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Jury Finds Department of Veterans Affairs Liable for
Sex Abuse by Resident in Home
By: Jason W. Armstrong, Daily Journal Staff Writer
BARSTOW - In what could be the first verdict of its kind
in California employment law, a jury has found the state
Department of Veterans Affairs liable for the sexual harassment
of one of its employees by a third party - a Veterans Home
resident.
Barstow Superior Court jurors awarded former Barstow Veterans
Home nurse Helga Carter $184,000, finding that her employer
should have taken action to prevent a resident from repeatedly
taunting her by staring and making sexually suggestive
remarks.
"We're not aware of another verdict in the state
that has held an employer liable for third-party harassment," Carter's
attorney, Terry K. Davis of Santa Ana, said. "No other
[California] case has interpreted it."
Immediate Action
Lawyers for the Department of Veterans Affairs could not
be reached for comment, but Davis said the department has
vowed to appeal.
During the trial in front of Judge John P. Vander Feer,
Davis relied on Government Code Section 12940(j)(1), which
specifies that an employer is liable for harassment by
someone other than an agent or supervisor - including a
customer, vendor or independent contractor - if the employer
knew or should have known about the harassment and failed
to take immediate action.
Third-Party Harassment
Davis also referred to several federal cases dealing with
the issue of third-party harassment, including a 10th U.S.
Circuit Court of Appeals case in which the court affirmed
a decision awarding compensatory damages to an Oklahoma
Pizza Hut employee who was sexually harassed by a customer
in the restaurant. Lackard v. Pizza Hut, Inc.,
162 E3d 1062 (1998).
In another case that parallels Carter's, the 8th Circuit
in 1997 affirmed an award of damages to three female employees
of a group home who claimed a retarded teenage boy at the
home continually groped them and sexually assaulted them.
The court found Focus Homes, Inc., the Minnesota company
that operated the group home, responsible for: aiding and
abetting the sexual harassment, retaliatory discharge and
intentional infliction of emotional distress. Crist
v. Focus Homes, Corp., 122 E3d 1107 (1997).
"These cases demonstrate that an employer has an obligation
to maintain an environment free of harassment," Davis said.
Los Angeles attorney Patrick McNicholas, who specializes
in employment law, said that, while he's aware of numerous
settlement in California involving third-party harassment
claims against employers, the verdict in Carter's case
appears to be unique.
"I think it's correct to say this is a verdict of first
impression - it could be the first time a verdict has been
obtained under these circumstances,"
McNicholas, a partner with McNicholas & McNicholas, said.
Carter sued the Department of Veterans Affairs in 1998,
seeking unspecified general, punitive, special, economic
and noneconomic damages for sexual discrimination, harassment,
failure to maintain an environment free of harassment,
retaliation, and intentional infliction of emotional distress.
Carter v. California Dept. of Veterans Affairs, BCV03693
(San Bernardino Super. Ct., Barstow, verdict Oct.
2, 2001).
Carter, who worked at the Barstow Veterans Home as a registered
nurse in the facility's Ambulatory Care Clinic, alleged
that home resident Elbert Scott sexually harassed her several
times a week between August 1996 and September 1997, staring
at her breasts and buttocks and spewing lewd remarks.
"I want to try out my new penile implant on you," Brown
told Carter, according to testimony.
"I want in your pants," he said on another occasion.
And then, more threateningly, he said, "If you don't sleep
with me you will lose your job, marriage, family and home."
Brown also found Carter's home phone number and left frequent
sexual messages on her answering machine, according to
Carter's lawsuit.
Carter's supervisors denied her promotions and refused
to address the harassment when she complained, and the
stress forced her to quit in February 1998, she alleged.
Los Angeles Daily Journal
October 11, 2001
Vol. 117 No. 199
If you or a loved one has suffered abuse
or discrimination, please contact a California Employment
and Discrimination lawyer TODAY at the Law Offices of Terry
K Davis.
1-800-783-9360
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