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Employment Law

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On April 18, 2007 the California Supreme Court granted review of Roby v McKesson, a controversial employment law decision that the plaintiff-appellant describes in her opening brief as creating “a sweeping new immunity” to liability for supervisors.

Controversial Decision Regarding Hostile Work Environment

Roby v McKesson HBOC (Dec. 26, 2006) ___ CR 3d ___, 2006 WL 3775897 (3 Cal.App. 3 Dist.)

By Judith Wolff, Managing Editor, CEB Topics
E-mail: judith.wolff@ceb.ucop.edu

Introduction
Procedural History
Supervisor’s Conduct towards the Plaintiff
Court’s Analysis of the Plaintiff’s Harassment Claim: Supervisor’s conduct insufficient to establish severe or pervasive prong
Conclusion

Introduction
The court of appeal for the third district ruled in an opinion partially certified for publication on December 26, 2006 that a supervisor may not be held personally liable for discriminatory harassment of a subordinate employee who suffered from panic attacks, merely because the supervisor treated the disabled employee with “general scorn and contempt and failed to show any sympathy for her disability.” Such evidence was insufficient to support a finding that the supervisor engaged in a pervasive pattern of  tormenting her on account of her mental disability.

The case is likely to assist employers attempting to dispose, through summary adjudication, of harassment and discrimination cases that are based upon mentally disabling conditions such as depression and anxiety disorders. The section of the decision that was not approved for publication does not affect the impact of the third district’s ruling.

Procedural History of the Case
Plaintiff Charlene Roby was an exemplary employee who worked for McKesson HBOC, Inc. as a customer service liaison in Sacramento for 25 years until 1998, when she developed a panic disorder and began missing time from work. Following numerous interactions with a supervisor, Roby was terminated in 2000 for abusing McKesson’s attendance policy, even though the time off was related to her psychiatric condition. Roby sued McKesson alleging, among other causes of action, harassment and discrimination in violation of the California Fair Employment and Housing Act (FEHA). The jury found McKesson liable under theories of wrongful termination, discrimination, failure to accommodate and harassment, and it also found the supervisor personally liable for harassment, subsequently awarding Roby an approximate total of $22 million in compensatory and punitive damages.

On appeal, among other holdings the third district reversed the harassment verdicts against both McKesson and the supervisor, citing insufficient evidence of severe and pervasive conduct.

Supervisor’s Conduct towards the Plaintiff
The plaintiff did not begin to experience panic attacks at work until 1998, when she would suddenly begin to experience uncontrollable shaking, have trouble breathing, and to break out in a sweat. The panic attacks caused her to scratch her arms until they bled. The medication she took for the panic attacks caused her to develop an unpleasant body odor.

In 1998, McKesson instituted a new attendance policy that penalized employees who were absent without 24 hour notice, regardless of the reason. The plaintiff’s supervisor, Karen Schoener, who did not get along with the plaintiff even before they began working together, began to apply the attendance policy in a discriminatory manner against the plaintiff, marking demerits or “occasions” against her when the plaintiff was absent for medical reasons relating to her panic attacks. Schoener did not similarly penalize other employees when they were absent for health-related reasons.

The plaintiff’s supervisor additionally engaged in the following conduct: ignoring the plaintiff’s greetings; referring to the plaintiff’s job as a “no-brainer;” giving small gifts to every other subordinate employee in the department except the plaintiff; making the plaintiff document every phone call and making the plaintiff cover the phones during the holiday office party; reprimanding the plaintiff loudly in front of other employees; telling the plaintiff she needed to bathe and shower more often, despite the plaintiff’s explaining that the smell was related to the medication she was taking; telling the plaintiff that it was “disgusting” that she dug at her arms; and failing to take any action when the plaintiff came to work one morning and was “crushed” to discover that someone had left soaps, shampoos and deodorants on her desk.

Court’s Analysis of the Plaintiff’s Harassment Claim: Supervisor’s conduct insufficient to establish severe or pervasive prong
The court began its analysis by citing to Reno v. Baird (1998) 18 Cal.4th 640, 76 CR 2d 499, the seminal case for the proposition that supervisors may be held personally liable only for harassment, but not for discrimination. Quoting Reno, supra, the court noted that harassment “consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management (emphasis in original).” Reno-protected activity, on the other hand, consists of supervisory behavior that coincides with the execution of job duties, such as “hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will be laid off, and the like.”

The court concluded that once the “Reno-protected activity” was sifted out of the equation, what remained was merely evidence that the supervisor treated the plaintiff with “general scorn and contempt and failed to show any sympathy for her disability;” but that such evidence was insufficient to create liability for harassment. The court declined to categorize the supervisor’s remarks about the plaintiff’s body odor as harassing, noting that the plaintiff’s body odor was so unpleasant that it bothered her co-workers; therefore, the supervisor’s remarks to the plaintiff about her body odor had a reasonable relationship to her (protected) management duties. The court noted that the plaintiff had failed to show that the supervisor tormented her “on account of” her mental disability (emphasis provided) Of significance for future disability harassment claims is the court’s conclusion that:

“no matter how unpleasantly [supervisor] may have behaved toward [plaintiff], her conduct cannot be deemed harassment unless it was based on and directed towards [plaintiff’s] mental disability. The conduct must not only be severe or pervasive, it must also be tinged with discriminatory animus....[N]either cold indifference nor lack of sensitivity toward a disabled employee can be alchemized into a claim of hostile work environment. If such were the case, virtually every case of disability discrimination could be parlayed into a supplementary damage claim for harassment (emphasis provided).”

The court went even further, noting that a harassment claim is based upon the standard of a “reasonable person.” “To be actionable, an objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive.” The decision broadly implies --without specifically stating-- that on account of her mental disability the plaintiff lacked the ability to perceive workplace events in a reasonable manner:

 “[A] plaintiff who subjectively perceives the workplace as hostile or abusive will not prevail under the FEHA, if a reasonable person in the plaintiff’s position, considering all the circumstances, would not share the same perception....We conclude that there is insufficient evidence to support the finding that Schoener engaged in discriminatory harassment within the meaning of the FEHA.”

Once the supervisor was held not liable for harassment of the plaintiff, McKesson was also released from derivative liability.

Conclusion
Roby will probably be welcomed by employer’s counsel seeking to defeat a harassment claim on summary adjudication. Defense counsel may want to argue, first, that most or all of the supervisor’s complained-of behavior falls within the protections of Reno. As to conduct clearly falling outside of Reno, counsel may want to argue that “general scorn and contempt and fail[ing] to show any sympathy for [plaintiff’s] disability” is not sufficient for a showing of harassment; and, moreover, that plaintiff has failed to show, and cannot prove, that the complained-of conduct was “based on and directed towards [plaintiff’s] mental disability.”

For plaintiff’s counsel presenting a claim of supervisory liability for harassment based on mental disability, Roby v McKesson HBOC appears to require a showing that offensive conduct by a supervisor was a.) not reasonably related to management responsibilities, and therefore not protected by the reach of Reno; and b.) that the conduct was “based on and directed towards [plaintiff’s] mental disability;” and c.) despite the plaintiff’s mental disability, the plaintiff possessed an ability to perceive events accurately.

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