Severe or Pervasive?

Under the Fair Employment and Housing Act, an employee with a disability can sue his or her employer and supervisors for disability harassment.   The employee must prove the harassment was either “severe OR pervasive.”  (This standard is often misquoted as “severe AND pervasive.”)

Plaintiff is a correctional officer at a state prison who stutters. Between 2006 -2008, some of the prison’s employees mocked or mimicked his stutter about a dozen times.  A supervisor participated in the mocking and mimicking of Plaintiff’s stutter.  According to a senior prison official who testified at trial, this mocking reflected the prison culture.

Plaintiff sued the California Department of Corrections and Rehabilitation and the supervisor for disability harassment and related claims. The trial court granted summary judgment for Defendants. The 4th Appellate District reversed in an unpublished opinion.

The case went to trial and a jury found Defendants harassed Plaintiff because of his disability and found the harassment both severe and pervasive.  Plaintiff had no economic damages. The jury awarded him $500,000 in noneconomic damages. The trial court found the damage award to be excessive and granted defendants’ motion for a new trial solely as to that issue. Both parties appealed.

I will write more about this case in my article – “The Neutral Corner” published monthly in the Los Angeles Daily Journal.  For now, one of the key takeaways from this case is the discussion of the the “severe or pervasive” standard.

Here is the evidence the court found sufficient to constitute both severe AND pervasive harassment.  Again, either prong would have sufficed to impose liability on Defendants.

As far as the harassing conduct being severe, 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, Dr. Jordan said that he witnessed the harassing conduct on at least 12 occasions. Caldera estimated that Grove had mocked or mimicked his stutter anywhere from five to 15 times. Although neither Dr. Jordan nor Caldera provided exact dates as to when each incident occurred, their testimony reasonably indicates that the harassing conduct roughly took place over a two- year time frame from 2006 to 2008. . . . Dr. Jordan further testified the harassing conduct was so pervasive that he regarded it as part of the culture at the prison. Dr. Jordan’s testimony was also bolstered by the testimony of Sergeant Lara, who witnessed the harassing conduct during the training class.

It seems striking to us that the harassment was so pervasive within the institution that Grove apparently felt he could openly mimic Caldera’s stutter in front of his peers (a group of prison supervisors) without any sense of shame or fear of reprisal. It appears plain to us there was sufficient evidence upon which the jury could reasonably determine that the harassing conduct was “pervasive.”  

Given the summary of this record, one wonders why two Attorneys General, Harris and Becerra, thought it was worth spending taxpayer money to defend against this conduct.  Who knows if reasonable settlement offers were made?  Many, if not most, employers would have a hard time paying a significant sum of money to a current employee whose stutter or accent or limp was mocked a dozen times or so over a two-year period.  Perhaps this case will cause employers to step up training not just to address METOO sexual harassment issues but other types of harassment as well.  Could the state have fired this supervisor?  Would termination for mocking a subordinate’s stutter have survived the grievance process?  What training did the Department of Corrections provide on equity issues?  Why is their a prison doctor who tolerates “harassing conduct done in a mean spirited and harmful manner without doing anything about it?  As usual, this case generates more questions and food for thought than the holdings on the various issues would indicate.

The judge granted a motion for new trial unless Plaintiff accepted a reduction in damages to $100,000 but did not file a timely statement of decision.  More on that later.  Also, the court called out the State for misrepresenting a holding of a case.  Yikes! More on that later too.

I Will Never Use That Mediator Again

In my last post, I offered a list of mediators’ common pet peeves with attorneys. So, I think it’s only fair that I post a similar list of reasons lawyers give for not using a mediator again.

Prejudging or Evaluating too Early– Especially in an area where a mediator is a bona fide expert in the issues involved in the case, it is easy and tempting for the mediator to reach a conclusion and attempt to drive the parties to that pre-determined conclusion. Even if the case ends up there, the worst mistake is for the mediator to drive the train rather than act as the conductor.

Personalizing – The mediator’s job is to assist the parties in reaching a settlement. It’s not to be well-liked. Nor is it to demonstrate that the mediator is the smartest person in the room. Avoid petty personal conflicts with counsel.

Coming Unprepared to the Mediation – Mediators complain about lawyers who are unprepared. One of the biggest sins a mediator can make is not preparing for the mediation. I conduct pre-mediation calls with each side separately so I can prepare for both legal issues and personal issues that are likely to arise.

Giving up too Early – Achieving a negotiated resolution in a litigated case is hard work. Persistence is required. A mediator who is perceived as punching a time clock or watching the clock to bill for every second of time is unlikely to be rehired. Often, after a lengthy session, the parties are primed to settle. They just need a cooling off period. Perhaps they cannot concede in person after heated, protracted negotiations. The mediator who does not make the timely follow up phone call is unlikely to get repeat business.

Embarrassing the Lawyer in front of the Client – Oops. I did this once by mistake. Counsel had been sanctioned by the court in a discovery dispute. During the mediation, she repeatedly cast aspersions on opposing counsel. I eventually reminded her that opposing counsel was not the one sanctioned by the court. Apparently, counsel had not told her client about the sanctions. Didn’t settle that case. Didn’t get hired again. Mediators need to be aware of when to discuss issues with attorneys outside the presence of the client. I am now keenly aware of what I should and should not say to attorneys in the presence of a client.

Appearing to be anything other than Neutral –A settlement does not necessarily equal a successful mediation. I am aware of cases which have settled when the parties kicked the mediator out of the room. Most parties and counsel care about the process. Were they treated with respect? Did the mediator empathize with their position? Did the mediator allow each party to say everything the party wanted to say? Did the mediator understand the legal issues? Did the mediator give best efforts in trying to persuade the other party? Mediators who provide a good process will be hired again. Those who do not won’t.

What would you add to the list?