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A California appeals court ruled that there was enough evidence to support a jury's award of more than $67,000 in damages to a former California Department of Parks and Recreation (DPR) employee who sued her supervisor.
The jury had found the supervisor liable for intentional infliction of emotional distress (IIED) while finding DPR not liable on harassment, discrimination and retaliation claims.
In December 2009, the supervisor hired the plaintiff as a staff services analyst (SSA) for DPR's Ocotillo Wells Off-Highway Motor Vehicle Recreation District (OWD). The plaintiff directly reported to the supervisor from the date she was hired until she went on medical leave on Sept. 28, 2011.
The plaintiff claimed that the supervisor asked employees overly personal questions, gave them unsolicited personal advice, and often discussed sex and sexual orientation.
When the plaintiff told the supervisor that she would be adding her domestic partner as a beneficiary of her health insurance, the supervisor allegedly replied: "So, you really like boobs better?"
Furthermore, on Sept. 27, 2011, the supervisor discussed with a nonsupervisory employee how she might more effectively manage the plaintiff. During that discussion, the supervisor allegedly disclosed information from the plaintiff's personnel file that she didn't pass the probationary employment period in a previous job. At the time of the discussion, the plaintiff was standing outside the supervisor's office, heard the supervisor discussing her personnel file with the nonsupervisory employee, and saw her personnel file open on the desk. The plaintiff became sick and threw up. She then went to her office, wrote an e-mail to a higher-ranking manager about the incident, and told the supervisor she was leaving work.
The plaintiff went on medical leave the following day and never returned to work at OWD.
In October 2011, she filed a formal discrimination complaint with DPR's Human Rights Office (HRO), alleging discrimination, harassment and retaliation. HRO interviewed many employees, completing its investigation of the complaint in May 2012.
In late December 2012, DPR notified the supervisor that she was going to be fired, and, in January 2013, the supervisor retired in lieu of termination.
Meanwhile, in August 2012, the plaintiff accepted an SSA position at DPR's Monterey location. On Oct. 17, 2012, she filed a complaint in superior court against DPR for discrimination and harassment based on sex and sexual orientation and retaliation in violation of the Fair Employment and Housing Act (FEHA) and against the supervisor personally for intentional infliction of emotional distress, among other claims. The jury returned verdicts in favor of DPR on the FEHA causes of action but against the supervisor on the IIED claim and several other claims. The jury awarded the plaintiff $19,200 for past economic damages and $19,200 for past noneconomic losses and $28,800 in punitive damages. The supervisor appealed.
Substantial Evidence to Support IIED Verdict Against the Supervisor
The supervisor claimed there was insufficient evidence to support the jury's finding that she was liable on the IIED claim, but the appellate court disagreed and affirmed the lower court's judgment.
The court noted that the jury was properly instructed that, to establish IIED, a plaintiff must show:
The jury was also properly instructed on the definition of "outrageous conduct," the court said. That instruction provided that, "Outrageous conduct is conduct so extreme that it goes beyond all possible bounds of decency. Conduct is outrageous if a reasonable person would regard the conduct as intolerable in a civilized community. Outrageous conduct does not include trivialities such as indignities, annoyances, hurt feelings, or bad manners that a reasonable person is expected to endure."
The court then concluded that there was substantial evidence to support the jury's verdict finding the supervisor liable on the IIED cause of action. There was evidence showing that the plaintiff was outside the supervisor's office when she discussed with a nonsupervisory employee that the plaintiff had failed her probation at a prior job. Immediately after overhearing that conversation, the plaintiff became ill, threw up and left work for the day, then went on medical leave the following day.
[SHRM members-only toolkit: Preventing Unlawful Workplace Discrimination in California]
In addition, there was trial testimony that while at a Sacramento hotel on a DPR business trip, the supervisor "flashed" her breasts in the presence of the plaintiff and others. The plaintiff also testified about other comments the supervisor had made about her sexual orientation and style of hair and clothing.
The jury could reasonably find that the supervisor's conduct was outrageous and supported a finding against her on the IIED cause of action, the court concluded.
Hurley v. California Department of Parks and Recreation, Calif. Ct. App., No. D070098 (Feb. 21, 2018).
Professional Pointer: The employer in this case was found not liable on the discrimination, harassment and retaliation claims filed against it, while a supervisor was found individually liable for intentional infliction of emotional distress and ordered to pay damages. The fact that, following a thorough investigation, the employer fired the supervisor certainly helped the employer defend the claims brought against it.
Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.
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