Supervisor’s Rude And Insensitive Behavior Toward Disabled Employee Does Not Constitute Harassment[br]

In Roby v. McKesson HBOC, (— Cal.Rptr.3d—, 2006 WL 3775897, Cal.App. 3 Dist., Dec. 26, 2006), a California Court of Appeal considered a mentally disabled employee’s claim of workplace harassment stemming from the behavior of her supervisor who openly disliked her and treated her rudely and insensitively.

The Court found that because most of the alleged harassment was conduct that fell within the scope of the Supervisor’s management duties, and because it was not directed at the employee’s disability, nor did it occur in a pervasive manner, the evidence did not support a claim of harassment.


Charlene Roby was a 25-year employee of McKesson HBOC (“McKesson”), a pharmaceutical distribution company, when she developed panic disorder—a psychiatric disability that causes an extreme state of fear—in 1998. The disability caused Roby to begin missing significant time at work.

In 1999, Karen Shoener was promoted and became Roby’s supervisor. Roby and Shoener already knew and disliked one another. While working as her supervisor, Shoener publicly insulted and reprimanded Roby, excluded her from events involving other employees, and refused to speak to her.

In 2000, Roby was terminated for excessive absences.

Roby filed a lawsuit under the California Fair Housing and Employment Act (“FEHA” ), alleging that she was discriminated against because of her disability and that she was harassed by her supervisor. A jury made multiple findings in Roby’s favor, which resulted in awards totaling several million dollars from McKesson and Shoener.


In the published portion of its opinion, the Court of Appeal considered whether the evidence supported the jury’s awards based on harassment: $600,000 from McKenna and $500,000 from Shoener.

Reviewing FEHA, the Court noted that the Act makes it illegal for an employer or supervisor to harass an employee because of a mental disability or medical condition. Citing Fisher v. San Pedro Peninsula Hospital, (1989) 214 Cal.App.3d 590, the court said a harassment claim under FEHA must demonstrate that the “conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee.” Furthermore, the court continued, harassment cannot be conduct necessary for the performance of a supervisory job, but must be conduct outside the scope of necessary job duties, citing Reno v. Baird, (1998) 18 Cal.4th 640.

The Court determined that most of Shoener’s actions against Roby fell within the scope of her job duties. Although the evidence shows that she treated Roby with scorn and contempt and a lack of sympathy for her disability, the court added, “This is not sufficient to create liability for harassment based on a hostile work environment.” FEHA does not protect employees from rude or obnoxious behavior by supervisors, the Court said, but is intended to stop harassment that is pervasive and discriminatory. Thus, Shoener’s conduct toward Roby was not harassment unless it was based on and directed toward her mental disability. There was no evidence that Shoener referred to Roby’s disability in derogatory terms. Additionally, Shoener’s insulting remarks about Roby’s hygiene and appearance were not evidence of harassment, the Court said, because they were occasional comments, not part of a pervasive pattern.

The Court found there was insufficient evidence to support a finding of discriminatory harassment by Shoener, and vicariously, McKesson, against Roby, within the meaning of FEHA. The jury’s verdict was therefore stricken.

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