California Verdicts

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Employers failed to address new supervisor’s ageist comments: suit

Amount:

$31,089,793

Type:

Verdict-Plaintiff

State:

California

Venue:

Los Angeles County

Court:

Superior Court of Los Angeles County, Los Angeles

Injury Type(s):

mental/psychological-depression; mental/psychological-emotional distress

Case Type:

Employment – Retaliation, Age Discrimination, Workplace Harassment, Gender Discrimination, Constructive Discharge, Disability Discrimination

Case Name:

Codie Rael v. Axis SybronEndo, Sybron Dental Specialties Inc., Fernando Estavillo, Kavo Kerr Group, Kerr Corporation, Ormco Corporation, Danaher Corporation and Does 1 to 100,
No. BC584994

Date:

June 26, 2018

Parties

Plaintiff(s):

Codie Rael (Female, 54 Years)

Plaintiff Attorney(s):

Carney R. Shegerian;
Shegerian & Associates;
Santa Monica,
CA,
for
Codie Rael ■ Anthony Nguyen;
Shegerian & Associates;
Santa Monica,
CA,
for
Codie Rael ■ Mark I. Lim;
Shegerian & Associates;
Santa Monica,
CA,
for
Codie Rael

Plaintiff Expert(s):

Craig Snyder; Ph.D.; Psychology/Counseling; Beverly Hills,
CA called by:
Carney R. Shegerian, Anthony Nguyen, Mark I. Lim ■ David Glaser; M.D.; Psychiatry; Encino,
CA called by:
Carney R. Shegerian, Anthony Nguyen, Mark I. Lim ■ Heather Halpern; M.S.W., L.C.S.W.; Psychotherapy; South Pasadena,
CA called by:
Carney R. Shegerian, Anthony Nguyen, Mark I. Lim

Defendant(s):

Kerr Corp., 

Ormco Corp., 

Danaher Corp., 

Axis SybronEndo, 

Kavo Kerr Group, 

Fernando Estavillo, 

Sybron Dental Specialties Inc.

Defense Attorney(s):

Jon D. Meer;
Seyfarth Shaw LLP;
Los Angeles,
CA,
for
Kerr Corp., Ormco Corp., Danaher Corp., Axis SybronEndo, Kavo Kerr Group, Fernando Estavillo, Sybron Dental Specialties Inc. ■ Jamie C. Pollaci;
Seyfarth Shaw LLP;
Los Angeles,
CA,
for
Kerr Corp., Ormco Corp., Danaher Corp., Axis SybronEndo, Kavo Kerr Group, Fernando Estavillo, Sybron Dental Specialties Inc.

Facts:

In March 2014, plaintiff Codie Rael, 54, a materials buyer and planner for Ormco Corp., began to be directly supervised by Fernando Estavillo, who was under 40 years old. Rael claimed that after Estavillo was hired, numerous ageist comments were made about her, her workload was suddenly increased, and she was refused training, despite it being freely available to younger employees. She also claimed that she was treated noticeably different by her supervisors, in comparison to the younger employees, and that her applications for higher positions were denied under false pretenses. In October 2014, Rael quit her position at Ormco. She claimed that she was forced to quit because of the stress of her job and that she was replaced by a man in his 20s. Rael sued Estavillo; Ormco; Ormco’s parent company, Danaher Corp.; and Danaher’s other subsidiaries, Kavo Kerr Group, Axis SybronEndo, Sybron Dental Specialties Inc. and Kerr Corp. Rael alleged that the defendants’ actions constituted age discrimination and harassment, gender discrimination and harassment, retaliation, and constructive discharge in violation of public policy. Rael claimed her work record was stellar, but once Estavillo and Estavillo’s supervisor came into the picture, she began to be victimized by frequent harassing and offensive comments, including, “You are outdated,” “We need younger workers in here,” “You are part of the old culture,” “You are unwilling to follow the new culture,” “You are resistant to change,” and “You need to change.” Rael also claimed that when her applications for higher positions were denied and the positions were filled by younger employees, Estavillo told her, “We just didn’t want you.” Defense counsel argued that Rael voluntarily resigned from her employment and that the alleged comments either were not said or were taken out of context. Counsel also argued that Rael was held to the same standard as all other employees with respect to “on-time delivery,” or “OTD,” requirements for shipping dental supplies. Defense counsel contended that because Rael’s previous supervisor was located in Canada while Rael worked in Orange County, Calif., Rael was subject to absentee management, which caused her department to not meeting the OTD standard set by the company. Counsel contended that in order to remedy the issue, a new supervisor, Estavillo, was assigned to Rael’s department in March 2014 and that Estavillo set up daily meetings with Rael to review OTD status updates, asked Rael to use sophisticated proprietary business tools to increase her performance, and held Rael accountable for meeting OTD requirements. However, defense counsel argued that Rael resisted the new level of accountability and resisted making any change in her work habits. Counsel also argued that when Rael complained to human resources about having an excessive workload, she received a response within 10 minutes and that one of Rael’s largest projects was assigned to a different employee approximately four days later so that Rael’s workload would be more manageable. However, when human resources checked-in with Rael, she claimed that she was still “overwhelmed” by her work. Defense counsel contended that, in response, human resources asked Rael to prepare a list of her current job assignments so that it could set up a series of meetings with her and her supervisor to help prioritize her work and that Rael agreed to participate in the meetings, but then resigned the very next day.

Injury:

Beginning in November 1978, Rael worked for various Danaher entities in various plant locations, including Glendora, San Dimas and Orange, until she was a materials buyer and planner during her final two years of employment. Rael claimed that Estavillo put extreme pressure on her to perform exactly as he demanded or else she would be fired. She claimed that as a result, she suffered from emotional distress until she was forced to quit in October 2014. The plaintiff’s expert witnesses opined that Rael suffered from major depressive disorder as a result of her alleged treatment and constructive termination from the defendants. Rael sought recovery of approximately $16 million in total compensatory damages, including past and future economic damages for her alleged loss of earnings, and past and future non-economic damages for her alleged emotional pain and suffering. In addition, Rael sought recovery of approximately $78 million in punitive damages based on the alleged involvement of several high level management and human resources personnel who were allegedly aware of her concerns and complaints, but failed to take any action and, instead, sided with management. Defense counsel argued that Rael did not suffer any loss of wages because she quickly accepted a job with another company for more money. Specifically, counsel contended that Rael is in a similar position with another large, international company, earning a higher rate of compensation, and that Rael has been working for her new employer for almost four years, during which time she received additional pay raises. Defense counsel contended that Rael was diagnosed with emotional distress by two expert witnesses who were hired by plaintiff’s counsel and who first saw Rael in November 2016, more than two years after the separation of her employment from Ormco and the other Danaher entities. Defense counsel also contended that the plaintiff’s experts, a psychiatrist and a licensed clinical social worker, testified that Rael had an excellent prognosis for remission of her major depressive disorder, if Rael had weekly therapy for approximately 18 to 24 months. The cost of that therapy would be approximately $11,000 to $22,000. However, defense counsel noted that Rael did not seek treatment, as her two expert witnesses recommended.

Result:

On June 21, 2018, the jury found for Rael on her claims of age discrimination and harassment, retaliation, and constructive discharge in violation of public policy. However, it did not find in favor of Rael on her claims of gender discrimination and disability discrimination. The jury determined that Rael’s compensatory damages totaled $3,089,793. I also determined that Sybron Dental Specialties Inc. and KaVo Kerr Group acted with malice, oppression or fraud against Rael. However, it also determined that there was no malice, oppression or fraud on the part of Danaher Corp., Kerr Corp., or Ormco Corp. On June 26, 2018, the jury determined that Rael’s punitive damages against Sybron Dental Specialties and KaVo Kerr totaled $28 million, making Rael’s recovery total $31,089,793.

Codie Rael: $5,282 Personal Injury: past economic loss; $2,084,511 Personal Injury: past noneconomic loss; $1,000,000 Personal Injury: future noneconomic loss; $16,000,000 Personal Injury: punitive damages (Sybron Dental Specialties); $12,000,000 Personal Injury: punitive damages ( KaVo Kerr Group)

Trial Information:

Judge:

Susan Bryant-Deason

Trial Length:

9
 weeks

Trial Deliberations:

4
 days

Jury Vote:

9-3

Post Trial:

Defense counsel has expressed an intention to challenge the verdict.

Editor’s Comment:

This report is based on information that was provided by plaintiff’s and defense counsel.