McCoy v. Pacific Maritime Assn

In McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, the Second District Court of Appeal affirmed summary adjudication, in favor of the employer, on the ground that "the harassment was not so severe and pervasive as to alter the conditions of the plaintiff's employment." (McCoy, at p. 289.) On appeal, the plaintiff pointed to evidence that her coworkers had made approximately five to nine comments about other women's bodies, including referring to one as having a "'J-Lo ass'" or a "'nigger ass.'" (Id. at pp. 293--294.) One of the plaintiff's coworkers had also once ogled and made gestures toward one of the women and speculated as to who another woman was sexually involved with. (Ibid.) The reviewing court concluded this evidence was insufficient, reasoning as follows: "Over the four months the plaintiff was working in the vessel planner's office, comments were made on, at most, nine, and possibly as few as five occasions. Although the details of most of the comments were vague, they involved discussion of other women's bodies outside their presence. The plaintiff did not claim any sexual comment or conduct was directed at her. . . . In addition, . . . the coworker who made these comments was not her supervisor, but rather a vessel planner charged with partial responsibility for training her. In order to be actionable, it must be shown that the employer knew, or should have known, of the alleged harassment and failed to take appropriate action. . The plaintiff admitted she never mentioned to anyone in management that her coworker made these remarks about other women. Nor was there evidence that she ever mentioned anything about sexual harassment to management." (Id. at p. 294.)