Ninth Circuit Affirms Class Certification In Largest-Ever Class Action Gender Bias Suit.

            In Dukes v. Wal-Mart, Inc., 2007 DJDAR 1665 (9th Cir. Feb. 6, 2007)( ), the Ninth Circuit U.S. Court of Appeals affirmed the District Court’s certification of a class estimated to include 1.5 million women in a sexual discrimination suit brought by Wal-Mart employees.   

            This lawsuit, brought by six named plaintiffs and all others similarly situated, asserts claims against Wal-Mart for sex discrimination under Title VII of the Civil Rights Act of 1964.  Plaintiffs allege that women employed at Wal-Mart stores: (1) are paid less then men in comparable positions, despite having higher performance ratings and greater seniority; and (2) receive fewer and wait longer for promotions to management positions than men.  Plaintiffs argued that since Wal-Mart’s practices and policies of gender discrimination are consistent throughout Wal-Mart stores, the alleged gender discrimination is common to all women who work or have worked at Wal-Mart stores.  Plaintiffs sought classwide injunctive and declaratory relief, lost pay, and punitive damages, but not compensatory damages.  The class is estimated to include more than 1.5 million female employees, both salaried and hourly, with a range of positions, who were or are employed at one or more of Wal-Mart’s 3400 stores nationwide.

            Plaintiffs filed a motion in 2003 to certify the nationwide class.  Plaintiffs described the class as: “All women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices.”

            In 2004, the District Court issued an 84-page order granting in part and denying in part Plaintiffs’ motion for class certification.  The court granted Plaintiffs’ motion, but limited the backpay remedy for promotion claims “to that subset of the class for whom objective applicant data exists” because the data relating to the challenged promotions was not available for all class members.  Both parties appealed. 

            Wal-Mart argued that the District Court erred by: (1) concluding that the class met the commonality and typicality requirements for class actions under Fed. R. Civ. P. 23; (2) eliminating Wal-Mart’s ability to respond to individual claims; and (3) failing to recognize that Plaintiffs’ claims for monetary relief predominated over their claims for injunctive or declaratory relief.  Plaintiffs cross-appealed, arguing that the District Court erred in limiting the backpay relief for Plaintiffs’ failure to promote claims.  The Ninth Circuit rejected both appeals.

            Wal-Mart first challenged the opinion of Plaintiffs’ expert sociologist that Wal-Mart’s personnel policies and practices make pay and promotion decisions vulnerable to gender bias as a vague and imprecise conclusion.  Moreover, Wal-Mart argued that the expert’s testimony did not meet the standards set forth in Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).  The District Court explained that the expert’s failure to identify specific stereotyping policies or incidents goes to the weight of the evidence and not the admissibility.  The Ninth Circuit agreed, explaining that “it has long been recognized that arguments evaluating the weight of evidence on the merits of a case are improper at the class certification stage” and “at the class certification stage, courts should apply a lower Daubert standard for the admissibility of expert opinion.”  The court noted that Wal-Mart did not challenge the methodology of the expert, i.e., social science statistics which courts have long recognized have probative value.  Rather, Wal-Mart challenged the expert’s finding because he was unable to quantify with certainty the alleged level of discrimination at Wal-Mart. The court rejected this argument, reasoning that certainty is not required for an expert’s finding to have probative value.

            Wal-Mart next challenged the consideration of statistical evidence offered by Plaintiffs’ statistician because the statistician analyzed data at the regional level rather than a store-by-store analysis.   The court held that Plaintiffs’ statistician had a reasonable explanation for why he had to conduct a regional analysis: “to demonstrate the effect of district, regional, and companywide control over the company’s policies and procedures.”

            Wal-Mart also argued that the District Court erred by concluding that the anecdotal evidence, presented by Plaintiffs in the form of 120 declarations, supported a finding of commonality, because 120 declarants cannot sufficiently represent a class of 1.5 million.  In these 120 declarations, potential class members testified to being paid less than similarly situated men, being denied or delayed promotions, receiving disproportionate pay to their male counterparts, working in an atmosphere with a strong corporate culture of discrimination, and being subjected to various sexist acts.  The Ninth Circuit explained that there is no requirement that a plaintiff class submit a statistically significant number of declarations for the evidence to have any value, and that because the declarations raised an inference of common discriminatory experiences, the District Court did not abuse its discretion in considering this evidence. 

            Wal-Mart also challenged the District Court’s conclusion that managers’ discretionary authority supported a finding of commonality because “decentralized discretionary decisionmaking is not inherently discriminatory.”  The Ninth Circuit held that evidence of a subjective decisionmaking policy raises an inference of discrimination and supports a finding of commonality.  The court noted, however, that this factor alone would not be enough to support such a finding, but in this instance the totality of the evidence did support a finding of commonality.

            Wal-Mart next argued that the class representatives are not typical of all female in-store managers, because only one of six class representatives holds a salaried management position and that representative holds a lower-level position.  The court explained that representative claims are typical if they are “reasonably coextensive” with those of absent class members; they need not be identical.  Because the discrimination, as claimed, occurred through an alleged common practice, the court concluded that Plaintiffs’ claims were sufficiently typical to satisfy the requirement.  Moreover, the court determined that a class representative for each management category is not required for the representatives’ claims to be sufficiently typical of the class.

            Wal-Mart argued that Plaintiffs cannot satisfy the typicality requirement because of a conflict of interest between female in-store managers who are both plaintiff class members and decisionmaking agents of Wal-Mart.  But the Ninth Circuit agreed with the District Court’s statement that courts need not deny certification of an employment class simply because the class includes both supervisory and nonsupervisory employees. 
           
            Plaintiffs moved to certify the class under Fed. R. Civ. P. 23(b), which is only appropriate for cases in which “the appropriate final injunctive relief relates exclusively or predominately to money damages.”  The Ninth Circuit rejected Wal-Mart’s argument that the District Court failed to evaluate Rule 23(b)’s requirement that the challenged conduct be generally applicable to the class based on the court’s finding that the requirements of commonality and typicality were met. 

            Wal-Mart also argued that: (1) injunctive relief claims cannot predominate because many of the class members are no longer employed by Wal-Mart; (2) monetary claims predominate because this case involves claims that may amount to billions of dollars; and (3) a request for punitive damages and backpay undermines the claim that injunctive and declaratory relief predominates.

            In rejecting the first argument, the court explained that stopping illegal behavior is “vital to the interests of the class as a whole” and it is reasonable to believe that the former employees of the proposed class who feel their rights were violated would want to stop the “perpetuation of injustice,” especially in cases involving discrimination.  Moreover, the court noted there was no authority to support the theory that employment status of the plaintiffs is a factor in granting or denying class certification under Rule 23(b)(2), even when former employees are explicitly mentioned as part of the class.

            The court also rejected the argument that merely because billions of dollars were at stake in this suit, claims for injunctive and declaratory relief could not predominate.  The court explained that the predominance test is based on the primary goal of the litigation and not the possible damage award.
 
            As to the third argument, the court explained that a request for punitive damages is not wholly inconsistent with Rule 23(b) certification.  Plaintiffs stated their primary intention in bringing the suit was injunctive and declaratory relief, and the court held that since Wal-Mart did not rebut this statement, the claim for punitive damages did not undermine the claims for injunctive and declaratory relief.  The court also rejected the notion that a request for backpay undermined the predominance of injunctive and declaratory relief, explaining that backpay “is recoverable as an equitable remedy” despite its monetary nature.  Wal-Mart further argued that the absence of an opt-out of the claim for backpay damages undermined the predominance of injunctive and monetary relief in this instance.  The court conceded that because of the lack of an opt-out provision, the request for backpay may weigh against a finding that injunctive or declaratory relief predominates.  However, the court held this factor alone did not require reversal. 

            Wal-Mart next argued that it has the right to an individualized hearing for each class member’s claim and that this right cannot be exercised with a class the size of 1.5 million.  Wal-Mart further argued that denying this right amounted to a change in substantive law.  The court rejected both arguments.

            Wal-Mart relied on International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), for the proposition that it had a right to an individualized hearing for the defense of each class member’s claim.  The Ninth Circuit disagreed.  In Teamsters, the United States Supreme Court explained that at the remedies stage of a class action challenging a pattern or practice of discrimination, the District Court “must usually conduct additional proceedings … to determine the scope of individual relief.”  However, Teamsters did not require individualized hearings at this second stage.  Although “additional proceedings” are usually employed, the District Court has discretion to be flexible and “to fashion such relief” as the particular circumstances warrant.  Thus, the Ninth Circuit concluded that Teamsters does not require the District Court to afford Wal-Mart the opportunity to present individualized defenses.  Moreover, the Ninth Circuit has previously recognized that Title VII does not require a District Court to employ individualized hearings in this instance.

            Wal-Mart also argued that the District Court lacked authority to determine a statistical formula that could be used to determine the total amount of backpay and punitive damages owed to Plaintiffs in the event that Wal-Mart is found liable for discrimination.  The District Court found that statistical formulas can incorporate detailed information from employee databases about each individual to calculate whether, and in what amount, a specific individual has been underpaid or been denied a promotion.  The Ninth Circuit recognized that “Wal-Mart is understandably concerned that every class member could be given the same award or that non-victims could receive awards,” but the court rejected this concern as irrelevant. Citing numerous cases that have recognized the validity of statistical evidence and formulas, the court explained that allocation of relief need not be perfect, and “all doubts should be resolved against the discriminating employer.”

            Wal-Mart next alleged that because it is entitled to present a “same decision” defense under Title VII, which allows relief only to those individuals who can prove injury, the class action format was inappropriate in this instance.  The Ninth Circuit disagreed, noting that the Plaintiffs chose to proceed under a single motive theory, and stating that the same decision defense is only available when the discriminatory conduct was a result of mixed motives. 

            Wal-Mart also argued that class actions involving damages require individualized hearings based on the plain meaning of 42 U.S.C. section 1981(a)(b)(1), which permits punitive damages for “malice [or] reckless indifference to the federally protected rights of an aggrieved individual.”  The court disagreed, explaining that the term “aggrieved person” is used throughout the statute to refer to more than one person and the statutory reference to “an individual” has never been read to preclude the class format. 

            Finally, the Ninth Circuit rejected the argument that due process rights will be violated if the District Court is allowed to apply a statistical formula at the remedy stage.  The appellate court explained that “aggregate computation of class monetary relief is lawful and proper and promotes the deterrence objectives of the substantive laws underlying the class actions and promotes the economy and judicial access for small claims objectives of Rule 23.”  Wal-Mart argued that a punitive award in the absence of individualized hearings would violate due process rights by punishing legal conduct and award damages to non-victims.  The court explained that since Title VII is a federal law that applies to every state, there is no risk that Wal-Mart will be punished for conduct that is legal.  The court also noted that the District Court imposed several due process protections to prevent unjust enrichment by non-injured plaintiffs: (1) the order specified that any punitive damages award will be solely based on evidence of conduct that was directed toward the entire class; (2) the recovery of punitive damages is limited to those class members who actually recover an award of lost pay, and can therefore actually demonstrate personal harm; and (3) allocations of punitive damages to individual class members must be “in reasonable proportion to individual lost pay awards.” 

            In their cross-appeal, Plaintiffs contended that the District Court erred in limiting a promotion backpay remedy “to that subset of the class for whom objective applicant data exists.”  Plaintiffs reasoned that individualized hearings would be unmanageable.  The court rejected this argument, noting that it is well recognized that a class member may be qualified for a promotion but not be interested in taking advantage of that opportunity and individualized hearings are necessary to determine which class members had an interest in a promotion.  The court explained: “We recognize that awarding backpay relief only to those plaintiffs who can demonstrate an interest in a promotion may deny relief to those class members exposed to the greatest opportunities for discrimination in promotions, and in turn fail to provide the class with the most complete relief possible.”  However, the Ninth Circuit concluded that the District Court acted reasonably when it held that class members must be able to prove with objective data an interest in a promotion in order to be eligible to collect certain damages. 

            In dissent, Judge Kleinfeld argued that certification of the class in this instance violates Rule 23 class action criteria and deprives Wal-Mart of due process.  Kleinfeld explained that class actions were designed to provide incentives for individuals to bring suit where his or her individual claim is worth “a paltry recovery.”  In this instance, because of the value of sex discrimination suits, this policy interest is not present.  Kleinfeld argued that certifying a class this large risks not only “enriching undeserving class members and counsel,” but also “depriving thousands of women actually injured by sex discrimination.”  Kleinfeld also explained the detrimental result of certifying a class this large for defendants: namely, that it will become more difficult for defendants to settle these claims when the potential loss is “stratospheric.”

            Kleinfeld argued that the class lacks commonality; the only common question presented was whether Wal-Mart utilized excessively subjective standards for promotion criteria and this question does not have a clear relationship with sex discrimination.  Kleinfeld noted that the Supreme Court held that “leaving promotion decisions to the unchecked discretion of lower level supervisors should itself raise no inference of discriminatory conduct” because it is “self-evident” that standardized testing alone cannot determine who ought to be a manager.  Kleinfeld also found the opinion of Plaintiffs’ expert that Wal-Mart’s practices left it vulnerable to sex discrimination to lack any probative value, since “[v]ulnerability to sex discrimination is not sex discrimination.”  Kleinfeld argued that Plaintiffs’ only evidence of sex discrimination is that about two-thirds of Wal-Mart employees are female, but only one-third of its managers are female.  However, as previously determined by the Supreme Court, statistics alone are not enough to prove discrimination.  Indeed, not everyone wants to be a Wal-Mart manager.

            Kleinfeld maintained that the class lacks typicality because Plaintiffs have not shown the “existence of a class of persons who have suffered the same injury as themselves.”  The seven named Plaintiffs are from different stores and make diverse complaints: some are no longer employed at Wal-Mart, some were promoted to management, some claim sex discrimination, some claim mixed motive race and sex discrimination, and some claim retaliation.  Moreover, the defenses that are available apply only to some individuals and not to others.  Kleinfeld questioned whether these named plaintiffs can protect the interests of the entire class since their interests are divergent and an injunction or declaratory relief cannot benefit women who have quit, been fired, or do not want to return.  

            Kleinfeld also criticized the majority’s decision that the claim for declaratory and injunctive relief predominated over money damages since neither injunctive nor declaratory relief benefits former employees.  Kleinfeld noted that these former employee class members would lack standing to sue for injunctive or declaratory relief.  Moreover, for those still employed, Kleinfeld argued it is difficult to say these employees seek predominately injunctive and declaratory relief when they are seeking billions of dollars in punitive damages.  As Kleinfeld queried, “What non-management employee would care much about how the district court told Wal-Mart to run its personnel system after getting enough cash to quit?”

            Finally, Kleinfeld sharply criticized the District Court’s scheme for calculation of individual awards whereby an expert using an unspecified formula will allocate back and front pay to the class members.  Kleinfeld argued this scheme violates due process because: (1) there will never be an adjudication of compensatory damages; and (2) the allocation of back and front pay will follow the jury determination of punitive damages.  Kleinfeld concluded:

The district court’s formula approach to dividing up punitive damages and back pay means that women injured by sex discrimination will have to share any recovery with women who were not.  Women who were fired or not promoted for good reasons will take money from Wal-Mart they do not deserve, and get reinstated or promoted as well.  This is “rough justice” indeed.  “Rough,” anyway.  Since when were the district courts converted into administrative agencies and empowered to ignore individual justice?

California Court of Appeal Reinstates $1.5 Million Jury Verdict For Plaintiff, Finding Sufficient Evidence of Adverse Employment Action To Support Discrimination and Retaliation Claims.

            In Jones v. The Lodge at Torrey Pines Partnership, 2007 DJDAR 1611 (Cal. App. 4th Dist., Div. 1, Feb. 5, 2007) ( ), the California Court of Appeal reversed an order granting the employer-defendant’s motions for judgment notwithstanding the verdict (“JNOV”) and a new trial, holding that the evidence presented at trial was sufficient to support a finding of an adverse employment action in support of Plaintiff’s claims of discrimination and retaliation in violation of the Fair Employment and Housing Act (“FEHA”), Cal. Gov’t Code § 12940.

            Plaintiff Scott Jones began working at the restaurant in the Catamaran Hotel, owned by Evans Hotels Corporation.  He quickly moved up in the ranks to the position of outlet manager in 2000 at The Lodge at Torrey Pines (“LTP”), which is owned and operated by an Evans Hotel Corporation affiliate. 

            In 2000, food and beverage manager Jean Weiss and kitchen manager Jerry Steen allegedly began exchanging daily jokes that involved sexual remarks about the female employees and Plaintiff (who is gay).  Plaintiff alleged that Weiss and Steen engaged in explicit “gay-bashing jokes” and kept written copies of the jokes at the bar next to the restaurant.

            Several female employees complained to Plaintiff that they felt uncomfortable around Weiss and Steen, and were leered at and referred to with offensive language.  In 2001, Plaintiff complained to Weiss that Steen was unprofessional in the workplace toward women.  Soon thereafter, Weiss threatened to fire Plaintiff if he spoke to human resources about anything that occurred.  Later that year, Plaintiff sent an interoffice memorandum to Weiss asking him to refrain from “unprofessional remarks.”  Weiss responded by bringing Plaintiff into his office, locking the door, and allegedly “delivering a tirade,” which ended with Weiss crumpling up the memo and throwing it at him.

            In June 4, 2001, Plaintiff met with the Human Resources director for the hotel and complained about the sexual orientation discrimination and harassment, as well as the harassment of his female co-workers.  Plaintiff also expressed the need to see a therapist for counseling.  The HR director told Plaintiff that he would have to ask Weiss’ permission to seek counseling and suggested that Plaintiff quit his job because “things like this get worse.”  The HR director also told Plaintiff that he should not go into work because he was too upset to work that day. When Plaintiff returned to work the next day, he received an “Employee Warning Notice” for absenteeism from Weiss, stating that Plaintiff failed to follow hotel policy by not giving two hours prior notice of his absence.   Plaintiff called the HR manager, who affirmed the warning and told Plaintiff that this was the hotel policy. 

            On June 11, 2001, Weiss wrote a memo summarizing his concerns about Plaintiff’s performance as a manager.  A week after receiving the memo, Plaintiff heard Steen threaten to “punch him in the mouth.”  Plaintiff complained to the HR manager, but nothing was done.  On June 19, Plaintiff was put on disability leave by his doctor for on-the-job harassment.  While on leave Plaintiff was offered a transfer to a supervisory position at another hotel, but he turned the offer down because it would have been a demotion.  When Plaintiff’s leave expired, he was placed on administrative leave until the issue of where he would return to work was resolved.  When Plaintiff refused to transfer from his position at LTP, he was told he still needed to take care of the performance issues raised by Weiss.  Plaintiff was told he would be on 30 days’ probation when he resumed his position and that the way he suddenly went on disability leave had “burned a bridge” with LTP management.  Plaintiff also alleged that upon telling the HR manager he filed a complaint with the Department of Fair Employment and Housing (“DFEH”), he was offered $10,000 to drop his case and was accused of blackmailing. 

            Plaintiff returned to work in late September 2001, and alleged he was excluded from meetings.  Plaintiff was also given three warning notices on separate occasions from Weiss which Plaintiff alleged were all unfounded.  On January 22, 2002, Plaintiff resigned.  When the HR manager gave Plaintiff his final paycheck, he told Plaintiff it was time to go home and his services were no longer needed.

            In May 2003 Plaintiff filed this action against Weiss, Steen, and Evans Hotels, alleging wrongful constructive discharge in violation of public policy; sexual orientation harassment and retaliation in violation of FEHA; breach of implied contract; and intentional infliction of emotional distress.   LTP filed an answer to the complaint stating that they had been erroneously sued as Evans Hotels.  LTP, Steen, and Weiss filed motions for summary judgment or alternatively summary adjudication.

             The trial court adjudicated Plaintiff’s claims for sexual orientation harassment and intentional infliction of emotional distress in favor of both Weiss and Steen on the ground that Plaintiff failed to present admissible evidence to support that the harassment was sufficiently severe to create an abusive working environment.  The trial court also adjudicated Plaintiff’s retaliation cause of action in Steen’s favor, but not as to Weiss.  Finally, the trial court granted summary adjudication in LTP’s favor as to the actions for intentional infliction of emotional distress, and for punitive damages as to the remaining causes of action.

            On the remaining causes of action, the jury returned a verdict in favor of Plaintiff on both his sexual orientation discrimination cause of action against LTP and the retaliation cause of action against LTP and Weiss.  The jury awarded Plaintiff $1,395,000 in compensatory damages against LTP and $155,000 against Weiss, but found that Weiss was not guilty of malice or oppression. 

            LTP and Weiss filed separate motions for JNOV and, alternatively, for a new trial.  Both motions were granted.  The trial court held that Jones had to establish an adverse employment action had been taken against him to succeed on both his discrimination and retaliation causes of action and there was insufficient evidence presented to support a finding that an adverse employment action took place.  The trial court also ruled that an individual cannot be liable for retaliation.  Alternatively, the trial court granted the motions for a new trial on the ground that there was insufficient evidence to justify the verdict and the jury was improperly instructed in what constitutes an adverse employment action.  As to LTP, the court ordered a new trial on the additional ground of excessive damages.  Pursuant to the JNOV, the trial court entered judgment in favor of LTP and Weiss.

            The Court of Appeal held that the trial court erred in granting defendants’ motions for JNOV on the ground there was insufficient evidence of an adverse employment action. The court considered Weiss’ tirade in response to Plaintiff sending him a memo complaining about unprofessional remarks, Weiss’ warning notices, the memo criticizing Plaintiff’s performance and setting a 30 day probationary period, and Plaintiff’s exclusion from meetings.  In the court’s view, when considered together under the totality of the circumstances, these actions were sufficient for a reasonable jury to conclude an adverse employment action took place. 

            The Court of Appeal also held that the trial court erred in granting JNOV in favor of Weiss on the ground a supervisor cannot be liable for retaliation under FEHA.  The court cited the language of the statute, which makes it an unlawful employment practice “[f]or any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”  The court distinguished McClung v. Employment Development Department, 34 Cal. 4th 467 (2004), which only addressed FEHA’s prohibition against harassment, and Reno v. Baird, 18 Cal. 4th 640 (1998), which held that individual supervisors are not liable for employment discrimination under FEHA.  In Reno, the court explained that harassment and discrimination are treated differently under the FEHA:  “an employer ... or any other person” is prohibited from engaging in harassment, while only “an employer” is prohibited from engaging in improper discrimination.  FEHA prohibits “any employer … or person” from engaging in retaliation.  The Court of Appeal agreed with prior decisions construing this language to permit individual liability for retaliation.

            The Court of Appeal further held that the new trial order must be reversed to the extent that it was based on grounds of insufficient evidence and erroneous jury instructions regarding the definition of adverse employment action, because the trial court relied on incorrect principles of law.  The appellate court also held that the grant of a new trial on the ground of excessive damages was erroneous based on the lack of evidence in the record to support the conclusion that the damages were excessive.

            The court also rejected Defendants’ contentions on cross-appeal that: (1) the trial court’s refusal to give defendants a proposed instruction pertaining to the meaning of “adverse employment action” was prejudicial error; and (2) the trial court improperly admitted evidence that Weiss and Steen made sexual comments about women and that Plaintiff complained about offensive conduct.

            Defendants argued that although the trial court instructed the jury with examples of conduct constituting an adverse employment action, it did not instruct the jury with examples of conduct that is not an adverse employment action.  The Court of Appeal rejected this argument, explaining that “[e]rror cannot be predicated on the trial court’s refusal to give a requested instruction if the subject matter is substantially covered by the instruction given.”  Moreover, the court stated that a jury instruction consisting “entirely of examples of specific acts that, according to the instruction, do not constitute adverse employment action” is legally incorrect because under the “totality of the circumstances” standard, the acts collectively could be considered an adverse employment action.

            Defendants also argued that the court abused its discretion by allowing Plaintiff to present evidence that he complained to HR about offensive conduct and evidence tending to show he believed in good faith he was opposing unlawful employer conduct because this evidence because it was irrelevant to his retaliation claim.  Defendants argued this evidence was not probative of whether Weiss and LTP took a retaliatory adverse employment action against Plaintiff.  Moreover, Defendants claimed this evidence was irrelevant in light of the fact that they admitted in their opening statement that Plaintiff had complained to HR regarding Steen’s comments about his sex life and that this complaint was legally protected activity.  The court held that evidence of the specific acts Plaintiff complained about was relevant to his retaliation claim, as it showed Weiss’ motive for retaliating against Plaintiff for making the complaint.  The court further concluded that Defendants’ admission in their opening statement did not establish any fact that would render the substance of Plaintiff’s complaints to HR irrelevant. Accordingly, the court found no basis to affirm the order granting a new trial, and directed the trial court to reinstate the original verdict in favor of Plaintiff.

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