Corrections Officer Mocked for Stuttering Keeps Jury Award


By Joanne Deschenaux July 23, 2018

A corrections officer at a state prison who stutters was entitled to a jury award of $500,000 in a disability harassment case, the California Court of Appeal ruled.

Under the California Fair Employment and Housing Act (FEHA), unlawful harassment occurs when the workplace is permeated with discriminatory intimidation, ridicule and insult that is "'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."

[SHRM members-only Q&A: What is FEHA and what does it cover?]

The evidence introduced at the corrections officer's trial showed that a prison supervisor mocked or mimicked the officer's stutter at least a dozen times over a period of about two years. This was sufficient, the appellate court said, to support the jury's findings that the harassment was both severe and pervasive.

The plaintiff began working as a correctional officer in a California prison in July 1994. Starting in 2006, he began working as a mental health escort officer within the administrative segregation unit of the prison—an area where inmates with disciplinary issues or mental health needs are housed. The plaintiff's primary duties were to transport inmates to and from their mental health appointments.

Between 2006 and 2008, the supervisor and the plaintiff mostly worked in two different sections of the unit. The plaintiff alleged that at some point, the supervisor began mocking or mimicking his stutter when other employees were present. On one occasion, the plaintiff said, the supervisor mimicked his stutter over the prison's radio system. The transmission could be heard by about 50 employees.

The plaintiff sued the California Department of Corrections and Rehabilitation and the supervisor for disability harassment and related claims. The jury found that the plaintiff was subjected to severe and pervasive harassing conduct based on his disability and awarded him $500,000 in damages. The defendants appealed, arguing that because there was insufficient evidence the harassing conduct was either severe or pervasive, the jury verdict could not stand. The appellate court disagreed and upheld the verdict.

Severe or Pervasive Harassment

The court first noted that, under FEHA, all harassment claims require severe or pervasive conduct, and, as to whether the alleged conduct is sufficiently severe or pervasive, a jury is to consider the totality of circumstances. Incidents of harassing conduct over a short period of time may constitute severe or pervasive harassment, the court noted.

In this case, the plaintiff described the conduct he was subjected to as demeaning, embarrassing, harmful and hurtful. He testified that every time the defendant mocked or mimicked his stutter, he did so in front of others. A psychologist testified at trial that the harassment caused the plaintiff to experience psychological disorders. Based on the totality of circumstances, a jury could reasonably find that the harassing conduct was severe, the appellate court said.

As far as the harassing conduct being pervasive, a psychologist who worked in the plaintiff's unit testified that he witnessed the harassing conduct on at least 12 occasions. The plaintiff estimated that the defendant had mocked or mimicked his stutter anywhere from five to 15 times and that the harassing conduct took place over a two-year period from 2006 to 2008.

The prison psychologist further testified that the harassing conduct was so pervasive that he regarded it as part of the culture at the prison.

"It appears plain to us," the court said, that "there was sufficient evidence upon which the jury could reasonably determine that the harassing conduct was 'pervasive.' "

Caldera v. Department of Corrections and Rehabilitation, Calif. Ct. App., No. G053168 (July 9, 2018).

Professional Pointer: To prove hostile environment workplace harassment, a plaintiff need show only that the harassing conduct was either severe or pervasive. The plaintiff here showed that the conduct was both.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md. 


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