Pantoja v. Anton

Facts

Lorraine Pantoja worked as a receptionist and secretary for attorney Thomas J. Anton and his professional corporation from January 2002 until October 2002 (Pantoja, supra, 198 Cal.App.4th at pp. 93, 94). The Fair Employment and Housing Act makes it unlawful to harass an employee “because of” sex (Gov. Code § 12940, subd. (j)), and a hostile-environment claim “exists under the FEHA where the plaintiff was subjected to unwelcome conduct or comments because of his or her sex and the result was harassment so severe or pervasive that the conditions of the plaintiff’s employment were altered” (id. at p. 114).

Pantoja testified that Anton routinely called her a “stupid bitch,” “dumb bitch,” and “incompetent bitch,” and directed a barrage of profanity at her (Pantoja, supra, 198 Cal.App.4th at p. 100). She described three incidents of unwanted touching: Anton slapped her buttocks as he passed her in a hallway; on a drive back from Fresno he rubbed her thigh as her skirt rode up and offered her $200 “between me and you”; and he touched her buttocks as she bent to set his lunch plate on the floor (id. at pp. 101–102). He asked her to massage his shoulder, and ridiculed her by asking whether she was “going through menopause” whenever he saw her sweat (id. at pp. 101–102). Anton fired her twice, the second time for good (id. at pp. 102–103).

The decisive evidentiary fight concerned testimony from other women — Stefanie Pumphrey, Erica Garcia, Lisa Wilbanks, Jan Humecky, and Lisa Beatty — that Anton leered at female employees’ buttocks, pulled out the elastic of one woman’s underwear to read the label, commented on employees’ breasts, patted women’s buttocks and thighs, and left a voicemail calling Pumphrey a “fucking bitch” (Pantoja, supra, 198 Cal.App.4th at pp. 97–99, 119). Much of this conduct occurred outside Pantoja’s presence or outside her nine-month tenure.

Procedural history

Pantoja sued in 2004, alleging FEHA violations, wrongful termination in violation of public policy, battery, sexual battery, and intentional infliction of emotional distress; the non-FEHA claims were dismissed or nonsuited, leaving only the FEHA hostile-environment harassment and discriminatory-discharge claims (Pantoja, supra, 198 Cal.App.4th at p. 93). On defense motions in limine, the trial court excluded evidence of harassment of other employees unless Pantoja “personally witnessed such acts” and they “adversely affected her working environment,” and excluded evidence of Anton’s references to “Mexicans” (id. at pp. 93–94). It adhered to those rulings throughout trial, also nonsuiting the race-discrimination claim on the ground that Pantoja had “presented no evidence” — evidence the court had itself excluded (id. at pp. 107–108).

Using a special verdict, the jury found that Pantoja was not “subjected to unwanted harassing conduct because she was a woman,” and that her gender was not a motivating reason for her discharge (Pantoja, supra, 198 Cal.App.4th at p. 109). Judgment was entered on the defense verdict; the trial court denied Pantoja’s new-trial motion; and Pantoja appealed.

Issue

The court framed the central question as “whether the court erred in not allowing the jury to hear ‘me too’ evidence, that is, evidence of the employer’s alleged gender bias in the form of harassing activity against women employees other than the plaintiff” that “occurred outside plaintiff’s presence and at times other than when plaintiff was employed” (Pantoja, supra, 198 Cal.App.4th at p. 92). Specifically, whether such evidence is barred as propensity or character evidence under Evidence Code section 1101, subdivision (a), or admissible to show “a discriminatory or biased intent or motive” under subdivision (b) (ibid.). Subsidiary issues: whether the in limine exclusion of race-bias evidence was a disguised summary adjudication; whether a Lyle-based jury instruction was misleading without clarification; and whether the court properly excluded rehabilitation evidence for a plaintiff’s witness.

Holding

Reasoning

Section 1101 distinguishes propensity from intent. The court grounded its analysis in the structure of Evidence Code section 1101: subdivision (a) bars character evidence offered “to prove his or her conduct on a specified occasion,” while subdivision (b) permits “evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent … )” other than disposition (Pantoja, supra, 198 Cal.App.4th at p. 110). The two pivotal precedents pulled in opposite directions. Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511 held that section 1101, subdivision (a), bars evidence of harassment of others, unknown to the plaintiff, when offered to prove a propensity to harass — but, the court stressed, Beyda “does not address the issue of when this type of evidence is admissible to prove intent” under subdivision (b) (Pantoja, supra, at p. 111). Johnson v. United Cerebral Palsy/Spastic Children’s Foundation (2009) 173 Cal.App.4th 740 squarely held that me-too evidence is admissible under subdivision (b) “to show intent or motive, for the purpose of casting doubt on an employer’s stated reason for an adverse employment action” (Pantoja, supra, at p. 112). The court found Johnson “persuasive” and applicable both to Pantoja’s discriminatory-firing theory and, by analogy, to her hostile-environment claim (id. at pp. 114).

Intent was genuinely in dispute. The trial court’s premise — that Pantoja’s allegations “speak for themselves” and “need no other explanation,” so intent was never at issue — was the court’s “second” and central error (Pantoja, supra, 198 Cal.App.4th at pp. 116–117). The Court of Appeal rejected it on two grounds. First, discriminatory intent “was an element of Pantoja’s causes of action,” and “a defendant cannot prevent an element of a cause of action from being ‘put at issue’ by denying — even ‘uniformly and expressly’ denying — another element of it” (id. at p. 117). Only where a defendant admits an element should proof of it be excluded; Anton admitted nothing (ibid.). Second, the jury had to weigh Anton’s affirmative defense theory — that he cursed at “situations, not individuals,” shouted at men and women equally, and maintained a policy against harassment, a theme four defense witnesses repeated (id. at pp. 109–110, 117–118). Me-too evidence that Anton harassed women elsewhere “was directly relevant to show his intent, to rebut his evidence, and to impeach his credibility” (id. at p. 116).

The in limine “foundation” rule misstated the law. The trial court repeatedly said it would admit other-acts evidence only after “foundational evidence” that the conduct occurred in Pantoja’s presence or was known to her. The court held this “reflected a misunderstanding of the law,” because the evidence “was admissible to prove Anton’s intent or motive even if the conduct did not take place in Pantoja’s presence and was unknown to her” (Pantoja, supra, 198 Cal.App.4th at pp. 115–116). Knowledge by the plaintiff matters only to whether she experienced a hostile environment (the Beyda point) — not to whether the conduct proves the harasser’s intent. The court also rejected the notion that Pantoja’s counsel “opened the door” improperly: questioning Anton about his general harassment policies and practices did not violate the in limine order, which barred only testimony about specific harassing acts outside her presence (id. at p. 116).

“Because of sex” means gender bias, not sexual desire. Engaging the defense’s recurring claim that there was “no evidence” of gender bias, the court reaffirmed the doctrine: a plaintiff “must show that the harassing conduct took place because of the plaintiff’s sex, but need not show that the conduct was motivated by sexual desire” (Pantoja, supra, 198 Cal.App.4th at p. 114, citing Singleton and Oncale). “[A] female plaintiff can prevail by showing that the harassment was because of the defendant’s bias against women; she need not show that it was because of the defendant’s sexual interest in women” (ibid.). The kind of intent for hostile-environment harassment “may be different” from that for discriminatory firing — an employer “may create a hostile environment … because the employer feels important or powerful while humiliating women” — but in both “the defendant’s discriminatory mental state is crucial,” and there is “no reason why me-too evidence would be admissible … to prove the defendant’s discriminatory mental state in one type of case but not the other” (id. at pp. 114–115). The record contained “ample evidence” of bias even setting the me-too evidence aside: the epithet “bitch,” used standing alone as a “derogatory epithet directed against women,” is “not a neutral word” and “can be compared to a racial slur,” and nonconsensual touching of “a woman’s buttocks or thighs” is relevant to gender motivation (id. at pp. 119).

Section 352 and prejudice. The court held any section 352 ruling was an abuse of discretion: the probative value on “crucial issues” was “unquestionable,” and the only real risk — improper propensity use — “could have mitigated this risk sufficiently” by a limiting instruction (Pantoja, supra, 198 Cal.App.4th at p. 118). It rejected the defense harmless-error argument, finding “a reasonable probability that this evidence of Anton’s gender bias … would have tipped the balance in a credibility contest like this case” (id. at p. 119). The court illustrated how the rulings “skew[ed] the evidence,” reproducing an exchange in which defense counsel was permitted to elicit that Anton’s profanity targeted “situations” while identical rebuttal questions from Pantoja’s counsel drew sustained objections (id. at pp. 120–121).

Race evidence and the disguised summary adjudication. Applying the same logic, the court held the in limine exclusion of Anton’s “Mexicans” remarks was improper: “a motion in limine that claims only that a plaintiff cannot prove her case with a specified item of evidence, as opposed to claiming the item of evidence is inadmissible,” is “but a disguised motion for summary adjudication” (Pantoja, supra, 198 Cal.App.4th at pp. 123–124). The resulting nonsuit on the race claim was “erroneous because it was based on the incorrect rulings that excluded all of Pantoja’s evidence” (id. at p. 124).

The Lyle instruction. The court agreed the instruction — drawn verbatim from Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264 — was “a correct statement of the law,” but held that, given without clarification, it “potentially obscured the import of [the] pattern instructions by too strongly emphasizing defendants’ theory of the case” (Pantoja, supra, 198 Cal.App.4th at pp. 129, 132). Because “abusive conduct that is not facially sex specific can be grounds for a hostile environment sexual harassment claim if it is inflicted because of gender,” the instruction risked leading the jury to disregard non-gender-specific abuse even if motivated by gender bias (id. at p. 130). The court declined to endorse Pantoja’s specific proposed instructions but held clarification was required (id. at pp. 130, 133).

The one ruling affirmed. The court rejected Pantoja’s challenge to the exclusion of evidence offered to rehabilitate Pumphrey after she admitted “animosity” toward Anton. Under People v. Zemavasky (1942) 20 Cal.2d 56, a witness who admits hostility generally cannot be rehabilitated by reciting the party’s alleged misconduct as justification (Pantoja, supra, 198 Cal.App.4th at pp. 126–127). The court held the trial judge had discretion to admit the rehabilitation because the defense itself first elicited the reasons for the animosity, but did not abuse its discretion in excluding it under section 352 to avoid a “minitrial” of a collateral EDD proceeding (id. at pp. 127–128).

Significance

Pantoja is a leading California authority on me-too evidence in employment cases, extending Johnson‘s summary-judgment holding into the trial setting and resolving the tension with Beyda by clarifying that the plaintiff’s knowledge governs only the hostile-environment element, never the admissibility of other-acts evidence to prove the harasser’s intent (Pantoja, supra, 198 Cal.App.4th at pp. 111–116). The decision squarely confirms that harassment “because of sex” is about gender bias, not libido, and that gender-neutral-seeming abuse can be actionable when inflicted because of gender (id. at pp. 114–115, 130). Its companion holdings are independently consequential: it is among the most-cited authorities for the proposition that an evidence-killing motion in limine is a “disguised motion for summary adjudication” (id. at pp. 123–124), and it cautions against pattern-augmenting Lyle instructions that overweight a defense theory (id. at pp. 132–133). Its limits: the court reversed on evidentiary error and did not hold Pantoja was entitled to judgment; admissibility on retrial remains subject to section 352 balancing and ordinary foundation; and the Zemavasky ruling shows the court’s evidentiary deference cuts both ways.

Key quotes

“The plaintiff must show that the harassing conduct took place because of the plaintiff’s sex, but need not show that the conduct was motivated by sexual desire. … [A] female plaintiff can prevail by showing that the harassment was because of the defendant’s bias against women; she need not show that it was because of the defendant’s sexual interest in women.” (Pantoja, supra, 198 Cal.App.4th at p. 114.)

“A defendant cannot prevent an element of a cause of action from being ‘put at issue’ by denying — even ‘uniformly and expressly’ denying — another element of it.” (Id. at p. 117.)

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Practice pointer

Open questions

The court expressly reserved several issues for retrial. It “express[ed] no opinion regarding whether the particular proposed clarifying instructions requested in this case were appropriate” (Pantoja, supra, 198 Cal.App.4th at p. 93), leaving open exactly how a trial court must supplement a Lyle instruction. It declined to decide whether the excluded race evidence “would have been enough to avoid a nonsuit if it had been admitted” (id. at p. 124). It noted that whether evidence about Anton’s response to Pumphrey’s unemployment claim is admissible as me-too bias evidence “is a matter the trial court would have to determine as part of a new trial” (id. at pp. 128–129). And it flagged, without deciding, whether former defense attorney Lisa Beatty could testify, observing only that her testimony “should not be excluded unless some authority shows that a party’s former attorney cannot testify under these circumstances” (id. at p. 119).