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Clifford v. American Drug Stores8/22/2005
long, difficult commute.
The company's retaliation policy was also apparent in its reaction to Carranza, Stange, and Ryan: false accusations of unauthorized discounts; an unfavorable transfer; reduction in hours; delaying medical care; assignment of dangerous tasks; demotion; and insults.
Thus, overwhelming evidence established that retaliation was at least the unwritten policy of the company, and since Sav-On has not caused the written harassment policy to be transmitted to this court, we cannot assume that the written policy provided otherwise. (See Maguire v. Lees (1946) 74 Cal.App.2d 697, 709.)
The avoidable consequences doctrine does not require employees victimized by a supervisor's sexual harassment to report such conduct immediately to the employer through established company procedures, if the company lacks an adequate anti-harassment policy or the enforcement procedures are inadequate, as here, or the employee has a reasonable fear of reprisal by the harassing supervisor or other employees, as also shown here. (See McGinnis, supra, 31 Cal.4th at p. 1045.) We conclude, after reviewing all the evidence, that there would be no reasonable probability of a more favorable result for Sav-On had the instruction been given. (See Soule v. General Motors Corp., supra, 8 Cal.4th at p. 576; Cal. Const., art. VI, ยง 13.)
5. Instruction re Damages for Stress of Litigation
Sav-On contends that the trial court erred in refusing the following proposed instruction: "Any emotional distress attributable to the rigors of litigation is not compensable."
Sav-On's expert witness, psychiatrist Saul Faerstein, examined Clifford twice, once in December 1999, and again in November 2000. He reviewed her medical records, as well as investigation reports and deposition transcripts, and found nothing in her medical file prior to June 1998, regarding psychological or emotional symptoms, or reflecting any psychiatric or emotional disorder. Dr. Faerstein found significance in the references in Clifford's doctors' notes to the stress of litigation. He also observed examples of misstatements, withholding information, exaggerations, and distortions by Clifford that caused him to doubt her credibility.
Faerstein concluded from his review that Clifford's adjustment disorder was the result of the stressors of litigation -- having to meet with lawyers, being questioned, and having to give testimony. He was of the opinion that once the litigation was over, there would be no reason that she could not return to work without psychiatric limitations, and perform the job that she performed before the litigation.
As authority for its asserted right to its proposed instruction, Sav-On relies upon the following short excerpt from a case affirming a judgment of dismissal upon the sustaining of a demurrer: "It has always been understood in our system that attorney's fees a
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