Lee v. YRC, Inc. CA4/1

Filed 2/17/21 Lee v. YRC, Inc. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THOMAS LEE, D076729

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2018-
00004806-CU-OE-CTL)
YRC, INC. et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of San Diego County,
Kenneth J. Medel, Judge. Affirmed.

Law Office of Bryce A. Dodds and Bryce A. Dodds, for Plaintiff and
Appellant.
Morgan, Lewis & Bockius; Jason S. Mills and Julianne G. Park for
Defendants and Respondents.
The trial court granted summary judgment for defendants YRC, Inc.
and Robert Hagey on plaintiff Thomas Lee’s claims for sex discrimination,
harassment, and retaliation. We affirm.
 BACKGROUND
Facts
Lee is a truck driver and dock worker who began working at YRC, a
large trucking firm, in May 2016. Lee alleges that Hagey, his supervisor,
sexually harassed him while working on the docks of the YRC truck terminal.
He also complains about offensive, sex-related comments made by coworkers
as a result of Hagey’s actions, and alleges that Hagey retaliated against him.
Actions by Hagey and Coworkers
In the spring of 2017, Hagey punched Lee on the shoulder. Lee told
Hagey not to touch him. About a month later, Hagey punched Lee’s coworker
on the shoulder and punched Lee on the shoulder a second time. Lee
reminded Hagey that he had already told him not to touch him. On July 20,
2017, Hagey hit Lee on the buttocks with a clipboard while making a
comment about work. Lee asked Hagey twice, “What the fuck do you think
you’re doing?” Hagey said he meant nothing by it. Lee asked Hagey if he
would have hit his buttocks if he were a woman. Hagey said no.
Lee told his coworkers about being hit with the clipboard. The
coworkers began to make sexually tinged comments to Lee. These included:
“Oh, you have a nice ass;”
“Don’t bend over by [Hagey];”
“[Hagey’s] looking at your ass.”
When Lee bent over in the course of his work, a coworker said, “Damn,
now I know what [Hagey] was looking at.”
“Do I need to pat you on the ass to get you to come over here and do
this?”
“You look sad . . . You don’t miss [Hagey]?”

2
 When someone brought a can of nuts to work, coworkers referred to the
nuts with sexual connotations and asked if they were Lee’s or Hagey’s. Lee
was offended because it insinuated that he did not mind Hagey’s prior
behavior.
Hagey told Lee and a coworker to “get a room” when he saw them
working late into the night.
A customer outside the workplace also knew about the incident where

Hagey hit Lee with a clipboard.1
Lee said those were all the comments that he could remember at the
time of his deposition.
YRC’s Actions
John Meade was the manager at the terminal and at another terminal
in San Diego who oversaw YRC’s operations where Lee worked.
Lee told Meade about the clipboard incident and the earlier touchings.
In turn, Meade reported the complaint to YRC’s human resources
department, which then investigated the complaint. YRC disciplined Hagey
with a written performance note and corrective action letter, telling Hagey to
refrain from offensive or inappropriate conduct and requiring him to complete
a course in interpersonal skills. Hagey did not touch Lee again. Lee’s only
complaint about Hagey after the disciplinary action was that Hagey made the
comment to Lee and another employee to “get a room” when they were
working late one night.
Lee subsequently filed a grievance with his union complaining about
violence in the workplace and sexual harassment. The union determined no
further action was necessary because Hagey had already been disciplined.

1 Lee alleges in his brief that the customer made harassing comments to
him, but the record does not disclose the comments made or their nature.
Lee stated only that the customer was aware of the clipboard incident.
3
 Lee said he told the union shop steward about the comments that had
occurred after the clipboard incident, and he talked to Meade about the
comments when Meade was at the workplace. Lee, however, did not report
the comments to the human resources department. Meade acknowledged
that the comments Lee complained of were or could be sexual in nature, and
said that he would have addressed the issue if he had heard about the
comments.
A supervisor, “Paul,” was present when a worker made the comment
about patting Lee on the buttocks to get him to do some work. The
supervisor chastised the worker and told him that the comment was not
permitted in the workplace.
Guillermo Soriano replaced Meade as terminal manager. The
comments Lee complained of occurred before Soriano became the terminal
manager, so Soriano did not investigate those complaints. He stated he
never heard the offensive comments, but would have investigated them if he
had. Specifically, Soriano stated he would address a comment like, “you have
a nice ass,” because “[I]t’s not tolerated . . . . They have to be, you know,
respectful towards one another.”
Procedure
Lee filed an amended complaint alleging six causes of action: (1) Sex

Discrimination - Disparate Treatment (Gov. Code,2 § 12940, subd. (a)); (2)
Quid Pro Quo Sexual Harassment (§ 12940, subd. (j)); (3) Hostile Work
Environment (§ 12940, subd. (a)); (4) Retaliation (§ 12940, subd. (h)); (5)
Failure to Prevent Harassment, Discrimination, and Retaliation (§ 12940,
subd. (k)); and (6) Intentional Infliction of Emotional Distress.

2 Further statutory references are to the Government Code unless
otherwise specified.
4
 The court granted summary judgment on July 1, 2019, and entered
judgment on August 7, 2019.
Lee filed a timely appeal.
DISCUSSION
I
Standard of Review
We review a summary judgment or summary adjudication ruling de
novo to determine whether there is a triable issue as to any material fact.
(Code Civ. Proc., § 437c, subd. (c); Patterson v. Domino's Pizza, LLC (2014) 60
Cal.4th 474, 499–500.) We liberally construe the evidence presented in
opposition to the motion, with any doubts about the evidence resolved in
favor of the party opposing the motion. (Regents of University of California v.
Superior Court (2018) 4 Cal.5th 607, 618.) “We will affirm an order granting
summary judgment . . . if it is correct on any ground that the parties had an
adequate opportunity to address in the trial court. . . .” (Securitas Security
Services USA, Inc. v. Superior Court (2011) 197 Cal.App.4th 115, 120.) Our
review is limited, however, to issues that were adequately raised and legally
and factually supported in the appellant’s opening brief. (Meeks v. Autozone,
Inc. (2018) 24 Cal.App.5th 855, 879 (Meeks).)
With these standards in mind, we proceed to consider Lee’s claims.
II
Hostile Work Environment
To establish a hostile work environment sexual harassment claim, the
plaintiff must show unwelcome conduct because of sex or gender that was
“sufficiently severe or pervasive to alter the conditions of [his or] her
employment and create an abusive work environment.” (Lyle v. Warner
Brothers Television Productions (2006) 38 Cal.4th 264, 277, 279 (Lyle).) The

5
harassment “ ‘must be both objectively and subjectively offensive, one that a
reasonable person would find hostile or abusive, and one that the victim in
fact did perceive to be so.’ ” (Id. at p. 284.) “ ‘ “[W]hether an environment is
‘hostile’ or ‘abusive’ can be determined only by looking at all the
circumstances [including] the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.” ’ ” (Id. at p. 283.)
A. Same-Sex Discrimination
A plaintiff can demonstrate same-sex harassing behavior by showing
“direct comparative evidence about how the alleged harasser treated
members of both sexes in a mixed-sex workplace” or by showing harassment
“in such sex-specific and derogatory terms . . . as to make it clear that the

harasser is motivated by general hostility” to men.3 (Oncale v. Sundowner
Offshore Services, Inc. (1998) 523 U.S. 75, 80–81 (Oncale).) Lee alleges that
he was harassed based on his gender because Hagey said he would not hit a
woman on the buttocks and Soriano, while not tolerating profane or offensive
language at any time, seemed more sensitive to the use of such language
around women. To the extent Lee has shown different treatment of women
and men in the work place, he has not shown that the disparate treatment
resulted in terms and conditions of his work that were more adverse to men

3 We agree with Lee that sexual desire is not a necessary element of
gender discrimination. (§ 12940, subd. (j)(4)(C) [“Sexually harassing conduct
need not be motivated by sexual desire.”].)
6
than the terms and conditions for women.4 (Oncale, at p. 81; Kelley v. The
Conco Companies (2011) 196 Cal.App.4th 191, 203 (Kelley).)
Workplace harassment is not automatically “ ‘discrimination because of
sex merely because the words used have sexual content or connotations. “The
critical issue[ ] . . . is whether members of one sex are exposed to
disadvantageous terms or conditions of employment to which members of the
other sex are not exposed.” ’ [Citations.]” (Kelley, supra, 196 Cal.App.4th at
p. 204, emphasis added; Oncale, supra, 523 U.S. at p. 80.) “What matters . . .
is not whether the two sexes are treated differently in the workplace, but
whether one of the sex is treated adversely to the other sex in the workplace
because of their sex.” (Kelley, at p. 207; Oncale, at p. 80; Lyle, supra, 38
Cal.4th at pp. 279–280.)
Even if Lee has shown that coarse and vulgar language was used
around men more than around women, and that Hagey would not hit a
woman’s buttocks with a clipboard, he has not shown that the conduct and
vulgar language created disadvantageous terms and conditions for men to
which women were not exposed. (Oncale, supra, 523 U.S. at p. 80 [language
with sexual connotations insufficient to show workplace harassment]; Lyle,
supra, 38 Cal.4th at p. 282 [sexually coarse, offensive or vulgar language
insufficient for hostile workplace harassment].) Treating women more
politely than men is not an adverse employment action. “[G]enuine but
innocuous differences in the ways men and women routinely interact with
members of the same sex and of the opposite sex” do not create actionable
discrimination. (Oncale, at p. 81.)

4 Lee’s complaints that Hagey deprived him of overtime and did not give
him his preferred duties relate to Hagey’s alleged retaliation against Lee,
discussed post. These acts were not based on sex or gender and did not
involve disparate treatment based on gender.
7
 B. Severe or Pervasive Harassment
“To prevail on a hostile work environment claim . . . , an employee must
show that the harassing conduct was ‘severe enough or sufficiently pervasive
to alter the conditions of employment and create a work environment that
qualifies as hostile or abusive to employees because of their sex.’ [Citations.]”
(Hughes v. Pair (2009) 46 Cal.4th 1035, 1043 (Hughes); Lyle, supra, 38
Cal.4th at p. 283.) “Taken into account must be the surrounding
circumstances, such as the ‘ “ ‘frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an
employee's work performance.’ ” ’ [Citation.] Thus, ‘ “simple teasing, offhand
comments, and isolated incidents (unless extremely serious) will not amount
to discriminatory changes’ ” ’ in employment conditions. [Citation.]”
(Hughes, at p. 1042; Lyle, at p. 283.) Sporadic and isolated actions do not
state a claim for harassment. Harassment requires a “concerted pattern . . .
of a repeated, routine, or a generalized nature.” (Lyle, at p. 283.)
The behavior, moreover, must be objectively as well as subjectively
perceived as harassment. (Lyle, supra, 38 Cal.4th at p. 284.) The plaintiff
must show that a reasonable employee would have perceived the conduct and
comments as materially altering the terms and conditions of employment or
as seriously affecting the psychological well-being of reasonable employee.
(Hughes, supra, 46 Cal.4th at p. 1043; Lyle, at p. 284; Singleton v. United
States Gypsum Company (2006) 140 Cal.App.4th 1547, 1557 (Singleton)
[psychological well-being].)
When there has been no loss of tangible job benefits, the plaintiff must
make a “ ‘ “commensurately higher showing that the sexually harassing

8
conduct was pervasive and destructive of the working environment.” ’ ” (Lyle,
at p. 285.)
Lee has suffered no loss of tangible job benefits. He continues to work
at YRC with the same duties. He was not demoted; his pay has not been
reduced; he was not subject to discipline for his complaint about Hagey. He
has no plans to leave. Nonetheless, Lee states that the unwanted touching
and the subsequent comments by his coworkers have unreasonably interfered
with his work performance because he now experiences anxiety when
bending over for a pallet while working on the dock. His reaction does not
reflect a material change in the conditions of his employment. Acts that “do
no more than anger or upset an employee cannot properly be viewed as
materially affecting the terms, conditions, or privileges of employment and
are not actionable. . . .” (Yanowitz v. L'Oréal USA, Inc. (2005) 36 Cal.4th
1028, 1054 (Yanowitz).) A reasonable person would not perceive the conduct
as severe or pervasive harassment. (Lyle, supra, 38 Cal.4th at p. 283
[“annoying or ‘merely offensive’ comments in the workplace are not
actionable”]; Hughes, supra, 46 Cal.4th at pp. 1042–1043 [simple teasing not
sufficient for harassment].)
Comments made by men to men with sexual connotations have been
found to create a hostile work environment when the conduct as a whole was
far more severe and pervasive than here. (See Taylor v. Nabors Drilling
USA, LP (2014) 222 Cal.App.4th 1228; Singleton, supra, 140 Cal.App.4th
1547.) In Taylor, evidence supported a jury finding of severe and pervasive
harassment when supervisors used epithets and slurs about plaintiff’s
sexuality several times each day, urinated on the plaintiff, made comments
about ejaculating on him, and attempted or simulated masturbation around
him. (Taylor, at pp. 1234–1235 [facts], 1238–1240 [ruling].) Similarly, a

9
triable issue of fact of severe and pervasive harassment was found when
coworkers made sexually explicit comments and gestures of the plaintiff—a
heterosexual man—committing acts of homosexual sex, and having such acts
committed on him, “continuously, night after night.” (Singleton, at p. 1553.)
The conduct and comments here were not similarly pervasive or severe.
Lee has alleged vulgar and offensive conduct that was sporadic, not
severe, and not physically threatening. Lee compares his working conditions
here to the conditions in Caldera v. Department of Corrections &
Rehabilitation (2018) 25 Cal.App.5th 31, 38, where harassing comments were
found pervasive. In Caldera, the plaintiff’s supervisor mocked or mimicked
plaintiff, who stuttered, in front of other employees, including once over the
prison’s radio system broadcast to 50 employees, once in earshot of about 24
employees, and again at a supervisors’ training session. Senior officers
testified that mocking an employee was pervasive and reflected the culture of
the prison’s employees. (Id. at p. 35–36, 40.) The comments here were far
less pervasive than in Caldera.
Lee has not produced evidence of a triable issue that he was severely or
pervasively harassed because of his gender. The unwanted touching and
comments were offensive, but no reasonable person would find that they
materially altered the conditions of his employment, created a work
environment that qualified as hostile or abusive due to his gender, or
unreasonably interfered with his work performance or psychological well-
being. (See Hughes, supra, 46 Cal.4th at p. 1043; Lyle, supra, 38 Cal.4th at
p. 283; Singleton, supra, 140 Cal.App.4th at p. 1557.)

10
 III
Quid Pro Quo Sexual Harassment
Lee contends he stated a cause of action for quid pro quo sexual
harassment because YRC impliedly conditioned his continued employment on
Lee’s acceptance of sexually charged conduct and comments from his
supervisor and coworkers.
“A complainant establishes a case of quid pro quo sexual harassment by
showing that a supervisor ‘explicitly or implicitly condition[ed] a job, a job
benefit, or the absence of a job detriment, upon an employee's acceptance of
sexual conduct.’ ” (Holly D. v. California Institute of Technology (9th Cir.
2003) 339 F.3d 1158, 1170, fn. 15 (Holly D.); see also Hughes, supra, 46
Cal.4th at p. 1042 [quid pro quo is based on “a demand for sexual favors in
return for a job benefit”]; Mogilefsky v. Superior Court (1993) 20 Cal.App.4th
1409, 1414 (Mogilefsky) [quid pro quo may be alleged “where a term of
employment is conditioned upon submission to unwelcome sexual
advances”].) Quid pro quo harassment is necessarily limited to actions by a
supervisor with the ability to confer or withdraw an employment benefit or
detriment. (Holly D., at p. 1170.) A reasonable person would have to believe
that the plaintiff’s job depended on complying with the supervisor’s demands.
(Id. at p. 1173.)
Lee’s employment was not conditioned on acceptance of Hagey’s
touching of him. After Lee reported Hagey’s actions, Hagey was disciplined,
he did not touch Lee again, and Lee continued his employment at YRC
without demotion or other adverse employment action.
Lee contends that YRC required him to accept his coworkers’
statements as a condition of employment. However, he did not report the

11
comments to the human resources department. There is a factual dispute
whether Lee told Meade about the comments or not, which we must resolve
in Lee’s favor. Meade said he would address such issues if he heard about
them, however, and there is no evidence that an employee continued such
comments after being told to stop. When another supervisor, Paul, heard one
of the comments, he immediately told the coworker not to make such
comments. Lee has not shown that YRC would have required Lee to accept
“sexually charged conduct and comments” had he formally complained about
the comments when they occurred, because his prior complaint about Hagey
was investigated and the unwelcome conduct stopped.
IV
Sex Discrimination — Disparate Treatment
To prove disparate treatment caused by sex discrimination, Lee was
required to show that he was subjected to an adverse employment action, and
that his gender was a substantial motivating cause for the adverse action.
(Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 357 (Guz).) Lee has not
shown or otherwise produced evidence that he was subjected to any adverse
employment condition on the basis of his gender, as shown above. (See
section II.A., ante.)
V
Retaliation
To show retaliation, the employee must show that he engaged in
protected activity, the employer took an adverse employment action against
the employee, and there is a causal link between the adverse action and the
retaliatory motive. (Yanowitz, supra, 36 Cal.4th at p. 1042.) The protected
activity must be a substantial motivating factor for the retaliatory acts.
(Ibid.)

12
 Lee states that Hagey retaliated against him, after he filed a grievance
about getting hit with the clipboard, because he denied Lee overtime and
assigned him to work on the loading docks instead of driving a truck. Lee
further claims he had to file grievances to obtain his benefits of overtime and
truck work, which forced him to endure ongoing comments from coworkers
and caused him to adjust his work movement of bending over.
We conclude Lee has not met his burden of showing a substantial
adverse change in compensation or in terms, conditions or privileges of
employment in retaliation for his reporting of Hagey’s unwanted touching.
(Yanowitz, supra, 36 Cal.4th at p. 1054 [“[m]inor or relatively trivial actions
or conduct by employers and fellow employees” not adverse employment
action]; Meeks, supra, 24 Cal.App.5th at p. 879 [no tangible change in
employment conditions].); St. Myers v. Dignity Health (2019) 44 Cal.App.5th
301, 318 [manipulation of schedule that reduced plaintiff’s pay not an
adverse action].) “ ‘ “A change that is merely contrary to the employee’s
interests or not to the employee’s liking is insufficient.” [Citation.]
“ ‘ “[W]orkplaces are rarely idyllic retreats, and the mere fact that an
employee is displeased by an employer’s act or omission does not elevate that
act or omission to the level of a materially adverse employment action.” ’ ” ’ ”
(St. Myers, at p. 318.) “ ‘A change that is merely contrary to the employee’s
interests or not to the employee’s liking is insufficient’ ” to demonstrate an
adverse employment action. (Ibid.)
In light of the above considerations, we conclude Lee has not raised a
triable issue of fact with respect to retaliation.

13
 VI
Failure to Prevent Harassment, Discrimination, and Retaliation
“An employer is liable for harassment by a nonsupervisory employee, as
well as by a nonemployee, if the employer knew or should have known of the
harassing conduct and failed to take immediate and appropriate corrective
actions. [Citation.]” (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th
1307, 1313, fn. 7.) Because we conclude Lee has not shown a triable issue of
fact that he was harassed, discriminated against or retaliated against, he
cannot show that YRC failed to prevent those actions. Lee cannot recover for
failure to take steps to prevent discrimination or harassment because no
discrimination or harassment occurred. (See id. at p. 1314.)
VII
Intentional Infliction of Emotional Distress
The elements of intentional infliction of emotional distress include
extreme and outrageous conduct by the defendant and severe or extreme
emotional distress for the plaintiff. (Hughes, supra, 46 Cal.4th at pp. 1050–
1051.) Defendants’ actions were not severe or pervasive, much less
outrageous. Lee’s allegation that he suffered anxiety, stress, worry and
sleeplessness did not describe severe or extreme distress. (Hughes, supra, 46
Cal.4th at p. 1051 [“discomfort, worry, anxiety, upset stomach, concern, and
agitation” were not severe or enduring]; Wong v. Jing (2010) 189 Cal.App.4th
1354, 1377 [lost sleep, stomach upset, and generalized anxiety not severe or
enduring].)

14
 VIII
Punitive Damages
Punitive damages may be awarded “ ‘where it is proven by clear and
convincing evidence that the defendant has been guilty of oppression, fraud,
or malice.’ [Citation.] ‘Malice’ is defined as intentional injury or ‘despicable
conduct which is carried on by the defendant with a willful and conscious
disregard of the rights or safety of others.’ [Citation.] ‘Oppression’ is defined
as ‘despicable conduct that subjects a person to cruel and unjust hardship in
conscious disregard of that person’s rights.’ [Citation.]” (Roby v. McKesson
Corp. (2009) 47 Cal.4th 686, 712, quoting Civ. Code, § 3294.) We conclude
facts supporting the existence of oppression, fraud or malice have not been
shown.
DISPOSITION
The judgment is affirmed. Costs to be awarded to defendants.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

15