Metropolitan News-Enterprise


Thursday, April 24, 2003


Page 1


S.C. to Decide Whether Report of Sexual Misconduct By Co-Worker Is Protected by FEHA


By a MetNews Staff Writer


The California Supreme Court yesterday agreed to decide whether an employee who reports an improper sexual relationship between a co-worker and a supervisor is protected from retaliation by the Fair Employment and Housing Act.

The justices voted unanimously to review the Third District Court of Appeal’s Jan. 28 ruling in Mackey v. Department of Corrections, 105 Cal.App.4th 945.

The Third District panel rejected claims by female employees of the Department of Corrections that they suffered sex discrimination and retaliation while working at Valley State Prison for Women in the mid-1990s.

The plaintiffs claim that the then-warden, Lewis Kuykendall, had affairs with his secretary, a deputy warden, an associate warden and a correctional officer. As a result, they said, those women were given treatment more favorable than that accorded other female employees.

The plaintiffs also allege they were retaliated against for reporting the affairs to the department’s internal investigation unit. The Sacramento Superior Court judge who granted summary judgment to the department, and the Third District panel, both held that the reporting of sexual relationships between a superior and a subordinate employee is not protected activity under FEHA even if the relationship is improper.

In other actions at yesterday’s conference, the justices:

Denied a request by Los Angeles Police Department detective Sonia Cabrera for publication of a Jan. 30 opinion by this district’s Div. Five. The panel agreed with a Superior Court judge that the police department had no authority to suspend Cabrera for what the trial court found was a good-faith disagreement with her landlady over the parties’ relative financial obligations. The department claimed Cabrera violated department regulations on financial responsibility.

“The manual cannot reasonably be read to mean that police officers may never become caught up in such disputes, or to forbid a police officer from disputing a claim about money,” the justices said.

Denied review of a Dec. 26 ruling by Div. Four of this district’s Court of Appeal that a Los Angeles County pilot program in which county workers visit the homes of welfare applicants, for the asserted purposes of verifying eligibility and determining what other social services an applicant might need, violates the Fourth Amendment. Only Justice Joyce L. Kennard voted to grant review.

The court also denied a request by University of Southern California law professor Erwin Chemerinsky and others that the opinion in the case Smith v. Los Angeles County Board of Supervisors be depublished.

Agreed to review Powerine Oil Co. v. Superior Court (2002) 104 Cal.App.4th 957, in which the Court of Appeal held that an oil refiner’s excess/umbrella liability policies provided coverage for costs the refiner incurred in complying with cleanup and abatement orders issued by administrative agency. The high court ruled two years ago that the same refiner could not look to its comprehensive general liability insurers for coverage because the policies provided for payment of “damages,” which the high court construed as referring only to court judgments.

The justices also agreed to review a similar issue in County of San Diego v. Ace Property & Casualty Ins. Co. (2003) 106 Cal.App.4th 349, in which the Fourth District Court of Appeal held that a county operator of a landfill could not recover administrative cleanup costs because they were not “damages” within the meaning of the policy.


Copyright 2003, Metropolitan News Company