Caldera v. Department of Corrections & Rehabilitation

Facts

The statutory framework. The case arises under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). The court opened with the governing rule: “Under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.), an employee with a disability can sue his or her employer and supervisors for disability harassment. … The employee must prove the harassment was either severe or pervasive.” (Caldera, supra, 25 Cal.App.5th at p. 34.) The operative prohibition makes it unlawful “[f]or an employer … or any other person, because of … physical disability, mental disability, medical condition[,] … to harass an employee.” (Gov. Code, § 12940, subd. (j)(1); Caldera, at p. 38.) Liability for harassment “is broader than liability for discrimination” and, because it “extends to ‘any person,’” reaches “individual supervisory employees.” (Caldera, at p. 38.)

The plaintiff and the conduct. Augustine Caldera began work as a correctional officer in July 1994 and, at the time of the 2015 trial, had spent some twenty years at the California Institution for Men in Chino. (Caldera, supra, 25 Cal.App.5th at pp. 34–35.) Caldera stutters when he speaks. (Id. at p. 34.) Beginning in 2006 he worked as a mental health escort officer in the prison’s administrative segregation (Ad Seg) unit, transporting inmates to and from mental health appointments. (Id. at p. 35.) At some point Sergeant James Grove, a supervisor, “began mocking or mimicking Caldera’s stutter,” and he “always mimicked Caldera’s stutter when other employees were present.” (Ibid.) Caldera described the conduct as “demeaning,” “embarrassing,” “definitely harmful,” and “really hurtful,” and a psychologist testified that Caldera “had experienced psychological disorders as a result of the mimicking of his stutter.” (Ibid.) Asked to estimate how often Grove had mocked him, Caldera answered, “More than 5, less than 15.” (Ibid.)

Three incidents anchored the trial proof. On one occasion Grove, after Caldera broadcast an announcement, “got on the radio and mimicked what Caldera had said”; the transmission “could be heard by about 50 employees,” and a witness saw that Caldera’s facial expression “was in shock, saddened.” (Caldera, supra, 25 Cal.App.5th at p. 35.) During a busy shift change on September 2, 2008 — with about twenty-four correctional officers in the area — Grove responded to Caldera by saying, “‘F-f-f-f**k you,’” and, after Caldera threatened a formal complaint, “I don’t give a F-f-f. Make sure you get my name right.” (Caldera, at pp. 35–36.) And at an October 3, 2008 training class for supervisors, Grove “was again mimicking Caldera’s ‘speech impediment’” “throughout the whole conversation.” (Id. at p. 36.)

The pervasiveness proof came largely from Dr. Victor Jordan, a psychologist supervisor who by trial had become the prison’s chief psychologist and chief of mental health. (Caldera, supra, 25 Cal.App.5th at p. 35.) Dr. Jordan testified that he “personally heard prison employees mock or mimic Caldera’s stutter on many occasions” — “‘a dozen times that I’ve paid attention to’” — and agreed there was “‘a culture of joking’” at the prison about Caldera’s stutter. (Ibid.) After Caldera filed an EEO complaint on September 9, 2008, the prison nonetheless reassigned Grove to the same Ad Seg hall where Caldera worked, and Caldera “learned from others that Grove was continuing to mock and mimic his stutter.” (Id. at p. 36.)

Procedural history

Caldera sued CDCR and Grove for disability harassment, failure to prevent harassment, retaliation, and related claims. (Caldera, supra, 25 Cal.App.5th at pp. 34, 36.) The trial court initially granted summary judgment, but in an earlier unpublished opinion the Court of Appeal reversed, holding that triable issues of material fact existed as to each cause of action. (Id. at p. 36.)

On retrial the jury returned special verdicts finding that Caldera was subjected to unwanted harassing conduct based on his disability; that the harassment “was severe”; that the harassment “was pervasive”; that a reasonable person in Caldera’s position would have considered the environment hostile or abusive; that a supervisor participated in the harassing conduct; that the conduct was a substantial factor in causing harm; that CDCR had failed to take all reasonable steps to prevent the harassment; and that this failure was a substantial factor in causing harm. (Caldera, supra, 25 Cal.App.5th at pp. 36–37.) The jury rejected Caldera’s retaliation theory and awarded him $500,000 in noneconomic damages. (Id. at p. 37.) As the court was careful to note, although the jury answered “Yes” to both the “severe” and the “pervasive” questions, it “must find the prohibited harassment to be either severe or pervasive.” (Id. at p. 37 & fn. 1.)

Defendants moved for a new trial on grounds of insufficient evidence, irregularities in the proceedings, and excessive damages. (Caldera, supra, 25 Cal.App.5th at p. 47.) On December 14, 2015, within the statutory window, the trial court granted the motion “solely as to” the issue of excessive damages, conditioned on Caldera’s refusal of a remittitur to $100,000, but its minute order “[did] not include a statement of reasons.” (Id. at pp. 34, 47.) Defendants appealed the judgment; Caldera cross-appealed the new-trial order. (Id. at p. 34.)

Issue

Two questions framed the appeal. First, was there substantial evidence that the harassment Caldera endured was “either severe or pervasive,” where the conduct consisted of a supervisor repeatedly mocking and mimicking the officer’s stutter in front of others over roughly two years rather than any physical assault or threat thereof? Second, on the cross-appeal, must a trial court’s order granting a new trial on the ground of excessive damages be reversed where the court failed to file the statement of reasons that Code of Civil Procedure section 657 requires within ten days of the order?

Holding

Reasoning

Substantial evidence, not de novo reweighing, governed the severity inquiry. The court emphasized that its review “begins and ends with the determination as to whether, on the entire record, there is substantial evidence … which will support the determination,” and that the substantial-evidence standard “is generally considered the most difficult standard of review to meet … because it is not the function of the reviewing court to determine the facts.” (Caldera, supra, 25 Cal.App.5th at pp. 37–38.) The court “cannot ‘reweigh evidence or reassess the credibility of witnesses.’” (Id. at p. 38.) That posture proved decisive: whether harassment is severe or pervasive “is ordinarily one of fact,” to be measured against “the totality of circumstances.” (Id. at pp. 38–39.)

The single-incident principle cut against the employer, not for it. Defendants’ central argument leaned on the rule that an isolated incident must be physically threatening to qualify as “severe.” The court traced that rule to Hughes v. Pair (2009) 46 Cal.4th 1035, where the Supreme Court held that an isolated harassing incident “‘may qualify as “severe” when it consists of “a physical assault or the threat thereof.”‘” (Caldera, supra, 25 Cal.App.5th at p. 41.) But that principle, the court explained, governs isolated incidents — and Caldera’s case was the opposite. “Here, unlike Hughes, Caldera was not subjected to an isolated incident of harassing conduct.” (Ibid.) Dr. Jordan heard the mocking “on at least 12 occasions” and characterized it as the prison’s “culture,” and Caldera himself described “anywhere from five to 15 incidents involving Grove.” (Ibid.) “Because the harassing conduct occurred on more than one isolated occasion, Caldera was not additionally required to show that the harassing conduct consisted of physical assaults or threats of physical assaults under the holding of Hughes.” (Ibid.)

The court found the conduct severe on the totality of circumstances. The severity evidence was cumulative and specific: Caldera described the conduct as demeaning, embarrassing, harmful, and hurtful; “every time Grove mocked or mimicked his stutter, he did so in front of others”; the radio incident “was heard by about 50 employees and appears to have been particularly egregious”; the shift-change incident occurred before about twenty-four employees; the training incident before an unknown number of supervisors; and “[a] psychologist testified that the harassment caused Caldera to experience psychological disorders.” (Caldera, supra, 25 Cal.App.5th at p. 40.) On that record, “a jury could reasonably find that the harassing conduct was ‘severe.’” (Ibid.)

Pervasiveness drew on Fuentes and the two-year span. Borrowing the principle from Fuentes v. AutoZone, Inc. (2011) 200 Cal.App.4th 1221 that “[i]ncidents of harassing conduct over a short period of time may constitute severe or pervasive harassment,” the court reasoned a fortiori. (Caldera, supra, 25 Cal.App.5th at pp. 38, 40.) Where Fuentes found three weeks sufficient, Caldera’s harassment “roughly took place over a two-year timeframe from 2006 to 2008,” which “is certainly longer than the three-week period the court found to be sufficient in Fuentes.” (Id. at p. 40.) Dr. Jordan’s testimony that the conduct “was so pervasive that he regarded it as part of the culture at the prison,” reinforced by Sergeant Lara’s account of the training-class incident, supplied the rest. The court found it “striking” that the harassment “was so pervasive within the institution that Grove apparently felt he could openly mimic Caldera’s stutter in front of his peers … without any sense of shame or fear of reprisal.” (Ibid.)

The court distinguished the defense authorities and corrected a misreading of Etter. Defendants cited Hughes, Brennan v. Townsend & O’Leary Enterprises, Inc. (2011) 199 Cal.App.4th 1336, Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, and Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457 for the proposition that severe harassment requires “extreme behavior such as an assault.” (Caldera, supra, 25 Cal.App.5th at pp. 40–41.) The court distinguished Brennan and Lyle as cases in which the offensive conduct “was [not] verbally directed and specifically aimed at” the plaintiff, whereas Caldera’s harassment “was verbally directed and specifically aimed at Caldera.” (Id. at p. 42.) As to Etter, the court was pointed: defendants claimed “‘[t]he court found no actionable harassment existed.’” The response: “Wrong. The court made no such finding; the Etter opinion solely addressed the alleged instructional error.” (Id. at p. 43.) The court likewise rebuffed the defense’s “incomplete and misleading” statement of facts — which “completely fail[ed] to mention the testimony of Dr. Jordan” — while declining to deem the sufficiency claim forfeited and reminding the Attorney General of the “duty to fairly summarize all the facts in the light most favorable to the judgment.” (Id. at p. 43 & fn. 2.) Defendants’ final characterization of the conduct as “minor incidents of simple teasing and offhand remarks” failed because “these are plainly issues for the trier of fact,” and “[w]e cannot and will not second-guess the jury’s judgment.” (Id. at p. 43.)

The derivative and instructional claims failed in turn. Because the harassment findings stood, the failure-to-prevent claim — which requires that “actionable harassment occurred” — survived, the more so given that Grove “continued to mimic Caldera’s stutter at the training class” weeks after CDCR issued a cease-and-desist letter, letting the jury find the employer’s steps “not effective.” (Caldera, supra, 25 Cal.App.5th at pp. 43–44.) Reviewing the jury instructions de novo, the court found no prejudicial error: special instruction No. 7 (an employer’s failure to follow its own policies “may be evidence of pretext”) “correctly states the law,” and any error “is not reasonably probable” to have affected the outcome — indeed the instruction “arguably worked to defendants’ advantage.” (Id. at pp. 44–45.) Defendants’ proposed special instruction No. 17 — that “[t]he law does not exhibit ‘zero tolerance’” — was properly refused as “both duplicative and argumentative.” (Id. at pp. 45–46.) And the evidentiary claim, raised in two sentences with “no separate heading” and no citation to the record or authority, was forfeited under California Rules of Court, rule 8.204. (Id. at pp. 46–47.)

The new-trial order fell on a procedural defect, not the merits of damages. The court accepted that the order was entered within the sixty-day jurisdictional period under section 660 and so was “not ‘void.’” (Caldera, supra, 25 Cal.App.5th at p. 47.) But section 657 separately commands that, when an order granting a new trial “does not contain such specification of reasons, the court must, within 10 days after filing such order, … file such specification of reasons in writing.” (Ibid.) That ten-day period “acts as a sort of statute of limitations,” and a statement filed beyond it “is then ‘an act in excess of jurisdiction and is therefore a nullity.’” (Id. at pp. 47–48.) The trial court here filed its statement of reasons on February 11, 2016 — “well past the 10-day limit” — and defendants conceded the order was therefore “defective.” (Id. at p. 48.) Defendants’ fallback under Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892 — that the order could be affirmed on the “irregularities in the proceedings” ground also raised below — failed because the only alternative ground they actually argued on appeal was the special instruction No. 7 error, which the court had “already found … was not prejudicial.” (Id. at p. 48.) Because “a new trial is not legally required,” the order was reversed. (Ibid.)

Significance

Caldera is a useful published vehicle for two propositions that recur in FEHA harassment litigation. The first is doctrinal: the severe-or-pervasive standard is disjunctive, and the Hughes “physical assault or the threat thereof” gloss is confined to isolated incidents. Once a plaintiff shows repeated harassing conduct — here, mocking spread across two years and witnessed by a chief psychologist who called it the institution’s “culture” — the plaintiff need not additionally prove physical threat to establish severity. (25 Cal.App.5th at p. 41.) The decision thus pushes back on a common defense move that treats every harassment case as if it were a single-encounter case governed by Hughes, Brennan, and Lyle.

The opinion is also notable for confirming that purely verbal, non-physical disability harassment — mimicry of a stutter — can support a substantial $500,000 noneconomic award, and for its unusually blunt rebuke of an Attorney General’s brief that “misrepresent[ed]” the holding of Etter and presented an “incomplete and misleading” statement of facts. (Id. at p. 43.) Finally, the cross-appeal furnishes a clean restatement of the section 657 trap: even a substantively defensible new-trial order on excessive damages is a “nullity” if the statement of reasons misses the ten-day deadline, and it will not be salvaged on alternative grounds the movant fails to genuinely brief. (Id. at pp. 47–48.)

Key quotes

“Under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.), an employee with a disability can sue his or her employer and supervisors for disability harassment. … The employee must prove the harassment was either severe or pervasive.” (Caldera, supra, 25 Cal.App.5th at p. 34.)

“Here, unlike Hughes, Caldera was not subjected to an isolated incident of harassing conduct. … Because the harassing conduct occurred on more than one isolated occasion, Caldera was not additionally required to show that the harassing conduct consisted of physical assaults or threats of physical assaults under the holding of Hughes.” (Id. at p. 41.)

“This 10-day period acts as a sort of statute of limitations. … If the court files a statement of reasons beyond the 10-day period, the statement is then ‘an act in excess of jurisdiction and is therefore a nullity.’” (Id. at pp. 47–48.)

Read the full opinion (Justia) →

Practice pointer

Open questions

Because the court reversed the new-trial order on the procedural section 657 ground, it never reached the merits of whether $500,000 in noneconomic damages was excessive for purely verbal disability harassment. The opinion therefore offers no benchmark on the outer bounds of such an award; it holds only that the trial court’s particular order could not stand. Indeed, the subsequent history reflects that costs-and-fees and remand proceedings continued after this decision, leaving the ultimate damages posture to later litigation.

The decision also leaves undisturbed — without elaborating — the line between an “isolated incident” that triggers the Hughes physical-threat requirement and a course of conduct that does not. Caldera’s “more than one isolated occasion” comfortably cleared the line, but the opinion does not say how few incidents, or over how short a span, would return a case to Hughes territory. That boundary remains a fact-intensive question for the trier of fact in closer cases.