Short(er) takes FEHA claims for harassment and
retaliation; intentional infliction of emo- tional distress. Kelly v. The Conco Companies (2011) __ Cal.App.4th __ (1st Dist. Div. 5.) Patrick Kelly was an apprentice iron-
worker employed by Conco, a large con- crete-construction company. Two days after Kelly began work at Conco, his supervisor, Seaman, became angry at him and unleashed an extended tirade of vulgar, sexually suggestive insults. Specifically, Seaman repeatedly stated that he would have anal sex with Kelly. The two men squared off, as if to fight, but ulti- mately did not come to blows. Kelly report- ed the incident to Conco management, who then spoke to Seaman, and made the men shake hands. After the incident, wherever Kelly worked his co-workers referred to him as a “bitch” and a “snitch” and threatened to beat him up after work. Kelly repeatedly reported the incidents to Conco management. Kelly was suspended from the union for an unauthorized absence and then dropped from the apprentice program. When he tried to find work with other employers than Conco, he was told he could not get work because of what happened at Conco. He sued Conco for sexual harassment and retaliation in violation of the California Fair Employment and Housing Act (“FEHA”). He also sued Seaman for inten- tional infliction of emotional distress. The trial court granted summary judgment, and the Court of Appeal affirmed on all claims except for retaliation. The Court held that Kelly failed to
raise a triable issue of fact on his sexual- harassment claim because there was no showing that Seaman actually had some sexual interest in Kelly, and was not sim- ply verbally abusing him with sexually- derogatory language. The court held, however, that an employer may be found to have engaged in an adverse employ- ment action, and thus liable for retalia- tion under Government Code section 12940(h) ― by permitting fellow employ- ees to punish Kelly for invoking his rights when he reported the incident with Seaman and later retaliatory conduct by co-workers. It held Kelly raised a triable
issue of fact on whether Conco knew or should have known of coworker retaliato- ry conduct and either participated and
encouraged the conduct, or failed to take reasonable actions to end the retaliatory conduct.
Send A Doctor To Observe Your Client’s Next DME. DME Observation Services
Medical Recorecord Review Expe
Expert Testimonystimony
Defense Doctor Reports CAALA Members receive a $100 discount.
See Our Database Of
www.imeobservers.com
vation Services 818-703-9512
LosAngeles,Orange,Ventura,SantaBarbara,San LuisObispo,Kern Counties
R.A. CARRINGTON
www.CaliforniaNeutrals.org
BUSINESS EMPLOYMENT INSURANCE
“
PROBATE PERSONAL INJURY PROFESSIONAL NEGLIGENCE
Mr. Carrington was very knowledgeable. Insurance companies respect his opinion. Extensive trial experience (ABOTA), Excellent Mediator, fair objective arbitrator. Extraordinarily capable and forthcoming with efforts and involvement. He is very thorough and fair.
” Quote from 2006 Consumer Lawyers Evaluations PH 805.565.1487 FAX 805.565.3187
ratc@cox.net 565 SHEFFIELD, SANTA BARBARA, CALIFORNIA 93108 JULY 2011 The Advocate Magazine — 89
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104