Court Reverses Jury Verdict and Finds Company Liable for Failing to Prevent Sexual Harassment in the Workplace

In Turman v. Turning Point of Central California, Inc., 191 Cal. App. 4th 53 (2010), the Court reversed a jury verdict in favor of the defendant on plaintiff’s claim that the defendant failed to take reasonable measures to prevent sexual harassment in the workplace, concluding that there was insufficient evidence that the company “took corrective action to alleviate the abuse to which appellant was subjected.  As a result, the jury’s finding in the special verdict that respondent did not fail to take immediate and corrective action is not supported by substantial evidence, and the judgment must be reversed.”  Id. at 61.

In this case, the appellant had worked for the respondent, an owner of halfway house facilities in California “wherein federal and state prisoners are housed to transition them into the workforce and society prior to their full release on parole.”  Id. at 55.  “While appellant was at work, male residents would proposition her for sex, exhibit sexual gestures in front of her, and call her a ‘whore,’ ‘hoe,’ ‘bitch’ and ‘cunt.’  When appellant told [her supervisor] about the residents’ conduct, his response was to tell her, ‘they don’t really mean it,” or that she should ‘try and be nicer to ’em.’  The abuse by the residents made appellant feel degraded and sick. The only advice [her supervisor] gave [her] about the abuse was that she should not write up the residents for disciplinary violations as often as she did.  The abuse continued daily from 2002 until appellant’s termination in 2004.” Id. at 56.

“On January 8, 2004, appellant requested time off in writing because of work-related stress connected to the resident abuse.  Respondent denied the request for time off on the grounds that it was short on staff.  On January 9, 2004, appellant was terminated;” her termination memorandum stated “that a reduction in staff was necessary due to ongoing financial difficulties, and that two employees would no longer be working at night.”  Id.

As to appellant’s argument that there was insufficient evidence “produced at trial to support the jury’s verdict that respondent did not fail to take immediate corrective action to alleviate appellant’s hostile work environment,” the Court first stated that “FEHA establishes liability where nonemployees sexually harass an employee and the employer does not take action to alleviate the harassment.  Subdivision (j)(i)(1) of [Government Code] Section 12940 provides, in relevant part:  ‘An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, or persons providing services pursuant to a contract in the workplace, where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.  In reviewing cases involving the acts of nonemployees, the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of those nonemployees shall be considered.  An entity shall take all reasonable steps to prevent harassment from occurring.  Loss of tangible job benefits shall not be necessary in order to establish harassment.’”  Id. at 58-59.

The Court then stated

The evidence produced at trial was clear that appellant was subjected to sexual harassment by residents of the facility, in the form of lewd and sexually offensive name calling and reference to sexual acts.  It is undisputed that the jury’s finding that appellant endured a hostile work environment because of the harassment is supported by substantial evidence.  However, what is disputed is whether respondent took corrective action to alleviate the hostile work environment for appellant.  The jury specifically answered ‘[n]o’ to the question of whether respondent ‘fail[ed] to take immediate and appropriate corrective action.’

. . . .  

Respondent provides no reference to any evidence presented at trial that shows it took any corrective action to alleviate the hostile work environment. Instead, respondent asserts that ‘harassment by prisoners is inherently part of the job.’  While it may be true that male residents who are living under restricted conditions are likely to harass or mistreat their female supervisor, this does not absolve respondent of its legal responsibility under FEHA to take immediate and appropriate action to correct the situation.

. . . .

Here, respondent did not demonstrate any reasonable effort taken to alleviate the hostile work environment created by the residents of the halfway house.  Indeed, it appears the only response to appellant’s reported abuse was her supervisor telling her that she should issue fewer disciplinary citations to the residents so they would not continue to be mad at her.  Such conduct does not amount to corrective action to alleviate the abuse.

. . . .

Reviewing all factual matters in favor of respondent and in support of the judgment as we are charged to do, we do not find substantial evidence in the record that respondent took corrective action to alleviate the abuse to which appellant was subjected.  As a result, the jury’s finding in the special verdict that respondent did not fail to take immediate and corrective action is not supported by substantial evidence, and the judgment must be reversed.

Id. at 59-60 (emphasis added).

In addition, the appellant had also argued that the trial court incorrectly granted respondent’s motion to strike from the complaint the appellant’s request for punitive damages.  Id. at 63.  With respect to this issue, the Court first stated that “[i]n order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294.  These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice.  ‘Malice’ is defined in the statute as conduct ‘intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.’  ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.’  ‘Fraud’ is ‘an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.’”  Id. at 63 (internal citations to Civil Code Section 3294 omitted).

Based on these foundational principles, the Court concluded that the complaint “fail[ed] to state facts sufficient to support allegations that respondent acted with malice, oppression or fraud, as required by statute. Appellant persists that the punitive damages allegations are adequately pled, relying primarily on the underlying facts associated with the cause of action for gender discrimination.  However, as pled in this complaint, such facts do not rise to the level of malice, oppression or fraud necessary under Civil Code section 3294 to state a claim for punitive damages.  Therefore, the punitive damages allegations should not be revived when the matter is reversed and remanded.”  Id. at 63-64.

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