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Shelton v. City of Manhattan Beach9/28/2004
whether there existed an atmosphere of hostile work environment. . . .'" The Fisher court further noted, " n employee who is subjected to a hostile work environment is a victim of sexual harassment even though no offensive remarks or touchings are directed to or perpetrated upon that employee." (Id. at p. 610, fn. 8; accord, Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 519.)
The totality of the circumstances shown by the evidence raises a triable issue whether the conduct in question was severe or pervasive. Plaintiff has presented evidence that from his first weeks as a probationary officer with the department, in 1994, anti-gay slurs were regularly and repeatedly used by a large number of officers and their superiors. Plaintiff repeatedly had heard Officers Sellan and Eccles use such terms throughout his employment, including within the last year with the department. Officer Sellan had frequently used the term "pole smoker" in plaintiff's presence. At various times, plaintiff had also heard Chief Klevesahl refer to people as "pole smokers." Plaintiff had personally heard roughly 40 officers repeatedly use derogatory terms in reference to homosexuals including, in addition to Officers Sellan and Eccles and Chief Klevesahl, a captain, several lieutenants, and several sergeants. A former employee who had worked in the department from 1997 to 2000, testified there were about 15 officers, sergeants, and lieutenants who routinely made disparaging and offensive remarks about gay people, including Officers Eccles and Sellan, as well as a captain. The former employee testified he had personally heard one captain routinely make anti-gay slurs. Plaintiff was afraid to report the anti-gay conduct because, " he tone of the department that of not being friendly towards gay people." There was evidence Chief Klevesahl had discriminated against a potential applicant for a position as a police officer who was openly gay. There was evidence Chief Klevesahl referred to the potential employee as a "faggot." In addition, gay or lesbian citizens were regularly referred to by derogatory terms such as: "` ole smokers,' `bat smokers,' `rump rangers,['] `dykes,' `fags,' `faggots,' `queers,' `fruitcakes,' `carpet munchers,' `muff divers,' or `pussy munchers[.]'" Five years after joining the department, in 1999, plaintiff told his psychiatrist, Dr. Ehlers, that he was anxious and fearful because the police force had a strong prejudice against homosexuals. Plaintiff testified at his deposition that he had survived 14 years as a law enforcement officer listening to anti-gay slurs and jokes. Finally, there was evidence that after plaintiff filed his internal complaint, in August 2001, Officers Sellan and Eccles referred to plaintiff as a "`faggot'" and to certain police recruits as "`homos'" and "`a dyke.'" They described recent recruits as plaintiff's "little butt boys" or "butt buddies." They discussed becoming field training officers so that the
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