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

235 Cal. Rptr. 3d 262, 25 Cal. App. 5th 31
CourtCalifornia Court of Appeal, 5th District
DecidedJuly 9, 2018
DocketG053168
StatusPublished
Cited by48 cases

This text of 235 Cal. Rptr. 3d 262 (Caldera v. Dep't of Corr. & Rehab.) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Caldera v. Dep't of Corr. & Rehab., 235 Cal. Rptr. 3d 262, 25 Cal. App. 5th 31 (Cal. Ct. App. 2018).

Opinion

MOORE, ACTING P. J.

*34Under the Fair Employment and Housing Act (FEHA), an employee with a disability can sue his or her employer and supervisors for disability harassment. ( Gov. Code, § 12940, subd. (j)(1).) The employee must prove the harassment was either severe or pervasive. ( Miller v. Department of Corrections (2005) 36 Cal.4th 446, 466, 30 Cal.Rptr.3d 797, 115 P.3d 77.)

Augustine Caldera is a correctional officer at a state prison. Officer Caldera stutters *266when he speaks. The prison's employees mocked or mimicked Caldera's stutter at least a dozen times over a period of about two years. Sergeant James Grove, a supervisor, participated in the mocking and mimicking of Caldera's stutter. Such conduct reflected the prison's culture, according to a senior prison official.

Caldera sued the California Department of Corrections and Rehabilitation (CDCR) and Grove (collectively defendants) for disability harassment, failure to prevent the harassment, and related claims. A jury found the harassment to be both severe and pervasive and awarded Caldera $500,000 in noneconomic damages. The trial court found the damage award to be excessive and granted defendants' motion for a new trial solely as to that issue. Defendants appeal and Caldera cross-appeals.

Defendants claim there is insufficient evidence the harassment was either severe or pervasive. We disagree. There is substantial evidence to support the jury's factual findings. Defendants also claim the trial court committed two instructional and one evidentiary error. We find no prejudicial instructional errors and the claimed evidentiary error has been forfeited.

Caldera claims the trial court failed to file a timely statement of reasons after granting defendants' motion for a new trial. We agree. The court's new trial order as to the damage award is reversed. In all other respects, the judgment is affirmed.

I

FACTS AND PROCEDURAL BACKGROUND

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

*35Starting in 2006, Caldera began working as a mental health escort officer within the administrative segregation unit (Ad Seg) of the prison. The Ad Seg unit is an area where inmates with disciplinary issues or mental health needs are housed. The Ad Seg unit consists of two to three "halls," or housing facilities. Caldera's primary duties were to transport inmates to and from their mental health appointments.

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

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

*267Konrad later discussed the incident with Caldera. Konrad "said, that's kind of f***ed up, on the radio, like that. [Caldera] said, yeah, I get it all the time ...."

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

On September 2, 2008, Sergeant Grove, Officer Caldera, and Dr. Jordan were all present in a main corridor of the prison during a busy shift change, *36which occurred at about 2:00 p.m. At that time, there were about 24 correctional officers in the general area. Caldera said something to Grove and he responded by saying, " 'F-f-f-f**k you.' " Caldera threatened to file a formal complaint. Grove then responded by saying, "I don't give a F-f-f. Make sure you get my name right." Later that day, Caldera went to the prison's Equal Employment Opportunity (EEO) office and obtained a form to file a complaint. Sergeant Grove went to his supervisor and self-reported the encounter.

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

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

On October 3, 2008, there was a training class for the prison's supervisors. Sergeant Jessie Lara was in attendance, as was Grove.

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Bluebook (online)
235 Cal. Rptr. 3d 262, 25 Cal. App. 5th 31, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caldera-v-dept-of-corr-rehab-calctapp5d-2018.