[If you're a juror in this case PLEASE DON'T READ THIS -- and if you know a juror in this case, please don't send him or her a link to this. If you're not a juror, feel free. This post covers Monday, July 1st, the sixth day of trial. If you haven't been following the case, there's some background in Tuesday's post [Day 2], and in Diana Alba Soular's good article on the opening of the trial.) You can also just page down to Thursday's post covering Day 4, or further down to the posts for Days 2 and 3.]
Today Plaintiff rested, after calling Internal Affairs Investigator Guadalupe Quezada and Plaintiff's wife, Juanita Granados. Defendant, after an unsuccessful motion for a directed verdict, presented the bulk of its case, but did not finish. Human Rights Director Deborah Weir testified for much of the day, and there were also brief appearances by Donald Fenerty, Henry Cornelius, Paul Dugie, and Misty Dawn Benavidez. Testimony will continue tomorrow morning and probably end by mid-afternoon. The jury will likely get to go home early, while Judge Arrieta and the lawyers finish hashing out jury instructions, and then closing arguments will occur Wednesday morning -- starting at 10..
The single most striking aspect of the trial so far is the vast number of County employees who have admitted during their testimony that they feared retaliation by their employer if they testified truthfully.
It struck me at some point that in decades of doing trials (and, before that, covering them) I've never seen that. I've seen witnesses who seemed cowed by their employer and who tried to say the opposite of things they'd told me casually in private. But I've rarely seen so many witnesses whose testimony was largely favorable to the county concede in one way or another that they feared retaliation. Pretty much every Hispanic employee-witness has made such a statement. However, each testified that s/he was telling the truth from the witness stand and had not been influenced by retirement concerns or fears of retaliation.
When Ms. Quezada, a ten-year county employee, testified this morning, the following Q and A sequence occurred:
Q. Are you afraid of testifying today?
Q. Are you afraid of retaliation?
A. Yes, I am.
In fact, her substantive testimony was minimal. She testified to having located and attached to her report certain documents Plaintiff had been accused of destroying. This was approximately two months before Defendant was terminated. She testified she hadn't been aware he'd been accused of destroying them. Asked whether it was unfair to accuse him if the documents were in the possession of the Human Resources Department, she carefully replied, "If that is how it is, I would have to agree with you."
On cross by Defendant, she testified concerning the documents regarding discipline meted out to two Road Department supervisors. She also testified that she'd written a memo regarding the Jason Ireland incident, but that it contained solely information provided by Ms. Weir, and that she hadn't spoken with Mr. Granados.
Regarding her fear of retaliation, she testified that she'd testified in one other case, involving a friend, and had suffered a neither a pay decrease not a decrease in benefits or authority. Asked whether, then, "in any objective sense" she had not been retaliated against, she replied, "Not yet."
She was followed by Ms. Granados, who testified that she and Plaintiff had been married 21 years and had two daughters, and that they'd moved back to Las Cruces, despite a pay-cut for Mr. Granados, so as to raise their daughters around extended family.
Regarding her husband's reaction to his notice of termination, she said he was "in shock" but pointed out to her his right to a hearing, and expressed confidence that the hearing would turn things around. After the hearing, she testified, "I guess he was in shock. He came out and said, 'They didn't even let me speak. Brian kept interrupting me. They'd already made up their mind to fire me.'"
Later, she said, he became "very withdrawn."
She said that what she wanted from the trial was "to clear my husband's name. He was accused of being dishonest."
Her testimony was potentially moving but not highly substantive. I wrote in my notebook as she finished, "I wouldn't cross at all." Moments later, after a brief conference, the County's lawyers announced, "No questions, your honor."
That ended Plaintiff's presentation of evidence, at 9:18 a.m.
Defendant then moved for a directed verdict. Such motions, which are probably made by defendants in more civil cases than not, can occur at the end of Plaintiff's case. Defendant is essentially saying that it is entitled to have the Judge direct a verdict for Defendant because Plaintiff has failed to introduce, as to some required element of each cause of action, sufficient evidence that a reasonable jury could find that particular cause of action to be proven. That is, even if everything said so far is true, Defendant wins. (A simple example: if my cause of action involved discrimination based on race, and I failed to put in evidence regarding my race, Defendant could prevail on a motion for directed verdict; in a case for patent infringement, if Plaintiff failed to show evidence that s/he was the legal owner of the patent, Defendant might win such a motion.
Here, briefly, Defendant's argument was based in part on a lapse of nearly two years between Plaintiff's passing on of a complaint by a subordinate and Plaintiff's firing meant, under previous court decisions, that without specific evidence that passing on the complaint caused the firing, a reasonable jury could not hold that there was a causal connection. Defendant also questioned whether that complaint, which referred to Ms. Padilla acting against the complainant's department because it was mostly minorities and people of low education, concerned ethnic origin or other factors.
Judge Arrieta denied the motion and stated that "Clearly in my mind," there was some evidence from which a jury could find discrimination based on national origin. I should note that this does not mean Judge Arrieta thinks Plaintiff should win, but only that Plaintiff has produced enough evidence to go forward and let the jury decide who wins.
Donald J. Fennerty, briefly the Interim Human Resources Director and now employed at the Detention Center, testified that he recalled no such conversation as Plaintiff Granados had testified occurred between them. Mr. Granados had testified that when he talked to Mr. Fennerty about his discrimination complaint, Mr. Fennerty said something to the effect of, "You have to stand up for your employees." Mr. Fennerty testified that Mr. Granados had never spoken to him about any complaint regarding discrimination/retaliation. "He never spoke to me about these subjects at all. I am very adamant about that." As to a discussion of discrimination based on national origin, he said "Sir, I never heard those words." He later added, "I am very certain about these things." He said such a conversation, during his mere six weeks as Interim H.R. Director, would have been "a significant event" that would have stood out in his memory.
On cross by Plaintiff, asked whether he had once told Kim Stewart that he failed to land the permanent H.R. Directorship because he refused to do the things Sue Padilla told him to do, he replied, "I would doubt that very much. I don't believe that's accurate."
He also testified that while he needed one more year for his retirement to vest, and "would be foolish not to want that to be vested," his testimony was not in any way influenced by that desire.
Henry Cornelius testified concerning a period when he was working under the supervision of Robert Armijo, a Hispanic, but making more money. He testified that he had "43 years' experience" and that Armijo was about 43 years old, and also that the disparity had been corrected in 2012.
Paul Dugie, Flood Commissioner, testified that his salary (which Plaintiff had noted was higher than Plaintiff's, although they were both directors and equivalent in status) came from a different (and state-administered) fund than other county employees.
Deborah Weir testified at great length, but during the morning she primarily authenticated various documents Defendant wished to introduce into evidence. She also testified that the Sally Ramirez sexual-harassment case (in which the County settled a claim by the U.S. Department of Justice and paid a total of $150,000 to five plaintiffs who had worked as maintenance people in Facilities and Parks) had made management very sensitive about careful reporting of any possible discrimination complaint.
After lunch Misty Dawn Benavidez testified before Ms. Weir continued her testimony.
Ms. Benavidez, an administrative assistant in Facilities and Parks, testified that there had been a time when she didn't get along with Sue Padilla but had talked to her about issues and "Now we're good." She said she'd come to resent not only Ms. Padilla but her job. She also testified that she hadn't been retliated against over her national origin.
Under direct examination by Mr. Carrillo, Ms. Benavidez testified:
Q. Are you testifying today to keep your job?"
A. It's crossed my mind. However, I'm here to tell exactly what happened.
Q. Do you fear retaliation from anyone?
Q. Have you gotten over that feeling by talking to Ms. Padilla?
A. It comes and goes."
On cross-examination, she was asked whether she'd felt harassed by Sue Padilla and experienced a hostile work environment. She replied that she'd felt that if she spoke out, Ms. Padilla would retaliate. She conceded that she'd still felt harassed in 2010. She was asked whether she'd experienced a $4 pay cut, and replied "And then some. It was very harsh." Asked if this was the result of Sue Padilla, she replied in the affirmative. Asked if she felt it was the result of truthful testimony in the Sally Ramirez case, she replied "I'm not sure why --- I just felt harassed." However, Plaintiff showed her a June 2012 statement in which Ms. Benavidez had also been asked whether truthful testimony in that lawsuit had led to a demotion and pay cut and had replied, "Yes, ma'am."
Q. You don't want another $4 pay cut after testifying, do you?"
A. "No, ma'am."
On Redirect, Mr. Carrillo ask whether she feared another pay cut. She replied, "Kind of, yes."
Ms. Weir then returned to the stand, and testified until late afternoon. She testified to having been involved in drawing up the Notice of Intent to Terminate, and said that she'd recommended terminating Mr. Granados's employment "because of dishonesty and insubordination." She added that directors must be credible and trustworthy, and said, "It's not a performance issue. It's a character issue."
She also suggested, with regard to the Jason Ireland incident, that although county manuals mandated reporting an incident of discrimination when the supervisor either observes it personally or is told of it by the complainant, there should also be a "knew or should have known" standard. Mr. Granados was not told of any discrimination by Mr. Ireland, did not personally observe any, and (I believe) testified he hadn't even met the man. However he was told something of an incident, or possibly two incidents, in which Mr. Ireland was unhappy because others on his work crew were speaking Spanish to or about him. Under the "knew or should have known" standard, he would have been obligated to report that. Ms. Weir testified that that standard is taught in training sessions. Judge Arrieta jumped in to question her about where it appeared in the manuals and to clarify that Mr. Granados was not Mr. Ireland's direct supervisor. As to the "knew or should have known" standard, he later stated, out of the jury's presence, "I don't know where that came from. It's not the law as I see it."
She also testified to "heightened sensitivity" to allegations of workplace violence.
On cross-examination she was asked, and conceded, that a black woman working for the county had filed a discrimination complaint against her personally two month ago, and that it had included retaliation, although she said she wasn't sure if it also alleged a hostile work environment. (No one indicated that the claim had been adjudicated yet.)
[Again, sorry to have written this so hurriedly. I will likely have to miss most or all of what testimony there is tomorrow, but will hope to be there Wednesday for closing arguments.]