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The “me-too” evidence doctrine permits a plaintiff to proffer evidence of discrimination, not only against himself or herself, but also against other persons who are similarly situated. In Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura Counties, an employee who claimed she was fired because she was pregnant was permitted to submit declarations of five former employees who claimed they were also fired after telling the same employer they were pregnant. Johnson v. United Cerebral Palsy/Spastic Children’s Fdn (2009) 173 Cal. App. 4th 740. Under the California Evidence Code, the Johnson Court allowed the “me-too” evidence as proof of the employer’s intent or motive, andto show the employer’s stated reason for its actions was pretextual.
A few years later, in Pantoja v. Anton, a California Appellate Court expanded the scope of evidence that can be presented in a California employment discrimination and harassment trial. Pantoja v. Anton (2011) 198 Cal. App. 4th 87. The Court held that “me-too” evidence of harassing activity against other female employees, which occurred outside of the plaintiff’s presence and when the plaintiff was not even employed, is admissible as evidence tending to show a discriminatory or biased motive under California Evidence Code section 1101(b).
In Pantoja, the plaintiff alleged former employer Anton, a lawyer, committed various harassing acts against her including slapping her on the buttocks, offering her money for a massage right after he touched her leg, calling her a “stupid bitch,” and referring to various employees as “my Mexicans.” Ultimately, the plaintiff was terminated from her employment, and she filed a lawsuit. The claims that proceeded to trial were sexual and racial harassment and gender and race discrimination in violation of the California Fair Employment and Housing Act (FEHA).
Prior to trial, the defendant sought to exclude evidence of all acts of discrimination and harassment unless the plaintiff personally witnessed the acts, such that they adversely affected her working environment. The defendant separately sought to exclude evidence of racial bias, given that the plaintiff had claimed, during her deposition, that she heard Anton use the term “Mexicans”, in a manner she considered to be derogatory, only on one occasion. The trial court granted both of defendant’s motions. At trial, the defendant presented evidence that while Anton may have used profanity at work, it was never directed at any specific individuals. The plaintiff sought to admit evidence of the defendant’s harassing or discriminatory conduct witnessed by other employees, but not experienced by the plaintiff –”me-too” evidence – but the court limited testimony to conduct occurring only during the plaintiff’s employment of which the plaintiff was personally aware. After a jury verdict in favor of the defendant, the plaintiff sought a new trial on the grounds that the court erred in excluding the “me-too” evidence which the court denied. The court denied the plaintiff’s new trial motion. The plaintiff then appealed.
The appellate court reversed, holding that “me-too” evidence, while inadmissible to show evidence of character under California Evidence Code section 1101, is admissible to establish intent, to impeach a witness, and to attack his credibility. The court acknowledged its previous ruling in Beyda v. City of Los Angeles (1998) 65 Cal. App. 4th 511, that bars evidence of sexual harassment of other employees for the purpose of establishing the defendant’s propensity to harass. The court, however, distinguished the two holdings. The Pantoja court explained that Beyda does not address the issue of when “me too” evidence is admissible to prove intent or motive as the plaintiff in Beyda did not make that argument. Also, the appellate court addressed the matter ofFisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d 590, which requires that in order to assert a claim for environmental sexual harassment, an individual must establish either that the conduct was directed at her or that she witnessed it and it was in her immediate environment. However, the Pantoja court held thatthat “me too” evidence was admissible to establish the motivation behind the sexual harassment.
Numerous subsequent cases have cited to Pantoja and the expanded scope of “me-too” evidence, including De La Cruz v. Cal-Sac Sonoma, LLC (2013) WL 782283. In De La Cruz, the plaintiff alleged that she was sexually harassed by her supervisor and was retaliated against when she reported the harassment. The jury found the defendants liable and on appeal, the defendants appealed, contending that the trial court abused its discretion in allowing one of the former employees to testify over their objection. The defendants argued that the testimony was impermissible propensity evidence. Citing Pantoja, the appellate court held that although testimony about the harassment of other employees, “me-too” evidence, is inadmissible to show propensity, it may be admissible for other purposes, such as to show intent.
The defendants also contended that “me-too” evidence is admissible to show hostile work environment only if the plaintiff had personal knowledge of the harassment. For this proposition, they relied on Beyda, supra. However, the court in Pantoja rejected this argument, noting that Beyda stood for the proposition that evidence of sexual harassment of other employees, unknown to the plaintiff, is not admissible to prove a defendant’s propensity to harass and that Beyda does not address the issue of when this type of evidence is admissible to prove intent or motive. Here, under the rule of Pantoja, a former employee’s testimony about similar incidents was admissible to show the defendant’s intent in his behavior toward plaintiff.
Another post-Pantoja case that casts a different variation on “me-too” evidence and serves as a cautionary tale to employees and their lawyers on how to plead a claim of discrimination is Hatai v. Department of Transportation (2013) 214 Cal.App.4th 1287. In Hatai, the plaintiff’s complaint alleged that he was discriminated against due to his national origin, Japanese, and his race, Asian. However, as the case proceeded, the plaintiff sought to argue that his supervisor, who was of Arab descent, discriminated against all employees who were not of Arab descent. The plaintiff sought to introduce “me-too” evidence that other employees were discriminated against because they were not of Arab descent. The trial court prohibited the plaintiff from introducing this evidence but allowed evidence of anti-Asian animus. The jury found for the defendant.
On appeal, the plaintiff in Hatai argued he should have been permitted to proffer evidence that his supervisor discriminated against anyone who was not an Arab. The appellate Court rejected this argument because the request was too broad, and noted that the plaintiff claimed he was subjected to discrimination based on his Asian or Japanese ancestry, not based on Arab favoritism. The “me- too” evidence doctrine permitted the plaintiff to present evidence that his supervisor subjected other CalTrans employees of East Asian or Japanese ancestry to similar discriminatory conduct. However, the Court explained that based on the plaintiff’s pleadings, the “me-too” doctrine did not entitle the plaintiff to present evidence of discrimination against employees outside of his protected class to show discrimination against the plaintiff. Accordingly, the Court concluded that the trial court properly excluded any evidence of discrimination by the supervisor against persons not of Asian descent. Moreover, the Court distinguished Pantoja v. Anton because unlike the “me-too” evidence presented by plaintiff in Hatai, the “me-too” evidence in Pantoja came from individuals who were within the same protected classes alleged by the plaintiff.