The Court of Appeal issued a "writ" of mandate, overturning a summary judgment order on a harassment claim. Mustafa Rehmani worked for Ericsson in Silicon Valley. He is Pakistani. Many of his co-workers are Indian. Rehmani claimed the Indian co-workers gave him a rough ride. The court describes a series of incidents, over a few months, in which there were political jokes, terrorism jokes, and the like. However, these jokes were pretty isolated, occurring about a month apart.
The court decided that the allegations were enough to send the case to a jury and that the trial court should not have granted summary judgment. The court also held that the company's management had sufficient notice of the conduct, and there was insufficient evidence of an adequate response to the conduct to justify summary resolution.
If you believe the plaintiff's version of events (which the court had to do), he told his manager repeatedly about his co-workers' anti-Pakistani / anti-Muslim jokes. But she brushed them off. So, a very thin case of national origin harassment will go to a jury, or a mediator. A little management training (or better training) could have helped here.
The case is Rehmani v. Superior Court and the opinion is here.
Showing posts with label Harassment. Show all posts
Showing posts with label Harassment. Show all posts
Court of Appeal: No Attorney-Client Privilege for Employee's Emails to Lawyer
Gina Holmes worked for Petrovich Development Co. LLC as assistant to the CEO, Paul Petrovich. She was pregnant early in her employment and got into a discussion with her boss about the length of her leave and their respective feelings about her pregnancy. Although it appeared that they had cleared the air, Holmes simultaneously attempted to hire a lawyer, via email at work. Apparently, Holmes became upset that Petrovich forwarded her emails to others in the organization and quit, claiming constructive discharge, discrimination, harassment, etc.
The trial court summarily dismissed the harassment, discrimination and retaliation claims. The court of appeal affirmed - holding that the harassment evidence was limited to email correspondence that was neither severe nor pervasive.
The court of appeal also affirmed dismissal of the claim that Holmes was forced to resign. The court noted that when a plaintiff cannot establish a hostile work environment, a constructive discharge claim is a higher standard and must also fail. Holmes' retaliation claim failed too, because of the lack of an adverse action.
That left claims for intentional infliction of emotional distress and invasion of privacy, which were tried to a jury. The jury found for the defendants. On appeal, Holmes claimed the trial court should not have allowed Petrovich to use the emails she sent to a lawyer seeking a referral, in which she explained her situation. The trial court held that Holmes waived the privilege because she used company email, and there were clear policies explaining the company's right to monitor email.
The court of appeal agreed that Holmes waived the privilege Here is the money quote:
Lawyers for employees obviously should take note and advise employees not to use monitored email systems. Employers should ensure their email policies are comprehensive and clear regarding employees' expectations of privacy.
The case is Holmes v. Petrovich Development Company LLC and the opinion is here.
The trial court summarily dismissed the harassment, discrimination and retaliation claims. The court of appeal affirmed - holding that the harassment evidence was limited to email correspondence that was neither severe nor pervasive.
The court of appeal also affirmed dismissal of the claim that Holmes was forced to resign. The court noted that when a plaintiff cannot establish a hostile work environment, a constructive discharge claim is a higher standard and must also fail. Holmes' retaliation claim failed too, because of the lack of an adverse action.
That left claims for intentional infliction of emotional distress and invasion of privacy, which were tried to a jury. The jury found for the defendants. On appeal, Holmes claimed the trial court should not have allowed Petrovich to use the emails she sent to a lawyer seeking a referral, in which she explained her situation. The trial court held that Holmes waived the privilege because she used company email, and there were clear policies explaining the company's right to monitor email.
The court of appeal agreed that Holmes waived the privilege Here is the money quote:
Although a communication between persons in an attorney-client relationship "does not lose its privileged character for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication" (§ 917, subd. (b)), this does not mean that an electronic communication is privileged (1) when the electronic means used belongs to the defendant; (2) the defendant has advised the plaintiff that communications using electronic means are not private, may be monitored, and may be used only for business purposes; and (3) the plaintiff is aware of and agrees to these conditions. A communication under these circumstances is not a “„confidential communication between client and lawyer‟” within the meaning of section 952 because it is not transmitted “by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation . . . .” (Ibid.)
When Holmes e-mailed her attorney, she did not use her home computer to which some unknown persons involved in the delivery, facilitation, or storage may have access. Had she done so, that would have been a privileged communication unless Holmes allowed others to have access to her e-mails and disclosed their content. Instead, she used defendants‟ computer, after being expressly advised this was a means that was not private and was accessible by Petrovich, the very person about whom Holmes contacted her lawyer and whom Holmes sued. This is akin to consulting her attorney in one of defendants‟ conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard by Petrovich would be privileged.
Lawyers for employees obviously should take note and advise employees not to use monitored email systems. Employers should ensure their email policies are comprehensive and clear regarding employees' expectations of privacy.
The case is Holmes v. Petrovich Development Company LLC and the opinion is here.
Court of Appeal: No Attorney Present at Plaintiff's Mental Examination
The court of appeal's opinion in Toyota v. Superior Court should be interesting to employment lawyers and maybe to their clients involved in employment litigation.
Steven Braun was a plaintiff in a discrimination and harassment case against Toyota. He claimed significant emotional distress as a result of the conduct. Toyota arranged for a mental examination. Braun's attorney sought to impose certain conditions, including that it be taped, and that the attorney could accompany Braun to the exam and wait in an adjoining room. The doctor balked at this condition, as did Toyota. The Superior Court, however, allowed it. So, Toyota sought a "writ" - a mid-litigation appeal - overturning the Superior Court's decision.
The Court of Appeal granted the writ, which almost never happens in discovery disputes. The court said that although an attorney is not always prohibited from attending an examination, he or she must make some evidentiary showing of need. Toyota, on the other hand, showed (1) that the examination's scope was limited by court order (2) that the doctors believed the attorney's presence could influence the examination. The court also noted that medical professionals conducting such examinations are entitled to a presumption they will act properly.
The case is Toyota v. Superior Court and the opinion is here.
Steven Braun was a plaintiff in a discrimination and harassment case against Toyota. He claimed significant emotional distress as a result of the conduct. Toyota arranged for a mental examination. Braun's attorney sought to impose certain conditions, including that it be taped, and that the attorney could accompany Braun to the exam and wait in an adjoining room. The doctor balked at this condition, as did Toyota. The Superior Court, however, allowed it. So, Toyota sought a "writ" - a mid-litigation appeal - overturning the Superior Court's decision.
The Court of Appeal granted the writ, which almost never happens in discovery disputes. The court said that although an attorney is not always prohibited from attending an examination, he or she must make some evidentiary showing of need. Toyota, on the other hand, showed (1) that the examination's scope was limited by court order (2) that the doctors believed the attorney's presence could influence the examination. The court also noted that medical professionals conducting such examinations are entitled to a presumption they will act properly.
The case is Toyota v. Superior Court and the opinion is here.
California Supreme Court Takes on Harassment v. Discrimination
Roby sued McKesson for disability-based harassment and discrimination. The jury awarded over $3million in actual and $15million in punitive damages, including an award of damages for harassment against an individual defendant. The verdict, though, was a mess and was reduced because of overlapping, duplicative damages awards. In addition, there was an issue of whether the individual could be sued for harassment because much of the alleged conduct was in connection with personnel decisions.
One of the issues the Supreme Court addressed is whether a manager / supervisor's conduct during "personnel actions" is evidence not only of the discriminatory motive, but also harassment. The court explained the difference as follows: "discrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace. " * * *
"[H]arassment is generally concerned with the message conveyed to an employee, and therefore with the social environment of the workplace, whereas discrimination is concerned with explicit changes in the terms or conditions of employment"
Applying this standard, the court upheld Roby's harassment claim:
Does this clear things up? There was a bright line between personnel actions and harassing conduct before this case, supported by 15 years of authority. Does this mean that personnel actions now are evidence of harassment when the manager carrying them out is unpleasant? We will see how lower courts treat evidence of harassment after this decision.
Separately - the Court also analyzed punitive damages in employment law cases. After detailed analysis, the Court decided that a one-to-one ratio between actual and punitive damages was the constitutional limit. The Court based its conclusion on its conclusion that as a corporation, McKesson's conduct was not particularly "reprehensible." The Court also based its decision on the high damages award, warranting a lower ratio because of the actual damages' deterrence of similar conduct.
The Court also explained what a "managing agent" is for punitive damages purposes, clarifying prior rulings:
The case is Roby v. McKesson Corp. and the opinion is here.
One of the issues the Supreme Court addressed is whether a manager / supervisor's conduct during "personnel actions" is evidence not only of the discriminatory motive, but also harassment. The court explained the difference as follows: "discrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace. " * * *
"[H]arassment is generally concerned with the message conveyed to an employee, and therefore with the social environment of the workplace, whereas discrimination is concerned with explicit changes in the terms or conditions of employment"
Applying this standard, the court upheld Roby's harassment claim:
Roby's discrimination claim sought compensation for official employment actions that were motivated by improper bias. These discriminatory actions included not only the termination itself but also official employment actions that preceded the termination, such as the progressive disciplinary warnings and the decision to assign Roby to answer the office telephones during office parties. Roby's harassment claim, by contrast, sought compensation for hostile social interactions in the workplace that affected the workplace environment because of the offensive message they conveyed to Roby. These harassing actions included Schoener's demeaning comments to Roby about her body odor n10 and arm sores, Schoener's refusal to respond [*40] to Roby's greetings, Schoener's demeaning facial expressions and gestures toward Roby, and Schoener's disparate treatment of Roby in handing out small gifts. None of these events can fairly be characterized as an official employment action. None involved Schoener's exercising the authority that McKesson had delegated to her so as to cause McKesson, in its corporate capacity, to take some action with respect to Roby. Rather, these were events that were unrelated to Schoener's managerial role,
engaged in for her own purposes.
Does this clear things up? There was a bright line between personnel actions and harassing conduct before this case, supported by 15 years of authority. Does this mean that personnel actions now are evidence of harassment when the manager carrying them out is unpleasant? We will see how lower courts treat evidence of harassment after this decision.
Separately - the Court also analyzed punitive damages in employment law cases. After detailed analysis, the Court decided that a one-to-one ratio between actual and punitive damages was the constitutional limit. The Court based its conclusion on its conclusion that as a corporation, McKesson's conduct was not particularly "reprehensible." The Court also based its decision on the high damages award, warranting a lower ratio because of the actual damages' deterrence of similar conduct.
The Court also explained what a "managing agent" is for punitive damages purposes, clarifying prior rulings:
In this case, the Court of Appeal concluded that the jury could reasonably have found supervisor Schoener to be a "managing agent" of employer McKesson. On that basis, the court concluded that the jury's award of punitive damages could be justified based on Schoener's actions alone, regardless of whether more senior managers at McKesson were informed of Schoener's actions. We disagree.
At the time of Roby's termination, McKesson had over 20,000 employees; Schoener
worked at a local distribution center supervising four of them. When we spoke in White about persons having "discretionary authority over . . . corporate policy"
(White, supra, 21 Cal.4th at p. 577), we were referring to formal policies that affect a substantial portion of the company and that are the type likely to come to the attention of corporate leadership. It is this sort of broad authority that justifies punishing an entire company for an otherwise isolated act of oppression, {Slip Opn. Page 32} fraud, or malice. The record here does not support the conclusion that Schoener exercised that sort of broad authority or that she was a "managing agent" for purposes of awarding punitive damages under Civil Code section 3294, subdivision (b). Therefore, in assessing the reprehensibility of employer McKesson's conduct, we must look to what McKesson's more senior managers knew and did.
The case is Roby v. McKesson Corp. and the opinion is here.
No Workers' Compensation Benefits for Mean Employee
So Verga is a United Airlines employee. She is tough on her co-workers. They resent it and are mean to her. Verga files a workers' compensation claim for "stress" caused by the co-workers' "disdain." The Court of Appeal, agreeing with the Workers' Compensation Appeals Board, held: "No benefits for you!"
Here is the gist of it:
The case is Verga v. WCAB and the opinion is here.
Here is the gist of it:
The Workers’ Compensation Appeals Board (the WCAB) concluded that Rosemary
Verga was not entitled to compensation for psychiatric injury while employed by United Airlines. According to Verga, her psychiatric injury was the result of harassment and persecution by her supervisor and co-workers. However, the WCAB found “the true fact remains that [Verga] was not actually subject to harassment or persecution, she instead brought upon herself the disdain of her co-workers” because Verga was “a difficult person to get along with”; she was impolite, unpleasant, and co-workers “never knew when [she] might get upset.” The WCAB held: “That disdain is not an actual event of employment” within the meaning of the statute. [par.] We issued a writ of review and shall now affirm the WCAB order.
The case is Verga v. WCAB and the opinion is here.
Article: Sexual Harassment Training Not a How-to-Sue
Professor Caren Goldberg of American University concluded a study of 234 white-collar professionals in which she concludes sexual harassment training does not encourage employees to file lawsuits. The study's findings are reported in this article, published in the Insurance Journal on June 7. In California and Connecticut, training is the law anyway. But we have always believed the benefits of anti-harassment training outweigh the potential risks. This study backs up that conclusion.
DGV
DGV
California Court on Sexual Harassment Away from Work
When a supervisor accompanies an employee to events away from the workplace, claims for sexual harassment may still be available where the supervisor engages in misconduct. The Court of Appeal in Myers v. Trendwest Resorts reversed summary judgment in favor of the employer.
The court of appeal examined recent California Supreme Court authority and decided that Myers should be permitted to proceed against Trendwest. Myers' supervisor, Damlahki, engaged in conduct Myers claimed created a hostile work environment. The most serious allegations, however, occurred away from the workplace. Damlahki and plaintiff were on a job assignment and went to Damlahki's house. In the garage, Damlahki groped plaintiff etc. Another incident occurred at a social outing.
Trendwest's main argument was that it could not be liable for harassment that occurred outside the scope of Damlahki's employment. Trendwest argued it did not approve of the job assignment away from work, nor did it sponsor social drinking activities other than its holiday party. The Court of Appeal said that under recent case law,
The court of appeal examined recent California Supreme Court authority and decided that Myers should be permitted to proceed against Trendwest. Myers' supervisor, Damlahki, engaged in conduct Myers claimed created a hostile work environment. The most serious allegations, however, occurred away from the workplace. Damlahki and plaintiff were on a job assignment and went to Damlahki's house. In the garage, Damlahki groped plaintiff etc. Another incident occurred at a social outing.
Trendwest's main argument was that it could not be liable for harassment that occurred outside the scope of Damlahki's employment. Trendwest argued it did not approve of the job assignment away from work, nor did it sponsor social drinking activities other than its holiday party. The Court of Appeal said that under recent case law,
The trial court erred because, in order for the employer to avoid strict liability for the supervisor’s actions under the FEHA, the harassment must result from a completely private relationship unconnected with the employment. Otherwise, the employer is strictly liable for the supervisor’s actions regardless of whether the supervisor was acting as the employer’s agent.The employee's failure to complain, the company's anti-harassment policy, and the employee's agreement to accompany the supervisor on a weekend to Las Vegas (which did not occur), were all irrelevant. The fact that the incident in the garage occurred as the outcropping of a work-related drive was sufficient to confer liability on Trendwest. This standard is much broader than is applicable under traditional claims asserted against employers for conduct by employees. Employers must educate managers that they do not check their supervisory status at the plant gates and that their conduct away from work involving other employees may give rise to liability.
California Supreme Court Takes Up Unique Disability Discrimination Case
I covered Roby v. McKesson here in December. The California Supreme Court agreed to hear the case, which means the lower court's opinion no longer may be cited as precedent. Here is the issue on appeal:
This case presents the following issues: (1) In an action for employment discrimination and harassment by hostile work environment, does Reno v. Baird (1998) 18 Cal.4th 640 require that the claim for harassment be established entirely by reference to a supervisor's acts that have no connection with matters of business and personnel management, or may such management-related acts be considered as part of the totality of the circumstances allegedly creating a hostile work environment? (2) May an appellate court determine the maximum constitutionally permissible award of punitive damages when it has reduced the accompanying award of compensatory damages, or should the court remand for a new determination of punitive damages in light of the reduced award of compensatory damages?
So, the Court has agreed to decide if "harassment" is conduct separate and apart from managers' personnel decisions, or whether personnel decisions (demotion, discipline, etc.) can form part of a "harassment" claim. Check back in a couple of years for the exciting conclusion!
DGV
This case presents the following issues: (1) In an action for employment discrimination and harassment by hostile work environment, does Reno v. Baird (1998) 18 Cal.4th 640 require that the claim for harassment be established entirely by reference to a supervisor's acts that have no connection with matters of business and personnel management, or may such management-related acts be considered as part of the totality of the circumstances allegedly creating a hostile work environment? (2) May an appellate court determine the maximum constitutionally permissible award of punitive damages when it has reduced the accompanying award of compensatory damages, or should the court remand for a new determination of punitive damages in light of the reduced award of compensatory damages?
So, the Court has agreed to decide if "harassment" is conduct separate and apart from managers' personnel decisions, or whether personnel decisions (demotion, discipline, etc.) can form part of a "harassment" claim. Check back in a couple of years for the exciting conclusion!
DGV
AB 1825 Harassment Training Regulations Disapproved
The California Fair Employment and Housing Commission's regulations implementing AB 1825 (mandatory sexual harassment training) failed to gain approval from California's Office of Administrative Law. The FEHC made the announcement here.
The OAL's chief concern was that the regulations were not sufficiently "clear" in certain respects, particularly regarding who is qualified to prepare and conduct anti-harassment training under the statute. There were also some more technical flaws.
The FEHC plans to modify the regulations and publish them for a brief public comment period
before re-submitting them to the OAL. The FEHC's modifications may have a significant effect on existing programs, depending on whether the new standards "raise the bar" on who is qualified to prepare or conduct AB 1825 training.
Once the regulations are re-issued, employers should reevaluate whether their trainers and training programs meet the new standards.
DGV
The OAL's chief concern was that the regulations were not sufficiently "clear" in certain respects, particularly regarding who is qualified to prepare and conduct anti-harassment training under the statute. There were also some more technical flaws.
The FEHC plans to modify the regulations and publish them for a brief public comment period
before re-submitting them to the OAL. The FEHC's modifications may have a significant effect on existing programs, depending on whether the new standards "raise the bar" on who is qualified to prepare or conduct AB 1825 training.
Once the regulations are re-issued, employers should reevaluate whether their trainers and training programs meet the new standards.
DGV
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