Opinion
D040529.
10-15-2003
JENNIFER M. SETTLE, Plaintiff and Appellant, v. DESTINATION HOTELS & RESORTS, INC., et al., Defendants and Respondents.
Jennifer M. Settle appeals summary judgments in favor of Destination Coronado Hotel, Inc., sued as Destination Hotels & Resorts, Inc., (Destination), Michael Hardisty and Craig Jacobs on a cause of action for retaliatory discharge in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) based on her reporting sexual harassment by a supervisory employee. We conclude the court erred in finding Settle had not raised triable issues of fact.
All statutory references are to the Government Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
The Hotel Del Coronado (Hotel) hired Settle as an employee in 1977. Destination purchased the Hotel in 1997. Craig Smith, director of sales, supervised Settle. Smith reported to Jacobs, the Hotels director of sales and marketing. Jacobs reported to Hardisty, the Hotels managing director.
In 1995, Settle had received a performance review where she received a below average rating as to her leadership and communication abilities. Her overall evaluation, however, was above average.
In 1997, Settle was promoted to associate sales director, a position where she supervised other employees in the sales office.
In 1998, Settles performance evaluation was primarily positive.
In December 1998, Settle indicated her interest in becoming the director of sales. Jacobs told her he would consider her a candidate for the position. On January 20, 1999, Hardisty and Jacobs met with Settle, informing her that she was no longer a candidate for the director of sales position. Settle became very emotional during the meeting, wanting to know why she was not being considered for the position. Hardisty told her she was not going to be considered for the position because Jacobs had received a number of complaints about her management style. Hardisty believed Settle did not have sufficient leadership skills for the position. Additionally, Hardisty believed that Settle was unsuited for the position because she lacked any significant higher education and her experience was limited to the Hotel.
On January 22, 1999, Jacobs met with Settle. He told her he hoped that she would be "a productive, happy member of the team" and that he knew the discussion with Hardisty had been difficult. During the meeting, Settle accused Jacobs of betraying her, stated her belief that Jacobs had promised the position to her and then reneged on his promise, called another employee "a snake who would turn on you one day too," demanded that Jacobs tell the sales team that she was still the associate director of sales but would change her focus to selling, and stated she would be loyal to Hardisty and to the new director of sales but that Jacobs should stay out of her way.
On January 23, 1999, Settle ran into a fellow employee, Jill Bricnet at a department store. According to Settle, Bricnet indicated that she was not happy about having to have dinner with Jacobs that night at an event. Settle told Bricnet not to trust Jacobs and that he was an evil man. Bricnet subsequently reported the conversation to Jacobs, stating that Settle had made derogatory comments about Jacobs personally as well as his management style. Hardisty requested that Susan Corey-Tuckwell, director of human resources, investigate. A number of employees who worked under Settle were interviewed on January 26 and 27. Many criticized Settles management style as divisive, inconsistent, intimidating, vindictive and threatening. Some employees stated that Settle appeared to be angry with Jacobs about not getting the director of sales position, felt she had been lied to, and had stated that Jacobs was "evil, untrustworthy" and to "watch out for him."
On January 27, 1999, there was a meeting between Settle, Hardisty and Corey-Tuckwell that was memorialized in a written memorandum. In pertinent part, the memorandum states:
"We are very concerned about comments made by you, subsequent to our meeting with you and Craig Jacobs on January 20th, and their impact on the operation. Disparaging comments by you regarding your direct supervisor, Craig Jacobs, were insubordinate in nature and conducive to subversion within the Sales and Marketing organization. This is noted as a violation of policy and significantly inconsistent with our core values, and as such, is unacceptable in absolute terms.
"Further, and in addition to the above, we are very concerned regarding your management and communication styles. These are perceived by many to contribute to an insecure and hostile environment. This is a policy violation and significantly inconsistent with our core values. An environment perceived as hostile is absolutely unacceptable.
"We want to make clear the severity of these policy infractions. Any further such behavior or activity will not be tolerated."
At that time, Settle was demoted from her position as associate sales director to national sales manager, a nonsupervisory position.
In March 1999, Destination hired Smith as the director of sales.
On February 14, 2000, a confidential e-mail was left on Settles desk concerning the creation of a new position, director of incentive sales, and a proposed reassignment for Settle; Settle was not on the distribution list for this e-mail. Settle took the e-mail home and shared it with her husband as well as with her attorney. On February 22, she e-mailed the human resources director to indicate her interest in the position. During the following week, she was in the office part of the time but did not mention receiving this e-mail to Jacobs or Smith until February 24. An investigation into the matter was conducted and on March 3, Paul Carter, director of security, contacted Settle and asked her if she realized that reading the confidential memorandum was a breach of security and should have been reported immediately, to which Settle answered yes. Smith, who had forwarded the e-mail to a person not on the distribution list, was told not to do that again. There were apparently no discussions about disciplining Settle.
On a Friday in March 2000, Settle, Smith, Andrea Dodson and other employees went to a nearby restaurant for drinks to celebrate the promotions of two employees. According to Settle, as she was walking back to the Hotel with Smith and Dodson, Smith several times asked Settle if she was returning to the Hotel, to which Settle responded, "yes." When Settle returned to the Hotel, she checked her voice mail and learned that a group had canceled. She went to Smiths office to talk with him about the cancellation. As she approached Smiths office, his door was closing. She called out Smiths name, saying she knew he was in there and knocked several times. Finally, Dodson partially opened the door and peeked her head around the door. Settle noticed the blinds were drawn and most of the lights were off. Settle felt "very, very uncomfortable." She talked with Smith about the cancellation. Another employee came "running up" and told Dodson her husband was on the phone at which point Dodson left.
According to Smith, he and Dodson returned to his office because Dodson wanted to discuss some ideas she had for advancing her career. The blinds were already drawn and the door was shut because the conversation was confidential. The lights were on. Smith first checked his phone messages. As he was checking his messages, Settle knocked on the door, called out his name and said she needed to talk with him. Smith asked Dodson to open the door which she did. Settle told him about the cancellation. Smith suggested they talk about it later and Settle left.
On the following Monday, Dodson walked into Settles office (which was unusual) while Settle was with fellow employee Jolee Bartlett. When Dodson left, Settle told Bartlett about what she had observed the previous Friday. Settle also told Karen Kozar, Pearl Kelly, and Margie Dillman. Eventually, another employee told Smith she had heard from Kelly that Settle was spreading a rumor that Smith and Dodson were having an affair. Smith complained to Jacobs and thereafter an investigation was launched into whether Settle was spreading rumors.
Settle prompted Bartlett to tell Kelly and Dillman about the incident that day at lunch.
Smith called Settle into his office and accused her of spreading a rumor that he and Dodson were having an affair to which Settle responded, "Huh?" and that she would never say such a thing out of respect for Smiths wife and Dodsons husband and besides it was "none of [her] business anyway."
During the investigation, Carter interviewed a number of employees. He interviewed Settle twice, on March 16 and 17, 2000. During the first interview, she told Carter what she had observed, her conversation with Smith about her allegations, and denied ever telling anyone that she thought Smith was having an affair. She also mentioned that she had heard a rumor about a Fourth of July party on a boat attended by Smith, his wife, a female Hotel employee, and others where they "got naked together."
On March 16, 2000, two female employees approached one of the Hotels managers to complain about Smith staring at their breasts.
During the second interview, Settle gave more details about the rumors she had heard about the Fourth of July party. She also mentioned going into Smiths office one time when he had a pornographic picture on his computer screen. Smith had quickly deleted the picture and explained a friend sent it to him. Settle said these things made her uncomfortable but she had not complained because she did not think she would be believed. Settle described Smith as "a nice guy" who "tries to be everybodys friend," but that he sometimes made lewd and inappropriate comments to women. She stated that he would look at womens breasts and suggested several women be interviewed who would support her allegations. Settle also mentioned a business trip with Smith and how, while they were having drinks, Smith talked about orgies and his desire for a ménage a trois with his wife.
According to Smith, during this business trip Settle initiated a discussion of the sexual adventures of a corporate leader and suggested Smith get together with another woman. Smith also indicated that Settle had made sexual comments in the workplace.
Within hours of this second interview, on March 17, 2000, Settle was called to a meeting attended by Jacobs, Hardisty, Carter, Corey-Tuckwell, and Guiseppe Lama. Settle was suspended. On March 30, Settle met with Hardisty and Corey-Tuckwell and her employment was terminated. Hardisty told Settle she was being fired for conduct that was "insubordinate, subversive, and damaging to the organization." Her personnel file reflects she was terminated for "gross insubordination" and "lewd or immoral conduct."
As to Settles allegations of sexual harassment involving Smith, an investigation promptly commenced. Twelve employees were interviewed. Four of the twelve, including two who had contacted a supervisory employee on March 16, 2000, reported Smith had engaged in inappropriate sexual comments and was observed looking at womens breasts. The report dated March 21, 2000, suggested that Smith be counseled about his inappropriate behavior and that a follow-up investigation be conducted if Smiths behavior did not change. Smith could not recall if he was told of specific conduct that was inappropriate or if he was "coached" on changing his conduct. He recalled being counseled about statements that could be misinterpreted. In opposition to the motion for summary judgment, Settle submitted a declaration of a female employee at the Hotel stating that even after the investigation, Smith continued to stare at womens breasts.
In her first amended complaint, Settle sued Destination, Jacobs and Hardisty, alleging causes of action for defamation, discrimination and harassment based on national origin and age, sexual harassment and discrimination, breach of contract, breach of the covenant of good faith and fair dealing, retaliation, and wrongful termination in violation of public policy. The defendants moved for summary judgment.
Settle also sued Smith. Smith is not involved in this appeal.
The court granted summary judgments in favor of the defendants. On appeal, Settle raises only the propriety of the trial courts ruling on her retaliation claim against Destination, Hardisty and Jacobs.
The trial court originally ruled that Settle had raised a triable issue of fact on her cause of action for sexual harassment but Settle subsequently dismissed that cause of action with prejudice and the court entered a judgment in favor of Destination.
DISCUSSION
I
Retaliation by Destination
Settle contends she raised a triable issue of fact as to whether she was terminated in retaliation for reporting instances of sexual harassment by Smith. Destination does not dispute that Settle reported incidents of sexual harassment by her supervisor, Smith, but asserts there was no causal connection between these reports and her termination and argues that the undisputed evidence establishes a lawful basis for her dismissal.
When reviewing a summary judgment, we "examine the record de novo and independently determine whether [the] decision is correct." (Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1149.) In undertaking our independent review of the evidence submitted, we apply "`the same three-step process required of the trial court: First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond; secondly, we determine whether the moving partys showing has established facts which negate the opponents claims and justify a judgment in movants favor; when a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue." (Waschek v. Department of Motor Vehicles (1997) 59 Cal.App.4th 640, 644; Dawson v. Toledano (2003) 109 Cal.App.4th 387, 400-401.)
Under the FEHA, it is unlawful "[f]or any employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint . . . under this [Act]." (§ 12940, subd. (h).) The FEHA provides that it is an unlawful employment practice "[f]or an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of . . . sex . . . to harass an employee . . . ." (§ 12940, subd. (j)(1).) An employer is strictly liable for sexual harassment by a supervisor and is liable for sexual harassment by a nonsupervisoral employee or agent if the employer "knows or should have known of this conduct and fails to take immediate and appropriate corrective action." (Ibid.)
"To establish a prima facie case of retaliation, the plaintiff must show (1) he or she engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link between the protected activity and the employers action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation `drops out of the picture, and the burden shifts back to the employee to prove intentional retaliation." (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.)
"Both direct and circumstantial evidence can be used to show an employers intent to retaliate. `Direct evidence of retaliation may consist of remarks made by decisionmakers displaying a retaliatory motive. [Citation.] [Citation.] Circumstantial evidence typically relates to such factors as the plaintiffs job performance, the timing of events, and how the plaintiff was treated in comparison to other workers." (Colarossi v. Coty US Inc., supra, 97 Cal.App.4th 1142, 1153; see also Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 816 ["At least three types of evidence can be used to show pretext: (1) direct evidence of retaliation, such as statements or admissions, (2) comparative evidence, and (3) statistics."].)
Here, Settle presented evidence that she engaged in a protected activity, i.e., reporting instances of sexual harassment by Smith and she was terminated following her report. Destination asserts that because Settles claim of retaliation was based on "last-minute allegations" made against Smith while she knew her job was in jeopardy, Settle failed to present evidence "that [her] harassment allegations in any way affected Destinations approach to her employment status." We disagree.
While the undisputed evidence shows an investigation was underway at the time Settle made her allegations of sexual misconduct, the evidence does not, as a matter of law, establish that Destination had already made a decision to terminate Settle prior to her complaints of sexual harassment. Carters report of the investigation of the Smith/Dodson rumor contained Settles allegations of sexual harassment and, therefore, it can be inferred that Hardisty and Jacobs were aware of Settles allegations at the time of her suspension. A further inference may be drawn from the timing of Settles suspension and subsequent firing that there was a causal link between her complaints of sexual harassment in the workplace and her termination. At a minimum, a reasonable trier of fact could conclude that Settles complaints tipped the balance from some lesser disciplinary action to the severe response of termination. Thus, Settle presented a prima facie case of retaliation and the burden shifted to Destination to show a legitimate, nonretaliatory reason for the termination.
Destination presented evidence of a nonretaliatory motive for Settles termination, i.e., that she was terminated for insubordinate conduct following a pattern of misconduct. There was evidence indicating that Settle was not a model employee prior to her termination in 2000. She had received poor marks for her leadership and communication skills in 1995. In January 1999, an investigation revealed there were many complaints about her management style, she was warned about disparaging supervisory personnel, and she was demoted to a nonmanagerial position. In February 2000, she had improperly handled a confidential e-mail that she found on her desk. Thus, the burden shifted to Settle to present evidence raising a triable issue of fact as to whether the reasons given for her termination were pretextual and to support her claim that she was fired for engaging in protected activity. Settle met this burden.
Hardisty told Settle that she was being terminated for conduct that was "insubordinate, subversive, and damaging to the organization." Her personnel file reflects she was terminated for "gross insubordination" and "lewd or immoral conduct."
Initially, as we pointed out above, while it is true that Destination presented evidence that Settle was not a model employee, there was other evidence showing that Settle received a positive evaluation in 1998, exceeded the sales goals set for her in the third quarter of 1999, and met her sales goal for the first quarter of 2000. Further, many of the incidents of prior performance problems, criticism of Settle, and discipline had occurred over a year or many years before she was actually terminated. The timing of her termination, so soon after her reports of Smiths sexual harassment, is a factor tending to support a finding that the reasons given for her termination were pretextual.
A finding of pretext is also supported by a comparison between the discipline imposed on Settle and that imposed on Smith. The undisputed evidence shows that Settles claims of sexual harassment were substantiated, i.e., that Smith had engaged in inappropriate sexual comments and stared at womens breasts while talking to them. The human resources director talked with Smith. Smith could not recall if he was told of specific conduct that was inappropriate or if he was "coached" on changing his conduct. He recalled the director giving him tips on avoiding "insinuations that could be interpreted incorrectly" and gave as an example a comment he had made at a sales meeting stating that, "We need to get in bed with our clients," meaning that it was important to learn everything about the clients, not that any of the sales staff should literally sleep with the clients. An inference can be drawn from Smiths statements that if he received a verbal reprimand, it was of the mildest sort; he could not remember any details and apparently shifted the blame to others for misinterpreting his comments. There is also evidence that Smith continued to engage in inappropriate behavior after the investigation and meeting with the human resources director, i.e., that he continued staring at womens breasts. This evidence supports a finding of very disparate treatment between Settle who was terminated for her conduct and Smith who received only the mildest comments on his conduct. A reasonable jury could conclude that the disparity in the treatment between the person who reported the harassment (Settle) and the person who committed the harassment (Smith) shows that the reasons given for Settles termination were pretextual.
A finding that the stated reasons were pretextual is also supported by the fact that Settles personnel file indicates she was fired for "lewd or immoral conduct," a statement that a reasonable trier of fact could find was outrageous and unsupported by the evidence. A reasonable trier of fact could conclude that Settles conduct in discussing her observations privately with fellow employees was not lewd or immoral, and was not insubordinate, subversive, or damaging to the organization. Settle reported what she saw, circumstances that, in and of themselves, suggest certain inferences; she did not merely declare that coworkers were having an affair. A reasonable trier of fact could conclude that Settle, when discussing her observations with fellow employees, was engaging in protected activity, that is, expressing concerns about sexual harassment in the workplace and that she was fired in retaliation for expressing these concerns to other employees and for reporting more specific instances of sexual harassment to Carter when interviewed on March 17.
We conclude that Settle raised sufficient issues of fact to merit a trial as to whether Destinations given reasons for her termination were pretextual. The trial court erred in granting summary judgment. Reversal is required.
II
Personal Liability of Hardisty and Jacobs
Hardisty and Jacobs argue that even if Settle raised a triable issue of fact on the retaliation issue, nonetheless reversal is not merited as to them because they cannot be held personally liable for the retaliation. They rely on the Supreme Court cases of Reno v. Baird (1998) 18 Cal.4th 640 (Reno) and Carrisales v. Dept. of Corrections (1999) 21 Cal.4th 1132 (Carrisales).
In Reno, a nurse sued her former supervisor for discrimination under the FEHA, alleging that she had been discharged because she had cancer. The Supreme Court held the statutory language indicated the Legislature did not intend individual supervisory employees who had implemented personnel decisions to be held personally liable for employment discrimination. The FEHA provision at issue in Reno imposed liability only on "an employer." (§ 12940, subd. (a).) The Reno court contrasted the FEHA antidiscrimination provision with the FEHA antiharassment provision. Whereas the FEHA discrimination prohibition applied only to a "an employer" and did not include individuals (§ 12940, subd. (a)), the prohibition against harassment, for example, applied to "an employer . . . or any other person" (id., subd. (j)(1)). The Reno court further noted that while harassment "`consists of conduct outside the scope of necessary job performance" and is "`conduct presumably engaged in for personal gratification," business or personnel management decisions which might later be considered discriminatory are inherently necessary to a supervisors job performance. (Id. at p. 646.)
In the course of the opinion, the court noted several policy reasons for not holding individual supervisors personally liable. The Reno court observed that "`[c]orporate decisions are often made collectively by a number of persons," and when a collective decision is made the individual participation in the decision varies and, if individual liability could be imposed, employees, "`[o]ut of caution . . . might feel compelled to dissent from that decision, or attempt to disassociate themselves from it, merely to protect their pocketbooks." (Reno, supra, 18 Cal. 4th 640, 662.) The court also noted that imposing personal liability "`against individual supervisory employees adds little to an alleged victims legitimate prospects for monetary recovery" since, regardless of any individual liability of a supervisory employee, "`[t]he plaintiff-employees primary target remains the employer." (Id. at p. 653.) The court stated that "`[a]dding individual supervisors personally as defendants adds mostly an in terrorem quality to the litigation, threatening individual supervisory employees with the spectre of financial ruin for themselves and their families and correspondingly enhancing a plaintiffs possibility of extracting a settlement on a basis other than the merits." (Ibid.) The court observed, "`Enhancing the prospects for obtaining a settlement on a basis other than the merits is hardly a worthy legislative objective." (Ibid.) The Reno court also observed that those supervisory employees who did engage in discrimination would presumably suffer consequences, that is, either disciplinary action or termination by their employer. (Id. at pp. 661-662.)
In Carrisales, supra, 21 Cal.4th 1132, an employee sued a coworker for sexual harassment under the FEHA. The Supreme Court noted the FEHA harassment provision referred to harassment by "any other person," language that literally included the coworker and "indeed, . . . includes everyone in the world." (Carrisales, at p. 1135.) The court stated that it was required not to "view isolated language out of context, but instead interpret the statute as a whole, so as to make sense of the entire statutory scheme." (Ibid.) The court concluded the Legislature did not intend for the "any other person" language to be so broadly construed as to impose personal liability on coworkers for harassment. The court reasoned that the FEHA encompasses only unlawful employment practices and, pursuant to the statutory language, an unlawful employment practice existed for harassment by a coworker when the employer knew or should have known of the harassment and failed to immediately take appropriate steps to deal with the harassment. (Id. at pp. 1135-1136.) Pursuant to the statutory language, only the employer could commit an "unlawful employment practice." (Id. at p. 1136.) The Supreme Court distinguished Reno, noting that it involved a discrimination (rather than harassment) claim. (Carrisales, at p. 1137.) Following the Carrisales decision, the Legislature amended the FEHA to specifically provide that a coworker could be held personally liable under the FEHA for harassment. (Stats. 2000, ch. 1047, § 1.)
Hardisty and Jacobs argue the reasoning of Reno should apply here, that is, that they should not be held personally liable for carrying out personnel decisions essential to their supervisory positions. They argue, pursuant to Carrisales, that the fact the FEHA retaliation provision refers to retaliation as being an unlawful practice by "any . . . person" (italics added) should not be construed literally to include any possible person nor to include, in particular, supervisory employees carrying out personnel decisions of their employers; liability should be limited to the employer.
Initially, we note at the time of the Reno and Carrisales opinions, there was a California Court of Appeal opinion holding that a supervisor could be held individually liable for violating the FEHA retaliation provision. (Page v. Superior Court (1995) 31 Cal.App.4th 1206, 1210-1211.) Neither Reno nor Carrisales overruled Page; both declined to address whether supervisors could be held individually liable for an FEHA retaliation claim. Nor did the Legislature ever amend the FEHA to overrule the Page decision.
Second, we note that the discrimination provision at issue in Reno and the harassment provision at issue in Carrisales contain different language than the retaliation provision at issue here. The FEHA retaliation provision applies to "any employer, labor organization, employment agency, or person . . . ." (§ 12940, subd. (h), italics added.) "Person" is defined as including "one or more individuals." (§ 12925, subd. (d).) In contrast, the provision at issue in Reno prohibited only discrimination by "an employer." (§ 12940, subd. (a).) The Reno courts decision was dependent on the statutory language of the FEHA discrimination provision limiting its application to "an employer" and distinguished, for example, the harassment provision that applied to "any other person." The retaliation provision, as noted above, like the harassment provision, applies to "any other person."
For the purposes of the sexual harassment provision only, the FEHA defines "employer" as including "any person regularly employing one or more persons . . . ." (§ 12940, subd. (j)(4)(A).) Nonprofit religious associations or organizations are exempted from the FEHA definition of an employer. (§§ 12925, subd. (d), 12940, subd. (j)(4)(B).) Otherwise in the FEHA, an "employer" is defined as "any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state and cities . . . ." (§ 12926, subd. (d).)
Every case that has addressed the issue, that is, whether the California Legislature intended the FEHA retaliation provision to impose personal liability on supervisory employees who engage in retaliation, has distinguished the Reno decision and concluded that supervisory employees may be personally liable. (See Walrath v. Sprinkel (2002) 99 Cal.App.4th 1237, 1241-1242; Winarto v. Toshiba America Electronics Components, Inc. (9th Cir. 2001) 274 F.3d 1275, 1288; Liberto-Blanck v. City of Arroyo Grande (C.D.Cal. 1999) 33 F.Supp.2d 1241, 1242-1244; Soo v. United Parcel Service, Inc. (N.D.Cal. 1999) 73 F.Supp.2d 1126, 1129.) These cases have made the distinction on the basis the FEHA retaliation provision applies to "any other person" whereas the discrimination provision at issue in Reno applies only to "an employer." We find the reasoning of these cases to be persuasive.
The Carrisales decision does not compel a contrary result. While the Supreme Court in Carrisales held that "any other person" language should not automatically be construed to authorize the imposition of personal liability on any individual, the Supreme Courts decision not to hold a coworker individually liable for sexual harassment was based on a reading of the statute as a whole. That statute contained language which the Supreme Court construed to reflect a legislative intent not to hold a nonsupervisor coworker individually liable, i.e., the statute provides an employment practice is unlawful if the employer knew or should have known of the harassment or if the employer failed to take immediate and appropriate steps to remedy harassment by a nonsupervisoral employee once the employer knew or should have known of the harassment. The FEHA statute at issue here contains no similar language limiting the individual liability of employees for retaliation. Moreover, the Legislature, by amending the FEHA to expressly provide for individual liability for harassment by a coworker, made it clear that the Carrisales court did not correctly interpret the Legislatures intent.
In sum, we conclude that Hardisty and Jacobs can be held personally liable for acts of retaliation in violation of the FEHA.
DISPOSITION
The judgments are reversed. Settle is entitled to her costs on appeal.
WE CONCUR: BENKE, J. and OROURKE, J.