Bay Area Employment Lawyer Blog

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

In the arena of sexual harassment, we've come a long way, baby. In general, the public is more aware of what conduct is forbidden in the workplace, and many employers train managers and employees alike to prevent such conduct. As a society, we are much more likely to have work environments free from sexual harassment than we were when the U.S. Supreme Court first clearly defined sexual harassment hostile environment cases as illegal in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).

However, this progress should not make us close our eyes to inexplicable legal decisions where the courts simply don't seem to get it. First, there is the judicially created doctrine that a claim for sexual harassment must involve conduct that is "severe or pervasive." This judicial fiction can be used to permit abhorrent conduct in the workplace, and label it as "not sexual harassment." Second, the concept of "severe or pervasive" is, to put it mildly, a subjective concept subject to the decision maker's own bias or perspective. In particular, the bias of judicial gatekeepers, who throw out sexual harassment cases before they reach a jury or overturn jury verdicts finding the plaintiff was a victim of sexual harassment, keeps getting in the way. Judges can simply declare that the conduct isn't severe or pervasive enough and voilà, the plaintiff has not been harassed!

This leads me to comment on the recent case of Brennan v Towsend & O'Leary, ___Cal.App.4th___ (October 18, 2011). In Ms. Brennan's case the jury found that the employer created a hostile environment. The judge overturned the jury's verdict on a judgment notwithstanding the verdict (JNOV). The Court of Appeal agreed, claiming that the conduct was not, in its judicial opinion, severe or pervasive.

However, determining whether or not conduct is severe or pervasive is not an objective determination; it is in the eye of the beholder. Thus, we must ask: not severe or pervasive enough according to whom? The conduct in the Brennan case was severe or pervasive enough for the jury. The superior court judge originally let the evidence go to trial, suggesting at least initially that the judge must have thought it was severe or pervasive enough for the jury to hear.

So, let's look at the facts here, and you can vote yourself. The fact that readers may differ on whether the conduct was severe or pervasive is just my point: this is a jury question, not a gatekeeper question. I personally can't quite get over the fact that the trial judge and three Court of Appeal judges went out of their way to protect a manager who referred to the plaintiff in a corporate email as a "big-titted mindless one." This was not the only sexist language or conduct in the workplace. What about the company sponsored party where one of the owners wore a Santa hat with the word "bitch" printed across it? Or what about the owner who repeatedly questioned the plaintiff about her sex life, along with inappropriate hand gestures? And once Ms. Brennan complained, she was retaliated against. As noted in the dissent, although the retaliation was not sexual in nature, it was sex based.

I do believe that Ms. Brennan may have been in a better position if her complaint had included a claim for retaliation. However, that is no reason to second guess the jury's judgment and discretion. We think we know sexual harassment when we see it. How dare these four judges take away Ms. Brennan's verdict to justify their own personal and subjective beliefs that the environment wasn't hostile enough! We still have a long way to go, baby!

Jody LeWitter

November 27, 2011

Ms. Panjota, as well as a number of other women, had the bad fortunate of working for an employment lawyer, Mr. Anton, who should have known better. One must wonder how Mr. Anton got any work done, given that this case makes it look like every moment of his work day was spent spewing vile epithets at his female staff, as well as pulling the elastic on a female employee's underwear and asking an employee to wear see through clothes.

During the trial of this case, Ms. Panjota's lawyers tried, over and over again, to present to the jury the ample evidence that Mr. Anton's obscene and abusive conduct and statements were based on his discriminatory feeling s towards women. Besides presenting Ms. Panjota's own riveting testimony, Ms. Panjota's lawyers also wanted to present "me too" evidence, i.e. evidence regarding the manner in which Mr. Anton treated other female employees. Over and over again, the Kern County trial judge refused to admit a wide variety of "me too" evidence, even though Ms. Panjota explained that the evidence was to establish Mr.Anton's (discriminatory) state of mind. Panjota v Anton, ___ Cal.App.4th ___ ( August 9, 2011).

Thank goodness Ms. Panjota's counsel did not give up, and created a good fact record. This permitted the Court of Appeals to understood the errors of the lower court's ways. The Court of Appeals held, in a 54 page opinion, that this "me too" evidence should have been admitted because Anthon's intent was at issue, and the way Anton treated and spoke to other female employees shed light on whether his intent was discriminatory or merely rude and disgusting.

The Court of Appeals aptly explained that, "Anton's case was premised on the claim that his frequent use of profanity at a loud volume was always directed at situations, not people; it happened in the present of men as well as women; and Anton would never have tolerated harassing behavior by anyone in his office, let alone perpetrated it himself." Given that this was Anton's case (or his defense, so to speak), the court ruled that he opened the door to this "me too" evidence "to rebut claims made by defense witnesses", and that the evidence was relevant to "show that he harbored a discriminatory intent or bias based on gender" and to "impeach his credibility". What were they ( a lawyer who harassed his staff in such a blatantly sexist way, and a trial judge charged with making fair evidentiary rulings) thinking?

At least the Court of Appeals was thinking. It understood that Anton's state of mind towards his female employees could help prove that the hostile environment in which Ms. Panjota worked was sex-based and that the reason she was fired was due to her sex. Now, Mr. Anton has the opportunity to show what he should be thinking by offering up a substantial sum of cash to Ms. Panjota before he is forced to go back and face a jury which will hear the full story!

Jody LeWitter
August 30, 2011