2006-19

Prison Physician's Personal Opinion and Theorizing Cannot Tie Unrelated Events Together in Order to Establish Retaliation Claim.

In McRae v. Department of Corrections & Rehabilitation, 2006 DJDAR 11586 (Cal.App. Aug. 29, 2006)(1), Dr. Margie McRae, a physician at the California Medical Facility in Vacaville sued the Department of Corrections and Rehabilitation and four individual defendants for discrimination and retaliation under the Fair Employment and Housing Act ("FEHA"). The trial court granted summary judgment to the four individual defendants, and Dr. McRae appealed the award of costs to these defendants. The case proceeded to trial against the Department, and a jury returned a verdict against McRae on her discrimination claim, but awarded her $75,000 on her retaliation claim. The Department appealed from the judgment entered on the jury's verdict and from the award of attorney's fees to Dr. McRae.

The Court of Appeal reversed the judgment in August 2005. However, the Supreme Court granted review, only to ultimately transfer the case back to the Court of Appeal for reconsideration in light of Yanowitz v. L'Oreal USA, Inc., 36 Cal.4th 1028 (2005). The Court of Appeal noted that while Yanowitz had an effect on the analysis of the appeal, it did not alter the outcome. Therefore, the court again reversed the jury verdict for Dr. McRae, and reversed the award of attorney's fees.

Dr. McRae filed her first complaint with the Department of Fair Employment and Housing ("DFEH") after she was not selected for the Chief Medical Officer position at the Solano prison facility. Her retaliation claim was based on her belief that her supervising physician, Dr. Raymond Andreasen, retaliated against her for filing the DFEH complaint, even though he had no involvement with Solano prison, or the hiring process for the position to which Dr. McRae had applied.

Dr. McRae reportedly left her duty in the emergency room on multiple occasions, and prevented a patient from receiving prescription medication even though she had not examined the patient. An internal investigation was started, and Dr. McRae filed her second DFEH charge. Dr. McRae then got into a confrontation with two nurses over a "HEPA" air filter near her desk. Immediately thereafter, she went out on a nonindustrial disability leave. Before Dr. McRae returned from her disability leave, she received notice from the Chief Deputy of Clinical Services that she was being transferred to the Solano Prison facility to alleviate any concerns of safety regarding the HEPA filter, and the two nurses against whom she had sought the restraining order. Dr. McRae then filed her third DFEH charge of discrimination, asserting that the transfer was a retaliatory act. Dr. McRae also filed an internal grievance regarding the transfer, which was denied. Dr. McRae then reported to work at the new facility, but left within three weeks and filed a lawsuit.

The court first discussed the ruling in Yanowitz, noting that "in many cases, the employee is affected by a series of employment actions, at least some of which might not, in and of themselves, constitute a material change in the terms or conditions of employment. In such cases, it is appropriate to consider the plaintiff's allegations collectively under a totality of the circumstances approach."

Dr. McRae attempted to tie the complained of actions together by asserting that they were all in some way engineered or furthered by Dr. Andreasen as part of his plan to discredit and injure her. However, she produced no evidence in support of her theory. Furthermore, Dr. Andreasen had nothing to do with her failure to get the position at the Solano facility.

The court distinguished Dr. McRae's case from Yanowitz, noting that in Yanowitz, all of the retaliatory actions were taken by the plaintiff's immediate supervisor and his supervisor. In contrast, Dr. McRae's allegedly wrongful acts involved different persons for different reasons, some of which had nothing to do with Dr. McRae's protected conduct. Furthermore, the plaintiff in Yanowitz had established that she was subjected to a hostile work environment, while Dr. McRae "made no showing that the events leading up to and including the letter of instruction and the investigation forced her to work in an abusive working environment or that her supervisors sought to humiliate or demean her."

The court individually assessed Dr. McRae's claim that the transfer to the Solano Prison was a retaliatory act because this act alone could have resulted in a change in the terms and conditions of employment. Dr. McRae testified she was not given a desk, lab coat, or orientation at Solano. The court noted that Dr. McRae quit her position at Solano after only two and one-half weeks, finding that she had not yet settled into the position, which would explain why she did not receive a desk, lab coat, or orientation. The court further held that the Department provided a compelling reason for the transfer:

"Her relationship with other CMF employees had so deteriorated that she had sought a restraining order against two nurses, had taken nonindustrial leave, and had not returned to work until nearly a year later. Dr. McRae had also expressed unhappiness with MOD duty, and was concerned that working in proximity to the HEPA filter endangered her health. Under those circumstances, the decision to transfer Dr. McRae into a new work environment had every appearance of being a reasonable management decision."

Dr. McRae argued that the Department should have taken action against the two nurses and Dr. Andreasen instead of transferring her. The court rejected this argument, stating "[t]hat some other action might also have addressed the Department's concerns does not establish that the Department's stated reasons for the transfer were pretextual." The court concluded there was not substantial evidence to support the verdict:

"Our conclusion is based in part on our finding that what Dr. McRae contended was a continuous course of conduct was in fact a series of events, each bearing little relationship to the others, and at least some of which clearly were not the result of unlawful retaliation. We also find that much of which Dr. McRae complains, whether considered piecemeal or as part of a continuous course of conduct, does not and cannot rise to the level of an actionable adverse action."

The court reversed the jury verdict and the award of attorney's fees. The court also ordered that Dr. McRae pay the costs of all defendants.

Back to Top | Back to Summaries

California Court of Appeal Rejects Plaintiff's Challenge To Jury Instructions in Disability Bias Case.

In Seever v. Copley Press, Inc., 141 Cal.App.4th 1550 (Aug. 15, 2006)(2), the Court of Appeal upheld a jury verdict in favor of defendant Copley Press where plaintiff Michael Seever contended at trial that his termination after 18 years was motivated by age, disability, and medical leave discrimination. Copley maintained that Seever's termination, along with those of 17 other people, was dictated by business necessity. The court held substantial evidence supported the jury verdict.

In 2001, the Daily Breeze eliminated 18 positions, including Seever's job as building superintendent. Contrary to a projected loss of $2 million for the year, the company showed a loss of $4.3 million for the year. Uncontradicted evidence was introduced at trial that the Daily Breeze was suffering hard times financially and laid people off for financial reasons. Further, before Seever was laid off, his supervisor had to write a business justification for the layoff recommendation, which included his belief that the department could operate capably without Seever as it had for four months when he had been out on leave.

The trial court made a notable ruling on Seever's trial subpoena on Copley for every single financial document relating to Copley and its divisions over the preceding five years. On a motion to quash by Copley, the trial court limited the subpoena to the profit and loss statements and balance sheets for the two years prior to Seever's termination, and any financial documents on which Copley planned to rely at the time of trial. The Court of Appeal said that was not reversible error.

Seever argued on appeal that he was entitled to a new trial by reason of the prejudice caused when the jury was given instruction nos. 9, 11, 13, 14, 15 and 16. The Court of Appeal analyzed each of these instructions, and ruled that their use was proper.

Instruction No. 9

"The purpose of the duty to engage in the interactive process is to make sure the parties take reasonable steps to arrive at a reasonable accommodation. The interactive process is not an end in itself -- it is a means to the end of forging reasonable accommodation."

Seever maintained that Copley's failure to enter into an interactive process following his presentation of a doctor's note requesting modified duty was mandatory. However, the court agreed with the defendant that the instruction was directly on point and clarified for the jury that the interactive process is not an end in itself but rather a device to arrive at an accommodation if one is necessary.

Instruction No. 11

"The term ?reasonable accommodation' as used in these instructions means making modifications to the work place which allows a person with a disability to perform the essential functions of the job as an employee without a disability. [?] An employer shall make reasonable accommodation to the disability of any individual with a disability if the employer knows of the disability. As part of its duty to make reasonable accommodations, an employer is not required to do any of the following: [?] 1. Create a new job position or bump an existing employee from his or her job; [?] 2. Change the structure of its business; [?] 3. Make the other employees work harder or longer hours in order to accommodate the disabled employee; [?] 4. Give the disabled employee the same pay or benefits for less work or less hours; [?] 5. Eliminate essential functions of the position which the employee held or sought; [?] 6. Put the disabled employee in a job that he/she is not qualified to do or is unable to do; or [?] 7. Promote the employee."

Seever's main complaint with jury instruction No. 11 was that it is made up from a patchwork of cases, and that it amounted to argument by the judge to the jury. However, the court agreed with the defendant that the instruction was proper in light of the fact that the jury was also given examples of reasonable accommodations under CACI No. 2542.

The court noted that "the duty to provide accommodation is not limitless, but is bound by the requirement that it be reasonable. As contended by Copley, the jury was entitled to be instructed on both sides of what does and what does not constitute reasonable accommodation. The fact that the jury heard both sides of the issue does not work an unlawful prejudice against Seever."

Instruction No. 13

"Employers are not required to transfer individuals whose positions have been eliminated or to bump employees with less seniority, simply because the individual whose position is being eliminated belongs to a protected class. Employers who reduce their work force for economic reasons incur no duty to transfer an employee to another position within the company."

Seever argued that because of his disability, he was entitled as a matter of right to a transfer to a new position which was created after his original position was eliminated. By virtue of his alleged disability, instruction No. 13 prejudiced him by giving an erroneous statement of the law on his claim. However, the court agreed with Copley that "employers ... are not required to give disabled employees super seniority and permit them to bump other employees where the reason the disabled employee is taken out of his or her position is for an unrelated but legitimate reason such as a reorganization or business downsizing."

Instruction No. 14

"Employees who require a reasonable accommodation for their disability from their employer have a duty to inform their employer of this need. This notice then triggers the employer's burden to take positive steps to accommodate the employee's limitations. Where an employee fails to inform the employer that an accommodation is needed, the employer is under no duty to provide a reasonable accommodation."

Seever argued that instruction No. 14 was an incorrect statement of the law of California because employers who are aware of an employee's disability have an affirmative duty to make reasonable accommodations for such disability, and that this duty arises even if the employee has not requested any reasonable accommodation. Seever argued that the duty to find reasonable accommodation was triggered when he presented Copley with his doctor's notes stating his work restrictions. The court found "this argument to be disingenuous for several reasons, the primary of which is to note there is no evidence in the record that the doctor's notes addressed any needed accommodation by Seever to enable him to perform a non-physical desk job." The court also made clear that "the employer must be aware of the need before the duty to accommodate arises."

The court further held that the employer is not required to be clairvoyant: "We agree with Copley that Copley was not required to mind read even assuming that Seever actually needed some accommodation for a non-physical desk job in the first place. No prejudice was suffered by Seever in the giving of instruction No. 14."

Instruction No. 15

"An employee who is disabled as the term is defined under the Fair Employment and Housing Act is entitled to a ?reasonable' accommodation, not necessarily the perfect accommodation, his preferred accommodation, or the specific accommodation that the employee chooses."

The plaintiff argued that this instruction was simply argument, irrelevant to the facts of the case, and contrived to merely enable the employer to argue through the device of a jury instruction. The court found no error, and held that the instruction is a correct statement of the law.

Instruction No. 16

"An employer is not required to offer a choice of reasonable accommodations. The employer has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the one which is easier for it to provide."

Again, the court approved the instruction, and noted that the plaintiff failed to specify any miscarriage of justice in giving the instruction.

Back to Top | Back to Summaries

Employer's Hidden Camera in the Workplace Supports Invasion of Privacy Claim Even If Employees Were Not Actually "Captured" on Tape.

In Hernandez v. Hillsides, Inc., 2006 DJDAR 12519 (Cal.App. Sept. 14, 2006)(3), two employees successfully appealed from a summary judgment for the employer-defendant on their invasion of privacy claim. The claim was based upon a hidden video camera which had been placed by the employer in the office where the plaintiffs worked. Summary judgment was awarded on the privacy claim, as well as the plaintiffs' emotional distress claims, because the plaintiffs were not actually recorded or viewed by the surveillance equipment, and had a diminished expectation of privacy that was overcome by the defendants' need to protect the children residing at their facility.

Hillsides, Inc. and its Director, John Hitchcock, operated a residential facility for approximately 66 abused and neglected children between the ages of 6 and 18. The wireless video cameras were placed in multiple locations, including on a shelf in the plaintiffs' office, without their knowledge. Management had installed the cameras in order catch an unknown party who was accessing various computers in the evening hours, after the offices were closed. Hitchcock's practice was to connect the wireless receptor after working hours and to disconnect it before working hours began each morning. However, he did not testify that he turned the camera off during the day, but simply disconnected the wireless receptor so that nothing was being recorded or watched during the working day. On October 25, 2002, at 4:30 p.m., plaintiffs noticed a blinking red light on the shelf in their office, and quickly discovered that it was connected to a video camera. The plaintiffs complained to management. In September 2003, the plaintiffs filed suit for invasion of privacy, intentional and negligent infliction of emotional distress. In December 2004, the defendants filed a motion for summary judgment.

Defendants argued that the plaintiffs' cause of action for invasion of privacy failed because: (1) the plaintiffs were never recorded or viewed by the camera in their office; (2) the plaintiffs had a diminished expectation of privacy in their window-office; and (3) even if plaintiffs had any expectation of privacy, it was overcome by the defendants' need to catch the culprit in order to protect the children from any possible abuse or exposure to such activity. The trial court granted summary judgment.

The Court of Appeal reversed and found that: (1) publication was not an element of the invasion of privacy claim; (2) the window, which also had shades, did not create a diminished expectation of privacy for the plaintiffs; and (3) while the surveillance might have been justified, the defendants failed to offer sufficient evidence to establish that the particular circumstances warranted the surveillance of the plaintiffs' office. The court noted, however, that the fact that the plaintiffs were not actually captured on videotape should have an effect on their damages.

Back to Top | Back to Summaries

State Found Liable For Prison Officials' Failure to Correct Male Prisoners' Harassment of Female Guards.

In Freitag v. Ayers, 2006 DJDAR 12472 (9th Cir. Sept. 13, 2006)(4), plaintiff Deanna Freitag sued the state under Title VII for failure to correct a hostile work environment at a prison facility. The hostile work environment was created by the male prisoners' sexual harassment of female guards. Defendant Department of Corrections appealed the jury verdict for Freitag on the Title VII claim, but the Ninth Circuit affirmed.

Freitag is a former correctional officer at the Pelican Bay prison who complained of "the pervasive practice of inmate exhibitionist masturbation directed at female officers." During her employment, Freitag witnessed at least eight incidents of inmate masturbation, some of which included other obscene acts and obscene remarks aimed at Freitag. Many of Freitag's disciplinary reports on these inmates were either destroyed or ignored by her superiors.

Freitag complained of a hostile work environment in a letter to the Director of the Department of Corrections. Several days later, she was relieved of her duty pending a psychiatric evaluation, and threatened with termination. Freitag's superiors also initiated two internal affairs ("IA") investigations of Freitag. Freitag then filed a complaint with the DFEH alleging a hostile work environment, and retaliation for complaining of same. Freitag also wrote letters to state Senator Richard Polanco complaining of the harassment and failure to address her complaints. The Senator requested the Inspector General ("IG"), who oversees the prison, to conduct an investigation into Freitag's allegations. The court referred to the IG Report as "uniformly and pointedly damning." During the IG investigation, Pelican Bay issued two notices of adverse action against Freitag, and ultimately terminated Freitag before the IG Report was issued. Freitag filed an appeal of her termination to the State Personnel Board, which was still pending at the time of her appeal.

Freitag filed a complaint in district court alleging that the Department was in violation of Title VII by allowing a hostile work environment, and for retaliating against her for her complaints about the harassment. She also alleged her superiors were personally liable for violating her rights under 42 U.S.C. ? 1983, and for conspiracy to violate her constitutional rights under ? 1985. The district court partially granted defendants' motion for summary judgment, but denied the motion as to Freitag's Title VII claim and her claim under ? 1983 that the individual defendants retaliated against her for exercising her First Amendment rights. A jury trial resulted in a unanimous verdict for Freitag, awarding her $500,000 in economic damages, and $100,000 in punitive damages against all defendants, plus an additional $100 in punitive damages against each of the individual supervisor-defendants.

The defendants appealed the verdict, arguing that the Department could not be liable under Title VII for a hostile environment created by inmates, and even if it could be liable, substantial evidence did not support the jury verdict against any of the defendants on the Title VII claims. The Ninth Circuit rejected the defendants' "novel position" that prisons and prison officials were somehow immune to liability for sexual harassment under Title VII, finding no legal authority or Congressional intent under the law for such position. The court also found no basis upon which to overturn the jury's determination that Freitag was subjected to sex-based harassment, that the conduct was unwelcome, and that the conduct was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. The court also found substantial evidence supporting the jury's conclusion that the prison failed to take prompt and effective remedial action.

The defendants presented two arguments against the retaliation claim. First, Freitag's complaints were not reasonably understood to be complaints of unlawful employment actions since prisons are not liable for sexual harassment by inmates. Since the court found prisons can be liable for sexual harassment by inmates, this argument was rejected. Second, the defendants argued they were not aware that an employer cannot engage in unlawful retaliation if it is not aware that the employee has opposed a violation of Title VII. The court rejected this argument, citing the various complaints and letters from Freitag which cited a "hostile worksite" and sought recompense for her injury.

Back to Top | Back to Summaries

1. Opinion by Stein, Acting P.J., joined by Swager and Margulies, JJ.

2. Opinion by Woods, J., joined by Perluss, P.J., and Johnson, J.

3. Opinion by Croskey, Acting P.J., joined by Kitching and Aldrich, JJ.

4. Opinion by Reinhardt, J., joined by Noonan and Hawkins, JJ.