Court of Appeal Issues Decision Helpful To Employers Defending Against Claims Of Harassment And Similar Claims

As the job market continues to flounder and the number of lawsuits alleging claims for alleged discrimination, harassment, retaliation, wrongful termination, and similar claims continues apace, the Court of Appeal has issued a decision that should prove helpful to employers defending such cases. In Holmes v. Petrovich Development Company, the court affirmed the trial court's grant of summary adjudication in favor of Petrovich Development and Paul Petrovich and against Gina Holmes on her claims she was harassed, retaliated against, and constructively wrongfully terminated on account of her pregnancy in violation of the Fair Employment and Housing Act ("FEHA").

Much of the court's decision focuses on a series of email messages between Ms. Holmes and her immediate supervisor, Mr. Petrovich, concerning her pregnancy and her request for a leave of absence connected to that pregnancy. By way of example, one the email messages Mr. Petrovich sent to Ms. Holmes stated: "I need some honesty. How pregnant were you when you interviewed with me and what happened to six weeks? . . . That is an extreme hardship on me, my business and everybody else in the company. You have rights for sure and I am not going to do anything to violate any laws, but I feel taken advantage of and deceived for sure." After consulting with an attorney, initially via email using her work computer, Ms. Holmes quit her job and later filed filed suit.

The trial court found the email exchanges between Ms. Holmes and Mr. Petrovich "could not be objectively found to have been severe enough or sufficiently pervasive to alter the conditions of her employment and create a hostile or abusive work environment based on her pregnancy." The Court of Appeal affirmed and explained in order to establish a claim for sexual harassment based on a hostile work environment, there must be comments or conduct "sever enough or sufficiently pervasive to alter the conditions of . . . employment and create a hostile or abusive work environment" and that one generally cannot recover for alleged harassment "that is occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature."  The Court of Appeal states: "It appears Holmes expects FEHA to be a civility code.  It is not."

The Court of Appeal explained, also, that because Ms. Homes' harassment claim could not succeed, neither could her claim for constructive wrongful termination: "Where a plaintiff fails to demonstrate the severe or pervasive harassment necessary to support a hostile work environment claim, it will be impossible for her to meet the higher standard of constructive discharge."

As for Ms. Holmes' retaliation claim, the court explained: "An'adverse employment action,' which is a critical component of a retaliation claim [citation], requires a 'substantial adverse change in the terms and conditions of the plaintiff's employment.'" The Court of Appeal agreed with the trial court there was insufficient evidence to establish an adverse employment action." Finding none, the court reiterated that "[A] mere offensive utterance or . . . a pattern of social slights by either the employer or co-employees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment for purposes of FEHA."

Ms.Holmes took issue, also, with the trial court's decision to admit into evidence the email messages Ms. Holmes exchanged with her attorneys using her work computer.  The Court of Appeal agreed with the trial court that the attorney-client privilege was waived as to those email messages because, under the circumstances, Ms. Holmes could not have a reasonable expectation of privacy as to those email messages on account of the employer's policies regarding use of the company's computers.  (1) Ms. Holmes was informed of the company's policy that company computers were to be used only for company business and not for personal email, (2) Ms. Holmes was warned the company would monitor the use of its computers, and (3) Ms. Holmes was advised employees have not right of privacy as to any personal information or messages placed on company computers in violation of the company's policy.  The court states:  "[t]he e-mails sent via company computer under the circumstances of this case were akin to consulting her lawyer in her employer's conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him" thus waiving the attorney-client privilege.

We believe this decision will likely help employers to defend against and dispose of  before trial emotionally charged claims that are legally tenuous but carry potential jury appeal.  In addition, the decision further establishes that employers can restrict how company computers are used and when sufficient policies are in place monitor employees' use of company computers.

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