Friday, July 17, 2020
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has affirmed a $678,104.97 judgment won by a senior air vehicle technician against Boeing Company in an action against the aerospace giant based on racial harassment and discrimination, with a three-judge panel declaring that the evidence supported the outcome.
Marshall, who is African American, made broad ranging allegations in his Nov. 18, 2016 complaint, filed in the District Court for the Central District of California. They included assertions that, based on his race, he was not included on trips by colleagues, sometimes to foreign lands, for the launching of commercial satellites, which would have entailed overtime and differential pay and a chance for advancement; that he was discriminatorily relegated to a night shift; and that Boeing was liable based on a physical attack on him by a Caucasian co-worker.
The complaint, filed by Marshall’s lawyer, Steven H. Haney of the Los Angeles firm of Haney & Young, included commentary going beyond matters directly applying to Marshal. It declared:
“With the passage of the Civil Rights Act of 1964, it appeared America had turned a corner. The message was now clear: there was to be ‘no discrimination against persons based on race or ethnicity.’ While most of America got that message, it has become obvious that at least one major multi-cultural company either was not listening or simply chose to ignore the law. That company is Boeing.”
Judge Dolly Gee substantially narrowed the issues, on Feb. 2, 2018, granting summary judgment to Boeing on most of the claims, as well as to Marshall’s bid for punitive damages. Under the surviving claims, a jury in 2018 found Boeing liable in the amount of $350,000 based on violations of California’s Fair Employment and Housing Act (“FEHA”) and negligent selection and supervision by Boeing of its employees.
Gee later awarded attorney fees in the amount of $315,360 and expert fees in the sum of $4,000, with costs allowed in the amount of $8,744.97. With interest on the $350,000, the judgment exceeds $700,000.
The Ninth Circuit, in a memorandum opinion filed Wednesday, said Gee did not err in denying Boeing’s motion for judgment as a matter of law and did not abuse her discretion in denying the defendant’s request for a new trial.
In seeking those post-trial rulings, Boeing argued that it can’t be held accountable for any harassment of Marshall given that he did not speak up about it prior to bringing suit. It set forth:
“Plaintiff Roderick Marshall…allegedly suffered racial harassment for many years at the hands of his co-workers at Defendant The Boeing Company….Yet, despite written policies and a Code of Conduct he acknowledged annually, pledging to report conduct that Mr. Marshall perceived to be in violation of Company policy…, and despite the ability to report misconduct to any manager, to human resources, to the Equal Employment Opportunity Department, to his union steward, to the Ethics Department, to an anonymous hotline, or to the Global Diversity & Inclusion Department, Mr. Marshall did absolutely nothing to report the misconduct to Boeing.”
“Instead, his first declaration of misconduct that he perceived to be racial harassment surfaced in his lawsuit—specifically revelations during his deposition, then finally, the balance of the accusations during the trial.”
At trial, Marshall testified that a white co-worker at the company’s El Segundo facility one day fiddled with a piece of rope, then tossed it to him. It was knotted in the shape of a hangman’s noose, he recounted.
Haney remarked to jurors during closing argument:
“What could be more offensive than reminding an African-American that years ago, not that many years ago, but years ago, African-Americans were taken out and hung by the neck?”
Boeing remarked in its post-trial motions that Marshall “forgot to mention” the purported incident in his deposition “or in any of Plaintiff’s discovery, pretrial materials or investigation interviews.”
The memorandum opinion does not discuss Boeing’s specific contentions on appeal.
“To prove his claim for FEHA hostile work environment harassment, Marshall had to show that Boeing ‘knew or should have known of the harassment’,” the opinion recites, adding that establishing a claim under the FEHA for failure to prevent harassment entails a failure “to take all reasonable steps necessary to prevent harassment from occurring.”
The judges said that substantial evidence showed that “Boeing’s supervisors knew or should have known of the racial harassment” and that they “were aware of ongoing harassment but failed to report it or otherwise intervene.”
“To prove his claim for negligent supervision or retention, the jury instructions required Marshall to show that Boeing knew its employees engaged in racist conduct and that the racist conduct created a particular risk of harassment to African-American employees. There is substantial evidence in the record that Boeing’s supervisors knew of the racist conduct and knew that the conduct created a particular risk of harassment.”
The panel was comprised of Circuit Judges Richard Paez and Bridget Bade, joined by District Court Judge Andrew P. Gordon of the District of Nevada, sitting by designation.
The case is Marshall v. The Boeing Company, 19-55788.
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