In this employment discrimination case, we are asked to decide whether the court erred in not allowing the jury to hear "me-too" evidence, that is, evidence of the employer's alleged gender bias in the form of harassing activity against women employees other than plaintiff. Here, the "me-too" evidence related to harassing activity that occurred outside plaintiff's presence and at times other than when plaintiff was employed. At issue is whether the court properly excluded this evidence as propensity or character evidence under Evidence Code section 1101, subdivision (a), or whether it should have been admitted as evidence of a discriminatory or biased intent or motive under Evidence Code section 1101, subdivision (b).
In addition, we conclude that, by granting defendants' motion in limine to exclude evidence of plaintiff's supervisor's use of the word "Mexicans," and rejecting proffers of similar evidence during trial, the court in effect improperly granted relief equivalent to summary adjudication against plaintiff's claim alleging racial discrimination. Finally, we conclude the court did not abuse its discretion when it excluded evidence offered to rehabilitate one of plaintiff's witnesses after defendants impeached that witness.
The judgment is reversed.
FACTUAL AND PROCEDURAL HISTORIES
Plaintiff Lorraine Pantoja filed her complaint in the trial court on March 11, 2004, naming as defendants Attorney Thomas J. Anton and his professional corporation, Thomas Anton & Associates. The complaint alleged that Pantoja began working as an employee of Anton's firm in January 2002. It further alleged that, while Pantoja was working there, Anton slapped Pantoja's buttocks, touched her buttocks, touched her leg while offering her $200, and asked for a shoulder massage. He referred to his employees as "my Mexicans." Finally, he called Pantoja a "stupid bitch" and fired her. It was later established that the firing took place in October 2002.
The complaint alleged violations of the FEHA, wrongful termination in violation of public policy, battery, sexual battery, and intentional infliction of emotional distress. The causes of action for battery, sexual battery, and intentional infliction of emotional distress were dismissed by Pantoja during trial. The cause of action for wrongful termination in violation of public policy was nonsuited. These causes of action are not at issue in this appeal. Only the FEHA claims remained. The complaint included a cause of action referring to FEHA violations in general terms and another cause of action referring to racial discrimination. It was clear at trial that Pantoja was also claiming sex discrimination (Anton fired her because she was a woman) and sexual harassment in the form of a hostile work environment created by Anton's words and behavior.
Defendants filed several motions in limine. Two of these are at issue in this appeal. In motion in limine No. 1, defendants sought to exclude evidence of
In motion in limine No. 2, defendants sought exclusion of all evidence of acts of discrimination and harassment unless Pantoja "personally witnessed such acts" and the acts "adversely affected her working environment." Defendants argued that this would be improper character evidence and would be substantially more prejudicial than probative under Evidence Code section 352.
On May 20 and 21, 2009, the court granted both motions. On motion in limine No. 1, the court cited cases holding that proof of racial harassment requires evidence of a continuously or pervasively hostile environment. The court acknowledged, however, that a single racial slur can be actionable if accompanied by other conduct. Pantoja's counsel made an offer of proof of accompanying conduct, specifically that Pantoja would testify that Anton "called her bitch, used other expletives, harassed her, berated her, and ultimately terminated her." The court stated that this offer of proof did not persuade it to deny the motion, but that it would be willing to "readdress the matter" during trial if Pantoja actually presented evidence supporting the claim of racial discrimination or harassment.
Regarding motion in limine No. 2, the court stated that witnesses other than Pantoja would be permitted to testify about discriminatory or harassing events they witnessed only after presentation of foundational evidence that those events took place while Pantoja was an employee and that she perceived or was affected by them. It stated that this ruling was preliminary and could be revisited during trial "if foundational matters or other evidence establishes the need to go into areas [that] would otherwise be precluded by the ruling on the motion."
Witness testimony began on May 26, 2009, and Pantoja called Anton as her first witness pursuant to Evidence Code section 776. He testified that he had handled sexual harassment cases, representing both plaintiffs and defendants, and had taught seminars on sexual harassment. Pantoja's counsel asked Anton a series of questions about whether he ever engaged in sexually harassing conduct: "[Y]ou've never touched anybody's buttocks at the workplace, correct?" "[Y]ou've never made comments about anybody's breasts at
Pantoja's counsel asked whether Anton had ever called Pantoja a bitch. Anton said no. Counsel then asked whether Anton had ever called anyone a bitch. Defense counsel's objection was sustained. Pantoja's counsel asked whether Anton had touched Pantoja's buttocks on a certain occasion. Anton said no. Counsel asked whether Anton had touched the buttocks of his other female employees. Anton said no as defense counsel objected. The court sustained the objection after a sidebar.
When Pantoja's counsel asked similar questions limited to the time of Pantoja's employment in Anton's office, Anton answered and his counsel did not object. In response to these questions, Anton denied that he touched female employees' buttocks or legs during that time; admitted he may have touched female employees' shoulders; admitted he adjusted an employee's bra strap that had fallen off her shoulder on one occasion; and denied that he often called women at the office bitches during the time of Pantoja's employment. When asked whether Anton had a "practice of prohibiting any type of sexual harassment" during the time Pantoja worked for him, Anton also answered affirmatively, with no objection from Anton's counsel. He said: "[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."
Anton also said he had a process in place by which employees could make complaints about sexual harassment. When Anton again denied he touched Pantoja inappropriately on a certain occasion, Pantoja's counsel asked, "And you don't think so because that's something you'd never do, correct?" Anton answered, "That's exactly right." Again, there was no objection.
The following day, May 27, Pantoja filed a supplemental trial brief again arguing for admission of "evidence of Defendant Anton's sexual harassment and racial discrimination against employees other than Plaintiff ...." The brief argued that the evidence was admissible for several purposes, including to impeach Anton's testimony from the day before that he would not tolerate harassment or discrimination in the office. The court did not make a ruling that day.
Lydia Dunton, an accountant who had worked for Anton, testified out of order for the defense that day. During her testimony, a key theme of the defense emerged. Without any limitation with respect to time, Anton's counsel introduced the subject of Anton's use of profanity. He asked whether Anton ever used "a cuss word"; when Dunton said yes, counsel asked for examples of when he did so. Dunton explained that he did so when he was "recounting something," such as a "funny story." Then Dunton said that sometimes he used profanities angrily, but did not direct them at individuals: "[E]ven if he was upset about something, he might say that so and so, you know—I mean, he didn't say so and so—SOB, you know, talking about someone who had, you know, done something, whatever." Dunton expanded on this point during cross-examination, responding to a specific question about Anton's behavior toward Pantoja by making a general statement that it was not characteristic of Anton to direct profanities at individuals:
"Q. Were you ever present in a room when Mr. Anton directed profanities directly at [Lorraine] Pantoja?
"A. No. That's not his style.
"Q. When you say that's not his style, you're talking about Mr. Anton?
"A. Yeah. He didn't generally direct profanities at people. He might say, that GD so and so, you know, and he'd, you know, talking about some work that was done, or this blankety-blank file is not correct or not complete or whatever, but he never directed it at the person that he was talking to. It was always the situation or the thing or—you know, it wasn't like, you so and so, it was always like this so and so." Defendants emphasize the same idea in their appellate briefs, saying, for instance, that their "theory of the case was that [Anton's profane] behavior and language was not directed at any particular person."
On the next day of trial, June 1, 2009, Pantoja filed a second supplemental trial brief arguing for admission of evidence of Anton's harassing or discriminatory conduct that was witnessed by other employees but not experienced by Pantoja. This time, Pantoja included a detailed offer of proof. She stated that Stefanie Pumphrey (formerly Escudero) would testify that she worked for Anton from April 2002 to September 2003. Pumphrey would testify that Anton put his arm around her shoulders; daily "yelled words such as `fuck, shit, bitches' in the office"; told Pumphrey "monkeys could do your job better than you"; called her five to 10 times while she was on vacation and left "angry obscene messages, such as `You fucking bitch, you fucked everything up'"; fired her and hired her back; stared at employee Erica Garcia (formerly Pitts) while Garcia stood on a ladder and said, "I could see right through that skirt"; put his arms around other employees; used obscene language in speaking to other employees; told other employees they were monkeys and stupid; yelled, "Why can't I get a competent staff?"; and fired and rehired his entire staff.
Jan Humecky, who did contract work for Anton for three years, would testify that Anton went through a lot of staff because of his bad treatment of them; mistreated female employees, including Pantoja, by yelling and saying obscene and insulting things, including, "Why can't I fucking get a good staff?"; "What the fuck is wrong with you?"; and "Bitch, stupid, idiot, incompetent"; and frequently caused the female staff members to cry by behaving in this way.
Lisa Wilbanks, who worked for Anton from August to September 2003, would testify to all of the following: Anton daily leered at his female
Erica Garcia worked for Anton from June 2003 to May 2004 and would testify that Anton suggested Garcia was less competent than Leanne because of her race (Garcia was Hispanic); separated Garcia from Leanne because of her race; said, in the presence of employees, "[I] have three Mexicans working for me. I've never had that many working for me before. Usually you hire Mexicans to do your maid work"; said Garcia "has her head up her ass"; said, "If you don't get your head out of your ass, I'll stick it up my ass and see how you like it"; made comments to Garcia and Leanne about their bust sizes, including the comment that, "[i]f we get T-shirts for the office, we'd have to get extra large because both of your chests are so big"; patted Garcia and Leanne on their buttocks and thighs at least three times, in the presence of other female employees; three times became suddenly enraged, fired Garcia, and rehired her as she was packing to leave; gave Garcia a raise for good work, gave her a warning letter a week later, and then decided to shred the warning letter, saying he was having a bad day because "his wife was on his case"; called or had an employee call Pumphrey every day while Pumphrey was on vacation to demand to know when she would be back; told Pumphrey by phone during this vacation, "You'd better fucking hurry up and get back or else you'll be fired"; fabricated 30 performance-evaluation letters accusing Pumphrey of poor performance after Pumphrey gave notice; told Pumphrey to "get the fuck out" and refused to give her her final paycheck; slapped Leanne on the legs and buttocks and made inappropriate comments during a dinner with a Mr. Lewis; called Leanne a "stupid idiot" after Leanne said she was returning to school; and told Leanne, "You'll never amount to anything."
In spite of its belief that it had conformed to the holding of Johnson, however, the court went on to say that the problem with the offer of proof was that it did not state that the witnesses would testify that the facts about which they had knowledge happened during the time when Pantoja worked for Anton or affected Pantoja's experience. The court also rejected Pantoja's argument that Anton opened the door to the me-too evidence or could be impeached by it because it contradicted his claims about not tolerating harassing or discriminatory behavior. It stated that a defendant could not open the door in this manner under questioning by a plaintiff, and that Pantoja's counsel had violated the in limine order by eliciting from Anton general answers about what he would never do or tolerate, since those answers were not limited to the time period when Pantoja worked in the office. After hearing argument, the court reaffirmed these views. The court also indicated that its rulings really concerned the order of proof, and that the problem with Pantoja's proffer was that it was not the actual evidence. The court commented, "This isn't a court of appeal. It's a trial court, and I can't try the case on paper. It has to be done by witnesses, and it has to be done by evidence."
A fair reading of the court's ruling, in the context of the offer of proof and the parties' arguments, is that the court believed the me-too evidence was inadmissible either to prove Anton's intent under Evidence Code section 1101, subdivision (b), or to impeach Anton, because it did not concern facts that took place while Pantoja was an employee or have an effect on Pantoja's experience as an employee.
The court specified that the testimony of Wilbanks and Garcia could not come in because they were not employed at Anton's firm at the same time as Pantoja. It stated that the offer of proof did not make clear whether Pumphrey and Humecky worked for Anton during Pantoja's tenure. As will be seen, Pumphrey and Humecky did work for Anton while Pantoja was an employee, and they were allowed to testify about events that happened in Pantoja's presence. Wilbanks and Garcia did not testify.
Pantoja testified that she was hired by Anton as a receptionist and a secretary but that, in addition to those duties, Anton often also required her to prepare his lunch and run personal errands for him, including taking his laundry to the cleaners and taking his car to be washed. Anton frequently castigated her about her performance in all these responsibilities, and often called her demeaning names and addressed her in foul language: "He would say `fucking' a lot. He would say—I don't like these bad words. He would say `stupid bitch,' `dumb bitch,' `incompetent bitch.' He used other words like `motherfucker.' [¶] . . . [¶] He called me stupid bitch. `Can't you do this right?' Or `Can't you cut this fucking cheese thinner? Why are you so fucking incompetent? Can't you find a fucking address?' [¶] . . . [¶] ... `You put too much fucking dressing.'"
According to Pantoja, "bitch" was a name Anton frequently called her, but there were other profane and belittling expressions he often directed at her: "I was called a stupid bitch almost all the time. Whenever something wasn't done right in his office, he'd call me a stupid bitch or a fucking bitch. He [also] always used the word[s], `You have your head in your ass.'"
One day, Pantoja said, she was working when Anton passed behind her. As he passed, "he said, `Fucking' c-u-n-t." Pantoja spelled the word in court, but Anton had spoken it. She did not know whether this epithet was directed at her. She found it hard to believe he had really said it, but later believed it when she heard him use the word again a couple of weeks later, referring to someone as "`[t]hat fucking' c-u-n-t."
Anton ridiculed Pantoja in intimate terms any time he saw her sweating from nervousness because of his verbal abuse. Pantoja said: "I would sweat when Mr. Anton would yell at me because I was embarrassed. And I used to sweat a lot when—because of my embarrassment. At one time I was sweating, he—every time I would sweat, he would ask me if I was going through menopause. Not every time I was sweating. Every time he would see me sweat, he would ask me if I was going through menopause." Pantoja found these remarks to be humiliating.
Pantoja testified that she witnessed similar behavior by Anton directed at other female employees. She heard him yelling at Linda Tesillo as he fired
Pantoja also testified that on three occasions, Anton touched her on her buttocks or her thigh in a way she considered inappropriate. He slapped her buttocks one day as he passed her in the hallway, while she was standing in a doorway, speaking to another employee. She jumped, and was shocked. He then motioned to her to come into his office, where he told her to go out and get his lunch. She did not complain to Anton about this, because she believed he would yell at her, as he so often did. She believed she would be fired if she complained to anyone else. She was not aware of any policy or reporting procedure in the office for sexual harassment complaints.
On another occasion, Pantoja was assigned the task of driving Anton to Fresno for the groundbreaking ceremony for the new federal courthouse. On the way back, Anton was speaking to someone on his cell phone. "He said, `I wouldn't mind getting into that bitch's pants.'" Pantoja thought the way he said this "sounded dirty." She testified, "He wasn't speaking to me directly, but I felt like if he was speaking to me." Anton then hung up the phone, rubbed Pantoja's thigh with his hand and asked her if she was okay. As he moved his hand on her leg, her skirt began to move up. She testified, "I was scared because we were in the middle of nowhere.... There was no houses on this side. There was nothing there. It was just fields of nowhere—nowhere to run. Just—I didn't want to provoke him yelling or doing anything, so I didn't say anything to him." After about a minute, Anton removed his hand from Pantoja's leg and said, "I know you missed a week of work. I'm going to give you $200, but that's between me and you." Pantoja testified, "I thought he was offering me money to do something with him." Before they got back to Bakersfield, Anton told Pantoja to stop at a mall. They went in and Anton bought shirts and ties. Pantoja said to herself, "Why am I shopping with him? Why am I going places with him? I'm not his girlfriend. I'm not his wife."
The third instance of unwanted touching happened when Pantoja was in Anton's office, delivering the lunch she had prepared for him. He customarily asked to have his plate set on the floor. As she bent over to put it there, she felt Anton's hand on her buttocks. As he touched her, Anton said, "Bring me some milk, Dear." Pantoja felt "dirty," "embarrassed," and "humiliated." She again did not complain because she thought she would get in trouble and Anton would scream.
Pantoja saw Anton give Stefanie Pumphrey a hug that was inappropriate—it "wasn't the right kind of hug."
The cumulative effect of Anton's behavior on Pantoja was that she dreaded coming to work. "I felt I didn't want to come to work. I felt—I hated having to go to work. I dreaded having to see him. I always wished or prayed that he would be in court somewhere or not there at all, but I had to come to work. I would come to work because I had to." Pantoja further testified, "I felt embarrassed. I felt, of course, humiliated. I was depressed. I didn't want to work anymore. I felt ashamed. I felt belittled. I felt—I hated myself." She bit her nails until they bled and had frequent nightmares in which she was trapped in Anton's office with no windows or doors.
There was one occasion when Anton touched Pantoja in a way Pantoja did not find offensive. An attorney formerly employed in Anton's office died, and Anton patted Pantoja on the shoulder.
Pantoja testified that Anton fired her twice. The first time, Anton needed a large number of photocopies made. He loudly yelled, "I don't give a fuck how you guys get this shit out. You guys need to get this motherfucking copy job done. And I don't care how it gets done, but it's going to get there." Two other employees and Pantoja started the task about 4:30 or 5:00 p.m. Pantoja expected to stay late, but no one told her how late. About 8:00, Pantoja told Anton she had to go home because the woman watching her children could not stay any longer. Anton said, "Well, if you leave, don't bother coming back." Pantoja said, "Okay," and turned to leave. "Did you hear me?" Anton shouted. "Don't bother coming back." Pantoja left in tears. During the following weekend, an employee called Pantoja and told her Anton said he was sorry and wanted her to come back on Monday. She did. When she came in, she heard Anton call from his office, "Is she here?" An employee said she was. Anton called out to Pantoja, "Come here, you motherfucker," and "Get over here, you asshole." Pantoja testified, "He made it known that I was welcome back by calling me those names, I guess."
The second time Anton fired Pantoja, ending her tenure at the firm, was in October 2002. One Sunday, another employee asked Pantoja to copy a document for Anton and leave it out on a counter. According to her
Pantoja testified that Lydia Dunton offered Pantoja her job back on behalf of Anton. Pantoja declined.
Other former Anton employees who testified for Pantoja included Brenda Santamaria, Jan Humecky, Stefanie Pumphrey, and Linda Tesillo. Santamaria worked for the firm for about three months during the time when Pantoja worked there. She testified that one day in the office, while she was speaking with Pantoja, her bra strap fell down to the side of her shoulder. Anton, who was standing nearby, moved the strap back into position with his finger. Then he walked away. Santamaria laughed and said to Pantoja, "This man—this sick man just pulled up my bra strap."
Humecky worked for Anton for a few years as a contract paralegal. She worked with Pantoja at the firm briefly. She heard Anton call Pantoja a "stupid idiot" and "incompetent," and make her cry by screaming at her. Several times, when Pantoja was present, Humecky heard Anton say, "Why can't I fucking get good staff?" She heard Anton say "bitch" in a loud voice when Pantoja was present. Humecky also heard Anton say "[s]hit," "damn," "hell," "fuck," and "ass" in Pantoja's presence. She saw Pantoja enter Anton's office and then heard Anton yelling at her. She heard Anton directing profanities at Pantoja.
Pumphrey worked at Anton's firm in 2002 as an office manager. Her time at the firm overlapped with Pantoja's by about a month. She saw no posters about sexual harassment in the office and received no training on receiving sexual harassment claims. She heard Anton call Pantoja a "bitch" and a "fucking bitch." She testified that he directed profanities at Pantoja often. "He would just, you know, use profanity. Whether it was to tell her to get a file, whether she did something wrong, he would use the word, you know, `bitch,' `shit,' `goddam it,' `fucking.'" Anton yelled at Pantoja daily, and sometimes caused her to cry. Every time he needed a file, for instance, he would demand it using profane language. He yelled at her about the salads she made for him. "Just like, you know, `Shit. You fucking forgot this,' or `Can't you do this right,' you know. `Son of a bitch, you can't get anything right.' Those are
Tesillo worked as a legal secretary for Anton for a few months during the time when Pantoja was employed in the office. Often, while Pantoja was present, Tesillo heard Anton use profanities, saying, for instance, "Get me that . . . fucking file." When he did this, "everybody heard him because you could hear a pin drop in the office."
On June 4, 2009, after Pantoja had presented virtually all her other evidence, she again moved for admission of the me-too evidence. In support of the motion, she filed declarations by Wilbanks and another former Anton employee, Lisa Beatty. Wilbanks's declaration asserted the same facts as the offer of proof included in Pantoja's second supplemental trial brief, as described above. Beatty's declaration stated that she worked for Anton as an attorney for seven months in 2004 and 2005. While working at the firm, she "repeatedly heard Mr. Anton yelling and screaming at the female support staff and his male law clerk." He did not yell at Beatty. "Due to the intensity of the yelling and what was being said," she "always anticipated a physical escalation." She did not remember the specific profane words Anton used, but knew the language was offensive and demeaning. She told Anton she thought he might get sued and should stop, but Anton said he was doing nothing unlawful.
Beatty decided to quit working at the firm because of "all his yelling, screaming and abusiveness of the people in the office." Before telling Anton she was leaving, however, she wanted to finish a matter she was working on, which was going to trial. During the trial, she was riding in a car with Anton and some other people. She was in the backseat and Anton was in the front. Anton turned to face her and speak to her. As he spoke, he placed his hand on her knee, which was exposed because her skirt had moved up above it while she was sitting. She felt "shocked and repulsed." When the trial was over, she quit her job.
The court again ruled that Pantoja could not introduce evidence of harassing or discriminatory conduct by Anton toward other women when Pantoja was not present. It stated, first, that this evidence was not admissible under Evidence Code section 1101, subdivision (b), or Johnson: "Well, I haven't heard anything that changes my ruling with respect to the Johnson issue. I don't think we've reached any level of Evidence Code Section 1101(b). I don't find that there is any issue of identity, intent, or the other exceptions under 1101 that would apply. What we essentially have here is we
Pantoja's counsel argued that Anton opened the door to the me-too evidence by testifying that he never did the kinds of things Pantoja described; the evidence was admissible to impeach the testimony. The court repeated its earlier ruling that Anton's testimony could not be impeached in this way because the testimony was elicited by Pantoja's counsel through questions that violated the in limine ruling against admission of evidence of any conduct other than conduct that took place in Pantoja's presence. Pantoja's counsel replied that Anton testified under questioning by his own counsel, and outside the scope of Pantoja's counsel's Evidence Code section 776 examination, that he had and followed a sexual harassment policy. The me-too evidence was admissible because it controverted Anton's claims on that point. The court was not persuaded.
The court ruled that Beatty could not testify for the additional reason that she actually performed work as an attorney in the present case while employed by Anton. The fact that she claimed to have been sexually harassed by him was not a "compelling reason" sufficient to justify allowing her to testify. The work she performed, according to defense counsel, was the defense of Pantoja's deposition of Brenda Santamaria.
Anton testified briefly in his own defense, adding to the denials he made when testifying during Pantoja's case under Evidence Code section 776. He stated that he did not touch Pantoja's buttocks when she was setting a plate on the floor in his office and could not have reached her in the place where she was standing. He denied using any profanities the night Pantoja had to go home at 8:00 p.m. to take care of her children. He stated he did not know the reason why she was leaving until later and rehired her after he found out. He denied he called her profane names the day she returned.
Other defense witnesses included Gabriel Godinez, Jeffrey Wise, and Diane Godinez. Gabriel Godinez was an attorney who worked for Anton in 2002, when Pantoja was an employee, and also was working for him at the time of trial. He testified that, during the time he was working there, he often heard Anton yelling and using profanity. He heard Anton say "damn it," "son of a bitch," and "fuck" when "something [was] not going right," for instance, when a client failed to provide a necessary document or was slow in paying Anton's fees. Godinez claimed Anton yelled and used profanities in the
He further testified that he did not remember any time when Anton directed any profanity at Pantoja. He never heard Anton use the word "c-u-n-t." He never heard Anton call Pantoja, or anyone else, a bitch. He only used the word as part of the phrase "son of a bitch" to express frustration. He never, when Pantoja was present, heard Anton use "the term `head up your butt.'" He never saw Anton touch Pantoja's buttocks. He saw Anton hug people sometimes, on appropriate occasions, such as the death of a staff member's relative or the birth of a staff member's child.
Jeffrey Wise, an attorney, worked for Anton from 1999 to 2004. Like Gabriel Godinez, Wise testified that he often heard Anton yelling profanities, but that Anton did so in the presence of men and women alike and directed the yelling at situations, not people. Wise gave an example in which he conceded that he might have deserved to be yelled at, but even then, although Anton was angry and used profanity, he did not direct it at Wise:
"Q. Can you tell the jury what you remember about that, Mr. Wise?
"A. Well, there was an instance where I was in charge of a case, and we had a miscommunication on obtaining experts for it, and the deadline to do so was upon us, and we hadn't retained an expert, and it was Mr. Anton's belief it was my responsibility, and I thought it was something that he was handling.
"Q. And did he use some profanity?
"A. Yes, he did. [¶] . . . [¶]
"Q. What was the context of the profanity in terms of whether or not it was directed at you?
"A. Well, missing deadlines as an attorney is one of the fatal errors that we can do, and the situation itself was very frustrating and very disturbing, so it was a pretty heated, intense moment, and I think it was directed more at the
Wise never saw Anton touch Pantoja in "any kind of sexual way." He sometimes saw Anton hug employees on suitable social occasions. He did not remember Anton ever swearing at Pantoja. He heard Anton say "bitch," but only as part of the phrase "son of a bitch." He once heard Anton say "motherfucker," but he did not remember whether or not this was during the time Pantoja was an employee. For a time, Wise was the most senior employee, but Pantoja never brought any complaint to him about Anton's behavior. He did recall when Anton fired the entire staff and then hired them back.
Diane Godinez was a paralegal employed by Anton. She worked for him off and on between 2001 and the time of trial. In 2002, she worked at the firm until September. Like Lydia Dunton, Gabriel Godinez, and Jeffrey Wise, Diane Godinez testified that, during the time Pantoja worked at the firm, Anton often yelled profanities in the office, in the presence of both men and women. She heard him say "son of a bitch" and "fuck." Like Anton's other witnesses, however, she testified that Anton directed these tirades at situations, not individuals: "He did not direct things like that at an individual. It was at a situation, something that had gone on that was happening, and he was in his office, and that was when he would say it."
She also testified that she never heard Anton call Pantoja a bitch, a cunt, or a motherfucking asshole or refer to her or any other employee using any curse word. She said that on the night when Anton fired Pantoja for leaving at 8:00 p.m., Pantoja had told her that she needed to leave for childcare reasons, but she had not yet relayed that information to Anton. She never knew of any complaint by Pantoja about being touched by Anton.
On June 8, 2009, the last day of testimony, Pantoja filed a declaration by Erica Garcia. It stated the same facts as the offer of proof included in Pantoja's second supplemental trial brief, as described above.
Defendants filed a motion for nonsuit on June 8, 2009. The court granted the motion on Pantoja's claim of racial discrimination, saying Pantoja had
Next, Pantoja made a final motion for admission of the me-too evidence, now for purposes of rebuttal. Her counsel argued that the defense opened the door to this evidence by presenting its own evidence that Anton never engaged in the kinds of behavior Pantoja alleged. Counsel contended that the me-too evidence therefore should come in to impeach Anton and his witnesses and to rebut this line of defense.
The court rejected the request, saying the defense did not elicit testimony about Anton's behavior during periods other than the period when Pantoja worked at the firm: "I did not hear the Defense open the door in their questioning of witnesses. There were some questions that were posed by plaintiff in cross-examination that I suppose taken out of context could be interpreted to expand beyond the time period and plaintiff attempting to elicit an answer that expanded beyond the time period that applies to the plaintiff's employment, but I didn't hear the Defense do it." To the extent that evidence about other time periods came in, the court said, it was in response to questions by Pantoja's counsel. "That flies in the face of the Court's order on the motion in limine," the court stated. In light of the ruling, Pantoja presented no rebuttal evidence.
In his closing argument, part of defense counsel's strategy was simply to say that Pantoja was not a credible witness and should not be believed. He asked the jury to say to itself, "We don't think, Ms. Pantoja, you're remembering all of these things the way you're telling us." Another part of defense counsel's strategy was to suggest that Pantoja often overreacted to behavior that could not reasonably be considered offensive. He said Anton's social touching and hugging, as described by defense witnesses, was offensive "only if you are perhaps hypersensitive." "You can't just set yourself up as being particularly offended by everything that happens," he went on. Finally, defense counsel stressed the point that had been made unanimously by four of his witnesses: Although Anton often shouted profanities in frustration, he did so in the presence of men and women equally and directed his words at situations, not individuals. Counsel argued: "Under all of the
Using a special verdict form, the jury found for the defense. To the question "Was Lorraine Pantoja subjected to unwanted harassing conduct because she was a woman," the jury answered no. It also found that the firm discharged Pantoja, but that her gender was not a motivating reason for the discharge.
Pantoja filed a motion for a new trial. She argued that, for the reasons she presented before and during trial, the court erred when it excluded the me-too evidence. She also argued that the court gave erroneous jury instructions, for reasons we will describe later. Finally, she argued that statements in a juror's declaration established grounds for a new trial.
Pantoja's motion argued that this declaration was admissible under Evidence Code section 1150. It further argued that the declaration showed that the jurors made statements to each other that improperly influenced the verdict.
The court denied the motion.
I. Me-too evidence of sexual harassment
Pantoja argues that the court erred when it ruled, both before and during trial, that evidence of sexual harassment by Anton of other employees was admissible only if it took place in Pantoja's presence or otherwise affected her working environment. We agree that it was error for the court not to admit this evidence.
We begin with a discussion of Evidence Code section 1101 (section 1101) and two cases on which the parties rely, Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511 [76 Cal.Rptr.2d 547] (Beyda) and Johnson. Section 1101 provides:
"(a) Except as provided in this section and 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.
"(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.
"(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness."
The Law Revision Commission comments on this section explain that section 1101, subdivision (a) codified existing law to exclude character evidence in civil cases for three reasons: "First, character evidence is of slight probative value and may be very prejudicial. Second, character evidence tends to distract the trier of fact from the main question of what
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 apparently did not argue that the evidence was admissible for any of those purposes and consequently the case understandably did not address that issue. (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 [39 Cal.Rptr. 377, 393 P.2d 689] ["an opinion is not authority for a proposition not therein considered"].)
The cases relied on by Johnson included Obrey v. Johnson (9th Cir. 2005) 400 F.3d 691, 694-699 (evidence that other employees experienced racial discrimination in promotions admissible to show pattern and practice of discrimination, supporting the plaintiff's claim that he was not promoted because of race); Estes v. Dick Smith Ford, Inc. (8th Cir. 1988) 856 F.2d 1097, 1102-1104 (evidence of racial discrimination in hiring and in treatment of customers admissible to show climate of bias, supporting the plaintiff's claim he was fired because of race); Heyne v. Caruso (9th Cir. 1995) 69 F.3d 1475, 1479-1480 (testimony of other female employees that employer sexually harassed them admissible to support the plaintiff's claim of quid pro quo
The Johnson court concluded that, under this kind of reasoning, the evidence of pregnancy discrimination against other employees "sets out
The reasoning in Johnson is persuasive. It applies directly to Pantoja's claim that Anton's behavior toward her arguably revealed a gender bias that motivated her firing. The excluded evidence tended to show that Anton harbored a gender bias and therefore tended to disprove the ostensible reason for her dismissal.
We conclude the trial court abused its discretion when it excluded the me-too evidence, both when ruling on defendants' in limine motion and when revisiting the issue during trial. The in limine ruling was an abuse of discretion because it was based on the erroneous assumption that the me-too evidence was inadmissible no matter what it was offered to prove. The court said it understood Johnson; however, when Pantoja's counsel argued that the evidence could come in to prove intent, the court's response was that foundational evidence would be required first—by which it apparently meant evidence that the conduct took place in Pantoja's presence or was known by her. This response missed the point counsel was making about Johnson, for the evidence was admissible to prove Anton's intent or motive even if the conduct did not take place in Pantoja's presence and was unknown to her. The court said it would be willing to revisit the issue if foundational evidence was presented, but its view of what would be required as foundation reflected a misunderstanding of the law.
The court made a similar mistake when Pantoja's counsel again moved for admission of the me-too evidence after Anton testified under Evidence Code section 776 and, especially, after the defense had presented its evidence and Pantoja sought to use the me-too evidence for rebuttal. One reason the court gave for continuing to exclude the evidence was that defense counsel, when examining witnesses, confined his questioning to the period of Pantoja's employment, so the defense did not open the door to questioning, by way of impeachment or rebuttal, about other time periods. The court reasoned that if Pantoja's counsel succeeded in eliciting responses about other time periods
This rationale reflected the court's continued mistaken belief that, in spite of Johnson, evidence of Anton's harassing or discriminatory behavior toward his other female employees was inadmissible unless it happened in Pantoja's presence or Pantoja learned of it. In addition, there is no basis for the court's belief that Pantoja's counsel violated the in limine order. The in limine order barred questioning of employee witnesses about harassing conduct they witnessed that did not take place in Pantoja's presence or otherwise affect her work environment. It did not bar questioning of Anton about his general policies or practices regarding sexual harassment. We do not see how it could have done so, since an employer's policies and practices regarding harassment are facts relevant to the cause of action. An order allowing questioning about these policies and practices as they existed during Pantoja's employment but prohibiting it with respect to any other times would have made little sense. There was no reason to believe that Anton suddenly adopted policies or practices during the nine months of Pantoja's employment and abruptly discontinued them after, or vice versa.
Finally, the court's belief that all references to time periods other than the period of Pantoja's employment emanated only from questioning by plaintiff's counsel is not supported by the record. The consistent theory of defendants' case, both at trial and on appeal, is that Anton's practice was to direct his profane tirades at situations, not individuals, and his policy was not to tolerate sexual harassment. Anton's theory was not that he had this practice and policy only during the nine months when Pantoja worked for him and did not have them before or after. His theory was that he had the policy and practice all the time, or at least during the several years covered by the evidence. Even if he had advanced the theory that he had the policy and practice only while Pantoja was working for him, evidence that he did not have them at other times would have supported a rational inference that he did not have them at all. Either way, eyewitness testimony that he had no such policy or practice at any time was directly relevant to show his intent, to rebut his evidence, and to impeach his credibility.
The me-too evidence was relevant both to prove gender bias and to rebut the defense evidence that Anton had a policy of not tolerating harassment and a practice of not directing profanity at individuals. If, as the me-too evidence tended to show, Anton lacked this policy and practice when Pantoja was not present and during times when she was not an employee, the jury could rationally infer that he also lacked them when she was an employee and was present.
Second, the jury's task was not just to decide whether it believed Pantoja and her witnesses. It also had to decide whether it believed Anton and his witnesses. Given the nature of the defense—Anton had a policy of not
The parties' briefs separately address the question of the admissibility of the me-too evidence under section 1101, subdivision (b), to prove intent and the question of its admissibility under section 1101, subdivision (c), to impeach defense witnesses. As our discussion above indicates, the two issues are inseparably intertwined in this case. The evidence was admissible under subdivision (b) to show Anton's intent and to rebut his theory that he had a practice of engaging in profane tirades without bias and a policy of not tolerating harassment. It also was admissible under subdivision (c) to impeach his testimony about his intent, his policy, and his practice. (See, e.g., Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d 938, 945-946 [252 Cal.Rptr. 716] [prior incidents of correctional officer's misconduct admissible to impeach his claim that he had "`developed patience working with'" prisoners; "a witness who makes a sweeping statement on direct or cross-examination may open the door to use of otherwise inadmissible evidence of prior misconduct for the purpose of contradicting such testimony"].)
To the extent that the rulings were based on Evidence Code section 352, we conclude the rulings were an abuse of the court's discretion. If the evidence had been admitted, the jury would have had additional grounds for believing Pantoja's contention that Anton harbored a gender bias that was expressed in his words and actions toward her, and additional grounds for disbelieving Anton's contentions that he had a policy of not tolerating harassment and a practice of not directing profanity at individuals. These were crucial issues, and the probative value of the evidence is unquestionable. The risk of a prejudicial effect was the possibility that the jury would have used the evidence improperly as evidence of a propensity to act in the manner described. A limiting instruction could have mitigated this risk sufficiently.
Defendants argue that any error was harmless. We disagree. Defendant's harmless-error argument is based on the notion that Pantoja had "no case" in any event, because there was "no proof of any actual bias or animus" on Anton's part, so the erroneous exclusion of evidence could not have made any difference. Defendants' appellate brief asserts repeatedly, starting on page 1, that there is "no evidence" in the record that the workplace conditions Pantoja alleged were connected with gender bias. If this assertion were correct, of course, it would follow that there was nothing that could be
Absent the erroneous rulings, the jury would have heard the testimony of Lisa Wilbanks that Anton leered at female employees' buttocks frequently, pulled out the elastic of Erica Garcia's underwear to read the label, and told Garcia to wear see-through clothing. It would have heard Garcia testify that Anton said she and Leanne would need extra-large T-shirts because their breasts were large, and that Anton patted her and Leanne on their buttocks and thighs more than once. It would have heard Pumphrey testify that Anton left her a phone message calling her a "fucking bitch." There is a reasonable probability that this evidence of Anton's gender bias, which corroborated Pantoja's other evidence of Anton's gender bias, would have tipped the balance in a credibility contest like this case.
"BY MR. CLIFFORD [defense counsel]:
"Q. Do you remember, Ms. Humecky, on these occasions where other people were present and you heard the word `shit' or `bitch,' was it `son of a bitch,' `bitch'? Do you remember one way or the other?
"Q. And these would involve situations where, as you've described, Mr. Anton was displeased or angry with something?
"Q. That would have been the situation?
"MR. CLIFFORD: All right. Those are all the questions that I have. Thank you very much.
"THE COURT: All right. May this witness be excused?
"FURTHER REDIRECT EXAMINATION
"BY MR. WILSON [plaintiff's counsel]:
There are other examples. The court sustained numerous objections to Pantoja's counsel's efforts to ask whether Pantoja ever heard Anton call her a bitch, or use other profanities toward her or other employees. For instance, Pantoja's counsel asked her, "How often would you say he directed profanities at you during the term of your employment there?" The court sustained the objections, "Relevance, lack of foundation . . . overbroad." Counsel asked, "During the time that you were employed there, what profanities did Mr. Anton direct at you?" The court sustained the objections "Relevance, overbroad, nonspecific." Counsel asked, "Ms. Pantoja, did Mr. Anton ever call you a bitch while you were working there?" The court sustained the objection "[l]eading." Similarly, the court sustained an objection that the question was leading when counsel asked Pantoja whether she ever heard Anton say, "Fuck all of you employees." On the other hand, when counsel
Counsel argued to the court that these rulings created a catch-22. If counsel asked a question about a specific profanity, the witness could not answer because the question was leading; but if counsel asked a question about profanities in general, an objection would be sustained because the question did not single out the specific profanities the court considered to be relevant. The court explained: "There is a middle ground that you must achieve. That's all I can say."
The court often excluded evidence of Pantoja's feelings about things Anton did to her and others, even though her subjective experience of a hostile environment was an element of her cause of action. For instance, the court excluded, as an improper lay opinion, Pantoja's answer to the question, "Did you ever see Mr. Anton touch other female employees at the office in a way that you considered inappropriate?" After Pantoja testified that she saw Anton touch female employees on their arms and shoulders, counsel asked whether she considered the touching inappropriate. The court sustained another improper lay-opinion objection and then stated, outside the presence of the jury, that there was no "sufficient description" of the touching to allow the opinion, because it was only a touching of an arm or shoulder, not buttocks or a leg. The court referred to Lydia Dunton's use of the term "avuncular" regarding Anton's hugs as the sort of description that would be necessary. Dunton used that term to express her lay opinion that Anton's hugs were appropriate and inoffensive—exactly the sort of lay opinion the court would not allow Pantoja to express when describing the touching that she observed.
We conclude that, in the event this case is retried, both parties need to be given the opportunity to present their evidence in an evenhanded manner. Only then will the jury be able to fulfill its responsibility of determining where the truth actually lies based on a balanced and accurate review of admissible evidence.
II. Racial discrimination evidence
Pantoja argues that the court abused its discretion when it granted defendants' motion in limine to exclude evidence of Anton's references to Mexicans, which would have been offered to support her claim of racial discrimination. She also argues that the court abused its discretion when it excluded evidence of racial discrimination that was included in the proffer of me-too evidence she made during trial. We agree on both points.
The defense motion argued that the "court should exclude any reference to the term `Mexicans' in any context in this case." This argument is not well taken in the context of a motion in limine in a case where the plaintiff was a Mexican-American and there was a cause of action alleging racial discrimination. Defendants claimed Pantoja did not have enough evidence of racial discrimination, since the fact alleged in the complaint and in Pantoja's deposition—that Anton referred to Pantoja and her coworkers as "my Mexicans"—could not, by itself, prove that Pantoja was fired because of her race or that there was a racially hostile environment at the firm. The court embraced this contention, saying in its oral ruling that it would allow "no reference to the isolated remark absent some showing of other conduct."
The court stated that it would reconsider the ruling if additional evidence was offered. Pantoja later proffered, in a supplemental trial brief and a declaration, testimony by Erica Garcia that she heard Anton say "[I] have three Mexicans working for me. I've never had that many working for me
The exclusion of evidence of racial bias on this ground was an abuse of discretion for reasons similar to the reasons why the exclusion of evidence of gender bias on the same ground was an abuse of discretion. The evidence was relevant to the intent element of the racial discrimination cause of action. The excluded evidence might not have been sufficient to establish that cause of action, but defendants apparently did not take the opportunity to seek summary adjudication in the procedurally appropriate manner (i.e., by filing a motion conforming to the requirements of Code Civ. Proc., § 437c) before trial. Instead, defendants chose to make the request at trial, where the question of the weight of the evidence was for the jury.
We do not see any reason why the proffered evidence would be substantially more prejudicial than probative; and defendants do not state any specific reasons why it would be. We conclude the evidence could not properly have been excluded under Evidence Code section 352.
Finally, defendants contend that if there was any error on this issue, it was not prejudicial. We need not address this question, since we are reversing the judgment for other reasons.
III. Witness credibility rehabilitation evidence
Pantoja argues that the court abused its discretion when it refused to permit Pantoja's counsel to elicit testimony from witness Stefanie Pumphrey to rehabilitate Pumphrey's credibility after defense counsel elicited testimony from Pumphrey that impeached her. Defendants argue that, under People v. Zemavasky (1942) 20 Cal.2d 56 [123 P.2d 478] (Zemavasky), the court not
As already mentioned, Pumphrey gave testimony that, among other things, corroborated Pantoja's testimony that Anton called Pantoja "bitch" and shouted other profanities at her routinely. Defense counsel impeached Pumphrey in the following exchange on cross-examination regarding the unemployment claim Pumphrey made after Anton fired her:
On redirect, Pantoja's counsel began asking why Pumphrey had this animosity, leading immediately to an unreported sidebar conference. After the
The next day, Pantoja's counsel sought leave to question Pumphrey further about what Pumphrey later learned about the unemployment proceedings. He made this offer of proof: "[S]he would testify, number one, at the EDD hearing she believed fraudulent documents were presented in order to deny her EDD claim that she saw; and that, number two, she subsequently learned from Erica Pitts that she, Erica Pitts, told Ms. Pumphrey that Mr. Anton had ordered Erica Pitts to prepare these documents the night before the hearing."
The court denied the request under Evidence Code section 352 on the ground that it would involve undue consumption of time: "I guess perhaps you wish to establish that her animosity is justified, but to do that, you're going to be getting into an issue that I consider a collateral matter. I just simply have to exercise my discretion on that under 352. It's a collateral matter. I don't want to retry the veracity of documents in some sort of EDD proceeding. I just want to do that because in part I'm looking at the list of witnesses that was presented to me and the time that's available to complete this trial for the plaintiff as well. So I consider that a collateral matter, and I'm not going to permit it." The court also stated that granting Pantoja's request would lead to a "minitrial of the EDD proceeding" and "getting into the basis of her termination. . . ."
Pantoja argues that the court abused its discretion. Pumphrey's testimony provided important corroboration of Pantoja's account of Anton's harassment, Pantoja argues, so the probative value of the evidence was great and could not be outweighed by a desire to finish the trial more quickly.
We conclude the trial court had discretion to allow the rehabilitation on redirect. It was the defense—the proponent of the impeachment and the opponent of the rehabilitation—that first asked Pumphrey, during cross-examination, why she had animosity, eliciting the response that it had to do with the denial of her unemployment claim. As a result, the jury was effectively invited to conclude that Pumphrey was a mere disgruntled former employee, fired for cause and angry because that meant she could not collect
The court did not abuse this discretion by excluding the evidence in this case. Pantoja's trial counsel did not object when defense counsel asked, on cross-examination, why Pumphrey felt animosity toward Anton. Presumably, the reason why Pantoja's counsel did not object was that, like defense counsel, he wanted to use the inadmissible rehabilitation evidence for advantage. Both sides were trying to exploit that evidence, although neither could properly do so. One response available to the court was a curative jury instruction, but no such instruction was requested. Another was the course of action Pantoja wanted to pursue—rehabilitative questioning about Anton's alleged falsification of documents. The court was right, however, to take account of the fact that substantial time could be necessary to present evidence relevant to what Pumphrey heard about Anton's actions in the unemployment proceedings and whether it was true. It did not exceed the bounds of reason when it decided that this was not justified.
Pantoja argues that even if the evidence about Anton's alleged behavior in the unemployment proceedings was inadmissible under Zemavasky for the purpose of rehabilitating Pumphrey, it was admissible me-too evidence of Anton's gender and race bias. She argues that the evidence is relevant to those issues because Anton's treatment of Pumphrey, including harassment and termination, were similar to Anton's treatment of Pantoja and reinforces the claim that he engaged in this type of treatment of Hispanic women employees for reasons of bias. Pantoja did not argue at trial that the evidence was admissible for this purpose on redirect after defense counsel impeached Pumphrey on cross-examination, so the argument is not preserved for appeal.
IV. Lyle instruction
At the request of the defense, the court gave the following special jury instruction, based on Lyle, supra, 38 Cal.4th 264: "A hostile work environment/sexual harassment claim is not established where a supervisor or coworker simply uses crude or inappropriate language in front of employees without directing sexual innuendo or gender-related language toward a plaintiff or toward women in general." Pantoja argues that this instruction was erroneous, and that, even if it were not erroneous, the court should have given the additional special instructions that she requested. We conclude the instruction that was given is a correct statement of the law and was properly given; however, based on the facts of this case, the court should have given additional special instructions. We express no opinion on whether the particular special instructions Pantoja requested were the appropriate instructions.
Lyle involved a claim by a female employee of a television production company that the use of sexual language in the workplace by the male writers of the comedy Friends gave rise to a hostile work environment. (Lyle, supra, 38 Cal.4th at p. 271.) The Supreme Court "granted review to address whether the use of sexually coarse and vulgar language in the workplace can constitute harassment based on sex within the meaning of the FEHA. . . ." (Id. at p. 272.) It concluded: "Here, the record discloses that most of the sexually coarse and vulgar language at issue did not involve and was not aimed at plaintiff or other women in the workplace. Based on the totality of the undisputed circumstances, particularly the fact the Friends production was a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes, we find no reasonable trier of fact could conclude such language constituted harassment directed at plaintiff because of her sex within the meaning of the FEHA." (Lyle, supra, 38 Cal.4th at p. 272.)
The three additional instructions unsuccessfully requested by Pantoja were as follows. If given, they would have come immediately after the Lyle instruction the court gave:
"`However, the pervasive use of derogatory and insulting terms relating to women generally and addressed to female employees personally may serve as evidence of a hostile environment.' [¶] . . . [¶]
The instruction the court gave clearly was an accurate statement of the law; it was virtually a quotation of a holding in Lyle. We agree with Pantoja, however, that without additional instructions, the instruction given was misleading under the circumstances of this case. Without some form of clarification, the instruction could have caused the jury to draw the inference that harassing conduct or comments motivated by a gender-based discriminatory intent do not amount to an actionable hostile environment unless there are "sexual innuendos" or "gender-related language." This inference would be incorrect because abusive conduct that is not facially sex specific can be grounds for a hostile environment sexual harassment claim if it is inflicted because of gender, i.e., if men and women are treated differently and the conduct is motivated by gender bias. (See, e.g., E.E.O.C. v. National Education Assn., Alaska (9th Cir. 2005) 422 F.3d 840, 842.) In this case, there was evidence of both gender-related (e.g., "bitch") and non-gender-related (e.g., "fucking idiot," "fucking worthless," "[y]ou have your head up your ass") language. The instructions could have encouraged the jury to disregard
This kind of misunderstanding could arise from a facially correct quotation from Lyle because of the difference between the unique factual context of Lyle and the factual context of this case. It was undisputed that sexual and gender-based language was common in the workplace in Lyle. In fact, this behavior was not only common, it was expected, and the plaintiff in Lyle, when hired, was warned about it. The question was whether this behavior could amount to sexual harassment where there was slight or no evidence that the language was directed at women or used with a discriminatory intent as opposed to being part of a creative artistic environment. A central fact in Lyle was that the workplace was a production company for a television comedy that revolved largely around sex jokes. In moving for summary judgment, the defense presented evidence that the use of sexual language was simply a reflection of the nature of the company's task in producing the show, so there was no biased or discriminatory intent. The plaintiff was not able to present evidence to raise a triable issue about whether the real reason was gender bias.
This case is very different. Pantoja presented evidence that arguably would support a jury's finding that Anton used abusive language and engaged in unwanted touching because of gender. An instruction seeming to limit relevant evidence to evidence of "sexual innuendos" or "gender-related language" could have confused the jury. Pantoja wanted the jury to infer that Anton's verbal abuse and hostility toward her were motivated by gender bias even when his profanities were not gender specific. The instruction given, without clarification, could have caused the jury to believe the law barred this conclusion.
Defendants contend that the pattern instructions the court gave the jury on the definition of sexual harassment sufficiently covered the issue of what types of conduct were relevant.
The problem with the instructions given is highlighted by the court's remarks in its written order denying Pantoja's motion for a new trial. The court wrote: "The instruction given by the court was particularly appropriate in this case where plaintiff had established by nearly undisputed testimony that Anton was prone to fits of anger, using [coarse] and vulgar epithets for all to hear in the workplace. Under these circumstances, the jury needed to remain focused upon the legal requirements for sexual harassment and not simply render a verdict because they found Anton's behavior generally objectionable or vile."
Further, the instruction was not necessary to shield defendants from the jury's expected reaction to Anton's "generally objectionable or vile" behavior. The jury could have been cautioned not to hold against Anton any behavior it found to be offensive, but not motivated by gender or racial bias. That kind of cautionary instruction would have been compatible with both the Lyle instruction the court gave and the clarifying instructions it should have given.
In sum, the Lyle instruction the court gave was a correct statement of the law but was potentially misleading in the context of this case because it could have caused the jury to focus exclusively on the presence or absence of sexual innuendo and gender-related language and ignore the possibility of other abusive conduct motivated by gender bias. The court should have given
Defendants claim that if there was any error in the instructions, it was not prejudicial. We need not discuss this issue because we are reversing the judgment for the other reasons we have discussed.
V. New trial motion
Pantoja argues that the trial court erred when it denied her motion for a new trial based on the grounds discussed above and the juror declaration. Since we are reversing the judgment for the reasons we have discussed, it is not necessary to address this contention.
The judgment is reversed. Pantoja is awarded her costs on appeal.
Cornell, J., and Gomes, J., concurred.