• Kevin Salute

You Were Harassed at Work -- But, Was It “Severe or Pervasive”?


An employee can sue his or her employer and supervisors for disability harassment under the California Fair Employment and Housing Act (FEHA). However, the employee must prove the harassment was either severe or pervasive.

In a recently decided case, Augustine Caldera v. Department of Corrections and Rehabilitation, the California Court of Appeals addressed the issue of what constitutes “severe or pervasive” harassment. http://www.courts.ca.gov/opinions/archive/G053168.PDF

What Happened to Caldera

Augustine Caldera was a correctional officer at a state prison. Officer Caldera stutters when he speaks. The prison's employees mocked or mimicked Caldera's stutter at least a dozen times over a period of about two years. Sergeant James Grove, a supervisor, participated in the mocking and mimicking of Caldera's stutter. Such conduct reflected the prison's culture, according to a senior prison official.

Starting in 2006, Caldera began working as a mental health escort officer within the administrative segregation unit (Ad Seg) of the prison.

Between 2006 and 2008, Sergeant Grove and Officer Caldera largely worked in two different halls within the Ad Seg unit. At some point, Grove began mocking or mimicking Caldera's stutter. He did so when other employees were present. Caldera felt demeaned and embarrassed.

Caldera also presented evidence that on one particular occasion, Grove mimicked Caldera's stutter over the prison's radio system. After Caldera had broadcasted an announcement, Grove got on the radio and mimicked what Caldera had said. The transmission could be heard by about 50 employees.

Caldera also presented evidence that he said something to Grove and Grove responded by saying, “ ‘F-f-f-f**k you.’ ” Caldera threatened to file a formal complaint. Grove then responded by saying, “I don't give a F-f-f. Make sure you get my name right.” Later that day, Caldera went to the prison's Equal Employment Opportunity (EEO) office and obtained a form to file a complaint. Sergeant Grove went to his supervisor and self-reported the encounter.

Caldera also presented evidence that the prison reassigned Grove to the same Ad Seg hall where Caldera had been working. Caldera learned from others that Grove was continuing to mock and mimic his stutter. Caldera felt that Grove treated him differently than the other correctional officers.

Lastly, Caldera presented evidence that there was a training class for the prison's supervisors. At some point during the class, Grove was again mimicking Caldera's “speech impediment and basically saying he didn't give a f**k about him. Saying it with the speech, I don't give a f**k.” Grove mimicked Caldera's stutter “throughout the whole conversation.”

Caldera Brings Lawsuit for Harassment and a Jury Agrees

Caldera filed a complaint in the superior court alleging various causes of action against defendants including disability harassment, failure to prevent harassment, and retaliation. He went to trial on his claim and a jury awarded him $500,000 in damages for emotional distress based on the harassment he endured.

Court of Appeal Sides With Caldera

The Department of Corrections appealed claiming that there was insufficient evidence that the conduct was “severe or pervasive” to support the jury award. The Court of Appeal disagreed and sided with Caldera that he was subjected to severe or pervasive harassment.

The law prohibiting harassment is violated “when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Whether this occurred is a question of fact for a jury to decide.

A jury is to consider the totality of the circumstances as to whether the alleged conduct is sufficiently severe or pervasive and may consider any or all of the following:

  • The nature of the conduct;

  • How often, and over what period of time, the conduct occurred;

  • The circumstances under which the conduct occurred;

  • Whether the conduct was physically threatening or humiliating;

  • The extent to which the conduct unreasonably interfered with an employee's work performance.

Even incidents of harassing conduct that occur over a short period of time may constitute severe or pervasive harassment depending on the circumstances.

For example, the Court of Appeal found that one or two instances of severe harassment can be sufficient to constitute unlawful harassment. In one case, two store managers spread rumors that a female employee had a sexually transmitted disease and had a sexual relationship with another employee. The managers also suggested that the employee could make more money as a stripper or a bikini model. On one occasion, a manager physically moved the employee to turn her around and display her buttocks to customers, while he was laughing and clapping. ․ Later the same day, when two of the regular customers who had witnessed the first turning incident returned to the store, the manager told the employee to be ready to turn around again for them. The employee refused. The manager also told the employee that if he and she owned the store, they could be rich because all she had to do ‘was just turn around and show them her butt.’

Similarly, in the Caldera case, the Court of Appeal found that the facts presented at trial were such that a reasonable person in Caldera's position would find the conduct to be offensive. Caldera described the conduct he was subjected to as: demeaning, embarrassing, harmful, and hurtful. Caldera testified that every time Grove mocked or mimicked his stutter, he did so in front of others. Grove's harassing conduct over the prison's radio system was heard by about 50 employees and appears to have been particularly egregious. The shift change incident occurred in front of about 24 employees. The training incident occurred in front of an unknown number of supervisors. Dr. Jordan testified that the harassing conduct was at times done in a mean spirited and harmful manner. A psychologist testified that the harassment caused Caldera to experience psychological disorders. Based on the totality of circumstances, a jury could reasonably find that the harassing conduct was “severe.”

As far as the harassing conduct being pervasive, the conduct occurred over a roughly two year time frame. Additionally, the conduct had become so pervasive that it was regarded as part of the culture at the prison because those engaging the mimicking of Caldera did so openly and without regard to any sense of shame or reprisal.

Conclusion

Harassment in the workplace based on one’s disability is unlawful under the Fair Employment and Housing Act. However, the harassment must be severe or pervasive. This requires a close examination of the facts and circumstances to determine if it rises to the level of severe or pervasive and the totality of the circumstances.

Questions:

If you have any questions about this article or any other matter, please feel free to give us a call.

Salute Law (818) 981-7373 or shoot us an email kevin@salutelaw.com

Disclaimer: The foregoing is provided for informational purposes only, is not an advertisement, does not constitute legal advice or legal opinion, and does not create an attorney-client relationship. The content may not apply to the specific facts or a particular matter. You should not act or rely on any information contained in this article without first seeking the advice of an attorney licensed to practice in your jurisdiction.

#harrassment #employment #lawsuit #violations

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