Articles Posted in Workplace Discrimination/Sexual Harassment

(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.

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(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.)

Court Improperly Excluded Prior Inconsistent Statement of Tony Anson

In order to challenge the credibility of a witness a party may introduce a statement made by the witness that is inconsistent with any part of a witness’ testimony at the hearing. (Evid. Code § 780(h).) In the instant case, defense witness Tony Anson testified that Plaintiff made inappropriate remarks of a sexual nature and that his conduct in doing so was unprofessional. Shortly after Plaintiff was terminated, however, Mr. Anson wrote a letter in support of Plaintiff, noting his professionalism. The court, over the objection of Plaintiff, would not permit Plaintiff to introduce the letter. The letter had previously been excluded on a ruling by the court that the letter was made in the course of trying to settle the case. This itself was an erroneous ruling, but the court should have permitted the letter to be admitted for the limited purpose of impeaching Mr. Anson.

Mr. Anson’s testimony was prejudicial to Plaintiff in that Mr. Anson had not been identified by Plaintiff as a person who was in defendant Byrd’s circle of influence. This may have mislead the jury to giving his testimony more weight than it deserved.

Court Improperly Excluded Testimony of Human Resources Expert Regarding Industry Standards of Investigating Allegations of Discrimination and Sexual Harassment

California law particularly permits human resource testimony about whether an employer follows or departs from its own policies and standard practice in the industry. Testimony regarding whether the employer had followed proper personnel standards is well within the professional management expert. (Kotla v. Regents of the University of California (2004) 115 Cal.App.4th 283, 293 fn. 5.)

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(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 THE COURT ERRONEOUSLY EXCLUDED EVIDENCE AT TRIAL, THUS MATERIALLY AFFECTING PLAINTIFF’S SUBSTANTIAL RIGHTS
The Standard

A motion for a new trial may be granted for an error in law occurring at trial and excepted to by the party making the application. (Code Civ. Proc. § 657(7).) Errors of law occurring at trial may include erroneous rulings on evidence. (Richard v. Scott (1978) 79 Cal. App. 3d 57, 63.) That there was an error in law must be established by the minutes of the court. (See Code Civ. Proc. § 658.) If the error could possibly have been prejudicial, the court must consider its probable effect and decide the motion accordingly, and if it concludes that the error is prejudicial, a new trial is properly granted. (Brown v. George Pepperdine Foundation (1943) 23 Cal. 2d 256, 262.)

A new trial may be granted on the ground of error in law if the trial court erroneously excludes certain admissible evidence and that exclusion results in prejudice to the moving party. (See Richard v. Scott (1978) 79 Cal.App.3d 57, 63 n.2; Burroughs v. Ben’s Auto Park, Inc. (1945) 27 Cal.2d 449, 456.) If an error of law has occurred in the admission or rejection of evidence, the trial judge may consider all the circumstances surrounding the ruling, including the weight that may be accorded to the questioned evidence, the attitude of the interrogator, and any other fact tending to show the importance of the admission or rejection of the evidence. (De Victoria v. Erickson (1948) 83 Cal. App. 2d 206, 208-209.)

A court’s ruling sustaining or overruling an objection to evidence is deemed excepted to without formal objection. (Code Civ. Proc. § 647.)

Evidence in this sexual harassment case that was excluded includes: (1) a letter written by Tony Anson in support of Plaintiff that would have impeached Mr. Anson’s testimony that Plaintiff made inappropriate comments of a sexual nature, which were unprofessional, and

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(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.)

Defendant Sue Davis admitted to creating documents in the investigation file that were designed to appear to be written by Plaintiff and that, in fact, even mislead defendants’ own counsel. Defendant Andrew Price admitted to suppressing the statement of a witness who did not support the allegations of defendant Marcia Byrd and admitted that defendant XYZ enforced only part of the sexual harassment policy.

Defendant Marcia Byrd said she was not at work on September 27, 2004, until she was presented with a document that showed she was. At that point she said that something to the effect that “she didn’t remember.” There also was testimony that Byrd had said that she got Plaintiff fired before he got her, and that she had written a report about him and gotten others to write reports about him. She also testified that she had not spoken with anyone at all about Plaintiff’s alleged conduct, but some of her friends testified otherwise.

There was testimony at trial that defendants Harris and Smith knew that defendant Byrd was not credible. Defendants Smith, Davis and Price testified they did not follow company policy. Defendant Harris testified that she was told by the Vice president of Human Resources, Nancy Hall, not to follow company policy.

Although there are numerous other portions of the record that can be cited to support granting Plaintiff’s motion for new trial based on insufficiency of the evidence with respect to defamation, these portions alone justify such action. Plaintiff respectfully requests this Court to reexamine the record and grant his motion for new trial based on the alternative ground of insufficiency of the evidence.

Race Discrimination

It is a violation of law to terminate an employee or to treat him differently in the terms and conditions of his employment for reasons based on his race. (Govt. Code § 12940(a).)

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(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.)

Defamation

Defamation can consist of either a written publication (libel) or an oral publication (slander). (Civ. Code §§ 44, 45, 46.) In the absence of a privilege, anyone who actively participates in the publication of a false and libelous statement is liable for special, general, and even punitive damages. Moreover, it is also the general rule that every repetition of the defamation is a separate publication and hence a new and separate cause of action though the repeater states the source (Prosser, Torts (2d ed.) p.787.) And, ordinarily the originator of the defamatory matter is also liable for each such repetition if he could reasonably have foreseen the repetition. (DiGiorgio Corp. v. Valley Labor Citizen (1968) 260 Cal.App.268, 273.)

The evidence presented at trial overwhelmingly demonstrated that defendants defamed Plaintiff. Plaintiff was a very credible witness, able to remember events and to provide specifics and context with respect to those events.

Defendants’ witnesses, on the other hand, were, at best, not very credible. Besides examining the four defendants, over the course of April 7 and April 8, 2007, defendants called 12 witnesses. Of all those witnesses, only one was credible: Danny Greene. Every defense witness was able to tell the story that they had prepared with defense counsel, but once Plaintiff’s counsel began to cross-examine them, they could not remember anything specific about any events that occurred. One witness, William Smith, answering every question on cross-examination with I don’t remember, testified that he could not remember almost before counsel could ask a question.

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(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.)

It has long been the rule that in ruling upon a motion for new trial on the ground of insufficiency of evidence, the trial court is encouraged to sit as a thirteenth juror and reconsider and re-weigh the evidence. (See, e.g., Fountain Valley Chateau Blanc Homeowner’s Ass’n v. Dep’t of Veterans Affairs (1998) 67 Cal. App. 4th 743, 750-52.) In Norden v. Hartman, for example, the court affirmed the trial court’s grant of a motion for new trial based on insufficient evidence stating as follows:

This court has on many occasions, in similar workplace discrimination cases, commended the trial courts in granting new trials when, in the opinion of the court, sitting as a thirteenth juror, the weight of the evidence appears to be contrary to the jury’s determination …. This practice should not be discouraged. [Citations.]. On appeal all presumptions are in favor of the order and against the verdict. (Norden v. Hartman, supra, 111 Cal.App. 2d at 758.) In fact, the California Supreme Court long ago made clear that trial courts should not be reluctant to grant new trials for insufficiency of the evidence. The Supreme Court’s guidance is worthy of citation at length:

“We frequently have cause to believe that the judges of the superior court are too reluctant to exercise their power of granting a new trial for insufficiency of the evidence, and too much inclined to acquiesce in a verdict of the jury which does not meet with their own approval…. The trial court cannot rest upon a conflict in the evidence, but must weigh and consider the evidence for both parties, and determine for itself the just conclusion to be drawn from it. Where the decision is against the weight of the evidence it is the duty of that court to grant a new trial. [Citations omitted.] If the judge is not satisfied with the verdict, and is convinced that it is clearly against the weight of the evidence, it is his duty to set it aside, even though there may have been some conflict in the testimony. He has had the same opportunity as the jury to observe the manner of the witnesses, and to decide upon their credibility, and it is his duty to see that the verdict is not clearly against the weight of the evidence.”

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(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.)

PLAINTIFF IS ENTITLED TO A NEW TRIAL BASED ON INSUFFICIENCY OF THE EVIDENCE TO JUSTIFY THE VERDICT IN THIS WORKPLACE DISCRIMINATION CASE
Court’s Obligation to Re-Weigh Evidence

On application of the party aggrieved, a verdict may be vacated, in whole or in part, and a new trial may be granted, on all or some of the issues, on the ground of insufficiency of the evidence to justify the verdict if substantial rights of the aggrieved party are materially affected thereby. (Code Civ. Proc. § 657(6).) The ground that the evidence was insufficient to justify the verdict must be established by the minutes of the court (see Code Civ. Proc. § 658).

A motion for new trial on the ground of insufficiency of the evidence is properly granted if, after weighing the evidence and reasonable inferences, the court is convinced that the jury clearly should have reached a different verdict or decision. (Code Civ. Proc. § 657; Russell v. Nelson (1969) 1 Cal. App. 3d 919, 922.) The court does not disregard the verdict, or decide what result it should have reached if the case had been tried without a jury, but instead it should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict. (People v. Robarge (1953) 41 Cal.2d 628, 633.)

While it is the exclusive province of the jury to find the facts, it is the duty of the trial court to see that this function is intelligently and justly performed, and in the exercise of its supervisory power over the verdict, the court should consider the probative force of the evidence and satisfy itself that the evidence as a whole is sufficient to sustain the verdict. (People v. Robarge (1953) 41 Cal.2d 628, 633.) The trial judge is required to weigh the evidence and in so doing he or she may disbelieve witnesses and draw inferences contrary to those supporting the verdict. (See Locksley v. Ungureanu (1986) 178 Cal.App.3d 457, 463; Mercer v. Perez (1968) 68 Cal. 2d 104, 112; Dietrich v. Litton Industries, Inc. (1970) 12 Cal. App. 3d 704, 707, 717.)

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(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.)

ARGUMENT
THIS TRIAL COURT HAS BROAD DISCRETION TO GRANT A NEW TRIAL AND THE EXERCISE OF THE COURT IN GRANTING A NEW TRIAL IS ACCORDED GREAT DEFERENCE

Although denials of motions for new trial are reviewed on appeal de novo, grants of such motions by the trial court are accorded great deference. (See, e.g., Andrews v. County of Orange (1982) 130 Cal. App. 3d 944, 954-55; Gray v. Robinson (1939) 33 Cal. App. 2d 177, 184-85.) Thus, it is well settled that the granting of a motion for a new trial rests so completely within the discretion of the trial judge that an appellate court will not interfere with his [or her] action unless a manifest and unmistakable abuse of discretion clearly appears. (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98,109 (quoting Mazzotta v. Los Angeles Ry. Corp. (1944) 25 Cal. 2d 165, 169) [emphasis added].) Such discretion is very wide and every presumption is indulged in support of the action of the court in passing upon the motion [citation], and a stronger showing is required to justify interference with an order granting than one denying a new trial. (Gray, 33 Cal. App. 2d at 184-85.) The rationale for the different standards lies in the California Constitution which secures to all the inviolate right to a trial by jury. (Andrews, 130 Cal. App. 3d at 953.)

PLAINTIFF IS ENTITLED TO A NEW TRIAL BASED ON IRREGULARITY IN THE PROCEEDINGS WHEN DEFENDANTS AND/OR THEIR ATTORNEY HAVE ENGAGED IN MISCONDUCT IN THIS SEXUAL HARASSMENT CASE

A motion for new trial may be granted if there is an irregularity in the proceedings by the adverse party. (Code Civ. Proc. § 657(1).) An irregularity is any overt act of the adverse party that violates the right to a fair and impartial trial and amounts to misconduct (Gray v. Robinson (1939) 33 Cal. App. 2d 177, 182.) When one party is mislead by the acts of another, justice requires that a new trial should be granted. (See Pinkham & McDonough v. McFarland & Elrod (1855) 5 Cal. 137, 138.) The irregularity must materially affect the substantial rights of a party (Code Civ. Proc. § 657(1); Gay v. Torrance (1904) 145 Cal. 144, 148.) If the court gives conflicting instructions that contain inconsistent ideas that may have confused the jury, a new trial may be granted on the ground of errors in law occurring at trial (Brown v. George Pepperdine Foundation (1943) 23 Cal. 2d 256, 262.)

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(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.)

STATEMENT OF FACTS

Plaintiff was terminated from his employment with XYZ Security ( XYZ ), for sexual harassment, and thereafter sued XYZ for discrimination on the basis of gender and race, and wrongful termination in violation of public policy, and sued XYZ and the individual making the false allegations and those individuals charged with investigating those allegations for defamation.

Trial began in this matter on March 26, 2007, in the Sacramento County Superior Court. On April 10, 2007, after a more than two-week trial involving numerous witnesses and a relatively complicated set of jury instructions and special verdict forms, the case was submitted to the jury. The jury came back the next afternoon, April 11, 2007, with verdicts in all instances for defendants.

In speaking with approximately nine or ten of the jurors after the verdict was delivered, Plaintiffs counsel learned that the jury wanted to find for Plaintiff and against XYZ on the defamation claim, but they could not answer the first question on the special verdict forms with respect to defamation, “Yes.” The jurors asked Plaintiff’s counsel who had written the questions.

The court and counsel had reviewed the special verdict forms in chambers. After such review the court instructed defendants to revise the punitive damages instructions. The next day the court instructed defendants to reorder the special verdicts. Sometime after the initial review of the special verdict forms defendants revised the forms such that they did not reflect the law of defamation, did not track with the jury instructions and did not resemble the CACI special verdict forms on which they were based.

The first sentence of CACI forms VF-1704 (defamation per se) and VF-1705 (defamation per quod) is Did [name of defendant] make the following statement to [a person/persons] other than [name of plaintiff]? When counsel and the court reviewed the special verdict forms, they each said, Did XYZ Security, make the following statement to a person other than Bobby White? The relevant portion of the CACI instructions 1704 (defamation per se) and 1705 (defamation per quod) states that That [name of defendant] made [one or more of] the statement(s) to [a person/persons] other than [name of plaintiff].

By the time special verdict forms VF-1704 and VF-1705 reached the jury, the first question read: Did one or more officers, directors, or managing agents of XYZ Security, acting in a corporate capacity, make the following statement to a person other than Bobby White.

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(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.)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL
INTRODUCTION

By this Motion, Plaintiff Bobby White (“Plaintiff”) respectfully requests that the Court make an order granting him a new trial. There is significant irregularity in the proceedings by the parties adverse to Plaintiff (CCP § 657(1)), insufficient evidence (CCP § 657(6)), and error in law excepted to during trial (CCP § 657(7)), each of which prevented Plaintiff from having a fair trial. For each of these reasons, Plaintiff respectfully requests that the Court grant his motion for a new trial.

This workplace discrimination and harassment case was resolved after more than two weeks of trial, which began on March 26, 2007. On April 10, 2007, the case was submitted to the jury. The jury came back the next afternoon, April 11, 2007, with verdicts in all instances for defendants. At the last minute, in a manner designed to deceive the jury, the court, and plaintiff, defendants, who were charged with preparing the special verdict forms for the jury, revised them so that they misstated the law. Even though the jury wanted to find for the injured plaintiff, the revised special verdict forms kept them from doing so.

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