A former City of Benicia employee sued the City and two supervisors for sexual harassment in violation of FEHA and for retaliation, among other causes of action. The employee and both supervisors were male.

Supervisor 1 prevailed on his motion for summary judgment. Supervisor 2 also prevailed on his motion for summary judgment. The trial court granted judgment on the pleadings for the City, based on the supervisors’ successful MSJ’s.

Plaintiff appealed. The court reversed the summary judgment for Supervisor 1, and reinstated the sexual harassment claim but granted summary adjudication on the other causes of action. The court affirmed summary judgment for Supervisor 2. The court reversed the judgment against the City due to the reinstated sexual harssment claim against Supervisor 1. This also meant the City could be on the hook for retaliation.

Regarding the allegations against Supervisor 1, the court focused on Supervisor 1’s conduct to see if there were triable issues of material fact as to whether Supervisor 1’s harassment of plaintiff was based on sex. Plaintiff alleged Supervisor 1 did the following:

• Supervisor 1 showed computer photos of a penis in a rat trap and a photo of a woman with lopsided breasts;
• Supervisor 1 told plaintiff risqué jokes;
• Supervisor 1 gave plaintiff approximately 30 gifts, including tuxedo underwear;
• Supervisor 1 often bought lunch for plaintiff;
• Supervisor 1 asked plaintiff to kiss him;
• Supervisor 1 told plaintiff he should come visit Supervisor’s home.

The court concluded triable issues of material fact existed as to whether Supervisor 1’s alleged harassment of plaintiff was based on sex.

Why did Supervisor 2 get away with his actions? Supervisor 2 was accused of:

• Supervisor 2 sometimes (two or three times) displayed pornographic pictures on a computer to those in the office;
• Supervisor 2 sometimes told “obscene” jokes at work (before work and in the break room);
• Supervisor 2 frequently massaged or rubbed his secretary’s shoulders and touched her arms, hair and hands.

This pretty straightforward stuff and it seems the court made the right decision concerning the supervisors.

The case also discusses retaliation and exclusion of evidence.

Lewis v. City of Benicia, 2014 Cal. App. LEXIS 282 (March 26, 2014).