Birschtein v. New United Motor Manufacturing, Inc

In Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, the Court considered the application of the continuing violation doctrine to a claim of sexual harassment. The Birschtein court admonished: "Courts are to be mindful of the variety of different forms acts of harassment can take in evaluating the similarity prong of the continuing violation doctrine." (Id. at p. 1005.) The Birschtein court determined that there was a triable issue of fact as to whether this prong was satisfied because the plaintiff was first subjected to overtly sexual remarks, and then staring by the same person. Thus, the alleged harasser's "conduct evinced sufficient continuity to pass muster under the Richards standard." (Id. at p. 1006.) In Birschtein v. New United Motor Manufacturing, Inc., plaintiff Michelle Birschtein worked on an assembly line in an auto manufacturing plant, which required her to work in a fixed location as forklifts delivered parts and materials to the assembly line. (Id. at p. 997.) Forklift operator George Bonillia asked Birschtein on a date three or four times, but Birschstein declined each time and told him she did not want to go out with him. (Ibid .) Bonillia told Birschtein he wanted to "'eat her,'" which upset Birschtein and prompted her to ask Bonillia what he meant. (Ibid.) Bonillia replied, "'I want to eat you all over.'" (Ibid.) Birschtein yelled at Bonillia to leave, which he did after sitting on his forklift for a while. (Id. at pp. 997-998.) Two or three days later, Bonillia again approached Birschtein and told her he was having fantasies about bathing her in a tub surrounded by candles and carrying her to a bed covered with rose petals. (Id. at p. 998.) Birschtein yelled at Bonillia to leave, which he did after sitting on his forklift for another minute. (Ibid.) Birschtein complained to her foreman and began to carry mace to work. (Ibid.) After her complaint, Bonillia never spoke to Birschtein again. (Ibid.) But he did drive his forklift near her station five to 10 times each day and stare at her for five to 10 minutes each time. (Ibid.) Birschtein complained about Bonillia's staring, which then decreased to two or three times per day for five to ten seconds at a time. (Ibid.) Bonillia's stares were not sexual, they were upset. (Id. at pp. 998-999.) Bonillia's only post-complaint sexual act was one occasion when he grabbed his crotch while he drove his forklift by Birschtein's station, staring at her. (Id. at p. 999.) Birschtein's employer investigated Bonillia's conduct, but took no disciplinary or corrective action because the investigator "'didn't feel that Bonillia's actions warranted it.'" (Ibid.) Birschtein sued for hostile work environment sexual harassment, and the trial court granted summary judgment for her employer. (Id. at pp. 999-1000.) The Court of Appeal reversed. As relevant here, the court concluded Bonillia's nonsexual, retaliatory staring could still constitute sexual harassment. (Birschtein, supra, 92 Cal.App.4th at p.1001) "'Sexual harassment does not necessarily involve sexual conduct.'") As the court explained, "What began as Bonillia's overt acts of sexual harassment (asking for dates, the 'eat you' remarks, his specifically sexual bathing fantasies) were later transmuted by plaintiff's reaction (her complaints to management about the offensive conduct) into an allegedly daily series of retaliatory acts--the prolonged campaign of staring at plaintiff--acts that were directly related to, indeed assertedly grew out of, the antecedent unlawful harassment." (Id. at p. 1002.) The court thus concluded Birschtein's evidence "was sufficient to raise a triable issue of material fact, i.e., whether Bonillia's apparent retaliatory acts were sufficiently allied with the prior acts of harassment to constitute a continuing course of unlawful conduct." (Ibid.)