Caldera v. Dep't of Corr. & Rehab.

• Decision Date: 09 July 2018
• Docket Number: G053168
• Citation: 235 Cal.Rptr.3d 262,25 Cal.App.5th 31
• Court: California Court of Appeals Court of Appeals
• Parties: Augustine CALDERA, Plaintiff and Appellant, v. DEPARTMENT OF CORRECTIONS AND REHABILITATION et al., Defendants and Appellants.

25 Cal.App.5th 31

235 Cal.Rptr.3d 262

Augustine CALDERA, Plaintiff and Appellant,

v.DEPARTMENT OF CORRECTIONS AND REHABILITATION et al., Defendants and Appellants.

G053168

Court of Appeal, Fourth District, Division 3, California.

Filed July 9, 2018

Scolinos, Sheldon & Nevell and Todd F. Nevell, Pasadena; Pine, Pine, Freeman, Tillett and Norman PineSherman Oaks, Sherman Oaks, for Plaintiff and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Chris A. Knudsen, Assistant Attorney General, Celine M. Cooper, Melissa F. Day and Vanessa W. Mott, Assistant Attorneys General, for Defendants and Appellants.

OPINION

MOORE, ACTING P. J.

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, 30 Cal.Rptr.3d 797, 115 P.3d 77.)

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.

IFACTS AND PROCEDURAL BACKGROUND

In July 1994, Caldera began working as correctional officer in Imperial County. About a year later he transferred to the California State Institute for Men in Chino. At the time of trial Caldera was still employed as a correctional officer and had been working at the state prison in Chino for 20 years. Caldera stutters when he speaks.

Starting in 2006, Caldera began working as a mental health escort officer within the administrative segregation unit (Ad Seg) of the prison. The Ad Seg unit is an area where inmates with disciplinary issues or mental health needs are housed. The Ad Seg unit consists of two to three "halls," or housing facilities. Caldera’s primary duties were to transport inmates to and from their mental health appointments.

Between 2006 and 2008, Sergeant Grove and Officer Caldera largely worked in two different halls within the Ad Seg unit. At some point, Grove began mocking or mimicking Caldera’s stutter. Caldera did not document what occurred; Caldera never imagined he would have to testify in court. Grove always mimicked Caldera’s stutter when other employees were present. According to Caldera, "Whatever [words] I stuttered on, Grove would sit back and repeat what I stuttered." Caldera felt that Grove’s conduct "was demeaning. It was embarrassing, ... definitely harmful." Caldera also described the conduct as "really hurtful." A psychologist testified at trial that Caldera had experienced psychological disorders as a result of the mimicking of his stutter. When asked to estimate how many times Grove had mocked or mimicked his stutter, Caldera said, "More than 5, less than 15."

On one particular occasion (date unknown), Grove mimicked Caldera’s stutter over the prison’s radio system. After Caldera had broadcasted an announcement, Grove got on the radio and mimicked what Caldera had said. The transmission could be heard by about 50 employees. Officer Robert Konrad was on duty with Caldera at the time; Konrad saw that Caldera’s "facial expression was in shock, saddened."

Konrad later discussed the incident with Caldera. Konrad "said, that’s kind of f***ed up, on the radio, like that. [Caldera] said, yeah, I get it all the time ...."

In 2008, Dr. Victor Jordan worked as a psychologist supervisor in the Ad Seg unit. Dr. Jordan had worked closely with Caldera and regarded him as an "outstanding" correctional officer. At the time of trial in 2015, Dr. Jordan had been working at the Chino prison for over 23 years and had been promoted to chief psychologist and chief of mental health. Dr. Jordan described Caldera’s disability as a: "Speech impairment, stuttering, specifically, stammering." Dr. Jordan testified that he personally heard prison employees mock or mimic Caldera’s stutter on many occasions. When asked to "estimate over the years" how many times he had witnessed this, he replied, "I’m sure a dozen times that I’ve paid attention to." He agreed that there was "a culture of joking" at the prison about Caldera’s stutter. Dr. Jordan said that Caldera’s reactions varied; at times Caldera laughed, at times Caldera reacted by "firing back," and at times Caldera appeared embarrassed by the conduct.

On September 2, 2008, Sergeant Grove, Officer Caldera, and Dr. Jordan were all present in a main corridor of the prison during a busy shift change, which occurred at about 2:00 p.m. At that time, there were about 24 correctional officers in the general area. Caldera said something to Grove and he responded by saying, " ‘F-f-f-f**k you.’ " Caldera threatened to file a formal complaint. Grove then responded by saying, "I don’t give a F-f-f. Make sure you get my name right." Later that day, Caldera went to the prison’s Equal Employment Opportunity (EEO) office and obtained a form to file a complaint. Sergeant Grove went to his supervisor and self-reported the encounter.

On September 9, 2008, Caldera filed an EEO complaint against Grove. Two days later, Caldera learned that Grove was to be reassigned to the same Ad Seg hall where he had been working (although they had separate chains of command). Caldera went to several superiors, including the warden, to express his concerns about Grove’s upcoming reassignment. One of the superiors said that Caldera was "almost to the point of tears when he spoke about" the shift change incident and that Caldera "felt really degraded" by what Grove had said to him in front of his fellow correctional officers.

Several days later, the prison reassigned Grove to the same Ad Seg hall where Caldera had been working. Caldera learned from others that Grove was continuing to mock and mimic his stutter. Caldera felt that Grove treated him differently than the other correctional officers.

On October 3, 2008, there was a training class for the prison’s supervisors. Sergeant Jessie Lara was in attendance, as was Grove. Before the class, Lara had heard about the shift change incident involving Grove and Caldera. At some point during the class, Grove was again mimicking Caldera’s "speech impediment and basically saying he didn’t give a f**k about him. Saying it with the speech, I don’t give a f**k." Lara said that Grove mimicked Caldera’s stutter "throughout the whole conversation."

Court Proceedings

Caldera filed a complaint in the superior court alleging various causes of action against defendants including disability harassment, failure to prevent harassment, and retaliation. The trial court granted defendants’ summary judgment motion, which this court reversed in an unpublished opinion. This court held that as to each cause of action there were triable issues of material fact. ( Caldera v. CDCR et al. (Feb. 25, 2014, G048943 [nonpub. opn.].) 2014 WL 716522 )

The matter then went to trial. The jury returned the following special verdicts: Caldera was subjected to unwanted harassing conduct based on his disability; the harassment was severe; the harassment was pervasive;¹ a reasonable person in Caldera’s position would have considered the work environment to be hostile or abusive; a supervisor participated in, assisted, or encouraged the harassing conduct; the harassing conduct was a substantial factor in causing harm; the CDCR had failed to take all reasonable steps to prevent the harassment; and the CDCR’s failure to prevent the harassment was a substantial factor in causing Caldera harm. The jury did not find true Caldera’s claim that he had been subjected to adverse employment actions (retaliation).

The jury determined that Caldera was entitled to $500,000 in noneconomic damages. The new trial motion will be covered in the discussion section of this opinion.

IIDISCUSSION

Defendants contend there was insufficient evidence to support the jury’s factual findings and the trial court committed two instructional and one evidentiary error. Caldera contends the trial court’s order granting defendants’ motion for new trial should be reversed. We shall address each of the parties’ contentions in turn.

A. Defendants’ Sufficiency of the Evidence Claims

The trial court instructed the jury: "Harassing conduct may include: verbal harassment, such as obscene language, demeaning comments, slurs, threats, or mocking and mimic of [Caldera’s] stutter." ( CACI No. 2523.) Defendants do not argue there is insufficient evidence of "harassing conduct." Rather, defendants argue there is insufficient evidence the harassing conduct was either severe or pervasive. The CDCR further argues there is insufficient evidence that it failed to...