Company Violated Its Own Policies Regarding Employee

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace discrimination/personal injury case and its proceedings.)

Court Improperly Excluded Prior Inconsistent Statement of Tony Anson

In order to challenge the credibility of a witness a party may introduce a statement made by the witness that is inconsistent with any part of a witness’ testimony at the hearing. (Evid. Code § 780(h).) In the instant case, defense witness Tony Anson testified that Plaintiff made inappropriate remarks of a sexual nature and that his conduct in doing so was unprofessional. Shortly after Plaintiff was terminated, however, Mr. Anson wrote a letter in support of Plaintiff, noting his professionalism. The court, over the objection of Plaintiff, would not permit Plaintiff to introduce the letter. The letter had previously been excluded on a ruling by the court that the letter was made in the course of trying to settle the case. This itself was an erroneous ruling, but the court should have permitted the letter to be admitted for the limited purpose of impeaching Mr. Anson.

Mr. Anson’s testimony was prejudicial to Plaintiff in that Mr. Anson had not been identified by Plaintiff as a person who was in defendant Byrd’s circle of influence. This may have mislead the jury to giving his testimony more weight than it deserved.

Court Improperly Excluded Testimony of Human Resources Expert Regarding Industry Standards of Investigating Allegations of Discrimination and Sexual Harassment

California law particularly permits human resource testimony about whether an employer follows or departs from its own policies and standard practice in the industry. Testimony regarding whether the employer had followed proper personnel standards is well within the professional management expert. (Kotla v. Regents of the University of California (2004) 115 Cal.App.4th 283, 293 fn. 5.)

Human resource expert testimony is generally proper in employment cases: Expert testimony on predicate issues within the expertise of a human resources expert is clearly permissible. For example, evidence showing (or negating) that an employee’s discharge was grossly disproportionate to punishments meted out to similarly situated employees, or that the employer significantly deviated from its ordinary personnel procedures in the aggrieved employees case, might well be relevant to support (or negate) an inference of retaliation.

Opinion testimony on these subjects by a qualified expert on human resources management might well assist the jury in fact finding. (Id. at 294 fn. 6.) In fact, this is no different than offering expert testimony essentially on the standard of care of a medical doctor in a malpractice case. (See People v. Glass (1968) 266 Cal.App.2d 222 (allowing expert to testify that signage and construction in area of accident was not in accordance with accepted industry standards); Neal v. Farmers Ins. (1978) 21 Cal.3d 910 (expert testified in insurance bad faith case that carrier failed to follow industry standards).)

In this case the court improperly excluded Plaintiffs human resources expert from testifying. This was prejudicial to Plaintiff in that not every lay person understands what constitutes a fair, thorough and independent investigation, or the possible range of appropriate discipline. Further there were other points the expert would have testified to that would have helped the jury understand other points about Plaintiffs claims; in particular, (1) that taking and responding to anonymous complaints of discrimination and harassment is very important in a serious effort to eliminate discrimination and harassment from the workplace, and (2) the percentages of sexual harassment claims that are made by women and that are made by men, such that the effect of not enforcing the part of the sexual harassment policy that disciplines those who make false allegations of sexual harassment disproportionately impacts men. (See Part 11 of 12.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.