Thursday, August 11, 2011

Court Rules Employee May Introduce Evidence that Boss Harassed Other Women Before She Was Hired.

 Pantoja v. Anton (Aug. 9, 2011) 2011 DJDAR 11962.

A recent California Court of Appeal decision provides an in-depth look at the evidentiary battles that occur in the trial of a gender discrimination and harassment case.  This decision is a powerful tool in the hands of employee attorneys, seeking to use “me too” evidence to support the circumstantial case for “hostile work environment.”  “Me too” evidence is testimony by other persons that they too experienced the discrimination and harassment the plaintiff alleges happened to her. 

The case was one for gender based hostile work environment.  After the trial judge excluded much of the testimony of witnesses for the Plaintiff, the jury returned a defense verdict.  The Plaintiff appealed, and the Court of Appeal, Fifth Appellate District [Kern County] reversed unanimously. 

This is a long decision, but worth reading every page.  The essential battle was that the plaintiff, Lorraine Pantoja [“Pantoja”] wanted to present testimony of other women who worked for the employer before she did, and who experienced words and behaviors similar to what she experienced.  The defendant, an attorney named Thomas J. Anton [“Anton”] wanted to keep out all evidence of his alleged remarks or behavior except those occurring during Pantoja’s employment. 

Pantoja argued that the testimony was to be admitted because it showed Anton’s continuing behavior and intent to treat her badly, and his hostility toward women generally.  Pantoja also argued that because Anton had testified at trial that he generally did not direct hostile gender biased statements toward women , he thereby had opened the door to that line of questioning, and that Pantoja should be allowed to impeach his testimony with that of women who had worked there before her. 

The trial court in this case was itself leaning heavily for the defense, with rulings that consistently adopted , and even reaffirmed, the theory of the defense that Anton was vulgar, but that his remarks were not directed at women any more than at men.  The defense theory was also that Anton’s use of cursing and vulgarity was directed at the situation rather than the individuals involved in the situation.  That is, the defense was that the vulgarity was not evidence of gender bias. 

Despite the defense, Pantoja presented evidence that Anton called her and other employees working with her “f---ing bitches.”   Anton, without dispute, used the F-word routinely at work, and frequently when angry, which was often.  But he combined the word with “bitch” when addressing women.  Pantoja testified to Anton called her, on frequent occasions, “stupid bitch,” or “f---ing bitch”.  Her co-employees testified they overheard such references, and several testified the language was directed at them as well. 

When the trial judge excluded the testimony of women who would offer “me too” testimony, Pantoja make a written offer of proof in the form of written declarations of the women.  The court refused to back away from its previous ruling.  The number of women ready to testify, but excluded by the trial court, were at least 4 or 5 in number.    After the trial, at least one juror stated that it would have made a difference in their verdict to know that there was a history of hostility toward other women. 

The trial court instructed the jury that vulgar talk is not evidence of harassment (hostile work environment) unless it is directed to the plaintiff specifically because of her gender, or to women in general.  This instruction, ruled the Court of Appeal, is proper, but cannot stand alone.  It requires additional clarifying instructions that vulgar language, if directed to the plaintiff, or toward women generally, can be evidence of gender based harassment. 

This case covers some important “battle ground” rules of evidence that will invariably occur during trial:

1)      1)    The “me too” testimony of other women is admissible on an offer of proof that it is used to show a motive or intent by the harasser in harassing the plaintiff.  See Evidence Code Section 1101(b), or to attack the credibility of the witness.  See Evidence Code Section 1101 (c). 

 2)      Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 295 [Lyle] was distinguished by this Court of Appeal on the basis of different facts.  In Lyle, the vulgarities, even if personally offensive to the plaintiff, were not directed to her or to women in general, but were part of the creative environment of a production company that worked with adult sexual scripting.  The plaintiff in Lyle understood that when she took the job, and elected to work in that environment.  Anton’s remarks in contrast were not general or situational only, but were aimed at Pantoja personally and women generally. 

 3)      “Me too” testimony can also be admitted to show a “pattern and practice” of gender discrimination or harassment, citing Estes v. Dick Smith Ford, Inc. (8th Cir. 1988) 856 F.2d 1097, 1102-1104.

 4)      The Court of Appeal cited Johnson v. United Cerebral Palsy/Spastic Children’s Foundation (2009)      173 Cal.App.4th [“Johnson”], which itself relied on the Estes decision, in writing the following:  “The Estes court observed that a wholesale exclusion of such evidence ‘can be especially damaging in employment discrimination cases, in which plaintiffs must face the difficult task of persuading the fact-finder to disbelieve an employer’s account of its own motives’ (Estes, supra, 856 F.2d at p. 1103).

 5)      The use of in limine motions to exclude evidence because the evidence is so little or insubstantial to prove a case [i.e., a “cause of action”] is improper.  Specifically, the Court of Appeal held that the proper time and procedure for such a ruling is on a motion for summary judgment.  A motion in limine is limited to rulings on matters of relevance or undue prejudice of the anticipated testimony. 

 6)      The Court of Appeal makes provides a very good lesson on “leading questions.”  A leading question is one that suggests the answer to the person being interrogated.  The court stated in a footnote:  A question with a yes-or-no answer can be leading . . .but is not necessarily so.  “Did he call you a bitch?” calls for a yes-or-no answer, but does not suggest that “yes” is the right answer.”  [See footnote 5 of the decision]. 

In summary, both plaintiff and defense attorneys are advised to read this decision carefully because it provides a very “real world” look at the rough and tumble world of the trial court, when judges, making a wrong decision early in the case, can thereby cripple the opportunity of one of the parties to present his evidence for the balance of the trial.  The counsel for Plaintiff Pantoja was especially persistent and careful in making offers of proof, and in preserving the record.  Undoubtedly, counsel knew the trial judge was favoring the defense, and that the jury would find for the defense because denied the opportunity to hear evidence relevant to a pattern of continuing conduct by defendant Anton.  We have all been there:  there is sometimes nothing left to do but make sure your preserve your record for appeal.

As an interesting aside, Defendant Anton, who was an attorney, testified that he had litigated sexual harassment cases for both plaintiffs and defendants, and had provided sexual harassment trainings.    As you read the case, you will see Anton’s personality emerge:  a belligerent, hostile, demeaning, and abusive boss with a volatile temper.  


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