Metropolitan News-Enterprise


Wednesday, August 10, 2011


Page 1


C.A. Tosses Verdict in Favor of Attorney in Discrimination Suit


By SHERRI M. OKAMOTO, Staff Writer


The Fifth District Court of Appeal yesterday threw out a verdict in favor of a veteran Bakersfield lawyer on harassment and discrimination claims by a former employee.

In a 54-page decision containing 22 pages of detailed accusations, the panel explained Lorraine Pantoja should have been permitted to present evidence to the jury regarding attorney Thomas J. Anton’s harassing activity directed at other female staff members, and the exclusion of such evidence was prejudicial error, necessitating reversal.

Pantoja claimed that Anton frequently used profanity in castigating her about her performance, called her vulgar and derogatory names, referred to his employees as “my Mexicans” and touched her inappropriately during the 10 months she worked for him in 2002 as a secretary.

Her complaint included a cause of action which referenced violations of Fair Employment and Housing Act in general terms, and claims for racial discrimination and sexual harassment in the form of a hostile work environment created by Anton’s words and behavior, among other allegations.

Anton thereafter filed two motions in limine seeking to exclude evidence of racial bias and all evidence of acts of discrimination and harassment unless Pantoja “personally witnessed such acts” and the acts “adversely affected her working environment.”

 He contended “the court should exclude any reference to the term ‘Mexicans’ in any context in this case” since Pantoja had only claimed to have heard Anton use the word once and this one instance could not establish a racially harassing environment.

‘Me-Too’ Evidence

The attorney also asserted that any “me-too” evidence involving third parties was improper character evidence and would be substantially more prejudicial than probative under Evidence Code Sec. 352.

Kern Superior Court Judge David Lampe agreed, and granted both motions.

At trial, Pantoja testified that she had witnessed Anton direct profane and belittling comments at other female employees, and presented testimony from four other women who had worked for Anton while Pantoja was still employed by him.

Anton categorically denied the allegations and presented testimony from witnesses who claimed the attorney yelled and used profanities in the presence of male and female staff equally, and that these outbursts were always directed at a situation, not an individual.

The jury eventually returned a special verdict finding Pantoja was not subjected to harassing conduct because she was a woman, and that her gender was not a motivating reason for her termination.

Pantoja appealed, contending Lampe had erred excluding her proffered evidence of sexual harassment by Anton of other employees from being presented to the jury.

Relevant to Intent

Justice Rebecca A. Wiseman, who wrote for the appellate court, said she agreed since Lampe’s in limine rulings “disregarded the possibility that this me-too evidence could be relevant to prove Anton’s intent when he used profanity and touched employees.”

She explained “evidence that Anton harassed other women outside Pantoja’s presence could have assisted the jury not by showing that Anton had a propensity to harass women sexually, but by showing that he harbored a discriminatory intent or bias based on gender.”

The justice reasoned such evidence “would have enabled the jury to evaluate the credibility of [Anton] and his other witnesses’ assertions that, although he yelled profanities in the office, he did not use the words Pantoja claimed; he did not direct profanities at Pantoja; and he did not have a discriminatory intent.”

In light of this, Wiseman said “the evidence was admissible to show intent under Evidence Code section 1101, subdivision (b), to impeach Anton’s credibility as a witness, and to rebut factual claims made by defense witnesses.”

Wiseman also said the need for the temporal limitation, restricting Pantoja to presenting evidence of incidences which took place during the time period of her employment was “not supported by the record.”

Since the defense theory was “that Anton’s practice was to direct his profane tirades at situations, not individuals,” and “that he had the policy and practice all the time, or at least during the several years covered by the evidence,” Wiseman opined evidence showing his failure to adhere to this alleged policy and practice “would have supported a rational inference that he did not have them at all.”

She further posited that there was “a reasonable probability” the excluded evidence “would have tipped the balance in a credibility contest like this one.”

Wiseman added that the exclusion of Pantoja’s proffered evidence of racial bias was an abuse of discretion for the same reasons.

Joined by Justices Dennis A. Cornell and Gene M. Gomes, Wiseman acknowledged that “FEHA is not a civility code” and is “ ‘not designed to rid the workplace of vulgarity,’ ” but posited that Pantoja’s evidence, if credited, demonstrated conduct which involved “more than ‘vulgarity’ in the workplace.”

The case is Pantoja v. Anton, F058414.


Copyright 2011, Metropolitan News Company