Employee Can’t Use ‘Me Too’ Evidence from Co-Workers Outside His Protected Class

5.20.13A California Court of Appeal upheld a lower court’s decision to exclude an employee’s proposed “me-too” evidence of racial discrimination. In Hatai v. California Department of Transportation, the employee’s evidence failed because not all of his proposed witnesses were members of the employee’s protected class and the employee sought the evidence to prove a theory of the case that he had not originally plead.

Kenneth Hatai, the plaintiff, was an engineer for the California Department of Transportation (“Caltrans”). Mr. Hatai was of Japanese and Asian descent, while his supervisor was of Arab descent. Due to an alleged deterioration in his work, including missing deadlines, Mr. Hatai received a “warning letter” from his supervisor. Mr. Hatai alleged that his supervisor made a racially-oriented negative comment when delivering the letter.

Mr. Hatai sued his supervisor and Caltrans for discrimination under the Fair Employment and Housing Act (FEHA). In his complaint, Mr. Hatai contended that the supervisor discriminated against him because he was Asian. However, at the time of trial, Mr. Hatai attempted introduce evidence from several other non-Asian Caltrans employees who experienced similar animus the supervisor purportedly held against all non-Arabs. Caltrans asked the court to exclude the testimony and evidence of the employees that the plaintiff sought to introduce. Caltrans argued that the plaintiff, in his complaint, did not allege that the basis of his supervisor’s discrimination was Arab favoritism.

The trial court agreed with Caltrans, ruling that the engineer’s complaint alleged anti-Asian animus, not Arab favoritism. At the trial’s conclusion, the jury ruled for Caltrans and the supervisor. The plaintiff appealed but was unsuccessful. The Court of Appeal explained that, although “me-too” evidence (proof tending to show that others suffered the same or a similar sort of discrimination as the employee filing suit) is admissible in some cases, the plaintiff in this case did not meet the standard to allow such evidence to be admitted.

The court explained that the plaintiff’s proposed witnesses and evidence fell outside the bounds of acceptable “me-too” evidence because the witnesses were not part of his protected class – they were neither Asian nor Japanese. The employee’s evidence sought to show that the supervisor discriminated against non-Arabs, but his complaint pled that the supervisor discriminated against him because he was Asian, not because he was non-Arab. The Court of Appeal agreed with the trial court that, lacking sufficient proof of the supervisor’s anti-Asian animus, the plaintiff could not, on “the eve of trial, … reframe his case to show that Haddadeen had discriminatory intent ‘against anyone who is not an Arab.'”

The court cited, in contrast, other cases where “me-too” evidence the employee sought to offer was admissible, including a pregnancy discrimination case where the worker sought to offer testimony of five other co-workers who alleged discrimination as a result of their pregnancies, and a gender bias case where the worker included several female colleagues who allegedly experienced anti-female harassment.

In this case, had the “me-too” witnesses all been people of Asian or Japanese descent, who intended to testify that the supervisor discriminated against them precisely because they were Asian, the court might have reached a different result. Also, had the plaintiff plead his case from the beginning as a matter of the supervisor’s “general xenophobia against non-Arabs,” the court would likely have allowed the evidence in of other employees who were subject to non-Arab animus. This is a good case to take note to plead the case at issue broadly or when facts surface that change the heart of the case to amend the complaint. Otherwise, courts like in Hatai will exclude important evidence that probably would have made a difference for a jury determining claims of discrimination or harassment.