Case Name: Joann Aguilar v. James V. Pietrantonio, et al.

Case No.: 17CV312372

Motion for Summary Adjudication

Factual and Procedural Background

On June 29, 2017, plaintiff Joann Aguilar (“Aguilar”) filed a complaint against defendants James V. Pietrantonio (“Dr. Pietrantonio”) and J. Pietrantonio, O.D., Inc. (collectively, “Defendants”). In relevant part, the complaint alleges Dr. Pietrantonio abused his position as plaintiff Aguilar’s supervisor by sexually harassing and battering her, thereby creating a hostile work environment. (Complaint, ¶¶13 – 20.) Plaintiff Aguilar’s complaint asserts causes of action for:

(1) Sexual Harassment
(2)
(3) Tortious Termination in Violation of Public Policy
(4)
(5) Violation of Government Code §12940(k) [Failure to Prevent Sexual Harassment]
(6)
(7) Failure to Pay Premium Overtime Wages
(8)
(9) Failure to Provide an Accurate Itemized Wage Statement
(10)
(11) Waiting Time Penalties
(12)
(13) Failure to Provide Meal Periods and Rest Breaks
(14)
(15) Sexual Assault and Battery
(16)
(17) Unlawful, Unfair and Fraudulent Business Practices
(18)

On August 21, 2017, Defendants filed answers to plaintiff Aguilar’s complaint and J. Pietrantonio, O.D., Inc. filed a cross-complaint against Aguilar.

On September 14, 2017, Aguilar answered the cross-complaint.

On March 25, 2019, Defendants filed the motion now before the court, a motion for summary adjudication of the first, second, and third causes of action in plaintiff Aguilar’s complaint.

I. Defendants’ motion for summary adjudication of the first cause of action [sexual harassment] of plaintiff Aguilar’s complaint is DENIED.
II.

“The elements of the cause of action [for sexual harassment] are: ‘(1) [p]laintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior.’” (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1122 – 1123; see also Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876; see also Nazir v. United Airlines, Inc. (2009) 178 CA4th 243, 264.)

In moving for summary adjudication, Defendants focus on the element of “severe or pervasive” harassment, arguing that the conduct plaintiff Aguilar complains of does not rise to this level. “[T]he required showing of severity . . . of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.” (Davis v. Team Elec. Co. (9th Cir. 2008) 520 F.3d 1080, 1096.) The test is enunciated in Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609 – 610 where the court wrote, “Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances. [Citation.]” “The factors that can be considered in evaluating the totality of the circumstances are: (1) the nature of the unwelcome sexual acts or works; (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred.” (Id. at p. 610; see also Sheffield v. Los Angeles County (2003) 109 Cal.App.4th 153, 162.) Under the right circumstances, the court can make this determination as a matter of law. (See Hagberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 150.)

Defendants acknowledge plaintiff Aguilar’s sexual harassment claim is based on eleven (11) incidents which occurred over the course of plaintiff Aguilar’s employment from April 12, 2013 through October 8, 2016 at Defendants’ optometric business, Los Gatos Optometric Vision Care. Defendants downplay most of these incidents and contend that “we are left with a handful of what might be best described as trivial, annoying or childish acts occurring infrequently, very sporadically, over a 3 ½ year time period.”

Of particular relevance, Defendants acknowledge that “On one occasion, defendant Dr. Pietrantonio said, ‘If your boobs were any bigger, I couldn’t see your face.’” “On one occasion in 2015 Dr. Pietrantonio reached across Ms. Aguilar and accidentally brushed her breast, and when she said something to him about it ‘he squeezed my breast.’” “On one occasion Dr. Pietrantonio gave Ms. Aguilar a kiss to thank her for her work putting together an office birthday party for a staff member. The kiss was on the cheek or on part of her mouth.” “Dr. Pietrantonio would ‘regularly smack [Ms. Aguilar] on her buttocks in a sexual manner with clipboards and patient charts.’” “On one occasion in late September 2016 Dr. Pietrantonio grabbed [Ms.] Aguilar’s arm in a ‘sexual manner,’ and said, ‘you should spin around and let me see how you look.’”

Defendants cite Hughes v. Pair (2009) 46 Cal.4th 1035, 1042 (Hughes) where the court wrote, “ ‘simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes’ in employment conditions.” (Citations omitted.) “There is no recovery ‘for harassment that is occasional, isolated, sporadic, or trivial.’ [Citation.]” (Hughes, supra, 46 Cal.4th at p. 1043.) Defendants contend the comment about plaintiff Aguilar’s “boobs” is merely teasing. However, the alleged incidents go beyond mere teasing (e.g., squeezing plaintiff’s breast; kissing; smacking plaintiff’s buttocks; grabbing plaintiff’s arm in a sexual manner). Defendants contend these incidents are rude, inappropriate, childish, and/or dumb, but as defendants themselves recognize, the severity and pervasiveness of the harassment is measured by both objective and subjective standards. (Chin, et al., CAL. PRAC. GUIDE: EMPLOYMENT LITIGATION (The Rutter Group 2010) ¶10:200, p. 10-41 citing Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21 – 22 (Harris).) “Thus, there is no Title VII violation where the misconduct was not severe or pervasive enough to create an objectively hostile or abusive work environment, or where the victim did not subjectively perceive the conduct as abusive.” (Id. citing Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 284 (Lyle)—same result under FEHA.) The “inappropriateness” of Dr. Pietrantonio’s conduct is not tested by Defendants’ own standards.

Defendants attempt to compare the facts here to the facts in Hughes where the court upheld summary judgment despite defendant’s comment: ““I’ll get you on your knees eventually. I’m going to f**k you one way or another.” The Hughes court found the conduct not sufficiently pervasive or severe. With regard to pervasiveness, “the alleged sexual harassment consisted only of comments defendant made to plaintiff during a single telephone conversation and a brief statement defendant made to plaintiff in person later that day during a social event at a museum.” (Hughes, supra, 46 Cal.4th at p. 1048.) On the issue of pervasiveness, the facts here are distinguishable. The court identified at least five separate incidents above. Similarly, Defendants’ comparison of the present facts to the facts in Haberman v. Cengage Learning, Inc. (2009) 180 Cal.App.4th 365 and Saxton v. American Tel. & Tel. Co. (7th Cir. 1993) 10 F.3d 526 are distinguishable.

Accordingly, Defendants’ motion for summary adjudication of the first cause of action in plaintiff Aguilar’s complaint for sexual harassment is DENIED.

III. Defendants’ motion for summary adjudication of the second cause of action [wrongful termination] of plaintiff Aguilar’s complaint is DENIED.
IV.

“To establish a claim for wrongful discharge in violation of public policy, each of the following must be proved: (1) An employer-employee relationship; (2) Termination or other adverse employment action; (3) Termination of plaintiff’s employment was a violation of public policy (or more accurately, a ‘nexus’ exists between the termination and the employee’s protected activity); (4) The termination was a legal cause of plaintiff’s damage; and (5) The nature and the extent of plaintiff’s damage.” (Chin, et al., CAL. PRAC. GUIDE: EMPLOYMENT LITIGATION (The Rutter Group 2012) ¶5:10, p. 5-2 citing Holmes v. General Dynamics (1993) 17 Cal.App.4th 1418, 1426; see also Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 154.)

In moving for summary adjudication of the second cause of action, Defendants contend there is no nexus between plaintiff Aguilar’s termination and a violation of public policy. Defendants proffer evidence that plaintiff Aguilar was terminated because Dr. Pietrantonio was angry at Ms. Aguilar for ordering glasses for [an ex-boyfriend], concealing the order as an order for a false patient, and for attempting to order two expensive pair of glasses without paying for them.

In opposition, plaintiff Aguilar presents evidence which would create a triable issue of material fact with regard to whether her termination is linked to her claim of sexual harassment. Specifically, plaintiff Aguilar presents her declaration in which she states, “Throughout my employment, Dr. Pietrantonio constantly tried to get me to date him despite my persistent refusals to do so. For example, in October 2016, he demanded that I attend a concert with him at the Saratoga Mountain Winery. When I refused he became upset and the next day of work treated me terribly.” In addition, plaintiff Aguilar recounts various other incidents from which, collectively, a trier of fact might infer that the reason for plaintiff’s termination was because plaintiff rebuffed defendant Dr. Pietrantonio’s advances.

Accordingly, Defendants’ motion for summary adjudication of the first cause of action in plaintiff Aguilar’s complaint for sexual harassment is DENIED.

V. Defendants’ motion for summary adjudication of the third cause of action [failure to prevent harassment] of plaintiff Aguilar’s complaint is DENIED.
VI.

Under FEHA, an employer has an obligation to “take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (See Gov. Code §12940, subd. (k).) A prerequisite to a finding of liability for the failure to take all reasonable steps, however, is a finding that the plaintiff actually suffered unlawful discrimination, harassment, or retaliation. (See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 282 – 283; see also Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021.) Defendants argue that since there is no harassment in the first instance, there can be no claim for the failure to prevent it.

However, in light of the ruling above on the first cause of action, Defendants’ motion for summary adjudication of the third cause of action in plaintiff Aguilar’s complaint for failure to prevent harassment is DENIED.