Question of Fact if Alleged Harassment was Severe or Pervasive

The court of appeals reversed a judgment, holding that the district court erred in concluding that hugs and kisses on the cheek were merely innocuous and common workplace behavior.

County correctional officer Victoria Zetwick sued the County of Yolo, alleging that the county sheriff’s habit of greeting her with hugs created a sexually hostile work environment in violation of Title VII of the Civil Rights Act of 1964.

The county moved for summary judgment, arguing such conduct was merely innocuous, socially acceptable conduct. The district court granted summary judgment. 

The court of appeals reversed, holding that the district court erred in concluding that courts do not consider hugs and kisses on the cheek to be outside the realm of common workplace behavior. None of the three cases relied on by the district court states or stands for this proposition. Additionally, none of these cases identified either the number of times or the period of time over which unwelcome hugging occurred; they were thus factually distinguishable. Further, the district court misstated the standard as “severe and pervasive,” when a showing of either “severe or pervasive” conduct is sufficient. The district court’s analysis of the record was similarly flawed, Applying a simple calculation, the district court concluded that if the sheriff hugged Zetwick 100 times over a period of 12 years, as she alleged, the hugs occurred, on average, only “seven or eight times per year.” such a conclusion overlooked the as yet unresolved questions of whether the hugs occurred sporadically or during a specific, and more concentrated, time frame, and whether they represented the majority or the minority of Zetwick’s encounters with the sheriff. The court reversed the grant of summary judgment and remanded for trial on the merits of Zetwick’s federal and state sexual harassment claims and her state claim of failing to prevent sexual harassment.

Zetwick v. County of Yolo, 9th Cir., Feb. 23, 2017.


City's Agenda Item Satisfied the Brown Act

The City of Oceanside approved the sale of property to real estate developer S.D. Malkin Properties, Inc. In conjunction with the sale, the city and Malkin entered into a proposed Agreement that Malkin would develop a luxury hotel on the land, and the city would pay Malkin a subsidy of over $11 million remitted from transient occupancy tax collected from the hotel. When the city placed the Agreement and related items on its agenda for an upcoming meeting, the agenda item stated that the council would consider: Malkin’s agreement to guarantee development of the subject property as a full service resort; an agreement to provide a mechanism to share transient occupancy tax generated by the Project; and a report, required by statute, documenting the amount of subsidy provided to the developer, the proposed start and end date of the subsidy, and the public purpose of the subsidy. San Diegans for Open Government (SDOG) later filed suit, contending that the city violated the Brown Act because its agenda description was inadequate. The trial court entered judgment in favor of the city.

SDOG appealed, arguing the city violated the Brown Act.

The court of appeal affirmed, holding that the trial court did not err in finding the city’s agenda substantially complied with the Brown Act. The Brown Act requires that a local agency’s published meeting agenda provide a “brief general description” of items to be considered. The wording of the statute, pertinent case authority, and other authority all reflect a general principle regarding the standard necessary to satisfy that requirement: agenda drafters must give the public a fair chance to participate in matters of particular or general concern by providing more than mere clues from which the public must then guess or surmise the essential nature of the business to be considered by a local agency. That standard was met here, where the city published an agenda that was not in any sense confusing, misleading or unfairly opaque and that gave the public fair notice of the essential nature of what the council would be considering.

San Diegans for Open Government v. City of Oceanside; 4th DCA, October 25, 2016



County May Charge Overhead for Copying Documents

The Third Appellate District affirmed a judgment. The court held that a county properly took overhead and operating costs into account in setting its rates for copying official documents.

The Yolo County Recorder’s Officer charged California Public Records Research, Inc. (CPRR) $62.00 for copies of two documents, at a rate of $10.00 for each first page and $2.00 for each subsequent page. CPRR sued the county for violating its duty under Gov. Code §27366 to limit the amount of fees charged for copies of recorded documents to recoupment of direct and indirect costs actually incurred in producing copies. After the lawsuit was filed, the county reduced the first page rate from $10.00 to $7.50, purportedly as the result of staffing changes that reduced office overhead.

The trial court granted summary judgment in favor of the county, finding §27366 authorized the county to exercise discretion in setting fees, there was no showing the county abused that discretion, and the fees charged were reasonably related to the cost of producing copies.

The court of appeal affirmed, holding that §27366 authorized the county to set copy fees in an amount necessary to recover overhead and other operating cost incurred in the day-to-day operation of the recorder’s office, including staff salaries. Section 27366 provides that copy fees “shall be set by the board of supervisors in an amount necessary to recover the direct and indirect costs of providing the product or service or the cost of enforcing any regulation for which the fee or charge is levied.” Both the statutory definitions and related uses of the terms “direct costs” and “indirect costs” supported the county’s expansive interpretation of §27366, and indicated the Legislature’s intent for boards of supervisors to consider a wide range of indirect costs in setting copy fees. The term “indirect costs” has an established and generally accepted meaning in the context of governmental accounting and fee setting legislation, and includes overhead and operating costs not specifically associated with the production of copies. The county was thus not only authorized, but required to set copy rates that allowed it to recover its overhead and other operating costs. 

California Public Records Research, Inc. v. County of Yolo, Third DCA, October 17, 2016


Employer May be Liable for Refusing to Accommodate Employee's Request to Care for Disabled Family Member

An employer may be held liable under the Fair Employment and Housing Act (FEHA) for refusing to accommodate an employee’s request to modify his work schedule to permit him to care for a disabled family member.

Luis Castro-Ramirez worked as a delivery driver for Dependable Highway Express, Inc. (DHE). When he was hired, he advised the company that he had a handicapped child he needed to care for in the evenings and, for that reason, was unable to work shifts later in the day. For three years, supervisor Winston Bermudez accommodated Castro-Ramirez’s request. When supervisor Boldomero Munoz-Guillen replaced Bermudez, that accommodation ended. Munoz-Guillen consistently assigned Castro-Ramirez to afternoon delivery routes that interfered with his caretaking responsibilities. When Castro-Ramirez eventually refused to take an afternoon route, he was terminated. Castro-Ramirez sued DHE for disability discrimination, failure to prevent discrimination, and retaliation under FEHA, as well as wrongful termination in violation of public policy. The trial court granted summary judgment in favor of DHE.

Castro-Ramirez appealed, arguing he was protected under FEHA.

The court of appeal reversed, holding that the trial court erred in granting summary judgment to DHE. FEHA provides a cause of action for associational disability discrimination. FEHA defines “physical disability,” at Gov. Code §12926(o), as including a perception “that the person is associated with a person who has, or is perceived to have” a physical disability. Accordingly, when FEHA forbids discrimination based on a disability, it also forbids discrimination based on a person’s association with someone who has a disability. FEHA’s mandate for reasonable accommodations thus includes accommodations required by employee due to his or her association with a disabled person. Thus, Castro-Ramirez’s need for scheduling accommodation was relevant to and did not bar his discrimination claim. Because Castro-Ramirez presented facts giving rise to triable issues of facts as to both discriminatory motive and pretext and retaliation, the grant of summary judgment in favor of DHE was error. Justice Grimes dissented, declining to find that an employer could be held liable under FEHA for failing to accommodate a nondisabled employee’s need to care for a disabled family member.

Castro-Ramirez v. Dependable Highway Express, Inc.; Second District; August 30, 2016.


Lack of Evidence Dooms Public Record Act Copy Charge

California Public Records Research, Inc. (CPRR) sought a writ of mandate to compel the County of Stanislaus to reduce the fees it charged for copies of official records. CPRR alleged the fees of $3 for the first page and $2 for each subsequent page exceeded the county’s cost of providing the service and therefore violated Gov. Code §27366, which states that copying fees “shall be set by the board of supervisors in an amount necessary to recover the direct and indirect costs of providing the product or service...”

The trial court denied CPRR’s petition, finding, among other things, that the county’s board of supervisors did not abuse its discretion in setting the copying fees.

CPRR appealed, contending there was insufficient evidence to support a finding that the fees charged were based on the actual costs of providing the copies. CPRR contended, for example, that there was no evidence showing it cost the county $33 to provide a copy of a deed of trust on the standard 16-page form.

The court of appeal reversed, holding that the trial court erred in denying CPRR’s petition.

The evidence showed the board of supervisors based its decision on a 2001 study that estimated staff spent an average of three minutes processing a copy request and further estimated productive staff time cost the county about $0.99 per minute. Multiplying these two figures, the 2001 study estimated it cost the county an average of $2.97 to process a request for a copy of an official record.

The problem with the board’s decision was that the 2001 study presented information on a per document basis, not a per page basis. Despite the lack of cost-per-page information, the study recommended charging $3 for the first page copied and $2 for each subsequent page.

The absence of evidence addressing costs on a per page basis and the estimate that it cost the county $2.97 to process the average copy request compelled the court to conclude the record lacked evidence showing that the fees charged per page reflected the county’s actual costs. The information in the 2001 study affirmatively showed it did not take five minutes or cost the county $5 to provide a copy of a two-page document. This affirmative showing was coupled with a complete lack of evidence that it took 15 minutes or cost the county $15 to provide a copy of a seven-page document; that it took 45 minutes or cost the county $45 to provide a copy of a 22-page document; or that it took over an hour or costs the county $61 to provide a copy of a 30-page document.

The county’s board of supervisors abused its discretion when it set the copying fees. The court directed the trial court to vacate its decision denying the writ and to instead issue a writ of mandate directing the board to comply with §27366 by resetting the copying fees “in an amount necessary to recover the direct and indirect costs” of providing the copies.

California Public Records Research, Inc. v. Couinty of Stanislaus