Tuesday, July 23, 2013
C.A. Reinstates Sexual Harassment Suit Against Attorney, Firm
Panel Reverses Sohigian, Rejects Analogy Between Law Office and Set of Television Show
By KENNETH OFGANG, Staff Writer
A legal secretary sufficiently alleged sexual harassment and intentional infliction of emotional distress against a Century City law firm and one of its attorneys, the Court of Appeal for this district ruled yesterday.
Jeri Elster’s allegations that attorney Joel Fishman repeatedly sent her copies of sexually explicit emails, and that Finestone & Richter, APC chose not to put a stop to it despite her complaints, were adequate to survive demurrer, Los Angeles Superior Court Judge John Segal wrote in an unpublished opinion. Segal, sitting by assignment in Div. Seven, said Los Angeles Superior Court Judge Ronald M. Sohigian erred in dismissing those claims.
Elster, Segal noted, was the victim of a 1992 rape by a man who forced his way into her home and assaulted her for hours. The perpetrator, Reginald Miller, was identified years later through DNA testing, but was not charged with the attack on Elster due to the six-year statute of limitations then in effect.
Elster went public with her story when she testified in front of a legislative committee as part of a successful effort to eliminate the time bar to rape prosecutions based on DNA technology. And she alleged in her complaint that Fishman—who is no longer with the firm—and Finestone & Richter management were aware of the history.
She explained that she was hired by the firm in 2008 and assigned by managing partner Jeffrey Richter to work with Fishman and attorney Jay Stein. Among her responsibilities were receiving and opening 30 or more emails from and for Fishman.
Her problems began, she alleged, when Fishman copied her on a 2009 email from Fishman to Richter regarding the size of the managing attorney’s sexual organ. Elster said she complained to the office manager, but the firm apparently did nothing about it, according to the Superior Court complaint.
In 2010, she alleged, Fishman sent her and others, an email containing a pornographic video, another containing a Playboy magazine ad depicting a naked woman, and copies of a series of emails between Fishman and his wife, including a sexually suggestive email from the attorney and an explicit response from his spouse.
Elster alleged that she complained each time to the office manager, who ultimately responded that she had done “all she could and was sorry.” Elster took a medical leave in December 2010 and obtained right-to-sue notices from the Department of Fair Employment and Housing in January 2011.
Her complaint alleged causes of action for sexual harassment, failure to prevent sexual harassment, retaliation, and infliction of emotional distress. After three amendments to the complaint, Sohigian sustained demurrers on all claims, ruling that the incidents alleged by Elster did not amount to a hostile work environment, and that the emotional distress claim was barred by the exclusivity of workers’ compensation.
Segal said the trial judge was wrong on both counts.
He distinguished Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, in which the high court held that a woman who accepted a job working with writers on the sexually themed television program Friends could not sue over vulgar language employed in meetings as part of the creative process.
“Unlike the plaintiff in Lyle…Elster worked in a law firm, not on the set of a television show about young adults and their romantic encounters and adventures,” Segal wrote. “Unlike the plaintiff in Lyle, Elster was a legal secretary who was not supposed to and did not expect to receive sexually charged emails from her boss unrelated to her job, not a comedy writer’s assistant who was forewarned that as part of her job duties she would be hearing and transcribing jokes and discussions of a sexual nature.”
Segal also rejected the claim that the number of incidents was insufficient to constitute the pervasiveness that a hostile-environment claim requires.
“Elster’s allegations describe a law firm environment that was both subjectively and objectively offensive, hostile, and abusive,” the jurist wrote. “…The factual issue of whether the conduct of Fishman and F&R was sufficiently severe and pervasive to constitute hostile work environment sexual harassment was for the jury. “
Segal went on to say that Elster was not limited to a workers’ compensation remedy for emotional distress because sexual harassment is not a normal workplace activity and is thus “a risk not reasonably encompassed in the compensation bargain.”
The appellate court did, however, uphold the dismissal of the plaintiff’s other claims. It reasoned that the defendants could not be held liable both for committing sexual harassment and for failing to prevent it, and that Elster failed to allege an adverse employment action that would support her retaliation claim.
Bruce M. Cohen and Rae Lamothe of Cohen & Lord represented the plaintiff, who drew support from Women Lawyers Association of Los Angeles and California Women Lawyers in an amicus brief by Lisa R. Jaskol. Eric F. Edmunds Jr. and D. Jason Davis of Finestone & Richter represented the defendants.
The case is Elster v. Fishman, B239651.
Copyright 2013, Metropolitan News Company