CARRISALES v. DEPARTMENT OF CORRECTIONS

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Court of Appeal, Fourth District, Division 2, California.

Maryann CARRISALES, Plaintiff and Appellant, v. DEPARTMENT OF CORRECTIONS, et al., Defendants and Respondents.

No. E020163.

Decided: August 14, 1998

Mark John Tundis, Upland, for Plaintiff and Appellant. Patricia D. Barrett, Rancho Cucamonga, Franscell, Strickland, Roberts & Lawrence, Tuverson & Hillyard and Kathleen A. Stosuy, Santa Ana, for Defendants and Respondents.

OPINION

Maryann Carrisales and Dave Selkirk were coworkers employed by the Department of Corrections (Department).   Carrisales claims Selkirk repeatedly sexually harassed her.   She further claims their mutual supervisors, Rose Del Valle and Denise Powell, knew of the sexual harassment but failed to take immediate and appropriate corrective action in response to it.

Carrisales filed a complaint against the Department, Del Valle, Powell and Selkirk, alleging a single cause of action for sexual harassment in violation of the Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.).

The Department, Del Valle, and Powell filed a motion for summary judgment.   They argued there was no triable issue of fact with respect to whether they took immediate and appropriate corrective action.   Del Valle and Powell also argued an individual supervisor who did not personally sexually harass the plaintiff could not be personally liable for sexual harassment under FEHA.

Selkirk then filed his own motion for summary judgment, arguing a nonsupervisory coworker could not be personally liable for sexual harassment under FEHA.

The trial court granted the motion by the Department, Del Valle, and Powell, on the ground that they had taken immediate and appropriate corrective action;  it therefore did not rule on whether a nonharassing supervisor could be personally liable for sexual harassment under FEHA.   Thereafter, the trial court also granted Selkirk's motion.   Accordingly, it entered judgment in favor of all defendants.

Carrisales appeals, contending (1) there was a triable issue of fact with respect to whether the Department, Del Valle, and Powell took immediate and appropriate corrective action;  and (2) the trial court erred by ruling a nonsupervisory coworker cannot be liable for sexual harassment under FEHA.   In response, Del Valle and Powell contend they were entitled to summary judgment on the alternative ground that a nonharassing supervisor cannot be personally liable for sexual harassment under FEHA.

We will hold there was a triable issue of fact with respect to whether the Department, Del Valle, and Powell took immediate and appropriate corrective action.   Accordingly, we will reverse the judgment in favor of the Department.   However, we will also hold a supervisory employee who neither personally participated in sexual harassment, nor substantially assisted or encouraged it, cannot be held personally liable for it under FEHA.   Accordingly, we will affirm the judgment in favor of Del Valle and Powell.   Finally, we will hold a nonsupervisory coworker cannot be held liable for sexual harassment under FEHA.   Accordingly, we will affirm the judgment in favor of Selkirk.

I

FACTUAL BACKGROUND

The following facts are taken from the papers filed in support of and in opposition to the motion for summary judgment.   Consistent with the applicable standard of review (see part II, post ), we view the evidence in the light most favorable to the nonmoving party, i.e., Carrisales.

The Department had adopted and disseminated policies prohibiting sexual harassment.   It had also adopted grievance procedures designed to encourage victims of sexual harassment to come forward with complaints.

As part of their orientation, all new employees received four hours of training on the Department's sexual harassment policies.   In addition, all employees received annual training, including one hour of sexual harassment prevention training.   All employees received monthly in-service training bulletins, which listed the names and phone numbers of all current Equal Employment Opportunity Counselors and Committee members.   From time to time, the bulletins also included information about sexual harassment.

On or about March 16, 1994, the Department hired Carrisales to work in the Receiving Warehouse of the California Institution for Men (CIM) in Chino.

From March 16, 1994, through September 16, 1994, Del Valle was the immediate supervisor of both Carrisales and Selkirk.

 Selkirk was Carrisales's coworker.   He was never her supervisor,1 nor was he the supervisor of any other employee.   From the spring of 1993 through August 1994, he worked in the West Facility clothing room.   In August 1994, he was transferred to the Receiving Warehouse.

About two weeks after Carrisales started work, Selkirk began sexually harassing her.   This sexual harassment included touching Carrisales on or near her breasts, inner thigh, and buttocks;  hugging her;  standing so close to her that he was touching, or almost touching, her;  and preventing her from leaving by standing in her way, or by grabbing the roll bars of her forklift.

Selkirk also similarly sexually harassed another coworker, Peggy Lartz.

In June 1994, Lartz told Del Valle that Carrisales was concerned about Selkirk standing too close to her and that Carrisales perceived this as sexual harassment.   Del Valle talked to Selkirk;  she told him not to stand close to female employees “or act in a manner that could be perceived as inappropriate.”   Selkirk “seemed to understand the concern and was receptive to [the] discussion.”

Del Valle never observed Selkirk acting inappropriately.   After June 1994, she received no more complaints about him.   Because there had been no previous complaints, and because she received no subsequent complaints, Del Valle believed there was no need for any further disciplinary action.

On July 12, 1994, Del Valle held a sexual harassment prevention training session, which Selkirk attended.

On or about September 16, 1994, Del Valle left CIM. On October 3, 1994, Denise Powell took her place as the immediate supervisor of both Carrisales and Selkirk.

Powell never observed Selkirk behaving inappropriately.   Until November 17, 1994, Powell received no complaints about Selkirk's behavior.

On or about November 17, 1994, Lartz told Powell that Carrisales “was having a problem” with Selkirk.   That same day, Powell interviewed Carrisales.   The next day, she interviewed Selkirk.   She told him his behavior “would not be tolerated,” and, if it continued, he would be disciplined.   Selkirk seemed “receptive.”   Powell documented Carrisales's concerns in a memo to one of her supervisors.

On November 22, 1994, Selkirk came out of a restroom with his pants down around his thighs.   Although his underwear was on, he appeared to have an erection.   Carrisales yelled, “Dave, what are you doing?”   He replied, “I am losing my britches.   Would you like to help me pick them up?”

On December 13, 1994, as a result of Lartz's earlier report, Powell had Selkirk attend another sexual harassment prevention training session.

On or about December 14, 1994, Lartz told Powell that Carrisales “still had a problem” with Selkirk.   She related the “britches” incident.   Powell interviewed Carrisales, who confirmed the “britches” incident;  she did not mention any other new incidents.   Powell immediately reported the matter to her supervisor.   Together, Powell and her supervisor determined to transfer Selkirk.

On December 15, 1994, Selkirk was transferred.   He never worked with Carrisales again.   Between December 23, 1994, and July 27, 1995, the Department conducted a formal investigation into Carrisales's complaints, which included interviews with 16 employees and inmates.   As a result of its investigation, the Department determined to fire Selkirk.   In lieu of being fired, he was allowed to retire.

II

STANDARD OF REVIEW

“A ‘motion for summary judgment shall be granted if all of the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.   In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, ․ and all inferences reasonably deducible from the evidence․’  (Code Civ. Proc., § 437c, subd. (c).)”  (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 464, 63 Cal.Rptr.2d 291, 936 P.2d 70, fn. omitted.)

“This court exercises its independent judgment as to the legal effect of the undisputed facts disclosed by the parties' papers.  [Citations.]   In so doing, we apply the same three-step analysis required of the trial court:  We first identify the issues framed by the pleadings, since it is these allegations to which the motion must respond.   Secondly, we determine whether the moving party has established facts which negate the opponents' claim and justify a judgment in the movant's favor.   Finally, if the summary judgment motion prima facie justifies a judgment, we determine whether the opposition demonstrates the existence of a triable, material factual issue.  [Citation.]”  (Torres v. Reardon (1992) 3 Cal.App.4th 831, 836, 5 Cal.Rptr.2d 52.)

III

FAILURE TO TAKE IMMEDIATE AND APPROPRIATE CORRECTIVE ACTION

Carrisales contends there was a triable issue of fact with respect to whether the Department, Del Valle, and Powell took immediate and appropriate corrective action.

The relevant portion of FEHA provides:  “It shall be an unlawful employment practice ․ [¶] ․ For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of ․ sex, ․ to harass an employee or applicant.   Harassment of an employee or applicant by 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.   An entity shall take all reasonable steps to prevent harassment from occurring.”  (Gov.Code, § 12940, subd. (h)(1).)

Here, it is indisputable that the Department, through Del Valle and Powell, its agents and/or supervisors, had actual knowledge of Selkirk's sexually harassing conduct.   The crucial issue, then, is whether they took immediate and appropriate corrective action.   We have found no California cases dealing with this issue.   We therefore turn to federal case law.  “[C]ourts of this state have relied upon federal authority interpreting title VII in determining the meaning of analogous provisions of the FEHA. [Citations.]”  (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 498, 59 Cal.Rptr.2d 20, 926 P.2d 1114.)   Under federal law, an employer cannot be held liable for sexual harassment by a nonsupervisory employee unless it knew or should have known of the harassment and failed to take immediate and appropriate corrective action.  (Morrison v. Carleton Woolen Mills, Inc. (1st Cir.1997) 108 F.3d 429, 437;  Torres v. Pisano (2d Cir.1997) 116 F.3d 625, 638, cert. den.  522 U.S. 997 [118 S.Ct. 563, 139 L.Ed.2d 404];   Bonenberger v. Plymouth Tp. (3d Cir.1997) 132 F.3d 20, 26;  Reinhold v. Com. of Va. (4th Cir.1998) 135 F.3d 920, 929;  Hirras v. National R.R. Passenger Corp. (5th Cir.1996) 95 F.3d 396, 399;  Wathen v. General Elec. Co. (6th Cir.1997) 115 F.3d 400, 407;  Zimmerman v. Cook County Sheriff's Dept. (7th Cir.1996) 96 F.3d 1017, 1018;  Todd v. Ortho Biotech, Inc. (8th Cir.1998) 138 F.3d 733, 736, cert. pet. filed Jul. 23, 1998;  Yamaguchi v. U.S. Dept. of the Air Force (9th Cir.1997) 109 F.3d 1475, 1483;  Hirase-Doi v. U.S. West Communications, Inc. (10th Cir.1995) 61 F.3d 777, 782;  Allen v. Tyson Foods, Inc. (11th Cir.1997) 121 F.3d 642, 646;  29 C.F.R. § 1604.11(d).)   In sum, these courts “uniformly judg[e] employer liability for co-worker harassment under a negligence standard․”   (Faragher v. City of Boca Raton (1998) 524 U.S. 775, ----, 118 S.Ct. 2275, 2289, 141 L.Ed.2d 662, ----.)

An employer's “remedial actions insulate it from Title VII liability only if they were ‘reasonably calculated to prevent further harassment.’  [Citation.]”  (Bonenberger v. Plymouth Tp., supra, 132 F.3d at p. 26, quoting Knabe v. Boury Corp. (3d Cir.1997) 114 F.3d 407, 412;  accord Adler v. Wal-Mart Stores, Inc. (10th Cir.1998) 144 F.3d 664, 676;  Yamaguchi v. U.S. Dept. of the Air Force, supra, 109 F.3d at p. 1483;  Davis v. Tri-State Mack Distributors, Inc. (8th Cir.1992) 981 F.2d 340, 343.)

“Whether an employer's response to discriminatory conduct is sufficient ‘will necessarily depend on the particular facts of the case - the severity and persistence of the harassment, and the effectiveness of any initial remedial steps.’  [Citation.]”  (Hirras v. National R.R. Passenger Corp., supra, 95 F.3d at pp. 399-400, quoting Waltman v. International Paper Co. (5th Cir.1989) 875 F.2d 468, 479.)  “The employer is, of course, obliged to respond to any repeat conduct;  and whether the next employer response is reasonable may very well depend upon whether the employer progressively stiffens its discipline, or vainly hopes that no response, or the same response as before, will be effective.   Repeat conduct may show the unreasonableness of prior responses.   On the other hand, an employer is not liable, although a perpetrator persists, so long as each response was reasonable.”  (Adler v. Wal-Mart Stores, Inc., supra, 144 F.3d at p. 676.)

In Intlekofer v. Turnage (9th Cir.1992) 973 F.2d 773, the victim, Intlekofer, provided her employer with a series of written reports detailing various hostile acts by Cortez, a coworker, which were later found to constitute sexual harassment.   In response to these reports, Cortez's supervisors repeatedly counseled him, and threatened him with further discipline if the alleged behavior did not stop.  (Id., at pp. 775-778.)   After a bench trial, the trial court ruled the employer was not liable because it acted promptly and reasonably.  (Id., at p. 775.)

The court of appeals reversed;  it held the employer was not relieved of liability, because “it did not respond in a manner likely to put a stop to Cortez's unlawful behavior.   Specifically, the [the employer] failed to take more severe disciplinary measures against Cortez once it learned that his harassing behavior had not stopped.”  (Intlekofer v. Turnage, supra, 973 F.2d at p. 779.)   It explained:  “[C]ounseling sessions are not necessarily insufficient.  [Citation.]   Indeed, an oral rebuke may be very effective․  [H]owever, ․ counseling is sufficient only as a first resort.   If the harassment continues, limiting discipline to further counseling is inappropriate.   Instead, the employer must impose more severe measures in order to ensure that the behavior terminates.”  (Id., at pp. 779-780.) 2

 Here, a reasonable jury could find Del Valle and Powell did not respond adequately to the reported sexual harassment.   Although Del Valle did reprimand Selkirk, she evidently did not make any written memorandum of the incident.   Also, even though she knew Carrisales was reluctant to come forward and report sexual harassment, she evidently did not follow up to make sure Selkirk did not reoffend.3  Thus, she arguably violated the Department's own policies, which instructed supervisors dealing with sexual harassment allegations to “[e]nsure all pertinent information has been documented and forwarded to appropriate administrative personnel”;  to “[m]aintain a copy for your personal files”;  to “[a]sk the employee to advise of any subsequent harassment and/or retaliation”;  and to “[m]onitor the work environment to ensure that the discrimination has stopped ․”  (Emphasis in original.)

The fact that the Department had adopted written sexual harassment policies and grievance procedures is entitled to some weight.   Here, however, given its knowledge that Selkirk was harassing Carrisales despite these policies, and its apparent failure to follow its own policies after gaining this knowledge, this fact alone does not exonerate it.  (Cf. Bouton v. BMW of North America, Inc. (3rd Cir.1994) 29 F.3d 103, 110 [“an effective grievance procedure - one that is known to the victim and that timely stops the harassment - shields the employer from Title VII liability for a hostile environment.”], italics added.)

Because of Del Valle's mistakes, her successor, Powell, apparently remained unaware of Selkirk's background.   She treated him as if he were a first-time offender.   She counseled him;  she advised him his behavior was inappropriate, and, if he did not stop it, he would be disciplined.   But this was merely what Del Valle had already done, and it had already proved ineffective.   Indeed, Selkirk may have taken the failure to impose actual discipline as a sign that all such warnings were mere bluster.   Thus, Powell may have inadvertently encouraged him to engage in further sexual harassment.   Certainly a jury could so conclude.

Powell, at least, did document the incident.   However, there is no evidence that she encouraged Carrisales to report future incidents or that she made an affirmative effort to monitor the interaction between Selkirk and Carrisales.   If Selkirk had known he was being watched, he might have kept his pants up.   Thus, a jury could find Powell's failure to take these steps meant her response was not reasonably calculated to stop the harassment.

We hasten to add a jury could also find to the contrary.   However, because there was a triable issue of fact on this point, the trial court erred in granting summary judgment.

IV

A NONHARASSING SUPERVISORY EMPLOYEE'S PERSONAL LIABILITY FOR SEXUAL HARASSMENT UNDER FEHA

In part III, ante, we held the Department, Del Valle, and Powell were not entitled to summary judgment on the theory that they took immediate and appropriate corrective action.   Del Valle and Powell alternatively contend, however, they were entitled to summary judgment on the theory that a nonharassing supervisor cannot be personally liable for sexual harassment under FEHA.

Carrisales responds by noting the trial court did not grant summary judgment on this theory;  she argues it therefore “is not at issue in the present appeal.”   She is wrong.  “ ‘There is perhaps no rule of review more firmly established than the principle that a ruling or decision correct in law will not be disturbed on appeal merely because it was given for the wrong reason.   If correct upon any theory of law applicable to the case, the judgment will be sustained regardless of the considerations that moved the lower court to its conclusion.’ ”  (Tippett v. Terich (1995) 37 Cal.App.4th 1517, 1539, 44 Cal.Rptr.2d 862, quoting Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 568, 253 Cal.Rptr. 693, 764 P.2d 1070;  see also Nicholson v. Lucas (1994) 21 Cal.App.4th 1657, 1664, 26 Cal.Rptr.2d 778 [applying rule in affirming summary judgment].)  As already noted, we review an order granting a motion for summary judgment de novo.   Accordingly, as long as this theory was raised below so that Carrisales had an adequate opportunity to present evidence and argument in opposition (see Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 860, 62 Cal.Rptr.2d 16;  Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 70-71, 15 Cal.Rptr.2d 598), we may reach it.

Del Valle and Powell moved for summary judgment on the ground, among others, that:  “Plaintiff has not contended that either defendant Powell or defendant Del Valle created the sexually hostile work environment or personally sexually harassed plaintiff.  [¶] Therefore, ․ plaintiff cannot prove the essential elements of her claim against the individual supervisory defendants.”   In support of their motion for summary judgment, Del Valle and Powell showed that neither of them had personally sexually harassed Carrisales.4  In response, Carrisales argued the individual supervisors, as well as the Department, were liable for failing to take immediate and appropriate corrective action.   Clearly, the present theory was raised below, and Carrisales had an opportunity to respond to it.   We therefore turn to the merits.

Three California cases govern a supervisory employee's personal liability for sexual harassment under FEHA. In the earliest of the three, Page v. Superior Court (1995) 31 Cal.App.4th 1206, 37 Cal.Rptr.2d 529, the plaintiff's supervisor had sexually harassed her.  (Id., at p. 1209, 37 Cal.Rptr.2d 529.)   The Court of Appeal for the Third District held the supervisor could be personally liable.   (Id., at pp. 1210-1216, 37 Cal.Rptr.2d 529.)   It reasoned:  “Under FEHA, it is an unlawful employment practice for ‘an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person ’ to harass an employee or applicant because of sex.  [Citation.]”  (Id., at p. 1210, 37 Cal.Rptr.2d 529.)  “Consistently, the enforcement provisions of FEHA include a ‘person’ among those who may be accused in an FEHA action.”  (Id., at pp. 1211-1212, 37 Cal.Rptr.2d 529.)   Moreover, FEHA's “policy of deterring and eliminating harassment and retaliation in employment is served by holding a supervisor liable for his own acts․”  (Id., at p. 1213, 37 Cal.Rptr.2d 529.) 5

Shortly afterward, in Matthews v. Superior Court (1995) 34 Cal.App.4th 598, 40 Cal.Rptr.2d 350, the Court of Appeal for the Second District, Division Five, followed Page.   It held the plaintiff's immediate supervisors, who had sexually harassed him, could be personally liable for sexual harassment (Gov.Code, § 12940, subd. (h));  higher-level management employees, who had not sexually harassed him, could be personally liable for aiding and abetting sexual harassment (Gov.Code, § 12940, subd. (g)).  (Matthews v. Superior Court, supra, at pp. 602-606, 40 Cal.Rptr.2d 350.)

Finally, in Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 58 Cal.Rptr.2d 308, the same court that had decided Matthews held:  “[A] nonharassing supervisor, who fails to take action to prevent sexual harassment, is not personally liable for sexual harassment under [FEHA]․”  (Id., at p. 1322, 58 Cal.Rptr.2d 308;  see generally id., at pp. 1326-1331, 58 Cal.Rptr.2d 308.)   It explained:  “The case and statutory authority set forth three clear rules.   First, under Page, a supervisor who personally engages in sexually harassing conduct is personally liable under the FEHA.   Second, under Matthews, if the supervisor participates in the sexual harassment or substantially assists or encourages continued harassment, the supervisor is personally liable under the FEHA as an aider and abettor of the harasser.   Third, under the FEHA, the employer is vicariously and strictly liable for sexual harassment by a supervisor.”   In this case, however, we are concerned with a nonharassing second-tier supervisor who fails to take action when an employee complains to the nonharassing second-tier supervisor of sexual harassment by the employee's immediate supervisor.

“Sound policy reasons exist for treating such a nonharassing supervisor differently than a harassing supervisor.   Individual supervisory employees should be placed at risk of personal liability for personal conduct constituting sexual harassment, either directly as the actual harasser or indirectly as an aider and abettor of the harasser.   Such individual supervisory employees should not be placed at risk of personal liability, however, for personnel management decisions which have been delegated to the supervisor by the employer, such as deciding whether to investigate or take action on a complaint of sexual harassment.”  (Fiol v. Doellstedt, supra, 50 Cal.App.4th at pp. 1327-1328, 58 Cal.Rptr.2d 308.)   The court also rejected seriatim the theories that the nonharassing supervisor could be held liable, based solely on inaction, as (1) an aider and abettor of the harasser (id., at pp. 1325-1326, 58 Cal.Rptr.2d 308), (2) an aider and abettor of the employer (id., at p. 1326, 58 Cal.Rptr.2d 308), or (3) an agent of the employer (id., at pp. 1328-1331, 58 Cal.Rptr.2d 308).

While this appeal was pending, the California Supreme Court held an individual supervisor cannot be liable for discrimination under FEHA. (Reno v. Baird (1998) 18 Cal.4th 640, 76 Cal.Rptr.2d 499, 957 P.2d 1333.)   As it noted, “Although the FEHA prohibits harassment as well as discrimination, it treats them differently.   It prohibits ‘an employer ․ or any other person ’ from harassing an employee.  (§ 12940, subd. (h)(1), italics added.)  ․ The FEHA, however, prohibits only ‘an employer’ from engaging in improper discrimination.  (§ 12940, subd. (a).)”  (Id., 76 Cal.Rptr.2d at p. 644, 957 P.2d at p. 1335.)   Thus, the court expressly cautioned, “This case involves a claim for discrimination, not harassment.   We express no opinion regarding individuals' liability for harassment.”  (Id., at p. 645, fn. 2, 957 P.2d at p. 1336, fn. 2, parentheses omitted.)

Although Reno is not directly controlling here, one portion of it is instructive.   The court explained an individual supervisor could be held liable for harassment, although not for discrimination, because “ ‘harassment consists of a type of conduct not necessary for performance of a supervisory job.   Instead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.   Harassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job.  [Citations.]’ ”  (Reno v. Baird, supra, 18 Cal.4th at pp. 645-646, 76 Cal.Rptr.2d 499, 957 P.2d 1333, quoting Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63, 53 Cal.Rptr.2d 741.)

“ ‘No supervisory employee needs to use slurs or derogatory drawings, to physically interfere with freedom of movement, to engage in unwanted sexual advances, etc. in order to carry out the legitimate objectives of personnel management.   Every supervisory employee can insulate himself or herself from claims of harassment by refraining from such conduct.   An individual supervisory employee cannot, however, refrain from engaging in the type of conduct which could later give rise to a discrimination claim.   Making personnel decisions is an inherent and unavoidable part of the supervisory function.   Without making personnel decisions, a supervisory employee simply cannot perform his or her job duties.’ ”  (Reno v. Baird, supra, 18 Cal.4th at p. 646, 76 Cal.Rptr.2d 499, 957 P.2d 1333, quoting Janken v. GM Hughes Electronics, supra, 46 Cal.App.4th at p. 64, 53 Cal.Rptr.2d 741.)

 This discussion appears to assume a supervisor can be held liable for harassment only when based on his or her own acts of harassment.   It suggests a nonharassing supervisor cannot be held liable for harassment based on failure to take reasonable and appropriate corrective action.   Making decisions about what corrective action, if any, to take in response to an employee's complaint is precisely the type of “ ‘inherent and unavoidable part of the supervisory function’ ” for which the Supreme Court was reluctant to hold an individual supervisor liable.

Here, Del Valle and Powell did not personally participate in any sexual harassment;  neither did they substantially assist or encourage any sexual harassment (except by inaction).   We conclude that, under Fiol, they cannot be held liable.   Thus, the trial court properly granted summary judgment in their favor.

V

A NONSUPERVISORY EMPLOYEE'S PERSONAL LIABILITY FOR SEXUAL HARASSMENT UNDER FEHA

 Carrisales contends the trial court erred by ruling a nonsupervisory coworker cannot be liable for sexual harassment under FEHA.

As already noted, FEHA provides:  “It shall be an unlawful employment practice ․ [¶] ․ For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of ․ sex, ․ to harass an employee or applicant.”  (Gov.Code, § 12940, subd. (h)(1).)

Carrisales relies on the reference to “any other person.”   This language, however, does not stand alone.   The complete sentence makes it unlawful for an employer or “any other person” to harass “an employee or applicant.”  (Italics added.)   Thus, we believe FEHA requires an employment relationship between the harasser and the harassee.   Such a relationship arguably exists between a supervisory employee and an employee he or she supervises.  (See, e.g., Matthews v. Superior Court, supra, 34 Cal.App.4th at pp. 599-606, 40 Cal.Rptr.2d 350 [holding harassing supervisor personally liable based on “any other person” language];  Page v. Superior Court, supra, 31 Cal.App.4th at pp. 1210-1216, 37 Cal.Rptr.2d 529 [same].)  However, it does not exist between coworkers.   Thus, although Selkirk indubitably was a “person,” Carrisales was not, as to him, an “employee.”

Our interpretation is supported by the additional provision that coworker harassment “shall be unlawful” if the employer knows or should know of it and fails to take immediate and appropriate corrective action.   If the employer had no reason to know of the coworker harassment, or if the employer knows and takes immediate and appropriate corrective action, there is no unlawful employment practice at all;  neither the employer nor the coworker can be liable.   Most important, we do not believe the Legislature intended the harassing coworker's liability to turn on the employer's knowledge and failure to take action.   This provision therefore suggests the coworker is never liable, regardless of the employer's knowledge and failure to take action.

In Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 262 Cal.Rptr. 842, the court suggested, in dictum, a nonsupervisory coworker could be personally liable under the retaliation provision of FEHA.   As it noted, the retaliation provision prohibits “any ․ person” from retaliating against any “person” who has opposed or complained about a violation of FEHA.  (Gov.Code, § 12940, subd. (f).)  By contrast, the sexual harassment provision at issue here prohibits “any ․ person” from harassing “an employee.”   Accordingly, Fisher, to the extent it is apposite at all, inferentially supports our interpretation.

 Any other interpretation would wrench FEHA free from its employment discrimination emplacement, leaving it a loose cannon careening about the legal deck.   For example, presumably a customer would be personally liable under FEHA for sexually harassing a fast-food cashier; 6  a construction worker would be personally liable under FEHA for sexually harassing an office worker who walks past his or her construction site every day to go to lunch.7  We do not for one moment mean such sexual harassment is legally (or morally) acceptable.   The victim of sexual harassment by a coworker, a customer, a supplier or a stranger could seek a harassment injunction under Code of Civil Procedure section 527.6, as well as damages for battery, intentional infliction of emotional distress, and/or invasion of privacy.   Even more theories of liability may be available, depending on the facts of the case and the creativity of the victim's lawyer.   We simply mean the victim's legal remedy does not lie under FEHA.

Our interpretation is further supported by federal authority.   The federal appellate courts have unanimously held an individual employee - whether supervisory or nonsupervisory - cannot be personally liable for hostile work environment sexual harassment under Title VII. (Tomka v. Seiler Corp. (2d Cir.1995) 66 F.3d 1295, 1313-1317;  Sheridan v. E.I. DuPont de Nemours and Co. (3d Cir.1996) 100 F.3d 1061, 1077-1078, cert. den. (1997) 521 U.S. 1129 [117 S.Ct. 2532, 138 L.Ed.2d 1031];  Grant v. Lone Star Co. (5th Cir.1994) 21 F.3d 649, 651-653, cert. den. 513 U.S. 1015 [115 S.Ct. 574, 130 L.Ed.2d 491];  Wathen v. General Elec. Co., supra, 115 F.3d at p. 403-406;  Williams v. Banning (7th Cir.1995) 72 F.3d 552, 553-555;  Spencer v. Ripley County State Bank (8th Cir.1997) 123 F.3d 690, 692;  Miller v. Maxwell's Intern. Inc. (9th Cir.1993) 991 F.2d 583, 587-588, cert. den. sub nom. Miller v. La Rosa (1994) 510 U.S. 1109 [114 S.Ct. 1049, 127 L.Ed.2d 372];  Haynes v. Williams (10th Cir.1996) 88 F.3d 898, 899-901;  Cross v. State of Ala. (11th Cir.1995) 49 F.3d 1490, 1504;  Gary v. Long (D.C.Cir.1995) 59 F.3d 1391, 1399, cert. den. sub nom. Gary v. Washington Metropolitan Area Transit Authority, 516 U.S. 1011 [116 S.Ct. 569, 133 L.Ed.2d 493];  see also Morrison v. Carleton Woolen Mills, Inc., supra, 108 F.3d at p. 444 [leaving question open];  but see Reinhold v. Com. of Va., supra, 135 F.3d at p. 934, fn. 4 [discussing the state of the issue in the Fourth Circuit].)

We recognize that the relevant language of Title VII differs from that of FEHA.   For example, Title VII imposes liability for sexual harassment on an “employer” (42 U.S.C. § 2000e-2(a)), defined as “a person engaged in an industry affecting commerce who has fifteen or more employees ․ and any agent of such a person.”  (42 U.S.C. § 2000e(b).)   Thus, Title VII lacks the “any other person” language on which Carrisales relies.   We also recognize that the California appellate courts have held that a supervisory employee can be personally liable for sexual harassment under FEHA based on its “any other person” language.   Nevertheless, once we conclude, based on the language of FEHA, that it imposes no liability for sexual harassment on an individual nonsupervisory employee, we find nothing in the federal decisions that would counsel otherwise.

For the sake of completeness, we note the Fair Employment and Housing Commission has repeatedly ruled that a supervisory employee may be personally liable for sexual harassment under FEHA.   It reasons as follows:  First, FEHA defines “employer” as “any person acting as an agent of an employer, directly or indirectly” (Gov.Code, §§ 12926, subd. (d), 12940, subd. (h)(3)(A));  a supervisor is an agent of the employer, and hence an “employer.”   Second, and alternatively, a supervisor is “any other person.”  (DFEH v. Peverly (1991) No. 91-05, FEHC Precedential Decs.1990-1991, CEB 6, p. 6;  DFEH v. Madera County (1990) No. 90-03, FEHC Precedential Decs.1990-1991, CEB 1, pp. 27-28;  DFEH v. Huncot Properties (1988) No. 88-21, FEHC Precedential Decs.1988-1989, CEB 8, pp. 12-13;  DFEH v. Del Mar Avionics (1985) No. 85-19, FEHC Precedential Decs.1984-1985, CEB 16, pp. 24-25;  DFEH v. La Victoria Tortilleria, Inc. (1985) No. 85-04, FEHC Precedential Decs.1984-1985, CEB 13, p. 19;  see also DFEH v. Right Way Homes, Inc. (1990) No. 90-16, FEHC Precedential Decs.1990-1991, CEB 5.1, p. 15 [racial harassment].)

Although “the [FEHC]'s interpretation of FEHA is entitled to consideration because the commission is the agency charged with the statute's administration,” the “[f]inal responsibility for interpreting the law rests with the courts rather than with administrative agencies.  [Citation.]”   (Smith v. Fair Employment & Housing Com. (1996) 12 Cal.4th 1143, 1157, 51 Cal.Rptr.2d 700, 913 P.2d 909, cert. den.  (1997) 521 U.S. 1129 [117 S.Ct. 2531, 138 L.Ed.2d 1031].)  The FEHC decisions all involved supervisory employees;  no question regarding the liability of a nonsupervisory employee was presented.   As we have already discussed, even assuming a supervisory employee may be liable as an “other person,” a nonsupervisory employee need not be.   If, however, the FEHC decisions could be read as applying to nonsupervisory employees, we would decline to follow them.

We conclude the trial court properly granted summary judgment for Selkirk on the ground that he was Carrisales's coworker and not her supervisor.

VI

DISPOSITION

The judgment in favor of the Department is reversed.   Carrisales shall recover costs on appeal against the Department.

The judgments in favor of Del Valle, Powell, and Selkirk are affirmed.   Del Valle, Powell, and Selkirk shall recover costs on appeal against Carrisales.

FOOTNOTES

1.   In the trial court, Carrisales argued there was a triable issue of fact with respect to whether Selkirk supervised her.   The evidence she offered in support was that:  “He was to come out on the floor and second count food orders that I had already pulled.   And to receive trucks if I had too many.”   These are the duties of a coworker, not a supervisor.   We find no triable issue of fact on this point.

2.   The lead opinion in Intlekofer was authored by a single judge.   A second judge, however, concurring in the result, agreed “that the means undertaken by the [employer] ․ were insufficient to remedy the incidents of sexual harassment․”  (Intlekofer v. Turnage, supra, 973 F.2d at p. 781.)   He also agreed that the applicable standard “requires ․ that the response by an employer increase in severity if initial attempts do not eliminate the abuse.”  (Id., at p. 783.)   Accordingly, we view these points as a holding of the court.

3.   The Department asserts “Del Valle paid closer attention to the interaction between Mr. Selkirk and Carrisales from June 1994 until she left [CIM] in September 1994․”   The portions of the record which the Department cites do not support this assertion, and we find no other evidentiary support for it.

4.   Carrisales did not dispute the fact that Del Valle had not sexually harassed her.Carrisales did purport to dispute the fact that Powell had not sexually harassed her.   Powell, however, submitted a declaration stating she had never sexually harassed Carrisales.   In response, Carrisales submitted evidence that, after Selkirk had been transferred, she asked Powell for help;  Powell ordered her to tell two higher-ranking employees to “get off [their] fucking asses” and help her.   Carrisales believed Powell was angry because she had gotten Selkirk transferred.The trial court ruled this was not evidence that Powell had sexually harassed her.   Carrisales has not challenged this ruling.   In any event, we agree with it.   Carrisales had pleaded a sexual harassment claim (Gov.Code, § 12940, subd. (h)), not a retaliation claim (Gov.Code, § 12940, subd. (f)).  This evidence was irrelevant to show sexual harassment.

5.   The Page court pointed out - not just once, but twice - its holding did not necessarily apply to a nonsupervisory employee.  (Page v. Superior Court, supra, 31 Cal.App.4th at pp. 1210, 1212, 37 Cal.Rptr.2d 529.)   This will be significant when we discuss the summary judgment in favor of Selkirk, in part V, post.

6.   We express no opinion on whether the cashier's employer would be liable under FEHA if it knew or should have known of the customer's conduct, yet failed to take immediate and appropriate corrective action.  (See, e.g., Folkerson v. Circus Circus Enterprises, Inc. (9th Cir.1997) 107 F.3d 754, 755-756 [under Title VII, casino could be liable for customer's sexual harassment of mime;  but evidence showed casino took reasonable steps to protect mime from sexual harassment by customers].)

7.   The employer is not liable unless the harassment occurs in a “work-related” context.  (Capitol City Foods, Inc. v. Superior Court (1992) 5 Cal.App.4th 1042, 1047-1050, 7 Cal.Rptr.2d 418.)   It is less clear that this limitation would apply to the individual harasser.

RICHLI, Associate Justice.

RAMIREZ, P.J., and HOLLENHORST, J., concur.