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Clifford v. American Drug Stores8/22/2005
that human resources acted on reports only after the reporting employee retained counsel. And there was no evidence of any procedure that might have protected employees from retaliation for having reported sexual harassment.
Suggesting that it acted promptly on Clifford's report, Sav-On points to Doose's suspension with pay in July 1998, just over a month after Clifford met with Conway and Adams, after she was served with a deposition subpoena by Stange's attorney. Sav-On forgets that in 1995, Clifford told Monreal, her store's loss prevention supervisor, about the sexual harassment. And in 1996 and 1997, Clifford told of Doose's sexual harassment to Thompson, a market manager, to other general managers, to Mlenar, her market manager, and to Perez, the district loss prevention manager. All these people were obligated under Sav-On's sexual harassment policy to report it to human resources, but either they did not do so, or human resources had no obligation under the policy to take measures to protect the victimized employee.
And there was no evidence that Doose's suspension was due to Clifford's interview or that it was done pursuant to a company policy that had been implemented for the purpose of protecting employees, rather than as a reaction to her retention of counsel. Indeed, human resources director Baier testified that Sav-On's procedure to avoid further harassment was to give the accused harasser a warning and transfer him to another store.
Further, there was no evidence of other suspensions due to sexual harassment, and no manager was suspended for engaging in retaliation or for failure to report sexual harassment. At the time of trial, Mlenar was still employed by the company as a district manager, and had transferred to the Osco Division in Phoenix, Arizona. Casillas became the operations manager for the northern area of Southern California, reporting directly to White, who was still the vice president of operations. Perez became the district coordinator for loss prevention. Adams was still a district human resources manager. Thompson became Sav-On's operations manager for the Southwest area, in Phoenix, Arizona. And Weber was still a district manager for Sav-On.
We conclude that Sav-On failed to submit sufficient evidence that the reasonable use of its procedures would have prevented some of the harm suffered by the employee. (McGinnis, supra, 31 Cal.4th at p. 1045.) Thus, it would not have been error to refuse even a correctly worded instruction with regard to the avoidable consequences doctrine, had Sav-On proposed one. (See Soule v. General Motors Corp., supra, 8 Cal.4th at p. 572.)
In any event, there was no prejudice. Reversal is permitted for an erroneous refusal to instruct only when, after an examination of the entire cause, it is reasonably probable that a result more favorable to Sav-On would have been reached if the instruction had been given. (Soule
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