Articles Posted in Sexual Harassment

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

Defendants’ Motion In Limine to Exclude Evidence of Defendant Tamara Black’s Prior Sexual History
INTRODUCTION

Defendants XYZ Security, Ken Brown, Tim Lee, Sondra Green, and Tamara Black (collectively “Defendants”) respectfully move this Court, in limine, to preclude Plaintiff, Bobby White (“Plaintiff”), his counsel, and witnesses from commenting upon, inquiring into, and introducing evidence at trial relating to Ms. Black’s alleged past sexual conduct with anyone other than Plaintiff, and prior complaints of sexual harassment Ms. Black made unrelated to Plaintiff. This motion is made on the grounds that evidence of past sexual conduct with individuals other than Plaintiff is not relevant to the issues in this case. Whether Plaintiff was terminated because of his race and gender does not turn on the private sexual behavior of Ms. Black. The admission of such evidence, introduced by Plaintiff in an effort to bolster his claims, also is prohibited as a matter of law.

This motion is based on the California Evidence Code sections 350, 1106, and 352 the California Code of Civil Procedure section 2017.220, the memorandum of points and authorities set forth below, the papers and records filed herein, and such oral and documentary evidence as may be presented at the hearing of this motion.

STATEMENT OF FACTS
Plaintiff has sued his former employer, XYZ Security and various of his co-workers, following his termination in October 2005 for violation of XYZ’s harassment and discrimination policy.

Continue Reading ›

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

SUMMARY OF FACTS

Plaintiff was falsely accused of sexually harassing defendant Tamara Black. Defendants’ investigations into these allegations were incredibly sloppy and shoddy, and not in compliance with their own policies. Defendants, through their expert witness disclosure, have declared that Hall would offer testimony on the following subjects:

It is anticipated that Ms. Hall will offer testimony relating to human resource matters, including but not limited to, the prevention of discrimination and harassment, and responding to complaints of discrimination and harassment, effective investigation procedures generally and particularly as the apply to the investigations done in this case. Ms. Hall will be asked to review any opinions offered by Plaintiff’s expert and offer her own opinions in rebuttal.

LEGAL ARGUMENT
A. Ms. Hall’s Testimony Should Be Excluded To The Extent It Consists of Improper Legal Conclusions, Usurping The Function of The Trier of Fact To Determine The Reasonableness of Defendants’ Conduct
Expert opinion testimony is inadmissible when it involves the manner in which the law should apply to a particular set of facts and includes a legal conclusion based upon the analysis. (See Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1179.) Even if the expert’s opinion does not address a question of law, it is not appropriate if it invades the province of the jury to decide a case. An expert opinion is supposed to help the jury in doing its work, not usurp the function of the jury. (Id. at 1183.) Expert opinion about the significance of evidence does not assist the jury but instead creates an unacceptable risk that a jury would pay unwarranted deference to the expert’s expertise who, in reality, may be in no better position than the jury to evaluate the evidence. (Kotla v. Regents of the Univ. Of California (2004) 115 Cal.App.4th 283, 293.) When opinions are nothing more than an attempt to direct the jury to the ultimate conclusion that the expert wants them to reach, such opinions are inadmissible, as the opinion amount to advocacy not testimony. (Summers, 69 Cal.App.4th at 1185.)

Continue Reading ›

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

Plaintiff’s Motion In Limine Exclude Testimony of Defendants’ Human Resources Expert Tina Hall
INTRODUCTION

Plaintiff Bobby White (hereinafter “Plaintiff” ) respectfully moves the Court for an order in limine to exclude any testimony from Defendants’ proposed human resources expert Tina Hall (hereinafter “Hall”). Plaintiff brings this motion on the grounds that Hall’s proposed testimony would improperly usurp the role of the jury by offering her own unnecessary and improper legal conclusions as to how this case should be decided. Hall will offer opinions, under the mantle of expert, that XYZ Security applied effective investigation procedures to the investigations done in this case. Hall’s proposed testimony should be excluded under Evidence Code section 801 because it is not related to a subject sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. Further, allowing Hall to offer her improper legal conclusions would unduly prejudice Plaintiff, while wasting the time and resources of the Court, the parties and the jury. Hall’s testimony regarding plaintiff’s alleged sexual harassment, therefore, also should be excluded under Evidence Code section 352.

This motion is based on the supporting memorandum of points and authorities, the pleadings, records and papers on file in this action, herein, and upon such further oral and documentary evidence as may be presented at the time of the hearing. (See Part 2 of 2.)

Continue Reading ›

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

Mr. Black’s Opinions Will Assist the Trier of Fact and Therefore Are Relevant and Admissible.

Finally, defendants argue that Mr. Black’s opinions as to the City’s violations of its internal policies and procedures are not relevant to any of the issues in this case, and that testimony about those opinions might confuse or mislead the jury. On the contrary, defendants failure to follow its own policies and procedures, with respect to the prevention of sexual harassment and their response to complaints of sexual harassment, are evidence which tend to prove the prior notice element of plaintiffs’ sexual harassment cause of action. It also proves their failure to prevent sexual harassment itself (including the mandate to conduct an investigation) and retaliation. See, e.g., Kotla v. Regents of the Univ. of Calif. (2004) 115 Cal.App.4th 283, 294 n. 6 [opinion testimony by a qualified expert that an employer significantly deviated from its ordinary personnel procedures in the aggrieved employee’s retaliation case might well assist the jury in its factfinding];

Silva v. Lucky Food Stores, Inc. (1998) 65 Cal.App.4th 256, 263 [grant of summary judgment against plaintiff employee in wrongful termination case upheld in part because plaintiff had not presented any expert witness testimony regarding whether the employer conducted an appropriate investigation of underlying sexual harassment claim].

Even if some of the jurors have some familiarity with them, the elements of an effective intervention and prevention program for workplace sexual harassment are not commonly known by a typical juror. Accordingly, courts in California and other jurisdictions are finding that expert witness testimony is appropriate to establish whether the employer acted reasonably to prevent harassment and to respond to reports of alleged harassment. See, e.g., Kotla v. Regents of the Univ. of Calif., supra, 115 Cal.App.4th at 294 n. 6; Holly D. v. Calif. Inst. of Tech. (9th Cir. 2003) 339, F3d. 1158, 1177; Shrout v. Black Clawson Co. (S.D. Ohio 1988) 689 F.Supp. 774, 777-778; Kimzey v. Walmart Stores, Inc. (8th Cir. 1997) 107 F.3d 568, 571.

Continue Reading ›

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

Mr. Black’s Opinions Do Not Constitute the Improper Admission of Hearsay Evidence.

Defendants next argue that Mr. Black’s opinions are based on hearsay and that his report constitutes multiple hearsay. Plaintiffs do not intend to offer Mr. Black’s Expert Report into evidence at trial, so defendants’ hearsay objection with respect to it is moot. More importantly, however, as noted above, expert opinions may be based on inadmissible matters, specifically including hearsay, as long as those matters are the type on which experts reasonably rely.

Experts reasonably rely on a plaintiff’s description of what happened to him and how it affected him. As also noted above, experts may not testify as to the details of that hearsay. For example, an expert may testify that his or her opinion as to the nature of a personal injury is based on the injured person’s hearsay statements, but such hearsay cannot be used to prove the cause of the injury. See In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1120 [overruled on other grounds in People v. Brown (1994) 8 Cal.4th 746, 763.]
Similarly, Mr. Black may testify here that his opinions regarding the defendants’ conduct before and after the 2007 Gay Pride Parade, with respect to plaintiffs’ unwillingness to participate, are based on hearsay statements by the plaintiffs. Nonetheless, that hearsay itself cannot be used to prove, for example, defendants’ failure to prevent sexual harassment or retaliation. (See Part 7 of 7.)

Continue Reading ›

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

Mr. Black’s Opinions Are Based on Proper Matters and Do Not Constitute Legal Conclusions.

Defendants then argue that Mr. Black’s opinions are based on improper matters, e.g., speculative and incomplete facts, and constitute legal conclusions which invade the province of the Court and the jury. Mr. Black lists the information upon which he relied to formulate his expert opinions in this case on page 4 of his Expert Report. That information includes, inter alia, the California Department of Fair Employment & Housing Sexual Harassment Case Analysis Manual, defendants’ internal memoranda and administrative manuals with respect to sexual harassment policy in general and this case in particular, and transcripts of the depositions taken by plaintiffs and defendants in this matter. Defendants do not even attempt to explain how this information constitutes speculation or conjecture — which actually would be improper — or why this is not the kind of information experts reasonably rely upon in forming an opinion on the subject matter involved.

Further, as with their argument that Mr. Black’s opinions exceed the scope of his designation, the only “opinions” to which defendants refer are Mr. Black’s conclusions that plaintiffs have established a prima facie case of sexual harassment, including the failure to prevent sexual harassment, and retaliation, and were deprived of their right to privacy. Defendants conveniently ignore all the opinions set forth in his Expert Report which led Mr. Black to reach those conclusions.

Continue Reading ›

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

Mr. Black’s Opinions Are Within the Scope of His Expertise and Plaintiffs’ Designation

Defendants first argue that Mr. Black’s opinions exceed the scope of his expertise and designation. In their expert witness designation, plaintiffs described the general substance of the testimony Mr. Black is expected to give as custom and practice of municipal employers in setting and enforcing sexual harassment policies and procedures for responding to complaints, and defendants’ sexual harassment policies and procedures and compliance or failure to comply therewith. Mr. Black’s expert qualifications are set forth in his Expert Report, and include the following:

30 years’ experience in interpreting federal, state, and local rules, regulations, guidelines and procedures regarding equal employment opportunity [ EEO ] enforcement;
Advising city departments and commissions on compliance programs with equal employment opportunity laws, regulations, policies, and procedures;
Serving as agency-wide EEO Division Manager of the equal opportunity contracting program in connection with the 3 billion dollar San Francisco International Airport Terminal Master Plan Project; As EEO Division chief, educating prospective bidders regarding the City of San Francisco’s nondiscrimination policies, including its Zero Tolerance Policy against sexual harassment in the workplace.
Educating scores of contractors, architectural engineering firms, and professional services consultants on non-discrimination in employment, including harassment prevention practices and procedures, when bidding for city, state and federally financed contracts.
Performing hundreds of wrongful termination investigations related to race, sex, sexual orientation, gender, disability.

Continue Reading ›

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

Defendants Have Not Shown That Expert Witness Michael Black’s Opinion Testimony Is Inadmissible.

Defendants argue that any and all testimony by plaintiffs’ sexual harassment expert, Michael Black, should be excluded allegedly because some of the opinions in his report: (1) go beyond the scope of his expertise and designation; (2) exceed the bounds of permissible expert testimony by offering legal conclusions; and (3) would place inadmissible hearsay before the jury. Defendants further argue that Mr. Black’s expert opinion regarding whether defendants’ conduct violated internal policies and procedures is not relevant to any issue in this personal injury case, and that its admission would create substantial danger of undue prejudice by confusing or misleading the jury into wrongly believing that Mr. Black’s statements of law or fact are accurate or that his opinions pertain to the issues to be determined in this case.

As a threshold matter, it is important to note that defendants seek to exclude all of Mr. Black’s expert opinion testimony based on their objections to some of the opinions in his Expert Report. In considering defendants’ motion in limine, plaintiffs request that the Court keep the following background in mind: First, defendants chose not to designate their own sexual harassment expert. They should not be permitted to keep out testimony by plaintiffs’ expert just because they could not find an expert who could support what they did in this case. Second, defendants chose not to depose Mr. Black who was timely designated. They should not be permitted to keep out all of his expert opinions just because they failed to explore the scope and bases for those opinions by deposing Mr. Black.

Continue Reading ›

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

With respect to subject matter: The jury need not be wholly ignorant of the subject matter of the opinion . . . if that were the test, little expert opinion testimony would ever be heard, particularly in a sexual harassment matter like this. Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would assist the jury. People v. McDonald (1984) 37 Cal.3d 351, 367 (overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914). Expert opinion testimony is excluded only when it would add nothing at all to the jury’s common fund of information. Id.

Otherwise admissible opinion testimony is not objectionable (simply) because it embraces the ultimate issue to be decided by the trier of fact (e.g., fault, causation, breach of contract, etc.). Evid. Code § 805 [parentheses added]. Thus, expert opinion about an ultimate issue (or any conclusion for that matter) is admissible if it assists the jury. Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1182-1183.

With respect to expert qualification in this type of personal injury case, there are no hard and fast rules. The determinative issue is whether the witness has sufficient knowledge, skill or experience in the field so that his or her testimony would be likely to assist the jury in its search for the truth. Mann v. Cracchiolo (1985) 38 Cal.3d 18, 37-38. Whether a particular person has sufficient expertise to testify as an expert witness depends upon the facts of the particular case, the questions propounded to the witness, and the witness’ specific qualifications. People v. Davis (1965) 62 Cal.2d 791, 80.

With respect to reliable matter, an expert’s opinion may be based on evidence whether or not admissible . . . if it is the kind of information experts reasonably rely upon in forming an opinion on the subject matter involved. Evid. Code § 801(b); People v. Hallquist (2005) 133 Cal.App.4th 291, 295-296. Therefore, expert witnesses are specifically permitted to state that they have reviewed, considered and relied upon inadmissible hearsay evidence as the basis for their opinion. The expert may not, however, testify as to the details of those matters if they are otherwise inadmissible. People v. Coleman (1985) 38 Cal.3d 69, 92 [He may not under the guise of reasons bring before the jury incompetent hearsay evidence.]

Continue Reading ›

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

Plaintiffs Jim Green, John Brown, Stan White, and Paul Jones hereby oppose defendants’ Motion in Limine No. 12 To Exclude Evidence, Testimony and Argument Regarding the Expert Opinion Testimony of Plaintiffs’ Expert Michael Black.

BECAUSE EXPERT OPINION REGARDING PLAINTIFFS’ SEXUAL HARASSMENT CAUSES OF ACTION WOULD ASSIST THE TRIER OF FACT, MICHAEL BLACK’S TESTIMONY IS RELEVANT AND ADMISSIBLE IN THIS CASE.

Standards of Relevance and Admissibility.

No evidence is admissible except relevant evidence. Evid. Code § 350. Except as otherwise provided by statute, all relevant evidence is admissible. Evid. Code § 351.

Relevant evidence means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. Evid. Code § 210.

The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Evid. Code § 352.

There are three distinct requirements for admissibility of expert opinion testimony in this personal injury matter:
The subject matter must be sufficiently beyond common experience that the opinion would assist the jury;

Continue Reading ›