The California Courts of Appeal haven’t been issuing any published FEHA decisions lately, so I look to unpublished decisions to see what’s going on.
I found a tawdry case from the Second District which reminded me of Abraham Lincoln’s advice to fellow lawyers:
Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.
Wise advice indeed.
Now we turn to Baez v. Burbank Unified School District.
This is a sexual harassment case. It’s a somewhat typical sexual harassment case, but atypically this case was tried three times to juries before plaintiff ultimately prevailed. After reading this case, I’m wondering if plaintiff is happy she filed the case and I wonder if plaintiff would have filed the case if she knew she would have to endure three trials to obtain a modest verdict.
Plaintiff was employed by Burbank Unified School District. She sued the school district and her supervisor for sexual harassment, alleging that she was subject to a hostile work environment as result of sexual advances made by her supervisors. I won’t get into all the details here, but the supervisor began sending sexually suggestive emails to plaintiff and told her that he had a romantic interest in her. This culminated in what plaintiff alleges was a sexual assault in his office.
After that, the District brought in an attorney to investigate the allegations involving plaintiff. The attorney investigator found plaintiff to be more credible than the individual defendant regarding the sexual assault. Nevertheless, plaintiff was disciplined, and the District’s superintendent sent her a letter stating the District’s investigator determined that while certain conduct may have taken place, it was either not as the plaintiff described and/or was not unwelcome. Of course, this was a misstatement of the investigator’s conclusions.
It’s important to note that at the time this was all going on, both plaintiff and her supervisor were married. There were also allegations that plaintiff was having an affair with another employee at Burbank Unified.
The parties went to trial in June 2009. The court allowed the District to introduce evidence that plaintiff was having an affair with a third person at Burbank Unified, and the District presented extensive evidence of the extramarital affair to the jury. Not only that, but the court also allowed evidence that plaintiff had a miscarriage during this time.
Not surprisingly, the District won this case with the jury returning a verdict for the District.
After losing on a motion for new trial, plaintiff appealed from the judgment and in another unpublished opinion, the Court of Appeal held that the trial court made a mistake in admitting the evidence of plaintiff’s error extramarital affair, among other things.
In October 2013, the second trial started. This time the court declared that the evidence of plaintiff’s extramarital affair with the third party would not be admissible. But the court did allow the District to offer testimony that plaintiff was being investigated for workplace misconduct prior to making her sexual harassment claim against her supervisor, but the court further ordered that any testifying witness should refer to such misconduct solely as an unrelated personnel matter involving plaintiff and an unnamed District employee—witnesses were not to refer to plaintiff’s alleged affair.
But that’s not how it went at trial. Defense counsel did not follow the court’s rulings, and the trial court was left with no other choice but to declare a mistrial.
Instead of settling this case, the parties decided to proceed to trial again the following week. At the end of the trial, the jury returned a special verdict in plaintiff’s favor on her cause of action for hostile work environment harassment against the District and her supervisor, and in favor of the supervisor on the causes of action for battery, false imprisonment, and intentional infliction of emotional distress (the alleged sexual assault). The jury further found plaintiff proved that her supervisor had acted with malice, oppression or fraud. The jury awarded plaintiff $199,398 in compensatory damages and $2 in punitive damages.
The jury also returned a special verdict in the District’s favor on the cross-claim it filed against plaintiff, and so the jury awarded the District $19,500 in compensatory damages and $1 and punitive damages.
After two full trials and another trial stopped in midstream by a mistrial, plaintiff ended up with less than $200,000 in damages. Which brings to mind Abraham Lincoln’s admonition of discouraging litigation.
Plaintiff’s dedicated and diligent and persistent trial attorneys did fine, though, because the trial court awarded them attorney’s fees of $3,224,569.30. And the Court of Appeal upheld this award.
In this factually intensive case, there are many things for lawyers to learn, especially lawyers thinking of taking sexual harassment cases. But the facts here don’t put any of the parties in a good light. It doesn’t matter who won, because plaintiff doesn’t look very good at the end of the day, her supervisor certainly doesn’t look good at the end of the day, and the Burbank Unified School District doesn’t look good at the end of the day. After all, the District had a superintendent, Dr. Gregory Bowman, who misrepresented results of an investigation and who had employees running amok. And not only did Burbank USD have to pay their attorneys their fees, they had to pay plaintiff’s attorneys their fees. And we know just from the award of attorney’s fees to the plaintiff’s counsel, the fees the school district spent in total are in the millions of dollars.
All of this over a tawdry affair or two. It seems as if there were no adults in this situation, and instead of the attorneys looking at the situation and encouraging the parties to settle, litigation ensued and went on for years including two trips to the Court of Appeals, all resulting in plaintiff’s modest award, and for that matter, the District’s modest award, capped with a large fee award to plaintiff’s counsel.
Of course, for all I know, the attorneys in the case may have begged their clients to resolve this matter. And if that’s the case, the parties have no one but themselves to blame for this whole affair. But if any of the attorneys involved in this case did not strongly encourage their clients to resolve this matter privately, or as privately as one can settle a case against the public school district, then those attorneys are at fault.
By saying this, I’m sure I will get some emails from those who believe that I’m saying that we should discourage women for from suing for sexual harassment claims. That’s not what I’m saying at all, because if plaintiff’s allegations are true, I think she should of gotten a verdict larger than what she did. But on the other hand, plaintiff apparently had an affair with another employee of the school district, or it at least was strongly suspected, and who in their right mind would want all of this to come out in open court? And not only in open court, but in opinions issued by the Court of Appeals? And even though these are unpublished opinions, they’re still going to be there for all of us to read in the future. And it’s not just lawyers who can read them, because now with Google Scholar, Fastcase and other free and publicly available legal research services, the public can easily access these opinions, too. Including prospective employers.
Obviously plaintiff’s counsel did a very good job for her. Legally speaking, that is. But I hope her counsel did counsel her and tried to get her to settle the matter. And of course that may have happened and it probably did happen, and it’s certainly not unheard of for a public school district to fight cases tooth and nail when it’s unwise to do so, and apparently that was the case here. Because why would anyone in hir or her right mind at the Burbank Unified School District want this case to go to trial? It looks like the District had a bunch of employees who didn’t know how to behave in the workplace. The District’s not proving anything by prevailing on their cross-claim, or by trying to look tough in a courtroom, other than the fact that they have employees that are out of control and they don’t know how to control them. And the District has attorneys who are out of control and the District doesn’t know how to control its attorneys.
It looks to me as if plaintiff’s counsel had to go to trial because the District wouldn’t settle, or probably made “nuisance” settlement offers thus forcing plaintiff to go to trial.
Apparently the Burbank Unified School District loves its lawyers more than its students.
Baez v. Burbank Unified School District
No. B254852, January 25, 2016.