Lee Feldman
Gina Browne
Discrimination and retaliation cases: recent decisions expand the scope of evidence available to employees
Employment litigation will be impacted by the breadth of scope these plaintiff-friendly decisions provide for in discovery
“Federal and California courts have
acknowledged the difficulty of proving intentional discrimination: Proving inten- tional discrimination can be difficult because [t]here will seldom be ‘eyewit- ness’ testimony as to the employer’s men- tal processes. ... It is rare for a plaintiff to be able to produce direct evidence or ‘smoking gun’ evidence of discrimina- tion....” (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 342 [77 Cal. Rptr. 3d 654].) Because it is extremely rare to find direct evidence of discrimination, it is crucial that employees have at their disposal a full panoply of circumstantial evidence with which to demonstrate that an employer’s proffered reason for an adverse employment action is false or pretextual. Recent California cases have armed employees suing for discrimination with vital additional arrows for their quivers. In four recent cases, Johnson v. United
Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura Counties (2009) 173 Cal.App.4th 740 [93 Cal. Rptr. 3d 198], Roby v. McKesson Corp. (2009) 47 Cal.4th 686 [101 Cal.Rptr.3d 773], Reid v. Google, Inc. (2010) 50 Cal.4th 512 [113 Cal.Rptr.3d 327], and Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 [100 Cal. Rptr. 3d 296], the California courts have greatly expanded the scope of admissible evidence, and consequently the scope of discovery, in single-plaintiff discrimination cases. Johnson held that in a single-plaintiff
case, evidence that other employees were subjected to discriminatory treatment similar to that claimed by the plaintiff is sufficient to defeat summary judgment without any further evidence of disparate treatment. More importantly, it held that evidence of other victims of similar discriminatory treatment is not only
78— The Advocate Magazine APRIL 2011
relevant to the employer’s motive in firing the plaintiff, but per se admissible on that issue. Later in 2009, the Supreme Court issued its decision in Roby, which reiterated the relevance of such “other victims” evidence in proving the degree of reprehensibility necessary to support a large award of punitive damages. Roby also expanded the scope of evidence upon which employees may rely in proving hostile work-environment claims, holding that personnel-management actions such as negative performance evaluations, discipline and job assignments, may now be considered in determining the severity or pervasiveness of harassment purportedly creating a hostile work environment. This past year the California
Supreme Court also handed down the long awaited Reid case, in which it dispensed with the “stray remarks doctrine” that had been used by trial courts as an excuse to ignore all evidence of discriminatory comments directed toward employees other than the plaintiff, remarks by non-decisionmakers and discriminatory comments made in circumstances not directly connected with the adverse employment action at issue. Lastly, Nazir held that an inference of discrimination may be drawn from an employer’s failure to use neutral, unbiased personnel, and to interview exculpatory witnesses when investigating the purported misconduct supporting an allegedly discriminatory termination. Taken together, these cases expand
the ammunition available to California employees to defeat summary judgment motions and prevail at trial. They also vastly expand the scope of permissible discovery to such an extent that employers must now decide whether it may be advantageous to settle these cases
earlier than had previously been their custom. Employers also face the added danger of turning single-plaintiff discrimination cases into class actions if this expanded discovery uncovers evidence of companywide illegal policies and practices.
Johnson case and so-called “me too” evidence Johnson v. United Cerebral Palsy/Spastic
Children’s Foundation of Los Angeles and Ventura Counties is a groundbreaking case for plaintiffs. It is the first published case in California to explicitly make clear that “me too” evidence – that is evidence that other similarly-situated employees were subjected to discriminatory conduct similar to that which the plaintiff was subjected – is admissible in an employment-discrimination case to prove pretext or discriminatory intent and motive.
• History of “me too” evidence Widely derided by employers as “me
too” evidence, but more aptly labeled “other victims” evidence, the federal courts have frequently authorized the admission of evidence showing that simi- larly-situated employees inside a plaintiff’s protected class have been subjected to similar discriminatory conduct. For exam- ple, the Tenth Circuit has recognized that, “[a]s a general rule, the testimony of other employees about their treatment by the defendant is relevant to the issue of the employer’s discriminatory [and retaliatory] intent.” (Spulak v. K Mart Corp. (10th Cir.1990) 894 F.2d 1150, 1156 [quoting language]; Curtis v. Oklahoma City Pub. Schls Bd. of Educ. (10th Cir.1998) 147 F.3d 1200, 1217.) Numerous other federal courts have recognized the importance of using evidence of discrimination against other employees to
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