Salazar v. Diversified Paratransit, Inc.

11 Cal. Rptr. 3d 630, 117 Cal. App. 4th 318

• Court: California Court of Appeal
• Decided: April 6, 2004
• Docket: B142840, B144243
• Status: Published

Opinions

Opinion

KLEIN, P. J.

Plaintiff and appellant Raquel Salazar (Salazar) appeals a judgment following a grant of nonsuit in favor of her former employer, defendant and respondent Diversified Paratransit, Inc. (Diversified), and her former supervisor, defendant and respondent Rudy Vokoun (Vokoun).

The evidence showed Salazar, an employee of Diversified, repeatedly was subjected to sexual harassment by a client of Diversified, and she reported the conduct to her employer which failed to take any corrective action. Salazar quit and sued. The trial court granted nonsuit in favor of defendants on the ground the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.)¹ does not protect an employee from sexual harassment by an employer’s client or customer.

This court, in a two-to-one decision, upheld that ruling. Salazar then filed a petition for review which the Supreme Court granted. While the matter was pending in the court above, the Legislature adopted Assembly Bill No. 76 (2002-2003 Reg. Sess.) (Assem. Bill 76), with the stated intent of clarifying the law and abrogating this court’s decision in the matter. The Supreme Court then transferred the matter back to this court for reconsideration in light of the new enactment. We conclude Assem. Bill 76 is a clarification of existing law and therefore governs this case. Accordingly, we remand the matter to the trial court for further proceedings, to be guided by the new enactment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.2

Diversified engages in the business of transporting developmentally disabled adults and children from their homes and care providers to day care centers and schools. Vokoun supervised operations and employees at Diversified’s Long Beach terminal.

Three male drivers at Diversified had filed written reports concerning misconduct by a passenger, one Rocha, beginning on October 11, 1994. These reports involved Rocha’s refusal to stay seated on the bus and his refusal to comply with a driver’s request to relinquish a knife Rocha had in his possession. Three female drivers filed reports of incidents in which Rocha exposed himself to those drivers. Thus, Vokoun and Diversified knew of these three previous incidents involving Rocha exposing himself to female bus drivers.

Diversified hired Salazar as a bus driver in late August or early September 1997. Salazar drove a few days with another driver, David, to learn the route. Rocha was a passenger on that route. On days when David taught her the route, Rocha touched Salazar’s hair and wanted to be by her side. When Rocha left his seat, David told Salazar to take him back to his seat. She did, and put his seat belt on, but Rocha again left his seat. When she again put him back in his seat, he stared at her and made her feel uncomfortable. He called her “bonita,” meaning beautiful. He grabbed her purse several times and said he wanted money even though David told him not to do that. Salazar was scared and felt uncomfortable around Rocha from the first day she met him. She nonetheless started driving the bus on the route without David. When she found out Rocha was going to be a passenger, she asked the dispatcher if she had to drive him. The dispatcher said, “I guess.”

When Rocha rode on Salazar’s bus, he got out of his seat and caused Salazar to have to stop the bus and place him back in his seat and fasten his seat belt. After a few days, Salazar reported problems with Rocha to David, the dispatcher, and Vokoun, and asked for a different route because she did not like how Rocha looked at her and wanted to touch her all the time.

Salazar filed written reports of two incidents of Rocha’s misconduct. On September 2, 1997, Rocha stood up and Salazar stopped the bus to put him back in his seat. Salazar saw that Rocha’s zipper and belt were down and his genitals were exposed. Rocha tried to grab her arms. Salazar put him back in his seat and continued on her route. Salazar reported the incident in writing to Diversified.

After the September 2, 1997, incident, Salazar drove the same route with no male assistant. For the next few days, although he did not expose himself, Rocha continued to misbehave, which made Salazar feel scared and apprehensive. On September 8, 1997, a second incident occurred while Salazar had stopped the bus and was waiting to pick up another passenger. Looking in her mirror, Salazar saw Rocha coming toward her. Salazar tried to get out of her seat, but Rocha attacked her and exposed his genitals. Salazar yelled for help from nearby drivers who were waiting for passengers. She hit Rocha with her arm to fight against him. Rocha touched her all over and tried to put his hands under her shirt and shorts. Salazar scratched his face, honked the horn, and tried to kick him. She spoke into the radio, “[Rocha] is attacking me.” Rocha was on top of her. He touched her with his hands and rubbed his face against her face. The attack ended when two male drivers from other buses came onto Salazar’s bus.

Salazar telephoned Vokoun and told him what happened. Vokoun came and drove Rocha home.

Salazar submitted a written report about this second incident. Within two days, Salazar decided she could no longer work for Diversified and quit.

2. Proceedings.

a. Trial court proceedings.

In the operative complaint, Salazar alleged four causes of action against Diversified and Vokoun: sexual harassment in violation of the FEHA (§ 12900 et seq.), and the California Constitution (Cal. Const., art. I, § 8); constructive discharge in violation of public policy; intentional infliction of emotional distress; and negligent infliction of emotional distress.

The case was tried to a jury. At the conclusion of Salazar’s case, the trial court granted nonsuit in favor of defendants, ruling the FEHA does not protect an employee from sexual harassment by an employer’s client or customer. Salazar appealed.

b. This court affirmed, upholding the trial court’s interpretation of the statutory scheme.

On October 28, 2002, this court, in Salazar v. Diversified Paratransit, Inc. (Salazar), a two-to-one decision, upheld the trial court’s grant of nonsuit, ruling that the FEHA does not protect an employee from harassment by an employer’s clientele.

c. Grant of review by Supreme Court.

On January 22, 2003, the Supreme Court granted a petition for review by Salazar. It specified the issue to be determined was “whether it is an unlawful employment practice under the [FEHA] ‘for an employer ... to fail to take all reasonable steps necessary to prevent. . . harassment’ of an employee by a non-employee (id., § 12940, subd. (k)), and accordingly whether an employer is required by the act to ‘take all reasonable steps to prevent [such] harassment’ (id., § 12940, subd. (j)(l)).”

d. The adoption ofAssem. Bill 76.

On December 23, 2002, less than two months after the issuance of this court’s decision in Salazar, Assem. Bill 76 was introduced in the Legislature to abrogate the Salazar decision. The bill passed both houses, and on October 3, 2003, it was approved by the Governor and filed with the Secretary of State.

Assem. Bill 76 amended subdivision (j)(l) of section 12940 to include the following provision: “An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, or persons providing services pursuant to a contract in the workplace, where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.” (Stats. 2003, ch. 671, § 1.)

Assem. Bill 76 also includes the following declaration of legislative intent: “It is the intent of the Legislature in enacting this act to construe and clarify the meaning and effect of existing law and to reject the interpretation given to the law in Salazar v. Diversified Paratransit, Inc. (2002) 103 Cal.App.4th 131 [126 Cal.Rptr.2d 475].” (Stats. 2003, ch. 671, § 2.)

e. The Supreme Court’s transfer of Salazar back to this court in light ofAssem. Bill 76.

On November 19, 2003, the Supreme Court transferred the matter back to this court “for reconsideration in light of the enactment of Chapter 671 of the Statutes of 2003.”

ISSUE

The question now presented is whether the new enactment is simply a clarification of existing law, so as to apply to the instant case.

DISCUSSION

1. Overview.

In this court’s previous decision, there was a difference of opinion with respect to the interpretation of the 1984 amendment to section 12940, declaring it an unlawful employment practice for an employer “or any other person” to harass an employee. (Stats. 1984, ch. 1754, § 2, p. 6406.)

In direct response to Salazar, the Legislature amended section 12940, subdivision (j)(l), to expressly hold employers liable for sexual harassment of employees by “nonemployees,” provided the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action. In enacting this latest amendment, the Legislature declared its “intent ... to construe and clarify the meaning and effect of existing law and to reject the interpretation given to the law in Salazar.” (Stats. 2003, ch. 671, § 2, italics added.)

Following the 2003 amendment to section 12940, the Supreme Court transferred Salazar back to this court “for reconsideration in light of the enactment of Chapter 671 of the Statutes of 2003.”

The issue therefore presented is the appropriate disposition of Salazar in light of the 2003 amendment to section 12940 and the Supreme Court’s transfer order.

2. General principles.

Of assistance in the resolution of the issue is the Supreme Court’s decision in Western Security Bank v. Superior Court (1997) 15 Cal.4th 232 [62 Cal.Rptr.2d 243, 933 P.2d 507], which set forth controlling canons of statutory interpretation.

A legislative declaration of an existing statute’s meaning is neither binding nor conclusive in construing the statute in that ultimately, the interpretation of a statute is an exercise of the judicial power the Constitution assigns to the courts. (Western Security Bank, supra, 15 Cal.4th at p. 244.)

However, an amendment “ 1 “which in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act, where the amendment was adopted soon after the controversy arose concerning the proper interpretation of the statute. . . . [f] If the amendment was enacted soon after controversies arose as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act—a formal change—rebutting the presumption of substantial change.” [Citation.]’ ” (Western Security Bank, supra, 15 Cal.4th at pp. 243-244.) Here, Assem. Bill 76, abrogating Salazar, was introduced on December 23, 2002, less than two months after the issuance of Salazar.

It is recognized “there is little logic and some incongruity in the notion that one Legislature may speak authoritatively on the intent of an earlier Legislature’s enactment when a gulf of decades separates the two bodies. [Citation.] Nevertheless, the Legislature’s expressed views [as here] on the prior import of its statutes are entitled to due consideration, and we cannot disregard them.” (Western Security Bank, supra, 15 Cal.4th at p. 244.)

Therefore, a “ ‘subsequent expression of the Legislature as to the intent of the prior statute, although not binding on the court, may properly be used in determining the effect of a prior act.’ [Citation.] Moreover, even if the court does not accept the Legislature’s assurance that an unmistakable change in the law is merely a ‘clarification,’ the declaration of intent may still effectively reflect the Legislature’s purpose to achieve a retrospective change. [Citation.] Whether a statute should apply retrospectively or only prospectively is, in the first instance, a policy question for the legislative body enacting the statute. [Citation.] Thus, where a statute provides that it clarifies or declares existing law, ‘it is obvious that such a provision is indicative of a legislative intent that the amendment apply to all existing causes of action from the date of its enactment. In accordance with the general rules of statutory construction, we must give effect to this intention unless there is some constitutional objection thereto.’ [Citations.]” (Western Security Bank, supra, 15 Cal.4th at pp. 244-245, italics added.) In sum, “when the Legislature clearly intends a statute to operate retrospectively, we are obliged to carry out that intent unless due process considerations prevent us. [Citation.]” (Id., at p. 243.)

The Legislature’s declared intent to clarify existing law (Stats. 2003, ch. 671, § 2), application of the principles of Western Security Bank, supra, 15 Cal.4th 232, and the Supreme Court’s order transferring Salazar back to this court in light of the legislative enactment, inform the resolution of the issue herein.

3. Section 12940 previously was somewhat ambiguous with respect to an employer’s liability for clientele harassment; Assem. Bill 76 clarified the statute to expressly hold an employer liable for harassment by a nonemployee.

In adopting Assem. Bill 76, the Legislature declared its intent to “clarify the meaning and effect of existing law and to reject the interpretation given to the law in Salazar.” (Stats. 2003, ch. 671, § 2.) As indicated, Assem. Bill 76 was adopted swiftly after this controversy arose concerning the proper interpretation of section 12940. Therefore, it is appropriate to accept the Legislature’s declaration in Assem. Bill 76 that rather than effecting a substantive change, it was merely clarifying section 12940. (Western Security Bank, supra, 15 Cal.4th at pp. 243-244.)

Further, as reflected in the differences of opinion expressed in Salazar with respect to the proper interpretation of section 12940, the statute was somewhat ambiguous and in need of clarification.

On the one hand, the preamble to the 1984 amendment to section 12940 specifically referred to protecting employees from sexual harassment by an employer’s “clientele.” (Stats. 1984, ch. 1754, § 1, pp. 6403-6404, italics added.) This was a point stressed in Justice Klein’s concurring and dissenting opinion when the matter was previously before us.

On the other hand, the legislative history leading up to the 1984 amendment provided support for a contrary, more restrictive, interpretation of section 12940. The April 24, 1984 amendment to Senate Bill No. 2012 (1983-1984 Reg. Sess.) (Sen. Bill 2012), modifying section 12940, subdivision (i), stated it was an unlawful employment practice “For an employer, . . . or any other person, because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age, to harass an employee or an applicant. Harassment of an employee or applicant by any person an employee other than an agent or supervisor shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.” (Sen. Amend, to Sen. Bill 2012 (1983-1984 Reg. Sess.) Apr. 24, 1984, first italics added, subsequent italics in original.)

With respect to the reason for this amendment, Senator Watson stated in a June 14, 1984 memorandum to her fellow senators regarding Sen. Bill 2012: “The bill does not hold an employer responsible for outside harassment. This was amended out of the bill in the Senate Industrial Relations Committee.” (Italics added.)

The lead opinion in Salazar also relied on a June 22, 1984 letter from Senator Watson to Michael J. Breining, Legal Counsel for the California Manufacturers Association, stating: “Your letter expresses concern over employer’s responsibility for customer harassment. This provision has been amended out of the bill.”

The lead opinion in Salazar focused on these statements by Senator Watson in concluding section 12940 did not protect employees from customer harassment.

Obviously, there was a glaring inconsistency between the preamble’s specific reference to protecting employees from sexual harassment by an employer’s “clientele” (Stats. 1984, ch. 1754, § 1, pp. 6403-6404) and Senator Watson’s assertions that protection from outside harassment or customer harassment had been amended out of the bill. The lead opinion in Salazar treated the “clientele” language in the preamble as a drafting error and adopted Senator Watson’s understanding of Sen. Bill 2012.

Conversely, the concurring and dissenting opinion in Salazar placed particular emphasis on the preamble, gave no weight to Senator Watson’s personal views, and concluded section 12940 held an employer liable for sexual harassment of an employee by the employer’s clientele. The concurring and dissenting opinion in Salazar reasoned that any conflict between the Watson legislative memorandum and the subsequently enacted statute must be resolved in favor of the statute because it is the language of the statute itself that has successfully braved “ ‘the legislative gauntlet.’ ” (People v. Snook (1997) 16 Cal.4th 1210, 1215 [69 Cal.Rptr.2d 615, 947 P.2d 808].)

The Legislature then weighed in on the issue and clarified section 12940 to eliminate this ambiguity. It expressly abrogated the Salazar majority’s interpretation of section 12940 and amended the statute to specify that an employer is liable for sexual harassment of an employee by a nonemployee under certain circumstances.

We conclude Assem. Bill 76 is nothing more than a clarification of section 12940. Thus, an employer may be held liable under the FEHA for sexual harassment by clients or customers. Because Assem. Bill 76 is a clarification of section 12940, rather than a substantive change, it applies to this case. Therefore, the matter shall be remanded to the trial court for further proceedings, guided by the Legislature’s clarification of the statute.

DISPOSITION

The judgment and postjudgment orders re attorney fees and costs are reversed and the matter is remanded to the trial court for further proceedings not inconsistent with this opinion. Salazar shall recover costs on appeal.

Aldrich, J., concurred.

1 Subsequent unspecified statutory references are to the Government Code.

2 On appeal from a judgment of nonsuit, the evidence is viewed in the light most favorable to plaintiff’s case, resolving all presumptions, inferences and doubts in plaintiff’s favor. (Santa Barbara Pistachio Ranch v. Chowchilla Water Dist. (2001) 88 Cal.App.4th 439, 444 [105 Cal.Rptr.2d 856].)