Metropolitan News-Enterprise


Wednesday, December 27, 2006




C.A. Cuts $19 Million Verdict in Harassment Case to $3.4 Million




A jury award of more than $19 million to a Northern California woman for wrongful termination and harassment based on disability has been slashed to $3.405 million by the Third District Court of Appeal.

The justices agreed that Charlene J. Roby, who was fired by McKesson Corp. after 25 years, had presented substantial evidence that the company fired her based on a psychiatric condition and failed to reasonably accommodate her disability. 

The court, also held, however, that the plaintiff failed to prove that she was subjected to a hostile work environment based on disability and that a $15 million punitive damage award was excessive.

“The [Fair Employment and Housing Act] is not intended to protect employees from rude, boorish, or obnoxious behavior by their supervisors,” Justice Kathleen Butz wrote.

Disparate Treatment Claimed

California, she noted, has adopted the federal standard, which requires a showing of “discriminatory intimidation, ridicule, and insult” that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment.” While Roby presented evidence that her supervisor mistreated her, Butz said, she failed to show a link between the mistreatment and the panic disorder that was the basis of her FEHA harassment claim.

Jurors found, and McKesson—a worldwide distributor of healthcare products—did not contest on appeal, that the company was liable under common law for wrongful termination, and that it was liable under the FEHA for lack of reasonable accommodation and disparate treatment.

Roby, who was a customer service representative in West Sacramento when she was fired, said the company was so anxious to get rid of her, it refused to grant reasonable exceptions to its strict absence policy, even though she had proof that her absences were based on her condition. Other employees, she said, were accommodated when their absences were based on illness.

Absences Counted

Under McKesson’s “90-day rolling” attendance policy, an employee could be terminated for having an excessive number of absences within any 90-day period. Absences that were approved 24 hours in advance were excused, but all other absences were supposed to be counted, even if the employee was entitled to use vacation time or sick leave.

Roby presented evidence that employees entitled to unpaid leave under the Family and Medical Leave Act had those absences counted as well, unless they invoked the statute in writing. There was no mention of FMLA leave in the company handbook.

Roby did, in fact, obtain five days of FMLA leave which was not counted against her. But several absences that she documented to be for doctor’s appointments or therapy were.

The plaintiff presented evidence that an employee with asthma was not terminated under the policy, even though she missed 15 to 20 days of work—more than Roby—and was rarely able to give 24 hours notice that she would be out. Another worker took several weeks off after a hand injury, but those days were not charged.

Jurors returned a verdict for compensatory damages totaling $3.5 million against McKesson and $500,000 against Roby’s supervisor, Karen Schoener, plus punitive damages of $15 million against the company and $3,000 against Schoener.

The trial judge denied motions for new trial and JNOV, except that the compensatory damage award against McKesson was cut by $706,000 after the plaintiff’s attorney conceded an error in the jury’s calculations.

Punitive Damages Ruling

On appeal, however, the court concluded that another $600,000 of the compensatory damages awarded against McKesson, and the entire award against Schoener, had to be thrown out because they were based on the unproven harassment claim.

In an unpublished portion of the opinion, the court held that the punitive damage award was constitutionally excessive, and that a $2 million award, less than 1.5 times the remainder of the compensatory damages, was sufficient. The justice noted that the defendant caused no physical harm to the plaintiff; that more than half the compensatory damages award was for non-economic, psychological harm; and that the reduced award far exceeded the penalties that could have been awarded in a FEHA administrative action.

The court also rejected the plaintiff’s argument that she should be given the option of a new trial in lieu of a reduced award.

The case is Roby v. McKesson HBOC, C047617.


Copyright 2006, Metropolitan News Company