Opinion
F078068
05-10-2021
LOLA O'BRIEN, Plaintiff and Respondent, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorney Generals, Chris A. Knudsen, Assistant Attorney General, Andrea R. Austin and Lykisha D. Beasley, Deputy Attorneys General, for Defendant and Appellant. Cornwell & Sample, Stephen R. Cornwell; Law Office of Peter Sean Bradley and Peter Sean Bradley, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MCV072847)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. James E. Oakley, Judge. Xavier Becerra and Rob Bonta, Attorney Generals, Chris A. Knudsen, Assistant Attorney General, Andrea R. Austin and Lykisha D. Beasley, Deputy Attorneys General, for Defendant and Appellant. Cornwell & Sample, Stephen R. Cornwell; Law Office of Peter Sean Bradley and Peter Sean Bradley, for Plaintiff and Respondent.
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Lola O'Brien sued the California Department of Corrections and Rehabilitation (the Department or CDCR) for disability discrimination and harassment, retaliation, defamation, and violation of Labor Code section 1050, based on a series of events that took place while she was employed as a sign language interpreter at the Central California Women's Facility (CCWF) and her attempt to work as a contract interpreter at other Department institutions after her resignation from the Department. The jury found in O'Brien's favor and awarded her a little over $1.5 million in economic, noneconomic and actual damages.
On appeal, the Department contends: (1) O'Brien's disability discrimination and harassment claims, which are based on her association with deaf inmates, fail because they cannot be based on her work with or advocacy for those inmates, which means the jury instructions did not correctly state the law; (2) her disability discrimination and harassment claims fail because she was not subjected to an adverse employment action; (3) there is insufficient evidence the Department was motivated by discriminatory or retaliatory animus, and the asserted adverse actions were unrelated to a protected activity; (4) O'Brien failed to establish she was subjected to severe or pervasive disability harassment; and (5) the trial court erred in denying the Department's motion for nonsuit on O'Brien's defamation and Labor Code section 1050 claims because its statements were privileged and none of the statements were made to a prospective employer. Finding no merit to these arguments, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Department and the Armstrong Remediation Plan
The Department manages prison and correctional facilities in California, including CCWF and the Substance Abuse Treatment Facility (SATF) in Corcoran. Due to its longstanding failure to comply with the federal disability discrimination laws, the Department has been under a court mandate to provide inmates with physical limitations equal access to program services and medical and mental health care, which it does through the "Armstrong Remedial Plan" (the Armstrong plan). (See Armstrong v. Brown (N.D. Cal. 2013) 939 F.Supp.2d 1012, 1015-1017.)
The Armstrong plan requires, among other things, that sign language interpreters be provided to inmates who are deaf or have a permanent hearing impairment to provide "effective communication under all circumstances," including all due process functions such as when an inmate has a hearing on a disciplinary report, during medical and mental health appointments, and during inmate education. Another plan, the Clark Remedial Plan, addresses inmates with developmental disabilities. A nonprofit prisoners' rights law firm, the Prison Law Office, monitors compliance with the Armstrong plan by touring the Department's facilities every six months and speaking to inmates and staff.
O'Brien's Employment at CCWF
O'Brien is a certified sign language interpreter who grew up in the deaf community as the daughter of deaf parents. Prior to becoming a Department employee, O'Brien worked as a contract sign language interpreter at various Department facilities.
O'Brien was hired by the Department in May 2013 as a "Support Services Assistant (Interpreter)" (SSAI) to provide sign language interpretation services for hearing impaired inmates at CCWF. The SSAI is under the direct supervision of CCWF's Americans with Disabilities Act (ADA) Coordinator and indirect supervision of the warden. Her job duties included responding to requests for sign language interpreting services for hearing impaired, hard of hearing and severely speech impaired inmates who rely on sign language for effective communication, providing sign language interpreting services for staff, and attending "meetings and periodic training and conference calls as assigned/required to assist with the institution's compliance with Federal, State and Departmental laws, policies and procedures involving ADA, sign language interpreting and effective communication."
During her employment at CCWF, O'Brien's supervisor was the prison's ADA Coordinator, a position originally held by Associate Warden Chester Goynes (Goynes). Associate Warden Carolyn Cooper (Cooper) replaced Goynes as the ADA Coordinator in November 2014. During the latter part of her employment at CCWF, O'Brien shared a small office with Sergeant Rosemarie Rodriguez (Rodriguez), who was the "Clark sergeant" responsible for supervising the correctional officer over the inmates with developmental disabilities, as well as the inmates themselves, under the Clark Remedial Plan. The disabled inmates O'Brien and Rodriguez worked with generally were housed in Unit 505.
The prison warden removed Cooper from the ADA Coordinator position in September 2016 because he was not satisfied with her work quality. He testified his decision did not have anything to do with her treatment of deaf inmates.
When O'Brien was hired, she participated in in-service training. She was given a digest of laws relating to association with prisoners and the subject of familiarity was reviewed. Overfamiliarization occurs when the professional boundary between a prison employee and an inmate erodes. Inmates, who can be adept manipulators, may target an employee with whom they think can build a rapport and use that relationship to their advantage, which may include illegal activities. Small interactions, which may begin by sharing personal information, can develop into significant security concerns, so the Department trains all its employees to be cognizant of such risks and to maintain a professional barrier with the inmates. The Department encourages employees to report concerns about possible overfamiliarity even if it turns out not to be true.
Overfamiliarization was discussed during annual staff training sessions. During an annual training session around August 2014, O'Brien asked whether the correctional officers would think she was being overly familiar with inmates because her job was talking to and working with the inmates, but she was told, "No. Everybody knows it's your job." According to O'Brien, no one ever accused her of being a security risk or unsafe in a manner that sacrificed the prison's safety.
There were between three to five deaf inmates at CCWF during O'Brien's tenure, and O'Brien provided services to each of them. Three or four of these inmates were housed in Unit 505, while the others were housed in other buildings. When an inmate arrives at the prison, a correctional counselor asks the inmate her primary and secondary means of communication. If the primary means is sign language, the inmate is asked to identify another form of communication, such as writing or lip-reading, as a secondary means. The secondary means of communication is used if a sign language interpreter is not available, which allows for effective communication with the inmate.
O'Brien's work involved providing interpretation services at prescheduled appointments, such as an inmate's medical, dental, and mental health appointments, as well as due process matters and inmate education. She also was available to provide interpretation services for the deaf inmates in their housing units when needed to allow them to communicate with their roommates or the correctional officers. In that situation, the inmate asked the officers for an interpreter, who was responsible for contacting O'Brien to interpret. She was called into Unit 505 only once in the nearly two years she worked at CCWF.
O'Brien worked as an SSAI until February 20, 2015, when her resignation, which she offered on January 30, 2015, became effective. During her employment, O'Brien was never counseled, warned, reprimanded or written up for any infraction or misbehavior.
O'Brien Provides Services to Deaf Inmates
When O'Brien began work at CCWF, the Clark sergeant was Sergeant Hunter. O'Brien and Hunter got along great and worked well together. Even though O'Brien's job description stated she reported to the ADA Coordinator, Goynes told her to report to Hunter. When Rodriguez became the Clark sergeant in January 2014, Goynes told O'Brien to report to Rodriguez.
At beginning of her employment, O'Brien was busy with education and other things, so she was not going into Unit 505, but as things started to slow down, the calls stopped, and the deaf inmates complained they were not getting a sign language interpreter when they requested one. For example, the inmates told O'Brien "over and over again" that due to a situation in their room, such as an argument with roommates, they needed to talk to the correctional officers, but when the inmate asked the officers to contact the interpreter, they always said no. O'Brien brought the matter to Goynes' attention; he sent a letter to Unit 505 telling the officers they needed to start utilizing an interpreter. Goynes also told O'Brien to "check in on" the deaf inmates in Unit 505 once a week. O'Brien reported the matter to Goynes because it was her job to make sure the inmates were receiving effective communication according to the Armstrong plan.
There were two occasions in 2013 when O'Brien intervened with respect to inmates who were sent to the captain's office after getting into fights. O'Brien was not on duty at the time and when she returned to work, the inmates told her about the fights, and that they did not understand what the captain said about the incident. To assist the inmates, O'Brien informed the captain's office that they did not understand what occurred. The captain offered to call the inmates in and re-explain the information that was previously shared, but this time with O'Brien's assistance. The inmates signed an effective communication form signifying their understanding of what transpired. O'Brien felt she was advocating for the inmates because that was her job. O'Brien believed the officers got irritated, like she was "butting in," when she reported these miscommunications; she could tell by the way the officers looked at her.
O'Brien Interprets an Inmate's Telephone Call
About a month after Rodriguez became the Clark sergeant, an incident occurred in which O'Brien interpreted an inmate's telephone conversation with the inmate's mother. O'Brien was in Unit 505 for an appointment when she saw inmate Emma Lovett, one of the hearing impaired inmates, on the telephone. Lovett waived her down and asked her to interpret the phone call, as she could not understand what was being said. O'Brien walked over to the officer's station and told Officer Christina Sotelo (Sotelo) she was going to interpret the phone call. Sotelo told O'Brien that Lovett could "hear just fine" and she did not need an interpreter. O'Brien explained to Sotelo that Lovett could only hear a lot of noise and she could not hear every word being said. O'Brien took the phone from Lovett and when she put it to her ear, the volume was turned on high and Lovett's mother was screaming into the phone. O'Brien explained to Lovett's mother that she would be interpreting the call and she proceeded to interpret the conversation between Lovett and her mother, which lasted about 10 minutes.
Although the prison had TTY or TTD telephones available for hearing impaired inmates, Lovett was not using them.
Sotelo testified she observed inmate Lovett using a non-TTY telephone at least 75 times and told O'Brien that Lovett used the phone every day to call her family.
After the call, O'Brien walked back to her office; the office technician and Rodriguez were there. O'Brien told them, "Oh my God. I just got off the phone with Lovett's mom and she was screaming, Emma, listen to me," and explained how loud the phone was. Although O'Brien had interpreted lots of phone calls, this was the only personal phone call she interpreted for inmates at CCWF. None of the other deaf inmates could use the telephone; instead, they had to use the TTY or a video phone. Lovett could get by on a regular phone because she could get bits and pieces of what was being said.
According to Rodriguez, O'Brien said, "I just talked to Emma's mom." Based on this, Rodriguez believed O'Brien was having a personal phone call with the inmate's mother rather than interpreting for the inmate.
Rodriguez felt it was "borderline overfamiliar" for O'Brien to refer to an inmate by her first name and speak to the inmate's mother on the telephone. Rodriguez found it odd because they normally refer to inmates by their last name and she did not understand why O'Brien had been on the phone with an inmate's parent. Since it was her duty as a peace officer to report anything that may be in violation of Department policies, Rodriguez informed Goynes of her concerns, but he "blew [her] off" and told her she did not need to worry about it. Rodriguez was frustrated, as she felt she was doing what was required of her, but the matter was being discounted as if it were inappropriate. Rodriguez conceded Goynes told her O'Brien was interpreting for the inmate, which would make it a much different matter. Rodriguez did not do anything further regarding her complaint because if her supervisor did not feel it was important, she was not going to make a big deal about it. Rodriguez, however, spoke to Sotelo about what occurred.
About a month after this incident, Goynes called Rodriguez and O'Brien into his office and had them explain the issues they were having with each other. O'Brien felt Rodriguez, who had not spoken to her since Rodriguez became Clark sergeant, was hostile towards her because she would not talk to her, while Rodriguez felt O'Brien was being overfamiliar with the inmates, as she was concerned about O'Brien talking to inmates' parents. Rodriguez believed she was being professional with O'Brien and thought O'Brien inappropriately overshared personal information that Rodriguez did not need to know and which the inmates who worked in the area might use to manipulate someone. Rodriguez told Goynes she would attempt to be friendlier by greeting O'Brien in the morning and saying goodbye in the afternoon, but Rodriguez kept her distance because she did not want to make the problem worse. Rodriguez disliked working with O'Brien, as she felt she could be a liability to the institution's safety and security. O'Brien perceived Rodriguez's demeanor as ostracizing, which caused O'Brien stress. Rodriguez went so far as to refuse to tell O'Brien things Goynes told her to convey to O'Brien, such as refusing to tell O'Brien about her annual training.
O'Brien Has Trouble with the Work Change Officer
During O'Brien's tenure at CCWF, Officer Lisa Longero was the work change officer in the B Yard work change area, which is where correctional officers searched inmates leaving the yard where they lived before going to other areas of the prison. When an inmate passed through work change, Longero was required to check their identification and determine where they were going and what they were doing. Sometimes O'Brien waited in the work change area for the B Yard, where Unit 505 is located, when an inmate for whom she was to provide interpretation services had a mental health appointment. According to O'Brien, the work change area served as a kind of halfway point for staff, where they could sit down on a couch and talk with each other.
According to O'Brien, one day Longero told O'Brien with a raised voice that she was not allowed in the work change area and had to leave but did not tell her why. When O'Brien returned to her office intending to complain about Longero, Rodriguez told O'Brien she had just gotten off the phone with Longero, who said O'Brien was rude. O'Brien denied she was rude and told Rodriguez she sat in work change all the time and conversed with Longero, but for some reason Longero told her she was not allowed in there anymore and had to leave, and got upset with O'Brien as she was leaving. Rodriguez told her she should go through the A Yard to avoid Longero. O'Brien did not ever ask Longero why she instructed her to leave.
Longero, however, claimed she told O'Brien to step out the back door after she received a radio transmission from her sergeant telling her to clear the work change area of all non-custody staff. When O'Brien yelled that she did not have to leave because she was staff, Longero responded that per her sergeant, she was ordering O'Brien to step out the back door. O'Brien got angry and went out the back, throwing the door open. Longero called the ADA office and spoke with Rodriguez, who already knew of the incident because O'Brien had told her. Longero was upset when Rodriguez told her O'Brien said she did not like the way Longero talked to her, and she decided from then on, she had nothing to say to O'Brien unless it pertained to work.
O'Brien complained that after this incident, Longero did not allow her to wait for inmates in the work change area; instead, she had to wait outside the door, in front of the B Yard with all the inmates who were waiting to go through work change. O'Brien admitted she was not required to wait for the inmates in the work change area; rather, the inmates were responsible for getting themselves to appointments, where she could meet them.
In another incident involving Longero, O'Brien was waiting in line with an inmate at the B Yard canteen, which is like a general store where inmates can purchase supplies, so she could interpret between the inmate and canteen staff. As the inmate was telling O'Brien why she needed to talk to the canteen staff, Longero yelled at her from the work change area, "What are you doing? You can't do that." O'Brien responded, "I'm just doing my job," and continued to stand in line with the inmate while the inmate explained what she wanted O'Brien to interpret.
The Correctional Officers in Unit 505
After Goynes told her to check on the deaf inmates in Unit 505, O'Brien checked on them once or twice a week if she did not have appointments. According to O'Brien, the only time a correctional officer called her to Unit 505 to interpret for an inmate during her tenure at CCWF occurred in February 2014, when Officer Michael Baron, the Unit 505 housing officer, called O'Brien. He reported one of the deaf inmates was yelling at another inmate and asked O'Brien to help facilitate communication with the deaf inmate. O'Brien interpreted the conversation between Baron and the inmate, and the situation was resolved. At that time, things were normal with Baron. O'Brien facilitated communication between an officer and inmate in Unit 505 on other occasions, but the officer did not contact her to do so; instead, the inmate asked her directly to interpret. For example, one time a deaf inmate came up to her and asked if she could interpret to staff because the officers had denied her request for an interpreter and she wanted to talk to an officer.
Baron denied that housing unit officers in Unit 505 only called O'Brien once in the nearly two years she was there, and claimed that during that time, he called O'Brien over three or four times. Baron admitted, however, that he did not call for an interpreter very often because he normally could communicate with the deaf inmates and get effective communication in writing.
When she entered Unit 505, she usually checked in at the officer's station to let them know she was there. She would ask the inmates how things were going, and they would tell her about some situation. Sometimes the officers would ask her why she was in Unit 505 and which inmates she was there to see. O'Brien believed it was a "form of harassment" to have to tell the officers why she was there when she was there to interpret, had an appointment, or was sent there.
According to Baron, there were numerous times O'Brien started talking to an inmate in Unit 505 without checking in. When that happened, he went over to find out what was going on and if there was an issue he needed to know about. He did not report the matter to his superiors; he just told O'Brien to check in with the officers the next time. One time Officer Robert Gutierrez (Gutierrez), who worked in Unit 505, saw O'Brien come into the unit and walk straight down a hallway where the inmates' rooms were; while he knew she was in the building, he did not know what she was doing there.
When she first started, O'Brien was friends with Officers Baron, Sotelo, and Gutierrez. Beginning in 2014, however, these officers began watching O'Brien whenever she entered Unit 505 and spoke with an inmate, and they would glare at her. O'Brien believed the officers were "really irritated" she was there; she saw Baron roll his eyes when she walked into the unit. This behavior was different than other officers who were friendly to O'Brien. O'Brien could not attribute the change in her relationship with these officers, as well as being forced to wait in the yard with inmates, to anything other than the officers thinking she was being overly familiar with the inmates.
Gutierrez testified he was comfortable working with sign language interpreters, and they were "a good communication tool" to help the officers communicate with the deaf inmates. He recalled O'Brien coming in and assisting the deaf inmates with their communication needs.
None of the correctional officers, however, told O'Brien they were uncomfortable with a conversation she was having with an inmate. Sotelo and Baron admitted they did not like O'Brien. While Sotelo initially liked O'Brien, she started keeping her distance when O'Brien began doing things that raised "little flags"; she no longer cared for O'Brien's "inside work." Baron testified he did not like O'Brien because she was difficult to work with.
At some point, two deaf inmates who lived in Unit 505 were caught engaging in sexual activity, so one of them was moved to another unit. According to Longero, O'Brien asked her about three times how to get that inmate moved back into Unit 505. Longero told her to talk to housing staff. The correctional officers talked about the situation among themselves and believed O'Brien wanted the inmate moved back into Unit 505. The officers said it should not be happening and questioned what a sign language interpreter had to do with housing. Longero did not know if O'Brien spoke to the housing staff; she only knew O'Brien said something about wanting to move a deaf inmate back to the unit where other deaf inmates were. According to Longero, the correctional officers, including Baron, Gutierrez, and Sotelo, talked about O'Brien being "overfamiliar" and they would say, "she talked to the inmates too much."
According to Baron, who oversaw bed change and housing requests, the separated inmates asked him numerous times for a housing change so they could move back together. At some point, Baron learned through his coworkers and supervisors that the ADA office wanted them moved back together. Baron was not happy about it, but he had no choice. Although no one told him O'Brien was pulling strings behind the scenes to make this happen, Baron believed she was part of it because "she was the one talking to the inmates." The only evidence he had of this, however, was that O'Brien was a sign language interpreter who talked to the two inmates.
The first time O'Brien heard that Baron and Longero suggested she had something to do with putting the two inmates back together was during their trial testimony. O'Brien denied that she had anything to do with the move.
O'Brien claimed that "[l]ots of times" the correctional officers got angry when she interpreted for inmates. For example, on October 2, 2014, Goynes sent her to Unit 505 to talk to two deaf inmates about some groups they were attending. As she was talking to a deaf inmate, the inmate said she was concerned about another inmate, who was not deaf, as she was sick and depressed. O'Brien went to check on that inmate in her room; when the inmate turned around, she had blood all over her shirt. As O'Brien asked if she was okay and said she was going to get help, Baron screamed at O'Brien in a "very hostile" manner, "What are you doing there? You don't belong over there." O'Brien tried to explain to him that the inmate needed help, but Baron responded it was none of her business. O'Brien did not think the officers understood the deaf culture and how sign language was done, since it involved a lot of facial expressions and hand movement, which led them to assume she was being overly familiar while using American Sign Language.
The Key Exchange Area
Near the end of her time at CCWF, O'Brien felt she had to wait too long in the key exchange area, which operates as the prison's central control. In the key exchange, prison staff pick up their keys to areas of the prison from correctional officers who are behind a window; the officers buzz the staff into and out of the area. The officers that work there are required to account for any equipment or keys used by prison staff and any movement in and out of the prison, among other things. Due to the nature of the key exchange post, the assigned officers can become otherwise occupied which may lead to a delay.
O'Brien recalled a delay in being "buzzed-out" of the key exchange about 10 times. O'Brien did not know the name of the correctional officer working in the key exchange and never asked him why there was a delay. Sometimes she would go up to the window and ask, "Are you going to let me out?" Such delays were not uncommon; even the warden sometimes had to wait an extended time there. In that situation, the warden sometimes had to remind the officers she was there and ask to be let out.
O'Brien Takes Medical Leave
In August 2014, Goynes told her the officers felt she was overfamiliarizing herself with the inmates and asked her if she had a problem being escorted in Unit 505. O'Brien responded no and asked him why. Goynes told her the officers would feel more comfortable if she were escorted. O'Brien did not view this as being counseled about overfamiliarization, since it was the officers who had the problem. O'Brien believed Baron felt she was being overly familiar, and Sotelo and Rodriguez raised the concern about overfamiliarization with Goynes. She believed an officer escorted her in Unit 505 once or twice.
The situation at work became so stressful and hostile that O'Brien went to see her doctor. O'Brien said she was "very, very stressed out" due to the way the officers treated her in Unit 505 and the B Yard, "being yelled at all the time for doing my job, and I just couldn't take it anymore." At the end of August 2014, O'Brien applied for medical leave under the Family and Medical Leave Act due to the stress she was under. She had started missing a lot of work and could not go back. Goynes told her she needed to start working on her attendance, but O'Brien told him she was so stressed out from work and everything that was going on, so he suggested she apply for medical leave. On September 23, 2014, O'Brien was approved for medical leave on an intermittent basis from August 2014 through August 2015. She requested intermittent leave because there were days she was "severely stressed" and other days she "would be yelled at that caused more problems."
Despite being granted leave, O'Brien felt she had to resign so she prepared a letter of resignation three days later, in which she stated she "had a lot of opportunities to learn many different aspects of CCWF" and was "truly thankful for all the experience you have provided," but it was "time for me to be home and explore other options to which I will be able to work around my own schedule as my family needs me." O'Brien further stated she would "miss working in the ADA Department" and Goynes had been an outstanding boss who she would miss working with. O'Brien testified her "original resignation letter was not so pleasant," but her daughter said she could not send it, so she "made up this one" so she would "leave on a good note."
After O'Brien submitted her resignation, she ran into the prison's warden, Debra Johnson, who told O'Brien she was sorry to hear she was leaving. O'Brien asked to speak with Johnson, telling her the reason she was leaving was not what she put on her resignation letter. They spoke in Johnson's office. O'Brien explained she was leaving due to "all the harassment" and the way she was being treated in her office. She told Johnson it was "very hostile" and she could not work like that anymore—when she went through work change, Longero did not look at her to check if the identification was hers; when she went into Unit 505, she was harassed; and she was shunned in her own department. Johnson said she was really surprised and Goynes never mentioned it to her. Johnson asked O'Brien if she would be willing to stay if changes were made; O'Brien responded yes. Johnson gave O'Brien 30 days off work and said there would "be some big changes around here." Johnson did not specify the changes she intended to make, and O'Brien did not ask.
O'Brien filed a workers' compensation claim, in which she made a statement of the history of harassment and hostility. O'Brien reported that once while attempting to walk with two employees, one of the employees chided the other for mistreating O'Brien; the other employee responded that she did not "give a fuck[,] let them [write] me up." She also reported the incident in which Baron yelled at her when she went to check on an inmate who was bleeding.
O'Brien went on unpaid leave during the month of November 2014. While on leave, O'Brien abandoned her workers' compensation claim because she trusted Johnson was going to "fix it," namely, "their harassment and hostility," and believed there would be changes when she returned from leave.
O'Brien Returns from Leave
O'Brien returned from leave on December 1, 2014, and learned Cooper had replaced Goynes as the ADA Coordinator. When Cooper first started as ADA Coordinator, Rodriguez talked to Cooper about her belief that O'Brien had been overly familiar with inmates and reiterated the same information she gave Goynes with respect to O'Brien speaking with the inmate's mother. Rodriguez understood this was a serious accusation, which as far as Rodriguez was concerned had been resolved. According to Rodriguez, Cooper asked if she had documentation and when Rodriguez said no, they left it at that.
According to Cooper, Rodriguez mentioned there were rumors that O'Brien was overly familiar with inmates. Cooper recalled the complaint was that the staff felt like O'Brien was being overly familiar because they did not know what was being said when O'Brien signed for the inmates, which made them uncomfortable. Cooper assumed the staff was confused about the sign language interpreter's job. Cooper asked Rodriguez questions about it, but "the information was extremely vague, and there was very little validity to what she was saying." In addition, there was no documentation, investigation, or information to substantiate her claim. From the information provided, Cooper did not see any violation of Department policy, did not determine O'Brien had crossed the boundary lines of professionalism, and did not feel it was an issue that needed to be addressed.
According to O'Brien, when she first met Cooper, Cooper said she heard a lot about O'Brien. After O'Brien responded, "Good things, I hope," Cooper laughed and walked into her office. Thereafter, Cooper did not ask her to check in on the inmates or staff in Unit 505 or encourage her to do so. One day, when O'Brien returned from an appointment, Cooper called her into her office; Sotelo and Rodriguez were there. Cooper told her, "You are no longer allowed to go to 505 for any reason." Cooper told O'Brien she was not allowed in Unit 505 because the officers were uncomfortable with her and believed she was being overly familiar with the inmates. When O'Brien responded she had deaf inmates in the building as well as a medical unit, Cooper told her if she needed to go there, she was to be escorted by Rodriguez. O'Brien understood Cooper's instruction to mean she was banned from checking in on the inmates in Unit 505, but if she had appointments there, she had to be escorted. After that, O'Brien believed she only went to Unit 505 once for an appointment, and was escorted by Rodriguez.
O'Brien told Cooper officers were denying the inmates' requests for an interpreter. Cooper would respond, "Well, can't another inmate help her?" O'Brien answered, "Well, how are they going to do that? How is she going to tell them what she wants them to write?" Cooper got upset any time O'Brien brought up this issue. According to O'Brien, Cooper was rude to her; Cooper was always yelling at her and being disrespectful to her.
At some point, O'Brien was notified that the mental health art group was permanently cancelled. O'Brien said, "oh, my God, now I have absolutely nothing to do." Cooper came out of her office, stood in front of her desk, and, while acting like she was convulsing, said, "What's the matter? You are not going to be able to work with your inmates anymore?" O'Brien responded, "What are you talking about? This is my job." After that, "[t]hey took it all away," meaning she was not given any more assignments to interpret for inmates. O'Brien felt like they were trying to push her out because she was causing too many problems. O'Brien tried to get work elsewhere in the prison, but she was not allowed to work anywhere.
The sign language interpreter logs show that O'Brien had virtually no assignments during her last three months at CCWF.
O'Brien claimed Cooper tried to have one or more inmates removed from the list of inmates needing sign language interpreter services because the officers believed they did not need an interpreter. O'Brien confronted Cooper about it and let her know the inmates needed to stay on the list because they needed an interpreter. Cooper was not happy with O'Brien and would not include her in meetings or conversations on this issue.
The Prison Law Office Tour and Report
The Prison Law Office toured CCWF from December 9 to 12, 2014, to monitor CCWF's compliance with the Armstrong plan and ADA. During the tour, O'Brien told a Prison Law Office investigator the inmates were being denied interpreters and she had been called to Unit 505 only once in the two years she had been at the institution. O'Brien, who had been reporting for over a year that the inmates were being denied their requests for an interpreter, told the investigator she tried to get the inmates some assistance but had not been able to get any help.
The Prison Law Office prepared a report of the tour, which Cooper received within 60 days of the tour. According to Cooper, the Prison Law Office identified an issue concerning the sign language interpreter contract unit having difficulty getting sign language interpreters to come in and assist during off-duty hours. Cooper explained CCWF was working with Sacramento to develop a new statewide system to satisfy this need. The Prison Law Office's report stated: "The staff [sign language interpreter] confirmed that in the one-and-a-half years she has worked at the prison, she has never received a call from staff to interpret in [B]5, where nearly all the deaf women live." Cooper knew O'Brien was the sign language interpreter referred to in the report and according to the report, what O'Brien said confirmed the inmates' complaints.
Cooper had received five Prison Law Office reports during her tenure at CCWF, which she acknowledged were largely critical of CCWF's compliance with the Armstrong plan. The Prison Law Office reported that some of the staff were reluctant to answer questions and during staff interviews, Cooper would admonish the staff when they gave what she thought was an inaccurate and incomplete response. Cooper understood the report was a personal attack on her, but she claimed the Prison Law Office investigators misinterpreted what she was doing, and she merely was rephrasing their questions so staff could understand them, which frustrated the investigators. Cooper also claimed the Prison Law Office was doing things that were "borderline unethical," which she reported to her supervisors and CCWF's attorneys.
O'Brien Resigns
On January 30, 2015, O'Brien emailed a second letter of resignation to Cooper, who never indicated to O'Brien that she knew of her previous resignation or why she previously was off work. O'Brien stated in the email that she was resigning effective February 20, 2015, and it had "been a pleasure working with you and the associations I have made while working at CCWF." O'Brien said the letter was complementary because she was thinking of her ability to work in the future and she wanted to leave on a positive note. O'Brien planned to take some time off to get herself back together and return to contracting. Cooper testified O'Brien told her she was resigning so she could freelance and have a more flexible schedule, allowing her more time to deal with issues involving her son.
O'Brien is Denied SATF and CCWF Gate Clearances
Lifesigns, a company that provides interpreters to various entities on an as-needed basis, had a contract to provide sign language interpreters to the Department on a statewide basis. Sometime after resigning, O'Brien contacted Gloria Martinez, a dispatch supervisor at Lifesigns, and told her she was no longer working at CCWF and was interested in contract work, specifically at SATF. After talking with Martinez, O'Brien understood she would apply to both SATF and CCWF. In order to work at either facility, O'Brien needed to be cleared or approved to enter it. To that end, she completed a gate clearance application for permission to work at the prison as a Lifesigns sign language interpreter, which Lifesigns submitted to SATF on O'Brien's behalf.
Associate Warden Patricia Brightwell, who was the ADA coordinator at SATF, was responsible for signing off on gate clearances for contract providers to SATF, such as sign language interpreters. If Brightwell decided to initiate the gate clearance, she would forward the application to the custody captain, who would perform a criminal background check on the applicant.
O'Brien's gate clearance application for SATF, which she signed on September 4, 2015, came through Brightwell's office. Brightwell's office technician, Aniya Sweeny, recognized O'Brien's name as a former sign language interpreter at CCWF and as being on a list of sign language interpreters. Sweeny took the application to Brightwell and mentioned that SATF's former sign language interpreter, Kaitlyn Rickerd, who was working at CCWF, was having problems with CCWF staff and their negativity toward her in her role as a sign language interpreter. Brightwell, however, claimed Sweeny told her O'Brien previously worked at CCWF and there were some issues with her there. Brightwell told Sweeny she intended to call CCWF about O'Brien because she wanted to hear firsthand what the issues were.
Although Brightwell had never contacted a gate clearance applicant's previous employer before to conduct a reference check, she decided to call Cooper. According to Brightwell, Cooper told her there were some concerns with O'Brien being overly familiar with some of the inmates, as she was intervening for the inmates and acting outside the scope of her duties as an interpreter, although she was never disciplined for this conduct. Cooper did not specify whether the concerns were hers or the staff's, and did not say they were unsubstantiated, although she did say they had not been investigated. She also did not say the information came from one person or the information had been given to the prior ADA coordinator at CCWF.
Brightwell did not do background checks on applicants for a gate clearance and she never previously asked for or received an applicant's work history. This was the only time she received information about an applicant's work history. The application did not ask for the applicant's work history and Brightwell did not ask applicants for their work history.
Cooper, however, claimed she told Brightwell that while she did not have a problem with O'Brien, she heard there was a concern about O'Brien being overly familiar with the inmates, which was based solely on the conversation Cooper had with Rodriguez. Cooper also claimed she told Brightwell she did not investigate the allegation, the charge was not substantiated, it did not result in any disciplinary action against O'Brien, and she did not actually think O'Brien had been overly familiar with the inmates. While Cooper told Brightwell that O'Brien "intervened" for the inmates, she did not remember saying O'Brien "advocated" for them.
Based on the information Cooper provided, Brightwell believed O'Brien could jeopardize the institution's safety and security and be a serious threat to security. Brightwell was not willing to take that risk, so she did not process O'Brien's gate clearance application, which Brightwell knew meant she could not work at SATF. The warden of SATF verbally approved Brightwell's decision not to process O'Brien's application. Had Brightwell initiated O'Brien's gate clearance, she did not see any reason why it would have been denied, assuming the background checks came back clean.
According to Sweeny, Brightwell told her she was not going to process O'Brien's gate clearance application, as she spoke with Cooper and O'Brien had been "overfamiliar" with the inmates by "advocating" for them. Brightwell also told her she did not feel comfortable with O'Brien working there due to the safety and security of the institution.
Brightwell testified Sweeny was present and listening into the conversation with Cooper, but Sweeny did not think she was in the room.
Sweeny communicated the decisional process concerning O'Brien's application to Martinez at Lifesigns in a series of emails. In a September 8, 2015 email to Martinez, Sweeny stated she needed to check with her supervisor about O'Brien's clearance because "[s]he may not be allowed to work here due to her past work history with CDCR." Martinez believed the phrase "past work history" referred to O'Brien's work at CCWF. Two days later, Sweeny emailed Martinez and told her they had not processed O'Brien's clearance and were "still deciding if [we] want her to come work at the institution." Finally, Sweeny emailed Martinez later that day: "We will not be submitting [O'Brien] for clearance here. My boss feels that with her past history with CDCR it would not be a good idea. I'm sorry...." Martinez emailed O'Brien and told her SATF had given her a list of their preferred interpreters and unfortunately her name was not on the list. She did not tell O'Brien the problem was with her past work history.
On the same day Martinez learned O'Brien would not get a gate clearance for SATF, she learned CCWF had rejected O'Brien's application there. Martinez emailed O'Brien and told her CCWF notified her of "their preferred list of cleared interpreters" and O'Brien was not on it. Martinez felt O'Brien was being "targeted," because she quit her job at the prison for the opportunity to make more money as a contract interpreter. Martinez had never had two prisons deny an interpreter a gate clearance on the same day, and only had an interpreter denied a gate clearance once.
Cooper admitted she received a gate clearance application form for O'Brien, but claimed she did not process it because CCWF did not need as many contract sign language interpreters as in the past. Cooper, however, acknowledged the Prison Law Office recommended CCWF hire additional sign language interpreters after the December 2014 monitoring tour; she claimed many of the problems disappeared when the prison hired a new sign language interpreter. According to O'Brien, when she called Cooper to ask why she denied her application, Cooper said she never received it and to have Martinez resubmit it, which O'Brien did.
Cooper also testified she received O'Brien's name, but not an application form with her name on it. Cooper explained Lifesigns sent her a list of names, which included O'Brien's, but Cooper did not include O'Brien's name on the application she submitted for clearance. Consequently, Cooper said she did not deny O'Brien's application, she just did not submit it. Cooper said she told the warden and chief deputy warden of her decision.
O'Brien called Brightwell to ask why her application was denied. Brightwell told her she would have to call her back because she had to get her "facts together." When Brightwell called back, she said she denied her clearance "because of your history at CCWF and your interactions with the inmates." Brightwell, however, recalled only one conversation with O'Brien, during which she said she made an administrative decision not to process the clearance based on information she received from O'Brien's previous employer that was inmate related.
O'Brien continued to contact SATF about the refusal to process her application. On December 18, 2015, Sweeny emailed Martinez to inform her that O'Brien had contacted the warden's office that day about the matter. Sweeny explained to Martinez that Brightwell made an "executive decision" not to process her gate clearance "due to her past history with CDCR," the warden was notified of the denial, and Sweeny notified Martinez of the decision, which "should have been the end of it." Sweeny asked Martinez to let her know how Martinez would like to handle the situation, as O'Brien's "continuous calls are inappropriate and unprofessional." Martinez responded by email that O'Brien was not an active freelance interpreter for Lifesigns and "[h]er recent decision to move forward with a complaint to your facility has totally been without the knowledge or approval of LIFESIGNS." Sweeny responded that Martinez may want to investigate the matter, as O'Brien stated she was a contract interpreter for Lifesigns and was continuing to try to work for the agency.
This Lawsuit
On February 8, 2016, O'Brien filed a complaint with the California Department of Fair Employment and Housing alleging disability-based harassment, discrimination, and retaliation. O'Brien subsequently sued the Department. Her complaint alleged the following six causes of action: (1) discrimination in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), based on O'Brien's association with the deaf inmates; (2) harassment because of her association with the deaf inmates in violation of the FEHA; (3) retaliation in violation of the FEHA; (4) defamation based on the statement she was denied the gate clearances due to her history at CCWF; (5) violation of Labor Code section 1050 based on the same statement; and (6) retaliation in violation of the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.).
Further undesignated statutory references are to the Government Code.
In June 2017, the Department brought a motion for summary judgment arguing, among other things, that her associational discrimination and harassment claims based on her work as a sign language interpreter failed because she was unable to demonstrate an association with a disabled person. The trial court denied the motion.
A jury trial on all six causes of action began on April 9, 2018. After the close of O'Brien's case-in-chief, the Department moved for nonsuit as to O'Brien's defamation and Labor Code section 1050 claims, which the trial court denied. Jury instruction and closing arguments took place over two days, on May 3 and 7, 2018, and the jury began deliberating on May 8, 2018. The jury was given a special verdict form to complete, which asked the jury to answer 41 questions related to the six causes of action and damages on those claims. The following day, the jury reached a verdict in O'Brien's favor on all causes of action and awarded her economic and noneconomic damages on her nondefamation claims totaling $1,135,012, and actual damages on her defamation claims totaling $444,100. The Department filed motions for judgment notwithstanding the verdict and new trial, which were denied. The trial court subsequently awarded O'Brien her attorney fees and costs.
DISCUSSION
I. Associational Discrimination and Harassment
The Department contends the jury's verdict on O'Brien's associational discrimination and harassment claims must be overturned because "O'Brien's ordinary work relationship with the deaf inmates as a sign language interpreter is insufficient to support a claim of associational disability discrimination or harassment, as a matter of law." In a related argument, the Department asserts that since O'Brien's professional encounters with the deaf inmates are legally insufficient to establish the associational discrimination claim, the jury instruction on that claim is erroneous because it "inherently presume[s] that this relationship alone constitutes association for the purposes of the FEHA."
A. Trial Court Proceedings
During the conference on jury instructions and the verdict form, the parties and trial court discussed the appropriate instruction and verdict questions on O'Brien's FEHA discrimination claim. The trial court modified the instruction on associational discrimination, CACI No. 2547, as O'Brien's attorney persuaded it to allow the claim to go forward based on O'Brien "being perceived or viewed as exceeding her duties as a sign language interpreter when she is engaging in duties merely as a sign language interpreter." On that basis, the trial court proposed to have question four on the verdict form and matching jury instruction read: "Was Lola O'Brien viewed as exceeding her duties as a sign language interpreter for engaging in the essential duties of a sign language interpreter?"
CACI No. 2547, entitled "Disability-Based Associational Discrimination—Essential Factual Elements," provides: "[Name of plaintiff] claims that [name of defendant] wrongfully discriminated against [him/her/nonbinary pronoun] based on [his/her/nonbinary pronoun] association with a disabled person. To establish this claim, [name of plaintiff] must prove all of the following:
"1. That [name of defendant] was [an employer/[other covered entity]];
"2. That [name of plaintiff] [was an employee of [name of defendant]/applied to [name of defendant] for a job/[describe other covered relationship to defendant]];
"3. That [name of plaintiff] was [specify basis of association or relationship, e.g., the brother of [name of disabled person]], who had [a] [e.g., physical condition];
"4. [That [name of disabled person]'s [e.g., physical condition] was costly to [name of defendant] because [specify reason, e.g., [name of disabled person] was covered under [plaintiff]'s employer-provided health care plan];] [¶] [or] [¶]
"[That [name of defendant] feared [name of plaintiff]'s association with [name of disabled person] because [specify, e.g., [name of disabled person] has a disability with a genetic component and [name of plaintiff] may develop the disability as well];] [¶] [or] [¶]
"[That [name of plaintiff] was somewhat inattentive at work because [name of disabled person]'s [e.g., physical condition] requires [name of plaintiff]'s attention, but not so inattentive that to perform to [name of defendant]'s satisfaction [name of plaintiff] would need an accommodation;] [¶] [or] [¶]
"[[Specify other basis for associational discrimination];]
"5. That [name of plaintiff] was able to perform the essential job duties;
"6. [That [name of defendant] [discharged/refused to hire/[other adverse employment action]] [name of plaintiff];] [¶] [or] [¶]
"[That [name of defendant] subjected [name of plaintiff] to an adverse employment action;] [¶] [or] [¶]
"[That [name of plaintiff] was constructively discharged;]
"7. That [name of plaintiff]'s association with [name of disabled person] was a substantial motivating reason for [name of defendant]'s [decision to [discharge/refuse to hire/[other adverse employment action]] [name of plaintiff]/conduct];
"8. That [name of plaintiff] was harmed; and
"9. That [name of defendant]'s conduct was a substantial factor in causing [name of plaintiff]'s harm."
The Department's attorney was concerned they were trying to modify preexisting law to fit the facts of the case, which did not seem appropriate since the purpose of a FEHA disability association claim is to dissuade employers from discriminating against individuals who associate with a disabled individual in their personal lives and the disabled individual must be the motivating reason for the employer's unlawful conduct, which was not the case here. The attorney argued O'Brien must establish she has a relationship with a disabled person not just by the fact of a job description, otherwise everyone in the ADA office or prison could bring a disability association claim, since they all have duties related to the physically or developmentally disabled inmates. The attorney further argued the claim is intended to prevent discrimination against individuals who are so closely associated with the disabled person they are themselves essentially disabled for purpose of their employment.
While the trial court did not believe a professional relationship was sufficient by itself to support an associational discrimination claim, arguably prison staff concluded, due to the uniqueness of sign language interpreting, that O'Brien exceeded her job duties when she was merely performing them, which was in some sense a disability. The trial court recognized this interpretation could lead to every sign language interpreter coming under FEHA. The jury, however, might find the prison staff understood the sign language interpreter's role and O'Brien went well beyond it, and therefore determine that O'Brien was not viewed as exceeding her job duties merely because she was doing her job. The trial court was inclined to allow the CACI No. 2547 instruction on that basis because otherwise the Department was asking it to find in its favor on the first two causes of action.
The Department's attorney asserted it was a legal issue and ultimately plaintiff had the burden of proving there was a personal relationship and the verdict form should not have that question answered already. The trial court asked whether the consequence of requiring a personal relationship would be a ruling for the defense as a matter of law on the first and second causes of action, which meant they would not be sent to the jury. The Department's attorney responded, "not necessarily." The trial court then asked what the jury should be asked if that was not the consequence and provided the parties with its draft of CACI No. 2547. The attorney responded they needed to appropriately define what association means and question three on the verdict form and the third paragraph on the CACI No. 2547 instruction should read, "Lola O'Brien was so closely identified with CCWF's deaf inmates that she herself was essentially disabled for the purposes of her employment," which encapsulates the FEHA association-based disability claim. The attorney asserted the fourth paragraph needed to relate back to the inmate's deafness as the motivating factor for the Department's conduct, namely, the Department was so fearful, concerned or vexed by the fact some inmates were deaf that it opted to discriminate, harass, or retaliate against O'Brien, and the trial court's proposed fourth paragraph of "exceeding job duties" could encompass anything. In the attorney's view, the fourth paragraph did not "drive home the point of being so closely identified with a disabled person," or alert the jury the plaintiff has a heightened burden to establish a personal relationship with a disabled person.
O'Brien's attorney argued a close personal relationship was not required and the language "closely identified" should not be used, as the FEHA claim is meant to prevent discrimination that hurts the disabled, which might include discrimination against suppliers of business services to the disabled. O'Brien's attorney conceded an instruction such as CACI No. 2547 was needed, which the trial court noted neither party had submitted. The trial court therefore asked the parties to submit a proposed instruction with the elements set forth in CACI No. 2547, which it would consider from both sides, adding its concern that if the defense is correct, the claims should not even go to the jury because there was insufficient evidence to find associational discrimination as a matter of law. The Department's attorney agreed. Later that day, the Department's attorney provided its version of CACI Nos. 2547 and 2521-A, and a brief in opposition to O'Brien's brief regarding the scope of associational relationship.
While the brief is in the appellate record, the Department's proposed CACI instructions are not. In the brief, the Department argued in order to state a claim for associational discrimination under FEHA, O'Brien "must demonstrate that she was so closely associated with a disabled person that she herself was essentially considered disabled for purposes of her employment," and the jury instructions and verdict form should reflect this principle. The Department argued the mere fact O'Brien worked as a sign language interpreter for deaf inmates was not tantamount to being physically disabled under FEHA.
The next day, the trial court provided the parties with jury instructions and the verdict form which it updated based on the parties' agreement from the prior day and the court's own decisions where there was lack of agreement. In addition, it received additional proposed instructions that morning. The trial court believed everyone had made a record regarding the verdict form and instructions but allowed the parties a final chance to address these matters.
O'Brien's attorney objected to question three on the trial court's verdict form, which stated, "Was Lola O'Brien so closely identified with CDCR's disabled inmates that she herself was essentially disabled for purposes of her employment?" as he believed it was a misstatement of the law. He asserted the plaintiff does not have to be perceived as being disabled herself or tantamount to being disabled; instead, the association takes the place of disability and the focus is on a person's association with the disabled.
The trial court responded it could have taken the position the associational disability causes of action would not go to the jury because as a matter of law it did not fall into the categories set forth in case law, specifically Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028 (Castro-Ramirez). Those categories, however, had a common thread, and if the trial court had not included the language in question three, it would have included it in question four. The Department's attorney did not have any comment on that issue.
The trial court instructed the jury with CACI No. 2547 as follows: "Lola O'Brien claims that CDCR wrongfully discriminated against her based on her association with a disabled person. To establish this claim, Lola O'Brien must prove all of the following: One, that CDCR was an employer; two, that Lola O'Brien was an employee; three, that Lola O'Brien was so closely identified with CDCR's hearing-impaired that she, herself, was essentially disabled for purposes of her employment; four, that Lola O'Brien was viewed by the staff of the CDCR as exceeding her duties as a sign language interpreter for engaging in the essential job duties; five, that Lola O'Brien was able to perform the essential job duties; six, that CDCR subjected Lola O'Brien to an adverse employment action; seven, that Lola O'Brien's association with the hearing-impaired was a substantial motivating reason for CDCR's conduct; eight, that Lola O'Brien was harmed; and, nine, that CDCR's conduct was a substantial factor in causing Lola O'Brien's harm." The verdict form contained the same elements as the questions for the jury to resolve.
Similarly, the jury instruction for the FEHA harassment claim (CACI No. 2521A) asked the jury to determine whether O'Brien "was so closely identified with CDCR's disabled inmates that she, herself, was essentially disabled for purposes of her employment" and "was viewed by the staff of the CDCR as exceeding her duties as a sign language interpreter for engaging in the essential job duties."
Late in the afternoon on the first day of deliberations, the trial court received a question from the jury concerning question seven on the verdict form, which related to the FEHA discrimination claim and read: "Was Lola O'Brien's association with the hearing impaired a substantial motivating reason for the CDCR's decision to subject Lola O'Brien to an adverse employment action?" The jury asked: "[W]as Lola's association with 'the hearing impaired' as a whole community or was it with the association with 'the hearing impaired inmates' specifically at CCWF?"
The following morning, the trial court advised the jury the answer to its question was contained in the instructions it had already received, which should be considered together. That afternoon, the jury returned the special verdict form that responded in the affirmative to the following questions: "Question 3. Was Lola O'Brien so closely identified with CDCR's disabled inmates that she herself was essentially disabled for purposes of her employment?" and "Question 4. Was Lola O'Brien viewed by the staff of the CDCR as exceeding her duties as a sign language interpreter for engaging in the essential job duties?"
B. The Association Required Under the FEHA
Under the FEHA, it is unlawful for "an employer, because of the ... physical disability ... of any person, to ... discharge the person from employment ..., or to discriminate against the person ... in terms, conditions, or privileges of employment." (§ 12940, subd. (a).) It also is unlawful under FEHA "[f]or an employer ... or any other person, because of ... physical disability ... to harass an employee...." (§ 12940, subd. (j)(1).) The definition of "physical disability" encompasses association with a physically disabled person, as the term " 'physical disability' ... includes a perception that the person has [a physical disability] or that the person is associated with a person who has, or is perceived to have, [a physical disability]." (§ 12926, subd. (o), italics added.)
Section 12926, subdivision (o) states in its entirety: "As used in [FEHA] in connection with unlawful practices, unless a different meaning clearly appears from the context: [¶] ... [¶] (o) 'Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or veteran or military status' includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics."
Thus, when FEHA forbids discrimination or harassment based on disability, it also forbids discrimination or harassment based on a person's association with another who has a disability. (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1036.) In that situation, "the 'disability' from which the plaintiff suffers is his or her association with a disabled person." (Id. at p. 1037.) "The pivotal purposes of the statute are to prevent, eliminate and remedy workplace discrimination," and "FEHA must be liberally construed to promote and accomplish its purposes." (Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 656 (Rope), superseded by statute on another ground as discussed in Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 245-247.)
The issue here is what type of association is necessary to support a claim for associational disability discrimination or harassment. There are no published California decisions that answer this question. Pointing to legislative history and federal cases interpreting the ADA, the Department argues such claims are limited to situations where the plaintiff has a personal relationship or association with the disabled individual and certainly does not include an association with a disabled individual by virtue of the plaintiff's job duties. O'Brien argues the parameters of associational discrimination or harassment easily encompass situations where an employee was perceived as advocating for the disabled or was closely identified with the disabled, and therefore extend to her claims.
There are two published California decisions that directly address FEHA associational disability discrimination claims, Castro-Ramirez and Rope. Both cases involved associations with disabled relatives. (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1031 [plaintiff's son required daily dialysis, which the plaintiff was required to administer]; Rope, supra, 220 Cal.App.4th at p. 642 [plaintiff requested leave to donate a kidney to his disabled sister].) While each case addressed framework of a disability-based associational discrimination claim, neither addressed the issue presented in the present case, namely, whether an associational discrimination claim extends to associations in the workplace.
Resolution of this issue depends on statutory interpretation, which is subject to our independent review. (Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th 627, 633.) "When we interpret a statute, '[o]ur fundamental task ... is to determine the Legislature's intent so as to effectuate the law's purpose. We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy.' " (Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 165-166.)
The Department does not identify what ruling it is contesting in arguing the associational discrimination and harassment claims must be overturned. Based on the exchange during the jury instruction conference and the trial court ultimately presenting these claims to the jury, we presume the trial court impliedly ruled that a personal relationship is not required to support a claim for associational discrimination or harassment, and it is this decision the Department is contesting.
The word "associated" is commonly defined as being connected or involved with someone or something. Thus, when a person "is associated with" a disabled individual within the meaning of section 12926, subdivision (o), the person is connected or involved with the disabled individual. Significantly, the statute does not specify the circumstances under which that connection or involvement must occur, such as in the person's personal or professional life, and thus the statute could be extended to any association with a disabled person, including a sign language interpreter's association with the deaf persons the interpreter is employed to serve.
Lexico.com Dictionary (2020), https://lexico.com/definition/associate (last visited May 10, 2021).
The Department essentially contends such an interpretation would lead to absurd consequences when they assert it would arm every sign language interpreter with a FEHA complaint and could also extend to foreign language interpreters based on the protected categories of national origin and race. The Department argues this was not what the Legislature intended, pointing to the legislative history of Assembly Bill No. 1670, which amended section 12926 to add former subdivision (m), which is now subdivision (o), to provide that the listed characteristics "includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics." (Stats. 1999, ch. 591 (A.B. 1670), § 5.1.) An analysis by the Assembly Judiciary Committee staff states, "the bill clarifies that FEHA's protections against housing and employment discrimination cover associational rights as well, i.e., discrimination based upon perceptions about who one may be associating with will now be protected under the Act. Thus, for example, discrimination involving the improper firing of an African-American woman because she was dating a white man, or discrimination against a prospective renter because his friends are of a different racial background, appropriately would be brought within FEHA's protective umbrella." (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 1670 (1999-2000 Reg. Sess.), May 11, 1999, p. 15.)
While the Department cites the Assembly Judicial Committee report, it did not ask us to take judicial notice of it. (Flores v. Southcoast Automotive Liquidators, Inc. (2017) 17 Cal.App.5th 841, 849 [appellate court may take judicial notice of reports by the Assembly Judiciary Committee].) We take judicial notice of the report on our own motion. (Evid. Code, §§ 452, subd. (c); 459, subd. (a); PG&E Corp. v. Public Utilities Com. (2004) 118 Cal.App.4th 1174, 1204, fn. 25 [appellate court may take judicial notice of legislative history materials on its own motion].)
Thus, it appears protecting associational rights was a motive for adding what is now subdivision (o) to section 12926, and an example was given of a romantic relationship. There is nothing in the language of the subdivision, however, to suggest its effect was to be limited to associations with people outside the workplace. "The ascertainment of legislative meaning necessarily focuses on the enacted statute and not on an unenacted expression of legislative will, however reliable." (In re Marriage of Stiller (1986) 187 Cal.App.3d 36, 46.) A sign language interpreter's association with the deaf inmates the interpreter is employed to serve is not beyond the statute's reach.
The Department cites federal case law interpreting the ADA's associational discrimination provision for the proposition that a plaintiff who claims discrimination for working with disabled individuals or advocating on their behalf, but does not have a specific association with an individual disabled person, does not have a claim for associational discrimination. The courts in those cases denied the plaintiffs' associational discrimination claims because the plaintiffs alleged discrimination based on their general advocacy on behalf of disabled individuals to whom they provided services. (Freilich v. Upper Chesapeake Health, Inc. (4th Cir. 2002) 313 F.3d 205, 215-216 [doctor claimed medical staff privileges terminated because she refused to end her advocacy for dialysis patients' rights]; Oliveras-Sifre v. Puerto Rico Department of Health (1st Cir. 2000) 214 F.3d 23, 26-27 [plaintiffs, who were hired to perform advocacy work for persons with AIDS, alleged their employment contracts were not renewed because of their advocacy on behalf of those individuals]; Tyson v. Access Services (E.D. Pa. 2016) 158 F.Supp.3d 309, 312 [plaintiff who worked arranging services for disabled clients asserted she was terminated after complaining that the needs of her disabled clients were not being met and they were discriminated against]; Manigaulte v. C.W. Post of Long Island University (E.D. N.Y. 2009) 659 F.Supp.2d 367, 378-379 [adjunct professor claimed his appointment was not renewed because he complained university program discrimination against persons with learning disabilities].)
In contrast here, O'Brien's associational discrimination and harassment claims were based on more than general advocacy for the deaf inmates; instead, they stemmed from the perception that O'Brien was associated with the deaf inmates because she was being overly familiar with them. As O'Brien points out, section 12926, subdivision (o), extends the definition of physical disability to anyone perceived to be associated with a person with a physical disability. (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1036.) In effect, the prison staff made an unfounded assumption about O'Brien on account of the inmates' deafness, namely, that she was being overly familiar with the inmates when she was interpreting for them. (See Oliveras-Sifre v. Puerto Rico Department of Health, supra, 214 F.3d at p. 26 [ADA's associational discrimination provision "intended to protect qualified individuals from adverse job actions based on 'unfounded stereotypes and assumptions' arising from the employees' relationships with particular disabled persons"].)
For example, Rodriguez formed the opinion that O'Brien was overly familiar solely because she translated a call between a hearing-impaired inmate and the inmate's mother, which Rodriguez chose to understand as a chat between O'Brien and the inmate's mother. Baron and Sotelo called O'Brien "overfamiliar" because "she talked to the inmates too much," which was why Baron believed O'Brien was at least partially responsible for putting two deaf inmates back together in the same room. In addition, Cooper mocked O'Brien when O'Brien learned her work had been taken away, thereby implying O'Brien's desire to do her job was based on a need to interact with the deaf inmates. While O'Brien denied having a personal relationship with any of the deaf inmates, it was her interaction with specific inmates that led to this unfounded assumption about her.
In our view, under the unique circumstances of this case, O'Brien's association with the deaf inmates by virtue of her interpreting for them is a sufficient association on which she could bring her associational discrimination and harassment claims. Accordingly, the trial court did not err when it submitted these claims to the jury rather than dismissing them.
C. Jury Instruction on Associational Discrimination
The Department contends the trial court's associational discrimination jury instruction was erroneous because it presumed O'Brien's professional encounters with deaf inmates was legally sufficient to establish the cause of action and did not ask the jury to find whether the required association with a disabled person was present. The Department asserts since the evidence unequivocally established O'Brien did not have an associational relationship with the inmates under the FEHA, it "was prejudiced when the jury was erroneously instructed to substitute O'Brien 'doing her job' for the personal relationship necessary to bring an associational discrimination claim."
Since we have determined that O'Brien could maintain an associational discrimination claim based on her relationship with the deaf inmates through her work as a sign language interpreter, the Department's claim of error with respect to the jury instruction necessarily fails. The Department asserts the jury was confused about the key element of "association," since it asked whether, when asked to determine if O'Brien's "association with the hearing impaired" was a substantial motivating factor in the Department's decision to subject her to an adverse employment action, the association was with the hearing impaired as a whole community or the hearing impaired inmates at CCWF. The jury's confusion over who O'Brien was associated with—the hearing-impaired community or the hearing-impaired inmates—was understandable given that question seven did not specify which it was. The question was answered by considering the other instructions, as the jury was asked to decide whether O'Brien was "closely identified" with the Department's hearing impaired, not the entire hearing-impaired community. Contrary to the Department's assertion, the jury was not confused about the question concerning the required association, namely, whether O'Brien "was so closely identified with CDCR's hearing impaired that she herself was essentially disabled for purposes of her employment." Therefore, the jury's question does not provide a basis to reverse the associational discrimination verdict.
II. Sufficiency of the Evidence on the FEHA and ADA Claims
The Department contends some of the jury's findings are not supported by substantial evidence. Specifically, it argues the discrimination and retaliation claims fail because there is insufficient evidence of an adverse employment action and discriminatory or retaliatory animus, and the harassment claim fails because there is insufficient evidence to establish O'Brien was subjected to severe or pervasive disability harassment.
A. Standard of Review
"Where findings of fact are challenged on a civil appeal, we are bound by the 'elementary, but often overlooked principle of law, that ... the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,' to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court." (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.) If it appears that two inferences may fairly and reasonably be deduced from the facts, we adopt the inference most favorable to the support of the judgment. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 633.) "The fact that it is possible to draw some inference other than that drawn by the trier of fact is of no consequence." (Jessup Farms v. Baldwin, at p. 660.) An inference may not be based on suspicion, imagination, speculation, supposition, surmise, conjecture or guesswork. (People v. Morris (1988) 46 Cal.3d 1, 21, disapproved on another ground in In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6.)
B. Adverse Employment Action
In order to prove discrimination or retaliation under FEHA, a plaintiff must prove she was "subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment." (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386.) The employer's actions must have a "detrimental and substantial effect on the plaintiff's employment." (Ibid.)
"Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions" of section 12940, subdivisions (a) and (h). (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054-1055 (Yanowitz).)
As the jury was instructed, a constructive discharge, which occurs when the employer's conduct effectively forces an employee to resign, is a materially adverse employment action. (Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1253.) To establish a constructive discharge, the employee must prove " 'the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign.' " (Id. at p. 1253.) "[T]he employee's working conditions must be 'sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer. The proper focus is on whether the resignation was coerced, not whether it was simply one rational option for the employee.' [Citation.] 'The essence of the test is whether, under all the circumstances, the working conditions are so unusually adverse that a reasonable employee in plaintiff's position " ' " would have felt compelled to resign." ' " ' " (Ibid.)
The Department asserts the actions and events O'Brien complained of were minor and there was no evidence she suffered a detrimental change to the terms or conditions of her employment. The Department points out that O'Brien was never subjected to any type of discipline—she was not terminated, never received a pay reduction or demotion, and was not even counseled—and argues the treatment O'Brien was subjected to constituted a disparate collection of minor events involving different employees that did not materially affect the terms, conditions or privileges of employment.
We disagree. First, the jury was not required to consider each individual mistreatment of O'Brien in isolation. "The jury was entitled to, and on substantial evidence review we are required to, 'consider collectively the alleged [discriminatory] acts[. T]here is no requirement that an employer's [discriminatory] acts constitute one swift blow, rather than a series of subtle, yet damaging injuries.' " (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 373-374 (Horsford), citing Yanowitz, supra, 36 Cal.4th at p. 1055.)
Next, taken together, the actions taken against O'Brien were substantial and detrimental, and led to her constructive discharge. The correctional officers and Cooper yelled at her; she was told she could not sit in the work change area, but instead had to stand where the inmates stood; she was put under supervision in Unit 505 and interrogated when she entered the building; correctional officers shunned and ostracized her; she was barred from entering Unit 505, where the hearing-impaired inmates were housed; and ultimately her work was taken away from her. The apparent reason for the mistreatment was the belief that O'Brien was overly familiar with the hearing-impaired inmates, which was based only on the sign language interpreting services she provided to them. Through their mistreatment and ostracism, the correctional officers created a dangerous and oppressive work environment, made even more dangerous by the prison environment.
Thus, the jury reasonably could find that by the end of her time at CCWF, O'Brien's supervisor and coworkers had completely poisoned her work environment with abuse and prevented her from doing her job. These actions interfered with O'Brien's ability to perform her job and threatened to derail O'Brien's career at CCWF. (Yanowitz, supra, 36 Cal.4th at p. 1060 [acts that "threaten to derail an employee's career are objectively adverse"].)
Moreover, the evidence supports a finding that the Department coerced O'Brien to resign through the action and inactions of Cooper and the warden, who O'Brien apprised of the intolerable conditions, yet nothing was done. Thereafter, the abuse continued, leading to O'Brien's resignation. Thus, there is substantial evidence the Department authorized the actions that compelled O'Brien to resign.
The Department asserts O'Brien's lack of work was due to her own unavailability and system-wide changes to the class offerings, and she quit, not because she was forced out, but so she could return as a contractor and make more money. This is reprise of the Department's trial argument. The jury was free to, and apparently did, reject the Department's interpretation of the evidence. We conclude substantial evidence supports the jury's finding of an adverse employment action authorized by the Department.
C. Discriminatory or Retaliatory Animus
The Department contends O'Brien's discrimination and retaliation claims also fail because she did not prove the Department acted with discriminatory or retaliatory animus, and the FEHA retaliation claim fails because there is no evidence O'Brien engaged in protected activity. A plaintiff in a disability-based associational discrimination action has the burden of proving the plaintiff's association with a disabled person was a substantial motivating reason for the adverse employment decision. (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1037; see Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [jury should "determine whether discrimination was 'a substantial motivating factor/reason,' " for the employment decision].) Similarly, in a retaliation claim the plaintiff must prove the plaintiff's protected activity was a substantial motivating reason for the retaliatory acts. (Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466, 479.)
"Our required standard of review is simply to determine whether the jury had before it substantial evidence from which it reasonably could conclude the challenged employment actions were motivated in substantial part by reasons of" O'Brien's association with the deaf inmates or her protected activity. (Horsford, supra, 132 Cal.App.4th at p. 375; Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 205.)
1. The Discrimination Claim
The Department asserts there is insufficient evidence the events and circumstances O'Brien complained of were substantially motivated by her association with a disabled person. (Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 131.) The Department argues the evidence instead demonstrated the staff's conduct was based on something other than O'Brien's association with a disabled person and there was no evidence of the Department's discriminatory intent regarding the lack of work at the end of O'Brien's tenure at CCWF.
The Department, however, is once again relying on its interpretation of the evidence, which the jury rejected. While there may have been innocent explanations for the correctional officers' conduct, there was evidence to support the jury's finding that O'Brien's association with the hearing-impaired inmates was a substantial motivating reason for the correctional officers' and Cooper's mistreatment of O'Brien. The correctional officers talked about O'Brien being overly familiar with the deaf inmates and believed she talked to them too much. Cooper mocked O'Brien for having withdrawals from her inmates, implying O'Brien had an unusual relationship with the hearing-impaired inmates for which she provided sign language interpretation services. Based on this evidence, the jury reasonably could find it was O'Brien's association with the hearing-impaired inmates that motivated them to treat O'Brien as they did.
2. The Retaliation Claims
FEHA makes it unlawful "[f]or any employer ... to discharge ... or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." (§ 12940, subd. (h).) To state a claim for retaliation under FEHA, a plaintiff must show (1) she engaged in a protected activity, (2) she was subjected to an adverse employment action, and (3) there is a causal link between the two. (Rope, supra, 220 Cal.App.4th at p. 651.) The same elements apply to a retaliation claim under the ADA. (T.B. ex rel. Brenneise v. San Diego Unified School Dist. (2015) 806 F.3d 451, 473.)
The Department asserts the FEHA retaliation claim fails because O'Brien did not prove she engaged in protected activity. Protected activity under FEHA may take many forms and the determination as to what constitutes protected activity is inherently fact driven. (Rope, supra, 220 Cal.App.4th at pp. 651-652.) Opposition to practices prohibited by FEHA includes "[o]pposing employment practices that an individual reasonably believes to exist and believes to be a violation of the Act," and "[p]articipating in an activity that is perceived by the employer ... as opposition to discrimination, whether or not so intended by the individual expressing the opposition." (Cal. Code Regs., tit. 2, § 11021, subd. (a)(1)(C) & (D); Rope, at pp. 651-652.)
The "case law and FEHA's implementing regulations are uniformly premised on the principle that the nature of activities protected by section 12940, subdivision (h) demonstrate some degree of opposition to or protest of the employer's conduct or practices based on the employee's reasonable belief that the employer's action or practice is unlawful." (Rope, supra, 220 Cal.App.4th at pp. 652-653; Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 382-383 [advocacy for the disabled community and opposition to elimination of programs that might benefit that community do not fall within the definition of protected activity because an employer's discrimination against members of the general public is not a protected employment practice under FEHA].) An employee's unarticulated belief an employer is engaging in discrimination is insufficient to establish protected conduct " 'where there is no evidence the employer knew that the employee's opposition was based upon a reasonable belief that the employer was engaging in discrimination.' " (Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1199.) At a minimum, the substance of the employee's grievances must disclose discrimination due to the plaintiff's protected class. (Ibid.) Thus, in Villanueva, the plaintiff's retaliation claim failed where there was no evidence he complained to anyone about alleged racial discrimination or did anything to imply racial discrimination was an issue. (Id. at pp. 1198-1199.)
The Department contends the FEHA retaliation claim fails because O'Brien has not shown she engaged in protected activity. The Department asserts O'Brien's complaints related to the hearing-impaired inmates' requests and complaints are not protected activity under FEHA because the subject matter of those complaints, namely, that the inmates wanted more sign language interpretation, is not something prohibited by FEHA since the inmates are not Department employees. The Department further asserts the evidence failed to establish she complained to it about FEHA violations related to herself. While O'Brien complained about other staff, the Department argues they concerned personality conflicts or generalized gripes, and there was no evidence O'Brien informed the Department she was the victim of discrimination based on a protected class.
As O'Brien argues, the jury reasonably could find she engaged in protected activity under FEHA when she brought the issue of CCWF's failure to comply with the antidiscrimination laws up to her supervisors and the Prison Law Office. Arguably, in her disclosure to the Prison Law Office, she revealed the Department was discriminating against her because it was preventing her from doing her job, namely, providing services to the disabled, and as a result, she suffered the adverse employment actions discussed above. The connection between the two was revealed in Sweeny's testimony that Cooper perceived O'Brien as advocating or intervening for the disabled when she was simply doing her job.
The Department next argues the ADA retaliation claim fails because there is no evidence the Department took an adverse action against O'Brien because she engaged in protected activity. (T.B. ex rel. Brenneise v. San Diego Unified School Dist., supra, 806 F.3d at p. 473.) The Department asserts O'Brien failed to establish that "but-for" her protected activity, the Department would not have taken the same actions. (Ibid.)
The ADA defines retaliation as "discriminat[ion] against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter." (42 U.S.C. § 12203(a).)
We agree with O'Brien that the jury reasonably could find she engaged in protected activity under the ADA when she advised the Prison Law Office that CCWF was failing to carry out its responsibilities under the ADA, and as a result, she was subjected to the following adverse employment actions: Cooper yelled at her for reporting noncompliance and mocked her when she expressed concern that her work was being taken away; Cooper forbade her from entering Unit 505; her work was taken away; Cooper refused to process her gate clearance application at CCWF; and Cooper lied to Brightwell that she was a serious security threat, which resulted in Brightwell refusing to process her gate clearance application at SATF. Finally, the jury reasonably could conclude Cooper was motivated by a retaliatory animus based on O'Brien's protected activity based on the following: the Prison Law Office told Cooper that O'Brien reported CCWF's failure to comply with the ADA; the Prison Law Office's report was critical of CCWF and Cooper; and Cooper told Brightwell that O'Brien had been advocating for hearing-impaired inmates. Accordingly, there was sufficient evidence to support the jury's finding that the Department engaged in an adverse employment action "because of her conduct protected under the ADA."
D. The Harassment Claim
FEHA prohibits an employer from harassing an employee because of a physical disability, which includes perceived disability, or a person associated with a person who has a real or perceived physical disability. (§§ 12940, subd. (j)(1), 12926, subd. (o); Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 927 (Cornell); see Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 705-706.) A disability harassment claim "requires a showing ' "that the conduct complained of 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 [disability]." ' " (Cornell, at p. 927.) FEHA harassment claims involve "situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee." (Roby v. McKesson Corp., at p. 706.)
Whether conduct is " 'sufficiently severe or pervasive to create a hostile or abusive working environment depends on the totality of the circumstances' " (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 870), which may include " 'the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance' " (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462). " '[T]he employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.' " (Cornell, supra, 18 Cal.App.5th at p. 940.)
The Department argues O'Brien's disability harassment evidence was based on a handful of minor job-related interactions that had nothing to do with the inmates' disability. It points out she was not subjected to unwelcome comments about deafness or hearing impairment as a result of her association with deaf inmates. The Department asserts O'Brien testified about only one kind of harassing conduct, namely, the officers were harassing her when they asked her why she was in Unit 505 and what inmates she was there to see, which was entirely reasonable under the circumstances and did not amount to severe or pervasive harassment. Moreover, there was no evidence the correctional officers' inquiries were improper or motivated by unlawful discriminatory animus.
O'Brien responds that her work environment was unreasonably made to interfere with and ultimately disrupt her work performance. This environment consisted of: Cooper yelling at her while she was working and for reporting the correctional officers' failure to communicate interpretation requests; the officers maliciously making her the subject of false gossip about being overly familiar with the inmates; the officers making her stand with the inmates; being interrogated about the performance of her job duties because she "talked too much" to the deaf inmates; being forced to re-route her movements; the officers ostracizing and shunning her because she was perceived as being overly familiar with the inmates; the officers glaring at her while she worked with the deaf inmates in Unit 505 because they suspected her of "pulling strings" for them; being prevented from doing her job by visiting the deaf inmates when they needed her services; having her work taken away from her; and her coworkers treating her with open contempt. O'Brien asserts that based on this evidence, the jury reasonably could find she was subjected to severe or pervasive harassment because she was associated with the hearing-impaired inmates.
We agree with O'Brien that this evidence was sufficient for the jury to find O'Brien was subjected to severe and pervasive harassment due to her association with the hearing-impaired inmates. The Department asserts O'Brien's complaints were of ordinary workplace circumstances and sporadic or trivial events that she did not like, which do not amount to an intolerable and abusive work environment. But as O'Brien points out, this was not an ordinary workplace; instead, it was a prison where the people who had the power to control her movement and safety, namely, the correctional officers and her supervisors, attacked her dignity, security, and ability to work in innumerable ways, including precluding her from doing her job. In such an environment, acts that would be ordinary in any other workplace become intolerable and abusive. Thus, the jury reasonably could find the totality of the circumstances constituted unlawful harassment.
III. The Motion for Nonsuit
After the close of O'Brien's case-in-chief, the Department brought an oral motion for nonsuit on her defamation and Labor Code section 1050 claims. When the motion was taken up the following court day, the Department's attorney did not think it could be addressed until they resolved "the issue of the statement," as nine or 10 alleged defamatory statements had been raised during the trial. The trial court agreed to defer the motion and move on to discuss the jury instructions and verdict form. During the conference on jury instructions, the parties addressed the issue of what statements would be included as allegedly defamatory statements, with the Department's attorney arguing they should be limited to statements from Rodriguez to Cooper, and Cooper to Brightwell, that O'Brien was overly familiar with the inmates, and O'Brien's attorney arguing they should include Sweeny's statement to Martinez that O'Brien's past history prevented her from receiving the gate clearance.
Before the trial court decided that issue, the parties argued the nonsuit motion. The Department's attorney stated the motion pertained to the statement that O'Brien was overfamiliar with inmates, which was communicated from Cooper to Brightwell and from Rodriguez to Cooper. With respect to the first communication, the attorney asserted there was no evidence to suggest it was untrue, as the staff was concerned that O'Brien was being overly familiar. With respect to the second communication, the attorney argued there was not substantial evidence Rodriguez told Cooper that O'Brien was overfamiliarizing with inmates or that she made the statement with actual malice, as required to defeat the common interest privilege.
O'Brien's attorney argued there were issues of fact as to whether these statements were false and made with actual malice. The attorney also addressed Sweeny's statement to Martinez that the gate clearance was denied due to O'Brien's history at CCWF, arguing it was untrue. He further argued the jury could find that Cooper told Brightwell there really were sincere concerns about safety and security, and Brightwell decided not to process the clearance based on what Cooper told her, which was false information.
The Department's attorney responded there was no evidence Cooper said O'Brien was overfamiliarizing with inmates, and Brightwell knew there had not been an investigation and O'Brien had not been disciplined. Thus, the "sting" of the statement was "staff concerns," which were true. With respect to the statement from Sweeny to Martinez, the attorney argued there were a number of issues, including: (1) the statement was not published to anyone other than O'Brien since it was made to O'Brien's agent who the Department was contracted to deal with; (2) the statement was true because the clearance was denied due to her history with the Department, regardless of what that history was; and (3) the common interest privilege applied, as there was no evidence either Sweeny or Brightwell had actual malice toward O'Brien. The trial court denied the motion without explanation.
Ultimately, the jury was instructed that O'Brien's defamation claim was based on the following statement: " 'Lola O'Brien engaged in overfamiliarization conduct with inmates while employed by the CDCR.' " The special verdict form asked the jury whether the Department made this statement to a person other than O'Brien; the jury answered "Yes."
On appeal, the Department contends the trial court erred in denying its motion for nonsuit because the statements upon which the defamation and Labor Code section 1050 claims were based were opinion, not fact, and were protected by the common interest privilege. The Department also asserts for the first time on appeal that the Labor Code section 1050 claim fails because none of the statements were made to a prospective employer.
A. Standard of Review
"A trial court may grant a motion for nonsuit if the plaintiff's evidence would not support a jury verdict in the plaintiff's favor. [Citation.] We review an order denying a motion for nonsuit de novo by using the same standard as the trial court, and will affirm the order so long as substantial evidence supports the jury's verdict." (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1013.) In determining the sufficiency of the plaintiff's evidence, we do not weigh the evidence or assess witness credibility; instead, "[w]e accept as true the evidence most favorable to the plaintiff, disregard conflicting evidence, and draw every legitimate inference from the evidence in the plaintiff's favor." (Ibid.)
"The grounds for the nonsuit motion should be clearly specified to give the plaintiff an opportunity to cure any defects. [Citations.] The plaintiff must be given an opportunity to present all the facts he expects to prove before a nonsuit is proper. [Citations.] On appeal we will not consider any ground for the nonsuit not advanced in the trial court, except one which identifies an incurable defect." (Loral Corp. v. Moyes (1985) 174 Cal.App.3d 268, 272-273.)
B. Defamation and Labor Code section 1050
O'Brien's causes of action for defamation and violation of Labor Code section 1050 were based on her claim that after her employment with the Department ended, the Department communicated that she had been overly familiar with inmates while employed by the Department. "The tort of defamation 'involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.' " (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) Under Labor Code section 1050, it is a misdemeanor for an employer to make misrepresentations about a former employee in order to prevent, or try to prevent, the former employee from obtaining employment. Labor Code section 1054 allows for a civil cause of action based on section 1050, whose remedy includes treble damages.
Labor Code section 1050 provides: "Any person, or agent or officer thereof, who, after having discharged an employee from the service of such person or after an employee has voluntarily left such service, by any misrepresentation prevents or attempts to prevent the former employee from obtaining employment, is guilty of a misdemeanor."
Under the common interest privilege, an otherwise defamatory communication is privileged if the communication is made without malice to a person interested in the communication's subject matter by another person also interested in the communication's subject matter. (Civ. Code, § 47, subd. (c).) The common interest privilege applies to communications made by a current or former employer to prospective employers concerning the job performance or qualifications of an applicant for employment. (Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1369; Civ. Code, § 47, subd. (c).) Employers such as the Department have a conditional privilege to communicate, without malice, with persons who have a "common interest" in the communication's subject matter. (Civ. Code, § 47, subd. (c); Neal v. Gatlin (1973) 35 Cal.App.3d 871, 877; see McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1538-1541 [applying common interest privilege to statements made by coworkers to other coworkers explaining why an employer terminated another employee].)
To defeat the common interest privilege, a plaintiff must prove the communication was made with actual malice: that it was motivated by hatred or ill will toward the plaintiff or the defendant acted in reckless disregard without reasonable grounds to believe the communication was true. (Taus v. Loftus, supra, 40 Cal.4th at p. 721.) Malice cannot be inferred from the communication itself. (Civ. Code, § 48.) "[T]he lack of reasonable grounds requires more than mere negligence. Malice is shown only when the negligence amounts to a reckless or wanton disregard for the truth, so as to imply a willful disregard for, or avoidance of, accuracy." (Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 740.) Actual malice may be shown by evidence the person making the statements knew they were false or entertained serious doubts about their veracity. (See Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 906.)
C. Analysis
While the Department asserts O'Brien's defamation claims were based on three communications it made concerning her employment at the Department, on appeal O'Brien relies on only two of them: (1) when Sweeny informed Martinez that SATF's ADA office was not going to submit O'Brien's gate clearance application because Brightwell felt "that with her past history with CDCR it would not be a good idea"; and (2) when Cooper told Brightwell there were some concerns with O'Brien being overly familiar with inmates.
The Department first argues these statements are ones of opinion, not fact, because they concern O'Brien's work performance and are not objectively provable false statements of fact. Since defamation concerns false statements of fact, a statement of opinion cannot be actionable since it cannot be false. (Jensen, supra, 14 Cal.App.4th at p. 970.) Whether statements may be construed as ones of fact turns on " ' "whether a reasonable fact finder could conclude that the published statements imply a provably false factual assertion." ' " (Ibid.; Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 696 [the question of whether a challenged statement conveys the requisite factual imputation becomes a jury question if a reasonable fact finder could conclude the statement declares or implies a provably false assertion of fact].) The communication is examined in light of the context in which it was published, and its meaning considered in reference to relevant factors, such as the occasion, the persons addressed, the purpose to be served, and " 'all of the circumstances attending the publication.' " (Jensen, at p. 970.)
This was not one of the grounds upon which the Department sought nonsuit below, as it argued only that the statements were untrue and privileged. Nevertheless, because whether an allegedly defamatory statement constitutes fact or opinion is a question of law, we may address it. (Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 971 (Jensen).)
In Jensen, the appellate court held that comments in an employee's 14-page performance evaluation prepared by the employee's manager could not reasonably be interpreted as false statements of fact. (Jensen, supra, 14 Cal.App.4th at pp. 970-971.)
Here, we will address only Cooper's statement to Brightwell, as that supports a jury verdict in O'Brien's favor on her defamation claims. First, there is a factual issue as to what Cooper told Brightwell. While Cooper testified she told Brightwell she heard there was a concern about O'Brien being overly familiar with the inmates, and denied telling Brightwell that O'Brien was overfamiliarizing with inmates, Brightwell testified Cooper told her "there was some overfamiliarity issues" with O'Brien, as she "had been intervening on behalf of the inmates [and] conducting duties outside the scope of her job description," which had not been investigated and for which O'Brien had not been disciplined.
Based on Brightwell's testimony, the jury reasonably could find Cooper told Brightwell that O'Brien had been overly familiar with inmates by intervening on their behalf and conducting duties outside the scope of her duties as a sign language interpreter. Although Cooper told Brightwell the matter had not been investigated and O'Brien had not been disciplined, the jury could find Brightwell believed the charge was true based on Cooper's statement concerning O'Brien's conduct, namely, that she intervened on the inmates' behalf and performed duties outside the scope of her job description. Sweeny's testimony about what Brightwell told her Cooper said, namely, that O'Brien was overfamiliar with the inmates by advocating for them, supports such a finding. This is not a statement of opinion comparable to an employment evaluation, as the Department contends, but rather one of fact, as with some investigation, it could have been verified. Brightwell understood the seriousness of Cooper's accusation, as she knew that once an employee starts doing things outside the scope of their duties, inmates may easily manipulate the employee into doing other things outside the scope of their duties.
This leaves whether Cooper's statement was privileged. The parties agree the statement is subject to the common interest privilege, as it was made between Department employees concerning Department employment matters. (Civ. Code, § 47, subd. (c); Neal v. Gatlin, supra, 35 Cal.App.3d at p. 877.) The issue, then, is whether the jury reasonably could find that Cooper made the statement with actual malice, namely, that Cooper was motivated by hatred or ill will toward O'Brien or acted in reckless disregard without reasonable grounds to believe the statement was true. (Taus v. Loftus, supra, 40 Cal.4th at p. 721.)
Here, there was evidence from which the jury could find either that Cooper was motivated by hatred or ill will toward O'Brien or acted in reckless disregard without reasonable grounds to believe the statement was true. O'Brien established through her testimony that Cooper harbored personal animosity toward her, as shown by Cooper (1) getting upset whenever O'Brien reported failures to provide interpreting services to deaf inmates; (2) restricting O'Brien's access to Unit 505; (3) making fun of O'Brien when interpreting assignments were taken away; and (4) always yelling at O'Brien and being disrespectful to her. Moreover, Cooper had a motivation to keep O'Brien from working at the Department based on O'Brien's report to the Prison Law Office that inmates were being denied interpreting services, which led in part to the Prison Law Office's report about the Department's failure to provide sign language interpreters to hearing-impaired inmates.
In addition, the jury could find that Cooper told Brightwell that O'Brien had been overly familiar with inmates despite admittedly believing this was not true and that O'Brien did not present a security risk. While Cooper testified she conveyed her belief to Brightwell, Brightwell did not testify to this. Based on this, the jury reasonably could determine that Cooper acted in reckless disregard of the truth of the statement that O'Brien had been overly familiar with inmates.
The Department contends for the first time on appeal that the Labor Code section 1050 claim should have been dismissed at the nonsuit stage because the statements were not made to a prospective employer. Although the Department did not advance this as a ground for nonsuit below, we will consider it so long as the defect is incurable. (Loral Corp. v. Moyes, supra, 174 Cal.App.3d at p. 273.)
The Department contends it raised this issue below when it argued with respect to the defamation jury instruction that Sweeny's statement to Martinez was not defamatory because it was not published to a third party. That argument, however, was made only with respect to the defamation claim.
In Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278 (Kelly), the plaintiff reapplied for employment with his former employer after having voluntarily resigned five months before, only to be told he was ineligible for rehire. The plaintiff sued his former employer for, among other things, violation of Labor Code section 1050, alleging people in the personnel office changed his personnel records to state he was ineligible for rehire after coworkers told them he misused company funds and falsified invoices. (Id. at p. 284.)
The appellate court held the trial court properly sustained the former employer's demurrer to the Labor Code section 1050 cause of action because the statute "applies only to misrepresentations made to prospective employers other than the defendant," not to "misrepresentations made by employees of the defendant to other of the defendant's employees." (Kelly, supra, 136 Cal.App.3d at pp. 288-289.) The court explained that Labor Code section 1050 was enacted in 1937 as a restatement of former Penal Code section 653e, which made it a misdemeanor for " '[a]ny person, firm or corporation ... who, after having discharged an employee from the service of such person, firm or corporation ... shall ... misrepresent and thereby prevent or attempt to prevent such former employee from obtaining employment with any other person, firm or corporation ...." (Kelly, at pp. 288-289.) The appellate court reasoned since the Labor Code's provisions are to be construed as continuations of existing law and Labor Code section 1050 is substantially similar to the former Penal Code section, the Legislature intended Labor Code section 1050 to "apply only to misstatements to other potential employers, not to misstatements made internally by employees of the party to be charged." (Kelly, at pp. 288-289.)
Relying on Kelly, the Department argues that the statements fall outside Labor Code section 1050's scope because they were communications from one Department employee to another. The Department further argues the communication between itself and Lifesigns had the effect of an internal communication because its sole purpose was to place O'Brien at a Department facility and Lifesigns merely served as an authorized conduit for placing O'Brien at employers with whom it contracted.
We disagree. While Labor Code section 1050 did not apply in Kelly because the plaintiff was trying to regain employment at the same employer, here O'Brien was attempting to obtain employment through Lifesigns. Even if Lifesigns is a conduit, it was O'Brien's prospective employer and an entity separate from the Department. The communication between Cooper and Brightwell, while made between two Department employees, arguably was made with the intent to attempt to prevent O'Brien from obtaining employment with a different employer, namely, Lifesigns, since without a gate clearance O'Brien could not work as a contract interpreter at SATF. Notably, Labor Code section 1050 does not state the misrepresentation must be made to the prospective employer, only that it must have the effect of preventing or attempting to prevent the former employee from obtaining employment, which the Kelly court found must be with an entity other than the former employer.
In sum, the trial court did not err in denying the Department's motion for nonsuit.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to O'Brien.
DE SANTOS, J. WE CONCUR: SMITH, Acting P.J. SNAUFFER, J.