Monday, July 9, 2018

Caldera v. Dept. of Corrections & Rehabilitation

Caldera v. Dept. of Corrections & Rehabilitation (CA4/3 G053168 7/9/18) FEHA Harassment/Severe or Pervasive

Under the Fair Employment and Housing Act (FEHA), an employee with a disability can sue his or her employer and supervisors for disability harassment.  (Gov. Code, § 12940, subd. (j)(1).)  The employee must prove the harassment was either severe or pervasive.  (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 466.)

Augustine Caldera is a correctional officer at a state prison.  Officer Caldera stutters when he speaks.  The prison’s employees mocked or mimicked Caldera’s stutter at least a dozen times over a period of about two years.  Sergeant James Grove, a supervisor, participated in the mocking and mimicking of Caldera’s stutter.  Such conduct reflected the prison’s culture, according to a senior prison official.

Caldera sued the California Department of Corrections and Rehabilitation (CDCR) and Grove (collectively defendants) for disability harassment, failure to prevent the harassment, and related claims.  A jury found the harassment to be both severe and pervasive and awarded Caldera $500,000 in noneconomic damages.  The trial court found the damage award to be excessive and granted defendants’ motion for a new trial solely as to that issue.  Defendants appeal and Caldera cross-appeals.

Defendants claim there is insufficient evidence the harassment was either severe or pervasive.  We disagree.  There is substantial evidence to support the jury’s factual findings.  Defendants also claim the trial court committed two instructional and one evidentiary error.  We find no prejudicial instructional errors and the claimed evidentiary error has been forfeited.

Caldera claims the trial court failed to file a timely statement of reasons after granting defendants’ motion for a new trial.  We agree.  The court’s new trial order as to the damage award is reversed.  In all other respects, the judgment is affirmed.


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