By Anthony J. Oncidi
Anthony J. Oncidi is a partner in and the Chair of the Labor and Employment Department of Proskauer Rose LLP in Los Angeles, where he exclusively represents employers and management in all areas of employment and labor law. His telephone number is (310) 284-5690 and his email address is aoncidi@proskauer.com. (Tony has authored this column without interruption for every issue of this publication since 1990.)
Taylor v. Nabors Drilling USA, LP, 222 Cal. App. 4th 1228 (2014)
Max Taylor worked as a floorhand on an oil rig. He alleged that his supervisors harassed him by calling him a "queer," "faggot," "homo," and "gay porn star," and subjected him to other humiliating and harassing conduct, including simulated masturbation in his presence. Following a trial, the jury awarded Taylor $160,000 in damages, including $10,000 for past economic losses. In its unsuccessful motion for judgment notwithstanding the verdict (JNOV), the defendant argued that Taylor had failed to prove that he was harassed "because of his sex and/or perceived sexual orientation" in the absence of evidence of actual sexual desire or intent by the harassers. The court of appeal affirmed denial of the JNOV motion on the ground that "the focus of a [sexual harassment] case is whether the victim has been subjected to sexual harassment, not what motivated the harasser." See also newly enacted Cal. Gov't Code § 12940(j)(4)(C) (same). The defense was also unsuccessful in challenging a defective special verdict form because it had failed to object to it before the jury was discharged. Because the jury had concluded that Taylor's employment had been lawfully terminated, the court reduced the verdict by $10,000 (from $160,000 to $150,000) but otherwise affirmed the verdict and the award of $680,520 in attorney's fees.
Mendoza v. Western Med. Ctr. Santa Ana, 222 Cal. App. 4th 1334 (2014)
Romeo Mendoza worked as a nurse for the hospital for more than 20 years. In late 2010, Mendoza reported that a supervisor (Del Erdmann) was sexually harassing him. Both Mendoza and Erdmann are gay. The hospital investigated Mendoza's complaint and determined that Erdmann had made inappropriate sexual comments to Mendoza and that he had shown his genitals to Mendoza. Erdmann contended that Mendoza welcomed the behavior and that he had "bent over provocatively" in front of Erdmann, requested that Erdmann display his genitals, and in fact had "assisted Erdmann in exposing his genitals." Erdmann claimed he was a "reluctant participant" in the conduct initiated by Mendoza. Upon completion of the investigation, the hospital fired both Mendoza and Erdmann for "unprofessional conduct." Mendoza subsequently sued for wrongful termination in violation of public policy (for reporting sexual harassment to his employer), and the jury awarded him $238,328, including $145,000 in past emotional distress damages. However, because the trial court instructed the jury to determine if Mendoza's reporting sexual harassment was "a motivating reason" and not "a substantial motivating reason" for his termination, as required by Harris v. City of Santa Monica, 56 Cal. 4th 203 (2013), the court of appeal reversed the judgment. The court rejected the employer's contention that its simultaneous termination of Erdmann was "conclusive proof" that it had acted in good faith in light of the "numerous shortcomings in the investigation" conducted by the employer following Mendoza's complaint.
Robert v. Stanford Univ., 224 Cal. App. 4th 67 (2014)
Francis Robert, an American Indian, was terminated from his employment at Stanford due to his harassment of a female Stanford employee. Before his termination, Robert was given several...
