Thursday, May 15, 2008
State Agency Coerced Percipient Witness into Resigning—C.A.
By SHERRI M. OKAMOTO, Staff Writer
A state worker who was allegedly kissed by a state official at the site of a bikini contest in which the worker was participating was coerced into resigning her position through actions and inactions approved, orchestrated and encouraged by the employing agency, the Third District Court of Appeal ruled yesterday.
Affirming the judgment of Sacramento Superior Court Judge Raoul M. Thorbourne, the appellate court found substantial evidence supported the conclusion that the employee had been constructively discharged from her position, which constituted an adverse employment action under the Fair Housing and Employment Act.
Lisa Steele, an office assistant and receptionist for the Youthful Offender Parole Board, competed in three bikini contests held by a local radio station in October 2001, the court explained.
Raul Galindo, chairman of the YOPB, attended the last contest. After the contest, Galindo allegedly attempted to kiss Steele on the mouth, but she turned so that she received the kiss on her cheek.
The next day, Steele told some of her coworkers about the incident at the bikini contest, but denied being upset or offended. Steele’s supervisor asked Kym Kaslar, one of Steele’s co-workers about the incident, and Kaslar told him that she knew Galindo had been at the bikini contest and kissed Steele. The supervisor told her not to repeat that information because it could cost her and Galindo their jobs.
Kaslar filed a complaint with the State Personnel Board in which she claimed unlawful retaliation based on her disclosure of the bikini contest incident.
After talking with Kaslar, Steele’s supervisor promptly alerted other agency officials and drafted a letter to Galindo warning him about his actions with Steele and ordering him to undergo sexual harassment prevention training.
Shortly thereafter, Steele began receiving criticisms of her work performance. She objected to the allegations as inaccurate and unduly harsh, but her supervisor took no action. Steele’s supervisor changed her work hours, and suggested she look for other employment or transfer to avoid a suspension based on the allegations made against her.
In February Steele told her supervisor that she wanted to resign from her position. Her supervisor then asked her to draft a document describing the events at the bikini contest without mentioning the kiss, which her supervisor then edited. He also directed Steele to write certain statements regarding the relationship between Kaslar and Galindio, and accusing Kaslar of lying about Galindo attempting to kiss her.
Steele later filed a retaliation claim against the YOPB, and the jury expressly found the YOPB had authorized the creation of working conditions for Steele that were so intolerable that a reasonable person in her position would have had no reasonable alternative except to resign, and that Steele resigned because of these intolerable conditions.
The YOPB challenged the sufficiency of the evidence supporting the jury’s conclusion and contended that the sum evidence relevant on appeal was limited to the agency’s actions after Steele was actually listed as a potential witness in Kaslar’s complaint.
Writing for the appellate court, Justice Tani Cantil-Sakauye explained that an appellant challenging the sufficiency of the evidence must set forth all relevant evidence, not just evidence favorable to appellant or it forfeits its contention. By presenting limited facts in a light most favorable to the YOPB, the justice wrote the agency came “perilously close” to forfeiting its substantial evidence claim.
Citing Lujan v. Minagar (2004) 124 Cal.App.4th 1040, Cantil-Sakauye reasoned that employer retaliation against employees who are believed to be prospective complainants or witnesses for complainants undermines the FEHA’s legislative purpose just as effectively as retaliation after the filing of a complaint. Accordingly she wrote the agency’s actions before Kaslar’s complaint was filed were relevant to Steele’s claim.
Taken as a whole, the justice continued, the evidence and rational inferences from the evidence “strongly suggested” that the YOPB was concerned that Steele would be a potential witness, if not a claimant herself, in a sexual harassment claim against the agency and engaged in “damage control.”
Following the bikini contest incident, Cantil-Sakauye said, that “pressure was steadily ramped up” on Steele in an effort to cause her to leave the YOPB. The jurist also wrote that by telling Steele that Kaslar was transferred for filing a complaint, “it was made clear to [Steele] that she would be subject to similar action if she became involved in Kaslar’s complaint.”
Cantil-Sakauye also said the actions taken by Steele’s supervisor upon the plaintiff’s resignation corroborated the jury’s finding that the motive behind the pressure put on Steele to quit was to undercut Kaslar’s claim.
In reviewing the jury’s decision in a light most favorable to the verdict, the jurist concluded that the agency’s actions taken together supported the jury’s finding that Steele was unlawfully coerced into resigning.
Justice Rodney Davis and Justice Harry Hull joined Cantil-Sakauye in her opinion.
The case is Steele v. Youthful Offender Parole Board, 08 S.O.S. 2817.
Copyright 2008, Metropolitan News Company