The Second California Appellate District sitting in Los Angeles issued an opinion which discusses
a host of issues in connection with an employment discrimination and retaliation case, not all of
which will be touched upon here.
In McCoy v. Pacific Maritime Association, the
plaintiff, McCoy had worked for many years as a clerk at a port facility when she along with other
co-workers filed a federal lawsuit for discrimination. That lawsuit was settled and as a result
McCoy was promoted.
In her new position, however, McCoy complained of retaliation due to the
filing of the previous lawsuit, sexual harassment and related tort claims. She filed suit and
prior to trial, the Defendants moved for summary judgment/adjudication, which is an attempt to
resolve a case against a plaintiff prior to trial The Court granted summary adjudication as to
all of McCoy's claims except for her retaliation claim based on the previous federal lawsuit.
So at that point McCoy experienced the down slope of an adverse decision by a trial judge.
But, she is left with her retaliation claim, so the case moves to trial.
Prior to trial, the
Defendants filed what are called motions in limine - motions that seek to categorically exclude
certain items from being introduced into evidence. The Defendants won on all three motions and
excluded evidence of racially derogatory remarks of a supervisor as evidence of retaliation;
evidence that other employees had also been retaliated against as a result of the previous federal
lawsuit; and evidence as to the claims which the court had summarily adjudicated. Again,
McCoy's case is trending downward.
Her attorney, likely frustrated with the adverse rulings,
decided to push the envelope at trial by referencing matters which were excluded by the trial judge
and by showing the jury an inflammatory photograph which had not been previously listed as evidence
or shown to counsel for the Defendants.
The attorney's aggressive gamble worked - at least
fleetingly. The jury returned a verdict for McCoy of $660,000 in economic damages and
$540,000 in emotional distress damages.
After that decided upswing, the Plaintiff's
celebration was short lived. The Defendants filed post-trial motions - another chance for a
trial judge to apply the law to a case. The judge granted motions which allowed one of the
defendants off the hook entirely, found that plaintiff had not presented sufficient evidence to
prove her retaliation case and, for good measure, granted a new trial in the event an appellate
court found sufficient evidence of retaliation. McCoy's $1 million+ award is erased with a pen
stroke, and she is about as low as one can go in a case.
McCoy then appeals and receives a
mixed opinion from the appellate court. It breathes new life into her case by finding
sufficient evidence of retaliation was presented but finds her attorney's "misconduct" in
referring to excluded evidence and making other improper arguments justified a new trial.
McCoy's remedy is to go through trial, again, with the same judge (most likely unless that judge
retired or was reassigned), but without the inflammatory evidence presented in the first trial.
Will the next jury be so moved to award her a large verdict? Time will tell.
lessons to be learned from McCoy's ups and downs are not that a person who has been discriminated
against or retaliated against should refrain from proceeding to court if necessary to vindicate his
or her rights. The lesson is proceed with realistic expectations of the justice system which
involves the interplay between laws which are intended to be predictably applied and discretion of a
judge and a jury which are subject to the human condition of varied opinion and judgment which can
lead to unpredictability. An attorney's role is to navigate that zone of uncertainty and to
convince the judge and the jury of the merit of the client's cause.
The Leigh Law Group is a law firm, based
out of San Francisco and Marin County, comprised of attorneys striving to litigate cases in the
education law (higher education, special education and general education), employment law, civil
rights and business litigation arenas in a way that does does justice to a client's cause and does
not subject clients to unwarranted uncertainty. That method requires attention to the client's
individual circumstances but also to the realities - to the strengths and weaknesses - of our
Disclaimer: The information provided on Lawyers.com is not legal advice, Lawyers.com is not a lawyer referral service, and no attorney-client or confidential relationship is or should be formed by use of the site. The attorney listings on Lawyers.com are paid attorney advertisements and do not in any way constitute a referral or endorsement by Lawyers.com or any approved or authorized lawyer referral service. Your access of/to and use of this site is subject to additional Terms and Conditions.
Martindale-Hubbell and martindale.com are registered trademarks; AV, BV, AV Preeminent and BV Distinguished are registered certification marks; Lawyers.com and the Martindale-Hubbell Peer Review Rated Icon are service marks; and Martindale-Hubbell Peer Review Ratings are trademarks of Internet Brands, Inc., used under license. Other products and services may be trademarks or registered trademarks of their respective companies.