California Court of Appeal Provides Guidance on the Use of
Human Resource Experts in Employment Litigation
Recently,
a state appellate court provided guidance as to when human resource expert opinion
evidence is admissible in employment litigation. Kotla
v. Regents of the University
of California,
2004 DJDAR 917 (January 28, 2004). The First District Court of Appeal held
that testimony by the human resources expert as to whether certain actions
by the employer indicated retaliatory intent was improperly
admitted. In reaching this decision, the court did not preclude the
use of human resources experts in all situations. Instead, the court
provided guidance as to when the use of human resources experts in
employment litigation can be a valuable tool for the employer.
Employee Claimed Retaliation for Testimony In
Sexual Harassment Suit
The
case involved Dee Kotla, a computer services
technician for Lawrence Livermore Laboratory. Kotla
claimed she was subject to retaliation for testimony she provided for
another lab employee, Kim Norman, in a sexual harassment suit Norman brought
against the lab.
After
Kotla's testimony bolstering Norman's sexual harassment claim, the lab
initiated an investigation into Kotla's phone and
computer use. Kotla testified during her
deposition that she stored notes on her computer regarding her
conversations with Norman
about her harassment claims. She provided the defense attorneys her
computer password. The lab's in-house counsel reviewed the files on Kotla's computer and was suspicious that Kotla was using the computer for personal use and
outside work. An investigation ensued, and Kotla
admitted using the computer on three occasions to assist a friend with
outside work. Kotla also attempted to erase
evidence of her misuse. The lab ultimately fired Kotla.
The lab claimed she was fired for using her computer and telephone for
unauthorized purposes; Kotla's attorney's argued
that the termination was an act of retaliation.
Human Resources Expert Testified As to Motive During
Trial
During
the trial, Kotla introduced evidence from her
expert witness, Dr. Jay Finkelman. Dr. Finkelman holds a Ph.D. in industrial psychology. His
professional background included service as an in-house supervisor and
outside consultant to corporate human resources departments. He had
experience overseeing and conducting investigations of retaliation. Dr. Finkelman also taught industrial psychology and human
resources courses.
Kotla sought to introduce Dr. Finkelman's
opinion that Kotla's termination was retaliatory.
The trial court ruled that Finkelman could not
testify about the "ultimate issue" of whether the lab retaliated
against Kotla.
However,
the trial court allowed Dr. Finkelman to testify
that certain facts were "indications" or "evidence" of
a retaliatory motive. For instance, Dr. Finkelman
was allowed to testify that: (1) statements made by in-house counsel were
"critically important" in indicating retaliatory intent; (2)
evidence of excessive discipline demonstrated that retaliation was "an
obvious motive;" and (3) evidence that Kotla
was an instigator in Norman's sexual harassment case would be a "main
reason" indicative of retaliation and motive to retaliate.
The
jurors ultimately found that Kotla's termination
was an act of retaliation and awarded her $1 million in damages. The trial
court later reduced the damages to $745,000.
Expert's Testimony Was Unhelpful and Invaded Province of Jury
The
appellate court ruled that the testimony of the human resources expert was
inadmissible under the evidentiary code because he provided information
that did not require an expert opinion: "It improperly invaded the
province of the jury to draw conclusions from the evidence and it lacked
any reliable foundation in Dr. Finkelman's
professional experience and expertise."
Under
Evidence Code section 801, expert opinion evidence is admissible only if it
is (1) related to a subject that is sufficiently beyond common experience
and the opinion of the expert would assist the trier
of fact, and (2) based on matter that may be reasonably relied upon by an
expert in forming an opinion on the subject matter to which his testimony
relates. The court held that Dr. Finkelman's
testimony did not meet either of these requirements.
The
evidence was held not to assist the jury. Instead, it held, that
"testimony created an unacceptable risk that the jury paid unwarranted
deference to Dr. Finkelman's purported expertise
when in reality he was in no better position than they were to evaluate the
evidence concerning retaliation." The court noted that absent unusual
circumstances, the jury must be presumed capable of deciding a party's
motive without being told by an expert what the evidence supports.
In
addition, the court noted the lack of foundation of the testimony. Even
though Finkleman was experienced, the court noted
that employment cases require the jury to decide motive based on a
"unique constellation of facts." The court held that it is the
jury's function to weigh the evidence of motive and that there was "no
basis in the record for believing that Dr. Finkelman
possessed any special expertise for weighing the evidence of motive in a
wrongful termination case."
The
court found that the admission of the evidence was prejudicial and that it
was likely that a result more favorable to the lab would have been reached
in the absence of Dr. Finkelman's testimony. The
case was remanded for a new trial.
Court Provides Guidance on the Use of Human Resources Experts
It
is important to emphasize that the decision in Kotla
is a narrow one and in no way precludes the use of human resources experts
at trial. "We fashion no general rule here precluding the use of human
resources experts in employment cases," the court stated. Instead, Kotla merely instructs that such expert opinion
should not be allowed to usurp the jury's role in weighing evidence of
motive and should not be used to show that facts in evidence indicate
retaliatory motive.
Human
resources professionals and experienced employment law attorneys can
provide valuable expertise in employment litigation. They can be used to
provide the jury with insight into the customary, relevant, and appropriate
practices of employers.
The
Kotla court held that expert testimony of human
resources professionals on "predicate issues" is clearly
permissible. The court specifically listed the following examples of when
such expert testimony should be allowed:
- Evidence showing
(or negating) that an employee's discharge was grossly
disproportionate to punishments given to similarly situated employees;
- Evidence that the
employer significantly deviated from its standard personnel procedures
in the employee's case.
For
instance, in Title VII case arising out of the Ninth Circuit, the court
allowed experts in the areas of organizational diversity programs,
organizational behavior, statistics, and social psychology to testify as
to: (1) whether the employer's diversity program lacked essential features
to meet its goals; (2) whether the employer failed to accomplish its
diversity goals; (3) the appropriateness of the diversity program; (4) the
causes, manifestations and consequences of gender stereotyping; and (5)
organizational circumstances that would allow gender stereotyping to exist.
Butler
v. Home Depot, Inc., 984 F.Supp. 1257 (9th Cir. 1997).
Human
resource experts can provide a knowledgeable resource in employment
litigation when used for appropriate purposes. Experts that are experienced
employment law attorneys can provide the added benefit of understanding the
legal and evidentiary issues surrounding their testimony, as well as the
experience of advising and counseling employers on their employment related
concerns. Plaintiffs and defense counsel should assess the benefits of
using human resource experts.
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