Babot v. Equilon Enterprises LLC DBA Shell Oil Products US

Background

Sheila Babot worked for Equilon Enterprises LLC, doing business as Shell Oil Products US (“Shell”), as a probationary refinery process operator at Shell’s Martinez refinery from January 4, 2016, until Shell terminated her on October 27, 2016. Babot alleged that fellow operator Rick Duff sexually harassed her and made sexist and inappropriate comments and engaged in inappropriate behavior. She said she reported Duff’s conduct to supervisors several times, but that Shell took no action and the conduct continued. She also alleged that supervisors retaliated against her by closely scrutinizing her work, blaming her for others’ mistakes, and making negative entries in her employee file.

Babot asserted claims under the California Fair Employment and Housing Act (FEHA) for sex-based harassment, failure to prevent harassment, sex discrimination, failure to prevent discrimination, and retaliation. She also asserted whistleblower retaliation under California Labor Code section 1102.5, wrongful termination in violation of public policy, and intentional infliction of emotional distress. She sought punitive damages. Shell moved for summary judgment, or alternatively partial summary judgment.

Evidence objections

Shell asked the court to disregard Babot’s testimony and declaration concerning additional complaints she made about Duff because she had not listed all of them in an earlier discovery response. The court overruled the objection. It found that Babot’s earlier response stated that discovery was continuing, her later testimony gave Shell notice of the additional complaints before discovery closed, and the later information therefore did not contradict the earlier response in a way requiring exclusion.

Shell also invoked the “sham affidavit rule,” which can exclude a declaration that clearly and unambiguously contradicts the same party’s earlier deposition testimony. The court found no such contradiction. It concluded that Babot’s declaration elaborated on, explained, and clarified her deposition testimony that Duff’s inappropriate conduct was numerous and pervasive. The court overruled that objection as well. It denied the parties’ remaining evidentiary objections as moot because it did not rely on the disputed evidence.

Legal standard

Summary judgment is appropriate when there is no genuine dispute about a material fact and the moving party is entitled to judgment as a matter of law. The court must view the evidence favorably to the party opposing the motion and may not weigh evidence, decide witness credibility, or resolve factual disputes. A factual dispute is genuine when the evidence could allow a reasonable jury to return a verdict for the nonmoving party.

Analysis

Harassment and failure to prevent harassment

The court denied summary judgment on Babot’s FEHA sex-harassment claim. Shell argued that the claim was untimely because Babot filed her administrative complaint with the California Department of Fair Employment and Housing on October 18, 2017, and Shell contended that no harassment occurred during the one-year period before that filing. The court found a factual dispute about whether the continuing-violation doctrine applied. Babot’s testimony that Duff harassed her throughout her employment could allow a jury to find that the conduct occurred with reasonable frequency and did not become permanent until her termination.

The court also found a factual dispute about whether Shell knew or should have known about Duff’s conduct. Babot testified that she complained to supervisors Elzen Wilson and Allan “Buster” Metcalf in April or May 2016, July 2016, August 2016, and October 2016. The court denied summary judgment on her FEHA claim that Shell failed to prevent harassment because her testimony that Duff’s conduct continued after her complaints created a dispute about whether Shell took reasonable preventive steps.

Sex discrimination and failure to prevent discrimination

The court denied summary judgment on Babot’s sex-discrimination claim and her claim that Shell failed to prevent discrimination. Babot presented evidence that male employees, including Keith Stephens, had performance problems but were not disciplined or terminated. Although Shell disputed whether Stephens was an appropriate comparison employee, the court stated that whether employees are similarly situated is ordinarily a factual question.

Shell presented evidence that Babot was terminated for performance problems. Babot, however, presented evidence that on October 25, 2016—two days before her termination—Lavora acknowledged that other employees, including at least one male employee, had performance problems, yet Lavora and Layne decided to terminate Babot and retain Stephens. The court concluded that a reasonable jury could find that Babot was terminated because she was a woman rather than because of her performance issues.

Retaliation and wrongful termination

The court denied summary judgment on Babot’s FEHA retaliation claim. Her testimony about complaints to supervisors created a factual dispute about whether she engaged in legally protected activity. In addition, an October 25, 2016 note by Lavora stating that Babot had “an issue with Rick Duff” created a factual dispute about whether her complaints were connected to her October 27, 2016 termination.

For the same reasons, the court denied summary judgment on Babot’s whistleblower-retaliation claim under California Labor Code section 1102.5 and her claim for wrongful termination in violation of public policy.

Intentional infliction of emotional distress

The court denied summary judgment on Babot’s claim for intentional infliction of emotional distress. Shell argued that the claim depended on Babot’s FEHA claims and that the evidence did not show extreme and outrageous conduct. The court concluded that sexual harassment in the workplace can constitute outrageous conduct and that a reasonable jury could find for Babot on the harassment claim. It therefore denied summary judgment on the emotional-distress claim.

Punitive damages

The court granted summary judgment on Babot’s claim for punitive damages. Babot argued that Shell was liable because managing agent Tom Rizzo ratified Lavora’s termination decision. The court held that Babot presented no evidence that Rizzo had actual knowledge of Duff’s alleged harassment or of the supervisors’ alleged failure to address it. She therefore failed to establish a material factual dispute about ratification of the alleged wrongful conduct.

The court also declined to consider an argument Babot raised for the first time at the hearing—that Shell had not met its initial burden regarding punitive damages—because she had not raised it in her opposition and Shell had not had an opportunity to respond.

Disposition

The court stated that Shell’s motion for summary judgment was “granted in part and denied in part.” Summary judgment was granted as to Babot’s punitive-damages claim only and denied as to her other claims. The court continued the July 15, 2020 case-management conference to September 30, 2020, and required an updated case-management statement by September 23, 2020.