California Appellate Court Approves Nearly $2.25 Million Jury Verdict in Sexual Harassment Case

In an unpublished opinion, Moran v. Qwest Communs. Int’l, 2012 Cal. App. Unpub. LEXIS 6269 (Aug. 27, 2012), the California Court of Appeal approved a nearly $2.25 million jury verdict in favor of the plaintiff, finding the defendants—plaintiff’s employer, Qwest Corporation, and plaintiff’s supervisor, Dennis Sherwood—liable for sexual harassment and finding defendant Qwest liable for failure to take reasonable steps to prevent sexual harassment and for terminating the plaintiff in violation of public policy.

In Moran, the Court rejected defendants’ arguments on appeal that the jury’s findings of liability were not supported by substantial evidence.  Specifically, in response to the defendants’ argument that “Moran testified to only a handful of incidents with any sexual tinge whatsoever over a roughly 19-month span of employment” and that courts in other cases dismissed sexual harassment claims even though the conduct in those cases was allegedly more severe or pervasive than in this case, the Court disagreed.  The Court stated:  “The problem with defendants’ argument is that it ignores Sherwood’s actions towards Moran that did not have a “tinge” of sexual content.  ‘Sexual harassment does not necessarily involve sexual conduct.  It need not have anything to do with lewd acts, double entendres or sexual advances.  Sexual harassment may involve conduct, whether blatant or subtle, that discriminates against a person solely because of that person’s sex.’  Hostile  work environment sexual harassment ‘shows itself in the form of intimidation and hostility for the purpose of interfering with an individual’s work performance.’”  Id. at *44-45 (quoting Accardi v. Superior Ct., 17 Cal. App. 4th 341, 345, 348 (1993)).

The Court identified the following facts as supporting the sexual harassment verdict:  “During 2007 Moran was meeting her sales quota and Sherwood regarded Moran’s performance as satisfactory.  Despite these facts, during the last quarter of 2007, Sherwood imposed a requirement that Moran be present at a different Qwest sales office each day, adding many hours of extra driving time per week.  Sherwood knew that driving caused Moran pain because of her knee injury and the extra driving reduced Moran’s ability to perform the tasks upon which her performance was judged.  Sherwood also subjected Moran to numerous, distracting phone calls to check on her whereabouts and activities.  When Moran finished one of her required activities at a Starbucks after a physical therapy session in order to meet a deadline, Sherwood repeatedly challenged her reasonable justification for doing so and told her that she was on ‘thin ice’ with the company, that he was ‘turning up the heat’ on her and that he knew he was ‘making it very uncomfortable’ for her.”  Id. at *44-45.  The Court held that based on these facts, “[t]he jury could reasonably conclude that, during the last three months of 2007, Moran daily experienced physical pain imposed by Sherwood’s driving requirement, was forced to waste many hours driving instead of performing useful tasks, and was distracted daily, perhaps even hourly, by Sherwood’s calls or emails that conveyed the message that Sherwood distrusted her and had no confidence in her. The jury could also conclude that Sherwood intended to undermine Moran’s morale and performance, and that a reasonable woman in Moran’s position would find these actions hostile, abusive, and destructive of work performance. We conclude that substantial evidence supported the jury’s finding that Sherwood’s harassment of Moran was severe or pervasive.”  Id.

The Court also concluded that there was sufficient evidence that Sherwood harassed the plaintiff on account of her gender.  The Court cited the United States Supreme Court’s decision in Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998), in which the Court “noted three ways that a plaintiff might demonstrate that harassing behavior was based on gender: (1) ‘proposals of sexual activity’; (2) harassment ‘in such sex-specific and derogatory terms . . . as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace’; and (3) ‘direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.’”  Id. at *46.

The Court stated that “[m]ost of Moran’s evidence comes in the second category, sex-specific and derogatory terms.  Sherwood used terms, when talking to Moran or about Moran to others, that Moran characterizes as ‘sex stereotypical terms’: ‘emotional’; ‘silly girl’; comparing Moran ‘to his insecure 15-year-old daughter’; and that her parents did not ‘raise [her] properly.’  Sherwood expressed speculation about Moran’s relationships, or lack thereof: ‘good at being single’; ‘going out looking for sex’; ‘I want proof that you have a boyfriend.’  Sherwood made disparaging remarks about other female employees: Lappin made ‘too much money’ and didn’t need to work because her husband was rich; Lappin was an ‘aggressive, assertive woman;’ Huynh made a sale because of her boyfriend’s help.  Sherwood also made comments about Lyn’s tight shirt and referred to her ‘tits or something.’”  Id. at *47-48.  And “[a]s for the third Oncale category, direct comparative evidence, Moran testified that male colleagues were not subjected to the kinds of personal comments to which Sherwood subjected Moran.  Similarly, Lyn testified that Sherwood was more reverent to male employees but condescending or disinterested in her.  When Sherwood hired a second CPE overlay, Larsen, a male, Moran was assigned to work with the less senior sales representatives.  Even though Moran continued to meet her sales quota during 2007 and Larsen did not, Sherwood ‘turn[ed] up the heat’ on Moran and told her that she was on ‘thin ice’ with the company.”  Id. at *48.

As for the defendants’ argument that, “at most, Moran proved that Sherwood ‘was just an indiscriminately vulgar and offensive supervisor, obnoxious to men and women alike,’” the Court disagreed, finding that “[t]he words and incidents recited above present numerous and varied indications from which a reasonable jury could infer that Sherwood’s hostility to Moran was motivated by her gender.  Id. at *47-48.

The Court also affirmed the jury’s verdict against Qwest for failing to take reasonable steps to avoid sexual harassment, finding that where company management failed to take seriously the plaintiff’s and other employees’ complaints of harassment, “[s]ubstantial evidence supported the jury’s finding that Qwest failed to take reasonable steps to avoid the sexual harassment of Moran.”

Based on these conclusions, the Court affirmed the jury’s award of $492,710 for economic damages and $1 million in punitive damages, but reversed the jury’s $2.8 million award for noneconomic damages, finding that award unsupported by the evidence and ordering a new trial on that issue unless the plaintiff agreed to accept $750,000 for noneconomic damages in lieu of a new trial.

*****

Bernstein & Friedland, P.C. is a boutique employment law firm in Los Angeles specializing in wrongful termination, discrimination, harassment, retaliation, and unpaid wage and overtime matters.  Please visit our website at www.laemploymentcounsel.com to learn more about us.

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