In a sexual harassment action, admitting evidence of the substance of other employees' complaints about the claimant was reversible error because the high potential for undue prejudice far outweighed the minimal probative value of showing a possible motive.
Background
Eunices Argueta started working at a freight operations company in El Segundo, California when she was 18 years old. For six years, she and her supervisor’s manager (“the manager”) worked at the LAX location. In November 2016, the company hired a director of human resources, but prior to that, there wasn’t any HR person at the LAX location.
Several employees whom Argueta supervised submitted written complaints about her, accusing her of bullying, harassment, retaliation, yelling, making threats and other bad behavior, including discriminating against a pregnant subordinate. The HR Director met with Argueta to discuss the complaints and said she told her that if her behavior didn’t improve, she’d be terminated (Argueta gave a different account, and she wasn’t expressly threatened with termination.).
Argueta alleged in her legal action that the manager started sexually harassing her in 2016. He placed her on paid leave while the matter was investigated, and she later claimed many more acts of harassment. At one point in 2017, he started hugging her, touching her face and hair, rubbing her back and she “could feel his body against [her].” She started having attendance problems because she didn’t want to go to work and see him.
The company investigated her claims, and as a result, it issued a “Letter of Concern” to the manager which stated he admitted to some actions “that can easily be construed as sexual harassment” and that it was “a violation of our policy.” The company imposed a number of conditions on the manager’s continued employment:
- Undergo additional sexual harassment training;
- Stop sending emojis to subordinates;
- Use “appropriate language”;
- Keep a minimum of three feet from employees; and
- Refrain from making physical contact with an employee without their express permission.
When Argueta returned from leave, she was transferred to a part of the building and worked for a different client. In February 2018, she resigned and said it was because her new schedule wasn’t compatible with her family responsibilities and her new position had limited potential to advance.
In 2019, three female employees made written complaints that the manager was sexually harassing them. Some of the actions went on as far back as 2017. One of the complainants had been identified by Argueta as a witness in 2017; however, the company didn’t interview her. These complaints against the manager identified behavior similar to Argueta’s complaints. The company’s (new) local human resources manager for the LAX location investigated the complaints and found the manager had violated the company’s sexual harassment policy and the conditions in the Letter of Concern. He was terminated in March 2019.
Did the Employee Complaints About Argueta's Behavior Constitute Inadmissible Character Evidence and Prejudice Her Case?
The plaintiff filed an action against the company, alleging sexual harassment and retaliation in violation of the California Fair Employment and Housing Act and failure to prevent both. She claimed she resigned due to a hostile work environment, which requires proof that the acts of harassment were severe or pervasive.
At trial, she sought to exclude the substance of the complaints made by other employees about her behavior. But the trial court said that the substance of any complaint about the plaintiff that had been communicated to her would be admissible at trial to show her motive for making her sexual harassment claim.
Specifically, it showed that she was afraid she’d be fired because of the complaints against her. In addition, the judge gave a short limiting instruction when the complaints were read to the jury. In her motion for a new trial, Argueta contended that the trial court erred in admitting the substance of the “bad behavior” complaints against her because:
- The evidence was improper and irrelevant character evidence;
- Motive is not an element of a sexual harassment claim;
- The company would be strictly liable for any sexual harassment; and
- The company’s HR representative admitted the manager committed acts of sexual harassment, which made “motive” irrelevant.
Moreover, she argued that even if the evidence had some minimal relevance, that relevance was far outweighed by its high potential for undue prejudice. Plus, she contended the company’s attorney improperly used the evidence as bad character evidence in closing argument.
The trial court denied the new trial motion and found that its ruling didn’t constitute an order that deprived the plaintiff of having a fair trial. The company submitted evidence that complaints made against the plaintiff amounted to evidence relating to what it asserted was her actual motive for filing her complaint against her supervisor’s manager, and as such, were relevant to supporting the company's defenses, including that she never complained about the manager's alleged conduct prior to filing the complaint because she never believed it to be severe or pervasive.
Although Argueta contended the evidence wasn’t relevant because motive wasn’t an element of any of her causes of action, Judge Stratton said this was too narrow a view of motive. “Motive need not be an element of a cause of action to be relevant or material,” the judge opined. This is particularly true where, as in this case, the motive provided a reason to lie or fabricate. Evidence Code § 780 says that the matters that may be considered expressly include “[t]he existence or nonexistence of a bias, interest, or other motive.”
The fact that a number of employees complained about Argueta's behavior in November 2016 and January 2017, when taken together with the HR Director's January 2017 warning that she’d be terminated if her behavior did not improve, along with other evidence, supported a reasonable inference that Argueta had a motive to fabricate her claim that her supervisor’s manager sexually harassed her, that is, to save her job.
But Were the Co-Workers’ Complaints Against the Plaintiff Relevant?
No. Presiding Judge Maria E. Stratton of the California Court of Appeals concluded that, based on these facts, the substance of the complaints against Argueta were irrelevant.
Under the HR Director‘s account of events, Argueta had every reason to fear that the May 2017 complaint against her, if substantiated, would result in her termination. The plaintiff, however, denied that the HR Director told her she’d be terminated if her behavior didn’t improve. Argueta testified that the HR Director told her only that she’d be written up. Thus, the substance of the complaints, and specifically the seriousness of the behavior described in the complaints, had some “arguably minimal” relevance in resolving this credibility dispute. Moreover, this relevance is extremely minimal in light of respondent's decision to put Argueta on paid leave while investigating—this alone indicated that Argueta's job might be in jeopardy, regardless of whether the HR Director had previously indicated her continued bad behavior would result in termination, the judge said. The company didn’t point to any ruling by the trial court permitting admission of the evidence for this specific purpose.
Judge Stratton thus held that the substance of the complaints wasn’t relevant at all to assessing whether the plaintiff was offended by the manager's actual conduct; whether she didn’t perceive it as severe and pervasive; or whether she had a motive to fabricate or embellish the severity or pervasiveness of his conduct. If the HR Director told Argueta she’d be terminated if her behavior didn’t improve, that was the motive to lie. The lies could involve outright fabrication of conduct or embellishment of actual conduct, i.e., its severity or pervasiveness. It could also involve claiming to be offended when she wasn’t, or claiming she found the conduct severe and pervasive when she didn’t—but the substance of the employee complaints shed no light on which might have happened.
The substance of the prior complaints against Argueta (that she was a bad boss and a bad person) didn’t shed any light on what form any deception might take… whether it involved outright fabrication or embellishment of the severity of the manager's conduct or fabrication of Argueta's own response.
Did the Employees’ Complaints Have Probative Value?
Even when evidence was relevant, a trial court has discretion to exclude that evidence “if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” Prejudice, under California Evidence Code § 352, refers to evidence that uniquely tends to evoke an emotional bias against the moving party as an individual and that has very little effect on the issues. When the evidence at issue involves prior bad acts, substantial prejudice is inherent in the evidence and its admission requires “extremely careful analysis.” Generally, such evidence is admissible only if it has “substantial” probative value.
Here, the employee complaints about the plaintiff “fit the quintessential definition of prejudice,” the judge said. The trial court failed to recognize that the evidence had a high potential for undue prejudice. It was, as Argueta contended, character evidence. The complaints painted a picture of an individual who, to put it mildly, wasn’t afraid to speak her mind. This also had the potential to undermine Argueta's credibility in a different (and improper) way, by suggesting that she wouldn’t have been afraid to complain contemporaneously if someone were in fact harassing her.
Was the Limiting Jury Instruction Proper?
A limiting jury instruction isn’t very effective when there’s little or no probative value to the evidence, and it has a high potential for prejudice. Further, limiting instructions are less effective when the evidence at issue is character evidence that goes to one of the main issues in the trial, Judge Stratton explained. Argueta's credibility was a key issue in the trial, as was the timing of her complaint about the manager's conduct. Plus, because the trial court didn’t embrace the very narrow proper purpose of the evidence, it failed to convey that limitation to the jury in the instructions.
Here, the truth or falsity of the substance of the employees’ complaints didn’t directly matter to Argueta, because the threat to her job came—not from the complaints—but from the company’s reaction to them. That was to impose a consequence on her (although it was disputed what that consequence was).
After this limiting instruction was given, Argueta testified that when she was confronted by the HR Director, she admitted the substance of the complaints. “Addressing the substance of the complaints was a tactical decision, but not one Argueta and her attorneys should have been forced to make,” the judge wrote. Despite the fact that it seemed that much of the substance of the complaints was true, the jury should never have learned of that substance, which wasn’t relevant to any issue in this action.
The Court of Appeals agreed with Argueta that counsel for the company then seized upon the substance of the (admitted) complaints to argue that Argueta was a bad person, which undermined any marginal effectiveness of the limiting instruction. The company’s counsel's closing argument about the substance of the complaints wasn’t proper, even under the trial court's erroneous assessment of the probative value of the substance of the complaints. This use of the substance of the complaints went far beyond the limited purpose of showing how Argueta reacted to the complaints. The company’s attorneys explicitly argued both that Argueta was a threatening person (her threats are “consistent … with who she is”) and that she was acting in conformity with the substance of the complaints that reported she threatened others (threatening her supervisor’s manager was “entirely consistent with what she had done to others”). But even if Argueta were a threatening person, or a bully, that character trait wouldn’t be admissible to attack her credibility.
The judgment was reversed. Argueta v. Worldwide Flight Servs., Inc. (California Court of Appeals, 2d Appellate District, 11-8-23).
Bottom Line
Irrelevant complaints against a plaintiff are inadmissible to show a character trait. This evidence wouldn’t be admissible to attack her credibility.
When the evidence at issue involves prior bad acts, substantial prejudice is inherent in the evidence and its admission requires “extremely careful analysis.” Prejudice is evidence that uniquely tends to evoke an emotional bias against the moving party as an individual and which has very little effect on the issues.