California Court of Appeal Reminds Employers About the Importance of Thorough Harassment Investigations
May 05, 2015
Dawson v. Country Club of Rancho Bernardo, No. D064654 (March 23, 2015): In an unpublished opinion, a California Court of Appeal reversed an order granting summary judgment in favor of the employer, Country Club of Rancho Bernardo, in a food and beverage manager’s sexual harassment case against the Club and her supervisor. This case serves as a reminder for employers to take sexual harassment complaints seriously, given that the failure to do so could have costly implications down the road.
Kristen Dawson was hired as a dining room supervisor in 2008. Shortly thereafter, she was promoted to food and beverage manager. In October 2010, the Club hired Joe Furlow as the clubhouse manager and Dawson’s direct supervisor.
In December 2010, Furlow began emailing Dawson about taking golf lessons. Thinking this was an invitation to have one of the Club’s golf pro’s provide her with lessons, she responded by saying she was interested. However, Furlow escalated their communications by replying, “OK, happy to give you some anytime, let’s…grab lunch or dinner too? Shoot me your personal e-mail…I don’t want this to be a work thing!” Dawson became uncomfortable and did not respond. Furlow continued to send similar requests to Dawson asking her to play golf, get “libations,” and “have some dinner.” In January 2011, Dawson (with the help of her boyfriend) drafted an email to Furlow stating that she was not interested in him romantically. Furlow confronted her a few days later saying he was “concerned,” and asked if they were “ok.” She told him she only wanted to associate with him in group settings with other managers present.
A few weeks later, Furlow told Dawson they “ha[d] a problem” because his wife “found the emails.” He asked Dawson to immediately delete any emails sent to her by his wife. Dawson was shocked because she did not think she had done anything wrong. Dawson never received an email from Furlow’s wife, but this interaction and hearing about his personal, marital issues made her uncomfortable. In spite of this, her work did not suffer, and in February 2011, the Club’s Board of Directors praised Dawson for her contribution to the Club’s success by giving her an award.
On February 20, 2011, Furlow called Dawson’s personal cell phone while she was on vacation in Palm Springs with her family and boyfriend. Furlow said he thought they “had a moment,” that she was “beautiful,” and informed her that he was still having marital problems. Dawson replied that she did not feel the same way and that if he continued to call her she would report it to the Club’s HR department.
Furlow then began making changes at work without seeking Dawson’s input. For example, Furlow hired three new employees, met with Dawson’s subordinates to inform them about changes he was making at work, offered new wines in the restaurant, and changed the dining room set-up, all of which were Dawson's responsibilities. In April, Dawson received a call from a wine vendor saying he was disappointed that their relationship was terminated. Given that it was Dawson’s duty to maintain vendor relationships, she went to Furlow to ask him what had happened. He yelled at her and said he was “outraged” that she would “defend a vendor.”
On April 15, 2011, Furlow told Dawson he was “concerned about [her] mental health.” He then presented her with an email that was allegedly sent from Dawson to Furlow’s personal email account. The email read, “[W]e need to talk….you are quite the dick. Or do you even have one? Could be fun, not sure your agenda, kind of a [sic] insecure control freak, huh?” Dawson immediately said she did not write the email, asked if she should have her lawyer present, and asked why he was doing this. Furlow proceeded to threaten her by saying he had “a lot more where those came from.”
Dawson met with the Club’s President, Rick Lindsey, and the Board’s Chairman of HR, Bob Walder. Walder showed Dawson 30 additional emails, which Furlow had provided to him. The communications were between Dawson’s account, Furlow’s Club account, and his two personal email accounts. The emails were allegedly exchanged between December 18, 2010, and February 14, 2011, and were drafted to coincide with Dawson and Furlow’s real emails. “Dawson’s” emails made it seem like she was receptive to Furlow’s advances. For example, in response to “Dawson’s” suggestion that the two of them take a trip, Furlow responded, “how far is far far away Oceanside, Downtown SD, Carlsbad or Alaska or Hawaii?” “Dawson” then indicated that she wanted to take an overnight trip with him to a desert golf course. The email was signed, “Kristen xo.” “Dawson” also thanked him for opening up to her about his troubled marriage (which he described for seven paragraphs) and she provided him with advice about his wife’s infidelity, his children, and therapy sessions. A March 2011 email from “Dawson” threatens to share their correspondence with his wife saying, “wonder what she’d do if I told her how we had sex and how quick you went after me?” Furthermore, in an April 2011 email, “Dawson” says “going down.” Furlow asks what she means and she says, “Use your imagination.”
Dawson broke down in tears and maintained she had never seen the emails before. She then requested an investigation to determine who wrote them. Dawson volunteered access to her and her boyfriend’s computers to prove that they did not send the emails. Walder confirmed the emails did not come from either of their computers. On two occasions, Walder requested access to Furlow’s personal and work computers and his cell phone. He promised to bring in the devices, but never did. Because of Furlow’s lack of cooperation, Walder concluded he would not be able to determine who sent the emails. He also said that due to this lack of access, the emails were nothing more than “hearsay.” Finally, on April 27, 2011, Walder and Lindsey told Dawson that they could not reprimand Furlow and that the investigation was complete because they could not pinpoint who wrote the emails.
Furlow and Dawson continued to work together. Furlow was reprimanded for terminating the wine vendor relationship, but he was not reprimanded for the alleged sexual harassment. Discouraged by the outcome of the Club’s investigation, Dawson filed a lawsuit in state court alleging sexual harassment under the California Fair Employment and Housing Act (FEHA), failure to prevent harassment, intentional infliction of emotional distress, wrongful termination in violation of public policy, and retaliation.
The Club offered Dawson a new position as the special events manager. Dawson considered this a demotion because she would not be able to oversee her 20-person restaurant staff, would not receive a raise, and would have the same level of communication—if not more—with Furlow. The Club then offered to hire an investigator to look into the origin of the emails if she dropped her lawsuit.
On June 1, 2011, Dawson’s attorney received an email referencing Dawson’s “performance” issues and demanded to know whether she would accept the new position. Until then, no such performance issues had ever been documented. Dawson was then stripped of another job duty (the scheduling of bartenders and cocktail servers). Consequently, she was discharged for poor performance.
Citing Dawson’s testimony that she did not feel sexually harassed until Walder showed her the emails, the trial court found that Dawson had not met her burden of showing that such emails constituted sexually harassing conduct or that the conduct was severe or pervasive.
Under FEHA, the existence of a hostile work environment depends on the totality of the circumstances. The trial court refused to consider Furlow’s retaliatory conduct when reviewing the hostile work environment claim. The appellate court pointed out this error saying Furlow’s actions after the Palm Springs phone call (i.e., Furlow cut Dawson out of the decision-making process at work, yelled at her, threatened that he had more emails from “her,” and reassigned some of her duties) should have been considered evidence relevant to the sexual harassment claim.
Further, under FEHA, the work environment must be objectively and subjectively offensive to be actionable sexual harassment. The trial court ruled that Dawson’s deposition testimony shows she was not subjectively harassed. However, the appellate court found that her testimony was read too narrowly because Dawson did in fact say she felt “uncomfortable” and referred to interactions with Furlow as “instances of sexual harassment.” As a result, this evidence was sufficient to create a triable issue of fact. Similarly, the Club argued that Dawson could not feel objectively harassed because the April 6 “going down” email and April 14 “dick” email were jokes and not sexually suggestive. However, the appellate court found that a jury could disagree with the Club’s interpretation of the emails. Further, the court acknowledged that Furlow’s creation of a virtual “Dawson” who threatened to blackmail Furlow and who others (Walder) perceived as “inappropriate” and “trying to get laid” would certainly contribute to a hostile work environment.
In sum, the court concluded that Dawson had raised triable issues of material fact relating to her hostile work environment claim and reversed the trial court’s decision. Based on the same analysis, the trial court also erred in ruling on the failure to prevent harassment and intentional infliction of emotional distress claims. Retaliation was also wrongly decided because the court found that there was “ample evidence” to allow a trier of fact to determine the Club’s basis for terminating Dawson’s employment was unconvincing. Finally, the wrongful termination claim was allowed to proceed given that it was based on the retaliation, which the trial court had erred in granting summary judgment on.
Recommendations for Employers
This case should serve as a reminder for employers to keep in mind the following when handling sexual harassment complaints:
- Know when to ask for help. Dawson shows us that a Board of Directors with no expertise in conducting investigations into unlawful harassment complaints should not be making such decisions. Accordingly, when making important personnel decisions, seek guidance from competent employment counsel.
- Conduct prompt, thorough, and fair investigations. Generally, it is difficult to win a motion for summary judgment in a sexual harassment case because such cases can be very fact-intensive. Avoiding the high cost of litigation is one of the many reasons to have employment counsel properly investigate sexual harassment complaints on the front-end.
- Separate the complainant and alleged harasser to prevent future harassment. If an employee claims that he or she is being sexual harassed, or a supervisor sees or suspects that sexual harassment is taking place, the employer has an affirmative duty to act to prevent further harassment.
- Do not retaliate against an employee for making a complaint. In sexual harassment cases, the court will take into account the “totality of the circumstances,” which means if an employer retaliates against an employee, this could not only impact the retaliation claim, but also the sexual harassment claim.
- Document, document, document. In Dawson, the Club claimed that the plaintiff had performance issues even though no such issues had ever been documented. The Court did not find this reason for her discharge to be compelling. Therefore, employers should faithfully document employee performance issues to ensure they have evidence to support termination, should the need arise.
According to Guillermo A. Escobedo, a shareholder in the San Diego office of Ogletree Deakins, “Even if employers have experience with investigations, it may be worthwhile to retain an outside investigator because it avoids allegations of bias. Also, from a litigation perspective, the investigation may carry more weight to a jury because it was conducted by an independent third party trained in conducting investigations.”
Jaclyn A. Simi focuses her practice on representing employers in federal and state court litigation involving discrimination, harassment, retaliation, wrongful termination, unfair competition, and wage and hour claims. She also represents employers in administrative hearings and counsels employers on a broad spectrum of day-to-day employment matters, including employee discipline, terminations, leaves of absence, and wage and hour issues. In addition, she assists employers in drafting policies, employee handbooks and employment-related agreements to ensure compliance with California and federal law while also serving the employer's individual business needs. Jaclyn has experience drafting international employment agreements, equity compensation plans, student/staff interaction polices, and employer training materials.