Sexual Harassment Case Thrown Out By Trial Judge!
In an unusually helpful ruling in favor of a California employer, the Fourth District Court of Appeal upheld an Orange County trial court’s decision to throw out a jury verdict finding sexual harassment.
In Brennan v. Townsend & O’Leary, Plaintiff Stephanie Brennan started with advertising agency Townsend & O’Leary as an assistant media planner in 1991. Brennan told the jury that she regularly confided in O’Leary and he asked her about her personal and dating life. She testified to a variety of sexually explicit conversations both with O’Leary and more generally at executive meetings during 2000 and 2001. She described a number of Christmas parties featuring off-color Santas in 2002 or 2003. Finally, in August 2004, Brennan inadvertently obtained an email written by individual co-defendant Scott Montgomery referring to Brennan as “big-titted” and “mindless.” Understandably, Brennan complained about the email, a complaint that resulted in a written reprimand and warning issued to Montgomery. In addition, Brennan sought out and talked to current and former agency employees to find other examples of sexual harassment. In the Fall of 2004, Brennan told O’Leary that other employees had harassment complaints, but that they would be unwilling to speak with him. She threatened to leave the agency. O’Leary repeatedly asked Plaintiff to stay with the agency, to cooperate in investigating sexual harassment with an outside investigator, and to “restore” the company environment. Brennan responded that she wished to leave and that she expected a compensation package for her “constructive termination.” When she did not get the expected package, Brennan told O’Leary that she was going to “move on” with her attorney and gave him a letter from her lawyer in October 2004. In November, Brennan refused to cooperate with the outside investigator the agency hired to investigate sexual harassment and finally in January she submitted her written resignation.
The jury concluded that Brennan was the victim of sexual harassment and awarded $200,000 from the agency, and $50,000 from individual defendant Montgomery, author of the offensive email. The trial judge threw out the verdict, holding that there was no substantial evidence to support a finding of hostile work environment harassment. The Court of Appeal agreed, ruling that as a matter of law, O’Leary’s evidence was insufficient to meet the “severe or pervasive” standard necessary to support a finding of hostile work environment. The court explained: “There is no recovery for harassment that is “occasional, isolated, sporadic or trivial,” and “an employee seeking to prove sexual harassment based on no more than a few isolated incidents of harassing conduct must show that the conduct was ‘severe in the extreme.’”
The Court quickly dismissed any suggestion that the behavior Brennan complained of was “severe” and focused instead on whether it was “pervasive.” The Court went on to note that the only harassment directed at O’Leary personally was the single “rude, unprofessional” email referring to her as a “big-titted, mindless one.” In addition, she witnessed three sexually offensive incidents over three years that were directed at others. “Such evidence simply does not show a concerted pattern of harassment.” The Court was equally unimpressed by evidence of Steve O’Leary’s personal conversations of Brennan’s personal life, many of which the plaintiff admitted were not unwelcome of offensive, and the third-party complaints of harassment Brennan uncovered in her personal investigation. Simply put, the Court found that the evidence was “not enough” to support the verdict.
While the Brennan decision is a “win” for employers, it was only after a costly and likely painful fight that could have been avoided had no inappropriate workplace conduct occurred.
