in interpreting the FEHA and its prohibition against sexual harassment." (Miller, supra, 36 Cal.4th at p. 463.)
In determining whether alleged harassment is so severe as to create an actionable hostile work environment, courts must evaluate that working environment by " 'looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.' [Citation.]" (Miller, supra, 36 Cal.4th at p. 462, quoting Harris, supra, 510 U.S. at p. 23.)
There is both an objective and a subjective component to this analysis, and the plaintiff bears the burden of establishing both. Namely, "[t]o be actionable, 'a sexually objectionable environment must be . . . one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.' [Citations]. That means a plaintiff who subjectively perceives the workplace as hostile or abusive will not prevail under the FEHA, if a reasonable person in the plaintiff's position, considering all the circumstances, would not share the same perception." (Lyle, supra, 38 Cal.4th at p. 284, quoting Faragher, supra, 524 U.S. at p. 787.) Some courts have assessed the objective component from the point of view of a reasonable person of the same gender as the plaintiff—that is, when the plaintiff is female, with a "reasonable woman standard." (See Ellison v. Brady (9th Cir. 1991) 924 F.2d 872, 879 (Ellison); Fisher, supra, 214 Cal.App.3d at pp. 609-610, fn. 7 [defining "reasonable employee [a]s one of the same sex"].)
In assessing the totality of the circumstances, courts may also consider harassment aimed at third parties if "sufficient facts . . . establish a nexus between the alleged sexual harassment of others, [the plaintiff's] observation of that conduct and the work context in which it occurred," such that there exists a hostile working environment for the plaintiff. (See Fisher, supra, 214 Cal.App.3d at p. 613.) "The reason for this is obvious: [I]f the plaintiff does not witness the incidents involving others, 'those incidents cannot affect . . . her perception of the hostility of the work environment.' [Citation.]" (Lyle, supra, 38 Cal.4th at p. 285, quoting Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 519.)
1. The SAC does not allege sufficiently severe conduct
The SAC does not allege conduct so severe that it created a working environment that a reasonable person—of any gender—would consider hostile or abusive. At this procedural phase, we accept Jackson's factual allegations that Kay's comments interfered with her ability to do her job and that she experienced her workplace as traumatic as a result of the comments. But existing law does not permit the conclusion that a reasonable woman would react to Kay's comments in this way.
Both the United States and California Supreme Court have "made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment." (Faragher, supra, 524 U.S. at p. 788; Lyle, supra, 38 Cal.4th at p. 283.) " ' "Common sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish between simple teasing or roughhousing . . . and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive.' " [Citation.]" (Lyle, supra, at p. 283, quoting Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 82 (Oncale).) Case law thus draws a clear and important dividing line between "annoying or 'merely offensive' comments in the workplace," which are not actionable, and conduct that is so humiliating as to fundamentally change the plaintiff's workplace. (Lyle, supra, at p. 283, quoting Harris, supra, 510 U.S. at p. 21.) This distinction is dispositive here.
We look first to the nature and content of the comments at issue. The trial court acknowledged, and we agree, that Kay's comments were "crude and inappropriate." A reasonable woman could have found them offensive. But this is insufficient to support an action for sexual harassment, lest sexual harassment laws "expand[ ] into a 'general civility code.' [Citation.]" (Jones, supra, 152 Cal.App.4th at p. 1377, quoting Oncale supra, 523 U.S. at p. 81.) Sufficiently severe conduct must be " ' "physically threatening or humiliating," ' " not just " 'offensive.' " (Lyle, supra, 38 Cal.4th at p. 283.) Jackson alleges no physical threats or even comments that could imply physical threats. (See Fisher, supra, 214 Cal.App.3d at p. 610 ["generally, physical touching is more offensive than unwelcome verbal abuse" rather than a mere offensive utterance].) As a matter of the common sense our state Supreme Court has instructed us to employ, these comments were not so humiliating that a reasonable woman would consider her workplace significantly altered for the worse. Kay's references to Jackson being nude at home or having sex with her husband were not detailed or graphic. A reasonable woman, based solely on the facts alleged, would not have so feared hearing another such remark about her sex life or nudity that she would refrain from using the restroom at work or be unable to perform her job duties.
In addition to the nature of Kay's comments, we consider the context in which he made them. Kay made two brief comments, on the same day, and partially during a staff event, as opposed to while Jackson was performing her work duties. (See Fisher, supra, 214 Cal.App.3d at p. 610 ["The factors that can be considered in evaluating the totality of the circumstances" include "the frequency of the offensive encounters; . . . the total number of days over which all of the offensive conduct occurs; and . . . the context in which the sexually harassing conduct occurred."].) These circumstances further support our assessment of the conduct as insufficiently severe. Jackson, however, argues that three other aspects of the conduct alleged raise it to a sufficiently severe level. We address each of these in turn.
First, Jackson points to allegations that involve her subjective experience of Kay's comments and her work environment, such as her having been the victim of sexual harassment at other places of employment. These allegations obviously do not relate to whether any reasonable woman hearing Kay's comments would have had a similar experience. The objective portion of our analysis does not require us to consider a reasonable woman in Jackson's exact position in all respects—i.e., a woman who had experienced sexual harassment at a previous place of employment and domestic violence. Such a standard would conflate the subjective and objective tests.
The main case Jackson cites in advocating for an objective assessment from the "victim's perspective"—Ellison, supra, 924 F.2d 872—is not to the contrary. (Id. at p. 878.) Ellison held that "a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment." (Id. at p. 879, fn. omitted.) Ellison reiterates that the standard it applies is based on a "reasonable woman"—not the particular alleged victim—"[i]n order to shield employers from having to accommodate the idiosyncratic concerns of the rare hypersensitive employee." (Ibid.) Jackson also selectively quotes from Fisher, supra, 214 Cal.App.3d at p. 608, for this proposition, but ignores language in that case that, as does Ellison, plainly requires the court consider the perspective of a "reasonable" woman experiencing the conduct alleged. (Id. at pp. 609-610 ["plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended"], italics & fn. omitted.)
Moreover, Ellison adopted a female perspective for reasons wholly inapplicable here. Namely, it "adopt[ed] the perspective of a reasonable woman primarily because [the court] believe[d] that a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women," particularly with respect to the threat of sexual violence. (Ellison, supra, 924 F.2d at p. 879.) More specifically, the court explained that, "because women are disproportionately victims of rape and sexual assault, women have a stronger incentive to be concerned with sexual behavior. Women who are victims of mild forms of sexual harassment may understandably worry whether a harasser's conduct is merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive." (Ibid.)
Second, in her suggested assessment of the totality of the circumstances, Jackson points to Kay's alleged harassment of other women at Pepperdine in an unspecified manner, with an unspecified frequency, at an unspecified time in the past when Jackson may or may not have worked at Pepperdine, none of which Jackson herself witnessed. These allegations reflect a mere conclusion of law that certain unspecified acts constituted harassment, unsupported by factual allegations regarding any aspect of those acts, and are thus conclusory allegations that we may disregard on review. (See Southern California Gas Leak Cases (2019) 7 Cal.5th 391, 395 [in reviewing a decision on demurrer, we "take as true all properly pleaded material facts—but not conclusions of fact or law"]; see Ramirez, supra, 188 Cal.App.4th at p. 1488 [allegations that defendant "had previously entered [plaintiffs'] bedroom 'on more than occasion [sic]' and committed similar acts" to those plaintiff allegedly suffered were "conclusory" and demurrer was properly sustained based on failure to allege pervasive conduct]; see also Trovato v. Beckman Coulter, Inc. (2011) 192 Cal.App.4th 319, 324 [conclusory statements in plaintiff's declaration opposing summary judgment that defendant was " 'still harassing' " her, without further details, were insufficient to avoid summary judgment of harassment claim as time-barred].)
But even accepting Jackson's allegation of previous harassment as true, absent some nexus between Jackson's "immediate work environment" and Kay's alleged "harassment" of third parties, such conduct can have no logical bearing on Jackson's experience of her work environment. (Lyle, supra, 38 Cal.4th at p. 285 ["plaintiff generally must show that the harassment directed at others was in her immediate work environment, and that she personally witnessed it"].)
Jackson next argues that the manner in which Pepperdine and Kobrinsky responded to Jackson's grievance about Kay is part of the totality of the circumstances we must consider in determining whether Kay's conduct was sufficiently severe and pervasive to be actionable under FEHA. Jackson notes that Pepperdine did not make any accommodations for Jackson after she made her complaint and that Jackson was forced to "re-live the incidents" by discussing them in mediation with Kay. Jackson further points to allegations that Kobrinsky did not take Jackson's complaint seriously, and that she instead defended Kay and humiliated Jackson by suggesting to Jackson and Jackson's supervisors and coworkers that Jackson needed counseling for being overly sensitive. Jackson argues that, by "minimiz[ing] the seriousness" of Kay's comments in this way and "fail[ing] to separate the harasser from his victim," Pepperdine "altered the conditions of Jackson's employment and effectively created an abusive working environment."
This argument assumes there is a "harasser" on the facts alleged—that is, that Kay's alleged conduct was sufficiently severe and pervasive to constitute harassment. As discussed above, it was not. And absent harassment, Pepperdine had no obligation to separate Kay and Jackson or otherwise treat as harassment conduct that was not, in fact, harassment.
We acknowledge, of course, that assuring employers do not penalize employees for complaining about harassment—or even conduct an employee merely perceives as harassment—is a goal of FEHA, and an important one. But a separate FEHA cause of action already serves this purpose. Namely, section 12940, subdivision (h) claims for employer retaliation "may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited by the FEHA." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1043, italics added; see § 12940, subd. (h) [creating cause of action for, inter alia, employer retaliation to complaints of harassment].) Here, Pepperdine's alleged reaction to Jackson's grievance does not support a retaliation cause of action, as it does not rise to the level of adverse employment action; the trial court so held in sustaining the demurrer to the SAC, and Jackson did not appeal that ruling, nor does she otherwise challenge that ruling. But under circumstances in which an employer's inappropriate response to an employee's complaint about something less than actionable harassment does rise to the level of adverse employment action, a retaliation cause of action would provide legal recourse.
The focus of such a retaliation cause of action is the employer's reaction to a grievance. The focus of a sexual harassment claim, by contrast, is the allegedly harassing conduct. Jackson is not challenging the court's ruling on her retaliation claim, but rather its rulings on her harassment-based claims. As such, our analysis focuses on the allegedly harassing conduct: Kay's comments. Accordingly, we look to the totality of the circumstances surrounding those comments in assessing Jackson's harassment claim—not to Pepperdine's handling of grievances about it in the weeks that followed. Any deficiencies in Pepperdine's response to Kay's comments thus cannot retroactively transform Kay's otherwise insufficiently severe comments into actionable harassment. For these reasons, we consider the alleged totality of the circumstances at the time Kay made the comments at issue, and conclude they were not sufficiently severe and pervasive to support a sexual harassment claim.
2. Jackson's arguments regarding section 12923
The Legislature enacted section 12923 in 2018, and it took effect January 1, 2019. Jackson argues that this section, in particular its subdivision (b) regarding harassment claims based on a single instance of conduct, should apply retroactively, and that it supports her harassment cause of action. We need not reach the issue of section 12923's retroactivity, as we conclude it would not affect our analysis in any event.
California and federal courts have long held that a single instance of harassment can, under certain circumstances, be sufficient to support a sexual harassment claim. (See, e.g., Hughes v. Pair (2009) 46 Cal.4th 1035, 1040 (Hughes); Herberg, supra, 101 Cal.App.4th at p. 151.) Section 12923 thus does not create the possibility of such a claim, but rather addresses the manner in which a court may assess whether a single instance of harassment is "severe" enough to be actionable. Specifically, section 12923, subdivision (b), provides: "A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment. In that regard, the Legislature hereby declares its rejection of the United States Court of Appeals for the 9th Circuit's opinion in Brooks v. City of San Mateo (2000) 229 F.3d 917 [(Brooks)] and states that the opinion shall not be used in determining what kind of conduct is sufficiently severe or pervasive to constitute a violation of the California Fair Employment and Housing Act." (§ 12923, subd. (b), italics added.) Thus, by its own terms, section 12923, subdivision (b) does not relieve a sexual harassment plaintiff of his or her burden to establish "sufficiently severe or pervasive" conduct that renders the plaintiff's work environment hostile or abusive. To the contrary, it reiterates this requirement, and goes on to reject Brooks as part of the paradigm for determining whether the requirement has been met.
Brooks involved a single episode during which an employee of the defendant made physical sexual advances at the plaintiff, including touching her stomach and reaching inside her bra to grab her breast, and persisted with these efforts after the plaintiff told him to stop. The employer immediately terminated the harassing employee, who was ultimately prosecuted for criminal sexual assault. Plaintiff sued the employer (not the harassing employee) based on her perception that coworkers and supervisors treated her differently following the incident. The Court of Appeal rejected the idea that a single instance of nonviolent sexual assault that an employer immediately and completely remedied could create a hostile work environment for which the employer could be held liable. (Brooks, supra, 229 F.3d at p. 926.) The court explained that, "we cannot say that a reasonable woman in [plaintiff's] position would consider the terms and conditions of her employment altered by [the harassing employee's] actions. [Plaintiff] was harassed on a single occasion for a matter of minutes in a way that did not impair her ability to do her job in the long-term, especially given that the city took prompt steps to remove [the harassing employee] from the workplace." (Ibid.) The Court of Appeal noted the outcome may have been different, had the single instance of conduct been "extremely severe"—such as one in which the plaintiff was physically injured. (Ibid., citing Al-Dabbagh v. Greenpeace, Inc. (N.D.Ill. 1994) 873 F.Supp. 1105, 1108 [employee of defendant "slapped [plaintiff], tore off her shirt, beat her, hit her on the head with a radio, choked her with a phone cord and ultimately forced her to have sex with him"].)
Whether Brooks approach to single instances of allegedly harassing conduct applies here has no effect on our analysis. In concluding that the conduct alleged in the SAC is not sufficiently severe to be actionable, we need not and do not rely on Brooks or any cases requiring a heightened level of severity for claims based on a single instance of alleged harassment, such as "extremely severe" conduct or conduct involving physical threats. (See, e.g., Hughes, supra, 46 Cal.4th at p. 1040 ["employment law acknowledges that an isolated incident of harassing conduct may qualify as 'severe' when it consists of 'a physical assault or the threat thereof' "] (italics omitted); Herberg, supra, 101 Cal.App.4th at p. 151 ["to establish liability by an employer for sexual harassment [based on a single incident], . . . such a single incident must be severe in the extreme and generally must include either physical violence or the threat thereof"].) The conduct alleged here does not rise to the level of "severe," and thus fails without being subjected to any such heightened standard of severity.
Jackson also quotes section 12923, subdivision (a) for the proposition that a hostile work environment exists when the harassing behavior "sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim's emotional tranquility in the workplace, affect the victim's ability to perform the job as usual, or otherwise interfere with and undermine the victim's personal sense of well-being." (§ 12923, subd. (a).) But, as discussed above, a court's inquiry into whether a hostile work environment exists—be it under the definition in section 12923 or the extremely similar formulations in earlier case law—has both an objective and subjective component. (See Fisher, supra, 214 Cal.App.3d at pp. 609-610 [quoting the language on which section 12923, subdivision (a) is based and holding that "[t]he plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee"], italics added & fn. omitted.) The conduct alleged in the SAC would not have "interfere[d] with and undermine[d]" a reasonable woman's "sense of well-being" or "disrupt[ed] [her] emotional tranquility," so section 12923, subdivision (a) is of no assistance to Jackson's position on appeal. (§ 12923, subd. (a).)
In sum, the FEHA's provision for sexual harassment causes of action "represent[s] 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.' [Citations.]" (Lyle, supra, 38 Cal.4th at p. 277, quoting Brown v. Superior Court (1984) 37 Cal.3d 477, 485.) Sexual harassment causes of action are not intended to enforce a " 'general civility code' " or as a means to broadly police workplace sensitivity. (Jones, supra, 152 Cal.App.4th at p. 1377, quoting Oncale supra, 523 U.S. at p. 81.) Imposing liability based on the inappropriate comments alleged in the SAC would do just that. We decline to expand sexual harassment law in this way.
B. Failure to Prevent Cause of Action
Jackson also argues that the trial court erred in sustaining the demurrer to her section 12940, subdivision (k) cause of action alleging Pepperdine failed to prevent Kay from sexually harassing her. Section 12940, subdivision (k) makes it "an unlawful employment practice" "[f]or an employer . . . to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." (§ 12940, subd. (k).)
As a matter of logic, fairness, and statutory interpretation, under section 12923, "[e]mployers should not be held liable to employees for failure to take necessary steps to prevent [harassment or discrimination], except where [such] actions took place and were not prevented." (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.) Accordingly, harassment or discrimination is an "essential foundational predicate of" a failure to prevent claim. (Ibid.; see Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925, fn. 4 ["courts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k)"]; see also Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1166 ["[w]here, as here, a plaintiff cannot establish a claim for discrimination, the employer as a matter of law cannot be held responsible for failing to prevent same"].) As discussed above, the SAC fails to allege actionable harassment, and thus cannot allege an actionable failure to prevent cause of action.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.