Light v. Cal. Dep't of Parks & Recreation

14 Cal.App.5th 75

221 Cal.Rptr.3d 668

Melony LIGHT, Plaintiff and Appellant,

v.CALIFORNIA DEPARTMENT OF PARKS AND RECREATION et al., Defendants and Respondents.

D070361

Court of Appeal, Fourth District, Division 1, California.

Filed August 8, 2017

Certified for Partial Publication.^*

Stewart and Musell, Wendy E. Musell and Elisa J. Stewart, San Francisco, for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Chris A. Knudsen, Assistant Attorney General, Christine Mersten and Jodi L. Cleesattle, Deputy Attorneys General, for Defendant and Respondent California Department of Parks and Recreation.

Simpson Delmore Greene, Terence L. Greene, and Elizabeth A. Donovan, San Diego, for Defendant and Respondent Kathy Dolinar.

Savage Day and Kelly Savage Day for Defendant and Respondent Leda Seals.

McCONNELL, P.J.

Plaintiff Melony Light appeals judgments in favor of her employer, defendant California Department of Parks and Recreation (Department), and her former supervisors, defendants Leda Seals and Kathy Dolinar, following orders granting defendants' motions for summary judgment. Light contends the trial court erred by summarily adjudicating her claims against the Department for retaliation, disability discrimination, and failure to prevent retaliation and discrimination, all in violation of the Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq. ).¹ She also contends the trial court erred by summarily adjudicating her claims against Seals for intentional infliction of emotional distress and assault and summarily adjudicating her claim against Dolinar for intentional infliction of emotional distress. The court also summarily adjudicated an additional claim against Seals, for false imprisonment, but Light does not challenge that ruling in this appeal.

As to the Department, we conclude triable issues of material fact preclude summary adjudication of Light's retaliation claim, but not her disability discrimination claim. Light's claim against the Department for failure to prevent retaliation or discrimination therefore survives based on Light's retaliation claim. As to Seals and Dolinar, we conclude contrary to the trial court that workers' compensation exclusivity does not bar Light's claim for intentional infliction of emotional distress under the circumstances here. However, as to the merits of that claim, we conclude Light has raised a triable issue of fact only as to Seals, not Dolinar. We further conclude Light has raised triable issues of fact on her assault claim against Seals. We will therefore affirm in part and reverse in part the judgments in favor of the Department and Seals, and we will affirm in full the judgment in favor of Dolinar. Because our discussion of the interplay between workers' compensation exclusivity and intentional infliction of emotional distress addresses an important legal issue, and our interpretation differs from a recent opinion by our colleagues in Division Three of this court, we will publish that discussion, as well as our discussion of the FEHA retaliation claim on which it relies. Because our discussions of Light's FEHA disability discrimination and assault claims raise no similar issues, they remain unpublished.

FACTUAL AND PROCEDURAL BACKGROUND

Consistent with our standard of review of orders granting summary judgment, we will recite the historical facts in the light most favorable to Light as the nonmoving party. (See Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) Additional facts will be discussed where necessary in the next section.

In April 2010, Light began working as a seasonal Park Aide at the Department's Ocotillo Wells District in San Diego County. She was laid off during the summer months (July through September), which constitute the low tourist season due to the summer desert heat. In the fall, Light was rehired as a senior seasonal Park Aide. In January 2011, Light was promoted to a permanent position as an Office Assistant, also at the Ocotillo Wells District.

Light's position as an Office Assistant was classified as "intermittent," i.e., she was not guaranteed full-time, regular hours. Under normal circumstances, she was limited to a total of 1500 working hours per year. She could, however, exceed that limit with Department authorization. Light was laid off during the summer months again in 2011 because it was the low season.

Seals was the Administrative Officer of the Ocotillo Wells District and Light's supervisor. Dolinar was the Superintendent of the Ocotillo Wells District and Seals's supervisor. Seals and Dolinar were close friends.

A month after Light returned in fall 2011, Seals recommended Light for an "out-of-class" assignment as an Office Technician. An "out-of-class" assignment is a temporary assignment to a position in a higher classification with an accompanying increase in pay. The assignment was scheduled to last for approximately four months or until the incumbent employee returned from medical leave. Light served the full four months in the out-of-class assignment as an Office Technician. Before the end of that assignment, in approximately February 2012, Seals recommended Light for a second out-of-class assignment as a Management Services Technician. Light's second out-of-class assignment was scheduled to last through May 2012. During that time, Light also received a pay raise in her regular Office Assistant classification.

Light was friends with a coworker, Delane Hurley. Seals believed Hurley to be a lesbian. Seals repeatedly made comments to Light intended to make her uncomfortable about her friendship with Hurley, to enlist Light in Seals's harassment of Hurley based on her sexual orientation, and to encourage Light to cease all contact with Hurley. Seals's actions caused Light to suffer emotional distress.

Hurley eventually took medical leave for stress. While she was absent, Seals asked Light to go through Hurley's workspace and remove any personal items. Light objected because she did not feel comfortable going through Hurley's things, but Seals insisted. Seals also told Light to move into Hurley's office because Hurley would not be coming back to the District. Light again objected, but Seals told her the move was nonnegotiable. During this process, Light found what appeared to be a gun scope. Seals told Dolinar Light feared for her safety because of potential retaliation from Hurley, but that was not true. Light had no such fears. Light was only concerned Hurley would believe Light was part of the effort to discriminate against her when she found out Light had moved offices. Light told Dolinar directly she had no fears for her safety.

Dolinar, however, invited a counselor to the office to address conflicts between Hurley and other employees, including alleged safety issues raised by the gun scope incident. Hurley was supposed to be present, but she did not attend. Light attended, as did Seals, Dolinar, and other employees. The meeting turned into a discussion about what a terrible employee Hurley was, how she had destroyed trust in the workplace, and how she had terrorized management and employees. Light was afraid to tell her side of the story, which was supportive of Hurley. She attempted to stay and talk with the counselor alone, but Seals and Dolinar remained in the room.

Hurley filed a complaint with the Department's Human Rights Office alleging sexual harassment; discrimination based on sex, sexual orientation, and marital status; and retaliation. She made specific allegations against Seals. After Hurley's allegations, the atmosphere in the Ocotillo Wells District office where Light worked was toxic and stressful, with employees in the District office isolated from other employees. Light attempted to talk with Dolinar about Hurley's treatment by Seals and other managers, but Dolinar covered her ears and said "I don't want to know" or "I don't want to hear anything about anything."

The Department's Human Rights Office sent investigators to the Ocotillo Wells District in January 2012 to assess Hurley's allegations. Before Light met with investigators, Seals told Light she and Dolinar expected Light and other employees to lie to the investigators. Light was expected to be on Dolinar's "team" and protect her supervisors. Seals said, "If you're not on [Dolinar's] team, your career will be over. If you don't protect [Dolinar], [and Dolinar's] staff, then your career will be over. [Dolinar] will see to it that your career will be over." Seals went to another employee, Kathryn Gravett, and told her to lie as well. Seals told Gravett, "I need to ask you a favor. This is the time for you to show team support." Seals wanted Gravett to tell the investigators that one of Hurley's allegations of harassment, which Gravett had witnessed, was not true. Seals indicated it would be in Gravett's best interest to support her and Gravett might suffer retaliation or punishment if she told the truth. Seals also told Gravett that Dolinar would receive a report of everything Gravett told investigators.

In later deposition testimony, Seals admitted warning Gravett (as well as Hurley herself) that going against management could have adverse consequences: "I have seen that retaliation existed in [the Department]. So I would choose not to go up against managers because I had gone up against a manager in a time frame, and I paid a pretty heavy price for it. So in my opinion, I have found that it wasn't worth it." Seals explained going against management could leave an employee "isolated a little bit." Seals also admitted asking Gravett not to volunteer certain things to investigators.

Light met with the Human Rights Office investigators. The weekend afterwards, Seals called Light at home. Light did not pick up the phone because she had been warned by Gravett that Seals would want to talk about her interview with the investigators. (Seals contacted Gravett and other employees after their interviews to find out...