Confusing Grab Bag of Advice from Second DCA

A jury awarded Catherine McCoy a $1.2 million verdict in 2008 in a retaliation case against her employer. What’s not good for McCoy is the trial judge granted defendant’s motion for judgment notwithstanding the verdict, and alternatively granted defendant’s motion for new trial.

Bummer! That means an appeal is in order. And that means that ultimately the parties will have to read another opinion. Sometimes appellate court opinions can be easily read, understood, helpful and interesting. Others can be boring, hard to read and just downright painful. (Try reading the first paragraph of this one!)

Well, the Second Appellate District just issued a decision that intially appeared to be interesting, offering helpful advice on sexual harassment claims and the associated claim of intentional infliction of emotional distress, “me too” evidence and then a bunch of stuff on grounds for granting a new trial.

I got the opinion, got my coffee, sat down and started reading. At first I thought the opinion was informative, though not ground-breaking, on evidence needed to establish a sexual harassment claim that would survive a motion for summary judgment (basic stuff such as whether or not the conduct was directed at plaintiff or at others, the duration and egregiousness of the conduct and whether plaintiff actually reported the offensive conduct) and then the logic supporting the conclusion that an IIED claim based on alleged sexual harassment cannot survive if the sexual harassment claim does not survive. (But the court did get the standard wrong—conduct has to be severe OR pervasive, not severe AND pervasive as the court erroneously stated.)

And I guess the court forgot to consider Accardi v. Superior Court, where the court held that sexual harassment through the creation of a hostile work environment, need not have anything to do with sexual advances. It shows itself in the form of intimidation and hostility for the purpose of interfering with an individual’s work performance.

Two up, two down.

Then there were some issues involving the exclusion of evidence, the most interesting of which includes “me too” evidence. Since this was a retaliation case, the court noted that the issue of “me too” evidence requires a fact-intensive analysis and the trial court failed to even conduct a hearing to flesh out the details of the evidence and the similarity to McCoy’s claims. So the appellate court tells the trial court to conduct a hearing on this issue, since the case is being remanded for new trial.

OK. I’m starting to get confused, but I figured the rest of the opinion will start to clear things up.

Then the court starts addressing constructive discharge in the context of FEHA claims. I am assuming the retaliation claim is a FEHA retaliation claim, but since the sexual harassment claim was canned, noting that McCoy never even reported sexual harassment to management (so how can there be retaliation), I had to get up to get some more coffee.

I sat back down and started reading some more. The court spelled out all one needs to know regarding FEHA retaliation claims from the Yanowitz v. L’Oreal USA., Inc. case. Then the court addresses the substantial evidence needed to support a verdict. The court goes on and on about stuff that never explains FEHA retaliation! The court talks about a prior confidential settlement agreement stemming from a prior lawsuit between the parties, but never discusses the subject matter of the prior lawsuit. Early in the opinion, the court said, “…in 1998 she [McCoy] and others filed a federal lawsuit against respondents based on allegations of unlawful discrimination.”

What kind of unlawful discrimination?

I guess it was discrimination proscribed by FEHA, even though the case was in federal court. Maybe the case was in federal court based on diversity jurisdiction. Hell, I don’t know! The record before me does not provide sufficient details.

Anyway, this court said the jury could have concluded, based on the evidence before the jury but not before the reader of this opinion, that “…management’s actions were specifically carried out in retaliation against appellant for having brought the initial lawsuit.”

That lawsuit about which I am clueless.

And at this point I give up, and will leave it to you to fight through the rest of the opinion and to try to understand the court’s disposition, which I quote here:

We affirm the court’s summary adjudication of the sexual harassment and intentional infliction of emotional distress claims. The award of judgment notwithstanding the verdict in favor of PMA is affirmed. However, the trial court’s granting of judgment notwithstanding the verdict on appellant’s retaliation claim is reversed. We also reverse the court’s exclusion of the evidence of retaliation by respondent Yusen against other employees and direct it to reconsider the evidence in accord with this opinion. We affirm the court’s exclusion of the remaining evidence included in respondents’ motions in limine.

The court’s granting of a new trial is upheld on the grounds of irregularity in the proceedings, surprise and excessive damages. In all other respects, the judgment of the court is affirmed. The case is remanded to the trial court for retrial consistent with this opinion. PMA is to have its costs on appeal. Appellant and Yusen are to bear their own costs on appeal.

WILLHITE, J., SUZUKAWA, J., concurs.

McCoy v. Pac. Mar. Ass’n, 216 Cal. App. 4th 283 (2013).

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