Showing of Favoritism to Supervisor’s Paramours May Create Actionable Hostile Working Environment

Metropolitan News-Enterprise

Tuesday, July 19, 2005

Page 1

Showing of Favoritism to Supervisor’s Paramours May Create Actionable Hostile Working Environment—S.C.

By a MetNews Staff Writer

Employees whose careers suffer as a result of favoritism shown to co-workers who are having sexual relationships with their supervisor may have viable sexual harassment claims based on the existence of a hostile working environment, the state Supreme Court ruled yesterday.

In a 6-0 decision, the justices reinstated claims by Edna Miller and the family of the late Frances Mackey that the two women were subjected to sexual harassment by the then-warden of Valley State Prison for Women when they worked there in the 1990s.

“[W]e conclude that, although an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual affair ordinarily would not constitute sexual harassment, when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which 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 by engaging in sexual conduct with their supervisors or the management,” Chief Justice Ronald M. George wrote for the court.

The ruling is the latest fallout from the activities of Lewis Kuykendall, who served as chief deputy warden at the Central California Women’s Facility before being promoted to warden at Valley State, in Chowchilla.

Kuykendall allegedly had concurrent affairs with three subordinates, who allegedly quarreled with each other in front of other employees as a result. Other female employees claimed that they despaired of promotion because of the pervasive belief that sex with the warden was a prerequisite, although there were no allegations he propositioned other women.

After complaints in 1998, the Department of Corrections conducted an internal investigation that resulted in many of the allegations being sustained. Kuykendall retired and his chief deputy—who had been accused of knowing what was going on and doing nothing about it, and of taking retaliatory action against Miller—was demoted.

The investigators also found that Miller had been assaulted and held captive for two hours by one of Kuykendall’s lovers, Cagie Brown, who had been promoted over Miller to a captain’s position, even though Miller previously outranked her and had more experience and was better educated. Brown, who by then had been promoted again, to associate warden, resigned rather than face discipline.

Mackey and Miller resigned sometime after it became known—despite promises of confidentiality—that they complained to investigators. Both filed complaints with the Department of Fair Employment and Housing and obtained right-to-sue letters.

Sacramento Superior Court Judge Joe Gray granted summary judgment in favor of the department on the plaintiffs’ claims of sexual harassment and of retaliation for making the complaints that provoked the internal investigation. Gray reasoned that because there were no non-consensual relationships or unwanted attempts at forming such relationships involved, there was no hostile environment.

The retaliation claims were not viable either, the judge concluded, reasoning that complaining of an improper sexual relationship between a supervisor and a fellow employee is not a protected activity under the Fair Employment and Housing Act’s whistleblower provision.

The Third District Court of Appeal affirmed, but the high court disagreed.

George cited a policy statement of the federal Equal Employment Opportunity Commission on workplace favoritism, and noted that the right to be free from a hostile atmosphere at work has been broadly interpreted by both California and federal authorities.

“Following the guidance of the EEOC,” the chief justice wrote, “and also employing standards adopted in our prior cases, we believe that an employee may establish an actionable claim of sexual harassment under the FEHA by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter his or her working conditions and create a hostile work environment.”

It followed, George said, that if an employee has a reasonable basis for believing that sexual relationships between a supervisor and other employees has created a hostile environment, the employee’s complaints about those relationships are covered by the whistleblower provision.

George went on to conclude that the plaintiffs presented sufficient evidence to survive a summary judgment motion.

“There was evidence Kuykendall’s sexual favoritism not only blocked the way to merit-based advancement for plaintiffs, but also caused them to be subjected to harassment at the hands of Brown, whose behavior Kuykendall refused or failed to control even after it escalated to physical assault,” the chief justice wrote.

He continued:

“This harassment, apparently retaliatory, included loss of work responsibilities, demeaning comments in the presence of other employees, loss of entitlement to a pay enhancement and to disability accommodation, and physical assault and false imprisonment. Kuykendall explained to Miller that, because of his intimate relationship with Brown, he would not protect plaintiffs. In this manner, his sexual favoritism was responsible for the continuation of an outrageous campaign of harassment against plaintiffs.”

The case is Miller v. Department of Corrections, 05 S.O.S. 3557.