The importance of evidence regard-
ing malicious treatment of other similarly situated people was recently confirmed by the Second District Court of Appeal, which interpreted Roby and held that a higher ratio of punitive damages to com- pensatory damages was not warranted because,
Regarding the fourth reprehensibility
factor of whether the conduct involved repeated actions or was an isolated inci- dent,… [t]here was no evidence presented that Mercury acted similarly toward other insureds in similar circumstances. Thus, on the evidence before us we cannot con- clude that Mercury was a ‘repeat offender.’
(Amerigraphics, Inc. v. Mercury Cas. Co. (2010) 182 Cal.App.4th 1538, 1563 [107 Cal.Rptr.3d 307] [Italics added].)
The lesson taught by the Roby,
Johnson, Mendelsohn, and State Farm deci- sions, is the need for extensive discovery into the effect of illegal corporate policies and/or practices not just on the plaintiff but on other employees as well. The ideal discovery plan for attorneys representing employees should target evidence of other victims of similar unlawful conduct to that complained of by the plaintiff. In particular, Roby opens the door to
discovery into other victims working at dif- ferent locations under different supervi- sors as such evidence would be essential to prove that the harm suffered by the plain- tiff was “the product of a corporate culture that encouraged similar supervisorial conduct.” In other words, when you combine these cases, you now have support to seek evi- dence regarding how other supervisors at
other locations treated their employees to show the particular supervisor’s conduct at issue was evidence of a larger corporate culture encouraging and condoning such conduct. Needless to say, if discovery in an individual case supports an inference of a discriminatory “corporate culture” con- doning widespread and systematic discrim- ination, many single-plaintiff cases may morph into class actions. (See, e.g., Dukes v. Wal-Mart Stores, Inc. (9th Cir. 2010) 603 F.3d 571, 612 (affirming grant of class certification based on finding evidence of “Wal-Mart’s centralized firm-wide culture and policies.”)
Roby/harassment claims Roby also represents the most signifi-
cant expansion of hostile work-environment harassment law in at least a generation. The
EMPLOYMENT MEDIATORS
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Hon. Enrique Romero (Ret.)
Jan Schau, Esq.
Hon. Robert Thomas (Ret.)
Caroline Vincent, Esq.
Hon. John Zebrowski (Ret.) APRIL 2011 The Advocate Magazine — 83
Michael Diliberto, Esq.
Hon. Joe Hilberman (Ret.)
Joan Kessler, Esq.
Hon. Michael Marcus (Ret.)
Peter Marx, Esq.
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Linda Bulmash, Esq.
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Robert Coviello, Esq.
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