Case Name: Nabil Haidar v. City of San Jose, et al.
Case No.: 18CV335617
I. Background

This is an employment-discrimination action brought by police officer Nabil Haidar (“Plaintiff”) against his employer the City of San Jose (the “City”) and coworkers, namely Chief Edgardo Garcia (“Garcia”), Captain Johnson Fong (“Fong”), Sergeant Robert LaBarbera (“LaBarbera”), Deputy Chief Anthony Mata (“Mata”), Sergeant Stewart Davies (“Davies”), and Officer Thomas Barnard (“Barnard”).
Plaintiff immigrated to the United States from Lebanon in 1988 and identifies as a Lebanese-American and Muslim-American. (Compl., ¶ 13.) The City hired Plaintiff in 1996 and placed him on patrol duty after he graduated from the police academy the following year. (Compl., ¶ 14.) After the September 11, 2001, attack on the World Trade Center, Plaintiff began experiencing harassment based on his race, national origin, and religion that “persisted, increasing in severity over the years.” (Compl., ¶ 15.) For example, Plaintiff’s coworkers regularly made offensive remarks suggesting he was a terrorist. (Compl., ¶ 16.) They called him names, including “Taliban” and “Bin Laden.” (Compl., ¶ 16.) This conduct frequently took place during briefings at which his commanding officers were present. (Compl., ¶ 16.)

In 2003, when the United States commenced the Iraq war, the harassment escalated. (Compl., ¶ 19.) Plaintiff’s coworkers called him “ISIS,” imitated his accent, joked that he was a suicide bomber, and made fun of his first language (Arabic). (Compl., ¶ 17.) These offensive remarks continued to be made during briefings and in front of Plaintiff’s commanding officers. (Compl., ¶ 18.)
As recently as 2017, LaBarbera called Plaintiff a “veteran of ISIS” in front of Fong and nearly 100 other officers and commanding officers at a Veteran’s Day celebration. (Compl., ¶ 20.) When Plaintiff spoke about the incident with Mata, he laughed in his face and piled on with more offensive remarks. (Compl., ¶ 21.) This incident was Plaintiff’s breaking point. (Compl., ¶ 22.) Although he spoke with a member of the Crisis Intervention Team as well as the Internal Affairs Sergeant about the incident, no remedial action was taken. (Compl., ¶ 24.) When Plaintiff attended a communication and sensitivity training with fellow officers, they subsequently made comments to him about how they “can’t say anything without anyone getting offended”; these comments made Plaintiff uneasy because it appeared they were referring to the fact that he had complained about harassment. (Compl., ¶ 26.)

Plaintiff was offered desk duty, which he declined because most of the harassment he experienced was in the office as compared to the field. (Compl., ¶ 27.) For a period of time, Plaintiff was allowed to skip briefings and go out on patrol at the start of his shift, but the harassment continued. (Compl., ¶¶ 28–29.) When Plaintiff arrived at the scene of a robbery in January 2018, Barnard and another officer made offensive and expletive-laden remarks to him about being a terrorist. (Compl., ¶ 31.) This incident was recorded by the officers’ body cameras and was reported by Plaintiff, but the City did nothing. (Compl., ¶ 31.)

Eventually, Plaintiff had to transfer to a different unit and take a substantial pay cut to avoid the harassment. (Compl., ¶ 33.) He also presented a claim to the City; in response, Garcia and other officers leaked confidential information from his personnel file to the media. (Compl., ¶ 34.) An internal audit confirmed this was an unauthorized disclosure of confidential information. (Compl., ¶ 34.) Plaintiff now faces intimidation from coworkers in his new unit who frequently remind him of their connections to Garcia. (Compl., ¶ 36.) Additionally, Plaintiff has been unfairly reprimanded in retaliation for his complaints. (Compl., ¶¶ 39–41.)

Plaintiff asserts causes of action against the City and the individual police officers for: (1) race discrimination (against the City); (2) national origin discrimination (against the City); (3) religious creed discrimination (against the City); (4) harassment (against the City and individual officers); (5) retaliation (against the City); (6) intentional infliction of emotional distress (against individual officers); and (7) failure to prevent discrimination and harassment (against the City).

Currently before the Court is a demurrer to the fourth cause of action by the individual officers, namely Garcia, Fong, LaBarbera, Mata, Davies, and Barnard.

II. Demurrer

Defendants demur to the fourth cause of action for harassment on the ground of failure to state facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).) They argue Plaintiff does not allege they each engaged in conduct constituting severe and pervasive harassment under California’s Fair Employment and Housing Act (the “FEHA”).

Harassment is an unlawful employment practice under the FEHA. (Gov. Code, § 12940, subd. (j)(1).) It “‘consists of a type of conduct not necessary for performance of a supervisory job.’” (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1407, quoting Reno v. Baird (1998) 18 Cal.4th 640, 645–46.) “‘Instead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.’” (Jumaane, supra, 241 Cal.App.4th at p. 1407, quoting Reno, supra, 18 Cal.4th at pp. 645–46.) “When the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, the law is violated.” (Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 409 [internal quotation marks and citations omitted]; see also Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 460–61.) In addition to the employer, an employee “is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.” (Gov. Code, § 12940, subd. (j)(3).)

Defendants do not demonstrate Plaintiff fails to allege each of them perpetrated harassment. They focus on whether the conduct attributable to each of them was individually and independently severe and pervasive. But “severe and pervasive” is a term used to describe whether harassment, when evaluated collectively or cumulatively, is sufficient to create a hostile work environment. (Miller, supra, 36 Cal.4th at p. 462.) “The working environment must be evaluated in light of the totality of the circumstances…” including: “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” (Ibid. [internal quotation marks and citations omitted].) Significantly, the determination of whether harassment is severe and pervasive is ordinarily a question of fact that must be determined based on the evidence. (See Miller, supra, 36 Cal.4th at p. 468.) Indeed, Defendants rely almost exclusively on cases evaluating the propriety of rulings on motions for summary judgment. Because the standard is used for evaluating how acts cumulatively impact the quality of the work environment, Defendants’ application of it to the conduct of each of them individually and in isolation is misguided. Put differently, the question of whether there was severe and pervasive harassment that created a hostile work environment is a separate inquiry from whether an individual may be held responsible for creating and perpetuating that work environment.

Defendants do not cite authority establishing each of them must be entirely responsible for the severe and pervasive harassment to be held liable. The FEHA merely states an employee is liable if he or she was a perpetrator. (Gov. Code, § 12940, subd. (j)(3).) Defendants do not address this statutory language. Accordingly, they do not substantiate their argument that the facts alleged are insufficient to state a claim against each of them individually.

Moreover, even accepting Defendants’ apparent interpretation of the law, the Court is not persuaded the allegations are insufficient. Defendants do not completely and accurately characterize the allegations in presenting their argument. Plaintiff alleges many examples of harassment perpetrated by “San Jose Police Officers” in addition to the allegations of harassment that reference individual officers by name. (Compl., ¶¶ 16–18.) Reading the pleading as a whole, and in the absence of on point authority from Defendants, the Court is not persuaded that the allegations are insufficient to state a claim against each of them individually.

In consideration of the foregoing, Defendants’ demurrer to the fourth cause of action is OVERRULED.

The Court will prepare the order.