Case Name: Alyssa Hernandez v. Oakley Sales Corp., et al.
Case No: 18CV340042

I. Background

Plaintiff Alyssa Hernandez (“Plaintiff”) brings this action against several defendants including United Parcel Service, Inc. and UPS Ground Freight, Inc. (collectively “UPS”) for damages associated with sexual harassment.

According to the allegations of the first amended complaint (“FAC”), Plaintiff was employed as an assistant manager of the Oakley Vault store in Gilroy. (FAC, ¶ 17.) In January 2018 a UPS delivery driver, identifiable only as “Hector,” approached Plaintiff in the store’s stock room, leaned into her personal space, grabbed her shoulder, and made sexually suggestive and threatening statements. (Id. at ¶ 18.)

Plaintiff informed her manager of the incident and her discomfort with what transpired. (FAC, ¶ 19.) As they talked, the back doorbell rang, and they answered it together to find Hector. (Ibid.) Despite what she had just disclosed, the manager left Plaintiff alone with Hector. (Ibid.) Hector leaned into her personal space and put his hand on her chest and collarbone, such that his thumb was touching the upper part of her breast, and he told her to “relax.” (Id. at ¶ 20.) Plaintiff ran onto the sales floor and informed her manager. (Ibid.)

Her manager subsequently had a conversation with Hector about the complaints, but Hector yelled “I didn’t fucking touch her.” (FAC, ¶ 21.) On another occasion when the manager met Hector for a delivery, Hector said “I fucking hate that bitch.” (Id. at ¶ 22.) Plaintiff called UPS to report Hector’s behavior, and was told that someone at UPS would talk to him. (Id. at ¶ 23.) Thereafter, Hector behaved in an aggressive and rude manner towards the manager when making deliveries. (Id. at ¶ 24.)

Plaintiff called UPS again to complain and spoke to a dispatcher who said they would tell Hector’s manager, but that he had a “big route” and they could not terminate him or have someone else deliver to the store. (FAC, ¶ 25.) Plaintiff was subsequently left alone to receive deliveries from Hector, and was reprimanded for giving the keys to other employees so they could accept deliveries. (Id. at ¶ 26.) Her manager told her “you’ll have to face Hector at some point” referring to her management position and the requirement to receive deliveries. (Id. at ¶ 27.) As a result, Plaintiff resigned her position.

Based on the foregoing, the FAC alleges nine causes of action, including the fifth cause of action against UPS for sexual harassment in violation of the Unruh Civil Rights Act.

Presently before the Court is UPS’s demurrer to the fifth cause of action.

II. Demurrer

UPS demurs to the fifth cause of action on the ground of failure to state sufficient facts, pursuant to Code of Civil Procedure section 430.10, subdivision (e).

A. Legal Standard

A demurrer tests the legal sufficiency of a pleading, but not the truth of a plaintiff’s allegations or the accuracy with which he or she describes the defendant’s conduct. (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958; citing Committee on Children’s Television Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213.) The demurrer is treated as admitting all material facts, properly pleaded, but not contentions, deductions or conclusions of law. (Ibid.)

B. Pleading Sufficiency of Fifth Cause of Action

UPS argues that the facts are not sufficient to allege that it is vicariously liable for Hector’s misconduct as described by the fifth cause of action.

Preliminarily, the Court notes that while Plaintiff labels the cause of action as “harassment in violation of the Unruh Civil Rights Act” she goes on to cite Civil Code section 51.9, subdivision (a)(1) within the allegations. (FAC, ¶ 67.) Civil Code section 51.9 is distinct from the Unruh Civil Rights Act and prohibits sexual harassment in business places outside of the employment context. (See Hughes v. Pair (2009) 46 Cal.4th 1035, 1044, fn. 1 [“Civil Code section 51 is the only statute comprising of the Unruh Civil Rights Act”].)

Given that the allegations against UPS are more consistent with a violation of section 51.9, and despite how the cause of action is titled, the Court presumes it is the basis for the cause of action and proceeds accordingly. (See Hernandez v. Lopez (2009) 180 Cal.App.4th 932, 938, [holding that a party is entitled to relief which may be appropriate under the scope of pleadings and within the facts alleged regardless of the title of the pleading].)

1. Vicarious Liability

UPS argues that the facts do not support a contention that it is vicariously liable for the alleged sexual harassment under either a theory of respondeat superior or ratification. However, the Court finds that the facts are sufficient to allege ratification, and need not reach the respondeat superior argument.

Ratification is an alternate theory to respondeat superior where an employer may be liable for an employee’s act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110.) The theory of ratification can apply if an employer fails to investigate or respond to charges that an employee committed an intentional tort. (Ibid.) As stated in the employment context, a managerial failure to intervene effectively to prevent or end sexual harassment in the workplace by a fellow employee can amount to a ratification of the misconduct for which the employer may be held liable. (Birschtein v. New United Motor Mfg., Inc. (2001) 92 Cal.App.4th 994, 1007.)

Here, the facts allege that Plaintiff was subjected to both verbal and physical sexual harassment by Hector, an employee of UPS. (FAC, ¶¶ 18, 20, 21, 22.) She called UPS on two occasions to complain about Hector’s behavior. (Id. at ¶¶ 23, 25.) The second time she called, she spoke to a dispatcher who said he would give the information to Hector’s manager, but that Hector had a “big route” and they could not terminate him or have someone else deliver to the store. (Id. at ¶ 25.) After her complaint, Hector continued to deliver to the store where Plaintiff was required to interact with him. (Id. at ¶ ¶ 25, 27.) She was not subsequently contacted by UPS or provided a means to obtain information on any investigation. (Id. at ¶¶ 23, 27.) Thus, the facts support a failure by UPS to respond to Plaintiff’s allegations of sexual harassment or to investigate Hector’s behavior sufficient to allege ratification.

2. Pleading Sufficiency of Sexual Harassment

In a footnote at the end of its argument in support of the demurrer, UPS also argues that the facts are not sufficient to allege the conduct meets the “pervasive” standard required by Civil Code section 51.9, subdivision (a). (Def. Mem. of Pts. & Auth., p. 8, l 24-28 [citations omitted].)

Civil Code section 51.9 provides a remedy for sexual harassment only if the conduct was either “pervasive or severe.” (Hughes v. Pair, supra, 46 Cal.4th 1035, 1048.) For sexual harassment to be pervasive, it must be so egregious as to alter the conditions of the underlying professional relationship. (Ibid.) Furthermore, an isolated incident of harassing conduct may qualify as severe when it consists of a physical assault or the threat thereof. (Id. at 1049.)

The facts here are sufficient to allege that the harassment was pervasive and severe. On two occasions, Hector entered Plaintiff’s physical space and one time “grabbed” her and another time “massaged her chest” such that his thumb was “touching the upper parts of her breast.” (FAC, ¶¶ 18, 20.) In the first instance, he made sexually suggestive and threatening remarks, and on the second occasion he told her to “relax.” (Ibid.) Hector was also observed by Plaintiff’s coworkers to be verbally abusive in reference to her, referring to her as a “bitch,” and he was aggressive and rude towards her manager in dealing with a delivery after her complaints. (Id. at ¶¶ 21, 22, 24.) These facts support a contention that the harassment was “severe.”

Furthermore it is alleged that after Plaintiff complained to UPS about Hector’s behavior, UPS did not change his route, so he continued to deliver to the store. (FAC, ¶ 25.) Also, Plaintiff had to be left alone with Hector as part of her job. (Id. at ¶¶ 19, 26.) Plaintiff tried to lend the keys to another employee so they could accept deliveries instead of her, but she was reprimanded for doing so. (Id. at ¶ 26.) Since she was required to receive deliveries in order to continue working, she resigned her position because she did not feel safe. (Id. at ¶ ¶ 26, 27, 28.) Thus, as alleged, the conditions of the underlying relationship were altered to the point that Plaintiff could not work as she needed to, and ultimately left her position. These facts therefore support a contention that the harassment was “pervasive.”
Consequently, UPS’s demurrer to the fifth cause of action on the ground of failure to state sufficient facts is OVERRULED.

UPS’ MOTION FOR PROTECTIVE ORDER

UPS filed a motion for protective order seeking to stay all discovery because it claimed that the Plaintiff could not assert a viable cause of action against it. Not only does the Court agree that a pending demurrer does not delay discovery obligations, but in light of the Court’s order overruling the UPS demurrer, the motion for protective order to stay all discovery is DENIED.

The Court will prepare the order.

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