Using the Employer’s Bad Acts Towards Others As Evidence in Discrimination, Hostile Environment Harassment, and Retaliation Claims

Categories: Employment and Labor Law

Many employees come to me seeking to bring a discrimination, hostile environment harassment, or retaliation claim against their employer.  Often, the best evidence we have of the employer’s unlawful motive comes from circumstantial evidence of the employer discriminating against or retaliating against others.  To see a recent post I created related to the use of circumstantial evidence to prove a discrimination, harassment, or retaliation case, click here.  That article is more generalized, but this one is narrowly focused on the use of a specific category of evidence in such disputes.

We begin with California Evidence Code section 1101, which prohibits the introduction of “character” evidence in most civil disputes.

In particular, sub-section (a) of section 1101 provides as follows:

“(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”

This section, known as the “character evidence bar,” would appear to render inadmissible evidence of the employer’s discrimination, harassment, or retaliation against other employees.  However, recent developments in the caselaw have opened the door to the use of this “me too” evidence (a term that has been coined to describe evidence of the employer’s conduct towards other employees) in a wide variety of contexts.  By way of background, the recent jurisprudence is based on the exception to the character evidence bar found in sub-section (b) of section 1101, which provides that:

“(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”

It all begins with Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, where the Second District Court of Appeal stated in dictum that “me too” evidence could be admitted to prove that the plaintiff suffered through a hostile work environment on the basis of some protected classification.  In that case, Marlee Beyda brought a sexual harassment case against her former employer, Los Angeles City Councilperson Nate Holden, as well as members of his staff and the City of Los Angeles.  She alleged that Mr. Holden and his staff engaged in several acts of unwanted sexual conduct and made “offensive explicit sexual remarks in her presence.”

The Defendants filed a motion in limine to exclude evidence of Mr. Holden’s alleged sexual harassment of other female employees.  The trial court granted the motion, ruling the evidence inadmissible unless Ms. Beyda could establish that the harassing conduct occurred in her presence.   This is because a hostile environment harassment claim requires the to demonstrate, among other things, the she subjectively perceived the work environment as hostile and abusive and that this perception was objectively reasonable.  Witnessing harassment of others in your protected class would certainly be relevant to those elements and therefore, while the evidence cannot be offered to “prove his or her conduct on a specified occasion” under section 1101(a) of the Evidence Code, it could be admitted to show these other elements of a hostile environment claim under section 1101(b).

On appeal, Ms. Beyda contended the trial court erred in excluding the “me too” evidence related to harassment occurring outside her presence.  The Court of Appeal reiterated that section 1101(a) prohibited the use of the “me too” evidence for the prohibited character/propensity purpose, but also held that the evidence could be admissible if known to the Plaintiff.  The Court began by quoting the New Jersey Supreme Court for the proposition that:

“The plaintiff’s work environment is affected not only by conduct directed at herself but also by the treatment of others.  A woman’s perception that her work environment is hostile to women will obviously be reinforced if she witnesses the harassment of other female workers.” (Lehmann v. Toys ‘R’ Us, Inc. (1993) 132 N.J. 587; see also Vinson v. Taylor (C.A.D.C. 1985) 753 F.2d 141, 146.”

The Court agreed with this sentiment, but expanded to all acts of harassment the employee “knows” about, regardless of whether the plaintiff personally witnessed the harassment.  As the Court stated, “[w]e also believe that a reasonable person may be affected by knowledge that other workers are being sexually harassed in the workplace, even if he or she does not personally witness that conduct.”  The Defendants argued that this went too far, as an earlier California Court of Appeal had held the following:

“However, one who is not personally subjected to such remarks or touchings must establish that she personally witnessed the harassing conduct and that it was in her immediate work environment.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610-11.)

Addressing this language, the Beyda Court stated:

“We do not read Fisher as narrowly as do respondents.  As we read the case, the court was not purporting to limit the admissibility of evidence of conduct toward other victims in all instances; it was addressing only the situation where the plaintiff herself was not a direct victim.  That is not our case.  To the extent that Fisher may be understood to require that a plaintiff personally witness any act relied upon to prove hostile environment, we respectfully disagree.

As we have explained, personal observation is not the only way that a person can perceive, and be affected by, harassing conduct in the workplace.  One can also be affected by knowledge of that harassment.  In reaching this conclusion, we caution that mere workplace gossip is not a substitute for proof.  Evidence of harassment of others, and of a plaintiff’s awareness of that harassment, is subject to the limitations of the hearsay rule.  It is not a substitute for direct testimony by the victims of those acts, or by witnesses to those acts.”

(Beyda, supra at 521.)

Nevertheless, the judgment was affirmed in that case because Ms. Beyda had proffered no evidence that she was aware of this conduct towards other female employees during her employment with the Defendants.  This, in turn, technically renders the foregoing analysis dictum.  Future Courts of Appeal would struggle for over a decade with the parameters of its analysis, as well as with the delicate line-drawing between evidence of “awareness” of harassment of others and “workplace gossip,” as the Beyda Court anticipated in making its cautionary closing remarks.

Last summer, the Fifth District Court of Appeal took Beyda and ran with it in Pantoja v. Anton (2011) 198 Cal.App.4th 87, greatly expanding its reach and scope and opening the door to the presentation of “me too” evidence in a variety of discrimination, hostile environment harassment, and retaliation cases.

In Pantoja, Plaintiff Lorraine Pantoja sued her former employer, attorney Thomas Anton, and his law firm Thomas Anton & Associates, P.C.  Ms. Pantoja alleged that she began working for Mr. Anton in January of 2002.  During her employment, she alleged, Mr. Anton slapped her buttocks, touched her leg while offering her $200, and asked her for a shoulder massage, used terms like “bitch” and “cunt” to refer to women he had a conflict with, and otherwise engaged in inappropriate sexual harassment.  Ultimately, he called her a “stupid bitch” and terminated her in October of 2002.

Relying on cases such as Fisher, the Defendants moved in limine to exclude evidence of acts of discrimination or harassment unless Ms. Pantoja “personally witnessed such acts” and the acts “adversely affected her working environment.”  The Defendants argued that this would constitute improper character evidence under section 1101(a) and that it would be more prejudicial than probative under California Evidence Code section 352.  The trial court agreed and granted the motion.

At trial, Ms. Pantoja’s attorney made frequent and repeated efforts to reopen this issue and force the court to reconsider its ruling.   The attorney asked Mr. Anton questions like “you’ve never touched anybody’s buttocks at the workplace, correct?” and “you’ve never made comments about anybody’s breasts at the workplace, correct?”  Mr. Anton repeatedly responded in the affirmative, indicating he had never engaged in such conduct.  Defense counsel objected ostensibly based on the motion in limine ruling and the court sustained the objection, instructing the jury to disregard the testimony.  Pantoja’s counsel persisted, asking whether Mr. Anton had ever called anyone at the workplace a “bitch,” and again the defense objection was sustained.

After an unreported sidebar, Pantoja’s counsel asked similar questions limited to the time period of Ms. Pantoja’s employment and no objection was made.  Also without objection, Pantoja’s counsel asked whether Mr. Anton had a practice of prohibiting sexual harassment, to which Mr. Anton responded “[w]e just didn’t do it, period.  And if I found out somebody was doing it, I would put an end to it.  If somebody came and complained to me or to anyone else in the firm, I would put an end to it.”

The next day, Pantoja’s counsel filed a supplemental trial brief, arguing once again for the admission of “me too” evidence.  The evidence, the brief argued, was proffered for several permissible purposes, including as impeachment of Mr. Anton’s testimony described above.  The court did not rule on the brief that day.

The defense then presented witness testimony from a female employee of Mr. Anton’s to the effect that Mr. Anton would use profanity when angry or telling a funny story, but that his behavior was always directed at “situations” instead of individuals or a protected class of persons.  The same employee testified that Mr. Anton would sometimes touch or engage in a one-armed hug of an employee, but that it was “avuncular” and “Uncle-like,” not sexual in nature.

Pantoja’s counsel argued on a break that this testimony opened the door to impeaching both witnesses with “me-too” evidence, and again the Court limited the presentation to evidence of acts occurring in Ms. Pantoja’s presence only.

The following day, Pantoja’s counsel filed yet another supplemental brief, this time setting forth a detailed offer of proof.  The brief explained that, if permitted to introduce it, Ms. Pantoja could produce four former female employees whom would attest to acts of discrimination and harassment nearly identical to those alleged by Ms. Pantoja.  This “me-too” evidence included evidence that Mr. Anton had called other female employees “bitches,” “stupid,” “idiot,” and incompetent,” that he had inappropriately touched them or commented on their breasts, and generally that everything alleged by Ms. Pantoja had occurred to others.

Pantoja’s brief relied primarily on the opinion in Johnson v. United Cerebral Palsy/Spastic Children’s Foundation (2009) 173 Cal.App.4th 740, which held that “me-too” evidence can be presented, even if the plaintiff was unaware of it, if it speaks to the employer’s discriminatory motive.  This is because  Evidence Code section 1101(b) specifically excludes evidence of intent or motive from the character evidence bar, assuming that’s a relevant issue in the underlying case.

The court denied Pantoja’s motion, explaining that it believed its ruling were consistent with Johnson because Pantoja had not shown that the “me-too” incidents occurred during Pantoja’s employment or that she was aware of them during her employment.

On appeal, the Fifth District Court of Appeal held that the trial court erred and Ms. Pantoja should have been permitted to introduce evidence of harassment towards others, even if she was not present when it occurred, even if it occurred outside the time period of her employment, and even if she was not aware of it at the time of her employment.  The Court held this evidence was proper under Johnson  and under Evidence Code 1101(b).  It reasoned as follows:

“The court’s in limine ruling erroneously disregarded the possibility that this me-too evidence could be relevant to prove Anton’s intent when he used profanity and touched employees.  Further, by the time the defense had presented its case, it had become clear that Anton’s intent was an issue in dispute, contrary to the court’s belief.  Anton’s case was premised on the claim that his frequent use of profanity at a loud volume was always directed at situations, not people; it happened in the presence of men as well as women; and Anton never would have tolerated harassing behavior by anyone in his office, let alone perpetrated it himself.  To the contrary, evidence that Anton harassed other women outside Pantoja’s presence could have assisted the jury not by showing that Anton had a propensity to harass women sexually, but by showing that he harbored a discriminatory intent or bias based on gender.  It would have enabled the jury to evaluate the credibility of his and other witnesses’ assertions that, although he yelled profanities in the office, he did not use the words Pantoja claimed; he did not direct profanities at Pantoja; and he did not have a discriminatory intent.  We conclude the evidence was admissible to show intent under Evidence Code section 1101, subdivision (b), to impeach Anton’s credibility as a witness, and to rebut factual claims made by defense witnesses.”

Recognizing that Beyda did not go this far, the Court distinguished it by stating that “Beyda does not address the issue of when this type of evidence is admissible to prove intent or the other matters listed in section 1101, subdivision (b).  The plaintiff [in Beyda] apparently did not argue that the evidence was admissible for any of those purposes and consequently the case understandably did not address that issue.” (citing Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 for the proposition that “an opinion is not authority for a proposition not therein considered.”)

The Pantoja Court noted that the trend in federal jurisprudence under Title VII of the Civil Rights Act of 1964 has been interpreted to permit the use of “me-too” evidence under Federal Rule of Evidence 404(b), and that California Fair Employment and Housing Act and Evidence Code section 1101 were written to be the State analogs of those two statutes, respectively.  As such, the federal authority supported the admission of “me-too” evidence, including cases such as Obrey v. Johnson (9th Cir. 2005) 400 F.3d 691, 694-99, Estes v. Dick Smith Ford, Inc. (8th Cir. 1988) 856 F.2d 1098, 1102-04, Heyne v. Caruso (9th Cir. 1995) 69 F.3d 1475, 1479-80, Shattuck v. Kinetic Concepts, Inc. (5th Cir. 1995) 49 F.3d 1106, 1109-10, Spulak v. K Mart Corp. (10th Cir. 1990) 894 F.2d 1150, 1156.

The Pantoja Court did, however, note that Evidence Code section 352 still places limits on the admission of “me-too” evidence in employment discrimination, hostile environment harassment, and retaliation cases.  Thus, the probative value of such evidence still cannot be substantially outweighed by its prejudicial value, and the 1101(a) character/propensity concerns simply factor into the prejudicial side of that equation.  Evidence of a different supervisor harassing an employee sixty years ago, for example, likely would not qualify for the “me-too” admission standards established in Pantoja, but conduct by the same supervisor over the last few years strikes a very different balance.

Refusing to set forth a blanket or bright-line rule about these limits, the Court simply repeated the cautionary language from Johnson to the effect that the “me-too” evidence must “set out factual scenarios related by [other] employees of defendant that are sufficiently similar to the one presented by plaintiff concerning her own discharge by defendant” as to be relevant to the 1101(b), credibility of witness, or rebuttal issues which sustained the Pantoja court’s decision.

The Pantoja decision has changed the way we, as plaintiffs’ employment lawyers, view the presentation of evidence in an employment discrimination trial.  No longer will be myopically concerned with what happened to our own clients, but instead we will seek to discover whether the supervisor, harasser (assuming this is not the supervisor), and/or employer has a long-standing practice of improper behavior.  We will use these doctrines in new contexts (such as race and disability discrimination), pushing the limits of the “sufficiently similar” and 352 borders in which the Pantoja court cabined its holding.  It is an exciting time for discrimination, hostile environment harassment, and retaliation litigation in California, and one likely to lead to still further appellate battles.

If you are experiencing discrimination, harassment, or retaliation at work, we at the Law Offices of Dustin Collier want to hear from you.  Please visit our “Contact Us” page to arrange for your free, 30-minute consultation today!