Thursday, September 3, 2020
Court of Appeal:
Two Improper Remarks by Co-Worker Don’t Give Rise to FEHA Action Against Employer
By a MetNews Staff Writer
The Court of Appeal for this district, applying an average “reasonable woman” standard, has affirmed a judgment of dismissal of an action against Pepperdine University under the Fair Employment and Housing Act brought by an ex-employee based on two indecent wisecracks made to her by a male co-worker.
Presiding Justice Frances Rothschild of Div. One wrote the opinion, filed Tuesday and not certified for publication.
Plaintiff Petra Jackson claimed sexual harassment by Murzi Kay—whom she identified as “a male superior over twice Plaintiff’s age” who was “well-known at Pepperdine as he had worked there for over forty years”—and averred that Pepperdine reacted inadequately to her complaint about his conduct and did not forbid any further contact with her by him, thus creating a hostile work environment.
Jackson recited that on Nov. 2, 2016, she was conversing with a pregnant co-worker, Rachel Guettler, at a staff event, expressing the hope that the Cleveland Indians would win the World Series that evening, when Kay came over and interrupted. His remarks then, and at a later point that day when she was at a reception desk, formed the bases of her allegations of sexual harassment.
The Second Amended Complaint (“SAC”) sets forth:
“The ‘incidents’ or ‘incident’ refers to one or both of the incidents of sexual harassment that occurred on November 2, 2016, wherein Defendant Kay stated to Plaintiff, ‘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—’ Kay 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,’ and later that same day ‘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.’ ”
‘Crude and Inappropriate’
Los Angeles Superior Court Judge Ramona G. See, in sustaining demurrers without leave to amend, termed the remarks “crude and inappropriate” but found they were not sufficient to constitute sexual harassment. Agreeing, Rothschild said:
“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.”
She went on to say:
“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.”
Rothschild found no merit in Jackson’s allegation that Pepperdine was remiss in sloughing off her complaint and declining to make accommodations for her. While Jackson insisted that the university was obliged to “separate the harasser from his victim,” Rothschild remarked:
“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….[I]t 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.”
“Any deficiencies in Pepperdine’s response to Kay’s comments thus cannot retroactively transform Kay’s otherwise insufficiently severe comments into actionable harassment.”
The case is Jackson v. Pepperdine University, B296411.
Eduardo Martorell and JoAnn Victor of Martorell Law, a firm located at university Pepperdine University’s West Los Angeles Graduate Campus, represented Jackson. David R. Sugden, Marlynn P. Howe and Melinda Evans of the Newport Beach firm of Call & Jensen acted for Pepperdine and Kay.
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