Facts

Plaintiff Brian Lewis worked as an unpaid intern for defendant City of Benicia's water treatment plant from March to July 2008. From July to Oct. 2008, plaintiff was given a paid internship at the plant.

During the summer of 2008, plaintiff reported that his supervisor Steve Hickman had sexually harassed him. Subsequently, the union filed a grievance on his behalf. An investigation ensued.

In 2009, plaintiff reported that his replacement supervisor Rick Lantrip had subjected him and his co-workers to a hostile work environment. The union again filed a grievance on plaintiff's behalf and an investigation ensued.

Lewis sued the City, Hickman, and Lantrip for sexual harassment, failure to provide a work environment free from sexual harassment, retaliation, and intentional infliction of emotional distress.

On summary judgment, Hickman and Lantrip were dismissed on the basis that their conduct was not sufficiently severe or pervasive to rise to the level of sexual harassment. On a motion for judgment on the pleadings filed the day before trial started, the claims for sexual harassment, failure to provide an environment free from sexual harassment, and intentional infliction of emotional distress against the City were dismissed by the judge. Trial proceeded on the retaliation claim against the City.

PLAINTIFF'S CONTENTIONS:
Plaintiff Brian Lewis, 44, was an intern from March – July 2008 at the City of Benicia water treatment plant working for no pay but instead for work credit hours required for water treatment operator certification. From July – October 2008, plaintiff was also paid $12.50 per hour under a specific, 60-day program, but Lewis was given multiple assurances that because of his outstanding performance he would be allowed to continue working at the water treatment facility beyond the 60-day program.

During the summer of 2008, plaintiff reported to the City that his direct supervisor, water treatment plant supervisor Steve Hickman, was making sexual advances toward him, including displaying same-sex pornographic images on the computer. This was the second such report about sexual content on the supervisor's computer. Hickman's conduct toward Lewis also included dozens of gifts, including underwear, wine, romantic CDs, shirts, cuff links, and picnic baskets, daily purchases of lunch, and requests by Hickman to kiss Lewis. When Lewis' report of Hickman's inappropriate conduct was ignored, the union filed a grievance on his behalf which finally prompted the City to hire an outside investigator. Lewis was a key witness in this investigation that culminated in Hickman choosing early retirement in lieu of termination.

Despite pre-investigation assurances of continued employment, when Lewis' 60-day program ended in Oct. 2008--mere days following his key role in the Hickman investigation--Lewis was told to leave the water treatment facility. When Lewis asked if he could stay on in an unpaid capacity to continue to earn the necessary work credit hours for certification, he was categorically told no. Lewis ultimately complained about retaliation to HR and the Director of Public Works, and was grudgingly allowed to return to the water treatment facility in Jan. 2009 under highly restrictive parameters.

Upon Lewis' return, he was immediately accused of poor attendance (that was belied by the City's own attendance records), theft of a laptop computer (which theft was also reported to and investigated by the Benicia Police Department), sexual harassment of the water treatment facility secretary, and poor work performance. Lewis' co-workers were told to not talk to him. When Lewis sustained an on-the-job injury in May 2009, City officials provided false and misleading information to the workers' compensation investigator and participated in the decision to deny Lewis' workers' compensation claim.

Also during the 2009 period of employment, Lewis and the other workers at the water treatment facility were subjected to a hostile work environment perpetrated by Hickman's replacement supervisor, Rick Lantrip, who routinely distributed sexual content emails and jokes, and engaged in virtual daily, lengthy massages of the water treatment facility secretary in full view of all employees. Like Hickman, pursuant to a union grievance, Lantrip was investigated by the outside investigator and he chose early retirement in lieu of significant demotion for his inappropriate conduct.

DEFENDANT'S CONTENTIONS:
Plaintiff Brian Lewis, 44, was an unpaid volunteer from March to July 2008 at the City of Benicia water treatment plant. After a few months volunteering, the city offered Lewis a temporary 60-day paid internship at the water treatment plant at $12.50 an hour. He accepted the job and worked from July 14 to Oct. 22, 2008.

In Sept. 2008, Lewis participated in an investigation of the plant supervisor, Steve Hickman, who Lewis claimed had sexually harassed him by downloading and viewing pornographic material on his computer. Lewis reported the behavior to the union president who reported it to the city. The city hired an outside investigator to conduct an investigation of the allegations against Hickman. Lewis was interviewed by the outside investigator in Sept. 2008.

When Lewis' 60-day paid internship ended in Oct. 22, 2008, Lewis claimed that his position had ended in retaliation for having reported Hickman's alleged inappropriate behavior. Thereafter, Lewis returned as an unpaid volunteer at the water treatment plant in Jan. 2009, but claimed he was only allowed to return as a volunteer after he complained about retaliation.

Lewis also claimed that he was sexually harassed by Hickman's replacement, Rick Lantrip, when he returned as an unpaid volunteer from Jan. 2009 to May 2009.

Finally, Lewis also claimed that during the second volunteer stint, he was accused of stealing a city laptop, harassing a co-worker and poor work performance and that he was denied workers' compensation benefits when he sustained an alleged on-the-job injury.

The city proved that it did not retaliate against Lewis because he worked the full 60 days as an intern and the city had no obligation to allow him to return as an unpaid volunteer. Despite that fact, the city did allow Lewis to volunteer again from Jan. to May 2009 so he could obtain valuable work experience that the State of California Department of Public Health requires for individuals seeking certification as water treatment operators.

In 2009, Lewis was not an employee of the city, and at all relevant times he did not possess the necessary qualifications and certifications to work as a water treatment operator at the City of Benicia's water treatment plant. Lewis was attempting to learn the field of water treatment by volunteering at the plant, but Lewis failed the T2 certification examination. He never applied for employment as a water treatment operator at the City of Benicia.

Damages

Lewis sought recovery for past and future wage loss and severe emotional distress.

Result

Judgment for defendant. The jury found that the City had taken adverse employment actions against Lewis in retaliation for his participation in the Hickman investigation, but that those actions were not a substantial factor in causing harm to Lewis.

Other Information

FILING DATE: Sept. 17, 2009. Lewis was precluded by the court from presenting any evidence regarding Hickman's conduct that led to the investigation and retaliatory conduct. Lewis was also precluded by the court from presenting any expert witness testimony on emotional distress or physical injuries arising from the retaliatory conduct or the causal connection between the retaliation and Lewis' injuries. Lewis was also precluded from presenting any evidence regarding Lantrip's conduct.

Deliberation

two hours

Length

10 days