Date: 06-17-2005

Case Style: Robert Broussard v. Sasco Electric

Case Number: 1-03-CV002032

Judge: Robert Baines

Court: Superior Court of California, County of Santa Clara

Plaintiff's Attorney:

M. Van Smith, Law Offices of M. Van Smith, San Jose, California

Defendant's Attorney:

Brian E. Claypool, The Claypool Law Firm, P.C., Pasadena, California

Description:

Plaintiff worked as an electrical apprentice for nearly 15 months for Defendant Sasco Electric. At the time of the incident, Plaintiff was working on teh Santana Row Project in San Jose, CA. Approximately one month before Plaintiff was laid off in March 2002 due to a reduction in work force, he went to his job foreman and reported 3 separate incidents in which a Sasco journeyman made racially insensitive remarks. The journeyman was Caucasian. The journeyman committed suicide after the alleged incidents and before trial.

Plaintiff is African American and his wife is Caucasian. They have 3 children together. First, Plaintiff contended taht Sasco journeyman said that there should not be interracial marriages since the children are born "blotchy." Second, Plaintiff claimed that the journeyman indicated taht he would not allow his daughter (when she was in first grade) to play with a black child. Third, Plaintiff contended that teh journeyman said that he hates doing "this nigger work." These are there 3 incidents that Plaintiff reported to the Sasco job foreman.

Shortly after Plaintiff reported the 3 incidents to his foreman, Plaintiff was transfeered from the power crew to the fire alarm crew. Sasco Electric laid off Plaintiff due to a reduction in work force 3 weeks after the transfer. Plaintiff claimed that the lay off occurred 3 days after the transfer.

Plaintiff's Contentions:

Plaintiff initially alleged three causes of action:

1) Intentional Infliction of Emotional Distress (" IIED");

2) Hostile work environment; and

3) Retaliatory discharge based on Government Code section 12940(h).

This code section makes it unlawful for any employer to discharge, expel, or otherwise discriminate against any person because the person has filed a complaint, testified, or assisted in any proceeding.

Plaintiff also contended that Sasco violated its own internal policy by virtue of the job foreman failing to convey to the job superintendent the fact that Plaintiff had repoted complaints of racial harassment.

The thrust of Plaintiff's complaint was that after he communicated the alleged racially insensitive remarks to his foreman, he was demoted to a less desirable work crew. Plaintiff argued taht there was much less work to do on teh fire crew and that Sasco should ahve found other work for him to do on teh Santana Row Project. Plaintiff further contended that he was fired within 3 days after having been transferred ot the fire alarm crew. He contended that Sasco fired him due to poor job performance, yet the termination slip indicated "reduced work force." Plaintiff also claimed taht he was fired in retaliation for having complained to his supervisor about the Sasco journeyman having made racially insensitive remarks to him. Plaintiff also took teh position at trial that Sasco had contacted the local union to ensure that a union representative was present when Plaintiff was fired, and that this was "unique" and proved that Sasco's motive for firing Plaintiff was retaliatory.

Defendant's Contentions:

Defendant contended that Plaintiff was fired due to a reduction in work force. Defendant further contended that work on teh Santana Row Project began to slow down prior to Plaintiff's communication to his superviros about the journeyman's racially insensitive remarks. Defendant also took tthe position that the job superintendent who ultimately made the decision to fire Plaintiff was unaware of Plaintiff having reported to his supervisor about the racially insensitive remarks. As such, Defendant successfully argued taht even if the jury believed that i had taken an adverse employment action against Plaintiff, the motive for firing Plaintiff was lawful and not retaliatory. To this end, Sasco argued that 19 other workers on teh Santana Row Project had been terminated over a 3 month time period due to a "reduction in work force."

Defendant also contended that the Joint Apprenticeship & Training Committee ("JATC") customarily rotated apprenticees every 14 months from one project to another and taht this was a plausible explanation as to why Defendant terminated Plaintiff's employment since he was entering his 15th month working for Sasco.

Damages or Injuries:

Plaintiff claimed 2 months of lost income as well as an additional $8,000 associated with the lease of an automobile that went into default. Plaintiff sought an additional $200,000 as general damages associated with the alleged emotional distress resulting from teh racial harassment and unjust termination. Plaintiff introduced evidence of having attended counseling sessions to deal with the racially insensitive remarks. Plaintiff's settlement demand was $250,000.

Probable major factors in jury's determination, any evidentiary issues including DAUBERT, and trial tactics that may have been helpful:

After hearing the evidence, the trial judge granted Defendant's request for a directed verdict as to the IIED and hostile work environment causes of action. The judge ruled that Plaintiff could not prove a hostile work environment case since evidence at trial demonstrated that the racial harassment cased after Plaintiff reported the complaints to his supervisor. Thus, the only cause of action that went to the jury was the retaliatory discharge claim based on Government Code section 12940(h).

Of great significance for future retaliation cases was teh fact that the CACI jury instructions did not specifically define an "adverse employment action." During its deliberation process, teh jury asked the cour to define an "adverse employment action." After collaborating with counsel and reviewing California case law, teh following special instruction was provided to the jury: In determining what constitutes an "adverse employment action," you must look to the totality of the circumstances. Not every employment decision amoutns to an adverse employment action. ONly those actions with a "detrimental and substantial effect" on teh terms and conditions of Plaintiff's employment constitute adverse employment actions. A change that is merely not to the employee's liking is insufficient. The law is not intended to provide employees a remedy for every perceived slight resulting from the filing of a discrimination complaint.

Although the jury determined that Defendant had taken a "adverse employment action" against Plaintiff, it found 10 to 2 in favor of Defendant that Plaintiff did not prove by a preponderance of evidence that the complaint of racial harassment was a motivating reason for Defendant's decision to take an adverse employment action against Plaintiff.

The jury articulated that it was helpful that Defendant offered into evidence 19 other workers having been laid off on teh Santana Row Project due to a reduction in work force during the span of 3 months both before and after Plaintiff was laid off. The jury also believed that it was persuasive that the job superintendent, though he should have been made aware of the racial harassment complaint filed by Plaintiff, was unaware of Plaintiff's racial harassment complaint at the time he made the decision to discharge Plaintiff. The jury noted taht even though Sasco violated its own internal policy by failing to report Plaintiff's racial harassment claim to teh job superintendent, Plaintiff failed to meet his burden of proving that the job superintendent's motive in firing Plaitniff stemmed from Plaintiff's complaint of racial harassment.

The jury also found persuasive the fact that both the Sasco foreman and job superintendent attempted to find Plaintiff alternative work on the Santana Row Project prior to making a decision to discharge him.

Outcome: Defendant's verdict.

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: Reported by: Brian E. Claypool