Summary adjudication of employment harassment claims reversed because aggregate of evidence may factually support a claim

April 20, 2012
By Justice Steven Vartabedian (Ret.) on April 20, 2012 6:00 AM |

In Rehmani v. Superior Court (Real Party: Ericsson, Inc)(filed March 29, 2012) 2012 DJDAR 4177, the Court of Appeal, Sixth Appellate District granted Rehmani's petition for writ of mandate and overturned the Santa Clara Country Superior Court's summary adjudication of Rehmani's claims of workplace harassment based on national origin and religion.

At issue in the appeal was Rehmani's allegation against employer Ericsson that it failed to ameliorate the hostile work environment that existed as a result of abuse he suffered from 3 fellow employees. Rehmani is a Muslim of Pakistani origin; the fellow employees are of Indian origin. He claimed that, because of his national origin and religion, the others were rude, dismissive and hostile; they were unwilling to help him with his projects and made comments concerning the hostile relationship between Pakistan and India. Specific comments included one about the need for India to bomb Pakistani terrorists; a comment that if the fellow worker did not assist him, would he "blow me up?" and a prank birthday party for Rehmani while he was away from the office "celebrating 9/11 and planning terrorist attacks."

To prove entitlement to a summary adjudication of dismissal of these harassment claims, Ericsson needed to establish that Rehmani could not show not only a hostile work environment, but also its failure as his employer to respond with appropriate corrective action. Ericcson asserted in the trial court that the incidents were isolated and not caused by Rehmani's religion or national origin, and not so severe or pervasive as to constitute a hostile environment. Concerning corrective actions, Ericsson set forth evidence that none of the fellow employees were managers, and that Rehmani's complaints to his superiors never asserted (1) "harassment" or "discrimination", and (2) he never said his alleged mistreatment was due to his being Pakistani of Muslim. In any event, Ericsson conducted an investigation and concluded there was no discrimination or harassment, and warned employees against conduct like the 9-11 prank.

While acknowledging that Rehmani's case may appear weak, the appellate court concluded that it "could not say as a matter of law that the evidence Rehmani wishes to adduce is insufficient in the aggregate to establish a claim for harassment based on national origin." At trial, Rehmani will be permitted to prove his claims have merit; alternatively, the trier of fact could rule against him, either because his interpersonal difficulties were not related to Indian employee's sentiments against non-Indian employees or his complaints were insufficient to trigger a fuller investigation under FEHA than Ericcson performed. While the evidence of religious harassment may be even weaker, the court noted this evidence interrelated with national origin harassment.

In my employment law neutral work, I frequently find defense counsel contending that each claim of employment discrimination/harassment has to stand on its own. For example, where a plaintiff alleges age, disability, and race discrimination in separate causes of action, a plaintiff cannot argue that even if one of these causes of action is insufficient alone, the cumulative effect of them forms a sufficient basis for liability. The Rehmani court seems to come very close to suggesting that the aggregate of evidence of numerous causes of action could prove liability. But I think this portion of the discussion has to be taken in the context of two factors present here: (1) reference to aggregate evidence is to the containment of such evidence within one particular cause of action, and (2) claimed discrimination and harassment in this case involved national origin and religion essentially as a singular profile.