Kelley v. The Conco Cos., 196 Cal. App. 4th 191 (2011)

Patrick Kelley, an apprentice ironworker, complained to his employer, Conco, that he had been subjected to a “barrage of sexually demeaning comments and gestures by his male supervisor” (David Seamen). After Kelley’s union suspended him from its apprenticeship program, he was not rehired by Conco. Kelley sued for sexual harassment and retaliation in violation of the Fair Employment and Housing Act. The trial court granted summary judgment to the employer, but the Court of Appeal reversed the dismissal of Kelley’s claim of retaliation. However, with respect to the claim of sexual harassment, the Court affirmed dismissal: “Unquestionably, the language used by both Seaman and by one of Kelley’s coworkers… was graphic, vulgar, and sexually explicit. The literal statements expressed sexual interest and solicited sexual activity. There was however, ‘no credible evidence that the harasser was homosexual’ or that the harassment was ‘motivated by sexual desire.’” The Court further held that Kelley had failed to establish he was subjected to harassment that was so severe and pervasive as to alter the conditions of his employment or that he suffered severe emotional distress as a result of Seaman’s conduct. With respect to the retaliation claim, the Court held that Kelley’s evidence established a clear inference that he was subjected to retaliation by at least some of his coworkers as a result of his complaints about Seaman.