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Court of Appeal:
$2 Million Judgment Against State Over Sex-Video Stands
Sixth District Says That Employer-Liability Exists Over Harm to Employee Resulting From Off-Worksite Distribution of Clandestine Recording of Her Assignation With Co-Worker
By a MetNews Staff Writer
The Sixth District Court of Appeal has affirmed a judgment for more than $2 million against the state’s prison system and two of its employees in connection with the circulation of a video depicting a male correctional officer and a female technician, who worked at the facility at Soledad, having sex.
In an unpublished opinion filed Tuesday, it rejected the contention that the judgment impermissibly imposes liability on an employer based on the off-duty, off-site sharing of a recording and that such conduct was something it could not control.
A jury found in favor of plaintiff Anahi Ramirez on three causes of action under the Fair Employment and Housing Act. It determined that the California Department of Corrections and Rehabilitation (“CDCR”) is liable based on sexual harassment, failure to prevent discrimination and harassment, and sex discrimination, but did not engage in unlawful retaliation.
Also found liable for sexual harassment were Luis Serna, who made the recording (without the knowledge or consent of Ramirez), correctional lieutenant Che White, and correctional sergeant Chad Bala. Serna—who was allowed to resign rather than being fired—did not appeal.
Attorney General’s Brief
The Office of Attorney General argued on behalf of CDCR and White. Its opening brief says:
“The jury verdict in this case must be reversed because it improperly imposes liability in a situation where workplace sexual harassment never occurred and the employer never took an adverse employment action against the employee.”
It recites that Serna “sent the video to a few of his coworkers while off-duty at a family barbecue via his personal phone” that it “was subsequently shared a few times by other coworkers using personal phones, during off-duty hours” and that only once was it “viewed in the workplace.”
The brief continues:
“This is not workplace sexual harassment because Ramirez’s allegations largely occurred privately, outside of the workplace and without a work-related context. At most, there is only a tangential connection to the workplace based on workplace gossip and perceived slights—but this tenuous connection does not amount to actionable workplace harassment. Ramirez was simply never subjected to severe or pervasive workplace sexual conduct or comments sufficient to alter the condition of Ramirez’s employment and create a hostile work environment.”
This assertion is set forth:
“No court has ever held a public entity liable under circumstances remotely similar to those in this case. Allowing the jury’s verdict in this case to stand would constitute an unprecedented and unwarranted expansion of employer liability. In an era of widespread consumption of social-media platforms like Twitter, OnlyFans, or TikTok with questionable content, and widespread use of online dating applications, employees may often see coworkers’ explicit pictures and have access to salacious details about coworkers’ sex lives. Employers cannot feasibly be expected to control what employees discuss or look at in their personal time. Employers cannot be held responsible for the bad decisions employees make in their personal lives, and the sheer happenstance of romantic or other non-work related relationships amongst coworkers going awry.”
Wilson’s Opinion
Justice Charles E. Wilson authored the opinion rejecting those contentions.
“This case is not about the private, off-duty sharing of the video, but rather about the workplace environment Ramirez experienced after she learned the video had been circulating among prison staff,” he wrote. “Whether a government employer can be held liable for private, off-duty conduct is therefore not a legal issue in this appeal.”
As Wilson sized it up:
“Learning that the video had been circulating at the prison for over a year, and believing she had likely been face to face with numerous officers who had viewed and distributed it, Ramirez felt embarrassed to come to work, and was ‘trying to keep it together and not break.’…[T]here was substantial evidence of a hostile work environment including the humiliation of knowing that the video had been circulating at the prison for over a year and not knowing who had viewed it.”
The justice said:
“As a result of all this, Ramirez’s workplace environment became hostile, uncomfortable and stressful. Co-workers gave her the cold shoulder and treated her differently or no longer spoke with her, and she wondered every day who else had seen the video. Some men also behaved inappropriately with her at work, one telling her he was looking for someone to have sex with, and another married man asking her to take a hike with her and saying his wife did not need to know.”
He declared that “substantial evidence supports the jury’s findings that the harassing conduct was work-related and severe or pervasive.”
Individual Defendants
The Office of Attorney General contested the existence of a basis for holding White and Bala responsible for any harm suffered by Ramirez. Its opening brief maintains:
“The actions that Ramirez attributes to White do not amount to severe or pervasive sexual harassment….White’s alleged actions involve the passive act of receiving the video outside of Ramirez’s presence, not reporting the video to CDCR, and the two instances-once in May 2019 and once in June 2019-in which White walked to and from Captain Metcalfs office near Ramirez’s work area. Those actions are nothing more than isolated, sporadic events as opposed to the required concerted pattern of harassment necessary to establish severe and pervasive conduct.”
As to Bala, it says:
“Similarly, none of the conduct Ramirez attributes to Bala amounts to severe or pervasive harassment….Bala’s acts of receiving the video outside of the workplace, sharing the video once outside of the workplace, and not reporting the video to CDCR cannot be viewed by a reasonable person as severe or pervasive workplace harassment because there is absolutely no pattern of a repeated, routine, or generalized harassment directed at Ramirez within the workplace….Ramirez admitted that she was not aware that Bala may have viewed the video until around August 2019….Thus, Ramirez could not have experienced severe and pervasive workplace harassment over an act of which she was not aware.”
Ramirez quit her job with CDCR on Aug, 23, 2019.
Wilson’s Response
Wilson said that “by focusing only on the individual conduct of White and Bala, rather than the totality of the circumstances, CDCR and White ignore the foreseeable consequences of their actions” including the prospect that their limited sharing of the video could lead to wider distribution.
He noted that even though Ramirez did not know until August 2019 that Bala had forwarded the video a third party, it remains that his action in doing so sparked further circulation.
The jurist added:
“In ignoring these foreseeable consequences of White’s and Bala’s actions, CDCR and White…ignore two factual determinations by the jury—that the harassing conduct was a substantial factor in causing harm to Ramirez, and that White and Bala participated in, assisted in, or encouraged, the harassing conduct.”
Separate Appeal
Bala separately appealed, maintaining:
“Throughout this case, Plaintiff had made clear that her case against Sergeant Bala was not based on his conduct alone, but the actions of others. Plaintiff has not even argued that Sergeant Bala’s conduct, standing alone, created a hostile working environment. Nor was any evidence brought forward that would support liability for aiding and abetting. Instead, Plaintiff’s theory of the case, and hence the judgment, was an amalgam of the two concepts such that Plaintiff sought to impose liability on Sergeant Bala without having to prove what is necessary for either harassment or aiding and abetting.”
Unpersuaded, Wilson wrote:
“Ultimately, Bala’s focus on his conduct ‘standing alone’ also ignores another of the jury’s findings—that the harassing conduct was a substantial factor in causing harm to Ramirez. In other words, the jury was not instructed to view Bala’s conduct in isolation. Even if Bala’s conduct by itself did not cause harm to Ramirez, the jury determined that the harassing conduct was a substantial factor in causing that harm, and Ramirez has not challenged that determination.”
Attorney-Fee Award
There was a third appeal, brought by CDCR and White, challenging the award of attorney fees in the amount of $1,298,983.50.
Wilson found reasonable the lodestar amount reckoned by Monterey Superior Court Judge Thomas W. Wills, as being in line with local hourly charges, and use by him of a 1.5% multiplier, based on the riskiness of the litigation.
The judgment—for $2,036,826—-was based, in addition to the attorney-fee award, on $709,555 in damages and $28,287.50 in costs.
The case is Ramirez v. Bala, H049689.
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