Thursday, July 6, 2006
C.A. Reinstates Claim of Same-Gender Sexual Harassment
By KENNETH OFGANG, Staff Writer
A mechanic who alleges that his supervisors persistently ignored his complaints that co-workers were harassing him by challenging his masculinity has a triable claim under the Fair Employment and Housing Act, the Court of Appeal for this district has ruled.
Div. Eight Monday overturned a summary judgment rejecting John Singleton’s claim against United States Gypsum Company. Singleton alleged that two men with whom he worked on the graveyard shift at USG’s Torrance plant constantly called him “Sing-a-Ling,” which he understood to be a reference to a gay character in a movie, and made remarks and gestures suggesting that he had engaged in sexual relations with a male supervisor and that his antagonists would be willing to have sex with him.
When he complained about the remarks, he testified in his deposition, supervisors told him “just do your job,” and “just tell him ‘f—- you’ and keep on working.”
Singleton, Justice Madeleine Flier wrote for the court, “presented more than adequate evidence” that his co-workers comments were unwelcome, that they were “because of sex,” and that work became a “living hell” in which his performance suffered as a result of those comments.
USG denied that those comments were made or that any such comments were reported to Singleton’s supervisors. The company, which fired Singleton in 2002, claimed it did so because he had threatened to become violent if required to work on Christmas.
Los Angeles Superior Court Judge Elizabeth Grimes held that Singleton failed to show that the company’s stated reason for his termination was pretextual; that while he may have been subjected to vulgarities, he did not show that the remarks were sexual; and that even if the remarks were sexual, they were not “so extreme as to create an environment that an objectively reasonable person would find hostile or abusive.”
“Plaintiff has presented substantial evidence that graveyard shift production workers insulted him, spoke rudely to him, interfered with his maintenance work, deliberately sabotaged machine operations and taunted him while he tried fruitlessly to troubleshoot problems and get the machinery operating again. Such behavior by the nonsupervisory employees was hostile and abusive, but there is no triable issue of fact that the hostility or abuse was related to plaintiff’s gender or sexual orientation. It is therefore not protected by FEHA.”
But Flier, writing for the Court of Appeal, said the trial judge’s conclusions were inconsistent with both the law and the evidence presented by the plaintiff.
The justice cited Singleton’s testimony that the comments included specific references to homosexual activity, including nightly comments that Singleton was “still employed by USG” only because he “was having oral sex on my supervisor in the mornings.”
She also pointed to testimony by Singleton and a co-worker that they understood the “Sing-a-Ling” nickname to be sexual in nature.
Treating Singleton’s testimony as true for purposes of the summary judgment motion, Flier said, leads to the conclusion that he was subjected to disparate treatment based on sex.
The jurist explained:
“That there is evidence in this case that Singleton was ‘disparately’ treated because of his sex is best expressed by Singleton himself. Referring to Ross’s statements, Singleton testified in his deposition: ‘He would say things that I would say would challenge me as a man.’ The comments made by Ross and Umi would ‘challenge’ any heterosexual male ‘as a man’ This is not to express preference for one sexual orientation over another. It is to state that Singleton recognized, as would any reasonable heterosexual male, that Ross and Umi targeted Singleton’s heterosexual identity, and attacked it by and through their comments.”
The justice went on to say that “given that Ross and Umi had targeted Singleton’s identity as a heterosexual male, it is axiomatic that they would treat women ‘differently,’ i.e., not attack them for the same reason,” and that “[i]It follows that the harassment was ‘because of sex,’ i.e., it employed attacks on Singleton’s identity as a heterosexual male as a tool of harassment.”
Attorneys on appeal were Stephen A. Ebner and Kevin C. Boyle for the plaintiff and Keith J. Braskich and Carol L. Newman for USG.
The case is Singleton v. United States Gypsum Company, 06 S.O.S. 3470.
Copyright 2006, Metropolitan News Company