United States: Employment Law Commentary - January 2005

Recently I tried a complicated disability discrimination case in a California state court. The client terminated a long-term worker, who was living with cancer, on the "strength" of a surveillance video, which purportedly showed the employee leaving work with a stolen product. The product consisted of two six-packs of soda. The client had a zero-tolerance-for-theft policy, and the plaintiff was terminated along with nine other offenders on the tape. The problem was that the portion of the video relating to the plaintiff was not altogether clear. Plaintiff claimed the video depicted him carrying loose bottles, which he had properly purchased from the vending machine.

The complaint contained a predictable set of claims: intentional discrimination, failure to accommodate plaintiff’s cancer, retaliation, intentional infliction of emotional distress, failure to investigate, and wrongful termination. The claim of retaliation was that plaintiff had challenged the right of the employer to discipline an overweight African-American employee.

Presumably betting on plaintiff’s general likeability, the fact that he had cancer, and that the basis for termination was subject to serious dispute, plaintiff’s counsel made a multi-million-dollar demand immediately before trial. Plaintiff was nowhere nearly so successful at trial. He won $100,000 on one of his six causes of action. The jury did not find the requisite malice, fraud, or oppression necessary for punitive damages. This was viewed by all as a very successful result.

This article discusses lessons re-learned about both the trial of discrimination cases and how human relations policies and decisions look to a jury. These lessons also inform how day-to-day workplace decisions might be processed.

Clients always want to know "what are our chances if we go to trial?" That question is not really answerable with any degree of certitude until you know who is on your actual jury. That in turn depends on your jury panel, the order in which that panel makes its way into the jury box, your ability to elicit "for cause" recusals, strategic judgments on how you exercise your peremptories, and dumb luck.

In California, the panels are drawn from the entire county. In counties that have courthouses in multiple locations, the clerk’s office tends to draw its panels from that portion of the county in which the courthouse is located. Thus, in our case, the liberal reputation of Northern California juries was not borne out by the suburban panel. The jury we selected was almost exclusively white-collar, with at least half of the panel having managerial experience. My feeling is that our success in limiting this potentially explosive case was in large part due to the composition of the panel that walked into the courtroom that day.

Although one has no control over the composition of the panel, there are things that can be done to maximize opportunities with the panel assigned to the case. One important tool is the use of a questionnaire presented to the jury before voir dire begins. Let me count the ways in which the questionnaire aids in jury selection. The questionnaire provides information about prospective jurors, both biographical and attitudinal (e.g., in multiple-choice form the questionnaire asks what is your view as to whether jury awards are too large or not? What are your feelings towards large corporations? etc.). This information helps counsel customize questions for each juror and make an initial effort at mastering the proper pronunciation of the more difficult names of panelists (getting it wrong once may be charming or at least tolerable; more than once, shame on you).

In addition, the information on the questionnaire helps to see potential interrelationships among jurors and plan how to raise themes with the panelists. It also helps you learn about the entire panel, not just the 12 or 18 people who are called forth for questioning in the box. (Many judges fill what is referred to as a 6-pack—12 potential jurors in the jury box and 6 more to be examined in sequence along with the first 12.) Knowing about the entire panel enables the strategic use of peremptory challenges because you know something about who will take the seat of an excused panel member. For example, when considering whether to use a peremptory on a panel member whom you view neutrally, it would be important to know that there are panel members waiting to be called whom you view as a disaster.

Lest we forget because of our unfettered delight in the use of the questionnaire, there are also other ways of learning about the panel. Stay observant without being intrusive. In this past trial, I observed someone in the panel who presented himself in an odd manner. I also noticed that when the panel was sworn by the clerk, he refused to swear or aver on religious grounds. My motion to disqualify the panel member was granted.

The purpose of a question should be to determine if particular jurors have bias against the client such that they may be challenged for cause. Counsel should not hesitate to ask difficult or case-sensitive questions. For example, in this case, I asked lots of questions about the fact that the plaintiff had cancer and whether my client could receive a fair evaluation of the evidence given that fact. I asked questions about the plaintiff’s contentions as well. Counsel should also use the voir dire discussion to introduce him- or herself to the jury and decide where to spend peremptory challenges.

The often-asked question of "Whom do I want on my jury?" comes from a false premise. Because much of the jury selection is predetermined (who is assigned to the panel and the order panelists are called into the jury box for questioning), peremptories are ordinarily used to remove panelists who are believed to not be sympathetic to the client’s case rather than to achieve the nirvana of the ideal jury. Every time you exercise a peremptory challenge, you want to know as much as possible about the next person who will sit in that vacated seat.

The jury’s expectations are set in the opening statements. The opening should tell the story of the case, and the proof should fit with that story. Do not ignore the facts that are difficult. Address them and thereby begin to neutralize them. Since the elephant in the middle of our courtroom was plaintiff’s cancer, I talked about it. I noted that the plaintiff was doing very well on an experimental drug regime. Indeed, the first portion of the plaintiff’s cross-examination was dedicated to showing how well he was feeling (working an 8-hour day without any restrictions) so that when I asked him the tough questions on cross, it wouldn’t look like I was bullying someone who was ill.

I also presented an alternative to the plaintiff’s theory that he was terminated on trumped-up charges because he had cancer. Plaintiff’s essential theory was that management decided it didn’t want to deal with plaintiff, his cancer, and his accommodation needs, and so when the video arguably showed plaintiff taking product, an excuse for termination was born. We were able to show that the manager who made the decision to terminate plaintiff’s employment had worked mightily to accommodate the plaintiff and his cancer in the workplace for 3 years. Indeed, this manager had saved the plaintiff from a layoff that affected 100 other employees.

This same manager also bore the burden of articulating and defending the legitimate, nondiscriminatory reason for the termination: the zero-tolerance-for-theft policy, its consistent application, and the reasons why the manager believed that the tape depicted the plaintiff leaving the workplace with stolen product. As employment law and human relations specialists, we always focus on this issue: is there a reasonable, nondiscriminatory basis for a decision to terminate. Cases, most notably Guz v. Bechtel Natural, Inc., 24 Cal. 4th 307 (2000), teach that such a basis is a defense to a discrimination charge, even if the judgment regarding the termination was incorrect (if made in good faith). But at trial, not all justifications for a termination are sellable to the jury. In my experience, the identified reason has to make sense to a jury: here, in a cash business, rules against theft had to be strictly enforced. We were blessed by the fact that the decision-maker had also been the plaintiff’s advocate, had consistently applied the policy, and had given the plaintiff an opportunity to explain the tape which the plaintiff had handled poorly by denying the obvious: that he was the person depicted on the tape.

Plaintiff’s counsel often call the employers’ witnesses in their case under adverse witness provisions, meaning counsel can ask a lot of leading, and counsel hopes damaging, questions. Depending on the witness and the story he has to tell, however, this can be a tremendous opportunity because in the examination by employer counsel immediately afterward, the employer gets to lay out in an orderly fashion the chronology and story of its case. There is a caveat here, however. Make certain that your witnesses are prepared for the fact that the cross-examination by your opponent will come first. Witnesses often have trouble making the transition, so through practice ensure that your witnesses understand the difference in "feel" between cross- and direct examinations.

In our case, being able to have the decision maker set forth a rational chronology of what happened, why he viewed the tape as he did, and the history of his efforts at accommodation on behalf of the plaintiff, right in the middle of plaintiff’s presentation, was very effective.

While we won on the failure-to-accommodate claim, we had no documentation of our efforts to accommodate plaintiff’s initial and ongoing request for "light duty/office work." This enabled plaintiff to assert that he was able to perform certain light physical jobs at the time of diagnosis and while undergoing chemotherapy, when in truth, at the time, he was not. The absence of a written record of the interactions between management and the plaintiff turned this into a disputed issue of fact. A written record of the interaction between plaintiff and management, even better, one signed by plaintiff, would have made plaintiff’s argument untenable. Interestingly, jurors expect documentation even though none is legally required.

Plaintiff’s retaliation claim was this: another employee, who had been a co-plaintiff whose case we settled, was disciplined in the workplace for his rate of production. The employee was a very large African-American who previously had gastric by-pass surgery. Our plaintiff spoke out against the discipline, asserting that the collective bargaining agreement provided no basis for such discipline and that the co-worker’s assignment had been unfair. Plaintiff was told by management to go back to work. Later, the co-worker fell off his forklift. Plaintiff insisted on staying with him and again was told to go back to work. Plaintiff was terminated from employment within a month of these events. Plaintiff argued that his advocacy on behalf of his colleague was protected activity because it was opposition to race and disability discrimination under FEHA and that his behavior had provided yet another motive to remove him from the workplace.

The jury did not find that the plaintiff had engaged in protected activity. We argued this was a union-management dispute, nothing more. After trial, we learned that at least some on the jury thought that plaintiff was a busy body butting into matters that were none of his business, an argument we would never have dared to make overtly!

Experts, especially your own, can be a very dangerous thing for a reason often overlooked: they were not present when events actually occurred, and so, in a sense, all of their testimony is made up. We used no experts in this case. The plaintiff had a human resources expert whose opinions were generic and sufficiently unrelated to the actual events in the case that her testimony had little impact, in my opinion. The breadth of this witness’s testimony was substantially limited by motion as a result of the Kotler opinion, Kotler v. Regents of the University of California, 115 Cal. App. 4th 283 (2004). Kotler severely limits what a human resource expert can testify to: they can’t state what the law is, or what they believe management’s motives were. Similarly, the economic expert was asked to assume entitlement to economic damages when, in fact, no such entitlement existed. Our jury appeared to give little weight to the testimony of these "experts."

Invariably, the special verdict form gets prepared the night before the court requires it. This makes no rational sense because it contains an explicit outline of the elements of and defenses to each claim. One should have in mind the verdict form before voir dire begins. It should be referred to in closing argument and kept in mind when making the opening statement.

Standard wisdom dictates that trial of punitive damages be bifurcated from the liability phase of the case. See Civil Code Sections 3294-3295. The traditional theory is that evidence regarding the defendant’s net worth before liability is determined will inflame the jury. Instead, if the issues are bifurcated, the jury does not hear about the net worth unless and until liability and malice are found. And therein lies the rub: the jury gets to spend money a second time after determining liability and finding the existence of malice, oppression, or fraud. The proof in the second phase is overwhelmingly about money, nothing else. And guess what? If the defendant is a publicly traded company, the jury already assumes that the defendant’s net worth is big. Seriously consider presenting all the proof at once.

Return to the story that was told in opening statement. Expand upon it and show how it fits into the jury instructions and the special verdict forms. Return to the graphics that were initially used in opening and expand on them now that proof and inferences can be argued.

You will be wrong most likely and surely aggravate yourself.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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