California Court of Appeal, Second District, Sixth Division
Frederick H. Bysshe, Judge, Superior Court County of Ventura, (Super. Ct. No. 56-2011-00393016 CU-WT-VTA)
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Daniel K. Klingenberger, Micah K. Nilsson, Lynne Thaxter Brown and Stephanie Hamilton Borchers; Dowling Aaron Incorporated, for Appellant.
Alan B. Felahy and Oscar Ramirez; Felahy Law Group, for Respondent.
In this first impression case, we hold that a defective special verdict form is subject to harmless error analysis.
Max Taylor, respondent, filed an action alleging hostile work environment sexual harassment against his former employer, Nabors Drilling USA, L.P., appellant. The action was brought pursuant to the California Fair Employment and Housing Act (FEHA). (Gov.Code, § 12900 et seq.)  Judgment was entered in respondent's favor after a jury returned a $160,000 special verdict in his favor.
The trial court denied appellant's motion for judgment notwithstanding the verdict (JNOV), and awarded respondent attorney fees of $680,520.
Appellant argues that the motion for JNOV should have been granted because (1) the evidence is insufficient to show that respondent " was harassed because of his sex and/or perceived sexual orientation," and (2) the special verdict is fatally defective. In addition, appellant challenges an award of $150,000 for past noneconomic damages and an award of $10,000 for past economic damages. Finally, appellant contends that the attorney fee award is excessive.
We affirm the denial of the motion for JNOV and the award of attorney fees. We agree with appellant that the evidence is insufficient to support an award of economic damages. Accordingly, we reduce respondent's total recovery from $160,000 to $150,000. We affirm the judgment as modified.
Factual and Procedural Background
Appellant is a drilling contractor. In June 2010 it hired respondent as a " floorhand" on an oil rig. The parties stipulated that Joe Mason and Jaime Mendez were respondent's supervisors within the meaning of the FEHA.
Several times a day, Mason called respondent a " queer," " fagot," " homo," and " gay porn star." Respondent was " humiliated." He testified: " I didn't have a name. My name was not Max. It was queer. It was homo. The whole time." " [E]verything was basically f'ing fagot, come here, f'ing homo, come here, grab that."
[166 Cal.Rptr.3d 682] When respondent had an infection on his face, Mason said, in the drilling crew's presence, " let me cum [ejaculate] on your face, it will make it clear right up." The crew laughed. Respondent " was extremely disturbed and humiliated."
Respondent protested to Mason that he was not a homosexual and that he had a girlfriend. Mason " laughed and ... called [respondent] a pussy [and told him to] get back to work." Mason already knew that respondent had a girlfriend. Before respondent started working for appellant, he and his girlfriend attended a barbecue at Mason's house. During the first week that respondent worked for appellant, his girlfriend drove him to work and, at the end of the day, Mason drove respondent to his girlfriend's place of work. At that time, respondent did not have his own vehicle. Respondent's girlfriend went shopping with Mason's wife.
Mason posted a photograph of respondent on a wall inside the employees' restroom. The photograph " had a big target around [respondent's] mouth, and [in] the left corner it said ‘ Give me the money shot.’ " Respondent's counsel argued to the trial court that the target and accompanying notation " indicate an act of oral sex." Respondent was " deeply disturbed" by the posting of the photograph: " Every single member in my crew went in this restroom ... [and] saw my picture, and they were laughing about it."
Respondent tore the photograph off the wall and confronted Mason, who denied posting it. At a crew meeting the next morning, Mason said, " [W]hoever posted the picture of [respondent], you guys quit fucking around with him because it is going to hurt his gay porn career." Mason was apparently alluding to respondent's legitimate acting career. Three or four times, respondent had appeared as an " extra" in films. He had also done " a lot of theater."
Jaime Mendez also sexually harassed respondent. One day when Mendez was standing on the elevated rig floor and respondent was beneath him, Mendez urinated on respondent. Mendez " started laughing about it." Respondent " was infuriated, disgusted, disturbed." Mendez " would come up behind [respondent] and ... spank [his] butt all the time." Respondent said,
" I'm not gay; don't touch me." But Mendez continued the behavior. Sometimes Mendez " would arouse himself in his overalls to get an erection" and then ask respondent to sit on his lap. Mendez testified that he did not consider respondent to be gay.
When asked to describe his relationship with Mendez, respondent replied: " It was the worst working environment I have ever been through in my life. Words can't describe [it].... It was inhumane ... the way they treated me."
Respondent's girlfriend, who was living with him while he was working for appellant, testified that every day he would come home from work " very emotional" and " upset" because of " [a]ll the derogatory statements that he was told at work."
In September of 2010, respondent contacted appellant's human resources department and complained about the harassment. After his complaint, Mason did not return to the rig. Mendez continued to work with respondent, but he stopped his sexual harassment. About a week later, appellant suspended Mason for two weeks and began an investigation of the harassment claim. At the conclusion of the investigation, appellant terminated Mason from employment.
On December 19, 2010, appellant terminated respondent's employment. According to appellant, respondent had often [166 Cal.Rptr.3d 683] been late for work, had been late for one mandatory safety meeting and had missed another, had left his shift early without permission while falsely declaring that he had permission, and had screamed and cursed at Mendez, his direct supervisor, when Mendez asked him " to do a simple job task."
In March 2011 respondent filed a complaint against appellant. The complaint consisted of four causes of action: (1) hostile work environment sexual harassment, (2) failure to prevent sexual harassment, (3) unlawful retaliation, and (4) wrongful retaliation and termination in violation of public policy.
The jury returned a special verdict in favor of respondent on only one cause of action, i.e., for hostile work environment sexual harassment. It found that respondent's harassment complaint had not been " a motivating reason for [appellant's] decision to discharge [him]." The jury awarded respondent damages totaling $160,000: $10,000 for past economic loss and $150,000 for past noneconomic loss.
Hostile Work Environment Sexual Harassment
The FEHA makes it an unlawful employment practice for an employer to harass an employee because of the employee's " sex, gender, gender
identity, gender expression, ... or sexual orientation." (§ 12940, subd. (j)(1).) " ‘ [T]he prohibition against sexual harassment includes protection from a broad range of conduct, [including] the creation of a work environment that is hostile or abusive on the basis of sex.’ [Citation.]" ( Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 277, 42 Cal.Rptr.3d 2, 132 P.3d 211 ( Lyle ).) " [A] hostile work environment sexual harassment claim requires a plaintiff employee to show [he or] she was subjected to sexual advances, conduct, or comments that were (1) unwelcome [citation]; (2) because of sex [citation]; and (3) sufficiently severe or pervasive to alter the conditions of [his or] her employment and create an abusive work environment [citations]. In addition, [he or] she must establish the offending conduct was imputable to [his or] her employer. [Citation.]" ( Id., at p. 279, 42 Cal.Rptr.3d 2, 132 P.3d 211.)
" [A] plaintiff in a sexual harassment suit must show ‘ the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted " discrimina [ tion ]... because of ... sex." ’ [Citation.]" ( Lyle, supra, 38 Cal.4th at p. 280, 42 Cal.Rptr.3d 2, 132 P.3d 211.) " ‘ To plead a cause of action for ... sexual harassment, it is " only necessary to show that gender is a substantial factor in the discrimination, and that if the plaintiff ‘ had been a man [or a woman he or] she would not have been treated in the same manner.’ " [Citation.]' [Citations.] Accordingly, it is the disparate treatment ...