Court Rejects Employer's Attempt to Reverse Finding of Sexual Harassment Based upon Allegation That Employee's Testimony Was Inherently Improbable

December 27, 2011

Autozone did not accept responsibility for the fact that its managers, and thus Autozone itself, were found guilty of sexual harassment, leading it to appeal the jury's verdict and claim that the plaintiff's testimony was somehow "inherently improbable." The California Court of Appeal was able to accurately discern that the vile and filthy conduct of Autozone's managers made plaintiff's work environment a living hell for three weeks, resulting in a just verdict of sexual harassment. Fuentes v. Autozone (Nov. 16, 2011, B224034) _ Cal.App.4th _ [11 C.D.O.S. 13926].

Poor Ms. Fuentes, a part time customer service representative, was just trying to do her job at Autozone. Her manager had the audacity to humiliate her by grabbing her and spinning her around in front of laughing customers, instructing her to, "show your butt to the customers and that way you can sell more." When the customers returned later that day, the manager went at it again, ordering Fuentes: "Get ready to turn around for them." The Court of Appeal accurately characterized this conduct as "humiliating Fuentes by exploiting her body."

To add insult to injury, when Ms. Fuentes developed a fever blister on her lip, the same store manager started a vicious set of graphic discussions about how Ms. Fuentes must have obtained the blister, and how it was really herpes. This led to another manager spinning the rumor further, telling a coworker, "Be careful where you put your dick at with Marcelo [Fuentes]," implying that this described conduct was the cause of her blister. Some of these discussions occurred in front of laughing customers and coworkers. Some were repeated back to Ms. Fuentes. Ms. Fuentes testified regarding how these comments humiliated her and how, because she was having problems with certain male customers, she was concerned for her safety as she walked home from work at night.

The jury found for Ms. Fuentes on her claim of sexual harassment. Autozone appealed the jury's verdict in Ms. Fuentes's favor. It tried to make a mountain out of a molehill, asserting that some minor inconsistencies in the testimony (such as the dates on which certain things happened or the specifics of exactly what happened between witnesses) made plaintiff's testimony "inherently improbable" and thus the verdict should somehow be reversed! The Court of Appeal rejected this pathetic attempt to avoid liability, noting that "The evidence in this case is not 'inherently improbable.' It presents a common situation where there are inconsistencies and contradictions in trial testimony . . . this is for resolution by the jury. We infer the jury credited Fuentes's testimony and the testimony corroborating it . . . ."

It is important to note that this opinion stands for the proposition that for conduct to be "severe or pervasive" as required by the current case law on sexual harassment, it need not be long term. The court specifically noted that the three week period over which Ms. Fuentes was mistreated was a sufficient amount of time. This court noted that the conduct in question was especially egregious because the manager used the plaintiff's body in a way that was physically humiliating, and that the herpes rumors unreasonably interfered with the plaintiff's ability to do her job.

The Court distinguished Ms. Fuentes's situation from that of plaintiffs in other cases where the courts found for the employer (e.g., the conduct was specifically aimed at Fuentes, distinguishing Lyle v Warner Brothers Television Productions (2006) 38 Cal.4th 264; the conduct involved a physical threat and/or plaintiff's immediate supervisor, distinguishing Mokler v. County of Orange (2007) 157 Cal.App.4th 121; the conduct was not a few specific incidents spread out over a period of years, distinguishing Haberman v. Cengane Learning, Inc. (2009) 180 Cal.App.4th 365).

What this court--and all courts, really--should have said is: whether or not there is a hostile environment is a question of fact based on a totality of the circumstances from the point of view of the female employee in this predicament, and that this question is for the triers of fact, not the judges who consistently wish to substitute their own opinions and fact finding for that of the jury. It is only in rare and unique circumstances that the court should move in and take this determination away from the jury. Courts cannot seem to help themselves from overstepping their bounds, demonstrating, time and time again, that the courts are still male dominated and biased, and that they still do not understand what it means to be a working woman who simply wants to be afforded the basic dignity of being treated as a peer and equal, in accordance to her work performance, rather than her perceived sexuality. Once the courts somehow finally understand this, sexual harassment claims will take their place as equal to other claims, the law will be less convoluted, and women will be provided with the protections they are entitled to under the law.

Jody LeWitter
December 27, 2011