“Me-Too” Ain’t Dead Yet!

An Asian plaintiff, Hatai, employed by the California Department of Transportation, filed a FEHA race/national origin complaint that was “virtually bereft of factual allegations of race discrimination” but alleged that he was discriminated against because of his race and national origin. His supervisor, Haddadeen, was of Arab descent.

Haddadeen was very unpopular and his subordinates filed complaints about his management style. During subsequent investigations, Hatai was interviewed and provided information to investigators but never claimed during these investigations of Haddadeen’s conduct that he sufferred discrimination, retaliation or harassment because he was Japanese or Asian.

Hatai’s inconsistent deposition testimony only revealed one factual allegation – when he received a warning letter from his supervisor, Hatai said Haddadeen told him, “I’m going to discipline you because you are Asian.”

But this testimony came after previous deposition testimony in which Hatai stated Haddadeen did not make any reference to Hatai’s race or national origin when he received the warning letter.

Before the lawsuit was filed, Hatai hired an attorney who wrote a letter to his employer in response to the warning letter – and that attorney’s correspondence “lacked any allegation that Haddadeen’s actions were motivated by Hatai’s race or national origin.”

Case goes to trial and defendant sought to keep out the “Me Too” evidence it feared Hatai would introduce. This “Me Too” evidence consisted of testimony from other employees who claimed that Haddadeen favored Arab employees and were accusing Haddadeen of saying, “We Arabs should stick together.”

Trial court refused to allow “Me-Too” evidence of Arab favoritism since that’s not what Hatai alleged in his complaint. The jury rejected Hatai’s case and returned a defense verdict. Hatai appealed arguing that the “MeToo” evidence was improperly excluded at trial.

The Court of Appeals disagreed following precedent that proper “Me Too” evidence “sets out factual scenarios related by former [or other] employees of defendant that are sufficiently similar to the one presented by plaintiff.”

The Court noted that this case was pled as an anti-Asian case and not as an Arab favoritism case and it was not until the eve of trial that Hatai sought to reframe his case.

Some plaintiffs attorneys are upset over this decision and have claimed the courts are trying to kill “Me Too” evidence. But I do not see it this way. Maybe I’m just a heretic – but according the Court’s opinion, there was never any evidence at all of anti-Asian discrimination as Hatai alleged. Maybe this was an Arab favoritism case, but that’s not what Hatai pled.

I think “Me Too”evidence is alive and well, as long as it relates directly to a plaintiff’s claims. It’s up to the plaintiff to frame the case properly. After all, the complaint frames and limits the the issues for trial and thus the defense and thus the scope of discovery. That means complaints have to be drafted carefully and, if necessary, amended carefully when evidence or lack of evidence mandates it. You can’t wait until the eve of trial to frame your client’s case.

Hatai v. Dep’t of Transportation, 214 Cal. App. 4th 1287 (2013).

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