Facts

Fred Denenberg, a gay male, worked as an Assistant CalTrans Administrator for the California Department of Transportation (CalTrans). Since his hiring in 1998, he consistently received excellent performance reviews. Over about a year and a half, Mr. Denenberg claimed that he was harassed based on his sexual orientation. The harassment consisted of perceived sexual advances, derogatory comments about his orientation and a degrading homophobic email.

Since about 1999, Mr. Denenberg repeatedly sought a promotion to the Associate level, which was the level immediately above his Assistant level. The Assistant level position was an entry level position and it was typically expected that a promotion to Associate would occur in a relatively short time after reaching the Assistant level. But Mr. Denenberg's promotion requests were repeatedly denied. Among other reasons, Mr. Denenberg was told that budgetary constraints within CalTrans prevented him from being promoted.

On July 1, 2004, the claimed budgetary constraints and promotion freeze were lifted. Deputy Director of Traffic Operations Joseph Hull promised Mr. Denenberg at that time that his promotion to the Associate level would be processed. By late August 2004, Mr. Denenberg's direct supervisor had still not completed processing the paperwork needed for Mr. Denenberg to receive the promised promotion. Mr. Denenberg's complaints to Mr. Hull about this fact fell on deaf ears. Concluding that CalTrans was not going to promote him, Mr. Denenberg sought legal counsel at that time from Paul Jackson, Esq.

On Aug. 27, 2004, Mr. Jackson wrote a letter to Cal Trans' upper management, which both informed Cal Trans of the sexual orientation harassment and claiming that CalTrans had serially failed to promote Mr. Denenberg because of his sexual orientation. After CalTrans received this letter, Mr. Denenberg's superiors and coworkers began to retaliate against him, including accusations of misconduct against Mr. Denenberg.

In late September 2004, Mr. Denenberg's psychologist placed him on a leave of absence because of depression and stress secondary to problems at the workplace. As a result of this leave of absence, CalTrans stopped processing Mr. Denenberg's promised promotion. In August of 2005, Mr. Denenberg was released to return back to work on a telecommuting basis. CalTrans, through Mr. Hull, denied the requested accommodation of telecommuting without giving it a chance. Then, Mr. Denenberg's psychologist adjusted the accommodation request so that Mr. Denenberg could return back to the workplace provided that his face-to-face interaction with various coworkers who had retaliated against him was minimized. Mr. Hull also denied this accommodation, despite that there were other offices or desks within the facility that could have been used to accommodate Mr. Denenberg's needs.

When Mr. Denenberg was finally released to return back to work without any restrictions, CalTrans responded by claiming that it had eliminated Mr. Denenberg's position. Over approximately one year, CalTrans offered Mr. Denenberg six other positions that were equivalent or nearly equivalent of the position he was working at when he began the leave of absence. Mr. Denenberg declined all of these positions. At the time of trial, Mr. Denenberg was still employed at CalTrans but on an administrative leave.

PLAINTIFF'S CONTENTIONS:
Plaintiff claimed that CalTrans' refusal to promote him in September 2004 was in retaliation for his Aug. 27th, 2004 letter complaining of harassment and discrimination and that CalTrans' reason for not promoting him (that he went out on leave) constituted retaliation for seeking accommodations and disability discrimination. Plaintiff also contended that CalTrans failed to accommodate him both by not allowing him to telecommute and by not allowing him to return to the office and work at a different location. Plaintiff also contended that he was harassed because of his sexual orientation.

DEFENDANT'S CONTENTIONS:
The defendant denied any wrongdoing. It alleged that plaintiff had not been promoted because of the state budget crisis, the CalTrans budget, and lack of workload. It also claimed that plaintiff had not been eligible for the promotion he sought. It contended that it had begun processing a promotion for plaintiff at the time plaintiff took his leave, but that it could not promote someone who was not working. Finally, defendant denied knowledge of the claimed harassment.

CalTrans also claimed that any emotional distress Mr. Denenberg suffered was because of other stressors, such as a tumultuous relationship with his domestic partner who suffered from chronic medical problems. CalTrans introduced evidence of domestic discord, including allegations of domestic abuse, and also impeached plaintiff's testimony that he had never been involved in any other lawsuits by introducing numerous lawsuits plaintiff had either filed or were filed against him.

Injuries

The plaintiff claimed emotional distress, lost earnings and medical damages.

Result

The jury awarded plaintiff $119,000 in economic damages and $25,000 in non-economic damages for a total of $144,000. The court also granted plaintiff's post-verdict motion for equitable relief, ordering defendant to promote plaintiff to an associate level position within the locale subject to plaintiff's successful completion of the standard probationary terms that would otherwise be applicable to any new employee. It further ordered that upon the successful completion of the probationary period, plaintiff's promotion would be retroactive to Jan. 31, 2006, with all related benefits, seniority, and service credits also retroactive to that date. Finally, the court awarded plaintiff approximately $490,000 in statutory attorney's fees and an additional approximately $133,000 in costs of suit. Thus, the total judgment is approximately $767,000 plus the equitable relief of a retroactive promotion. That equitable relief order will result in an additional approximately $12,000 of annual earnings for Mr. Denenberg through his work life, as well as adjustments in his retirement benefits.

Other Information

Plaintiff's counsel Paul Jackson litigated the case on Mr. Denenberg's behalf. The day before trial call, Mr. Denenberg retained David deRubertis to serve as lead trial counsel. CalTrans' motion for new trial has been denied. CalTrans has appealed.

Length

4 weeks