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TURNING EMPLOYER WRONGS INTO EMPLOYEE RIGHTS

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Should sex harassment of co workers be allowed in evidence?

On May 15, 2013 the Court of Appeals handed down McCoy vs. Pacific Maritime Association (B209953) which involved a claim against PMA and he union employer for numerous violations of the California Government Code, including sexual harassment in the workplace. the plaintiff testified that one of her supervisors in particular disrespected her by talking down and putting his feet on her desk, yelled at her in front of others and called her stupid. When she complained she was told it was just part of his personality and she should go home. The co worker would comment on the buttocks of other females after they left the room and used terms like ‘nigger ass” and “J-Lo ass”.  After quitting, and initiating a union grievance and eventually, a lawsuit. She alleged sexual harassment and retaliation in violation of the Fair Employ and Housing Act, negligent supervision, hiring and retention and intentional infliction of emotional distress.

The trial court refused to allow in evidence of other employees’ claims of retaliation and harassment. (These other employees had entered into a prior, confidential settlement agreement and were claiming that they were retaliated against for entering into the settlement). One basis for the court’s ruling was that evidence of other women harassed or discriminated against was not relevant as to this plaintiff’s claim of retaliation. the appellate court reminded us that the relevance of evidence of discrimination or harassment by defendants against non parties is “fact based and depends on many factors”, including how closely related the evidence is to the facts and theory of plaintiff’s case. Thus, the trial court has discretion, for example, to find evidence of discrimination and harassment based on race and gender has little relationship to a retaliation claim.

In sex harassment, there is no requirement that a plaintiff be the direct target; however, if the sexual misconduct involves or is aimed at others then it is considered less offensive and swevere than if it had been directed at the plaintiff. In these cases, the courts want to see that the conduct permeated the plaintiff’s direct work environment. However, on the facts in this case the court concluded that the claims of sexual harassment against others was very modest. Although crude and offensive, these were not so severe and pervasive so as to alter the conditions of appellant’s employment. Fisher vs. San Pedro Peninsula Hospital, 214 CA3d 590 (1989).

However, the court notes that there may have been retaliation against two other female employees similarly situated to this plaintiff. The plaintiff here argues that the employer retaliated against her and other women for filing a prior federal lawsuit, the protected activity under her current retaliation claim. Intent is always an element of an unlawful retaliation claim, and therefore evidence that a defendant intentionally retaliated against other employees for the same conduct would be relevant.

The trial court was ordered by the appeals court to hold an evidentiary hearing to determine the similarity of other claims to appellants before excluding it. This is known as “me-too”evidence and is probative of the employer’s intent in retaliating against the plaintiff in this case. Pantoja vs. Anton 298 CA4th 87, 113 (2011).

The trial court had granted a new trial to the defendants based, in part, on claims that the plaintiff’s attorney had engaged in improper conduct, such as showing a picture of a decapitated man in closing argument. This photo was not in evidence and had not been shown to opposing  counsel.

Further inflaming the judge (if not the jury), the attorney implied many times (against a court order apparently) that race and gender played a role in respondent’s conduct. However, the court of appeal reminded all that retaliation is retaliation, and those factors do not matter.

This case is a mix of interesting facts and procedural rulings regarding things like damages. The jury had awarded 88 years’ worth of lost wages and the trial court took grave exception to this amount and logic. Great care must be utilized in drafting jury instructions so that they are at once clear to the jury and, on review, do not leave ambiguity as to the total amount awarded in any of a number of employment damages categories. In a future blog, we’ll discuss all of the types of damages which can be awarded.