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Suit: Plaintiff discriminated for allergies to scented products
Superior Court of Nevada County, Nevada City
mental/psychological-anxiety; mental/psychological-depression; mental/psychological-emotional distress; mental/psychological-post-traumatic stress disorder
Employment - Retaliation, Whistleblower; Discrimination - Fair Housing Act; Employment - California Labor Code, Failure to Accommodate, Hostile Work Environment, Disability Discrimination
John R. Barrie and Deborah Griffiths v. California Department of Transportation, No. CU13-079359
May 9, 2017
John R. Barrie (Male, 53 Years),
Lawrance A. Bohm; Bohm Law Group; Sacramento, CA, for John R. Barrie ■ Erik M. Roper; Law Office of Erik M. Roper; Sacramento, CA, for John R. Barrie, Deborah Griffiths
Gary Namie; Ph.D.; Psychology/Counseling; San Francisco, CA called by: Lawrance A. Bohm, Erik M. Roper ■ Charles Mahla; Ph.D.; Economics; Los Angeles, CA called by: Lawrance A. Bohm, Erik M. Roper ■ Jonathan Rutchik; M.D., M.P.H.; Occupational Medicine; Mill Valley, CA called by: Lawrance A. Bohm, Erik M. Roper
California Department of Transportation
Matthew B. George; California Department of Transportation - Legal Division; Sacramento, CA, for California Department of Transportation ■ Manuel C. Alvarado; California Department of Transportation - Legal Division; Sacramento, CA, for California Department of Transportation
In the fall 2010, plaintiff John Barrie, 53, a staff services analyst for the California Department of Transportation's Sutter/Sierra region office, discovered that various chemicals, to which he was allegedly allergic, began to be used within the regional office, despite the previous, agree to informal accommodation. Barrie was previously hired as an office technician in August 2005. On his first day of work, Barrie, then 48, informed his supervisor that he was extremely allergic to various chemicals and scented products, such as perfumes and traditional household cleansers like Comet and Windex. In response, Barrie was informally accommodated, in that employees were asked to refrain from wearing scented products and that Barrie was given input into which cleansers were used to clean the regional office. From August 2005 through March 2010, Barrie was satisfied with the informal accommodations provided. In March 2010, Donna Jones became the new manager of the regional office. Initially, the informal accommodations continued, but by the fall of 2010, Barrie discovered that previous prohibited chemicals, such as Windex and Comet, were used within the regional office. As a result, Barrie complained to his manager about the presence of the chemicals and the negative impact the chemicals were having on his health. In November 2010, Barrie began to elevate his complaints to the regional manager, Stan Richins, because Barrie felt that Jones was not addressing his concerns. Initially, Richins assured Barrie that unauthorized chemical usage in the regional office would not continue. However, Barrie continued to discover usage of previously prohibited chemicals in the workplace. As a result, on Feb. 4, 2011, Barrie complained to Caltrans' Equal Employment Opportunity office that his regional office managers were continuing to allow the janitor to use chemicals that were causing him to suffer allergic reactions. In response, Caltrans' EEO office suggested that Barrie formally apply for reasonable accommodation. Accordingly, on Feb. 8, 2011, Barrie submitted a Reasonable Accommodation Request form with supporting medical documentation, which established his allergy as a disability, and requested that previously prohibited chemicals and scented products be excluded from the workplace. Barrie's formal reasonable accommodation request was approved by Jones. After getting accommodation approval, Barrie allegedly began to notice random occasions where his work area would smell strongly of perfume. Typically, it would happen at times when he would return from a break. Barrie claimed he began to experience increased exposures that would cause him shortness of breath, trembling and cognitive impairment. As a result, he reported the occasions, but was allegedly told that there was no smell in the air and that no one in the office was using scented products. Throughout 2011, Barrie reported repeated instances of unapproved chemicals being present in the regional office. He also reported numerous concerns regarding the behavior of Jones, who was allegedly regularly using profanity, demeaning coworkers, and making homophobic remarks about Barrie, who was married and not homosexual. Barrie also reported numerous safety concerns, including cigarette ash trays being too close to building entryways and the burning of scented candles in government buildings. However, he claimed that his complaints to the regional manager went unaddressed and did not result in any formal investigation. Specifically, he claimed that on Jan. 3, 2012, the janitor used Comet to clean the office's men's restroom, in violation of the approved reasonable accommodation, and that his exposure to the cleaning product caused him to suffer an adverse allergic reaction. Barrie filed an injury report, and complained about the event as another example of his reasonable accommodation not being enforced by management. The very next day, on Jan. 4, 2012, Richins moved Barrie's work station into the "Old Landscape Barn" office building, across the parking lot from the main Sutter/Sierra region office building. However, the Old Landscape Barn was freshly painted and carpeted just a few weeks before Barrie was moved into the location. As a result, Barrie objected to the move because he was concern that the new work location put him at greater risk for an exposure to adverse chemicals. On Jan. 20, 2012, on a rainy day when the paint was still allegedly off-gassing and its fumes were allegedly trapped by the humidity, Barrie allegedly suffered an adverse allergic reaction in response to the paint fumes. While on medical leave, Barrie went to Caltrans' District 3 EEO office, in Marysville, and complained for over two hours. He brought photos of the alleged conditions in the office and the presence of prohibited chemicals. During the meeting, Barrie complained about the alleged repeated violations of his reasonable accommodation, alleged violations of safety laws, the alleged harassing conduct by Jones, and the alleged threatened retaliation by his managers. When Barrie attempted to return to work a few days later, Caltrans' management would not let him return unless he agreed to see a workers' compensation doctor. Barrie initially refused, but was ultimately forced to go, and the workers' compensation doctor cleared him to return to work as long as it was not a freshly painted location. On Feb. 2, 2012, CalTrans' District 3 safety office personnel, in response to Barrie's complaints, conducted a surprise inspection of the regional office. The inspection found several chemicals and scented items that were prohibited by Barrie's reasonable accommodation, and in violation of state laws. Although the unannounced inspection confirmed many of Barrie's complaints, CalTrans continued to refuse Barrie's return to the regional office location, where he successfully worked before he was put in the Old Landscape Barn. CalTrans managers claimed that they could not allow Barrie to return to the workplace until the location was tested by an industrial hygienist. On March 6, 2012, Barrie was allowed to return to work at the main office, but he was informed that the "whole building" was tested and that it was determined that the lobby would be the best fit for Barrie. However, while he was working in the lobby, Barrie allegedly noticed a marked increase in the number of exposures that negatively impacted his health. In addition, instances of mysterious perfume smells located around Barrie's work station continued. Co-workers and managers continued to state that they could not smell anything in the air or that the smell must have come from somewhere else. Specifically, Barrie claimed that he returned to his lobby cubicle on Feb. 6, 2013 to find that his lumbar pillow smelled of perfume and was certain that someone was intentionally spraying his workstation with scented products. As a result, he filed an internal complaint under CalTrans' Workplace Violence Prevention policy. Although the complaint was investigated, CalTrans was unable to substantiate the complaint. However, Barrie was told that he would not be allowed to use lumbar support pillows in the future and that those items should not have been at his workstation in the first place. Due to "tensions" created by Barrie's workplace violence complaint and his repeated complaints about management's failure to enforce his reasonable accommodation, Barrie was transferred to work in the "Old Storm Water Cottage," located in Marysville, on March 6, 2013. Since Barrie lived in Nevada City, he would have a much longer commute for his work at the new location each day. As a result, before being transferred, Barrie specifically inquired whether he would be allowed to telecommute, instead of going to Marysville, but without any explanation, Barrie was advised that telecommuting would not be possible. He was also informed that he must do the janitorial work for the new location because he would be the only one working at that location on a regular basis. In the summer of 2015, Barrie alerted CalTrans' management to the fact that a networking project at the Old Storm Water Cottage had potentially disturbed asbestos fibers. As a result, Barrie was relocated to his home and set up with a telecommuting arrangement, even though he was previously told that this was not an option at CalTrans. Barrie sued his employer, Caltrans. He alleged that Caltrans' actions constituted harassment resulting in a hostile work environment (in violation of Gov. Code § 12940(j)), disability discrimination (in violation of Gov. Code § 12940(a)), retaliation in violation of the Fair Employment and Housing Act (Gov. Code § 12940(h)), whistleblower retaliation (in violation of Labor Code §§ 1102.5, 6310), failure to engage in a timely and good faith interactive process (in violation of Gov. Code § 12940(n)), and failure to accommodate (in violation of Gov. Code § 12940(m)). Barrie claimed that when he was hired in August 2005, he was immediately recognized for his exceptional attention to detail and work product. He also claimed that he received consistently positive performance evaluations and that his work was regarded to be "awesome." He alleged that as a result, he was promoted to a staff services analyst position in 2008. Barrie also alleged that each performance evaluation completed from 2005 to the present rated him as "Exceeding Expectations" regarding his job performance. However, he claimed that when Jones became new manager of the regional office, he was discriminated against due to his disability and retaliated against as a whistleblower. He alleged that as a result, he endured a hostile work environment. Specifically, Barrie claimed that he complained to Jones about the presence of the chemicals that had begun to be used in the office again and the negative impact the chemicals were having on his health. However, he claimed that, in November 2010, Jones told him to stop sending her emails about his exposures and harmful allergic reactions that he was having to the chemical cleansers being used in the office. He also claimed that Jones specifically threatened to move his work location to one where there were even more toxic chemicals present, if he kept complaining. He alleged that as a result, he began to elevate his complaints to the regional manager, Richins, who initially assured him that unauthorized chemical usage in the regional office would not continue. However, Barrie claimed that he continued to discover usage of prohibited chemicals in the workplace. Barrie stated that throughout 2011, he reported repeated instances of unapproved chemicals being present in the regional office. He claimed that he also reported numerous concerns regarding the behavior of Jones, who was using profanity, demeaning coworkers, and making homophobic remarks about him. Plaintiff's counsel noted that numerous witnesses corroborated Barrie's claim that Jones used profanity on a regular basis. One witness testified that Jones loudly and repeatedly referred to Barrie as a "mother f---ing f---ot" while walking through the workplace. Barrie claimed that he also reported numerous safety concerns, including cigarette ash trays being too close to building entryways and the burning of scented candles in government buildings, but that his complaints to Richins went unaddressed and did not result in any formal investigation. In addition, he claimed that the janitor again used Comet to clean the Sutter/Sierra region office's men's restroom on Jan. 3, 2012, in violation of his approved reasonable accommodation, causing him to suffer an adverse allergic reaction. As a result, he filed an injury report, and complained about the event as another example of his reasonable accommodation not being enforced by management. Plaintiff's counsel contended that in retaliation, Richins moved Barrie's work station into the "Old Landscape Barn" office building the very next day. However, the office was freshly painted and carpeted, which allegedly caused another allergic reaction. As a result, while on his forced medical leave, Barrie went to CalTrans' District 3 EEO office in Marysville to complain about the presence of prohibited chemicals. Plaintiff's counsel noted that, in response to Barrie's complaints, CalTrans' District 3 Safety Office personnel conducted a surprise inspection of the regional office and did find several chemicals and scented items that clearly were prohibited by Barrie's reasonable accommodation and in violation of state laws. Counsel also contended that internal Caltrans documents from the EEO office revealed that there was a request from Barrie's managers to impose discipline on Barrie because he went "outside of the chain of command" when he complained directly to the EEO office. Counsel further contended that although the unannounced inspection confirmed many of Barrie's complaints, CalTrans continued to refuse Barrie's return to the regional office location, where he successfully worked before he was put in the Old Landscape Barn, but was eventually allowed to return after the office was tested by an industrial hygienist. However, plaintiff's counsel noted that Barrie was not shown the industrial hygienist report and that although Barrie was informed that the "whole building" was tested and that it was determined that the lobby would be the best fit for Barrie, in reality, the industrial hygienist tested only one location, and it was not in the lobby. In addition, plaintiff's counsel noted that Caltrans' managers claimed at trial that Barrie was moved to the lobby because they did not want to have to close their office doors when having confidential conversations. Plaintiff's counsel further contended while working in the lobby, Barrie continued to notice a marked increase in the number of exposures that negatively impacted his health, including instances of mysterious perfume smells located around Barrie's work station. Counsel contended that although the investigation into Barrie's internal complaint under Caltrans' Workplace Violence Prevention policy was allegedly unable to substantiate the complaint, at trial, Barrie's current and former co-workers, Melissa Peterson and Renay Fortenberry, testified that Barrie's workstation was intentionally sprayed with scented products numerous times during his past employment and that they were shocked by that conduct given that Barrie had chemical sensitives. The witnesses also confirmed that Jones was responsible for the spraying and gave an order that the staff needed to cover it up. Plaintiff's counsel asserted that despite Jones' actions, Caltrans never terminated her. However, Jones is no longer the regional office administrator. Counsel contended that, instead, Barrie was effectively ostracized and marginalized, as Barrie was forced to work at the Old Storm Water Cottage, in Marysville, until he was relocated to his home in the summer of 2015. The plaintiff's occupational medicine specialist opined that Barrie's chemical allergies were a real physiological disability. The expert pointed the jury to medical records reflecting numerous doctors having made similar diagnoses of Barrie for years going back to the 1980s. Defense counsel argued that Barrie did not really have a disability and that it was all just in his head. Defense counsel noted that although the plaintiff's witnesses testified that Jones sprayed Barrie's work area with presumably perfume, they did not know if the product was perfume or some other scented product. Counsel contended that whatever was sprayed, Barrie had no reaction to the material that was applied to his work area. Defense counsel also contended that Caltrans and Barrie both first learned of the incident three years after it occurred, after it was first reported by the witnessing employees during 2016 depositions, and counsel noted that the same employees allegedly overheard Jones refer to Barrie with the offensive and derogatory terms. Defense counsel argued that regardless of whether or not Barrie had a disability, Caltrans attempted to accommodate Barrie with regard to his alleged multiple chemical sensitivities, but that it was impossible to do so. Thus, counsel argued that Barrie was simply manipulating the legal system in an effort to get his way in the workplace and become a millionaire.
Barrie was informed that due to his location in the lobby, he would be expected to perform receptionist functions that were outside his job classification. He claimed that the change of his duties resulted in him feeling demoted and humiliated. He also claimed that he was told that he would no longer be allowed to continue working on the "winter timekeeping" assignment that he had been doing for the past five years. (The "winter timekeeping" generated Barrie approximately $8,000 in additional overtime compensation above his pay.) He claimed that the assignment was taken away in retaliation for his complaints and because of his disability. Barrie claimed that he was extremely distressed by his March 6, 2012 return to work. After seeing his doctor, Barrie was provided two weeks of stress-related medical leave. Barrie also began seeking mental health treatment around that time. When Barrie returned to work in the lobby, he was seated next to a co-worker known to be close friends with Jones. However, Barrie claimed that the co-worker began a campaign of passive-aggressive harassment directed at him, which included muttering mean spirited comments under her breath, meanly staring, slamming objects, and celebrating when Barrie went on break. Barrie also claimed that Jones continued her negative and profane comments about him during that same period of time. The plaintiff's expert social psychologist testified regarding workplace bullying and workplace violence. The expert also opined about the telltale characteristics of bullies and explained the psychological dangers of failing to follow workplace-violence policies. The expert further opined that a hypothetical work environment resembling Barrie's and the failure to follow policies hypothetically resembling those of Caltrans' could foster workplace violence and cause severe harm to employees. Plaintiff's counsel noted that Barrie remains currently employed and is telecommuting from his home in Nevada City. However, counsel contended that Barrie suffers from severe non-economic damage as a result of the harassment, discrimination, retaliation, and failure to accommodate at Caltrans. Barrie described his symptoms as including post-traumatic stress disorder flashbacks, insomnia, anxiety, bouts of depression, chest pains, and weight loss. However, he acknowledged that his problems have nearly completely abated now that Jones has left the office and that the regional manager retired. Thus, Barrie sought recovery of economic damages, which was limited to the recovery of the compensation he would have earned from working overtime on the "winter timekeeping." He also sought recovery of non-economic damages for his past emotional pain and suffering. Defense counsel argued that Barrie's winter timekeeping duties were taken away for legitimate business reasons that it was not motivated by discriminatory animus. However, the regional manager testified that Barrie would not have lost the winter timekeeping if he had not gone out on leave. The defense's expert forensic psychiatrist opined that Barrie was a malingerer that was imagining his medical illness in order to control others and get attention. However, the expert admitted on cross-examination that he was not told about the depositions or trial testimony of the co-workers who substantiated the spraying of perfume and alleged horrendous treatment of Barrie. As a result, the defense expert conceded that this information would undermine his testimony and conclusions.
The jury found for Barrie and determined that his damages totaled $3,044,413.
John R. Barrie: $44,413 Personal Injury: past economic loss; $3,000,000 Personal Injury: past emotional distress
Thomas M. Anderson
$100,027.62 (C.C.P. 998)
This report is based on information that was provided by plaintiff's and defense counsel.