Sacramento Sexual Harassment Lawyer Blog

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

Mr. Black’s Opinions Will Assist the Trier of Fact and Therefore Are Relevant and Admissible.

Finally, defendants argue that Mr. Black’s opinions as to the City's violations of its internal policies and procedures are not relevant to any of the issues in this case, and that testimony about those opinions might confuse or mislead the jury. On the contrary, defendants failure to follow its own policies and procedures, with respect to the prevention of sexual harassment and their response to complaints of sexual harassment, are evidence which tend to prove the prior notice element of plaintiffs' sexual harassment cause of action. It also proves their failure to prevent sexual harassment itself (including the mandate to conduct an investigation) and retaliation. See, e.g., Kotla v. Regents of the Univ. of Calif. (2004) 115 Cal.App.4th 283, 294 n. 6 [opinion testimony by a qualified expert that an employer significantly deviated from its ordinary personnel procedures in the aggrieved employee's retaliation case might well assist the jury in its factfinding];

Silva v. Lucky Food Stores, Inc. (1998) 65 Cal.App.4th 256, 263 [grant of summary judgment against plaintiff employee in wrongful termination case upheld in part because plaintiff had not presented any expert witness testimony regarding whether the employer conducted an appropriate investigation of underlying sexual harassment claim].

Even if some of the jurors have some familiarity with them, the elements of an effective intervention and prevention program for workplace sexual harassment are not commonly known by a typical juror. Accordingly, courts in California and other jurisdictions are finding that expert witness testimony is appropriate to establish whether the employer acted reasonably to prevent harassment and to respond to reports of alleged harassment. See, e.g., Kotla v. Regents of the Univ. of Calif., supra, 115 Cal.App.4th at 294 n. 6; Holly D. v. Calif. Inst. of Tech. (9th Cir. 2003) 339, F3d. 1158, 1177; Shrout v. Black Clawson Co. (S.D. Ohio 1988) 689 F.Supp. 774, 777-778; Kimzey v. Walmart Stores, Inc. (8th Cir. 1997) 107 F.3d 568, 571.

Continue reading " Sexual Harassment Policies At Issue In Sacramento Firefighter Lawsuit, Part 7 of 7 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

Mr. Black’s Opinions Do Not Constitute the Improper Admission of Hearsay Evidence.

Defendants next argue that Mr. Black’s opinions are based on hearsay and that his report constitutes multiple hearsay. Plaintiffs do not intend to offer Mr. Black’s Expert Report into evidence at trial, so defendants' hearsay objection with respect to it is moot. More importantly, however, as noted above, expert opinions may be based on inadmissible matters, specifically including hearsay, as long as those matters are the type on which experts reasonably rely.

Experts reasonably rely on a plaintiff's description of what happened to him and how it affected him. As also noted above, experts may not testify as to the details of that hearsay. For example, an expert may testify that his or her opinion as to the nature of a personal injury is based on the injured person's hearsay statements, but such hearsay cannot be used to prove the cause of the injury. See In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1120 [overruled on other grounds in People v. Brown (1994) 8 Cal.4th 746, 763.]

Similarly, Mr. Black may testify here that his opinions regarding the defendants' conduct before and after the 2007 Gay Pride Parade, with respect to plaintiffs' unwillingness to participate, are based on hearsay statements by the plaintiffs. Nonetheless, that hearsay itself cannot be used to prove, for example, defendants' failure to prevent sexual harassment or retaliation. (See Part 7 of 7.)

Continue reading " Gay Pride Parade March Is Basis For Sacramento Firefighters' Sexual Harassment Suit, Part 6 of 7 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

Mr. Black’s Opinions Are Based on Proper Matters and Do Not Constitute Legal Conclusions.

Defendants then argue that Mr. Black’s opinions are based on improper matters, e.g., speculative and incomplete facts, and constitute legal conclusions which invade the province of the Court and the jury. Mr. Black lists the information upon which he relied to formulate his expert opinions in this case on page 4 of his Expert Report. That information includes, inter alia, the California Department of Fair Employment & Housing Sexual Harassment Case Analysis Manual, defendants' internal memoranda and administrative manuals with respect to sexual harassment policy in general and this case in particular, and transcripts of the depositions taken by plaintiffs and defendants in this matter. Defendants do not even attempt to explain how this information constitutes speculation or conjecture -- which actually would be improper -- or why this is not the kind of information experts reasonably rely upon in forming an opinion on the subject matter involved.

Further, as with their argument that Mr. Black’s opinions exceed the scope of his designation, the only "opinions" to which defendants refer are Mr. Black’s conclusions that plaintiffs have established a prima facie case of sexual harassment, including the failure to prevent sexual harassment, and retaliation, and were deprived of their right to privacy. Defendants conveniently ignore all the opinions set forth in his Expert Report which led Mr. Black to reach those conclusions.

Continue reading " Sacramento Firemen Forced To March In Gay Pride Parade File Sexual Harassment Action, Part 5 of 7 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

Mr. Black’s Opinions Are Within the Scope of His Expertise and Plaintiffs' Designation

Defendants first argue that Mr. Black’s opinions exceed the scope of his expertise and designation. In their expert witness designation, plaintiffs described the general substance of the testimony Mr. Black is expected to give as custom and practice of municipal employers in setting and enforcing sexual harassment policies and procedures for responding to complaints, and defendants' sexual harassment policies and procedures and compliance or failure to comply therewith. Mr. Black’s expert qualifications are set forth in his Expert Report, and include the following:

30 years' experience in interpreting federal, state, and local rules, regulations, guidelines and procedures regarding equal employment opportunity [ EEO ] enforcement;

Advising city departments and commissions on compliance programs with equal employment opportunity laws, regulations, policies, and procedures;

Serving as agency-wide EEO Division Manager of the equal opportunity contracting program in connection with the 3 billion dollar San Francisco International Airport Terminal Master Plan Project; As EEO Division chief, educating prospective bidders regarding the City of San Francisco's nondiscrimination policies, including its Zero Tolerance Policy against sexual harassment in the workplace.

Educating scores of contractors, architectural engineering firms, and professional services consultants on non-discrimination in employment, including harassment prevention practices and procedures, when bidding for city, state and federally financed contracts.

Performing hundreds of wrongful termination investigations related to race, sex, sexual orientation, gender, disability.

Continue reading " Firefighters Sue For Sexual Harassment When Forced Into Gay Pride Parade, Part 4 of 7 " »