County hammered with $820,000 verdict for not protecting disabled employee

By Michael Futterman and Jaime Touchstone

California’s Fourth Appellate District recently upheld an $820,000 harassment verdict against Orange County for failing to stop or prevent nearly eight months of continuous harassment of a disabled corrections officer by county employees. Let’s take a look at the case.

Disabled corrections officer harassed online and at work

Ralph Espinoza worked for the Orange County Probation Department as a deputy juvenile corrections officer. He was born without fingers on his right hand. He was able to perform most tasks but was self-conscious and often kept his hand in his pocket.

In August 2006, county corrections officers started blogging about work. An anonymous post to one of the blogs stated: “I will give anyone 100 bucks if you get a picture of the claw. Just take your hand out of your pocket already!” Further blog posts referred to the “one handed bandit” and the “rat claw,” coupled with negative comments concerning Espinoza’s job performance. A coworker alerted Espinoza, and he began monitoring the blog.

The harassment worsened, and Espinoza’s coworkers began ignoring him. Some put their hands in their right pocket and smirked as he passed. They refused to allow him to pass through locked security doors, preventing him from doing his job and compromising his security. He found the word “claw” written in the workplace “many, many times.” In addition, his car was keyed, and the “form of a claw” was smudged on the windshield.

Espinoza complained orally and in writing about his coworkers’ harassment. One of his coworkers also complained on his behalf. Espinoza’s supervisor observed the harassment and told him the complaints were being investigated, but he didn’t commence any investigation.

Upon learning of the blog in August, the deputy chief probation officer ordered an investigation and informed all employees that the blog’s postings violated county policies. The county initially restricted the blog, but it didn’t completely block access to it until late October. However, the unit containing the offending bloggers wasn’t investigated, its members weren’t interviewed, and security tapes weren’t reviewed.

On October 6, the chief probation officer sent an e-mail to all employees asking for “help to stop the nonsense” and requesting that “the blog be put to rest,” describing it as “hurtful, destructive and highly unprofessional.” Neither HR nor upper management contacted Espinoza about his complaints.

Espinoza felt angry and betrayed and “couldn’t take it anymore.” He had difficulty sleeping and experienced physical pain, both of which caused him to distance himself from his friends and family. He became embarrassed to shake hands.

In April 2007, Espinoza’s doctor diagnosed him with high blood pressure, insomnia, and depression and stated that he couldn’t work because of the hostile work environment. The doctor put him on disability.

Espinoza sued the county. A jury found the county liable for harassment and failure to prevent harassment and awarded Espinoza over $820,000 in monetary damages for medical expenses, lost earnings, and mental distress. The county appealed, and in an unpublished opinion, the California Court of Appeal affirmed the decision.

County knew about harassment but failed to take prompt action

An employer is liable for harassment if it knows or should have known of harassing conduct by its employees and fails to take immediate or appropriate corrective action that is reasonably calculated to end the harassment and deter such conduct in the future. The employer’s obligation requires that temporary steps be taken while it investigates the complaint and that permanent remedial steps be implemented to prevent future harassment once the investigation is completed.

On appeal, the county argued that nonemployees were responsible for the offending conduct, all of which occurred outside the workplace. The county’s own investigation, however, revealed that its employees accessed the offending blog from workplace computers and that in response it had attempted to discourage use of the blog. The blog postings referred to Espinoza and discussed work-related issues. Furthermore, there were documented incidents of harassment in the workplace during which employees taunted Espinoza and vandalized his property.

The county further argued that it had antidiscrimination policies and procedures in place and that it responded reasonably to Espinoza’s complaints with a “prompt investigation.” However, the evidence showed that the county knew about the offensive blog for eight weeks before shutting it down. Moreover, its investigation was inadequate, and its remedial action fell short. Despite several complaints about the harassment, no witnesses were interviewed, none of the county’s requests to cease conduct was directed toward the nonblogging harassment, and no offenders were reprimanded.

Harassment was severe and pervasive

For an employer to be liable for unlawful harassment, the conduct must be “severe or pervasive” enough to create an objectively hostile work environment, judged from the perspective of a reasonable person in the employee’s position. An employee generally can’t recover for harassment that is occasional, isolated, sporadic, or trivial. Instead, he must show a concerted pattern of harassment.

The county argued that because Espinoza voluntarily read a blog that it didn’t create or supervise, the harassment didn’t constitute “pervasive conduct in the workplace.” However, Espinoza testified that he looked at the blog only to preserve evidence to pass on to his superiors. In addition to the blog, he was harassed repeatedly at work because of his disability.

Under the totality of the circumstances, a reasonable person would have considered the blog postings and the workplace harassment directed at Espinoza to be sufficiently harassing and threatening to satisfy the “severe or pervasive” test. Espinoza v. County of Orange (California Court of Appeal, Fourth Appellate District, 2/9/12, Unpublished).

Bottom line

Once workplace harassment from coworkers based on sex, a disability, or other protected categories comes to the attention of supervisory personnel, it’s critical that you conduct a thorough investigation and take prompt remedial action. In this case, even though the county had antiharassment policies and procedures in place, it failed to follow them adequately or respond appropriately in the face of highly unprofessional and cruel behavior by its employees. Those failures led predictably to a large verdict on behalf of the aggrieved employee, a result that may have been mitigated or avoided had the employer handled the situation better.

The authors can be reached at Futterman Dupree Dodd Croley Maier LLP in San Francisco, mfutterman@fddcm.com or jtouchstone@fddcm.com.

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