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Shelton v. City of Manhattan Beach9/28/2004
plication of the D'Amico decision can lead to anomalous results, inconsistent with the general principles of summary judgment law. We do not interpret the decision . . . as saying that admissions should be shielded from careful examination in light of the entire record. A summary judgment should not be based on tacit admissions or fragmentary and equivocal concessions, which are contradicted by other credible evidence." (Price v. Wells Fargo Bank, supra, 213 Cal.App.3d at p. 482.)
Here, plaintiff testified he had no significant problem with the anti-gay work environment. However, he also testified at his deposition that the anti-gay slurs and jokes bothered him-he was deeply offended inside. This deposition testimony is equivocal as to whether plaintiff subjectively perceived the environment to be abusive. In addition, there was evidence that in 1999, five years after he joined the department, plaintiff sought the help of a psychiatrist, Dr. Ehlers. At that time, he was already taking medication for anxiety and tension. He told Dr. Ehlers he was anxious and tense because of the department's strong prejudice against homosexuals. Therefore, plaintiff's equivocal discovery admissions are not conclusive. Hence, there is a triable issue of material fact whether plaintiff subjectively perceived his work environment to be abusive.
b. severe or pervasive
Defendants argue, as the trial court found, that plaintiff failed to present evidence sufficient to raise a triable issue of material fact whether the harassment was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment. (Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal.4th at p. 130; Sheffield v. Los Angeles County Dept. of Social Services (2003) 109 Cal.App.4th 153, 161.) Defendants assert: no one knew plaintiff was gay until August 2001; therefore he could not have been intentionally harassed based on his sexual orientation; plaintiff admitted none of the defendants ever directed any anti-gay slurs at him; plaintiff admitted he never told any of the defendants he was upset or offended by the anti-gay remarks; and from the time plaintiff submitted his internal complaint until he went out on disability leave, none of the defendants made any anti-gay comments-in other words, no harassment occurred after defendants learned plaintiff was gay.
Plaintiff claims he was harassed because of his sexual orientation after he submitted his August 22, 2001, internal complaint and it became known or suspected that he was gay. Moreover, that he was not personally subjected to offensive remarks does not preclude a showing he was subjected to a hostile work environment. As the Court of Appeal observed in Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at page 610, "`Evidence of the general work atmosphere, involving employees other than the plaintiff, is relevant to the issue of
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