Sacramento Personal Injury Lawyer Blog

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

DAMAGES

Had Ms. Church remained at Kaiser she would have received increasing salary (including increased salary from promotions which were denied to her by her second level supervisor, Charles Smith and her quasi-supervisor, David Black, for thirteen (13) years until retirement with an average increase of approx. 3 %, totaling $1,262,776. Had Plaintiff received promotions, the total would be $1,528,201 assuming a salary of $95,000 a year in 2006, $1,608,632 assuming a salary of $100,000 a year in 2006, and $2,010,791 assuming a salary of $125,000 in 2006. While Ms. Church is currently working as a temporary employee for Bayer, through an agency, this is not comparable employment. She is paid $30 an hour with no benefits. Ms. Church's many other attempts at gaining employment have been unsuccessful.

Benefits lost by Ms. Church as a result of the termination are:

1) Medical and dental benefits

2) Flexible employee life ($500,000 death benefit)

3) Accidental Death Benefit

4) Long-term Disability Benefit

5) Three years build up of contribution to sick time and vacation which increases with time served.

6) The contribution to the time served would have resulted in medical benefits for life; fifteen (15) years of service gains towards retiring-employee medical benefits for life.

7) The ability to contribute to a 401K that Kaiser matched .50 on the dollar.

8) Two $1,000 reimbursements for education.

9) Bonuses of 3-5% of an employee's gross salary or $2,355 - $3,925, increasing per year of service.

In addition, Ms. Church has suffered substantial emotional distress.

Continue reading "Whistle-Blower Employee From Sacramento Terminated By Kaiser, Part 11 of 11" »

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

EQUAL PAY ACT CLAIM

While Ms. Church worked for Kaiser, she suffered wage discrimination as defined by the state and federal Equal Pay Acts. Ms. Church's salary was very low for her position. Many others in her position were managers but she was refused that title. Plaintiff alleges that the male hired in her prior position shortly after she asked to be transferred to Sacramento was paid $6,000 more a year than she was in that same position.

Kaiser argues that the reason for the pay discrepancy was the male employee's greater qualifications but Ms. Church will testify that the qualifications which actually applied to the job in question were equal; it was the pay that was different.

CONVERSION CLAIM

At the time that Ms. Church was terminated, she was not permitted to take numerous binders of material which belonged to her. This property consisted of numerous documents regarding her personal research into compliance issues and represented numerous hours of personal work. Ms. Church later learned that Mr. White callously discarded this personal property belonging to her. In his deposition Mr. White suggested that the material might still exist in his office but Kaiser still has not returned the binders to Ms. Church. The discarding or wrongful retention of Ms. Church's material without permission constitutes conversion:

Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages. Conversion is a strict liability tort.

Continue reading "Sacramento Employee Blows Whistle On Kaiser, Part 10 of 11" »

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

Further, Defendant's argument that Plaintiff has no legal protection for reporting illegal practices because such reporting was an essential part of her job duties turns logic and law upside down. If Defendant's position were accepted, it would mean that the very employee charged with reporting illegal activity would have no incentive to make a report because the employee would not be protected from retaliation for reporting the illegal conduct.

Fortunately, and not surprisingly, California law does not abandon those employees most in need of legal protection, i.e., those who by virtue of their position must report illegal activity. See e.g. Green v. Ralee Eng. Co. (1998) 19 Cal.4th 66, 79 (public policy termination claim properly stated by quality control inspector who complained about unsafe conditions on airplane despite that the quality control inspector, like Plaintiff here, was simply doing his job); Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 477 (supervisor who objects to and tries to stop sexual harassment of another employee entitled to protection from retaliation despite that supervisor had an obligation to make the report as part of basic supervisorial duties).

DISPARATE TREATMENT CLAIM

Although discovery has not been pursued with regard to this claim, Ms. Church contends that David Black (her quasi-supervisor for a period of time because her direct supervisor rarely came to work) and Mary Smith, her second-level supervisor, treated her differently than males in comparable positions.

Continue reading "Kaiser Illegally Terminates Employee From Sacramento, Part 9 of 11" »

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

Kaiser also contends that because reporting unsafe and unlawful conditions was part of Plaintiff's job, she is precluded from raising a wrongful termination claim or Labor Code section 1102. In its desperation, Kaiser turns to federal cases around the country, including an ill considered opinion from the Eastern District of California, lacking any authority to cite to a single California case supporting the outrageous position that it can fire someone for reporting Kaiser wrongdoing. Kaiser's argument is not only flatly wrong, it is undermined by Garcetti v. Cebellos (2006) 547 U.S. 410, 126 S. Ct.1951, in which the Court held that Labor Code violations remain actionable even to those whose job encompasses the reporting so that employees who seek to expose wrongdoing are still protected.

Exposing governmental inefficiency and misconduct is a matter of considerable significance. As the Court noted in Connick, public employers should, as a matter of good judgment, be receptive to constructive criticism offered by their employees. 461 U.S., at 149, 103 S.Ct. 1684. The dictates of sound judgment are reinforced by the powerful network of legislative enactments-such as whistle-blower protection laws and labor codes-available to those who seek to expose wrongdoing. See, e.g., 5 U.S.C. § 2302(b)(8); Cal. Govt.Code Ann. § 8547.8 (West 2005); Cal. Lab.Code Ann. § 1102.5 (West Supp.2006)

Continue reading "Kaiser Employee From Sacramento Sues For Wrongful Termination, Part 8 of 11" »

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

The other temporal nexus which is significant is the one between Ms. Church's termination and her December 5,2006 complaint to Stan Brown, COO of the Kaiser Medical Center, about how her chain of command, including Richard White and Charles Smith, was ineffectual in addressing workplace safety issues. Mr. Oliver responded to Ms. Church's initial request for assistance by requiring her to go through the same chain of command, and copying Charles Smith on the email, thereby alerting Mr. Smith that Ms. Church was complaining about the ineffectiveness of the chain of command.

Mr. Oliver did nothing to investigate or prevent Ms. Church's subsequent termination for wrongful reasons. See Coszalter v. City of Salem (9th Cir.2003) 320 F.3d 968, 977 (employee can show that complaints were a substantial motivating factor in an adverse employment action by introducing evidence regarding the proximity in time between his speech and the allegedly retaliatory action); See also Lujan v. Minagar (2004) 124 Cal.App.4th.1040, 1046 (wrongful termination under Labor Code Sec. 6310 includes preemptive retaliation against employees whom an employer fears will file workplace safety complaints).

Kaiser argues that Church was terminated for legitimate reasons, cannot prove otherwise by showing that the reasons were pretext for retaliatory animus, and therefore it should prevail on summary judgment. As Church's claim is a state law claim for retaliation, the California Court of Appeal decision in Mamou v. Trendwest Resorts Inc. (2008) 165 Cal.App.4th 686 is directly on point. As clarified by the Mamou, "while pretext" is certainly a relevant issue...the central issue...whether the evidence as a whole supports a reasoned inference that the challenged action was the product of retaliatory animus. Id. at 715 (emphasis added by counsel). At the summary judgment stage, the Court's duty is to determine whether the employee's evidence is too weak to sustain a reasoned inference in the employee's favor. Id. (emphasis by court). If reasonable competing inferences may be drawn from the facts, summary judgment should be denied. Adickes v. S.H. Kress & Co., supra, 398 US at 157; Lake Nacimiento Ranch Co. v. San Luis Obispo County (9th Cir. 1987) 841 F2d 872, 875.

Continue reading "Wrongfully Terminated Sacramento Woman Sues Kaiser, Part 7 of 11" »

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

While working at Kaiser-Permanente, Ms. Church made frequent complaints to upper management, including officers and managing agents such as Stan Brown, David Black, and Mary Smith, regarding the failure of Kaiser to address serious patient and staff safety issues. None of Ms. Church's complaints received any substantive response, other than her termination. The subjects of these complaints included:

* OSHA violations including concerns about frequent blood splashes and gastric juices deposited on nurses and the failure of Kaiser to install necessary OSHA required eyewash stations.

* The continued use of non-safety needles to avoid accidental punctures of staff.

* Toxicity of a new facility at Sacramento and a manager's withholding of the report of work that was being done to correct that toxicity found in the Forensic Analytical report commissioned by Charles Smith to the employees in the building.

* The loss by Richard White of Personal Air Purification Respirators given to Sacramento to protect staff and patients from airborne pathogens and would not find them.

* The lack of fit testing for N-95 respirators at the Oakland or Sacramento facilities.

Continue reading "Sacramento Employee Files Workplace Discrimination Suit Against Kaiser, Part 6 of 11" »

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

Additionally, Ms. Church's termination was in violation of Health and Safety Code Section 1278.5(b)(1): No health facility shall discriminate or retaliate, in any manner, against any patient, employee, member of the medical staff, or any other health care worker of the health facility because that person has done either of the following:

(a) Presented a grievance, complaint, or report to the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any other governmental entity.

(d)(1) There shall be a rebuttable presumption that discriminatory action was taken by the health facility, or by the entity that owns or operates that health facility, or that owns or operates any other health facility, in retaliation against an employee, member of the medical staff, or any other health care worker of the facility, if responsible staff at the facility or the entity that owns or operates the facility had knowledge of the actions, participation, or cooperation of the person responsible for any acts described in paragraph (1) of subdivision (b), and the discriminatory action occurs within 120 days of the filing of the grievance or complaint by the employee, member of the medical staff or any other health care worker of the facility.

Continue reading "Employment Discrimination Action Filed Agaisnt Kaiser By Sacramento Woman, Part 5 of 11" »

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

Kaiser has a very clear national policy regarding Corrective/Disciplinary Action because it is obligated to have one.

Kaiser Permanente (KP) must comply with specific legal/regulatory standards that include, but are not limited to, those indicated by Medicare and other government program billing requirements, Guidance issued by the Centers for Medicare and Medicaid Services, the Department of Health and Human Services, the Compliance Program Guidance issued by the Office of the Inspector General, and HIPAA/Privacy and Security regulations .... KP is required to have well publicized disciplinary guidelines that demonstrate its commitment to compliance and set forth the consequences for violations of compliance mandates.

In other words, state and federal laws and regulations require that Kaiser follow its own Corrective/Disciplinary Action policy. The last paragraph of that policy states: Employees who report compliance and/or ethics concerns in good faith will not be subject to corrective/disciplinary action for doing so... Nevertheless, even assuming the truth of Kaiser's purported reason for terminating Ms. Church, Ms. Church was terminated in violation of Kaiser's legally mandated policy because she was terminated for printing out an improperly viewable document to show to Mr. Oliver.

In fact, both the reasons given for Ms. Church's ultimate termination and the underlying reasons for the draft disciplinary letter which she printed from Mr. White's screen were pretext for retaliatory action and restraint of Ms. Church's efforts to hold the managers in charge of Environmental, Health and Safety accountable for the numerous lapses in employee and patient safety which they have countenanced while she has worked for Kaiser (first as a consultant, then as an employee). Kaiser managers expressed concerns about Ms. Church's communication style when she would communicate that a) there were serious defects in Kaiser's workplace safety program and b) those managers were partly or fully responsible for those serious defects.

Continue reading "Sacramento Woman Files Wrongful Termination Action Against Kaiser, Part 4 of 11" »

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

Unfortunately for Kaiser's defense, there is no policy against, or harm caused by, printing a draft work-related memorandum from her supervisor's screen:

1) Kaiser's Principles of Responsibility contain no language that would preclude Ms. Church from printing a letter about her that was publicly visible in an open cubicle and bringing that letter to Kaiser's Chief Operating Officer.

2) Ms. Church's act of printing the letter about her could not, in any way, violate Richard White's right to privacy. Mr. White has no cognizable right to privacy with regard to a work related correspondence about someone else. In fact, Kaiser's own Principles of Responsibility and Electronic Assets Usage policy make it clear that employee privacy does not extend to conduct in the work place or to the use of Kaiser Permanente's assets.

3) There is nothing in Kaiser's Electronic Usage Policy that precluded Ms. Church from printing a visible document about her and taking it to the Chief Operating Officer of the hospital.

The violations of Kaiser's Electronic Usage Policy were by Richard White:
a. He failed to prevent access to his computer.

b. He failed to "avoid leaving...business information open/accessible by employing password-activated screen savers."

And, yet, Mr. White received no discipline whatsoever. Interestingly, Kaiser's Electronic Assets Usage policy also states Users who identify security issues should report them immediately. In Ms. Church's case, that line should be followed by: "...and subsequently be terminated." (See Part 4 of 11.)

Continue reading "Kaiser-Permanente Sacramento Employee Files Wrongful Termination Action, Part 3 of 11" »

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

WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY AND VIOLATION OF LABOR CODE SECTION 6310 (AND HEALTH AND SAFETY CODE SECTION 1278.5)

Kaiser has filed a Motion for Summary Judgment on all claims, including the major claim for Wrongful Termination in Violation of Public Policy. For settlement purposes, it is important to recognize that Kaiser cannot win summary judgment or summary adjudication on this claim because of the existence of disputed issues of material fact, as well as Kaiser's incorrect interpretation of the law.

The pretextual reason given for Ms. Church's termination was her printing of a memorandum, addressed to her and publicly viewable on her supervisor's computer screen, regarding discipline which her supervisor, Richard White, apparently intended to impose in retaliation for her frequent complaints about the incompetence of Kaiser management and Kaiser's many continuing safety and OSHA violations. At Ms. Church's termination "hearing," Mr. White also falsely claimed that Ms. Church had accessed his Lotus Notes account and printed other documents from his work computer.

Ms. Church's termination letter referred to the following reasons for her termination: Violation of the Principle of Responsibilities, breach of confidentiality, invasion of privacy and violation of KP computer assets. These should have been the reasons for Mr. White's termination. Ms. Church printed the draft disciplinary memorandum and brought it to COO Stan Brown because of her concern that Richard White had left it visible on his screen in an open cubicle for everyone to see, thereby violating her privacy rights as an employee.

Continue reading "Kaiser Sued By Sacramento Employee, Part 2 of 11" »

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

Plaintiff's Mandatory Settlement Conference Statement

Plaintiff Miranda Church, a Workplace Safety Specialist employed at Kaiser Foundation Hospital, was wrongfully terminated on January 10, 2006, in violation of public policy and Kaiser's own employment policies. Prior to her termination, Ms. Church was treated in an abusive and discriminatory manner by her quasi-manager, David Black, and was underpaid compared to her male counterpart at another hospital within Kaiser's Sacramento group. At the time of her termination, Kaiser failed to return personal property to her and, despite further requests, continued to keep her personal property. To compound its injuries to Ms. Church, her former supervisor has made false statements which wrongfully prevented Ms. Church from obtaining subsequent employment.

It is plaintiff's position that, for statutory and regulatory reasons, Kaiser is obligated to follow its policies in terminating individuals who have otherwise made complaints about Kaiser's misfeasance, malfeasance, and nonfeasance. In Ms. Church's case, Kaiser failed to properly follow its own policies...miserably. Not only did Kaiser terminate the wrong person involved in the incident described below, but, in terminating Ms. Church, Kaiser failed to:

1) Provide any rule, guideline or policy which would indicate that the act was an offense subject to discipline or termination.

2) Provide any oral warning prior to termination.

Continue reading "Sacramento Woman Sues Kaiser For Wrongful Termination, Part 1 of 11" »

(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.)

CACI 2502 - Elements of Disparate Impact Discrimination
There was testimony at trial that the part of the sexual harassment policy that disciplines persons who make false allegations of sexual harassment is not enforced. The large majority of allegations of sexual harassment are made by women against men. This selective enforcement of the policy, therefore, has a disparate impact on men, and CACI 2502 should have been given to address this situation.

Erroneous or Misleading Instructions
An erroneous or misleading jury instruction is an error in law for which a new trial may be granted. (See Bruck v. Adams (1968) 259 Cal. App. 2d 585, 587; Mazzotta v. Los Angeles Ry. Corp. (1944) 25 Cal. 2d 165, 170, 153 P.2d 338.) An erroneous instruction given by the court to the jury is considered excepted to as a matter of law. (See Code Civ. Proc. § 647; Stoneburner v. Richfield Oil Co. (1931) 118 Cal. App. 449, 453.) An order granting a new trial for error in instructions will be affirmed if the challenged instruction was erroneous in any degree or even if it is only fairly debatable that the instruction may have been misleading. (Shaw v. Pacific Greyhound Lines (1958) 50 Cal. 2d 153, 159.)

A new trial may be granted on the ground of error in law occurring at trial when an instruction has been given that includes an incorrect or incomplete statement of law applicable to a material issue and the error was not cured by the charge as a whole or otherwise rendered harmless. (Brignoli v. Seaboard Transportation Co. (1947) 29 Cal. 2d 782, 790.)

In this case the instruction regarding defamation with respect to defendant Byrd was correct, but the special verdict form prepared by defendants was incorrect. The first question in Special Verdict Form VF-1704 Defamation Per Se and in Special Verdict Form VF-1705 Defamation Per Quod with respect to defendant Byrd asked "Did Marcia Byrd maliciously report that she was harassed by Bobby White?" There is no requirement under the law that such a report be malicious, and the forms themselves do not use that language.

Continue reading "Sacramento Corporation Sued For Workplace Discrimination And Sexual Harassment, Part 12 of 12" »

(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.

Continue reading "Sacramento Court's Errors In Sexual Harassment Case Under Scrutiny, Part 11 of 12" »

(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.)

Continue reading "Sacramento Company Violated Its Own Policies Regarding Sexual Harassment Of Male Employee, Part 10 of 12" »

(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

Continue reading "Sacramento Man Demanded That Employer Investigate Sexual Harassment, Part 9 of 12" »

(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).)

Continue reading "Sexually Charged Workplace Leads To Suit By Sacramento Man, Part 8 of 12" »

(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.

Continue reading "Management Covered Up Sexual Harassment Of Male Employee, Part 7 of 12" »

(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."

Continue reading "Sacramento Company Created Hostile Workplace For Male Employee, Part 6 of 12" »

(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.)

Continue reading "Sacramento Worker Defamed And Sexually Harassed, Part 5 of 12" »

(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.

Continue reading "Sacramento Man Sexually Harassed At Work, Part 1 of 12" »