Fifth District Court of Appeal Gets it Right in Pantoja v. Anton, 198 Cal.App.4th 87 (2011)
On August 9, 2011, the Fifth District released a strong published opinion on “me too” evidence, and other evidentiary issues in sexual harassment and race discrimination cases. Pantoja v. Anton, 198 Cal.App.4th 87 (2011). This opinion injects a much-needed dose of common sense into the law around proving that harassment occurred—something that is often a “he said-she said” situation.
The plaintiff, Lorraine Pantoja sued her former employer, Thomas Anton, under California’s Fair Employment and Housing Act for sex and race discrimination and harassment, among other claims, while she was employed as a receptionist/secretary in Mr. Anton’s law office. Id. at *12. Ms. Pantoja alleged that Mr. Anton engaged in the following conduct, among other acts: slapping Ms. Pantjo’s buttocks, touching her leg while offering $200, referring to his employees as “my Mexicans,” and ultimately calling Ms. Pantoja a “stupid bitch” and then firing her. 198 Cal.App.4th 87, at *2.
At trial, the trial court in Kern County refused to admit evidence from Ms. Pantoja’s female coworkers of Anton’s conduct towards them that was not necessarily witnessed by Ms. Pantoja. Id. at *4. Ms. Pantoja sought to admit this “me too” evidence to show that Mr. Anton engaged in a pattern of harassment and race discrimination against his female, often Latina employees. Id. at *6. This evidence included extensive testimony from other employees that Mr. Anton inappropriately touched them, said things like “monkeys can do your job better than you,” telling a female employee on a ladder “I could see right through that skirt,” and “I have three Mexicans working for me. I’ve never had that many working for me before. Usually you hire Mexicans to do your maid work.” Id. at *8-9. However the Court reasoned that such “me too” evidence ran afoul of California’s evidence rules against “character evidence” and prevented the jury from hearing this testimony.
However, the trial court allowed Mr. Anton to admit evidence supporting his general course of conduct. For example, the court allowed Mr. Anton’s lawyers to lead him to testimony that any physical contact with his employees was merely “avuncular” or “uncle like.” Id. at *8. This testimony was not limited to the time that Ms. Pantoja was employed. Id.
The Court of Appeal found that the trial court committed error by allowing what was essentially a double standard in favor of Mr. Anton:
We conclude that, in the event this case is retried, both parties need to be given the opportunity to present their evidence in an even-handed manner. Only then will the jury be able to fulfill its responsibility of determining where the truth actually lies based on a balanced and accurate review of admissible evidence.
Id. at *25. Importantly, the Court also found that the trial court erred in that “[its] decision that all evidence supporting a sexual harassment plaintiff’s case must be limited to evidence of specific events that took place in the plaintiff’s presence[. This ruling] had the unfortunate result of skewing the evidence.” Id. at *23.
This decision is important for plaintiffs in harassment cases, since, absent such “me too” evidence from co-workers willing to tell the truth about harassment that they endured, harassing incidents are frequently merely “he said-she said” situations. Harassment often occurs one-on-one, without many other witnesses. Likewise, harassers are seldom foolish enough to commit their harassment in writing.
With this decision, the challenging task of proving that inappropriate touching occurred, or that inappropriate words were spoken, has been made a bit easier for harassment victims.
Read the opinion here: http://www.courtinfo.ca.gov/opinions/documents/F058414.PDF
If you believe you have been harassed or discriminated against in your workplace, contact Bryan Schwartz Law, P.C. today.
 See Cal. Evid. Code § 1101.
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