Noneconomic Damages Only; No Medicals Presented
By: Kelly A. McCauley, Michigan Lawyers Weekly
August 21, 2000
Can a minority road worker receive noneconomic damages for retaliation and racial harassment by coworkers over a 12-year period, even though there was no medical testimony presented to support his claims for mental anguish and physical pain and suffering?
A recent $1.3 million jury award in Ingham County indicates the answer is yes.
Pinckney attorney James K. Fett, who represents the plaintiff, said the key to winning the case was not only arguing the continuing violations doctrine, which allowed him to present evidence from more than a decade ago, but focusing on the character of the employer's conduct.
"I just outlined the outrageous character of the defendant's conduct," Fett stated. "I wasn't going for a sympathetic plaintiff so much as the outrageous and offensive conduct of the defendant. This was not like a lot of 'garden variety' discrimination cases where somebody is slurred or harassed in the workplace for six months and then they sue. This was unlike any case I knew of."
Moreover, Fett said the employer retaliated against the plaintiff by filing a workers' comp fraud claim after the plaintiff filed his lawsuit, and by filing a sexual harassment claim against him after the jury announced its verdict.
"The lead guy in bringing the fraud claim is one of the 'key villains' in the case he testified that racial slurs were common usage and the employees didn't know that was 'incorrect,'" Fett told Lawyers Weekly. "That was part of the reason we got such a large verdict -- the jury was outraged by some of the stories that the defendant was telling."
Additionally, Fett said the defendant never really tried to rebut specific incidents of the worker's physical and emotional anguish.
According to Fett, attorneys handling similar harassment cases should:
- go for jury outrage regarding the defendant's behavior, rather than sympathy for the plaintiff;
- rely on the testimony of family, friends and coworkers as to plaintiff's mental anguish and pain and suffering, rather than "hired gun" expert witnesses, such as IMEs, psychologists and the like; and
- not blackboard numbers for damages -- let the jury decide the amount of noneconomic damages without suggestions from counsel.
Click here [link removed] for a Trials & Settlements report in the case, Peña v. Ingham County Road Comm'n.
Plaintiff Joe Peña worked as a laborer for defendant Ingham County Road Commission. From Oct. 5, 1987, through the date he filed his complaint in May 1998, the plaintiff was racially slurred and harassed on an almost daily basis.
Some of the slurs -- which were made in front of the plaintiff's managers -- included being referred to as a "pickle plucker" and a "wetback piece of shit," among other things. The defendant's managers reportedly told the plaintiff that there were people at the road commission who "don't want Mexicans, Blacks or women working here. You've got to live with it."
Moreover, one of the primary harassers allegedly made a death threat against the plaintiff, again in the presence of management, and no action was taken. However, according to Fett, when the same employee threatened a white manager less than one month later, the employee was immediately suspended and a police report was filed. The employee was eventually discharged.
Finally, after more than a decade of harassment, the plaintiff sued the defendant in Ingham County Circuit Court, claiming racial harassment and retaliation under the Elliott-Larsen Civil Rights Act.
Depositions were taken in October 1998 and, according to Fett, the defendant filed a workers' compensation fraud claim against the plaintiff.
The jury returned a $1.3 million verdict for the plaintiff: $650,000 for past damages and $650,000 for future damages.
Fett said the jurors awarded a large amount because they thought the defendant "will not change its harassing behavior" and that "the plaintiff will continue to suffer harassment in the future."
Furthermore, Fett said that, after the jury reached its verdict, the defendant filed a sexual harassment lawsuit against the plaintiff and a coworker who had testified on his behalf.
The defendant has indicated that it will appeal the verdict, Fett said.
According to Fett, the defendant took the position that, because the plaintiff did not take advantage of the company's collective bargaining agreement, it was the plaintiff's fault that the racial harassment continued.
However, Fett said he was able to defeat that argument during the jury instruction conference.
"I gave the judge a jury instruction that said if you are slurred in front of management, you do not have to file any grievance," Fett explained. "That really took the wind out of their sails. Apparently they weren't aware of the law in that regard. So the defense had taken a position that was directly contrary to what the judge had instructed the jury throughout the whole trial."
Further, Fett noted that the union president testified that union members are not to file grievances against each other, only against management. Thus, Fett said his position was that the plaintiff didn't need to file a grievance because management was witness to the alleged harassment.
"When we got to the jury instruction conference, the judge said 'Yeah, I'll give that,'" Fett said. "The defense looked pretty silly when it came time to instruct the jury because everything they had been telling the jury for the whole trial was rebutted in about a two-line instruction."
Moreover, the defense stated in opening arguments that the plaintiff did not find the racial slurs unwelcome. But Fett said there was scant evidence of this.
"One of the plaintiff's supervisors whose job was on the line said the plaintiff thought it was hysterical when his coworkers were calling him a 'pickle plucker' and a 'wetback,'" Fett said. "They said the plaintiff thought they were just kidding around. Obviously, that is inconsistent with common sense. And the jury didn't believe it."
Moreover, the defense "made a big play" on the fact that the plaintiff had been arrested for assaulting a coworker who had racially harassed him.
"What the defense said was, 'You were arrested for assault [on a coworker] -- and wasn't that difficult situation causing you stress? It wasn't all these things that we were doing to you, right?'" Fett explained.
"Of course it backfired on them," he said. "It looked like they were taking a cheap shot."
According to Fett, the plaintiff was acquitted of the assault charge in less than five minutes.
Proper Procedure Not Followed
Fett said the only expert he hired was Julie Steiner, who testified on prompt remedial action regarding hostile work environment claims, as well as the components of a good investigation into such claims.
Fett explained that, basically, the investigation process involves interviewing the complainant and the alleged harasser, meeting with witnesses to determine if there are corroborating statements, making a finding and then developing recommendations and remediation.
Furthermore, input from the victim about remediation should be sought and, after action has been taken, periodic monitoring should be undertaken to determine if the workplace remains hostile, Fett said.
In this case, Steiner testified that the defendant "hadn't done any of this, and that they didn't take any steps in response to the plaintiff's complaint," he noted.
He acknowledged that the defendant did conduct "diversity training" but, when pressed about it, said it wasn't done in response to the plaintiff's complaint.
"It's like a catch 22 for them -- they thought that if they admitted that they had taken some steps then that's kind of an admission of guilt," Fett said. "But they wanted to be able to say that they did something. It didn't work well for them."
Family & Friends
Aside from Steiner, Fett said he called no experts to testify about the plaintiff's claims of mental anguish, physical pain and suffering, and humiliation.
According to Fett, the plaintiff's physical and emotional problems consisted of trouble sleeping, nightmares, crying spells and suicidal thoughts.
Instead, Fett said he relied on the testimony of family, friends and coworkers to show the extent of damages.
"I think it's important to rely on family, friends and coworkers for damage testimony rather than bringing in 'hired guns' such as an IME, psychologist or psychiatrist," Fett stated. "I think it's much more effective."
To that end, Fett said he called the plaintiff's wife, whose testimony was particularly emotional.
"[The plaintiff's] wife testified that after their second son was born, the plaintiff said, 'We should change his name.' When asked why, he said, 'He's blond and blue-eyed so nobody would have to know he is Mexican. It's not about how you feel or how I feel; it's about going to work every day and being called a pickle plucker.'"
Moreover, the plaintiff's friends and coworkers testified that he "just didn't have any energy anymore, he wasn't excited about work and had hopeless thoughts," Fett said. The plaintiff "spoke about his opinions and his life just not mattering."
Even though the plaintiff had suffered 12 years of harassment, Fett said he remained reluctant to ask the jury for a specific damages amount, especially in the age of tort reform.
"I didn't suggest a figure. I simply requested a fair verdict," Fett said. "The defense in all these types of cases -- they're tired of the litigation lottery -- they're waiting for me to blackboard numbers. I think it took some wind out of their sails because they didn't have anything to attack."
Fett said he uses this technique often and, "every time I've done that, the jury has come back with much higher figures than I would've asked for."
Moreover, Fett said he read an article which said that "in those states which don't allow attorneys to suggest a figure, the verdicts are uniformly higher."
And, in Fett's opinion, an added benefit of not blackboarding numbers is "people don't think you're a 'money grubber,' as they usually expect a plaintiff's attorney to come in saying 'I want a zillion dollars.'"
Although Fett doesn't necessarily see any "trends" in this area of the law, he said he does believe employers are "emboldened" and are taking cases to trial that they may have settled 10 years ago.
"I think perhaps the reason I've seen some large verdicts recently is that employers are not as gun shy, and as a result they are taking more cases to trial that they should settle," Fett said. "I think they're getting more employer-friendly decisions from the Court of Appeals and the Michigan Supreme Court."
Another observation of Fett's and one of his "pet peeves" is that he gets widespread media attention for his handling of reverse discrimination cases that attack government-sponsored affirmative action policies which have preferences as a key element.
"The media generally gloms onto those cases and they draw much more attention than this case," Fett explained. "My peeve is that, although I am happy to do the reverse discrimination cases and I think they are just causes, I think that the media attention misleads the general public into thinking that the only people who are discriminated against are white males."
He asserted that, "by far, it's minorities, the handicapped and women who are being discriminated against not white males."
To that end, Fett said that "the judiciary, lawyers and the general public need to be more vigilant because there's discrimination and racism and bigotry that's taking place in more subtle ways which are more difficult to prove. The legal profession could do a better job of bringing it to light."
Meanwhile, now that the suit has ended and the slurs and threats against the plaintiff have stopped, Fett said the plaintiff's situation at work remains far from ideal.
"The retaliation and the alienation of my client from his coworkers and the management hostility toward my client has not ceased," Fett stated. "There is still a hostile work environment there. They've never taken the appropriate steps to remedy that."
© 2000 Lawyers Weekly Inc., All Rights Reserved.