In Vargas v. The Vons Companies, Inc. et al, 2022 WL 17685801 (Cal.App. 2 Dist. Dec. 15, 2022) (unpublished), the court, inter alia, reversed the lower court’s order granting defendant’s motion for summary judgment on plaintiff’s sexual harassment claim, against her co-worker, under California’s Fair Housing and Employment Act (FEHA).
From the decision:
There is a triable issue of material fact regarding whether Duhm’s [the co-worker’s] conduct toward plaintiff was sufficiently severe and pervasive as to alter the terms of her employment. Plaintiff offered evidence of repeated verbal harassment: Over a three- or four-month period, Duhm told plaintiff five to 10 times that she was “pretty,” told her three to five times that she should date older men like him, told her five times that women are best at “lying on their backs,” and made a comment about sticking a roll of paper towels “up [her] butt” because he knows she “like[s] things in [her] butt.” Plaintiff also offered evidence of physical harassment: In February 2019, Duhm pushed a shelf into her butt, while grinning; given Duhm’s prior comment about sticking items “up [her] butt,” his conduct with the shelf could reasonably be viewed as a distasteful sexual gesture. Although plaintiff did not suffer a loss of any tangible job benefit, a reasonable jury crediting plaintiff’s evidence could conclude that it was more than “annoying or merely offensive” and instead “pervasive and destructive of the working environment.” Our conclusion that there is a triable issue as to whether Duhm’s conduct is actionably severe and pervasive also dovetails with our Legislature’s recent pronouncement that summary adjudication of the merits of sexual harassment claims is to be disfavored.
Based on this, the court held that summary judgment was unwarranted.