When Words Alone Constitute Severe and Pervasive Harassment

The old adage “sticks and stones may break my bones, but words can never hurt me” may apply in Eighth Amendment cruel and unusual punishment cases, but it doesn’t work in FEHA harassment claims.

In Augustine Caldera v. California Department of Corrections and Rehabilitation (CDCR), the Fourth Appellate District recently issued a published opinion finding that a two-year period of correctional staff mocking Officer Caldera for his stuttering constituted both severe and pervasive disability harassment.

While working at the California Institution for Men (CIM) in Chino, Officer Caldera alleged his stutter was repeatedly mocked by his Sergeant and others, including one time over the P.A. system when at least 50 others heard the mimicry.  Other CIM staff members, including a psychologist and another supervisor, testified that they had witnessed multiple incidents where Caldera was made fun of for his stutter and that he appeared upset by the teasing.

At trial, Officer Caldera alleged disability harassment, failure to prevent harassment, and retaliation.  The jury found for Caldera on the harassment claims and awarded $500,000 of emotional distress damages.  The jury did not find any adverse action, resulting in a defense verdict on the retaliation claim.  The trial court found the damage award to be excessive and granted defendants’ motion for new trial solely on the issue of damages.

Defendants filed an appeal as to sufficiency of the evidence that the harassment was severe or pervasive, and instructional and evidentiary errors.  Caldera filed a cross-appeal, contending the trial court failed to timely file a statement of reasons after granting the motion for new trial. The Court of Appeals agreed and reversed the order for new trial.  It affirmed the judgment in all other respects.

In upholding the harassment verdict, the Court of Appeal reasoned that under the FEHA, the law prohibiting harassment is violated when the workplace is permeated with discriminatory intimidation, ridicule, or insult that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”  Severe is defined as strongly critical and condemnatory or inflicting pain and distress.  Pervasive is “diffused throughout every part of.” A jury considers the totality of the circumstances and must only find the conduct is severe or pervasive.  Here, the jury found in a special verdict that the mocking of Caldera was both severe and pervasive.

The Court of Appeals found that the evidence established that Caldera found the harassment to be offensive and that a reasonable person in his situation would be similarly offended.  He described the conduct as demeaning, embarrassing, harmful, and hurtful.  The mocking was repeatedly done in front of others and was at times done in a mean-spirited and hurtful manner.  A psychologist testified the harassment caused Caldera to experience psychological disorders.  Thus, based on the totality of the circumstances, a jury could reasonably find the conduct was “severe.”

In terms of it being pervasive, there was testimony that the conduct had occurred 12-15 times over a two year period.  The Court found it striking that the Sergeant who made fun of Officer Caldera felt he could openly mimic Caldera’s stutter in front of prison supervisors, over the radio, and during a training class without any apparent shame or fear of reprisal.  Thus, there was sufficient evidence the harassing conduct was pervasive.

The Court of Appeal distinguished other cases in which there was an isolated incident without physical assault or a threat thereof, since Caldera presented evidence of as many as 15 incidents, so he was not required to show the harassing conduct included physical assault or threats of such.  Similarly, this case differed from those in which verbal comments were not aimed at specific persons.

This case is instructive in that if a plaintiff alleges that harassing verbal conduct occurred frequently, even if an isolated incident or two would not be actionable, it will be sufficient to create a dispute of fact.  It will then be up to the jury to decide whether it finds the conduct to be severe or pervasive.  This case also highlights why it is so important for supervisors not to engage in harassing or discriminatory conduct, such as teasing about someone’s race, gender, or disability, and why they should immediately curtail any such comments they overhear immediately.

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