Category Archives: Same-sex Harassment

First District Issues Same-sex Harassment Opinion

On Wednesday, the First District held that conduct including numerous gifts, frequent lunch purchases, along with some sexual jokes and displays of pornographic computer images, over a period of several months, was sufficient for a reasonable jury to conclude a supervisor engaged in a pervasive pattern of harassing conduct.  Lewis v. City of Benicia, No. A134078, __ Cal. App. 4th __ (1st Dist. Mar. 26, 2014).

Background

Plaintiff, a heterosexual man, sued his former employer, the City of Benicia, and two former male supervisors, bringing claims for sexual harassment and retaliation.  Id. at *1.  The trial court granted summary judgment in favor of the individual defendants and judgment on the pleadings for the City as to the sexual harassment claims.  The City prevailed at trial on the retaliation claim.  The First District reversed summary judgment as to one individual defendant and reversed the judgment on the pleadings for the City.

The court held that the evidence allowed an inference that Hickman was motivated by sexual interest.  Id. at *7.

Some of Hickman’s alleged acts had sexual connotations. Lewis testified Hickman showed Lewis images on Hickman’s office computer that included a video of a penis in a rat trap and an image of a woman with lopsided breasts.  Hickman told Lewis “risqué” jokes, including: “ ‘How do you make your wife moan then scream? You fuck her in the ass and then you wipe it on your drapes.’ ”

Moreover, Hickman’s alleged course of conduct allows an inference he was pursuing a romantic or sexual relationship with Lewis. Lewis testified Hickman gave him about 30 different items as gifts during the time he worked at the water treatment plant. The gifts included “tuxedo underwear,” with ruffles and a bow tie. Hickman also gave Lewis hats, T-shirts, wine, shot glasses and backpacks. Hickman frequently bought lunch for Lewis. On one occasion during a break, when Lewis picked up Hickman’s cigarette, Hickman said: “[W]hy don’t you just kiss me[?]” Hickman once said Lewis should visit his home.

Id. at 8.  The Court concluded that Hickman alleged course of conduct was one from which a reasonable jury could infer he was pursuing a relationship with Lewis and was acting from genuine sexual interest.  Id. at *9.

The Court further concluded that the alleged conduct was sufficient for a reasonable jury to conclude that Hickman engaged in a pervasive pattern of harassing conduct.  “Based on the course of alleged conduct summarized above, which included numerous gifts and frequent lunch purchases, along with some sexual jokes and displays of pornographic computer images, over a period of several months, a reasonable jury could conclude Hickman engaged in a pervasive pattern of harassing conduct.” Id. at *10.  The Court noted that “whether Hickman’s alleged conduct unreasonably interfered with Lewis’s work performance is a relevant factor in determining whether a hostile work environment existed, but no single factor is required.”  Id. at *11.

Judges & Attorneys

Acting Presiding Justice Robert L. Dondero delivered the opinion, with Justice Kathleen M. Banke and Judge Diana Becton (sitting by assignment) concurring.  The trial judge was Hon. Robert S. Bowers.

Counsel for Plaintiff and Appellants: Bruce A. McIntosh of Bergquist Wood McIntosh Seto LLP; Rhonda D. Shelton-Kraeber of Kraeber Law Office.

Counsel for Defendants and Respondents: Stubbs & Leone: Louis A. Leone and Kathleen L. Darmagnac; Mark E. Davis and Eric J. Bengston of Davis & Young.

By CHARLES H. JUNG

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