Meeks v. AutoZone https://caselaw.findlaw.com/ca-court-of-appeal/1898175.html

The appellate court in this #employmentlaw case granted a new trial because the trial judge did not allow the admission of some #metoo evidence. The most interesting aspect of this case to me is the utter ignorance of basic evidence law by several Superior Court judges. Two successive trial judges botched the “secondary evidence” rule refusing to allow the plaintiff to testify to the contents of text messages despite the fact that the alleged harasser admitted sending “sexual” text messages to her.

On the me-too evidence, the appellate court held it was not erroneous for the trial judge to have excluded testimony regarding alleged harassment of and retaliation against another employee by a store manager (not the alleged harasser in the instant case). But, the trial judge also excluded evidence of the alleged harasser’s conduct toward other employees outside of the plaintiff’s presence.The issue of whether or not plaintiff must personally witness every act of alleged harassment in order for evidence of the alleged harassment to be admitted at trial was addressed 20 years ago in Beyda v. City of Los Angeles, 65 Cal.App.4th 511 (1998) https://caselaw.findlaw.com/ca-court-of-appeal/1289313.html 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.”

Given the admissions by the individual defendant in this case, it is inconceivable to me that the trial judge did not let admit at least some of the “me too” evidence.

The appellate court held that the trial court’s rulings had the “unfortunate result of skewing the evidence.”  Ya think?

Some tidbits for employers’ counsel from this case”

  1.  Always make the motion to preclude. You never know what some judge is going to do.
  2. The appellate court affirmed the trial court’s ruling to exclude witness statements which were taken as part of the employer’s investigation that lead to the individual manager’s termination as hearsay and on 352 grounds; and
  3. Affirmed grant of summary adjudication of retaliation claim holding “Meeks has presented no authority, and we are aware of none, holding that a single threat of an adverse employment action, never carried out, could itself constitute an adverse employment action under the standard articulated in Yanowitz and its progeny.”