(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace discrimination/personal injury case and its proceedings.)
A NEW TRIAL SHOULD BE GRANTED ON THE GROUND OF ERROR IN LAW, BECAUSE THERE WERE ERRONEOUS AND MISLEADING JURY INSTRUCTIONS GIVEN AT TRIAL THAT MATERIALLY AFFECTED PLAINTIFF’S SUBSTANTIAL RIGHTS
Failure to Give Instructions
Each party is entitled to have his or her theory of the case submitted to the jury in accordance with the pleadings and proof, and it is incumbent on the trial court to instruct on all vital issues involved; the failure of the court to instruct on a vital issue may be grounds for the granting of a motion for new trial. (Christian v. Bolls (1970) 7 Cal. App. 3d 408, 415-416.) In this case Plaintiff proposed and the court refused to give the following instructions:
An employer’s failure to follow its own policies and procedures raises an inference of discrimination.
An employee is treated disparately when his employer’s policies and procedures apply to everyone else but him. Consequently, an employer’s failure to follow its own policies and procedures raises an inference of discrimination. [See, e.g., Deschene v. Pinole Point Steel Co. (1999) 76 Cal. App. 4th 33; Village of Arlington Heights v. Met. Hous. Dev. Corp. (1977) 429 U.S. 252, 267 ( Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. ); Azzaro v. County of Allegheny (3d Cir. 1997) 110 F.3d 968, 974-975 (failure to follow policies applicable to employee suggests that discrimination may be involved)]. XYZ knew that the investigation on which it relied was both inadequate and non-compliant with its own procedures, yet nonetheless relied on those policies to discharge Plaintiff for sexual harassment.