Let me first say that I rarely disagree with decisions by California state or federal appellate courts (at least those I am not personally involved in and therefore biased towards). However, I occasionally come across a case where I just think the court got it wrong.

In Mokler v. County of Orange, et.al. (Cal.App.Dist.4 11/26/2007), No. G036029, a former Orange County employee sued under several different claims, including sexual harassment of her by a county supervisor. While I agree with the court’s decision on most of the issues presented by the case, I do disagree on their sexual harassment analysis and decision.

The Facts of the Case

Without going into too much detail, Ms. Mokler had to interact with Orange County Supervisors "on almost a daily basis" as part of her job duties, including Supervisor Chris Norby. Mokler introduced herself to Norby at a budget hearing in 2003 and he promptly asked her if she was married. When she said no, he called her an "aging nun". Mokler reported the incident to her supervisor, but he did nothing about it and actually told Mokler to "be careful".

Mokler next encountered Norby at a hotel where a political event was being held. Norby took her arm, pressed her body up against his and said "in a flirtatious manner: ‘Did you come here to lobby me?’" Mokler responded that she was not there to lobby him and he asked "Why not? These women are lobbying me," gesturing to two women standing next to him. Norby continued to hold her body up against his, looked her up and down, and told her she had "a nice suit and nice legs". Mokler was finally able to push her self away from him and again went to her supervisor who again told her to "be careful" and further suggested she "needed ‘to win him over’".

Mokler’s final encounter with Norby occurred in his office. When she arrived, he put his arm around her and told her she looked "nice". He walked over to a large map on the wall and asked her where she lived. When she hesitated, he "demanded she provide her exact address." He put his arm around Mokler again and rubbed her breast with his arm until she pushed herself away from him and apparently a male co-worker interrupted them.

The Trial Court’s Decision

The jury found in Mokler’s favor on her sexual harassment claim against Norby, but awarded no damages to her for the claim. While uncommon, this does occur where an employee suffers no economic damages as a direct result of the harassment and they are unable to prove any emotional distress or other special damages. However, the trial court ultimately "entered judgment on this claim against Norby, but nonetheless declared him the ‘prevailing party’ and awarded costs in his favor."

In California sexual harassment cases, the "prevailing party" is entitled to attorney’s fees and costs, but I am still scratching my head on how Norby had a judgment entered against him and is still considered to have "prevailed".

The only reason for this I can come up with is that there as an offer made under California Code of Civil Procedure 998.  Under that statute, if a party offers to settle for a set amount, the offer is rejected, and then the other party gets less than was originally offered to them, the opposing party can get their costs reimbursed.  However, this is not mentioned anywhere in the opinion and there are several reasons why even this does not make sense as a reason.  But this is not the point of the post, so I will let it go…

The County appealed several of the trial court’s rulings, including the finding of sexual harassment by Norby for creating a "hostile work environment".

The Appellate Court’s Decision

The appellate court reversed the trial court’s decision, finding that no hostile work environment was created by Norby. The court ruled that Norby’s conduct was not "severe or pervasive" enough to justify the trial court’s finding that sexual harassment occurred.

It is extremely rare to find a case where both the jury and the trial court found that sexual harassment occurred and the appellate court reverses that decision. In almost all cases that are reversed like this, it is usually very clear that sexual harassment did not occur and the jury got it wrong. I would submit to you that in this case the jury was right and the appellate court was in error.

The appellate court based its decision on a number of factors, including their findings that the incidents "involved no physical threats," "the touching…was brief and did not constitute an extreme act of harassment," and the demand for her address was "brazen," but "[did not create]…a hostile work environment."

To me, if a manager rubs a subordinate’s breast, this does constitute "an extreme act of harassment". This is sexual assault, plain and simple, which is punishable as a crime in California! How this conduct could ever not qualify as "severe" or "extreme" is beyond me. Further,holding her body up against his and telling her she has nice legs also borders on extreme.

The court suggests that no "physical threats" occurred. However, when a supervisor grabs an employee’s breast after demanding to know where she lives and getting no response, to me this certainly does qualify as a "physical threat".

Additionally, while it is unclear whether Mokler brought her sexual harassment claim against just Norby or against Orange County as well, I believe the county should have liability here. When Mokler complained to her supervisor about Norby’s conduct, he simply told her to "be careful" and that she "needed to win him over." I do not know whether these remarks were intended to suggest that she go along with Norby’s behavior or if this was a veiled threat against her for complaining, but the way the court’s opinion reads it seems the county did absolutely nothing to stop Norby’s conduct and possibly tried to stop her from bringing it up.

This is simply one man’s opinion, but I call them like I see them and to me this case was decided incorrectly by the appellate court. I do not know if Mokler plans to file an appeal, but I would be very interested to see what the California Supreme Court would decide after reviewing the case.

Tags

California Employment Law | Cases | Discrimination | Gender Discrimination | Harassment | Hostile Work Environment | Policy : Opinion | Sexual Harassment