Citation[]
Espinoza v. County of Orange, 2012 WL 420149 (Cal. App. Ct. Feb. 9, 2012) (full-text).
Factual Background[]
On August 27, 2006, a blog entitled “Keeping the Peace” was launched at ocprob.blogspot,com by a person using the name “keepdapeace.” On August 31, 2006, a posting was made stating “This blog ain’t run by the government. It also ain’t run by O.C.E.A.” The individual responsible for starting the blog was later identified as corrections officer Jeffrey Gallagher, not a defendant in this action. The blog ran until January 19, 2008, when Gallagher shut it down; Gallagher did not use any of the defendant’s computers to start the blog.
Starting on August 30, 2006, various comments were posted to the blog concerning the plaintiff beginning with offers of reward for a picture of plaintiff’s right hand (referred to as “the claw”). The comments aimed toward plaintiff escalated and included references to the plaintiff as a “rat” and statements of sexual intercourse with the plaintiff’s mother. Negative comments were also posted about plaintiff’s job performance.
On or about September 7, 2006, a coworker alerted plaintiff to the blog, which he started reading every day after work from that day forward. In addition to the blog comments, plaintiff repeatedly complained of harassment by coworkers at the workplace. Plaintiff alleged that coworkers would "isolate" him, "mock[]" him, and draw images of a claw on his equipment or vehicle.
Greg Ronald, a Deputy Chief Probation officer, learned of the blog in late August 2006 and asked the chief deputy IT manager to investigate to determine which of defendant's computers were used to access the blog, the user IDs, and the time of access. The investigation showed that many employees were accessing the blog from defendant's computers using generic login passwords and that others were using identifiable names. On September 7, 2006, Ronald sent an email to all employees informing them the blog postings violated defendant's policy and directed them to the specific provisions of the policy manual. Thereafter, defendant blocked access to the blog through the use of a generic password but employees could still logon using specific login names. Defendant was capable at that time of blocking access to the site completely but did not do so until October of that year. In response to further complaints by plaintiff, plaintiff was told that the information was being forwarded to "upper management."
A second email to the employees was sent on October 6, 2006, and the human resources department was informed of the names of the individual employees involved. In response to the alleged harassment, plaintiff went to his physician and was told he suffered from high blood pressure. Plaintiff also complained of nightmares and difficulty sleeping as well as irritable bowel syndrome. Following a medical leave, plaintiff returned to work to find that his position had been filled and he was reassigned to another department.
Plaintiff filed suit for discrimination based on disability, harassment based on disability, retaliation, and filing to prevent harassment, all under FEHA, wrongful termination, and intentional infliction of emotional distress. The trial court granted a motion of non-suit as to the individual employee defendants and a jury awarded plaintiff $820,000 on the retaliation and wrongful discharge causes of action and found the defendant liable for harassment based on plaintiff’s disability and failure to prevent harassment.
Appellate Court Proceedings[]
Defendant County of Orange appealed a jury award in the amount of over $820,000 in favor of a former employee who was alleged harassment by his co-workers at the Orange County Probation Department. Plaintiff was born with no fingers or thumb on his right hand, only two small stubs. The harassment underlying the judgment at issue was conducted both at the workplace and on a blog unrelated to the County of Orange. Defendant argued that measures were taken to investigate and remedy the alleged harassment that occurred in the workplace, but that it could not be held liable for postings made on sites beyond its control. The award was affirmed and the court held that an employer can be held liability for the activities of non-supervisory employees if it knew, or should have known, of the conduct, and failed to take proper remedial measures.
The primary basis for defendant’s appeal was that the blog postings constituted conduct outside the workplace for which defendant should not be liable. Under section 12940(j)(1) of the FEHA, an employer is liable for harassment based on a disability if it "knows or should have known of th[e harassing] conduct and fails to take immediate and appropriate corrective action." Further, "when harassment is by a non-supervisory employee, an employer’s liability is predicated not on the conduct itself, but on the employer’s response once it learns of the conduct."[1] The court did note that an employer is not responsible for monitoring the private communications of their employees but must still take certain steps to remedy harassing behavior in the workplace or in settings that are related to the workplace. The court determined that the blog at issue was such a setting "related to the workplace." The offensive posts then, in conjunction with the onsite harassment, imposed upon the defendant a duty to take necessary action to remedy the situation.
The primary basis of the court’s affirmation of the jury award seems to be that the defendant took some action to address the complaints of harassment (evidence that it was aware of what was taking place) but that those actions were deficient in light of the defendant’s duty.
While the defendant also tried to invoke immunity under the Section 230 of the Communications Decency Act ("CDA"), the court rejected this argument because the defendant was not an interactive computer service or in any way a publisher of the blog. Defendant’s First Amendment defense was similarly dismissed because harassing speech is not protected.