By David E. Worley
In Derr v. Kern Cnty. Fire Dep’t, 117 FEP Cases 29 (Cal. Ct. App. 2013), the court affirmed the dismissal of claims of retaliation and discrimination of a firefighter who was subject to a hostile work environment at the hands of his supervisor who harbored staunchly homophobic views. The plaintiff, who has a homosexual daughter, claimed his supervisor continually harassed him, and even after their shifts were changed, the supervisor went out of his way to find the plaintiff and make harassing comments to him. While the court found that no adverse employment action occurred that would support the claims of discrimination and retaliation, the plaintiff had made a clear case of workplace harassment.
Derr, a 28 year veteran of the Kern County Fire Department, was subject to harassing actions by Rummell, his coworker and supervisor, because Dern had a homosexual daughter and supported gay rights issues. Rummell went out of his way to subject Derr to his homophobic views, forwarding him emails, becoming irate when Derr supported a gay marriage referendum, and agreeing with the sentiment of a hateful chain email sent by Rummell’s wife. After complaining, Derr was assigned a different shift. However, Rummell would remain at the station after his shift in order to harass Derr further.
The department assigned Derr to a different station, which remedied the situation entirely. However, allegedly as a result of the harassment, Derr had anxiety issues ultimately contributing to a diagnosis of ulcerative colitis. His health problems had exhausted his sick leave, and Derr was forced to retire early to attend to his health problems. Worker’s compensation was denied as his condition was found to not be work related. His retirement occurred roughly two months after the transfer.
Plaintiff’s theory [of an adverse employment action] fails. First, it directly conflicts with the facts alleged in the fifth amended complaint: Plaintiff specifically alleges that a few weeks prior to his retirement, the department had acted to resolve his working-conditions complaint by transferring Rummell to a different fire station. Plaintiff also alleges that “he would still be working today” if the county had restored to him the sick leave he had taken earlier in 2009. Thus, under the allegations of the complaint, the working conditions, per se, were no longer “intolerable” at the time he retired, even if they previously had been.
The court further found that as Derr was not contesting the denial of worker’s compensation or arguing the denial contributed to the discrimination, he cannot rely on these facts to allege an adverse employment action occurred. Put simply, Derr was forced to retire because of a non-work-related medical condition.
However, the court found a valid claim of harassment was contained in the complaint.
In the case of harassment by a supervisor, the employer is strictly liable for the supervisor’s conduct, and reasonable but unsuccessful attempts at ameliorization do not defeat a plaintiff’s harassment cause of action.
