Recent Developments from Around the States

Edna Miller and Frances Mackey, two female employees of the California Department of Corrections, sued their employer for alleged violations of the California Fair Employment and Housing Act (FEHA). Miller, an employee since 1983, had heard rumors that the chief deputy warden, Lewis Kuykendall, was having sexual affairs with three of the department's female employees. These rumors were corroborated when Miller herself overheard arguments between Kuykendall and another woman about his other relationships, and when a coworker bragged to Miller about her relationship with Kuykendall. Miller was ultimately transferred to another prison, where Kuykendall became warden and his three girlfriends were promoted. Miller complained that she was passed over for promotion, despite her higher rank and better education and experience level, while at least one of Kuykendall's girlfriends, who did not have these qualifications, was promoted at an unusually rapid pace. Other female department employees, including Mackey, the second named plaintiff who died during the progression of the lawsuit, were also aware of Kuykendall's affairs. Some had seen the warden engaging in sexual behavior with his girlfriends at work gatherings, and others overheard emotional disputes between Kuykendall and his lovers.

In overturning the lower courts' decisions to grant the state's motion for summary judgment, the California Supreme Court stated that “[t]he evidence suggested Kuykendall viewed female employees as 'sexual playthings' and that his ensuing conduct conveyed this demeaning message in a manner that had an effect on the workforce as a whole … Kuykendall's sexual favoritism not only blocked the way to merit-based advancement for plaintiffs, but also caused them to be subjected to harassment.” The justices used an EEOC policy statement, Policy Guidance on Employer Liability under Title VII for Sexual Favoritism, (EEOC Policy Statement No. N-915-048 1/12/90), as a guide for distinguishing among three types of favoritism: isolated favoritism, favoritism when sexual favors have been coerced, and widespread favoring of consensual sexual partners. With regard to the third type of favoritism, specifically relevant to this case, the EEOC stated: “'If favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment in violation of Title VII regardless of whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable treatment willingly bestowed their favors.'” Further, the EEOC explicitly confirmed that this third type of favoritism could be the basis for a hostile work environment claim.

The California Supreme Court also relied on the California Appeals Court's decision in Proskel v. Gattis, 41 Cal. App. 4th 1626 (1996), in which the court suggested in dictum that sexual favoritism by a manager may become the basis for relief when employees are made to believe that they will garner favorable treatment if they become romantically involved with a manager. The Proskel court also suggested that such favoritism may become actionable if the affair is pursued indiscreetly, or if the manager has engaged in other pervasive conduct that rises to a level sufficient to create a hostile work environment. In citing this decision, the California Supreme Court reaffirmed its view that a hostile work environment claim can be established without requiring a demonstration that the plaintiff him/herself was the victim of coercive sexual conduct or conduct of a sexual nature. Rather, the court found that “the important and underlying inquiry in these cases was whether the conduct in question conveyed a message that demeans employees on the basis of their sex.”

Grocery Store Managers Fail to Meet Commonality Requirement for Class Certification Pursuant to Overtime Claims

The California Superior Court in Oakland has rejected a class action suit by current and former grocery managers who had alleged that they were wrongfully exempted from overtime pay as executive employees by Albertson's Inc. Dunbar v. Albertson's Inc., Cal. Super. Ct., No. RG04-146326 (June 29). Finding that “the work performed by the grocery managers varied significantly from store to store and week to week,” the court found that the proposed class of approximately 900 managers failed to meet the commonality requirement needed to certify a class.

Maurice Dunbar, an Albertson's grocery manager, filed the complaint alleging that he and a class of such managers were refused overtime pay when their employer improperly classified them as exempt executives under California Labor Code 510. Dunbar's proposed class consisted of about 900 current and former Albertson's managers, whom he claimed exhibited common issues of fact in that each had the same job title, job description, and work responsibilities, and because each was governed by the same employer policies and practices. However, the court, in agreement with Albertson's contention that despite the managers' job titles and descriptions, their responsibilities differed substantially, found that Dunbar's proposed class failed to fulfill the commonality requirement. In making this determination, the court stated that the “central focus of the commonality inquiry [is] … whether the work performed by any one grocery manager is so similar to the work performed by any other grocery manager that the court can reasonably extrapolate findings from the named plaintiff to the absent class members.” Further, the court found that the grocery managers were likely to pursue their claims on an individual basis, both because the amount of potential back pay was significant enough to make the claim worth filing and because their relative job status indicated that “they [were] less likely to be intimidated or dissuaded from pursuing legitimate claims.” Thus, the court concluded that “[a] class action [was] not necessary to deter and redress the alleged wrongdoing.”

NEVADA

Nevada Supreme Court Refuses to Recognize Claim for Third-Party Retaliation

The Nevada Supreme Court has held that Nevada does not recognize a claim for “third-party” retaliation by a plaintiff alleging that she was terminated as a result of her spouse's “protected activity,” as it is defined in the state's civil rights law. Pope v. Motel 6, 114 P.3d 277 (June 23).

During Juanita Pope's first 14 months of employment as a housekeeper for Motel 6, her employer was forced to issue her written and verbal warnings and suspend her on two separate occasions for unsatisfactory job performance and tardiness. Even after Motel 6 manager Victoria Inman gave Pope an oral reprimand warning her to stop spreading gossip to other hotel employees, Pope continued to make negative comments about her co-workers, including Inman herself. Inman ultimately spoke with the company's human resources department and fired Pope for this behavior. Pope alleged that her termination was a result of her husband's filing of a retaliatory discharge complaint with the Nevada Equal Rights Commission (NERC), in which he contended that his firing was due to complaints he made about a sexual harassment incident at Motel 6. Pope then filed her own NERC charge, in which she alleged that she was fired in retaliation for her husband's filing of a civil rights complaint. She also sued in state district court for wrongful termination because of her race or national origin, failure to promote because of her race or national origin, retaliatory termination, defamation, and intentional infliction of emotional distress. The district court granted Motel 6's motion for summary judgment on all 6 claims, and Pope appealed.

Before turning to Pope's retaliatory discharge allegation, the Nevada Supreme Court began by affirming the lower court's dismissal of her race or national origin discrimination claims in that she had not mentioned these claims in her NERC charge. The court found that because Nevada law, like Title VII, requires a claimant to pursue his/her claims before an administrative agency prior to filing them in court, only those charges initially pursued in the NERC complaint or those that could reasonably be extrapolated from that initial complaint could now be resolved in state court. Addressing Pope's retaliatory discharge complaint as a matter of first impression, the Nevada Supreme Court went on to find that if a complaining party is not personally involved in protected activity under state civil rights law, that party is not entitled to relief for retaliatory activity by his/her employer. In so finding, the court noted that the Nevada statute prohibits an employer from retaliating against an employee or job applicant because he/she “'has opposed any practice made an unlawful practice [by state law], or because [she] has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing'” under state civil rights law. Therefore, even if Pope's claim was true, because Pope had not engaged in any of these activities herself, but was instead asserting statutory protection based on her husband's involvement in these activities, she was not a contemplated beneficiary of the statute's protections. While acknowledging that the inclusion of claimants like Pope within the bounds of the statute's protections would work to achieve the goals of Nevada's civil rights law, the court stated that it could not usurp the state legislature's authority by rewriting the statute. Therefore, because the legislature intended only those employees who engage directly in protected activities to be covered by the statute, the court found that it could not grant Pope the relief she requested.

CALIFORNIA

Prison Warden's Consensual Sexual Affairs in Workplace May Create Hostile Work Environment for Other Employees

The California Supreme Court has held that while isolated instances of employee favoritism by those in supervisory roles toward female employees with whom they are having consensual affairs usually does not constitute sexual harassment, “when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment.” Miller v. Department of Corrs., Cal., 2005 WL 1661190 (July 18). Reversing rulings by lower courts in the case, the Supreme Court found that in this type of situation, a “demeaning message is conveyed to female employees that they are viewed by management as 'sexual playthings' or that the way required for women to get ahead in the workplace is by engaging in sexual conduct with their supervisors or the management.”

Edna Miller and Frances Mackey, two female employees of the California Department of Corrections, sued their employer for alleged violations of the California Fair Employment and Housing Act (FEHA). Miller, an employee since 1983, had heard rumors that the chief deputy warden, Lewis Kuykendall, was having sexual affairs with three of the department's female employees. These rumors were corroborated when Miller herself overheard arguments between Kuykendall and another woman about his other relationships, and when a coworker bragged to Miller about her relationship with Kuykendall. Miller was ultimately transferred to another prison, where Kuykendall became warden and his three girlfriends were promoted. Miller complained that she was passed over for promotion, despite her higher rank and better education and experience level, while at least one of Kuykendall's girlfriends, who did not have these qualifications, was promoted at an unusually rapid pace. Other female department employees, including Mackey, the second named plaintiff who died during the progression of the lawsuit, were also aware of Kuykendall's affairs. Some had seen the warden engaging in sexual behavior with his girlfriends at work gatherings, and others overheard emotional disputes between Kuykendall and his lovers.

In overturning the lower courts' decisions to grant the state's motion for summary judgment, the California Supreme Court stated that “[t]he evidence suggested Kuykendall viewed female employees as 'sexual playthings' and that his ensuing conduct conveyed this demeaning message in a manner that had an effect on the workforce as a whole … Kuykendall's sexual favoritism not only blocked the way to merit-based advancement for plaintiffs, but also caused them to be subjected to harassment.” The justices used an EEOC policy statement, Policy Guidance on Employer Liability under Title VII for Sexual Favoritism, (EEOC Policy Statement No. N-915-048 1/12/90), as a guide for distinguishing among three types of favoritism: isolated favoritism, favoritism when sexual favors have been coerced, and widespread favoring of consensual sexual partners. With regard to the third type of favoritism, specifically relevant to this case, the EEOC stated: “'If favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment in violation of Title VII regardless of whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable treatment willingly bestowed their favors.'” Further, the EEOC explicitly confirmed that this third type of favoritism could be the basis for a hostile work environment claim.

The California Supreme Court also relied on the California Appeals Court's decision in Proskel v. Gattis , 41 Cal. App. 4th 1626 (1996), in which the court suggested in dictum that sexual favoritism by a manager may become the basis for relief when employees are made to believe that they will garner favorable treatment if they become romantically involved with a manager. The Proskel court also suggested that such favoritism may become actionable if the affair is pursued indiscreetly, or if the manager has engaged in other pervasive conduct that rises to a level sufficient to create a hostile work environment. In citing this decision, the California Supreme Court reaffirmed its view that a hostile work environment claim can be established without requiring a demonstration that the plaintiff him/herself was the victim of coercive sexual conduct or conduct of a sexual nature. Rather, the court found that “the important and underlying inquiry in these cases was whether the conduct in question conveyed a message that demeans employees on the basis of their sex.”

Grocery Store Managers Fail to Meet Commonality Requirement for Class Certification Pursuant to Overtime Claims

The California Superior Court in Oakland has rejected a class action suit by current and former grocery managers who had alleged that they were wrongfully exempted from overtime pay as executive employees by Albertson's Inc. Dunbar v. Albertson's Inc., Cal. Super. Ct., No. RG04-146326 (June 29). Finding that “the work performed by the grocery managers varied significantly from store to store and week to week,” the court found that the proposed class of approximately 900 managers failed to meet the commonality requirement needed to certify a class.

Maurice Dunbar, an Albertson's grocery manager, filed the complaint alleging that he and a class of such managers were refused overtime pay when their employer improperly classified them as exempt executives under California Labor Code 510. Dunbar's proposed class consisted of about 900 current and former Albertson's managers, whom he claimed exhibited common issues of fact in that each had the same job title, job description, and work responsibilities, and because each was governed by the same employer policies and practices. However, the court, in agreement with Albertson's contention that despite the managers' job titles and descriptions, their responsibilities differed substantially, found that Dunbar's proposed class failed to fulfill the commonality requirement. In making this determination, the court stated that the “central focus of the commonality inquiry [is] … whether the work performed by any one grocery manager is so similar to the work performed by any other grocery manager that the court can reasonably extrapolate findings from the named plaintiff to the absent class members.” Further, the court found that the grocery managers were likely to pursue their claims on an individual basis, both because the amount of potential back pay was significant enough to make the claim worth filing and because their relative job status indicated that “they [were] less likely to be intimidated or dissuaded from pursuing legitimate claims.” Thus, the court concluded that “[a] class action [was] not necessary to deter and redress the alleged wrongdoing.”

NEVADA

Nevada Supreme Court Refuses to Recognize Claim for Third-Party Retaliation

The Nevada Supreme Court has held that Nevada does not recognize a claim for “third-party” retaliation by a plaintiff alleging that she was terminated as a result of her spouse's “protected activity,” as it is defined in the state's civil rights law. Pope v. Motel 6, 114 P.3d 277 (June 23).

During Juanita Pope's first 14 months of employment as a housekeeper for Motel 6, her employer was forced to issue her written and verbal warnings and suspend her on two separate occasions for unsatisfactory job performance and tardiness. Even after Motel 6 manager Victoria Inman gave Pope an oral reprimand warning her to stop spreading gossip to other hotel employees, Pope continued to make negative comments about her co-workers, including Inman herself. Inman ultimately spoke with the company's human resources department and fired Pope for this behavior. Pope alleged that her termination was a result of her husband's filing of a retaliatory discharge complaint with the Nevada Equal Rights Commission (NERC), in which he contended that his firing was due to complaints he made about a sexual harassment incident at Motel 6. Pope then filed her own NERC charge, in which she alleged that she was fired in retaliation for her husband's filing of a civil rights complaint. She also sued in state district court for wrongful termination because of her race or national origin, failure to promote because of her race or national origin, retaliatory termination, defamation, and intentional infliction of emotional distress. The district court granted Motel 6's motion for summary judgment on all 6 claims, and Pope appealed.

Before turning to Pope's retaliatory discharge allegation, the Nevada Supreme Court began by affirming the lower court's dismissal of her race or national origin discrimination claims in that she had not mentioned these claims in her NERC charge. The court found that because Nevada law, like Title VII, requires a claimant to pursue his/her claims before an administrative agency prior to filing them in court, only those charges initially pursued in the NERC complaint or those that could reasonably be extrapolated from that initial complaint could now be resolved in state court. Addressing Pope's retaliatory discharge complaint as a matter of first impression, the Nevada Supreme Court went on to find that if a complaining party is not personally involved in protected activity under state civil rights law, that party is not entitled to relief for retaliatory activity by his/her employer. In so finding, the court noted that the Nevada statute prohibits an employer from retaliating against an employee or job applicant because he/she “'has opposed any practice made an unlawful practice [by state law], or because [she] has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing'” under state civil rights law. Therefore, even if Pope's claim was true, because Pope had not engaged in any of these activities herself, but was instead asserting statutory protection based on her husband's involvement in these activities, she was not a contemplated beneficiary of the statute's protections. While acknowledging that the inclusion of claimants like Pope within the bounds of the statute's protections would work to achieve the goals of Nevada's civil rights law, the court stated that it could not usurp the state legislature's authority by rewriting the statute. Therefore, because the legislature intended only those employees who engage directly in protected activities to be covered by the statute, the court found that it could not grant Pope the relief she requested.