A trial court properly excluded an employee’s “me too” evidence of alleged discrimination against employees of races different than the plaintiff’s, the California Court of Appeal has ruled in a race and national origin discrimination case under the California Fair Employment and Housing Act. Hatai v. Department of Transp., No. B236757 (Cal. Ct App. Mar. 28, 2013). However, since plaintiffs in employment discrimination or harassment cases can bring “me too” evidence showing discrimination against other workers within their same protected class, the Court found the trial court properly permitted the employee to introduce evidence of discrimination against other persons of the same race as the employee. The jury nevertheless rendered a verdict in favor of the employer and the Court of Appeal affirmed.

Background

Kenneth Hatai, who was of Japanese and Asian ancestry, worked for the California Department of Transportation (“CalTrans”) as a senior traffic engineer. His supervisor was Sameer Haddadeen, who was of Arab ancestry. During his employment, Hatai complained several times about Haddadeen’s management style, describing it as abrasive and disrespectful. However, Hatai never specifically complained in meetings with Haddadeen’s supervisors that he was subjected to discriminatory treatment from Haddadeen because he was of Japanese or Asian ancestry. 

After Hatai received an extensive disciplinary warning letter from Haddadeen, he sued CalTrans under the California Fair Employment and Housing Act for discrimination based on his Japanese or Asian ancestry. Before trial, CalTrans moved to exclude any evidence of discrimination by Haddadeen against persons not of Asian descent. Hatai objected, arguing his claim was that Haddadeen discriminated against any employee who was not of Arab descent. The trial court granted CalTrans’s motion, and the jury returned a verdict in favor of CalTrans. Hatai appealed.

‘Me Too’ Doctrine

The “me too” doctrine permits a plaintiff to proffer evidence of discrimination not only against himself or herself, but also against other persons who are similarly situated. Under the California Evidence Code, an employee who claimed she was fired because she was pregnant was permitted to submit declarations of five former employees who claimed they were fired after telling the employer they were pregnant. Johnson v. United Cerebral Palsy/Spastic Children’s Fdn, 173 Cal. App. 4th 740 (Cal. Ct. App. 2009). The Johnson court allowed the “me too” evidence as proof of the employer’s intent or motive — to show the employer’s stated reason for its actions was pretextual. See also Pantoja v. Anton, 198 Cal. App. 4th 87 (Cal. Ct. App. 2011) (hostile work environment case, permitting employee to present me-too evidence of harassment of other female employees).

Me-Too Evidence Rejected

Hatai argued he should have been permitted to proffer evidence that Haddadeen discriminated against anyone who was not an Arab. The Court rejected this argument because the request was too broad. Hatai had claimed he was subjected to discrimination based on his Asian or Japanese ancestry, not based on Arab favoritism. The “me too” doctrine permitted Hatai to present evidence that Haddadeen subjected other CalTrans employees of East Asian or Japanese ancestry to similar discriminatory conduct. However, based on Hatai’s pleadings, the “me too” doctrine did not entitle Hatai to present evidence of discrimination against employees outside of his protected class, the Court said, to show discrimination against Hatai. Accordingly, the Court concluded the trial court properly excluded any evidence of discrimination by Haddadeen against persons not of Asian descent. The Court also determined the trial court properly refused to permit Hatai to reframe his claim to show that Haddadeen had discriminatory intent “against anyone who is not an Arab.”