(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)
iv. Failure to follow its own policies is evidence of pretext
Defendant’s failure to follow its own policy is evidence of pretext. See Hill v. Seaboard Coast Line Railroad Co., (11th Cir. 1989) 855 F.2d 804, 811; Christine v. Foremost Ins. Co., 785 (7th Cir. 1986) F.2d 584, 586-87. Here, Defendant totally failed to follow its own mandatory policies to investigate claims of harassment. There was never any investigation into Plaintiff’s claims of harassment. Mr. Davis never did anything to investigate Plaintiff’s claims of harassment after she claimed she was harassed. He never informed Team Member Services that Ms. Smith was claiming she was being harassed. He never obtained any written statements from Ms. Smith about the harassment. He never reported any results of any harassment investigation to Ms. Smith. No one from Defendant ever talked to Plaintiff about her complaints of harassment, got a written statement or told her of the results of any investigation into her complaints. All of which was required to do.
DEFENDANT’S LEGAL AUTHORITY AND FACTUAL CLAIMS ARE WRONG
Defendant mis-cites the legal authority on establishing a prima facie case. Defendant says timing is not enough to show a prima facie case. (pg. 12). First, Plaintiff has much more evidence than timing. However, the cited cases do not say that. Loggins v. Kaiser Permanente Intern., (2007) 151 Cal. App. 4th 1102, 1112-1113 says the opposite. Timing is enough to show a prima facie case, just by itself is not enough to show enough pretext. Arteaga v. Brink’s Inc., (2008) 163 Cal. App. 4th 327, 353 says the same thing. Timing is enough to show a prima facie case, but by itself is not enough pretext. Id.
Further, Defendant tries to claim that Mr. Davis’s and Mr. Chan’s comments were just stray comments. These were not stray comments, they were direct comments by a decision maker, near the time of the decision that is probative of discriminatory intent. Defendant’s case involve ambiguous statements made well before the adverse action by non-decision makers: e.g., “[t]his is 1994, haven’t you ever heard of a fax before?” Horn v. Cushman & Wakefield. Inc., (1999) 72 Cal. App. 4th 798, 804 & 809. (See Part 15 of 19.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.