Individual Harassment Defendant May Only Recover Attorney Fees if Action Frivolous

In the matter of Elisa Lopez v. Gregory Routt, Cal. Ct. App. B269345 (11/29/2017), the California Court of Appeal affirmed a trial court decision denying prevailing party attorney fees to an individual defendant who had obtained a defense verdict at trial. In that case, Lopez, an employee of the City of Beverly Hills, claimed that she was harassed by Routt, her supervisor, on the basis of her race. The jury rendered a verdict in favor of the City of Beverly Hills and Routt. Routt sought attorney fees in the amount of $374,760.75, and the trial court denied on the grounds that Lopez’s claims were not frivolous. Routt appealed, arguing that the frivolousness standard under Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1385-1386 did not apply to an individual defendant who prevailed on a harassment claim. The Court of Appeal disagreed. Because the “frivolousness standard ensures that defendants may recover attorney fees and costs when dragged into court to defendant a FEHA suit with no … basis,” an individual who prevails on a FEHA suit is “not left without a means of recovering attorney fees and costs….” But the Court disagreed that the Legislature intended an individual defendant to stand on different ground than a corporate defendant who prevailed on a discrimination or retaliation claim.

Pervasive Hugging Can Create Hostile Work Environment

Where correctional officer alleged sheriff created sexually hostile work environment, summary judgment for defendants was error because a reasonable juror could conclude that differences in the sheriff’s hugging of men and women were not, as the defendants argued, just “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and the opposite sex.”

The Ninth Circuit Court of Appeals ruled that hugging can create a hostile or abusive workplace when it is unwelcome and pervasive, and summary judgment on a hostile work environment claim is appropriate only if the defendant’s conduct was neither severe nor pervasive enough to alter the conditions of the plaintiff’s employment.

Zetwick v. County of Yolo, 2017 S.O.S. 14 (9th Cir. Feb. 23, 2017),