Ashley Howell worked for the Department of State Hospitals (DSH) as a temporary pre-licensed psychiatric technician between January 2, 2020, and January 24, 2020. DSH houses patients who are involuntarily committed to medical treatment, including criminal defendants deemed incompetent to stand trial, patients found not guilty by reason of insanity, and offenders with mental disorders, among others. Pre-licensed psychiatric technicians provide nursing and psychiatric care to DSH’s disabled patients and have physical job duties such as crisis intervention and restraining patients who pose a risk to themselves or others.
As part of the hiring process, Howell underwent a pre-employment health screening, which required her to disclose any disorders including those of the nervous system. Although she disclosed having asthma, she responded “no” to all other screening questions. However, she had been previously diagnosed with major depressive disorder and posttraumatic stress disorder following a 2017 sexual assault by a patient inmate while she was working at the California Department of Corrections and Rehabilitation (CDCR). After the assault, she experienced panic attacks with trouble breathing and shortness of breath and went on medical leave.
When Howell commenced working with DSH, she was still on medical leave with CDCR. In fact, on January 3, she submitted a doctor’s note to CDCR stating that she couldn’t return to work before February 23 and that she was unable to work with
prison inmates.
DSH wasn’t aware of Howell’s leave status until on or about January 22, when CDCR informed DSH as part of their regular communication exchange concerning employment transfers. DSH also discovered that Howell had sustained an injury to her “nervous system,” which was inconsistent with her representations on her DSH health questionnaire. On January 24, DSH terminated her employment.
Discrimination Lawsuit Filed
Howell filed a lawsuit against DSH under the Fair Employment and Housing Act (FEHA) for disability discrimination, failure to accommodate, failure to engage in the interactive process, and failure to prevent discrimination. Before trial, the court ruled in favor of DSH on her claims for failure to accommodate and failure to engage in the interactive process, and Howell dismissed her claim for failure to prevent discrimination on the first day of trial. Her remaining claims for mental and physical disability discrimination were tried to a jury.
Howell described the termination as devastating, saying it “felt like [she] was being punished because [she] was sexually assaulted.” She experienced depression after the termination. Her fiancé testified that she went back into “a state of depression. She was very upset, and she was afraid that the [sexual assault] incident would never be put behind her.” She became “closed off again,” which affected their relationship, and it took her “about a year and a half” to find new employment.
Howell’s doctor testified that the termination was detrimental to Howell’s mental health and caused loss of confidence and self-esteem. He testified that she “seemed to regress” after termination, and “her symptoms” from the 2017 assault “came back.” But the DSH medical expert said that her depression stemmed from the previous sexual assaults and not the termination. Though being fired bothered her, according to the DSH medical expert, “a lot of things bother a lot of people. Being bothered is not the same as having a mental disorder.”
The jury found in Howell’s favor on her mental disability discrimination claim only, awarding $28,941 in lost earnings, $7,810.25 in lost health insurance, and nothing for pain and suffering. She sought prejudgment interest at a rate of 7% from the date the lost wages should have been paid.
After trial, the court vacated the lost health insurance damage award because Howell never bought replacement health insurance. It denied her request to award pain and suffering damages. She sought over $1.75 million in attorneys’ fees, costs, and prejudgment interest, but it awarded only $135,102. It did not award prejudgment interest. She appealed.
Jury Verdict Supported On All Counts
The court of appeal found no reason to disturb the jury’s verdict with respect to pain and suffering damages. One doctor testified that Howell’s “mental health symptoms,” including her panic attacks, were substantially caused by the sexual assault at the CDCR and not by DSH employment. Another testified he didn’t believe the termination exacerbated any mental disorder. The jury didn’t have to find that she suffered compensable
emotional distress.
The court of appeal also agreed that Howell was entitled to no award for substitute health insurance since she bought none. While she presented an invoice from her healthcare provider for insurance premiums in the amount of $1,115.75, she never paid the invoice and never obtained any replacement insurance. She suffered no loss to compensate.
Attorneys’ Fees Claim Cut By 92%
Most significantly, Howell challenged the trial court’s ruling on her request for fees, costs, and interest. Under FEHA, the court, in its discretion, may award to the prevailing party reasonable attorneys’ fees and costs. A prevailing party should ordinarily receive their costs and attorneys’ fees unless special circumstances would render such an award unjust.
And exercising its discretion regarding attorneys’ fees, a trial court goes through a two-step process. First, it determines the reasonable hours spent pursuing the action, multiplies it by a reasonable hourly rate, and determines the base hourly award. Then, that number can be subject to a multiplier, which can increase or decrease the number depending on the circumstances.
Howell’s counsel worked on the case from January 31, 2020, to July 2023 and claimed 1,444 hours worked in total, over two-thirds of which were spent preparing for trial and trying the case. Howell claimed a base hourly award of $997,400 at hourly rates of $750 and $650, multiplied by 1.75 because of various mitigating factors. DSH argued the base hourly award should be based on lower hourly rates and reduced by 80% because “she obtained only nominal success.”
The trial court ultimately granted Howell’s request in part and awarded her a total of $135,102. In doing so, it called her fee request “striking” and “unsupportable,” finding the time spent on various matters “shocking” and “beyond all reason.” Thus, the court determined “that awarding the requested fees would affect an injustice.” The court declined to apply any multiplier.
The court of appeal agreed. It found the case wasn’t complex and was over-litigated. As examples, Howell filed 19 prehearing request, none of which were successful, and spent 62 hours opposing DSH’s request to compel her mental exam in an action where she claimed pain and suffering.
Preventing a completely clean sweep, the court of appeal ruled for Howell on one point: Because the trial court’s order makes no mention of her unopposed request for prejudgment interest, the trial court was directed to consider her request for it. The decision was otherwise affirmed. Ashley Howell V. State Department Of State Hospitals, California Court Of Appeal, First Appellate District, Division Two, A168526, A169105, Filed 11/7/24; Certified For Publication 12/5/24.
The Bottom Line
It was fortunate for the employer that a $30,000 damage award wasn’t accompanied by a multimillion-dollar attorneys’ fees award, but that happens in California courts and arbitrations all the time.
Secondly, this case shows that, when evaluating an emotional distress claim, be very aware of prior history or other stressors that might be the cause of the distress. Here, that factor led to zero money for emotional distress despite a finding of mental disability discrimination. Sometimes you can lose the big battles but still win the war.
Mark I. Schickman is the editor of California Employment Law Letter. You can reach him at mark@schickmanlaw.com.