California Court of Appeal Upholds Jury Verdict Finding Twelve Instances of Verbal Mocking Severe and Pervasive Harassment

In California, lawsuits for harassment often come down to the question of whether the conduct at issue is sufficiently severe or pervasive enough to create an objectively and subjectively hostile work environment. In Caldera v. Dept. of Corrections & Rehabilitation, the Court of Appeal upheld a jury verdict finding that 12 to 15 instances of verbal mocking over a two year period qualified as actionable harassment.

Augustine Caldera was a correctional officer at a state prison operated by the California Department of Corrections and Rehabilitation (CDCR). Caldera has a speech condition and stutters when he speaks. The prison's employees, including a supervisor, James Grove, mocked and mimicked Caldera's stutter at least a dozen times over a two year period. Caldera introduced testimony that Grove mocked Caldera's stutter when other employees were present and, on one occasion, mocked the stutter over the prison's radio system. A psychologist supervisor in the same unit as Grove and Caldera testified that there was "a culture of joking" about Caldera's stutter. Caldera filed a complaint with the prison about Grove's conduct. Two days later, Caldera learned that Grove was to be reassigned to the same hall where he had been working, and though Caldera asked the prison to assign Grove to a different hall, the prison declined.

Caldera filed a lawsuit against CDCR alleging causes of action for disability harassment, failure to prevent harassment, and retaliation. The jury found in Caldera's favor that Caldera was subjected to unwanted harassing conduct, that the harassment was severe, that the harassment was pervasive, and that a reasonable person in Caldera's position would have considered the work environment to be hostile or abusive. The jury awarded Caldera (who was still employed by the prison at the time of trial) $500,000 in non-economic damages. The prison filed a motion for new trial ("MNT") on the grounds of insufficient evidence, irregularities in the proceedings, and excessive damages. The trial court granted the MNT on the grounds that the damages award was excessive.

CDCR appealed the trial court's partial denial of its MNT. The Court of Appeal explained that there was sufficient evidence for the jury to have concluded that the mocking of Caldera's stutter constituted severe or pervasive harassment. The Court of Appeal highlighted evidence that Grove mocked the stutter in front of other employees, that the psychologist testified to "a culture of joking" about the stutter, and that Caldera experienced emotional distress as a result of the mocking. The Court of Appeal reversed the trial court's order granting a new trial confined to the issue of damages (due to the trial court's failure to include a statement of reasons with its minute order) but otherwise affirmed the judgment.

The Caldera opinion serves as a cautionary tale about the negative implications of teasing or mocking. Employers should have policies in place prohibiting unlawful harassment and should properly address all complaints of harassment. Supervisors should receive training in accordance with the government code at least every other year on the types of conduct which rise to the level of harassment. Lewis Brisbois' employment law attorneys are available to counsel employers about their harassment policies, complaint responses, and training materials.

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