Filed 2/17/21 Lee v. YRC, Inc. CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THOMAS LEE,

Plaintiff and Appellant,

v.

YRC, INC. et al.,

Defendants and Respondents.

 D076729

 (Super. Ct. No. 37-2018-

00004806-CU-OE-CTL)

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.
2

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]?”
3

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.
4

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.
5

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 
6

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.”].)
7

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.
8

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 
9

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 
10

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 wellbeing. (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.)
11

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 
12

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.)
13

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.
14

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].)
15

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.