A jury awarded an employee with a speech impediment $500,000 because he was harassed by a supervisor who mimicked his stutter. The central issue on appeal was whether the supervisor’s conduct was sufficiently severe or pervasive to constitute disability harassment. When does a joking atmosphere become a hostile work environment?
Correctional Officer Mocked for his Stutter
Augustine Caldera worked as a correctional officer at a state prison since 1994. He has a speech impairment and stutters when he speaks. In 2006, Caldera began working within the administrative segregation unit of the prison. Between 2006 and 2008, Sergeant James Grove and Caldera worked in two different housing facilities in the unit. Grove began mocking or mimicking Caldera’s stutter when other employees were present. According to Caldera, “Whatever [words] I stuttered on, Grove would sit back and repeat what I stuttered.” He estimated that Grove had mocked or mimicked his stutter “more than 5, less than 15” times.
On one particular occasion, after Caldera had broadcasted an announcement, Grove got on the radio and mimicked what he had said. The transmission was heard by about 50 employees. Officer Robert Konrad discussed the incident with Caldera. Konrad “said, that’s kind of f___ed up, on the radio, like that. [Caldera] said, yeah, I get it all the time.”
In 2008, Dr. Victor Jordan, a psychologist supervisor in the same unit, testified that he heard prison employees mock or mimic Caldera’s stutter on many occasions. When asked to “estimate over the years” how many times he had witnessed it, he replied, “I’m sure a dozen times that I’ve paid attention to.” He acknowledged there was “a culture of joking” at the prison about Caldera’s stutter. He also testified that Caldera’s reactions varied—he would laugh, fire back, or appear embarrassed by the conduct.
On September 2, 2008, Grove, Caldera, and Jordan were all present in a main corridor of the prison during a busy shift change, and about 24 correctional officers were in the general area. Caldera said something to Grove, and Grove responded by saying, “‘F-f-f-f___k you.'” When Caldera threatened to file a formal complaint, Grove replied, “I don’t give a F-f-f. Make sure you get my name right.”
On September 9, 2008, Caldera filed an equal employment opportunity (EEO) complaint against Grove. Two days later, he learned that Grove was to be reassigned to the same housing unit. Caldera expressed his concern to several superiors, including the warden. One of the superiors said Caldera was “almost to the point of tears when he spoke about” the shift-change incident. Nevertheless, several days later, the prison reassigned Grove to the same housing unit as Caldera. At a training class for the prison’s supervisors on October 3, 2008, Grove again mimicked Caldera’s stutter and said, “I don’t give a f__k” about Caldera.
Officer Sued for Disability Harassment
Caldera sued the California Department of Corrections and Rehabilitation (CDCR) and Grove (collectively, “the defendants”) for disability harassment, failure to prevent the harassment, and retaliation. The trial court granted the defendants’ request to dismiss the case without a trial. The appellate court reversed that decision, and the case proceeded to trial.
The jury returned the following special verdicts:
- Caldera was subjected to unwanted harassment based on his disability;
- The harassment was severe and pervasive;
- A reasonable person in his position would have considered the work environment hostile or abusive;
- A supervisor participated in, assisted, or encouraged the harassment;
- The harassment was a substantial factor in causing harm;
- The CDCR had failed to take all reasonable steps to prevent the harassment; and
- Its failure to prevent the harassment was a substantial factor in causing Caldera harm.
The jury rejected Caldera’s retaliation claim.
The jury awarded Caldera $500,000 in noneconomic damages. The trial court found the damage award excessive and granted the defendants’ motion for a new trial solely on that issue. Both parties appealed.
Sufficient Evidence of Severe or Pervasive Harassment
The defendants claimed there was insufficient evidence that the harassment was either severe or pervasive. Unlawful harassment occurs when the workplace is permeated with discriminatory intimidation, ridicule, or insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.
In terms of the severity of the harassment, Caldera described Grove’s conduct as demeaning, embarrassing, harmful, and hurtful. He testified that every time Grove mocked or mimicked his stutter, he did so in front of others. Grove’s mockery of Caldera over the prison’s radio system was heard by about 50 employees, the shift-change incident occurred in front of about 24 employees, and the training incident occurred in front of a number of supervisors. A psychologist testified that the harassment caused Caldera to experience psychological disorders. The appellate court found that based on the totality of the circumstances, a jury could reasonably find that the harassment was severe.
With regard to the pervasiveness of the conduct, Jordan witnessed the harassment on at least 12 occasions, and Caldera estimated that Grove had mocked or mimicked his stutter between five and 15 times. The harassing conduct took place from 2006 to 2008. Jordan also testified the harassment was so pervasive that he regarded it as part of the culture at the prison. The appellate court found it notable that the harassment was so pervasive within the institution that Grove felt free to openly mimic Caldera’s stutter in front of other supervisors without any sense of shame or fear of reprisal.
The appellate court concluded there was sufficient evidence to support the jury’s finding that the harassing conduct in Caldera’s workplace was severe and pervasive.
CDCR Failed to Prevent Harassment
The California Fair Employment and Housing Act (FEHA) requires an employer to take all reasonable steps necessary to prevent harassment from occurring. The CDCR argued it was not liable for failing to prevent harassment because no actionable harassment occurred. However, its argument was undercut by the appellate court’s finding of severe and pervasive harassment.
Second, the CDCR argued that it has antiharassment policies, provides annual training, and took corrective action by sending Grove a cease-and-desist letter on the same date it received Caldera’s EEO complaint. The appellate court observed that Grove continued to mimic Caldera’s stutter at the supervisor’s training class four weeks after the CDCR received the EEO complaint. The jury could have reasonably concluded that the steps the employer had taken to prevent harassment weren’t effective, and therefore, it failed to take all reasonable steps to prevent the harassment as required by law. Caldera v. Department of Corrections and Rehabilitation (California Court of Appeal, Fourth Appellate District, 7/9/18).
Bottom Line
A hostile work environment claim requires conduct that is severe or pervasive. In this case, the jury found both. To be pervasive, the conduct need not occur on a daily, weekly, or even monthly basis. It was enough that the harassment occurred approximately 12 times over a two-year period and had become part of the workplace culture. The employer failed to take reasonable steps to prevent harassment because the harassment continued after the employee complained.
Remember, to avoid a claim of failure to prevent harassment, immediately investigate the complaint and take effective steps that end the harassment. If harassment continues, it demonstrates that the remedial action was ineffective and that further action is necessary.
To learn more about California based employment issues, join Mark I. Shickman when he presents the session: California Employment Policies and Procedures Drafting Workshop at HR Comply California, October 17-19, 2018, in San Diego, California. Click here to reserve your spot today!
 Cathleen S. Yonahara is an attorney with Freeland Cooper & Foreman LLP in San Francisco. She can be reached at yonahara@freelandlaw.com. |