Ex-Atascadero State Hospital nurse loses harassment lawsuit

Following a three-week trial, a jury ultimately found that a former nurse at Atascadero State Hospital was not harassed by a supervising psychiatric technician, and that the California Department of State Hospitals was not responsible for creating a hostile work environment.

Janet Ochotorena, 53, was a registered nurse at the hospital — which treats male criminal offenders who have been deemed mentally incompetent to stand trial — from 2008 to 2013, when she left her job and unsuccessfully applied for disability retirement.

She alleged that a psychiatric technician, Alfred Sweet, made sexist statements to her, including calling her “bitch” and “honey” in front of other employees before she complained to supervisors.

Following the complaints, which she testified went nowhere, Sweet began retaliating against her by abandoning her while she was in dangerous situations with patients, such as in shower stalls and hallways, she said.

He also began stalking her in the hospital parking lot, causing her anxiety, post-traumatic stress, nightmares and concentration problems, Ochotorena testified.

She sued Sweet and the Department of State Hospitals, seeking unspecified damages and reimbursement for attorney fees.

Attorneys for Sweet and the state argued that Ochotorena failed to prove any of the incidents happened, didn’t exhaust her administrative remedies, and that any emotional or mental distress was caused either by pre-existing conditions or arose out of the scope of her employment.

The trial lasted 21 days, and the jury deliberated for a day and a half before ruling in favor of the state.

In reaching the verdict, the jury was instructed to answer a list of 18 questions; the answers guided their rulings on each of the plaintiff’s causes of action: Sweet’s alleged harassment based on Ochotorena’s gender, his subsequent retaliation, and the Department of State Hospital’s failure to prevent that harassment and retaliation.

In California civil trials, the 12 jurors do not need to reach a unanimous decision; a verdict requires the consensus of eight jurors.

While the jury unanimously answered ‘yes’ to the question of whether Ochotorena complained through the proper channels and filed an Equal Employment Opportunity claim, the majority found that Ochotorena did not prove it was more likely than not that Sweet harassed her based on her gender and that the Department of State Hospitals subjected her to an adverse employment action.

Given the jury’s majority findings, Ochotorena’s lawsuit was rejected in full, and she is not entitled to any of the damages she sought for mental, physical and emotional stress, and reimbursement of attorney fees.

Before they were dismissed, jurors were polled on their individual responses to the questions. They stated they were split 9-3 on the issue of harassment and 8-4 on the issue of whether the state agency created an adverse work environment.

Ochotorena declined to comment to The Tribune following the verdict. Her co-counsel, Larry Organ, said outside the courtroom, “It’s sad that (the jury) didn’t see the evidence the way we saw it. There was a lot of information they chose not to consider in their verdict.”

He applauded all the jurors, however, adding that it appeared they carefully considered the testimony during their deliberations.

Deputy Attorney General Elisabeth Frater, one of the attorneys representing the state, declined to comment following the verdict, citing California Department of Justice policy, and referred comment to the Department of State Hospitals.

A spokesman for that agency did not have any comment on the case when contacted by phone Thursday.

Ochotorena’s case is one of a few civil cases to come from ASH in recent years.

In May, a former ASH clinical social worker sued the Department of State Hospitals after she was assaulted by a patient she claims she was assigned to treat as retaliation for filing a whistleblower complaint to the State Personnel Board.

Her complaint claimed the hospital pushes to release patients who don’t meet the criteria for release.

That case remains ongoing.

In October, a former psychiatric technician at ASH lost her weekslong wrongful termination trial against the state Department of Mental Health and the Department of Corrections and Rehabilitation.

Since The Tribune first reported Ochotorena’s lawsuit in January, two other current or former ASH staffers talked with a reporter on condition of anonymity to say they have also filed harassment and discrimination claims with the State Personnel Board that they expect will go to trial.

The Tribune has not yet been able to verify those claims.

This story was originally published February 15, 2016 at 9:49 AM with the headline "Ex-Atascadero State Hospital nurse loses harassment lawsuit."