• Verdict for Employee in California Sexual Harassment Case Affirmed Despite Inconsistent Testimony
  • December 1, 2011 | Author: Mark S. Askanas
  • Law Firm: Jackson Lewis LLP - San Francisco Office
  • Minor inconsistencies in witness testimony need not render a plaintiff-employee’s account of sexual harassment so “inherently improbable” as to require reversal of the jury’s verdict, the California Court of Appeal has held.  The Court thus affirmed judgment in favor of the employee in a sexual harassment case.  Fuentes v. AutoZone, Inc., No. B224034 (Cal. Ct. App. Nov. 16, 2011).

    Facts
    Marcela Fuentes worked for AutoZone, Inc. as a part-time cashier.  She testified that during a three-week period in 2003, the assistant store manager, Melvin Garcia, and the parts sales manager, Gonzalo Carrillo, sexually harassed her.  Fuentes complained to AutoZone’s district manager, then to the human resources department, and requested a transfer to another store.
     
    The employer conducted an investigation and eventually terminated Garcia and Carrillo.  Fuentes was transferred to another store and continued to work for AutoZone until she resigned in 2005.

    Fuentes subsequently sued the employer for, among other things, sexual harassment in violation of the California Fair Employment and Housing Act (“FEHA”).  The case went to trial before a jury.

    How-to-Sell-Merchandise Incident
    Fuentes and her co-workers testified that one day, while Fuentes was at the cash register helping a customer, Garcia grabbed her hand and spun her around so her back was to the customers.  He said that showing her buttocks was how to sell more merchandise and the five customers present laughed.  Fuentes walked away, but Garcia, laughing and clapping, called her back to finish the customer transaction.  Later that day, when two of the customers who had witnessed the earlier incident returned, Garcia told Fuentes to be ready to turn around again for them.  On another occasion, Garcia told Fuentes that if he and she owned the store, they would be rich because all she had to do “was just turn around and show them [her] butt.”

    Rumors and Other Comments
    Fuentes and her co-workers testified that over the 2003 Memorial Day weekend, Fuentes developed a fever blister on her lip.  She called in sick on Monday, May 26, but was told to come in to work.  She worked a brief time before being sent home ill.  When she returned to work the next day, she noticed Garcia staring at her fever blister, and heard from several co-workers that Garcia told them she had herpes.  Fuentes confronted Garcia.  He denied making any such comments and threatened to fire her if she brought it up again.  Fuentes’s co-workers testified that they had heard the rumor, that Garcia had started it, and that Garcia and others repeatedly laughed about it.

    In addition, parts sales manager Carrillo repeatedly asked one of Fuentes’s co-workers if he had sex with Fuentes and placed bets with other employees as to whether that co-worker was having sex with Fuentes.  Carrillo also asked Fuentes if she wanted to go to a strip club with him and suggested she become a stripper to make more money or model bikinis for one of “low rider” magazines sold at AutoZone.

    Fuentes testified that all of these episodes upset and humiliated her and caused her to feel uncomfortable around her co-workers and customers.

    Jury Verdict
    In Fuentes’s suit against the employer for violation of FEHA, the jury found she had been subjected to sexual harassment and awarded her $160,000 in damages.  The trial court denied the employer’s motion for judgment notwithstanding the verdict.  The employer appealed.

    California Law
    California’s FEHA prohibits hostile work environment sexual harassment.  See Hughes v. Pair, 46 Cal. 4th 1035, 1042-43 (Cal. 2009).  To prevail on a claim, a plaintiff must show that the allegedly harassing conduct was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex.

    According to the California Supreme Court, the existence of a hostile work environment depends upon the totality of the circumstances.  It said, “[T]o be actionable, a sexually objectionable environment must be both objectively and subjectively offensive . . . .”  Therefore, a “plaintiff who subjectively perceives the workplace as hostile or abusive will not prevail . . . if a reasonable person . . . , considering all the circumstances, would not share the same perception.”  Hughes, 46 Cal. 4th at 1044.

    Appeal Rejected
    The employer challenged the verdict as unsupported by the evidence.  It first argued that the plaintiff’s testimony was “inherently improbable” because her timeline of events was incorrect.  It contended that the activity alleged as harassment occurred on June 14 and June 15, 2003, rather than between May 27 and June 15, 2003, as Fuentes testified.  The Court rejected this argument, finding that the testimony did not support the employer’s construction.
     
    The employer further argued that inconsistencies among the different witnesses’ versions of events should be seen in its favor.  The Court disagreed, noting that factual matters, together with questions of credibility, must be resolved by the trier of fact, which the jury did in favor of the plaintiff.  “[T]he testimony of a witness offered in support of a judgment,” the Court explained, “may not be rejected on appeal unless it is physically impossible or inherently improbable and such inherent improbability plainly appears.”

    Here, the Court noted that the evidence presented a “common situation where there are inconsistencies and contradictions in trial testimony.”  The Court said the evidence showed that Fuentes was subjected to an ongoing pattern of sexually offensive and derogatory conduct during a three-week period and made the object of sexual humiliation for the entertainment of managers, employees and customers.  Fuentes found Garcia’s and Carrillo’s conduct offensive and demeaning, and the Court concluded that a reasonable person would share that perception.  Accordingly, the Court found substantial evidence to support the jury’s verdict.