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Lara v. Buckley Boradcasting Corporation of Monterey1/30/2002
ry measures. (Pereira v. Schlage Electronics (N.D.Cal. 1995) 902 F.Supp. 1095, 1101.)
Here the jury found Buckley had created and/or allowed a sexually hostile work environment to exist at KSEQ as alleged in the first cause of action, but also found Lara had not suffered any damages as a result. As noted, there was evidence Lara had initiated or freely participated in other sexually explicit conversations at the station, from which the jury might reasonably have concluded she was not actually offended by Clemons's sexual propositions. The question then is whether the jury's no-damages finding on the first cause of action is irreconcilably inconsistent with its finding on the fourth cause of action that Lara was damaged by Buckley's negligent failure to provide adequate training and supervision regarding sexual harassment. More specifically, the question is whether the damages alleged under the first and fourth causes of action were the same.
The fourth cause of action alleged Buckley "had prior knowledge of defendant Clemons' propensity to engage in inappropriate sexual dialog in the workplace and to sexually harass and embarrass co-workers[,] and failed to take all reasonable steps to prevent such harassment from occurring in the future." Lara's allegation the harassment was foreseeable was supported by Herlinda Bagley, who had worked as a receptionist at KSEQ before Lara. Bagley testified she had overheard Clemons in sexual conversations at the station, and had complained first to Clemons herself and then to McCarty, but without success. Lara went on to allege in the fourth cause of action:
"These defendants [Buckley] breached their duty to plaintiff by failing to properly select, supervise, train, control and review said employees [McCarty and Clemons] and by permitting defendants to engage in harassing and discriminatory conduct against plaintiff as alleged in this complaint. In addition[,] Government Code section 12940 et seq. enunciates a public policy prohibiting discrimination and harassment and provides that an employer shall take all reasonable steps to prevent discrimination and harassment based on gender from occurring."
Thus, both the first and fourth causes of action alleged Buckley had breached its duty to Lara, whether derived from statutory or common law, to take all reasonable steps to prevent discrimination and harassment. The breach caused or permitted a hostile work environment to exist at KSEQ, which in turn subjected Lara to sexual harassment. Lara's attorney made essentially this argument to the jury.
"Dannelle came to work after Herlinda, and it was during Herlinda's period of employment that she was attempting to make some things known to Mr. McCarty, but he wasn't interested in hearing it. Had he listened to those things, then the circumstances that occurred during Dannelle's employment may never have occurred. And that's negligence. That's negligence because they had notice. At that point, once they have notice, they've got a duty to act. They didn't act."
The alleged injury to Lara -- sexual harassment -- was therefore the same under both causes of action. The jury found on the first cause of action that Lara had not been sexually harassed; it found on the fourth cause of action that she had been. These two findings cannot be reconciled under any possible application of the evidence and the instructions.
Lara offers no scenario under which the injuries she might have suffered under the first, statutory cause of action could have been different from the injuries she was found to have suffered under the fourth, common law cause of action. Nor would it have been possible for her to maintain the statut
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