Opinion
F053792
7-15-2009
KIMBERLY KEATHLEY, Plaintiff and Appellant, v. SANOFI-AVENTIS U.S., LLC, Defendant and Respondent.
Lang, Richert & Patch, Charles Trudrung Taylor and Kirsten O. Zumwalt for Plaintiff and Appellant. Sedgwick, Detert, Moran & Arnold, Joseph Kouri, Marc A. Koonin, Jennifer Donnellan; Kaufman Dolowich Voluck & Gonzo and Joseph Kouri for Defendant and Respondent.
Not to be Published in the Official Reports
This is an appeal from a defense judgment in an action for wrongful termination and sex discrimination. Plaintiff and appellant Kimberly Keathley contends the court erred in granting summary adjudication of certain causes of action, committed prejudicial error during the trial of the remaining causes of action, and failed to enter a judgment in accordance with the special verdict rendered by the jury. These claims lack merit; we will affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Plaintiff was a sales representative for defendant and respondent sanofi-aventis U.S. LLC. She began work with Aventis Pharmaceuticals (Aventis) in 2002. That company merged with another to form the defendant corporation in late 2004. Plaintiff worked for defendant until April 2005.
Defendant does not explain the postmodern capitalization of its trade name, sanofi-aventis. Although defendants brief uses "Sanofi" to designate the defendant, we will refer to the parties as plaintiff and defendant.
Plaintiffs job responsibilities included the sale of two diabetes medications. In 2003, plaintiffs supervisor introduced a program under which sales representatives would obtain prescriptions for syringes from cooperating doctors and then would include these syringes in "starter kits" for the diabetes drugs, which doctors then provided to patients as introductory samples. Plaintiff thought it was unlawful or unethical to obtain syringes in this manner and complained to corporate headquarters. Headquarters stopped the "starter kit" program. Defendant was concerned her supervisor had begun to retaliate against her for her complaint to headquarters.
Plaintiff became pregnant in July of 2003. Due to complications from her pregnancy, plaintiff was on disability leave through the birth of her child in April 2004, and on a combination of unpaid medical leave and vacation through August 12, 2004.
Plaintiff continued breast-feeding her child after plaintiff returned to work. Soon after her return, plaintiff was required to attend an out-of-town sales meeting. She was permitted to take the child and a caregiver to the meeting. At that time, Aventis did not have a separate policy concerning travel by nursing mothers. Its general nonemployee travel policy discouraged employees from bringing nonemployees on business trips but permitted such accompaniment in the employees "exercise [of] good judgment." Pursuant to this policy, nursing mothers were able to obtain permission to go to out-of-town meetings and the company provided them with individual quarters to accommodate the child and caregiver.
After the merger, defendant announced a new travel policy for national and regional sales meetings. This policy was not presented as part of a revised employee handbook but, instead, was included in the electronically distributed registration materials for an upcoming national sales meeting. The new policy contained two parts.
First, under the heading "Family Members," the policy stated: "Family members and/or significant others may not attend the Metabolism National Meeting."
Second, under the heading "**New** Nursing mothers/single parents" the policy stated, in relevant part: "Sales personnel who are mothers with children less than one year old, and who are lactating, are eligible to either attend or not attend National & Regional Sales Meetings. Nursing mothers have the option of either bringing their child with them, or leaving their child at home. In either case, nursing mothers and single parents are eligible for up to a maximum of $75.00/day reimbursement for their babysitting expenses, which are to be submitted through the normal expense reporting system. Nursing mothers may bring their child if the associate is able to secure a local individual/babysitting service to assist with childcare while the associate attends scheduled business meetings. Spouses, relatives and/or friends are NOT eligible to attend meetings to provide babysitting services. Nursing mothers uncomfortable with using a local individual/babysitting service may either leave their children at home, or decline to attend the meeting."
These new policies were the policies of the other merger partner and replaced the former Aventis policies with respect to national and regional meetings. The postmerger "Travel & Entertainment Policy and Guidelines" essentially continued the general travel policy for nonemployees in contexts other than the national and regional meetings: "Employees are not encouraged to bring non-employees on business travel. However, if they do, employees should exercise good judgment and ensure that the business objectives of the trip are not interrupted by the needs of travel companions."
Plaintiff did not attend the "Metabolism National Meeting" that had occasioned the announcement of the new travel policy. Because a new product was introduced at the meeting, plaintiffs supervisor conducted individual training for plaintiff when he returned from the meeting.
Subsequently, plaintiff was informed she would be required to attend a three-week training program at company headquarters in New Jersey. When she inquired about the applicability of the nursing mothers policy for this program, she was told by the human relations director, Phox, that the policy only applied to those with children under one year old. Because the program began after the childs first birthday, plaintiff was told, the general travel policy was applicable. This was the "good judgment" policy, which remained applicable to all employee travel except for national and regional sales meetings. Plaintiff was told that if she would still be nursing her child at the time of the training program, she should ask approval of her newly appointed supervisor to take a family caregiver to the program.
Plaintiff did not adopt that course of action. Instead, she resigned from the company effective April 4, 2005, informing respondent she had been harassed and retaliated against for her complaint about the syringe program and had suffered discrimination because of the application of the travel policies.
In December of 2005, plaintiff sued defendant, designating causes of action for wrongful termination in violation of public policy, sex discrimination, retaliation, intentional infliction of emotional distress, failure to provide reasonable accommodation, failure to prevent harassment and discrimination, and constructive discharge. In due course, defendant moved for summary judgment or adjudication.
The court granted summary adjudication of the three causes of action premised on constructive termination of plaintiffs employment, two causes of action based on failure to accommodate plaintiffs protected needs, and one cause of action for intentional infliction of emotional distress. It denied summary adjudication on plaintiffs causes of action for discrimination, retaliation for protected activity, and failure to prevent harassment and discrimination. On appeal, plaintiff asserts the court erred in "sua sponte examining evidence that was notpresented in Respondents motion for summary judgment to conclude that [plaintiff] had no claim for constructive discharge."
The matter was tried before a jury on the discrimination, retaliation, and failure to prevent discrimination and harassment causes of action. At trial, the court prohibited plaintiff from challenging defendants travel policy for nursing mothers as discriminatory. The court only permitted plaintiff to assert discrimination and harassment based on defendants response to plaintiffs complaints about the policy. In addition, the court declined to instruct the jury separately on a claim of harassment, as opposed to discrimination. Plaintiff challenges these rulings on appeal.
The jury determined by special verdict that defendant did not retaliate against plaintiff. It determined defendant did verbally harass plaintiff because of her status as a nursing mother and that plaintiff considered the work environment to be hostile. The jury determined that the harassing conduct was not so severe, widespread, or persistent that a reasonable person in plaintiffs circumstances would have considered the work environment hostile or abusive. The jury concluded the harassment was a substantial factor in causing harm to plaintiff and that, while plaintiff had not suffered economic loss, she had suffered past emotional distress valued at $50,000.
In posttrial proceedings, the court determined that the special verdict did not support entry of judgment for plaintiff. The court determined the jury had found, in effect, that plaintiff had suffered no adverse employment action, an essential element of a discrimination claim. The court entered judgment for defendant. On appeal, plaintiff contends the special verdict form inadequately presented her case to the jury and that, in any event, the jurys responses on the verdict form support judgment in her favor.
DISCUSSION
I. The Summary Adjudication
Plaintiff raises two distinct issues concerning the summary adjudication. First, she contends the lower court improperly relied on evidence that was not in defendants statement of undisputed facts in granting summary adjudication. Second, plaintiff contends the trial court misinterpreted and improperly relied on the order on summary adjudication to restrict plaintiffs ability to present evidence at the jury trial.
Plaintiff acknowledges the court found there was no triable issue of fact concerning nine separate allegations of adverse employment actions gleaned from plaintiffs complaint. Plaintiff does not contend the court erred, in the constructive termination context, in finding there was no triable issue of fact as to eight of the nine claims, including such claims as failure to promote, denial of bonuses, and negative performance evaluations. Plaintiffs only challenge to the summary adjudication order itself (as opposed to the trial courts later collateral use of the order to exclude claims at trial) is the contention noted above, that the court relied on improper evidence to conclude there was no triable issue concerning the ninth claim of adverse employment action, that defendant unreasonably interfered with plaintiffs ability to care for and nurse her child.
Having set forth the limited nature of plaintiffs appeal from the grant of summary adjudication, we now address the issues plaintiff raises on appeal.
A. Improper Reliance on Evidence
1. Background.
The complaint alleged plaintiff was unable to distinguish between defendants treatment of her in retaliation for complaining about the syringe sample program, its discriminatory treatment of plaintiff under the policy for nursing mothers, and its retaliation for plaintiffs complaints about that policy. Whatever mixture of these prohibited actions actually motivated defendant, plaintiff alleged, the net result was that defendant created such a hostile work environment that plaintiffs employment was constructively terminated by defendant. Accordingly, plaintiffs first, second, and ninth causes of action all alleged the same result — constructive discharge of plaintiff — based on the three possible retaliatory and discriminatory motivations just described. Similarly, most of the acts of defendant alleged in those causes of action were the same, but were attributed to the three separate motivations in combination or in the alternative.
The court rendered a 32-page decision and order on the motion for summary judgment or adjudication. The first 16 pages of the order discussed plaintiffs first cause of action (wrongful termination in violation of public policy, concerning the syringe complaint). That discussion was then referenced by the court in its much shorter discussion of the second cause of action (wrongful termination based on sex discrimination) and the ninth cause of action (denominated "constructive discharge" and apparently incorporating discrimination and both bases for retaliation previously set forth in the first and second causes of action).
The order discussed each of plaintiffs allegations of harassment and discrimination and determined that those allegations that were supported by the evidence, whether taken singly or together, were not "sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer." (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1246.)
2. The Issue on Appeal.
One portion of the courts discussion focused on a determination that plaintiff resigned from her employment before she had exhausted avenues for review within defendants management structure. The court noted that defendants human relations manager, Phox, said unequivocally that he told plaintiff she could take her child and a caregiver to the three-week training program. The court also noted that plaintiff disputed this fact, asserting she was not told this. The court concluded that, while this was a disputed fact, it was not a material fact. The court noted that plaintiff acknowledged in her deposition that Phox did at least tell her she should ask her new manager if she could take her daughter and the caregiver to the training program. "[T]he fact that plaintiff still had the option of asking her new manager if she could bring her child, and chose not to, is the dispositive fact."
Plaintiff contends her statement that she was told she should ask her manager, while true, "was not in the statement of undisputed factsin support of Respondents motion for summary judgment, and therefore was not put at issue. The California Rules of Court place the responsibility for framing the issues to be adjudicated squarely" on the moving party. She says that there was no evidence in the record that the new manager would have granted plaintiffs travel request and that, because the fact was not included in defendants statement of undisputed facts, she was "not given the opportunity to oppose the fact, in contravention of her due process rights."
3. Discussion.
Initially, we reject plaintiffs characterization of her deposition statement as a "new" fact. Defendants first relevant statement of undisputed fact was as follows: "After considering the language of the Nursing Mothers Policy and determining that it applied to regional and national Sales Meetings, Phox contacted Plaintiff on March 14, 2005 to advise her that she would be permitted to bring her daughter and caregiver with her to the training scheduled for April 2005."
Plaintiffs response to this assertedly undisputed fact stated: "Disputed. At no time did Phox relay to Keathley that she would be permitted to bring her daughter and caregiver to the training. Further, even had she been informed that there was a change in the policy to allow nursing mothers to bring their children and caregivers to company trainings, which she was not, this policy still only applied to children that were less than one year old. In fact, Phox specifically called Keathley to point out that because her child was over one year old, the nursing mothers policy would not apply." In support of her position, plaintiff cited her own declaration in opposition to summary judgment at paragraph 16, pages 84 through 89 of Phoxs deposition, and the transcript of a voicemail Phox left for plaintiff.
A subsequent undisputed fact asserted by defendant stated: "Plaintiff has no recollection of being given permission to bring her child and caregiver with her to the April, 2005 training." Defendant cited to pages 263-265 of plaintiffs deposition in support of this fact. Plaintiffs response stated: "Undisputed. In fact, counsel for Defendant stated that Keathley `quite honestly seemed surprised at hearing that she could bring [] her child and caregiver to the training." Plaintiff cited to page 266 of the same deposition in support of her assertion.
Confronted with this dispute, the court naturally — and properly — would have turned to the materials cited by the parties. Turning first to the materials cited by defendant, the court would have found that plaintiff, responding to the question whether she had been told she could take her child and caregiver to the training, answered: "No, I dont recall that. What I recall is when he told me to ask the next manager." To the question, "Did you ever do that?," plaintiff answered: "No." Turning to the page cited by plaintiff, the court would have found defendants counsel stating that plaintiff had "quite honestly seemed surprised" that defendant was claiming Phox had told plaintiff she could take her child and caregiver to the training. Counsel again asked whether plaintiff remembered being told that. Plaintiff answered: "No. What I recall is him telling me to ask Todd Schneider, the new manager ... if it was okay."
It is apparent that plaintiff twice perceived her own answer, acknowledging the directive to ask her new manager for permission to take the child and a caregiver to the training, as a limitation on, or a qualification of, her denial that she had been told she could take the child and a caregiver. Through her expression of this limitation, she acknowledged she had a conversation with Phox on the relevant subject and, at the very least, had not been told unequivocally the policy continued to bar her travel with nonemployees. The court merely determined there was common ground between defendants statement of undisputed fact and plaintiffs response to the proposed fact. As such, the court recognized that, even if only true in part, the undisputed portion of defendants statement of fact was dispositive of plaintiffs allegation defendants policies discriminated against nursing mothers generally or against plaintiff personally. Such recognition by the trial court of an agreement between plaintiff and defendant on an undisputed fact is neither a deprivation of due process nor a deprivation of the right to submit all of her evidence in opposition to the motion for summary judgment.
Plaintiff insists that if she had known the court was going to rely on her deposition to find an undisputed fact, she would have included evidence that all of her existing managers had said they were powerless to grant such permission and therefore it was pointless to go through the exercise of asking her new manager. Plaintiff implies the directive to engage in a pointless request would have been further evidence of the harassment that made her job intolerable. Further, futilely asking the new manager would not have changed the fact that she could not take her child and caregiver to the training.
This contention brings us to a second, and deeper, reason for rejecting plaintiffs assertion that the court prejudicially erred in relying on plaintiffs deposition to glean undisputed facts. Plaintiffs entire argument is premised on her contention that at the time of these communications defendant had one policy that permitted everyone except nursing mothers to use their own judgment in taking nonemployees to out-of-town company meetings. Only nursing mothers had the "local caregiver" restriction on those with whom they could travel. She contends she could have shown that all of her managers previously had told her they were powerless to change the nursing mothers exception to a generally permissive travel policy applicable to all other employees. This claim, however, fundamentally misconstrues the evidence before the court.
The evidence is clear that defendant had two sets of travel policies that, although applicable to two different types of travel, were uniformly applicable to all employees. First, the policy from which plaintiff extracts the "nursing mothers policy" was, in fact, a generally applicable policy for travel to national and regional sales meetings. That policy flatly forbade employees from taking friends or family members when travelling to such meetings. That policy had an exception for the child, but only the child, of a nursing employee. At the same time, however, a general travel policy still remained in effect, stating that taking nonemployees on business trips was discouraged but was left to the individual employees good judgment. This policy, by its terms, applied without limitation to all business travel by defendants employees but, obviously, was superseded by the specific policy applicable to national and regional sales meetings. (Hundreds of employees went to these meetings; smaller groups were involved in other programs, such as the three-week training program in question at the time of plaintiffs resignation.)
This distinction might not have been clear to defendants employees, and apparently was not understood at all by plaintiff, but Phox attempted to clarify the matter, both for himself and for plaintiff. Thus, in the first of two voicemails to plaintiff near the time of her resignation, he stated that the nursing mothers policy applied to "national and regional uh sales meetings that we have." In the second voice message, Phox began by stating he "wasnt sure what meeting it is that you were referring to, um, about going, but you know, since your child will be over one years old, um they wouldnt be eligible for" treatment under the nursing mothers policy. He then continued, rather obscurely: "Um, you know, if you dont, you know I dont know what meeting youre talking about but Id have a conversation with [your immediate supervisors] to be about what meeting youre talking about and may help your situation. Heres what you would like to do. Uh but for the policy, if your child is over one years old, they wouldnt be eligible for uh any of those arrangements, nor do we encourage uh you know family or uh our children to come to some of these meetings."
While no one would contend the import of Phoxs message was clear, he does clearly imply there are different policies for different types of meetings. It is in this context that the court relied on plaintiffs failure to seek permission to bring her child and caregiver to the three-week training program. To use the language of appellants opening brief, the court simply concluded that defendants policies would have permitted nonemployee travel to the training program and until plaintiff sought to invoke that policy and obtain permission, she would be unable to prove defendant unreasonably interfered with her ability to care for and nurse her child.
Plaintiff simply fails to acknowledge the existence of two different travel policies: pursuant to one, supervisor approval would have permitted any employee who presented reasons for the request — nursing mothers included — to take a nonemployee to the training program; pursuant to the other, a supervisor was not empowered to permit nonemployee travel to national and regional sales meetings. Thus, presenting evidence of the inflexibility of the second policy does nothing to address plaintiffs failure to request permission for travel under the first policy, under which there was discretion to permit nonemployee travel. Plaintiffs failure to acknowledge the two separate policies causes her incorrectly to assert that she could have, with due notice, shown that asking for permission for nonemployee travel would have been pointless. The record is to the contrary.
We conclude the court did not rely on a fact not set forth in defendants statement of undisputed facts but, instead, reduced defendants asserted facts to the core facts on which the parties agreed, namely, that Phox informed plaintiff there was a travel policy that could permit plaintiff to take her child and caregiver to the training program, and plaintiff resigned instead of requesting permission under that policy. We further conclude that plaintiff has failed to establish there was any evidence she could have produced that would have tended to establish that the national and regional meetings policy would have rendered futile her request under the general travel policy. Accordingly, the court did not err in concluding the travel policies did not create an unreasonable barrier to plaintiffs continued fulfillment of her job responsibilities, rendering intolerable her continued employment. The court correctly granted summary adjudication of the constructive termination causes of action.
B. Erroneous Interpretation by Trial Court
Inherent in the determination of the summary adjudication motion was the conclusion, discussed above, that defendant had two distinct travel policies, one for national and regional sales meetings and one generally applicable to business travel by its employees. And, as noted, in the summary adjudication proceedings plaintiff continued to assert that the general policy was applicable to all employees except nursing mothers. Plaintiff continued her assertion about the applicability of the general travel policies through the mechanism of motions in limine at trial. She contended the trial court should determine, as a matter of law, that the nursing mothers travel policy was facially discriminatory. The trial court concluded that theory was precluded by the determinations of the court on the summary adjudication motion.
On appeal, plaintiff renews this contention: "Under the nursing mothers policy, women are treated less favorably than under the general non-associate travel policy because they are forbiddento travel with somebody to care for their child. Under the non-associate travel policy associates are merely discouraged from taking non-associates, but told to exercise good judgment. [¶] Had the trial court appropriately recognized that the nursing mothers policy was facially discriminatory, it could then have properly instructed the jury that it was to presume that the policy was discriminatory. In contrast, and in grave prejudice to [plaintiff], the trial court actually instructed the jury: `[The] nursing mothers policy itself is not on trial in this case.... In considering [plaintiffs] claim, you must not question the validity or reasonableness of the nursing mothers policy."
Plaintiffs argument on appeal has two components interwoven confusingly in her opening brief. One component is wrong as a matter of law; one is wrong as a matter of fact.
First, plaintiff asserts that any classification in a personnel policy based on employee gender is facially discriminatory. Thus, plaintiffs opening brief contends: "Because it is a policy that treats women differently than men, it is discriminatory." This assertion is wrong as a matter of law: the classification must treat women less favorably than men to constitute discrimination. (See Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 373.) To the extent plaintiff asserts that an employee may state a discrimination cause of action based on gender-based distinctions that result in more favorable treatment for members of the protected class, we reject that claim. Adverse employment action against the protected plaintiff is required for actionable discrimination. (Ibid.)
Plaintiff relies on cases such as Gerdom v. Continental Airlines, Inc. (9th Cir. 1982) 692 F.2d 602, 608, footnote 3, for the proposition that mere classification, rather than adverse treatment, is sufficient to prove sex discrimination. In Gerdom, however, the court concluded the "burdensome regulations imposed on an all-female job category were discriminatory." (Id. at p. 607, italics added.)
Second, plaintiff makes the factual claim that the nursing mothers policy was an exception to the general nonemployee travel policy and that this exception treated nursing mothers less favorably. As discussed in relation to the summary adjudication motion, however, there is no evidence the nursing mothers policy was an exception to the more liberal general nonemployee travel policy. Instead, it was an exception to the very simple national/regional sales meeting policy, which stated, in its entirety: "Family members and/or significant others may not attend the Metabolism National Meeting." All of the evidence, both on the summary adjudication motion and at trial, established that the more liberal "good judgment" policy, equally applicable to men and women, was the relevant policy governing other travel, including the three-week training program that was the occasion for plaintiffs resignation. The trial court did not err in denying the in limine motion.
Plaintiff asserts it is "unquestionable" that nursing mothers are a protected subclass under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) (FEHA). We will assume, without deciding, that nursing mothers are a protected class under the FEHA.
The trial court correctly perceived that the summary adjudication order precluded an in limine order finding the nursing mothers policy facially discriminatory when compared to the general nonemployee travel policy. Instead, the summary adjudication order correctly held the nursing mothers policy to be a reasonable accommodation — and, thus, for discrimination purposes, not an adverse employment action — based on the relationship of that policy to the limited "no family" policy applicable to national and regional sales meetings.
Plaintiff contends the trial court erred in refusing her request to amend the complaint at trial to assert that the nursing mothers policy was discriminatory, in conjunction with her fourth cause of action for discrimination, which had survived the summary adjudication motion. The request for leave to amend, like the motion in limine, was based on the supposed contrast between the nursing mothers policy and the general nonemployee travel policy. The summary adjudication order foreclosed assertion of that contrast, and no evidence in the record supports that contrast. Accordingly, plaintiff was not entitled to amend the complaint to assert an unsupported theory, and she was not prejudiced by the courts refusal to permit amendment.
II. The Jury Instructions and Special Verdict
A. Introduction
Plaintiff contends the trial court should have instructed the jury on, and provided special verdict forms for, separate causes of action for harassment and discrimination. She says the elements of the two causes of action are different and that the trial court instructed only on discrimination, while setting out only the elements for harassment in the special verdict form. In particular, she says the court instructed that her claim required her to prove adverse employment action (a discrimination element), while the verdict form only asked the jury whether defendants actions were so severe, widespread, and persistent that a reasonable employee would have considered the work environment to be hostile or abusive (a harassment element). The jury found that even though plaintiff perceived herself as harassed, a reasonable person would not have done so.
B. The Complaint
Plaintiffs fourth cause of action was captioned as a claim for "sex discrimination." No cause of action was entitled "sexual harassment," although the eighth cause of action was captioned "failure to prevent discrimination and harassment."
Plaintiff alleged in the fourth cause of action that her supervisors "made derogatory comments" concerning plaintiffs "pregnancy, maternity leave, and status as a nursing mother." It alleged the conduct of these supervisors "constitutes unlawful harassment of and discrimination against [plaintiff] on the basis of her sex in violation of the FEHA."
C. Discussion
Notwithstanding this state of the pleadings, plaintiff contends: "Inexplicably, the trial court combined both discrimination and harassment into one claim, finding that [plaintiff] needed to establish harassment in order to prove discrimination." She says she produced evidence of both discrimination and harassment and was entitled to have the two theories treated separately for instructional purposes and on the verdict form.
The trial court concluded that the only evidence of adverse employment action to sustain a discrimination cause of action was the harassment of plaintiff by her supervisors. It also noted there was no separate cause of action based on sexual harassment. In net effect, the trial court concluded that in order for harassment to rise to the level of "adverse employment action," the harassment had to be extensive enough to create a hostile work environment. In other words, it concluded the evidence did not permit a finding that plaintiff had suffered adverse employment action other than the creation of a hostile work environment.
Plaintiff raises several peripheral issues, such as a claim that the trial court erred in failing to recognize that two separate causes of action were "there all along," and a claim that the court should at least have allowed amendment to conform to proof of the separate cause of action for harassment. If the trial court was correct, as we conclude it was, in equating hostile work environment and adverse employment action in the circumstances of this case, these subsidiary issues need not be resolved.
It cannot be denied that the jury instructions and the special verdict form ultimately used by the trial court were unnecessarily confusing and obscure. The parties, the court, and the jury all came to realize this as the jury deliberated. Nevertheless, we conclude the jury made the essential factual determinations necessary to the resolution of this case. Accordingly, we conclude plaintiff was not prejudiced by any error in the instructions and the verdict form.
When an employee sues on the basis that the employer has engaged in discriminatory treatment of the employee, the employee must prove, as discussed above (see part I(B), ante), that different treatment of two groups of employees is adverse to the protected group of employees. However, even adverse treatment of a protected group or member thereof does not constitute actionable discrimination unless the adverse treatment is "reasonably likely to impair a reasonable employees job performance or prospects for advancement." (Horsford v. Board of Trustees of California State University, supra, 132 Cal.App.4th at p. 373.) "Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable ...." (Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1054.)
The statutory prohibition on sexual harassment (see Gov. Code, § 12940, subd. (j)) is "part and parcel of the proscription against sexual discrimination." (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 278.) Thus, the workplace environment is one of the terms, conditions, or privileges of employment protected by FEHA; an environment made hostile by sexual harassment violates the act. (Ibid.) Just as other minor or trivial adverse actions by an employer do not violate FEHA, so too, comments that are merely annoying or offensive are not actionable unless the comments are "severe or pervasive enough to create an objectively hostile or abusive work environment." (Id. at p. 283.) And "when a plaintiff cannot point to a loss of tangible job benefits, she must make a `"commensurately higher showing that the sexually harassing conduct was pervasive and destructive of the working environment."" (Id. at p. 284.)
"Sexual harassment" covers two broad categories of workplace activities. Most commonly, the term is used to describe unwanted sexual advances by coworkers or supervisors. (See Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2008) ¶ 10.111.) "Sexual harassment" also covers a category of acts that might better be described as "harassment based on sex." (See Lyle v . Warner Brothers Television Productions, supra, 38 Cal.4th at pp. 277-278.) This case involves only the second category of activity. Although the FEHA separately prohibits "discrimination" and "harassment," and the two are separately actionable, plaintiff in this case elected to combine the two under the single heading of "discrimination." As Lyle makes clear, the allegation of "sex discrimination" is broad enough to cover both categories. In this case, regardless of the label of the cause of action, whether discrimination or harassment, the claim rested on plaintiffs assertion that she was treated differently by her employer because of her status as a nursing mother.
One issue raised by plaintiff on appeal is whether, in the factual context of this case, there is a meaningful distinction between "adverse employment action" required for proof of "sex discrimination" and "hostile work environment" sufficient to establish "sexual harassment." A second issue is whether the jury reasonably could have been expected to link the instruction on "adverse employment action" with the "hostile work environment" questions on the verdict form even if the two requirements are essentially the same. In addition to these two questions, plaintiff contends there were other forms of discrimination the jury could have found if had it had been asked the proper questions on the verdict form.
To take the last question first, we agree with the trial court that harassing conduct was the only form of discrimination supported by the evidence. Plaintiffs contrary contention is unconvincing.
Plaintiff apparently contends the summary adjudication order established, as a matter of law, that plaintiffs supervisors repeated statements to plaintiff that she should seek other employment to accommodate her needs as a nursing mother constituted adverse employment action sufficient to support a discrimination claim. However, the summary adjudication order actually states that there is "a triable issue of fact as to whether plaintiff suffered any adverse employment action `reasonably likely to impair her job performance. ... [The supervisors] comments can be interpreted as telling plaintiff to leave the company. The stress occasioned by being repeatedly told to leave the company might cause an employee to fear for her job and be `reasonably likely to interfere with job performance." This statement in the summary adjudication order simply recognizes there is a jury question whether the comments were sufficiently egregious to constitute adverse employment action; it does not constitute an adjudication that the comments were sufficiently egregious, as plaintiff seems to assert.
As a result, we reject plaintiffs implication that she was entitled to an instruction and a verdict form that would have required the jury to find discrimination if it found plaintiffs supervisor in fact made the statements in question. It is clear that the only way in which the example from the summary adjudication order constitutes possible "adverse employment action" is that it might create a hostile work environment. The statements themselves do not constitute "a loss of tangible job benefits," as the distinction was described in Lyle v. Warner Brothers Television Productions, supra, 38 Cal.4th at page 284; the statements constitute actionable discrimination only to the extent they create or contribute to a hostile work environment. Accordingly, the trial court did not, as plaintiff claims, increase her burden of proof by requiring a showing that the comments were sufficiently egregious to impair plaintiffs job performance.
We now turn to the question whether there is a meaningful distinction in the circumstances of the present case between "adverse employment action" and "hostile work environment," such that the instruction using only the first term and the verdict forms use of only the second term prejudiced plaintiff. We conclude that the two terms are indistinguishable in the factual context of this case.
As we have stated, the Supreme Court in Lyle v. Warner Brothers Television Productions, supra, 38 Cal.4th at pages 278 and 284, held that sexual harassment creating a hostile work environment is a form of adverse employment action constituting sex discrimination. The court also stated, however, that where such harassment does not result in "loss of tangible job benefits," there is required a greater showing of the pervasiveness and destructiveness of the harassment. (Id. at p. 284.) Implied in this formulation is the idea that harassment or other discriminatory conduct need not be shown to be pervasive if it resulted in loss of tangible job benefits. One instance might be enough if that instance were, for example: "We are not going to give you a company car because women do not know how to drive well." In that example, it might be prejudicial error if the trial court instructed the jury that the harassment had to be pervasive, widespread, or persistent.
Plaintiff contends the evidence in this case would support a finding of adverse employment action separate and apart from any showing of pervasive harassment creating a hostile work environment. In the present case, however, the trial court concluded there was no evidence of loss of tangible job benefits and that plaintiffs injury arose solely from the stress of the hostile work environment. We therefore reject plaintiffs assertion that the proof necessary to establish an "adverse employment action" is significantly different from the proof of a "hostile work environment." In the unique circumstances of this case, there is no meaningful factual difference between the two concepts.
Plaintiff might be deemed to contend that there were tangible losses of employment benefits that could have been relied on by the jury to find sex discrimination. However, the jury rejected that claim in a somewhat different context that precludes plaintiffs argument. On plaintiffs separate claim for "Retaliation — Nursing Mothers Policy," the jury determined that defendant did not retaliate against plaintiff for her complaints about the nursing mothers policy by "denying her commensurate pay increases and performance bonuses" or by giving her a negative performance evaluation, the two tangible losses of benefits plaintiff claimed. On the evidence before the jury, these findings could only mean that the jury decided plaintiff was not denied a pay raise and that her evaluations were not negative, determinations fully supported by the evidence. That is, there was no evidence that defendant did deny plaintiffs pay raise or give negative evaluations, but did so for reasons unrelated to plaintiffs actions as a nursing mother. Rather, the issue upon which the parties tried the case was whether defendant had taken such actions at all. The jurys determination can only be viewed as resolving the factual disputes presented by the parties and the evidence. Accordingly, plaintiff is left with the hostile work environment theory as the only basis for deciding the discrimination claim.
While the special verdict form shows that the jurys answers to these retaliation questions were struck out by the presiding juror, we believe the record still reflects the jurys negative answer on these issues. Question 14 of the verdict form asked the jury first to determine whether plaintiff "engage[d] in a `protected activity because of her status as a nursing mother." The form then asked three questions, numbers 15-17, concerning retaliation by denying pay increases and performance bonuses, giving a negative performance evaluation, and subjecting plaintiff to verbal harassment.
The parties and the court intended to ask whether plaintiffs complaints about the nursing mothers policy constituted protected activity under FEHA, but the question does not clearly convey that intent. The jury returned twice asking for further guidance on the concept of "protected activity." In response to the second jury inquiry, the court directed the jury to skip question 14 and to answer questions 15-17. If the jury answered "yes" to any of questions 15-17, the court instructed the jury to then go back and answer "yes" to question 14, and then to proceed with the rest of the verdict form. Apparently in compliance with this supplemental instruction, the jury answered "no" to each of the three questions. The presiding juror then marked through and initialed those three answers and answered "no" to question 14. We presume the jury followed the supplemental instruction from the court (see People v. Sanchez (2001) 26 Cal.4th 834, 852), further supporting our determination the jury rejected the claims of retaliation.
The final question raised by plaintiffs claim of instructional and verdict-form error is whether the jury reasonably could be deemed to understand the relationship of the instructions to the verdict. We conclude a reasonable jury would have understood that relationship, even though the relationship could have been made much clearer with different instructions.
The court instructed the jury with an instruction based on Judicial Council of California Civil Jury Instructions, CACI No. 2500 ("Disparate Treatment — Essential Factual Elements"). As set forth in the pattern instruction, the third factual element is that the defendant "[discharged/refused to hire/[other adverse employment action]]" the plaintiff. As modified by the trial court, the third element was stated as follows: "Sanofi-aventis U.S. LLC subjected Kimberly Keathley to adverse employment action." After stating the remaining three elements of the discrimination claim, the court stated: "Harassing conduct may include the following: Verbal harassment, such as obscene language, demeaning comments, slurs, or threats. [¶] Harassing conduct does not create a hostile work environment if it is only occasional, isolated, or trivial. In determining whether the work environment was hostile or abusive you should consider all of the circumstances, including the following: The nature and severity of the conduct, how often and over what period of time the conduct occurred, and the circumstances under which the conduct occurred."
The court then instructed on plaintiffs cause of action for "failure to prevent harassment or discrimination." That instruction required, among others, a jury finding concerning whether plaintiff "was subjected to harassing conduct or discriminatory conduct because she was a nursing mother." Next, the court instructed on the "retaliation" cause of action. There the court stated one element of the cause of action was that "sanofi-aventis subjected Kimberly Keathley to an adverse employment action, such as negative performance reviews, denied her bonuses or pay increases or subjected her to harassing statements based on her status as a nursing mother or other adverse employment action."
After completing that instruction, the court gave an instruction on "substantial factor in causing harm," followed by this definition of adverse employment action: "An adverse employment action includes not only the so-called ultimate employment action such as termination or demotion, but the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employees job performance or opportunity for advancement in his or her career. [¶] Each alleged retaliatory act need not constitute an adverse employment action in and of itself. Sanofi-aventis actions can be viewed collectively to conclude that they constitute an adverse employment action."
In the first discrimination instruction there is an absence of a connecting sentence relating the courts description of "discrimination" as, inter alia, "adverse employment action" and its immediately following definition of harassing conduct and "hostile work environment." Clearly, it would have been preferable to use the formulation "adverse employment action, such as harassment" in the discrimination instruction, as was done in the retaliation instruction. Nevertheless, in that retaliation instruction the court explicitly included harassment as an example of adverse employment action, as quoted above.
Reading the jury instructions as a whole (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1186), we think the jury would have understood that it was being asked in the special verdict form whether harassment of plaintiff was adverse employment action in the form of hostile work environment. We conclude it is not reasonably likely the jury would have made a finding more favorable to plaintiff if it had been asked on the verdict form, "Did plaintiff suffer adverse employment action?" instead of being asked whether the harassment constituted a hostile work environment.
III. The Judgment Entered on the Special Verdict
Plaintiff contends the trial court erred in entering judgment for defendant. She says the jurys finding that the harassment subjectively caused plaintiff emotional injury was sufficient to indicate that the jury intended to find that defendant discriminated against plaintiff. She says the jurys finding that plaintiffs response to the harassment was not objectively reasonable was irrelevant because that finding only concerns harassment claims, not discrimination claims. We disagree.
The net import of the jurys answers on the special verdict form can be summarized as follows: Plaintiff actually and subjectively suffered emotional injury from the harassment, but a reasonable person would not have suffered such injury. It seems apparent to us that the jury would have made the same distinction if confronted by the "adverse employment action" requirement that the action be "reasonably likely to adversely and materially affect a reasonable employees job performance or opportunity for advancement in his or her career," since that requirement contains an objective or "reasonable employee" component, just as does the hostile work environment standard. (See Horsford v. Board of Trustees of California State University, supra, 132 Cal.App.4th at p. 373.) Thus, subjective harm does not suggest objective injury under either an adverse-action or a hostile-environment claim.
That objective element is an essential part of any claim, whether harassment, discrimination, or retaliation, under FEHA. (See Yanowitz v. LOreal USA, Inc., supra, 36 Cal.4th at p. 1049.) Because the jury did not find defendants conduct met the objective standard to constitute discrimination through harassment, the trial court properly entered judgment for defendant.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
WE CONCUR:
WISEMAN, J.
LEVY, J.