[00:00:00] Speaker 01:
Good morning, Your Honors.

[00:00:01] Speaker 01:
May it please the Court, Joanna Schiavone on behalf of Appellants East Bay, Municipal Utility District, and Craig Spencer.

[00:00:08] Speaker 01:
I'd like to reserve five minutes for rebuttal, and I'll keep my eye on the clock.

[00:00:11] Speaker 01:
I plan to focus my argument today on three issues.

[00:00:15] Speaker 01:
First, for both plaintiffs, the retaliation verdicts are incompatible with the requirement under both Section 1983 and FIHA that there must be a materially adverse employment action.

[00:00:28] Speaker 01:
As to Ms.

[00:00:29] Speaker 01:
Bland's constructive discharge claim, the law requires that any reasonable employee objectively would have felt they had no choice but to resign.

[00:00:38] Speaker 01:
The law speaks of coercion and compulsion.

[00:00:41] Speaker 01:
Test is not whether resigning from the job was simply one rational option.

[00:00:47] Speaker 01:
Ms.

[00:00:47] Speaker 01:
Bland has not met that high bar here.

[00:00:49] Speaker 01:
Third,

[00:00:51] Speaker 01:
Ms.

[00:00:51] Speaker 01:
Pierce's cat's paw theory is not sustainable.

[00:00:55] Speaker 01:
Mr. Spencer made comments in the context of a confidential internal investigation.

[00:01:00] Speaker 01:
While Ms.

[00:01:00] Speaker 01:
Pierce claims that Mr. Spencer knew the report would be sent to the board, there's no evidence of that, and they argued contrary in closing.

[00:01:10] Speaker 01:
Instead, it was Ms.

[00:01:11] Speaker 01:
Pierce herself who was the catalyst for sharing the information, and that is not how cat's paw liability is applied in California.

[00:01:20] Speaker 03:
And counsel, let's assume that we would agree that there was a failure of sufficient proof on the cat's paw theory for one reason or another.

[00:01:32] Speaker 03:
What is the impact on the verdict of that conclusion, especially in light of the general verdict form?

[00:01:40] Speaker 01:
Thank you, your honor.

[00:01:41] Speaker 01:
It's our contention that with respect to

[00:01:44] Speaker 01:
So there's two categories of adverse employment actions, I guess three, her argument about delay, her argument about course of conduct, and then the Katz-Parth theory with respect to E.B.

[00:01:56] Speaker 01:
Mudd.

[00:01:57] Speaker 01:
And it's our contention that if the court were to reverse on that as an unsustainable theory, insufficiently supported by the evidence, that the court would need to reverse but upheld another adverse employment action, that the court would need to reverse

[00:02:11] Speaker 01:
At the damages verdict with respect at non economic damages and even though there was a general verdict we've cited in our briefs the case law.

[00:02:22] Speaker 01:
That that reversal would be required because I think it's the Maynard case.

[00:02:29] Speaker 01:
The court reversed the section 1983 and 1985 causes of action, even though there was a general verdict.

[00:02:37] Speaker 01:
And when one theory of liability, it's a theory of liability.

[00:02:40] Speaker 01:
And when that theory of liability is reversed, the non-economic damage board would be unsustainable.

[00:02:47] Speaker 03:
Does that apply only as to EB-MUD?

[00:02:50] Speaker 03:
Since the Cat's Paw theory, as I understand it, is only applicable to the utility.

[00:02:55] Speaker 01:
It's also our contention your honor that that because there would be on for the same reason there's also a failure of proof of direct liability by Mr. Spencer for the same reason that that he was he was not the the party acting with animus and so that's also alleged as a direct theory of liability against Mr. Spencer under section 1983 and so to the extent that the failure of proof is is with respect to

[00:03:19] Speaker 01:
the acting with direct retaliatory animus to impact that later decision, that that would also mean that that theory is not sustainable.

[00:03:27] Speaker 01:
But the cat's paw theory, as the traditional cat's paw theory to influence the board as decision makers, you're correct that that is against E.B.

[00:03:34] Speaker 01:
Mudd only.

[00:03:36] Speaker 03:
And so it's at least theoretically possible to find insufficient proof on the cat's paw theory, thereby requiring reversal of the verdict as to E.B.

[00:03:49] Speaker 03:
Mudd, but sustaining it as to Spencer.

[00:03:54] Speaker 01:
Our contention is that it would also require reversing the verdict as to Mr. Spencer on the section 1983, unless the court found a different, was sustaining it on some different theory.

[00:04:05] Speaker 01:
But with respect to that, if the insufficiency of the evidence that he acted with animus directly, then that would not sustain the Section 1983 claim as well on the direct theory of liability for Mr. Spencer.

[00:04:21] Speaker 01:
And the other case that I intended to cite was also the Coastal Abstract case.

[00:04:24] Speaker 01:
It's both Maynard and Coastal Abstract, under which the court says, even when it's a general verdict, if there's a theory of liability, where there's actually non-liability, the damages award needs to be reversed and remanded for a retrial and damages.

[00:04:40] Speaker 01:
And that was a Lanham Act case, as I discussed.

[00:04:42] Speaker 01:
Maynard was the Section 1983 and 1985 race discrimination claim, where the court found

[00:04:50] Speaker 01:
insufficient evidence of those race discrimination claims, and it couldn't be separated out from retaliation, and so the damages award was reversed and remanded.

[00:05:02] Speaker 04:
Can I ask you to come back?

[00:05:04] Speaker 04:
I think your very first point was that there's insufficient evidence of adverse action.

[00:05:09] Speaker 04:
I take it that that depends on us agreeing with you on your second point about the constructive discharge, because if there was a constructive discharge, that would be adverse action, right?

[00:05:19] Speaker 01:
So I have a couple of responses to that question, Judge Miller.

[00:05:22] Speaker 01:
And the first response is that's not as the case with respect to Ms.

[00:05:25] Speaker 01:
Bland.

[00:05:25] Speaker 01:
It's not the case that was presented to the jury.

[00:05:27] Speaker 01:
It's not how it was argued in closing argument.

[00:05:30] Speaker 01:
And our contention on that is that legally, it's not proper to do that here, because with respect to constructive discharge, we concede that more of the evidence may be considered in terms of a timeline.

[00:05:43] Speaker 01:
But that would just be a way of bootstrapping in pre-complaint conduct into the retaliation claim.

[00:05:49] Speaker 01:
And so it's only proper to consider the conduct for retaliation from April 2020 to her resignation and leaving EVMUD in November of 2020.

[00:06:04] Speaker 01:
But if her claim on constructive discharge, we also have some arguments that the race discrimination facts shouldn't be considered.

[00:06:11] Speaker 01:
But if you considered those facts, and then if you consider constructive discharge, it's a way of bootstrapping that in.

[00:06:18] Speaker 01:
And the law is very clear that pre-complaint conduct can't be the basis for retaliation.

[00:06:26] Speaker 04:
How was the jury instructed on when the conduct had to take place?

[00:06:33] Speaker 04:
Was it instructed on the issue you're just addressing?

[00:06:40] Speaker 01:
It's not coming immediately to mind, but what I can say that because this is a legal issue, so I think with the court under Burlington Northern, the question is whether as a matter of law,

[00:06:53] Speaker 01:
there is an adverse employment action.

[00:06:54] Speaker 03:
And so... Counsel, maybe I can perhaps assist a little bit.

[00:06:58] Speaker 03:
Wasn't there a jury instruction, standard jury instruction, that the complaint had to be a substantial motivating reason for the adverse action?

[00:07:08] Speaker 01:
Yes, that was part of the jury instructions, Your Honor.

[00:07:10] Speaker 01:
I was trying to think about the timeline.

[00:07:13] Speaker 03:
Well, is that not relevant to timing?

[00:07:17] Speaker 01:
So the timing question, though, is for this court, because under Burlington Northern and the other cases that say that you can't have pre-complaint conduct, the question is whether the conduct that occurred for retaliation only, I'm not talking about constructive discharge, but with respect to retaliation only, post-complaint, was there an adverse employment action?

[00:07:42] Speaker 01:
And so again, the response on the constructive discharge is it would be a way to bootstrap in that conduct before if she's arguing for the pre-complaint conduct.

[00:07:50] Speaker 03:
Well, how could pre-complaint conduct be a substantial motivating reason if it predates the complaint itself?

[00:08:03] Speaker 01:
Only if the constructive discharge is what's used as the anchoring adverse employment action for the

[00:08:11] Speaker 01:
retaliation claim.

[00:08:13] Speaker 05:
Right.

[00:08:13] Speaker 05:
Isn't that the basic question here?

[00:08:16] Speaker 05:
I mean, constructive discharge is an adverse employment action.

[00:08:20] Speaker 05:
And in constructive discharge, you can take pre-complaint actions into consideration.

[00:08:30] Speaker 05:
So why isn't constructive discharge enough to show an adverse?

[00:08:36] Speaker 01:
So I think what I would respond on that is

[00:08:40] Speaker 01:
If we're turning then to constructive discharge to talk about the sustainability of that as a legal matter.

[00:08:46] Speaker 05:
The question is that the question is do you do agree with the logic that if if it's a constructive discharge is an adverse employment action and in determining constructive discharge, you can take pre complaint conduct into consideration.

[00:09:04] Speaker 01:
I only agree with the logic, Your Honor, to the extent that it seems, number one, it wasn't the theory that was argued here when it was argued.

[00:09:13] Speaker 01:
The case was presented below.

[00:09:15] Speaker 01:
It was the first time that's ever been raised was on appeal.

[00:09:19] Speaker 01:
But the second response to that is, again, it seems like a way to bring in conduct that predated retaliation.

[00:09:27] Speaker 01:
So I guess that's my my best answer on on that point and so I guess turning then to constructive discharge I think it's also important to focus in because not all of those facts.

[00:09:38] Speaker 01:
It's our contention that not all of the facts argued Can be considered on constructive discharge either with in and in miss Bland's brief in particular she relies on the medical leave related facts discrimination regarding her medical leave and

[00:09:53] Speaker 01:
not respecting the medical leave, reduced workload, and increasing the workload, but because she did not prevail in the CIFRA claim, those facts actually are not proper to be considered with respect to either claim for relief that's under the Schaeffer case.

[00:10:08] Speaker 01:
It's also our contention that an extension of Schaeffer is that because she did not prevail on the race discrimination claims, that those facts have to be read

[00:10:17] Speaker 01:
That those can't facts can't be read in the light most favorable to her the Schaeffer case states that that the facts on with respect to a mixed a mixed verdict and I realize it's not a deadlock in the Schaeffer case, but it is mixed verdict case.

[00:10:32] Speaker 01:
And what this court said was, when the jury's verdict is split, we draw all factual inferences and resolve all issues of credibility in favor of the jury's findings.

[00:10:43] Speaker 01:
Because Ms.

[00:10:44] Speaker 01:
Blam bore the burden of proof on each of the three race discrimination claims, did not prevail on those.

[00:10:50] Speaker 01:
It's our contention that you

[00:10:52] Speaker 01:
that it's not proper for this court to consider all of those race discrimination facts in analyzing whether there was sufficient evidence of a constructive discharge.

[00:11:00] Speaker 01:
And so I think that those two things are closely related, Your Honor.

[00:11:03] Speaker 01:
But even assuming that a constructive discharge could be an adverse employment action, it's not proper then to bootstrap all of those facts into a retaliation claim, I think is our essential argument on that.

[00:11:23] Speaker 01:
And I think with that, are there further questions or I'm happy to reserve?

[00:11:26] Speaker 04:
Before you run out of time, I wonder if you could briefly address Ms.

[00:11:30] Speaker 04:
Duffy, the expert.

[00:11:32] Speaker 04:
I mean, I think you may have a strong argument that that expert testimony was improper, but I'm wondering what your argument is that it was prejudicial.

[00:11:43] Speaker 01:
Yes.

[00:11:44] Speaker 01:
So turning then to the prejudice argument, your honor,

[00:11:47] Speaker 01:
The response on that point was that it was brief.

[00:11:51] Speaker 01:
But our response to that is, but it featured prominently in the trial.

[00:11:55] Speaker 01:
Everything built up to that.

[00:11:57] Speaker 01:
And it featured in counsel's closing argument with respect to every cause of action.

[00:12:02] Speaker 01:
It was hammered over and over.

[00:12:04] Speaker 01:
It was used to undermine the defendants at every stage with respect to the investigations, with respect to commenting on evidence.

[00:12:13] Speaker 01:
and commenting essentially on Mr. Spencer's credibility, drawing on inconsistencies between performance evaluations, what he said in performance evaluations, and comments he made inside the investigation.

[00:12:26] Speaker 01:
The expert commented on that as well.

[00:12:28] Speaker 01:
It featured in all of the claims for relief on which the plaintiffs prevailed.

[00:12:33] Speaker 01:
And under Barabin, this court's decision in Barabin, it's not our burden to establish the harm.

[00:12:41] Speaker 01:
It's the opponent's burden to establish harmlessness.

[00:12:44] Speaker 01:
And as we know often, it matters who bears the burden of proof with respect to showing harm.

[00:12:50] Speaker 01:
And so even though it may have only been half an hour of testimony, it was absolutely critical to the plaintiff's case, not just in establishing the failure to prevent claim, but with respect to each of the claims of retaliation,

[00:13:04] Speaker 01:
and constructive discharge.

[00:13:07] Speaker 01:
It was used, as I said, to undermine every single aspect of the defendant's decision making, investigation, progress of how they handled all of the conduct at issue.

[00:13:24] Speaker 03:
I'll reserve.

[00:13:25] Speaker 03:
Oh.

[00:13:25] Speaker 03:
And just quickly, if you could refresh my memory, there was a defense and limiting motion to exclude all evidence of the investigation.

[00:13:35] Speaker 01:
Not of the, there was a defense motion in Lemony to exclude the expert testimony as presented in her expert report.

[00:13:44] Speaker 01:
I'm sorry if I misunderstood the question.

[00:13:46] Speaker 03:
No, you didn't.

[00:13:48] Speaker 03:
So the in Lemony motion was simply focused on Ms.

[00:13:52] Speaker 03:
Duffy, but was there any effort by the defense to exclude any evidence of the investigation and the results of the investigation?

[00:14:01] Speaker 01:
There was litigation of a particular aspect of whether the statements from the investigation could be used.

[00:14:08] Speaker 01:
There was an argument under 47B, under the civil code 47B.

[00:14:12] Speaker 01:
And so that was the focus of that.

[00:14:14] Speaker 01:
But the defendants waived privilege with respect to the investigations.

[00:14:19] Speaker 01:
And they were part of the case.

[00:14:20] Speaker 01:
And they were admitted.

[00:14:21] Speaker 03:
And so to the extent that the defense is relying

[00:14:26] Speaker 03:
in part were not objecting to the inclusion of the results of the investigation, because it perhaps assists them.

[00:14:34] Speaker 03:
Why isn't it fair then, and why doesn't it open the door to the type of evidence that was presented by Ms.

[00:14:41] Speaker 03:
Duffy?

[00:14:42] Speaker 01:
So I think my response on that is sort of twofold, Your Honor.

[00:14:45] Speaker 01:
Number one, even if there could be a door opening argument with respect to an expert, the district court, as you well know, still needs to perform its analysis of the gatekeeping step.

[00:14:57] Speaker 01:
And so the central part, I think, of our initial contention is that the sort of

[00:15:03] Speaker 01:
very abbreviated analysis is much closer to the Barabin circumstance where the court didn't undertake a gatekeeping analysis.

[00:15:10] Speaker 01:
And I think this court's recent decision in Angolis indicates that the court really needs to scrutinize the factual basis for those excerpt opinions that are offered and are they being reliably applied to the facts in this case.

[00:15:22] Speaker 01:
And it's our contention that at that gatekeeping step that simply that analysis wasn't done.

[00:15:27] Speaker 03:
You may be right with respect to the gatekeeping portion, but what about the prejudice portion?

[00:15:33] Speaker 03:
So the courts, or my question, really focuses primarily on prejudice, once that door is opened and you're attempting to rely upon that evidence.

[00:15:45] Speaker 01:
But even if there is, and the investigators did come as percipient witnesses,

[00:15:52] Speaker 01:
But even under this court's case law, so for example, in stop staring, the court granted a new trial where there was improper expert testimony, where witness credibility was a central issue.

[00:16:04] Speaker 01:
And that's really our contention here, is that if we are successful in persuading the court that there was a failure at the gatekeeping step,

[00:16:15] Speaker 01:
then there really was prejudice here because of each element that Ms.

[00:16:19] Speaker 01:
Duffy commented on.

[00:16:21] Speaker 01:
And I think I would also go back to our arguments that she also invaded the province of the jury and offered legal conclusions improperly.

[00:16:27] Speaker 01:
So that's another.

[00:16:28] Speaker 01:
I think it folds in to the prejudice.

[00:16:30] Speaker 01:
I think it's undisputable with respect to the failure to prevent claim.

[00:16:33] Speaker 01:
She told the jury exactly what conclusion to reach.

[00:16:36] Speaker 01:
That's improper.

[00:16:37] Speaker 01:
And then we've made our arguments that she weighed in on improper issues.

[00:16:42] Speaker 01:
That all rolls up into prejudice.

[00:16:45] Speaker 04:
Thank you.

[00:16:45] Speaker 01:
Thank you.

[00:16:56] Speaker 04:
Ms.

[00:16:56] Speaker 04:
Albers.

[00:16:57] Speaker 00:
Good morning, Your Honors.

[00:16:57] Speaker 00:
May it please the court?

[00:16:58] Speaker 00:
Wendy Albers for plaintiff and appellee Arielle Bland.

[00:17:03] Speaker 00:
I'd like to address the district's argument on how do you view the evidence in this case.

[00:17:08] Speaker 00:
The district wants this court to ignore evidence that supports the jury's verdict to sweep it under the rug under the guise it is not relevant

[00:17:15] Speaker 00:
because Ms.

[00:17:16] Speaker 00:
Bland did not prevail on all of her employment claims.

[00:17:20] Speaker 00:
But that is not how the substantial evidence standard works when you have related causes of action.

[00:17:26] Speaker 00:
Just as the jury was instructed to consider the claim separately, the evidence has to be viewed separately and the jury's verdict reviewed based on all of the evidence that supports the claims on which Ms.

[00:17:38] Speaker 00:
Bland prevailed in the light most favorable to her.

[00:17:43] Speaker 00:
The Schaeffer case cited by the district, in that case, there were distinct claims with no overlapping facts.

[00:17:52] Speaker 00:
The jury's finding that the deputy used excessive force was not based on the same facts that supported the jury's finding that the deputy had probable cause for the arrest.

[00:18:03] Speaker 00:
Here, the facts are not necessarily tied to just one cause of action alone.

[00:18:07] Speaker 00:
They can support multiple related claims.

[00:18:11] Speaker 00:
Additionally, the district's argument that any evidence that predated the protected activity cannot support a continuous pattern of conduct for constructive discharge is contrary to California law.

[00:18:24] Speaker 00:
Evidence of discriminatory treatment, though it did not win the day with the jury on her discrimination claims, can be considered in reviewing the jury's finding of constructive discharge.

[00:18:35] Speaker 00:
Thompson versus tractor flight systems addresses this issue head-on It holds that the accumulation of discriminatory treatment over time can amount to intolerable working conditions Even if some of that evidence occurred prior to the protected activity so how can I mean it but if if the theory is that the constructive discharge is the adverse action and the adverse action has to be caused by or have some causal relationship to retaliation and

[00:19:05] Speaker 04:
How can you have that causal relationship if some substantial part of the things that constituted the constructive discharge happened before the complaint that prompted the retaliation?

[00:19:22] Speaker 00:
Well, the constructive discharge happened after the protected activity.

[00:19:27] Speaker 00:
And so that is the adverse employment action that happened after.

[00:19:32] Speaker 00:
While there may have been some

[00:19:33] Speaker 00:
evidence before the protected activity that led to the decision or a reasonable person's decision to resign, that is part of the consideration of constructive discharge.

[00:19:48] Speaker 04:
But I mean, suppose you have a case where the employer does all kinds of horrible things to the employee leading up to February 10th.

[00:20:01] Speaker 04:
On February 11th, the employee files a complaint of something.

[00:20:05] Speaker 04:
On February 12th, the employee says, all this stuff happened to me over the past year, and it was terrible, and I'm now quitting.

[00:20:12] Speaker 04:
I've been constructively discharged.

[00:20:15] Speaker 04:
It seems very strange to say that that constructive discharge was caused by retaliation for the complaint that happened the day before.

[00:20:24] Speaker 00:
I mean I think under your scenario yes, because it's so close in time, but here you don't have that you have our complaint in April and then What was a bad situation?

[00:20:35] Speaker 00:
After the complaint and the retaliation it turned it into an intolerable one that you have to look at the entire employment Context you can't just look at what happened after she complained because

[00:20:53] Speaker 00:
You want to see where it was at the time she complained and did that complaint make it worse?

[00:20:59] Speaker 04:
But I guess so you're agreeing that at least something has to happen after the complaint, right?

[00:21:05] Speaker 00:
Something has to happen to show the conditions, you know, you had a bad situation and now all of a sudden you had a situation that became worse because of the complaint.

[00:21:14] Speaker 04:
And in your view, does the, I mean, Judge Blumenfeld mentioned the sort of the general instruction given to the jury that they had to find causation.

[00:21:24] Speaker 04:
Do you think that's adequate to allow us to infer that they must have found that something relevant happened after the complaint took place?

[00:21:35] Speaker 00:
Yes, I do.

[00:21:36] Speaker 00:
And there were additional adverse actions besides the constructive discharge as well, such as downgrading the responsibilities that she had performed her first year and her performance evaluation, telling her that she didn't have the skill set to be promoted to the next level of an attorney.

[00:21:59] Speaker 00:
And a burdensome workload was imposed when she was returning from medical leave.

[00:22:05] Speaker 00:
And again, the district cannot exclude that evidence simply because she did not prevail on her claim for violation of the California Family Rights Act.

[00:22:15] Speaker 00:
The fact she didn't prevail on that claim does not mean the jury found that she was not subjected to a retaliatory workload because that claim had different elements that we don't know what the jury, why it,

[00:22:29] Speaker 00:
did not find in her favor on that claim.

[00:22:32] Speaker 03:
Ms.

[00:22:32] Speaker 03:
Albers, let me just make sure that I understand your position in light of your response to Judge Miller.

[00:22:39] Speaker 03:
Let's assume that the jury did in fact rely upon pre-April 2020 evidence in concluding that there was retaliation related to the April 2020 complaint.

[00:22:54] Speaker 03:
Does the retaliation verdict still stand?

[00:22:57] Speaker 00:
Yes.

[00:23:00] Speaker 00:
Because it's clear, and again, I would point the court to the Thompson case, because that case, the jury was entitled to consider evidence of mistreatment in the workplace that predated the protected activity to find a continuous pattern of conduct, which ultimately led to constructive discharge.

[00:23:21] Speaker 00:
And that case was similar to this case in that the employee in Thompson alleged constructive discharge based on discrimination and retaliation.

[00:23:30] Speaker 00:
And the jury returned to special verdict finding no discrimination, but found constructive discharge and retaliation.

[00:23:36] Speaker 00:
But Ms.

[00:23:37] Speaker 03:
Albers, doesn't that position require us essentially to reshape the basic concept of causation?

[00:23:47] Speaker 03:
Causation is a relationship.

[00:23:49] Speaker 03:
between one act and another.

[00:23:52] Speaker 00:
It is, Your Honor, but I think what California law is on this issue is that you have a bad employment relationship.

[00:24:01] Speaker 00:
You have a bad situation where you've been subjected to some discriminatory treatment, and then you complain about that treatment.

[00:24:07] Speaker 00:
And then it gets worse.

[00:24:10] Speaker 00:
So that's your causation.

[00:24:12] Speaker 00:
And then it gets worse to the point that it's so intolerable that the

[00:24:17] Speaker 00:
employee feels that there's no other choice but to resign.

[00:24:21] Speaker 00:
So there is a causal link there, but you don't take the employment situation as it existed at the time you filed the protective complaint.

[00:24:30] Speaker 00:
You can consider what happened before, and that is the holding in the Thompson case.

[00:24:40] Speaker 00:
And then I want to briefly discuss the issue of

[00:24:45] Speaker 00:
the missibility of Duffy's testimony in this case.

[00:24:51] Speaker 00:
The district court has considerable discretion in admitting expert testimony, and Duffy's testimony in this case was proper.

[00:25:00] Speaker 00:
However, any purported error there may have been was harmless here, because you have other witnesses who testified to the perceived deficiencies with the investigations, including reimbursement

[00:25:15] Speaker 00:
of Mr. Spencer's legal fees that gave the perception of bias.

[00:25:20] Speaker 00:
For example, you had Dorian West Valer, who was the diversity and inclusion officer at the district and oversaw discrimination complaints at the district, and she was an experienced workplace investigator.

[00:25:32] Speaker 00:
She testified that she did not find the investigations fair and impartial.

[00:25:36] Speaker 00:
and believed rank-and-file employees were at a disadvantage in addressing discrimination and retaliation issues with upper management.

[00:25:47] Speaker 04:
One of the things that I think is particularly questionable about Ms.

[00:25:52] Speaker 04:
Duffy is when she was asked the question, can you provide examples of what, in your opinion, reflects bias?

[00:25:58] Speaker 04:
And she stated the conclusion that the investigation was biased.

[00:26:03] Speaker 04:
Did Ms.

[00:26:03] Speaker 04:
Blair state that conclusion as well?

[00:26:06] Speaker 00:
She stated that paying for the attorney's fees for Mr. Spencer gave the perception of bias and that there was, her quote, that there was a side being chosen.

[00:26:19] Speaker 00:
Other employees also testified that the district did not handle complaints of disparate treatment fairly based on their observations.

[00:26:28] Speaker 00:
And finally, even if you find Duffy provided any improper legal opinion, she admonished the jury not to defer to her expert opinion, but to rely on their own assessment of credibility and that their decision could contradict what she has told them.

[00:26:50] Speaker 00:
So she didn't tell the jury how to

[00:26:53] Speaker 00:
Ruled she told the jury based on her opinions and her assessment and federal and state guidelines What then what was wrong with the investigation?

[00:27:06] Speaker 02:
Thank you Thank you Mr.. Rubin, thank you may have pleased the court Michael Rubin on behalf of Saji Pierce For Ms.. Pierce

[00:27:23] Speaker 02:
who was an 18-year veteran of the district's general counsel office, who had received consistently superlative performance evaluations through the tenure of three general counsels, including since 2015, Craig Spencer.

[00:27:44] Speaker 02:
Everything changed in March 2019.

[00:27:48] Speaker 02:
when she engaged in protected conduct, submitting a complaint as she was obligated to do under East Bay MUD's policies and under FEHA because she reasonably believed that there was race discrimination that permeated the general counsel's hiring decisions.

[00:28:10] Speaker 02:
As of March 2019,

[00:28:15] Speaker 02:
what had been an enormously successful career with an extremely bright future, all of a sudden turned, because Craig Spencer and East Bay Mudd, the employer, turned against her and made it difficult, if not impossible, for her to perform her job effectively, and on several occasions denied her advancement

[00:28:40] Speaker 02:
which is the essence of an adverse employment action.

[00:28:45] Speaker 02:
The legal standards aren't in dispute with respect to Ms.

[00:28:50] Speaker 02:
Pierce.

[00:28:51] Speaker 02:
The jury unanimously found prescribed retaliation against both Mr. Spencer under Section 1983 and the district under FIHA and awarded her

[00:29:06] Speaker 02:
emotional distress damages, as well as economic damages based upon the interference with her promotional opportunities.

[00:29:18] Speaker 02:
What the record shows is an escalating series of adverse actions, none of which proceeded March 2019, all of which intensified after March 2019, and then again,

[00:29:35] Speaker 02:
when she filed the second complaint in April 2020 after April 2020.

[00:29:40] Speaker 02:
Now, the first of the more extreme retaliatory acts had to do with the denial of the opportunity to be promoted to Assistant General Counsel, a position for which she was eminently well-qualified, the most experienced in the past, according to the evidence.

[00:30:02] Speaker 02:
Promotions had been based exclusively

[00:30:05] Speaker 02:
seniority.

[00:30:06] Speaker 02:
There's a dispute about that but the jury is entitled to resolve that dispute in favor of Ms.

[00:30:12] Speaker 02:
Pierce.

[00:30:13] Speaker 02:
Instead of opening up the position once the prior assistant general counsel resigned, Mr. Spencer decided to hold the position open for 13 months and he expressly said that the reason was he wanted to give other potential candidates

[00:30:33] Speaker 02:
the opportunity to meet the basic minimum qualifications that Ms.

[00:30:37] Speaker 02:
Pierce had already satisfied.

[00:30:40] Speaker 02:
That's unlawful retaliation.

[00:30:42] Speaker 02:
In addition, he put his thumb on the scale.

[00:30:44] Speaker 02:
He drafted the job qualifications.

[00:30:47] Speaker 02:
He drafted the questions for the persons being interviewed for that position.

[00:30:52] Speaker 02:
So he made it impossible for her to get that position.

[00:30:57] Speaker 02:
At the same time, Ms.

[00:30:59] Speaker 02:
Pierce found, and this goes to the cat's paw,

[00:31:02] Speaker 02:
evidence, the underlying evidence, that when the investigation into the first and then again the second complaint that Ms.

[00:31:12] Speaker 02:
Pierce filed was being conducted, even though he had given consistently superlative performance evaluations of Ms.

[00:31:19] Speaker 02:
Pierce, he accused her of all sorts of wrongdoing, of blackmail, of plagiarism, of being a poor communicator,

[00:31:27] Speaker 02:
of having no communication skills, all inconsistent with what had been in the record torpedoing her opportunity both to become assistant general counsel and then later when Mr. Spencer himself retired in January 2021, further advancement to the general counsel position.

[00:31:47] Speaker 02:
All of these acts of retaliation, all dating from March 2019, are the responsibility, as the jury found,

[00:31:56] Speaker 02:
of both Mr. Spencer and East Bay Mutt.

[00:32:00] Speaker 02:
They are both liable.

[00:32:02] Speaker 02:
There was one jury verdict form.

[00:32:04] Speaker 02:
The determination of damages was as to both of them for the 1983 violation and the FIHA violation.

[00:32:12] Speaker 05:
So how do you deal with Brooks and Chen in the context of refusing or delaying the opening of the position?

[00:32:23] Speaker 05:
I mean, Brooks seems to say, well, I'll quote it.

[00:32:27] Speaker 05:
It says, we've held that declining to hold a job open for an employee and bad mouthing an employee outside the job reference context do not constitute adverse employment action.

[00:32:39] Speaker 02:
Right.

[00:32:40] Speaker 02:
We, as we pointed out in our briefs, in this peer situation, it's the exact opposite.

[00:32:45] Speaker 02:
She's not complaining that they didn't hold the job open for her until she could become qualified.

[00:32:52] Speaker 02:
She was complaining.

[00:32:53] Speaker 02:
that her complaint is, and the jury necessarily found, that she was qualified, she was senior, she was experienced, she would have been a shoo-in, but for the fact that he wouldn't open the job up for 13 months, in the meantime continued to retaliate, continued to badmouth, and rigged it so she wouldn't get the position.

[00:33:13] Speaker 02:
So Brooks is the exact opposite situation.

[00:33:17] Speaker 02:
The question, and it can be a factual dispute, why did he do it?

[00:33:21] Speaker 02:
And that's up to the jury to decide, as most all of the issues that arise in this case.

[00:33:26] Speaker 02:
The jury determined necessarily that the reason he did it

[00:33:31] Speaker 02:
was because she had complained about him, because she had complained about racial discrimination in the general counsel's office.

[00:33:41] Speaker 02:
And that's why he held the job open and didn't promote her.

[00:33:45] Speaker 02:
Now turning to the cat's paw.

[00:33:47] Speaker 05:
So what I gather your general theory is a denial of promotional opportunities, not necessarily the specific holding that declining to open up the job, right?

[00:34:00] Speaker 02:
Right, right.

[00:34:03] Speaker 02:
But for the retaliatory conduct, it's a substantial motivating factor, she would have been the assistant general counsel.

[00:34:11] Speaker 02:
And likewise, after Spencer retired, she would have been the general counsel the jury found.

[00:34:18] Speaker 02:
Now, Catspaw.

[00:34:21] Speaker 02:
First, I want to emphasize that Catspaw is only one of the theories

[00:34:27] Speaker 02:
that supports our position that there was unlawful retaliation by not promoting her to general counsel.

[00:34:35] Speaker 02:
Recall that there were three board members that made the decision not to advance her to the second round of interviews for the general counsel position.

[00:34:46] Speaker 02:
The president of the board at the time, Marguerite Young, testified, and this is 9ER, page 1805 and 1822,

[00:34:56] Speaker 02:
She believed that Saji Pierce should not be promoted to general counsel because Pierce, by filing the two complaints, the two legally protected complaints of race discrimination and retaliation, was hurting morale, was showing poor leadership, had caused a large amount of discomfort within the general counsel's office,

[00:35:26] Speaker 02:
even though the East Bay MUD's policy required her to file those complaints if she had a reasonable belief that there was race discrimination.

[00:35:34] Speaker 02:
Similarly, Derek McDonald, who was the one who was ultimately appointed as the general counsel, said when he was before the committee that made the decision that he should be appointed rather than Ms.

[00:35:52] Speaker 02:
Pierce, and this is in 10 ER 201 36 to 37,

[00:35:56] Speaker 02:
because he would be able to restore trust and rebuild morale that had been lost due to Ms.

[00:36:02] Speaker 02:
Pierce's complaints, her legally protected complaints.

[00:36:06] Speaker 02:
So even without Cat's Paw, there is sufficient evidence to support the jury's verdict under the highly deferential standard that applies.

[00:36:14] Speaker 02:
But the Cat's Paw

[00:36:16] Speaker 02:
is admissible evidence.

[00:36:20] Speaker 02:
We explained in the brief five different reasons why the litigation privilege would not preclude that evidence from being presented to the jury.

[00:36:31] Speaker 02:
I can go through those five reasons if you like, but there's no question that Ms.

[00:36:38] Speaker 02:
Young testified that the reports, in particular the second investigation report

[00:36:45] Speaker 02:
was in the one drive of the materials presented to those three board members who made the decision whether to advance Ms.

[00:36:54] Speaker 02:
Pierce to the second round of interviews and those are the interview notes and she said that every member of the board had them available and she assumed that everyone reviewed them which the jury was entitled to draw the reasonable inference

[00:37:13] Speaker 02:
that the board members did their job and in fact reviewed the evidence that was presented to them that accused her of blackmail, that accused her of plagiarism, and all these other factors.

[00:37:22] Speaker 02:
So given the highly deferential standard of view that applies to a jury decision, the emotional distress damages, the punitive damages, the economic damages, all of which flowed from a course of conduct, not communications,

[00:37:40] Speaker 02:
And the Westlake case, Justice DeBriener's opinion in the California Supreme Court, clearly draws that distinction for purposes of litigation and privilege.

[00:37:49] Speaker 02:
But the entire course of conduct for which both defendants are responsible sufficiently supports the jury's verdict, the verdict as to Ms.

[00:37:59] Speaker 02:
Pierce should be affirmed in its entirety.

[00:38:01] Speaker 02:
Thank you, counsel.

[00:38:01] Speaker 02:
Thank you.

[00:38:04] Speaker 04:
Rebuttal?

[00:38:07] Speaker 01:
Thank you your honor I'll just make 3 quick points on some of the issues that came up first to return to the to the harmless air question in this court's decision in ring con the court recognized how that the powerful nature of expert testimony coupled with its potential to mislead the jury and I would draw the court's attention to the closing argument at 17 ER 3.

[00:38:28] Speaker 01:
36 70 to 81 where?

[00:38:32] Speaker 01:
Council argued that Duffy's testimony showed bias as Judge Miller pointed out biased workplace investigations EB muds tolerance of discrimination and retaliation by Spencer quote with impunity they argued that all of the investigations every one of them was poisoned and

[00:38:48] Speaker 01:
None of them is worth the paper they're written on, argued that the jury should disregard the findings in all three investigations, and then hammered and drew the jury's attention to Duffy on each of the claims.

[00:39:00] Speaker 01:
And you'll see that throughout the closing.

[00:39:03] Speaker 01:
With respect to Ms.

[00:39:04] Speaker 01:
Peer, since we didn't discuss that much in opening, I'd just like to quickly respond to counsel's points.

[00:39:10] Speaker 01:
That on the non cats paw theory judge Thomas as you indicated under this court's decision in Brooks a delay cannot be deemed retaliatory where it affected everyone equally and here the job was to be an open recruitment recruitments for assistant general counsel positions were always open recruitments.

[00:39:29] Speaker 01:
The claim that it was merely a promotion, that she was merely entitled to the job, simply isn't accurate.

[00:39:37] Speaker 01:
Positions were posted internally and externally.

[00:39:40] Speaker 01:
A variety of candidates would be invited to apply.

[00:39:43] Speaker 01:
And in fact, Ms.

[00:39:43] Speaker 01:
Pierce did apply.

[00:39:44] Speaker 01:
And then we threw her application in the fall at the time that she resigned.

[00:39:50] Speaker 01:
And the jury, as you know, rejected her constructive discharge claim.

[00:39:54] Speaker 01:
So it's our position.

[00:39:55] Speaker 01:
that you've drawn the right analogy to Brooks and also to the Chen case involving an attorney, and that that was not an adverse employment action.

[00:40:04] Speaker 01:
Mr. Spencer's decision merely to wait and see the timing of how the department was going to shake out in the wake of Ms.

[00:40:13] Speaker 01:
Berry's retirement.

[00:40:16] Speaker 01:
She had been a longtime attorney.

[00:40:17] Speaker 01:
There already was a second assistant general counsel, and so that delay

[00:40:21] Speaker 01:
It applied to everyone equally.

[00:40:23] Speaker 01:
It wasn't targeted at Ms.

[00:40:25] Speaker 01:
Pierce.

[00:40:26] Speaker 01:
And finally, on the catspoth theory, just a couple of quick points.

[00:40:31] Speaker 01:
The California law requires that a person with retaliatory animus be a significant participant in that decision, or that the board members

[00:40:40] Speaker 01:
were mere instrumentalities.

[00:40:42] Speaker 01:
And that is the evidentiary defect that we believe exists in this case.

[00:40:48] Speaker 01:
I believe it's an overreading of the record to say that President Young, that there's a fair inference that President Young said other board members had access to the document and reviewed it.

[00:40:58] Speaker 01:
What she testified to was that she had access to it.

[00:41:01] Speaker 01:
She reviewed it.

[00:41:02] Speaker 01:
And she actually said she didn't know about the other board members, though she did assume board members came to meetings prepared.

[00:41:08] Speaker 01:
It wasn't an email on which everyone was copied.

[00:41:11] Speaker 01:
She didn't testify with any certainty on that point.

[00:41:14] Speaker 03:
Ms.

[00:41:15] Speaker 03:
Schiavone, Mr. Rubin also said that Ms.

[00:41:18] Speaker 03:
Young made some disparaging comments about Ms.

[00:41:23] Speaker 03:
Pierce and her filing of these complaints.

[00:41:25] Speaker 03:
So first of all, please respond as to whether Mr. Rubin's description of the record is accurate.

[00:41:32] Speaker 03:
And if it is substantially accurate, it's legal implication.

[00:41:35] Speaker 01:
It's our contention, Your Honor, that that is also an over reading of the record.

[00:41:40] Speaker 01:
What Board Member Young testified to was that she had wanted Ms.

[00:41:44] Speaker 01:
Pierce to perform well coming into the interview.

[00:41:47] Speaker 01:
She had always thought she was a competent and capable employee.

[00:41:50] Speaker 01:
And in the interview, she used a lot of I statements.

[00:41:55] Speaker 01:
She talked about I did this, I did that, and that she didn't view that as being a team player.

[00:42:00] Speaker 01:
And what they needed was someone who could lead the office

[00:42:05] Speaker 01:
in a fashion to work with everyone.

[00:42:08] Speaker 01:
And so it came up in the context of her responses in the interview, not directly tying it to, Mr. Rubin's articulation made it seem as though she tied it directly to the filing of prior complaints.

[00:42:23] Speaker 01:
I don't think that that's a fair reading of the record or an inference that the jury would be entitled to draw from that testimony from Director Young.

[00:42:32] Speaker 04:
Thank you.

[00:42:32] Speaker 01:
Thank you.

[00:42:33] Speaker 04:
We thank all counsel for their helpful arguments and the case is submitted.