Wednesday, June 26, 2013

Granados v. Dona Ana County -- Day 3

[Again, PLEASE DO NOT READ THIS if you are a juror in the case.  It's one observer's view of the day, and you absolutely should not look at it -- particularly since it might include extraneous information that's not part of the case as tried.  If you are a friend, relative, or spouse of a juror and happen to see this, please do not even mention this to him or her until after the trial is over.  The fact that there are now no alternate jurors makes this even more important!  It would waste a bunch of public funds if this case had to be retried months from now. 
So please do not read this or any other accounts of the trial.
If you're not a juror, I hope this rushed account of a very full day interests you. (For background: Yesterday's post  Yesterday's post covered Day 2, and provides basic information on the case, as does Diana Alba Soular's good article on the opening of the trial.)]

      Today was a much more mixed trial day, with plenty of ups and downs for each side.
      Picture an NBA game with one-sided runs by each team.  Or think back to watching Austin Trout's most recent fight.  As with the boxers, the lawyers mixed it up today, with flurries of punches and counterpunches, some wildly off target but some hitting home, though nobody scored a knockout."   The twelve referees who count, the ones sitting in the jury box, took it all in with poker faces.

      In summary:
      Before the jurors came in, Defendant pursued the argument that the Court has no jurisdiction because the  lawsuit Complaint doesn't match up adequately with the EEOC Complaint.  The judge disagreed again, and appeared a little tired of hearing the argument.
      Defendant (the County) scored some points during hours of cross-examination of Plaintiff Jorge Granados.
      Plaintiff neutralized quite a few of those points during redirect examination.
      Defendant again moved for a mistrial, this time based on Defendant's interpretation of a ruling by Judge Arrieta against testimony describing what the testimony would be of individuals who weren't available.  The County argued that this meant that since Mr. Granados had testified regarding things various commissioners and others had said to him, there should be a mistrial for violation of that order.  It sounded like a stretch, and Judge Manuel Arrieta clearly thought so too.  Again he denied the mistrial motion.
      Two county employees testified.   One seemed a modest help to Plaintiff during direct, but got neutralized on cross; and with the other Plaintiff seemed to land a series of strong blows.  Cross-examination will start tomorrow morning.
      Both county witnesses, one more strongly than the other, spoke of fears of possible retaliation by their employers (based on part observations or "gut feelings" rather than any explicit threats), and Judge Arrieta afterward cautioned both counsel to remind their respective clients "that we're all professionals here, and we all know the laws" and that "there should not be any repercussions for testimony."  Meanwhile, the "nervousness" of the witnesses may or may not have led jurors to give a little extra weight to those witnesses' testimony against the County.
      Watching reminds me what fun it would be to be lawyer for one side or the other.
      But I wouldn't want to be a juror.  As the wind way or the other, and the same witness says something (sounding sincere) under direct then says somewhat the opposite (sounding equally sincere) under cross, how do you score that?
      And I wouldn't want to be a witness.   It's pretty obvious that today's two witnesses sympathized largely or wholly with Plaintiff's view of events in 2009 and 2010.  It's equally obvious that they're still employed by Defendant and report ultimately to Sue Padilla, the person against whom discrimination and retaliation are repeatedly alleged.  I mean to imply no misconduct on anyone's part when I say that few of us would want to be in that position.   It was pretty clear on Armando Cordero's face that he would have liked to be pretty much anywhere else than that witness chair.
      Defendant's counsel may feel the same way.  Defendants often move for mistrials; but two in a row, on somewhat weak grounds?  Gotta wonder if Defendant's lawyers have doubts about how the trial is going.  If they felt they were winning big, they'd hardly want to give the other side a mulligan for the other side.  (On the other hand, lawyers make a lot of questionable arguments, sometimes to protect the record for possible appeal.)
       But, again, it's early.  It's still Plaintiff's innings.  We're hearing the witnesses Plaintiff has chosen to call first.

       In more detail:
       Mr. Carrillo landed some significant blows in his cross-examination of Plaintiff.
       It looked as if the Judge thought some of the early ones might be low blows.    Several times he interrupted to initiate a sidebar.  Sidebars (where judge and both sides' lawyers confer in whispers, with jurors still in the room) are usually requested by one side or the other.  Judge Arrieta initiated several within a short span of time.  His face and tone betrayed nothing to the jurors, but unless he was emailing his bookie and wanted both counsel's advice on horses to pick in the next race, why would he call repeated sidebars except to raise a question about the cross-examination?  (Some questions sounded unfair to me; but that's often a quite normal part of cross-examination.)
       Later in the morning he scored blows that probably counted.  They were fair and legitimate questions, and the answers weakened Plaintiff's case.
      A friend of mine (like Plaintiff a locally-raised Hispanic male who formerly worked for local government here!) watched an hour and remarked at lunch that "He [Carrillo] is really doing well!"  I agreed.
      Mr. Granados contends that Ms. Padilla began retaliating against him and his department after he passed up the line a discrimination / hostile work environment complaint against Ms. Padilla by Armando Cordero, who worked under his supervision.  
      Today, Mr. Carrillo sought to establish that the relationship between Granados and Padilla had soured earlier.  He questioned Mr. Granados about a 2007 email from Ms. Padilla about using a county car that had no county seal on it  However when he referred to it as a "reprimand" (although it did not appear to be a reprimand as that term is used in County manuals) Judge Arrieta stepped in to ask how he was "defining the word 'reprimand' here."
      He also questioned Mr. Granados as to whether the word "culture," which had been used by Ms. Padilla, necessarily meant "the Hispanic culture" as Mr. Granados claimed, or could have meant just the culture of the Road Department.
      Regarding testimony that Ms. Padilla had made a joke about Mexican people partying at funerals, he asked whether there were any other specific and direct remarks she'd made that Mr. Granados believed belittled Hispanics.  Then, when Mr. Granados couldn't recall any, he asked whether Irish and other cultures also partied at funerals.
       One issue has been the County's claim that rather than replacing Mr. Granados with an Anglo, it did away with his position, based on a consultant's objective recommendation,    Mr. Granados has testified to being shown or told about -- while on pre-termination suspension -- a draft in which his position was abolished.  Mr. Carrillo asked questions suggesting that suggested that the consultant had concluded, even in the draft report, that Mr. Granados's management style was a problem and that he was disorganized.  He also effectively left observers wondering whether in fact the draft report had still included the Director of Public Works position, as Mr. Granados claimed.
       But a few hours later Robert Armijo testified that the draft had indeed had retained the position, and that management had snatched up all copies of the draft immediately, just days before Mr. Granados's termination hearing.    The final report abolished the position.  No one has established that the "snatching-up" of reports was directly related to Mr. Granados.
       The same consultant, according to Mr. Granados, had said of a proposed move to honor Public Works employees that it would "ring hollow with them when they haven't gotten raises for years."  Mr. Granados had reported the conversation to management, and his alleged lack of "honesty and truthfulness" regarding it was one reason given for his termination.
       Mr. Carrillo stirred up significant doubt that this conversation ever occurred; but again, hours later, Mr. Armijo testified that he'd been present for that conversation, and that while he couldn't swear to precise words, "ring hollow" sounded right and the basic message was that . . .
       Mr. Granados had testified to County Commissioners, particularly Leticia Benavidez, being afraid to get involved because of an earlier which there was a move to censure Ms. Benavidez.for alleged involvement in a personnel matter.
       Mr. Carrillo asked skeptically -- and, I think, effectively for the jurors -- how Mr. Granados could be saying that County Commissioners, who hire and fire the city manager, could be so intimidated by management.
       Most tellingly, with regard to the accusation of discrimination by Ms. Padilla against Hispanic males, Mr. Carrillo elicited the admission by Mr. Granados that Ms. Padilla was married to one.
       With regard to evidence that Robert Armijo had been paid less than an Anglo who worked under him, Mr. Carrillo appeared to establish that Mr. Granados himself had set that up.

      Then after lunch Plaintiff's counsel, Ms. Labinoti, did a good job in redirect of neutralizing many of the points Mr. Carrillo had made.
       With regard to allegations that state officials said Mr. Granados was hard to work with, she established that Granados, from his experience in California, knew that the entity that receives a federal grant for infrastructure has to maintain that infrastructure.  The state was trying to shift that responsibility onto the Dona Ana County taxpayers.  Mr. Granados challenged that, and said the County Manager (Brian Haines) and County Commission.were "100% behind me."
        Concerning the basic issue of whether he was fired for performance or as retaliation, she reiterated effectively that he'd never received an evaluation until 2008 -- one day after he'd complained to Brian Haines about Sue Padilla and two days after he'd complained to an interim HR Director.
         At 2:30 p.m., Armando Cordero testified.  He admitted to nervousness that "if something goes wrong today I may get penalized."
          He confirmed making the "hostile work environment" claim against Ms. Padilla that Mr. Granados had passed up the chain; but he said or implied that maybe he didn't really mean discrimination.  Shown language he'd written saying Ms. Padilla created a hostile work environment for him and his staff because his staff were "mostly minorities and less educated," he acknowledged it but still said it might not be discrimination based on race.  He testified that he'd filed the complaint after a training session on racial discrimination, and had been inspired by that training session, but still hemmed and hawed about whether he really meant discrimination.
           He also testified that he'd met with Ms. Padilla and the Human Resources Director, that Ms. Padilla had "said she didn't realize she was being hostile,"  and that "things were 100% better after that meeting.
           He testified that Mr. Granados was a truthful man. He also testified that when Mr. Granados had filed suit, Mr. Cordero had declined to participate at least in part because he then planned to retire in 2014 and wanted to make sure he finished his career with the  county.
           On cross he was asked whether he believed his complaint against Ms. Padilla arose from discrimination based on race or national origin, and replied "No, sir."  He also said he didn't see Ms. Padilla discriminate against Hispanics, but that she was "super-picky about staff's work."
           On redirect by Plaintiff's counsel, Brett Duke, he conceded that the seminars on discrimination, and the county policy provisions he'd read on the subject, hadn't concerned "pickiness," but racial discrimination.
           On balance, if his testimony was the fourth round of a fight, you'd score it even -- although if the jurors take the pro-county portions of his testimony with more than a grain of salt because of his employment or the way his testimony tends to conflict in spirit with what they've heard and read of him, maybe he helps Plaintiff.
            The day's final witness, Mr. Armijo, clearly helps Plaintiff -- but hasn't yet undergone cross-examination.
            Mr. Armjio, who's worked at the county nearly 12 years, was more forthcoming about his fears of possible retaliation.  Unlike Cordero, who confessed only to "nervousness" but denied "fear," Armijo called it a fear based on "gut feeling.  No one says it but its there, in the back of my mind."  Asked if the fear was based on past experience and what he's seen, he replied "That would be fair, yes."
        Despite that acknowledged fear, he testified that there was a bias against Mr. Granados; that Ms. Padilla treated different groups of people differently, including Hispanics.   He necessarily acknowledged that he'd written "In later years that I have known Sue Padilla, I have noticed things that individually seem inconsequentail but when looked at as a hole may show a bias against me and my employees" and "her criticism . . . is focused on their personalities, such as [alleged] lack of people skills, rudeness, and lying."
He 'felt there was a bias" but "I don't know if I'd say discrimination."  He testified that she was biased against the Department of Public Works, which was predominantly Hispanic.  Asked whether she showed a general vindictiveness against Jorge Granados and the department, he replied "it appeared to be vindictive." Did she treat the people in the department with a lack of respect? "At times." Unprofessionally? "At times."
         He also testified, inconveniently for his employer, that he'd read the draft MAI report, that it had still showed Mr. Granados's position before being "recalled" by management -- and that the consultant, Cliff Richardson, had, as claimed by Mr. Granados, said something like that "presentations would ring hollow" with workers who hadn't received raises for years.
          Trial continues at 8:30 a.m. Thursday with cross-examination of Mr. Armijo.

          So what's it all mean?
          First of all, you never know until it's over.  You never know how a jury feels until they've discussed it and reported the result.
          As an outside observed, I can say this:
          It's at best odd that Mr. Granados, who supervised a vast number of employees for CalTrans before he came here, and did so (so far as we know) successfully, seemed perfectly successful here until immediately after he passed on Mr. Cordero's complaint regarding a hostile work environment.   He clearly made a nuisance of himself to his superiors thereafter -- fighting for his staff, as he put it yesterday.  However, Defendant may manage to show that it was primarily a personality conflict with Ms. Padilla, aggravated by jealousy that she was promoted to a position above him.
          The reasons given for his firing just don't stack up.   (However, I've got other county departments and situations to compare it with, as the jury may not.)
          He was accused of destroying documents concerning a "verbal reprimand" he gave two road foremen..  It now seems pretty obvious that he didn't.  Defendant has retreated to a claim that he didn't use the right forms or didn't fill them out right or something.  Not a firing offense in most sane environments.
           He was accused of "insubordination and dishonesty" regarding the training incident (aka "the Angie incident").  He may well have been insubordinate.  Cordero and Guerrero approached him the day before the training was due to start, and had to be in Albuquerque at 8 the following morning if they were going.  She volunteered to pay her own way.  He might well argue that he took Ms. Padilla's disapproval as covering only a paid trip to the training.  On the other hand, Defendant will argue that he knew full well that he was doing something his boss wouldn't like; and if he knew Ms. Guerrero would later put in for reimbursement or seek to be paid for the time, Defendant can argue he was dishonest -- in a matter far smaller than what the internal auditor found in another department, where the director remains in place.
            The allegation of untruthfulness or dishonesty regarding Cliff Richardson looks tough to substantiate.  Granados says the guy said it.  Armijo, despite concerns about his employment, says the guy said it.  Even if the guy comes in now and denies it, will he convince anyone?
             The fourth allegation is that he failed to file an EEOC report regarding an Anglo working under one of his supervisees.   Technically, it's a questionable basis for firing someone because he had a duty to file such a report only if he learned of possible discrimination directly from the complainant or by personal observation.  .There's serious question whether it was discrimination, or was presented to Granados as such.  He says it wasn't.  He says the subordinate who told him about it never mentioned discrimination.  He says he was told that the man was complaining he was overworked and complaining that his crew mostly spoke Spanish, which he didn't understand.  Mr. Granados says they solved the problem by putting the fellow in a crew where mostly English was spoken, and that he instructed the subordinate to follow up on things -- and that the subordinate reported everything was fine.  Further, he never met the supposed complainant.  Thus he didn't hear it directly from the complainant or personally observe it.  Even if one of these points isn't accurate, and even if the Anglo comes in and says he thought the problem was discrimination, so what?  It'd be a weak ground for firing someone after many years, even if Defendant's allegations are correct.  Unless the Anglo comes in and says he told Granados directly, making Granados look like a perjurer, it just doesn't seem weighty.
        Again, this is how it looks to me now.  Might look different tomorrow or Friday, depending on what the evidence the Defendant presents.  Might look different to the jurors right now.  (Besides, I've never had a chance to read the entire document stating the termnation grounds, but have taken notes when parts of it have been shown briefly on a screen in the courtroom.)
        Further, Plaintiff can't win merely by proving (if it does) that Ms. Padilla was a nasty and vindictive boss.  It won't suffice to prove (if Plaintiff does) that she trumped up grounds to fire him because she was tired of him.  She has to have discriminated based on race or national origin -- or retaliated against Mr. Granados for pursuing a complaint (or repeated complaints, orally) about discrimination and a hostile work environment.   Each side has made some good points on this issue.
        So I'm not predicting a winner.  Too early.

Anyway: not sure a sane person would have bothered writing this; so keep that in mind when you read it; and keep in mind that these are the spontaneous observations of one person watching the trial, which has several days to run.  Like a commentator during the first quarter of an NBA playoff game, I could look like a complete idiot when the final score goes up.
Oh, and the Judge definitely wasn't calling his bookie!  His exceptional attentiveness and his note-taking skills establish beyond peradventure that he's got his head in the game.]



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