Thursday, January 22, 2009
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C.A. Upholds Award Against Grocery Chain for Harassment
By KENNETH OFGANG, Staff Writer
The Court of Appeal for this district has upheld a multimillion dollar award against the Vons Companies for sexual harassment and retaliation.
The court Tuesday affirmed a Ventura Superior Court judgment in favor of fired grocery clerk James Stevens against the chain. Stevens was awarded $2.4 million in compensatory and punitive damages, and his attorneys were awarded more than $750,000 in fees.
Presiding Justice Kenneth Yegan, writing for Div. Six, said Stevens had produced sufficient evidence for a jury to conclude that he was fired because he had complained about inappropriate conduct by a store manager. Stevens charged that the reason given by the company—that he violated policy by giving unsalable merchandise to charity instead of returning it to headquarters—was a pretext.
Stevens was the inventory control clerk at a store in Simi Valley when he complained in 2002 that manager Laura Marko was harassing him. Marko, he claimed, made false charges that he had called her at home and made inappropriate comments, and had called him a “pervert.”
Evidence showed that after Stevens complained to the personnel department, six employees, in addition to Stevens and Marko, were interviewed. The investigators determined that the complaints were unsubstantiated and that it would be in the company’s interests if both employees were transferred to other stores.
They also noted that Stevens could be moved immediately due to an opening at another store, but that it was “operationally not possible” for Marko to be transferred right away. Marko remained at the store for a year before quitting the company.
A district manager overseeing the two stores and 18 others around the county testified that he transferred Stevens on the recommendations of the personnel department, but that Marko was not transferred because there was no “appropriate facility” to send her to. He said he was aware that several persons had complained about inappropriate sexually oriented behavior by Marko, but had not disciplined her because that was not his responsibility.
He did, however, along with a member of the personnel department, issue a written warning to the assistant manager of the store for failure to take “corrective actin in response” to Marko’s comments.
Stevens, whose complaint alleging that the transfer was retaliatory was rejected by the Fair Employment and Housing Commission, was fired in 2004 after 26 years with the company. The ostensible reason was that he had given company products, to the representative of a local church.
Company policy, according to the testimony, was that employees were allowed to donate damaged or expired merchandise if it was “direct store distributor,” or DSD, merchandise—products delivered to the stores directly by the vendors, who consent in advance to credit the company and allow the merchandise to be donated.
Products delivered in Vons trucks, however, including private label merchandise, could not be donated and had to be returned to the company’s product recovery center.
The district manager said he fired Stevens after being presented with evidence by other employees that Stevens had donated private label water and coffee beans, valued at around $76, to the church, which had been receiving donations from the store for more than 10 years.
The jury found for the plaintiff on his claim for sexual harassment, which it found to have been ratified by the district manager. It rejected his claim that his transfer was retaliatory, but found that his subsequent firing was, and awarded more than $1.7 million in compensatory and more than $16 million in punitive damages, which the trial judge cut to $1.2 million as compensation and an equal amount in punitive damages.
The judge also awarded more than $750,000 in attorney fees to the firms of Allred, Maroko & Goldberg and Davis*Gavsie, including multipliers based on the complexity of the case and the fact that the Davis*Gavsie lawyers worked without pay on the case for three years.
Yegan, writing for the Court of Appeal, said there was substantial evidence from which the jury could conclude that Stevens, given the length of his employment and the fact that he received consistently positive employment evaluations prior to his sexual harassment complaint, would not have been fired solely for giving a small amount of expired merchandise to charity, particularly because the company acknowledged that Stevens had no connection to the church and never gave him an opportunity to explain the donation.
The justice went on to say that the fee award was not excessive because it was within the trial judge’s discretion to award the multipliers.
The case is Stevens v. Vons Companies, B196755.
Copyright 2009, Metropolitan News Company