On Point - A New Take On Legal News

Court Slaps Down $1.7M Award to Spanked Sales Rep

Janet Orlando

A California appeals court has thrown out a $1.7 million award to an alleged victim of a hostile spanking environment, finding the jury may have failed to consider whether a former alarm company saleswoman was paddled during staff meetings because of her gender.

There was evidence to support the defense theory that the spankings of Janet Orlando were part of a misguided motivational exercise, the 5th District Court of Appeal said in granting Alarm One a new trial, and the trial court improperly instructed the jury on the elements of a sexual harassment claim.

“Under the instructions given, the jury could have found for plaintiff merely because offensive sexual comments were made or conduct was tinged with offensive sexual connotations, without finding plaintiff was subjected to the conduct because she was female,” the court explained in an unpublished opinion.

“The purpose of the [Fair Housing and Employment Act] is to eliminate invidious discrimination, not to ban all allusions to sex in the workplace,” it added.

The Fresno County Superior Court jury in April 2006 found Alarm One liable for sexual harassment and Rob Harlan and Nina Correia -- the supervisors who delivered the spankings with a rival alarm company's yard sign -- liable for sexual battery. The award to Orlando included $1.2 million in punitive damages.

Justice Brad R. Hill, writing for the appeals court, also wiped out the sexual battery verdict because it was inconsistent with the jury's finding that Harlan and Correia did not assault Orlando or commit a simple battery on her.

Orlando, who was 52 at the time, received her spankings while she worked at the Fresno office of Alarm One. The spankings, she argued, were “based on ... sex” in part because men in the audience shouted derogatory comments such as “Spank that bitch. Slap that ho” while women were spanked, but made no such comments when men were spanked.

On the special verdict form, the jury answered “Yes” to the question “Was Plaintiff subjected to sexually harassing conduct?”

But Hill said there was evidence that "The spankings were just one of a number of 'crazy' things the sales force did to motivate the salespersons and get them 'in the mood' to sell," and concluded that because of the instructional error,

the jury may have considered all offensive conduct, including exposure to profanity or sexual comments that were not gender-related. If the jury had considered only conduct that occurred because respondent was female, it might have concluded that conduct was not “sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment.”

While the appeal was pending, Orlando filed a separate breach-of-contract and fraud suit against Alarm One. The company, she alleged, had reneged on a post-verdict agreement to settle the sexual harassment case for $1.4 million.

According to Orlando's attorney, Alarm One wanted another $200,000 to $400,000 knocked off the award. In light of the appeals court decision, that doesn't seem like too bad a deal now.

UPDATE

The California Supreme Court denied Orlando's petition for review 3/26/08.

Other Spanking Case Sources

By Matthew Heller
1/14/08

Ark. Inheritance Law out of Sync with Fertility Science

A probate law passed before the birth of the first test-tube baby does not allow a child conceived through in vitro fertilization to inherit from a father who died before he was born, the Arkansas Supreme Court has ruled.

The court interpreted the law at the request of a federal judge handling a death benefits case filed by the child's mother, Amy Finley. Her husband died in July 2001 without leaving a will and, after using previously frozen embryos created with her eggs and his sperm, she gave birth in March 2003.

Ark. Code Ann. Section 289210(a) provides that “Posthumous descendants of the intestate conceived before his or her death but born thereafter shall inherit in the same manner as if born in the lifetime of the intestate.”

The statute does not define the word “conceived,” but Finley argued that her child was conceived at the time her egg was fertilized in vitro with the father's sperm. That conforms to the medical definition of conception as “The formation of a viable zygote by the union of a spermatozoon and an ovum.”

The Social Security Administration, which denied Finley's benefits claim, said “conception” as used in Arkansas's intestacy law means the onset of pregnancy or the successful implantation of an embryo in the womb.

But in an advisory opinion, the state Supreme Court did not choose either of the parties' definitions because “we can definitively say that the General Assembly ... did not intend for the statute to permit a child, created through in vitro fertilization and implanted after the father’s death, to inherit under intestate succession.”

“Not only does the instant statute fail to specifically address such a scenario,” the court continued, “but it was enacted in 1969, which was well before the technology of in vitro fertilization was developed.” Louise Brown, the first test-tube baby, was born in 1978.

Finley also invoked a statute which says, “Any child conceived following artificial insemination of a married woman with the consent of her husband shall be treated as their child for all purposes of intestate succession.” But Justice Paul E. Danielson, writing for the court, said the law did not refer to the “completely different” procedure of in vitro fertilization.

In the first U.S. case on point, the Massachusetts Supreme Judicial Court held that under limited circumstances, posthumously conceived children have inheritance rights under state intestacy law. Woodward v. Commissioner of Social Security, 760 N.E.2d 257 (2002).

Danielson indicated some dissatisfaction with the current state of Arkansas law. “[W]e strongly encourage the General Assembly to revisit the intestacy succession statutes to address the issues involved in the instant case and those that have not but will likely evolve,” he said.

By Matthew Heller
1/14/08