A coworker (Lisa Sanders) at plaintiff Steven Kruitbosch’s job allegedly subjected him to crude sexual advances at his home and via his personal cell phone away from the premises of his employer, respondent Bakersfield Recovery Service, Inc. (BRS). When plaintiff reported the conduct to BRS’s acting program director and a human resources (HR) representative, he was told there was nothing that could be done, ostensibly because it occurred off property. The HR representative made a social media post plaintiff understood to be mocking him, and she made a sarcastic comment to him about the harassment. Although plaintiff made efforts to avoid Sanders in the office, his distress at the prospect of interacting with her coupled with BRS’s failure to protect him in the workplace and mocking him for his complaint detracted from his work duties and made continuing his employment feel impossible. Plaintiff resigned a week later. Plaintiff filed suit alleging several claims, including for harassment, discrimination and retaliation in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). The trial court dismissed plaintiff’s second amended complaint with prejudice and without leave to amend. We reverse in part and affirm in part.
For reasons we will explain, although Sanders’s alleged conduct was reprehensible, it was not sufficiently work related within the ambit of FEHA, and it did not recur inside the workplace. Her underlying conduct is not imputable to BRS, and the claim is not cognizable on that basis. Nevertheless, the sexual harassment hostile work environment claim is viable based on a theory that BRS’s response to plaintiff’s complaint about Sanders’s conduct altered plaintiff’s work environment in an objectively severe manner. Plaintiff’s claim for failure to prevent harassment, discrimination or retaliation under section 12940, subdivision (k) (§ 12940(k)) is dependent upon a viable claim for harassment, discrimination or retaliation; because plaintiff’s underlying claim for sexual harassment is viable, plaintiff’s section 12940(k) claim is also cognizable. With respect to these claims, we reverse the trial court’s ruling sustaining BRS’s demurrer.
As for the remaining claims, plaintiff did not sufficiently allege constructive termination or any other adverse employment actions necessary to support his claims for discrimination, retaliation, and constructive discharge in violation of public policy. Finally, plaintiff’s claim for negligent hiring, supervision or retention does not sufficiently allege BRS’s knowledge of the unfitness of its employees. With respect to these claims, we affirm the trial court’s ruling.
There are 0 comments