The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.
Speedway Superamerica LLC v. Erma DuPont
SC06-1617
>> ALL RISE.
THE SUPREME COURT IS IN
RECESS.
>> ALL RISE, PLEASE.
THE FLORIDA SUPREME COURT IS
BACK IN SESSION.
>> GOOD MORNING.
>> GOOD MORNING.
PLEASE BE SEATED.
IN THIS CASE -- THE NEXT
CASE ON THE CALENDAR THIS
MORNING IS SPEEDWAY
SUPERAMERICA vs. DUPONT.
THANK YOU, YOUR HONOR.
>> MAY IT PLEASE THE COURT
MY NAME THE SUSAN NORTON
WITH MY IS MY PARTNER BRIAN
GOGY.
THE COURT IN THE OPINION
DIDN'T CONSIDER THE
OBJECTIVE FACTOR WHEN
ANALYZING WHETHER OR NOT THE
CONDUCT COMPLAINED OF WAS
SUFFICIENTLY.
>> THAT'S NOT THE BASIS FOR
THE CERTIFIED QUESTION WAS
IT.
>> NO, YOUR HONOR.
>> COULD YOU ADDRESS THE
CERTIFIED QUESTION, PLEASE.
AND I'VE GOT SOS CONCERNS.
AS I WON'T THROUGH AND READ
THE TRANSCRIPT THE JURY WAS
INSTRUCTED NOT ALONG THE
MERCURY MOTOR THEORIES AT
ALL BUT WAS INSTRUCTED FOR
THE PUNITIVE DAMAGE ELEMENT
THAT THEY WOULD -- WERE
REQUIRED TO SIGN -- TO FIND
THAT YOUR CLIENT ENGAGED IN
WILLFUL WONT IN THE HIGHER
STANDARD AS A BASIS FOR
HIGHER DAMAGES.
I LOOK AT INLOGTORY VERDICT
FORM AND THE JURY FOUND YOUR
CLIENT CORPORATE DIRECT
PUNITIVE CONDUCT.
AM I MISREADING THE
INSTRUCTIONS OF THE VERDICT
FORM?
>> NO, YOUR HONOR.
WE'RE NOT HERE TO SET ASIDE
OR THAT THE INSTRUCTION WAS
WRONG.
WE ARE HERE BECAUSE IT NEVER
SHOULD HAVE GONE TO THE
JURY.
>> WE'RE HERE ON THE
CERTIFIED QUESTION.
>> YES, SIR.
>> AND THAT'S WHAT WE'RE
TRYING TO GET TO IS THAT
THIS QUESTION SEEMS TO HAVE
COME FROM LEFT FIELD THAT
WAS NEVER PART OF THE CASE.
WAS THIS PART OF THE TRIAL
DISCUSSION?
>> MERCURY?
>> NO.
NOT AT ALL PART OF THIS.
>> NO, YOUR HONOR.
THAT'S MINE -- THIS IS LAST
THING YOU WANT TO HEAR WHEN
YOU GET UP HERE IS WHY WE
TOOK THE CASE.
I WAS ONE OF THE ONES THAT
VOTED TO TAKE CAN CASE.
I'M NOT SURE I WAS AWARE THE
INSTRUCTION WAS GIVEN.
I UNDERSTAND IT THAT THE
DEFENSE REQUEST AS TO THIS
HIGHER BURDEN AND MERCURY
MOTORS, THAT IS PATTERN ON
THE 11th CIRCUIT THAT
REQUIRES A FINDING OF
WILLFUL, INTENTIONAL OR
CALLUS AND RECKLESS
DISREGARD.
SO THIS FIFTH DISTRICT
DIDN'T EVEN PASS ON THE
QUESTION THAT THEY CERTIFIED
SINCE YOU RECEIVED NOT A
MERCURY MOTORS INSTRUCTION
ON PUNITIVE DAMAGES, BUT THE
11th CIRCUIT FEDERAL
STANDARD.
>> YES, YOUR HONOR AND WE
ALSO RAISED THAT IN THE
JNOB.
HEARING.
>> MY QUESTION ABOUT THIS
CERTIFIED QUESTION IS: WHY
DID DCA EVEN ASK IT?
BECAUSE IT DIDN'T SEEM TO
MAKE A DIFFERENCE TO THEIR
OWN DECISION.
IT SEEMS LIKE THEY SAID
UNDER EITHER STANDARD THE
PLAINTIFF STILL WON.
>> YES, YOUR HONOR.
THEY DID.
AND WE BELIEVE THAT'S
ABSOLUTELY THE WRONG
APPLICATION OF THE LAW.
>> BUT IT WOULDN'T MAKE
ANY --
>> THE ANSWER TO THE
CERTIFIED QUESTION WOULDN'T
MAKE A DIFFERENCE TO THE
RESULT ACCORDING TO THE DCA.
>> NO, YOUR HONOR.
THIS COURT DOES HAVE
JURISDICTION ONCE IT ACCEPTS
THE CERTIFIED QUESTION TO
LOOK AT THE WHOLE ISSUE.
AND OBVIOUSLY WE DO
CONTENT -- CONTEND THIS CASE
IS NOT SUBJECT TO PUNITIVE
DAMAGES.
>> I DON'T UNDERSTAND THIS.
IF SUBJECT -- IS THE
INSTRUCTION THAT YOU
REQUESTED FROM THE 11th
CIRCUIT IN COMPLIANCE WITH
COLESTEAD.
NO IT'S NOT.
>> DID YOU ASK FOR A
DIFFERENT INSTRUCTION.
>> NO, YOUR HONOR.
AT THE JNOV WE RAISED THE
COLESTED DEFENSE.
WE SAID IT SHOULDN'T HAVE
GONE TO THE JURY UNDER
MENDOZA.
>> IS THERE ANYTHING IN THE
OPINION BELOW THE FIFTH DCA
THAT IS IN DIRECT AND
EXPRESS CONFLICT WITH REGARD
TO THE STANDARD OR -- FOR
REVIEWING A JNOV OR A DV IN
A CIVIL CASE THAT WOULD
CAUSE THIS COURT TO HAVE
JURISDICTION?
DID THE FIFTH DISTRICT NOT
FOLLOW THE RULES ON ITS
ANALYSIS OF THE DIRECTED
VERDICT REQUEST OR THE
JUDGMENT NOTWITHSTANDING THE
VERDICT REQUEST?
>> YOUR HONOR, THE DECISION
IS IN DIRECT CONFLICT WITH
THE FLORIDA SUPREME COURT'S
INSTRUCTIONS THAT THE STATE
COURTS -- THAT THE FLORIDA
CIVIL RIGHT ACT IS PATENTED
AFTER TITLE 7 AND THE
LEGISLATIVE HISTORY THERE
OF.
SO YES IT IS IN CONFLICT
WITH THAT.
BECAUSE THE FIFTH DCA
TOTALLY IGNORED THE
OBJECTIVE FACTOR AND RELIED
ON THE SUBJECTIVE PERCEPTION
OF THE PLAINTIFF AND THAT'S
CONTRARY TO MENDOZA AND
CONTRARY TO THE INSTRUCTION
IN THIS COURT IN BIRD AND
WOODEN TO FOLLOW-UP.
YOU ARE STILL ARGUING THE
HOSTILE WORK ENVIRONMENT
THAT WE DON'T GET HERE
BECAUSE THERE WAS NO
EVIDENCE TO SUPPORT THAT?
>> YES, YOUR HONOR.
>> AND I GUESS WE'RE STILL
CONCERNED ABOUT CERTIFIED
QUESTION, WHICH IS HOW THIS
CASE CAME TO THIS COURT.
AND WHETHER OR NOT AN ANSWER
TO THAT CERTIFIED QUESTION
WOULD REALLY BE OF ANY
ASSISTANCE IN THIS CASE.
>> WELL, YOUR HONOR, THE
FIFTH DCA ALSO IS IN
CONFLICT WITH THE LAW AS IT
APPLIES UNDER COALSTED WHICH
ADDRESSES THE PUNITIVE
DAMAGES.
BECAUSE THE COURT THERE
FIFTH DCA HELD THAT IF THIS
MERE NEGLIGENCE IT
CAN -- THE QUESTION OF
PUNITIVE DAMAGES CAN GO TO
THE KRURY.
THAT'S NOT THE ANY FEDERAL LAW OR
STATE LAW.
>> THE U.S. SUPREME COURT
CASE.
>> YES, YOUR HONOR.
>> THERE IS NO WAY WE CAN
HAVE CONFLICT.
>> WITH THE ACCEPTANCE OF
THAT PRECEDENT AND ITS
APPLICATION, YOUR HONOR.
>> WHERE DID THEY SAY, THEY
SAID UNDER MERCURY MOTORS
THAT MERE NEGLIGENCE COULD
BE AVASIVE FOR IMPOSING
PUNITIVE DAMAGES.
AGAIN, IN THE CASE,, THE
INSTRUCTION THAT WAS GIVEN
DIDN'T ALLOW AN IMPOSITION
OF PUNTIVE DAMAGES ON YOUR
CLIENT, BASED ON MERE
NEGLIGENCE.
THE JURY HAD TO MAKE A
FINDING, DIDN'T MAKE A
FINDING THAT YOUR CLIENT
ACTED WILLFULLY,
INTENTIONALLY OR WITH
CALLOUS AN RECKLESS
INDIFFERENCE TO THE
PLAINTIFF'S RIGHTS.
>> YES, YOUR HONOR.
>> SO WHERE IN THE OPINION
DO THEY SAY THAT, THAT THIS
IS ONLY, THAT ONLY USED TO
BE A FINDING OF NEGLIGENCE?
>> THEY DON'T, YOUR HONOR.
IT IS THE CONFLICT ARISES
OUT OF THE FAILURE TO GO, TO
ALLOW IT TO GO THOUGH JURY.
THEY DO NOT SAY THAT.
>> WOULD YOU PROCEED WITH
YOUR ARGUMENT.
THINK WE PROBED THIS.
>> THANK YOU, YOUR HONOR.
WE CONTEND THAT THE OPINION
IS COMPLETELY ERRONEOUS IN
THAT IT DOES NOT ANALYZE
WHETHER THE CONDUCT WAS
SUFFICIENTLY SEVERE AN
PERSUASIVE BECAUSE IT
IGNORED COMB PLETLY THE
OBJECTIVE PRONG OF THE TWO
STANDARD TEST, IN OTHER
WORDS, THE CONDUCT
COMPLAINED OF MUST NOT ONLY
BE SUBJECTIVELY PERCEIVED AS
BEING SEVERE AN PER VASEIVE
TO THE PLAINTIFF, BUT HAS TO
MEET THE REASONABLE PERSON
STANDARD, THINK OBJECTIVE
STANDARD, BY THE COURT
COMPLETELY IGNORING THE
OBJECTIVE STANDARD, IT IS
EVERY SINGLE CASE OF SEX UM
HARASSMENT OR NATIONAL
HARASSMENT ORATION
HARASSMENT WHAT
AUTOMATICALLY GO TO THE JURY
BECAUSE WHAT IT ALLOWS IS
THERE IS NO BASSLINE AS
REQUIRED BY MENDOZA FOR TO
ESTABLISHED WHETHER OR NOT
IT MEETS THE LEVEL OF
CONDUCT SUFFICIENT FOR THIS
JUST BEING IMPOSED AS SEE
VIALLITY STANDARD.
>> IT DOES INVOLVE LOOKING
WHAT THE CONDUCT IS?
>> YES, YOUR HONOR.
>> WE DO HAVE CONDUCT OF
TOUCHING BODILY PARTS AND
THOSE KIND OF THINGS.
>> YES, YOUR HONOR.
>> THE THROWING OF THINGS IN
ANGER, I GUESS THAT WAS
PROBABLY SEPARATED OUT,
WASN'T IT?
BUT IF WE HAVE CIRCUMSTANCES,
IS THE LAW SO RIDGED THAT IF
A MALE FONDLES AN TOUCHES
INAPPROPRIATELY FEMALES AND
THAT IS REPORTED AND THIS
GUESS ON AND ON AND THEN IN
THE ONLY IS IT REPORTED BUT
THEN THEY FORCE THAT FEMALE
BACK AGAIN INTO THAT
SITUATION AND TELL HER SHE
IS GOING TO BE FIRED IF SHE
LEAVES, AS UNDERSTAND THE
RECORD, FOR THAT ONE
OCCASION, THAT THAT DOES NOT
GIVE A JURY, THAT THAT IS
NOT A JURY QUESTION IN YOUR
VIEW?
WHAT DOES IT REALLY TAKE
THEN EVER HAVE A QUESTION OF
FACT IN THESE KIND OF CASES?
>> YOUR HONOR, IT IS WHETHER
OR NOT THE CONDUCT WAS BASED
ON HER SEX OR RELATED TO HER
GENDER.
THERE IS NO EVIDENCE, THERE
IS NO OBJECTIVE EVIDENCE
HERE WHATSOEVER, HE EVER
ASKED OF SEXUAL FAVORS.
>> I THOUGHT THIS RECORD
TALKED ABOUT THAT THAT WAS
THE TOP UK OF CONVERSATION
OF WHAT HE WOULD LIKE TO DO
TO HER AND THAT SEXUAL
COMMENTS AND THE TOUCHING, I
MEAN, AGAIN, ARE YOU
SUGGESTING THAT THIS
TOUCHING WAS JUST COMMON
PARTS THAT WERE TOUCHED THAT
MEN TOUCH ONE ANOTHER IN
THAT WAY?
>> NO, YOUR HONOR, NOT AT
ALL.
THERE IS NO SEXUAL CONDUCT
ON THIS.
IN OTHER WORDS, THEY
OCCURRED WHEN SHE WAS
STANDING BEHIND THE COUNTER.
DID HE NOT ASK HER OUT.
ALL HE SAID WAS, YOU WOULD
LOOK HOT AS A BIKER.
YOU LOOK HOT IN A VEST.
CUE BE A BIKER CHICK.
>> HOW ABOUT THE TOUCHING?
THE TOUCHING WAS BRUSHING
FIRE.
IT ALSO OBJECTIVE PERSON
STANDARD WITH A REASONABLE
PERSON FOUND THAT.
>> YOU KNOW, THAT IS THE
ONE, I THINK, YOU HAVE A
HARD TIME WHETHER I I AM
LOOKING AT THIS AS
OBJECTIVELY AS JUSTICE ON
THE COURT AS A FEMALE SAYING
THINGS LIKE LOOKING GOOD AS
A BIKER CHICK, LOOKING HOT,
COME MENING ABOUT SEX LIFE,
THAT HE NEEDED A GIRLFRIEND,
CRUDE COMMENCE HE MADE IN
HER PRESENCE CALLING HER A
DUMB BLOND, A STUPID BITCH,
TOUCHING HER, PATTING HER ON
BT TOUKS, TO ME, IS NOT
SIMPLY A OF SOMEBODY BEING A
NICE GUY.
THOSE ARE SEXUAL TYPES OF
COMMENTS AND ACTIVITIES AND
OBJECTIVELY AND YOU WOULD
ASK US TO WRITE AN OPINION
TO SAY SOMEBODY DOING THAT
IS NOT CONSTITUTE SEXUAL
HARASSMENT.
>> YOUR HONOR, THE BRUSHING
HAPPENED ONCE.
THE PAT HAPPENED ONCE.
THERE IS ONLY ONE COMMENT
MADE AS TO THE BIKER CHICK.
THERE IS ONLY ONE COMMENT
MADE AS TO THE VEST.
>> WELL, NOW, YOU ARE
GETTING INTO PERVASIVE AND
SEVERE.
>> FIRST SAID THIS WOULD NOT
EVEN QUALIFY AS BEING SEXUAL
IN NATURE.
>> IT DOES NOT -- KRB THERE
IS NO REQUEST, THAT IS NOT
ARISE TO THE LEVEL OF
CONDUCT THAT WOULD BE
SUFFICIENTLY SEVERE AN
PERVASIVE.
IN OTHER WORDS, THE CONDUCT
ITSELF IS NOT ON ITS FACE
BLATANTLY SEXUAL AND THERE
IS NO, UM,, THERE IS NO
TIE-IN TO IT, IN TERMS OF
REQUEST FOR SEX.
>> YOUR ARGUMENT SEEMS TO BE
THAT YOU HAVE TO ASK FOR SEX
OR DO SOMETHING LIKE THAT IN
ORDER FOR THESE KINDS OF
ACTIVITIES TO BE OF A SEXUAL
NATURE.
IS THAT WHAT YOU ARE TELLING
US?
>> NO, YOUR HONOR, YOU DON'T
MEAN TO SAY THAT.
WHAT AIM SAYING IS HERE, IF
YOU LOOK AT THE CONDUCT, IT
US ONLY FROM HER SUBJECTED
PERCEPTION, SHE SPECULATES
IT IS BECAUSE HE WAS AFTER
HER.
SHE SPECULATES THAT IT WAS
BECAUSE SHE DIDN'T RESPOND
TO WHATEVER.
>> HOW DO YOU SPECULATE WHEN
SOMEONE CALLS YOU A DUMB
BLOND.
HOW DO YOU SPECULATE WHEN
SOMEONE IS RUBBING YOUR
SHOULDERS AN YOUR NECK.
THAT IS NOT SPECULATION.
>> YOUR HONOR, THE CASE DUMB
BLOND, WISE VERSUS
COCA-COLA, CALLING SWAN DUMB
BLOND IS NOT RELATED.
>> AREN'T YOU REALLY ASKING
US TO RETRY THE CASE THAT IS
TO RECONSIDER ALL OF THIS
EVIDENCE AND COME TO A
DIFFERENT OUTCOME?
>> NO, YOURONOR, I AM ASKING
THAT THIS COURT LOOK AT THE
DECISION MENDOZA WHICH IS
THE FEDERAL LAW AND THAT
THIS COURT HAS SAID, THE
FLORIDA CIVIL RIGHTS ACT IS
PATTERNED AFTER IT.
THIS CONDICTS A MATTER OF
LAW DOES NOT RISE TO THE
LEVEL OF ANYTHING, THIS IS A
COWORKER, THAT IS WHAT I AM
ASKING, THAT WE USE THE SAME
--
>> YOU ARE ASKING US TO
CONCLUDE THAT THIS IS ALL
JUST INNOCENT CONDUCT, JUST
ORDINARY, WHETHER OR NOT
THIS PARTICULAR PLAINTIFF
HAD BEEN A MALE, FOR
INSTANCE, THE SAME CONDUCT
WOULD HAVE GONE ON, IF IT
WAS A BLOND MALE, THAT ALL
OF THIS WOULD HAVE BEEN THE
SAME CONDUCT, THAT IS WHAT
YOU ARE SAYING?
>> NO, YOUR HONOR, I AM
SAYING, WHILE THIS GUY IS
OBVIOUSLY A JERBLING, I AM
SAYING, AS A MATTER OF LAW,
IT DOES NOT RISE TO THE
LEVEL SUFFICIENTLY ABUSIVE
TO SATISFY THE SEVERE AN
PERVASIVE HOSTILE WORK
ENVIRONMENT.
>> AT SOME POINT, DOESN'T
THAT BECOME A QUESTION OF
FACT?
THAT IS THAT, THAT SOMEBODY
HAS TO MAKE A DETERMINATION
AS TO JUST WHEN DOES IT TRY
THE LEVEL, ORDINARILY, THAT
IS WHEN YOU STARTED OUT YOUR
ARGUMENT HERE NOT ON THE
CERTIFIED QUESTION, BUT
WHETHER OR NOT A JUDGMENT
SHOULD HAVE BEEN ENTERED FOR
YOUR CLIENT AS MATTER OF
LAW, IN REALITY, IF YOU
CONSIDER THESE THINGS
ALTOGETHER AND TAKE THE
INFERENCES MOST VARIABLE TO
THE PLAINTIFF, DON'T WE HAVE
ENOUGH TO GET TO A FACT
FINDER AS TO WHETHER OR NOT
IT CONSTITUTED SEXUAL
HARASSMENT?
>> NO, YOUR HONOR, I DON'T
BELIEVE WE DO.
THE JURY WAS CORRECTLY
CHARGED, THAT IS RIGHT?
>> YES, WE ARE NOT
CONTESTING THE CHARGE AT
ALL.
IN FACT, THE THEY RECOGNIZE
IN THE FOOTNOTE THAT WAS
THIS APPLIED UNDER FEDERAL
LAW THAT IT WOULD NOT
SATISFY THE STANDARD AND
WHAT I AM SAYING IS THAT IN
MATTER OF FACT, THIS COURT
HAS SAID, WE ARE PATTERNING
AND INTERN OPERATING THE
FLORIDA CIVIL RIGHTS ACT
AFTER TITLE 7 UNLESS IT SAID
OTHERWISE.
>> YOU ARE RUNNING OUT OF
TIME.
CAN YOU ADDRESS YOUR
ARGUMENT THAT SHOULD HAVE
BEEN GRANTED DIRECT VERDICT
ON THE PUNITIVE DAMAGES
CLAIM AND AS FAR AS THE
EMPLOYER'S REMIDIAL
MEASURES?
>> YES, YOUR HONOR.
>> CAN YOU ADDRESS?
>> YES, ABSOLUTELY, YOUR
HONOR.
IN TERMS OF THE EMPLOYER'S
REMED WHY IT MATTERS, THE
STANDARD IS WHETHER OR NOT
IT IS REASONABLY CALCULATED
TO A SET CHANGE, WE ARE NOT
REQUIRED THE INDIVIDUAL.
THE COURT REFERS TO THE 8 OR
9 WEEKS THAT SHE WAS SUBJECT
TO THIS, THE -- IT WAS 8 OR
9 WEEKS; HOWEVER, THE
TOUCHING OF THE BUTTOCKS THE
FIRST TIME, THE TOUCHING THE
BUTTOCKS THE SECOND TIME DID
NOT OCCUR UNTIL AFTER SHE
TOLD ROSEMARY RUBEN, YOU
HAVE INCIDENT HAPPENING IN
APRIL, BETWEEN MARCH 13th
AND MAY 29th, MISS DUPONT
ONLY WORKED WITH THE ACCUSED,
THE HARASSER THREE HOURS ON
APRIL 12th BY HERSELF AND
THEN SHE DID NOT WORK ANY
OTHER TIME WITH HIM BETWEEN
THAT TIME PERIOD.
>> THE EVIDENCE ON THAT WAS
THAT THERE WERE NOT ENOUGH
EMPLOYEES TO GO AROUND SO
THERE WERE TIMES WHEN THEY
HAD TO WORK IN SHIFT, I
GUESS, AND HAD TO OVERLAP?
>> IN FACT, THE DEFENDANT'S
EXHIBIT ONE IS THE ACTUAL
TIME RECORDS THAT
INDIVIDUALS WERE PAID FROM
AND, YES, IT DOES SHOW A
TIME PERIOD OF 8 TO 9 WEEKS,
BUT IT ALSO SHOWS THAT ONLY
ON APRIL 12th FROM THE 22nd
UNTIL THE END WAS SHE
ASSIGNED THREE HOURS ALONG
WITH HIM.
>> BECAUSE LINDA A COWORKER
ALSO HAD TO HAVE HER
SCHEDULE CHANGE SO SHE DID
NOT HAVE TO WORK.
>> YOUR HONOR, LINDA FORD
STATES WHEN SHE TOLD
MR. GELBERT SHE WANTED TO
CHANGE HER SCHEDULE.
>> FOR THE SAME REASON?
>> SHE TOLD HER, I ALREADY
CHANGED ONE.
SHE STHATED TO BE ERMA.
ERMA OCCURRED FIRST, MISS
DUPONT OCCURRED FIRST BEFORE
MISS FORD.
>> SO THE TESTIMONY THAT
GELBERT CHANGED FORD'S
SCHEDULE WORKING BEFORE
DUPONT'S WAS CHANGED.
>> THAT IS NOT SUPPORTED BY
THE RECORD, YOUR HONOR.
>> WHERE US THE EVIDENCE AS
TO WHETHER HE WAN COUNSELED
AT ALL ABOUT HIS BEHAVIOR?
>> PAGE 441 AND IT IS
UNREBUTED, MR. GEL BERT, ON
PAGE 390, MR. GELBERT HE
TALKED TO JOE, HE SAID YOU
ARE TALL, YOU ARE
INTIMIDATING YOU CAN'T DO
THAT.
GO GOTH BACK OFF, YOU CAN'T
INTIMIDATE.
>> FORGET ABOUT IN
TIMNATING, WHAT ABOUT
CALLING HER A DUMB
BLOND,SOME OTHER NAMES HE
CALLED HER, PATTING HER ON
THE BUTTOCKS, THE COUNSEL
ABOUT THAT?
>> HE SAID HE COUNSELED HIM
YOUR HONOR.
>> I AM A LITTLE CONCERNED
ABOUT THE STATEMENT YOU SEEM
TO BE ASSERTING THAT THE DCA
RECOGNIZED THAT IT IS
BECAUSE EXPRESSING THE
OPINION THE DISTRICT COURT
SAYS, THERE ARE CASES THAT
MAY SUPPORT YOUR VIEW, BUT
THERE ARE OTHER CASES THAT
REACH THE OPPOSITE RESULT
AND WHICH HAVE FOUND THAT A
PRIME MA FACIA CASE WAS
ESTABLISHED ON SIMILAR OR
EVEN LESSER FACTUAL BASIS.
IS THAT MISSTATEMENT OF THE
LAW?
>> YOUR HONOR, THE CASES
THEY CITED REDISTINGUISHED
IN OUR BRIEF AND THEY ALMOST
WITHOUT EXCEPTION DEALT WITH
A SUPERVISOR.
THE CONDUCT LEVEL AND THE
EMOTIONAL IMPACT OF A
SUPERVISOR AS OPPOSED TO A
COWORKER.
>> THAT IS DIF ARE IN ISSUE
THAN THE CONDUCT ITSELF,
THOUGH, ISN'T YOU?
IT IS STILL THE SAME
CONDUCT.
THE ISSUE OF WHETHER OR NOT
WHO DOES ITS IS NOT A
QUESTION OF WHETHER OR NOT
IT IS HOSTILE WORK
ENVIRONMENT US IS IT?
>> YES, SIR.
I THINK A CONDUCT BY
SUPERVISOR CAN HAVE MORE
EMOTIONAL, MORE ABUSIVE;
HOWEVER, THERE IS NO CASE
THAT WE FOUND OR THAT IS
CITED BY THE DCA THAT HAS
THIS LEVEL AND, IN FACT, WAS
HELD TO BE WITH RUSSELL, IT
IS TO TOTALLY DIFFERENT CASE
AND THERE DEMANDS, PENIS
INTO THE BACK OF THE WOMAN
AND REPEATED SEVERAL TIMES.
IT IS MUCH MORE'S GREGOUS.
>> YOU ARE ABOUT OUT OF YOUR
TIME.
DO YOU WANT TO SAVE A LITTLE
BIT?
>> THANK YOU.
>>> MAY IT PLEASE THE COURT
WAYNE ALLEN REPRESENTING
ERMA DUPONT.
1I9S WOULD LIKE TO ADDRESS
THE QUESTION OF THE
CERTIFIED QUESTION BECAUSE
THE DCA CLEARLY SAID IT DOES
NOT APPLY TO THIS CASE.
THEY WERE ASK CERTIFIED
QUESTION TO FUTURE CASE, NOT
AN EXPERT ON CERTIFIED
QUESTION, SO I DON'T KNOW
WHETHER IT WAS PROPER OR
NOT, BUT THEY CLEARLY SAY IT
DOES NOT APPLY TO THE CASE,
SO HOWEVER THE COURT MAY
RULE ON, THAT I DON'T THINK
IT SHOULD EFFECT THE
DECISION IN FAVOR OF THE
CLIENT, THE COURT SHOULD
AFFIRM IT.
>> NOW THE MERCURY MOTORS
KIND OF CONCEPT WAS NOT
REALLY DISCUSSED OR ARGUED
OR ANYTHING ON THE PROCESS?
>> IT WAS NOT BROUGHT UP AT
ALL?
>> BY ANYBODY?
>> THE JURY INSTRUCTION THAT
WAS GIVEN WAS THE 11th
CIRCUIT PATTERN JURY
INSTRUCTION AND THE PETITION
NER WAS THE PARTY THAT
REQUESTED IT.
>> DID YOU TRY ARGUE FOR A
LESSER INSTRUCTION?
>> I BELIEVED THE MERCURY
MOTORS CASE FIRST OF ALL THE
LAW IN FLORIDA AND IT IS THE
APPROPRIATE JURY INSTRUCTION
TO USE IN FUTURE CASES, AND
THE REASON I SAY THAT.
>> NO.
I AM NOT ASKING WHAT YOU
BELIEVE NOW ABOUT THE
FUTURE.
YOU WANT TO THE AT THE TIME
THAT THE PETITION NER
SUBMITTED THE JURY
INSTRUCTION BASED ON THE
FEDERAL LAW, DID YOU PROPOSE
AN ALTERNATIVE INSTRUCTION
BASED ON MERCURY MOTORS?
WE DID PROPOSE ONE.
I CAN'T HONESTLY SAY IT WAS
BASED ON MARK RY MOTORS, AND
IN THE CONFERENCE WITH THE
JUDGE ON JURY INSTRUCTIONS,
HE LIKED THEIR, HE DIDN'T
LIKE OURS.
>> WELL, GO BACK TO THE
RECORD, WAS IT DISCUSSED,
WELL, THIS IS THE FEDERAL
LAW, BUNDER --
>> TO MY RECOLLECTION, YOUR
HONOR, IT WAS NOT.
>> WAS IT DISCUSSED ON THE
DISTRICT?
IT WONDERED TO THE 5th
DISSTRUCK'S OPINION.
>> I THINK THAT WAS AN ISSUE
RAISED BY ONE OF THE JUDGES
ON THE 5th.
I DON'T THINK IT IS PART OF
THE RECORD ANYWHERE AT THE
TRIAL.
>> ORN THE BRIEFS?
>> OR IN THE BRIEFS?
>> NO, DEFINITELY NOT IN THE
BRIEFS.
>> ON THE 5th DISTRICT.
>> IT CAME UP AT ALL?
>> I DON'T RECALL IT BEING
RAISED AT ALL.
>> INITIAL PAG DECISION
PANEL DECISION.
>> THAT IS CORE EBB RECT,
YOUR HONOR.
>> SO THERE WAS NOT A
REARGUE.
>> I DON'T EVER IT BEING
ARGUED.
>> SO A DECISION OUT OF THE
COURT WITHOUT A REARGUE.
>> THAT IS CORRECT.
I DON'T WANT TO BEAT A DEAD
HORSE, BUT IT WOULD SEEM TO
ME, WE CAN GO BACK AND LOOK,
AFTER YOU LOST ON THE
ORIGINAL PANEL, YOU MIGHT
HAVE ARGUED AL TEMPTIVELY
THAT -- ALTERNATIVELY THAT
THIS MEETS THE STANDARD OF
MERCURY MOTOR HEERS, DID YOU
MATE THAT ARGUE.
I WOULD THINK YOU WOULD
WANT.
>> MORE CONCERNED WITH
SAVING THE JURY VERDICT THAN
WORRYING ABOUT PUNITIVE
DAMAGES TO BE HONEST WITH
YOU AND I DIDN'T EVEN RAISE
THE ISSUE.
SO --
>> YOU KNOW, I THINK THAT
BOTH OF YOU ARE IN STRANGE
POSTURES, YOU ARE SAY, WELL,
GEE, I WOULD LIKE TO YOU
ANSWER THIS, I AM OKAY,
BECAUSE I AM UNDER THE
HIGHER STANDARD, BUT THEN
SAY FOR THE FUTURE, WE
SHOULD HAVE THE LOWER
STANDARD, I MEAN, IT SEEMS
THAT WE WOULD BE ENGAGING IN
ADVISORY DECISION MAKING.
>> IS IT SAFE TO SAY, YOU
WOULD NOT BE DISAPPOINTED IF
WE DISCHARGED JURISDICTION
HERE?
>> NO, I WOULD NOT.
>> I HAVE TO FOR MYSELF
PERSONALLY, MY CLIENT
CERTAINLY, I WOULD HAVE NO
PROBLEM WITH THAT.
>> WHAT IS GOING ON, AS FAR
AS IN CASES IN FLORIDA,
UNDER THE FLORIDA CIVIL
RIGHTS ACT, YOU KNOW, IS
THERE AROUND THE STATE, YOU
KNOW, I GUESS IT WILL END UP
DEVELOP DOING IN ANOTHER
WAY, ARE OTHER JUDGES USING
THE MERCURY MOTOR'S PUNITIVE
DAMAGE INSTRUCTION FOR THESE
KIND OF CASES?
EYE HONESTLY DO NOT KNOW.
>> WE DON'T HAVE ANY CASES
OUT THERE WHICH EXPRESSLY
ADOPT OR REJECT MERCURY
MOTORS?
>> I AM NOT AWARE OF ANY.
THEY ARE VERY SENSITIVE TO
THIS COURT'S DECISION ABOUT
THE FLORIDA CIVIL RIGHT ACT
BEING PATTERNED AFTER THE
FLORIDA LAW.
I WOULD RESPECTFULLY
DISAGREE WITH THE MENDOZA
CASE, FIRST OF ALL, IF THIS
COURT READ, IT PROBABLY
ALREADY HAVE OR WILL, I URGE
TO YOU READ JUDGE MARKET'S
DEDLANT CASE ABOUT A IN A
SERIES OF CASES AFTER THAT,
THE -- SORRY, THE CIRCUIT IS
GOING CLARIFY THEIR DECISION
IN THE MENDOZA CASE.
>> I HAVE READ THAT CASE.
THE FACTS DO SEEM TO BE MORE
EGREGIOUS THAN MENDOZA.
I THINK OUR FACTS ARE
CERTAINLY MORE EGREGIOUS
THAN MENDOZA, BUT, ALSO, IF
ONE LOOKED AT PRIDE, THE
ATLANTIC NEWSPAPER, JOHNSON
BOOKER T. WASHINGTON AND I
WROTE SEVERAL DIAGRAM, YOU
MAY WANT TO DO THIS, FOR
VIOLENCE, SEXUAL DEMEANING
COMMENTARY TO THE PLAINTIFF,
UNWELCOMED TOUCHING, GENERAL
SEXUAL COMMENTS OF VULGAR
TY, OUR CASE HAS ALL OF
THOSE.
>> IF -- WHAT IS YOUR
POSITION ABOUT LOOK AT
PERVASIVE AND SEVERE, IF YOU
HAVE GOT KIND OF COMMENTS AN
TOUCHING THAT WE REFERRED TO
INITIALLY, BUT THEN, YOU
JUST HAVE, THIS IS LIKE, I
GUESS, 2 TO 300-POUND BIG
GUY, THAT IS JUST A
GENERALLY OBNOXIOUS, CRUDE
PERSON THAT MOST COWORKERS
WOULD FIND TO BE OFFENSIVE.
WHAT IS -- HOW IS THAT UNDER
THE CASE LAW, IS THAT, AS
LONG -- THAT IS TO BE CAST
ASIDE?
OR IS THAT CONSIDERED WITH
THE OTHER CONDUCT?
>> ONE READS THE CASE LAW
INCLUDING SUPREME COURT
CASE, THAT IS SOMETHING THAT
SEEMS TO GET LOST IN ALL OF
THESE DISCUSSIONS THAT THE
PARTIES ARGUING THE CASES AN
QUITE OF CONTINUE THE JUDGE
IS LOOKING AT THEM DON'T
LOOK AT THE U.S. SUPREME
COURT CASES AND IT IS CLEAR
THAT IN A NUMBER OF CASES
THAT THE RULING HAS BEEN AND
IT NEEDS TO BE FILED BY THE
11th CIRCUIT AS WELL AS THIS
COURT PATTERNED AFTER THE
FEDERAL LAW, DO YOU LOOK AT
THE TOLL TA TALLY TY OF THE
FACTS AND THE CIRCUMSTANCE,
YOU CAN'T DO THIS ANALYZE
ONE FACT OUT OF CONTEXT.
THAT IS WHAT HAPPENS IN
MENDOZA, THAT IS WHAT THE
DCA OPINION DOES AN IT JUST
MAKES NO SENSE AT ALL.
YOU KNOW?
>> ON THE ISSUE OF PUNITIVE
DAMAGES, HOW DO WE HAVE
WILLFUL CONDUCT ON THE PART
OF EMPLOYER WHEN THEY HAD
POSTED UP THE SEXUAL
HARASSMENT POLICY ON THE
BOARD AT THE APPOINTMENT
PLACE INTHEY COUNSELED
CORYELL, THEY MADE SURE AS
MUCH AS POSSIBLE, THEY WERE
SEPARATED UNTIL THE ON THE
SAME SHIFT, WHETHER THEY
COULD HAVE DONE MER OR NOT,
HOW DOES THAT EVIDENCE,
WILLFUL CONDUCT ON THE PART
OF THE EMPLOYER?
>> I MAY SHARE THE
BACKGROUND.
I AM FORMER COUNCIL
COMMITTEE, AND WHEN YOU
COUNSEL SOMEBODY, FIRST OF
ALL, YOU DOCUMENT IT, IT IS
CLEAR FROM THE RECORD, THE
COUNSELING WAS, HE WAS TOLD
--
YOU ARGUE THEY DID NOT DO
ENOUGH?
YOU SAID THEY SHOULD HAVE
DONE MORE?
TO ME, YOU CAN CORRECT ME,
BUT TO ME, IT IS DIFFERENT
TO SAY, THEY COULD HAVE DONE
MORE, ON THAT SAY THE
EMPLOYER ENGAGED IN WILLFUL
CONDUCT WHEN THEY DID A LOT.
>>> I AM SORRY?
>> I DIDN'T QUITE FINISH
WITH MY ANSWER.
WE HAVE THE FACT THAT HE WAS
NOT PROPERLY COUNSELED.
NUMBER ONE,.
NUMBER TWO, THE WILLFUL
CONDUCT GOES BACK TO THE
REPORTING INITIALLY OF THE
CENTRAL HARASSMENT, ROSY
RUBEN WHO CLEARLY WAS
SUPERVISOR UNDER THE DESINGS
FLORIDA, AND THE FACT THAT
SHE IS A MEMBER OF
MANAGEMENT CHARGED, A
ACCORDING TO TESTIMONY, THE
RESPONSIBILITY OF REPORTING
SEXUAL HARASSMENT, DID NOT
INVESTIGATE IT, DID NOT
REPORT IT UP THE LINE, THEN,
WHEN IT WAS REPORTED TO THE
NEXT LEVEL OF SUPERVISOR,
MISS BRESSNER WHO WAS A
STORE MANAGER, JUST HAPPENED
TO BE ACTING IN THAT STORE
AT THAT TIME, BUT A LONG
TIME WORKER.
SHE DID NOT TAKE ANY ACTION
TO REPORT IT TO A DISTRICT
MANAGER AND THAT DISTRICT
MANAGER WHO TESTIFIED THAT
PART OF HER PRIOR WORK WAS
HUMAN RESOURCES TOOK NO
ACTION.
THEY WAITED UNTIL
MR. GELBERT GETS BACK FROM A
TRAINING PROGRAM HE WAS ON
TO EVEN DISCUSS IT WITH HIM
SO WE HAVE MY CLIENT BEING
SUBJECTED TO APPROXIMATELY
SEVEN WEEKS OF THIS SEXUAL
HARASSMENT BECAUSE THE
PROPER MANAGER, THE
SUPERVISOR, THE MANAGEMENT
CHAIN, DID NOT DO THEIR DUTY,
UNER THEIR OWN POLICY.
AND COUNSEL IN THESE CASES
REPRESENTING EMPLOYERS LIKE
TO PUT LABELS ON THINGS AND
SAY, AND THEY GET TO THE
ARGUMENT ABOUT GOOD FAITH,
THAT IS WHERE IT COMES IN.
WE HAVE A POLICY, THEREFORE,
LET US OFF SCOTT PRE.
WE PUT A WRITTEN POLICY OUT
THERE.
POSTED IT IN THE BULLETIN
BOARD, THAT IS IT.
WE ARE NOT LIABLE ANYMORE.
OBVIOUSLY, THAT CAN NOT BE
THE LAW.
THEY HAVE TO PROPERLY
IMPLEMENT THE POLICY.
>> WELL, THE BULLETIN BOARD
DID HAVE THE POLICY THAT WAS
POSTED UP THERE HAD A NAME
AND A NUMBER TO CALL IF
THERE WAS SEXUAL HARASSMENT?
>> MY CLIENT SAID SHE NEVER
SAW THE POLICY.
WE DON'T DISAGREE THAT IT
WAS THERE, NOBODY ACTUALLY
TESTIFIED THAT IT WAS THERE.
THEY SAID IT PROBABLY WAS
THERE.
MY CLIENT TESTIFIED BECAUSE
SHE HAD WORKED IN OTHER
PLACE, SHE WAS GENERALLY
FAMILIAR WHAT GOES ON IN THE
WORL.
CLEARLY, THE COMPANY HAD A
POLICY.
>> I THOUGHT THE TESTIMONY
WAS THAT THE POLICY WAS
POSTED ON THE BOARD LOCATED
IN A CONSPICUOUS AREA WHERE
MISS DUPONT WOULD REGULARLY
GO?
>> WE -- WAS NOT AN ISSUE IN
THE CASE WHETHER SHE WAS
AWARE OR NOT OF THE POLICY.
>> BUT MY QUESTION IS, SHE
NEVER CALLED.
SHE MAY HAVE SEEN IT.
MY QUESTION IS, SHE -- DID
SHE EVER CALL THE NAME AND
NUMB BERTHA WAS POSTED THERE
ON THE BOARD?
>> YOUR HONOR, THE POLICY
WHICH IS EXHIBIT, EXHIBIT 4
ON THE CASE, THE POLICY SAYS
THAT IT NEEDS TO BE REPORTED
TO HUMAN RESOURCES OR YOUR
SUPERVISOR.
SHE REPORTED IT TO THREE
SUPERVISORS.
SHE WAS NOT REQUIRED TO CALL
SOME 1-800-NUMBER SOMETHING
LIKE THAT.
IT WAS SUFFICIENT UNDER THE
POLICY TO REPORT IT TO THE
SUPERVISOR, BUT SHE REPORTED
IT TO THE THREE, EVENTUALLY
FOUR SUPERVISORS.
>> DO YOU USE THE FACT THAT
THEY SAY THEY TOOK REMIDIAL
ACTION BY TRANSFERRING HER
TO ANOTHER SHIFT, THE SHIFT
THEY TRANSFERRED HER TO WAS
PROBABLY THE WORST SHIFT CUE
HAVE OR AT LEAST THEY SAY
SO.
THE GRAVEYARD SHIFT.
DID YOU THUSE ANING A.
TO THE JURY, YOU KNOW,
SOMEONE COMPLAIN, WE'LL HELP
YOU OUT, WE'LL PUT YOU ON
THE SHIFT WHERE YOU WON'T BE
EVER SEEN OR HEARD FROM
AGAIN?
WAS THAT USED OR NOT USED?
>> I DID ARGUE THAT.
>> DO YOU, I MEAN, HERE
AGAIN, BECAUSE WE'RE TALKING
ABOUT SUFFICIENCY, FOR THE
JURY, THAT IS SOMETHING TO
CONSIDER THAT IS WHAT ACTION
THEY TOOK THAT THEY PUT HER
ON A LESS-DESIRABLE SHIFT?
>> THAT GETS INTO THE WHOLE
QUESTION OF LIABILITY, BUT
ALSO ON THE PUNITIVE DAMAGES
ISSUE.
THE ACTION THEY TOOK WAS
PENALIZING THE EMPLOYEE AN,
YES, WAS SHE ASKED?
DID SHE FIGHT ABOUT IT?
DID SHE SCREAM AND HOLER?
>> NO, SHE DIDN'T.
SHE JUST WANTED TO BE LEFT
ALONE.
THAT WAS THE SITUATION SHE
WAS IN.
BUT EVERYBODY INVOLVED KNEW
THAT WAS THE LEAST DESIRABLE
SHIFT AN UNFORTUNATELY WHEN
THAT HAPPENS, THE MESSAGE
GETS OUT TO ALL OF THE OTHER
EMPLOYEE, TOO, GO AHEAD AND
COME PLAIN ABOUT SEXUAL
HARM, WE'LL MOVE TO YOU THE
11:00 TO 7:00 SHIFT.
>> THERE HAS BEEN DISCUSSION
ABOUT FLORIDA LAW MATCHING
WITH FEDERAL LAW.
IT DOESN'T REALLY MATCH ON
PUNITIVE DAMAGE ISSUE, DOES
IT?
BECAUSE THE FEDERAL LAW
SPECIFICALLY STATES THE
STANDARD, DOES IT NOT?
>> YES.
>> FLORIDA'S STATUTE ON
PUNITIVE DAMAGE DOES NOT USE
THAT STANDARD, DOES IT?
>> THAT IS CORRECT.
>> CERTAINLY, IF WE ARE
LOOKING AT THIS FROM THE
STATUTORY CONSTRUCTION, IF
WE'RE ADOPTING IT, WE COULD
CERTAINLY ADOPT IT WORD FOR
WORD VER BAT IF THAT WERE
THE CRITERIA?
>> THAT WAS THE INTENT.
>> SO ACTUALLY THE ARGUMENT
FOLLOWED THE FEDERAL LAW
SHOWS THERE IS A DIFFERENCE,
SO WE USED THAT AS THE PRISM
THEN MAYBE WILLFUL IS NOT
EVEN THOUGH IT MAY LEAD TO A
DIFFERENT CONCLUSION THAT
THAT WOULD NOT BE THE RESULT
IN PLOR DAR.
>> AND IN MY CONCERN THERE,
WHICH I DON'T KNOW THE
ANSWER TO, BUT IS WHEN THIS
COURT AND OTHER CASES HAS
TALKED ABOUT THE FLORIDA
PATTERN BEING AFTER THE
FEDERAL ACT SHOULD BE LOOKED
ACT IS WHY THE LEGISLATURE
EVEN PASS THE FLORIDA ACT?
THEY COULD HAVE INCORPORATED
AND SAID WE HAVE TITLE 7, WE
DON'T NEED ACT.
>> BUT CLEARLY THE PUNITIVE
DAMAGE.
>> THEY HAD AN INTENT TO
GIVE A LEVEL OF PROTECTION
TO FLORIDA RESIDENTS THAT
MAY NOT HAVE BEEN INTENDED
UNDER THE FEDERAL LAW
PARTICULARLY THE WAY THE
CASES HAVE BEEN.
>> AND THIS PROVISION ON
PUNITIVE DAMAGES.
>> THE PUNITIVE DAMAGES
PROVISION IS NOT THE SAME
BETWEEN THE TWO.
VIE TWO QUESTIONS:
WHAT ABOUT THE CO EMPLOY YES
CO-EMPLOYEE, THERE SEEMS TO
BE A DISPUTE ABOUT WHETHER
CO EMPLOYEE COMPLAINED ABOUT
THE SAME PERSON?
>> SHE ABSOLUTELY COMPLAINED
ABOUT IT.
SHE WAS THE SECOND EMPLOYEE
WHO HAD MAJOR PROBLEMS WITH
CORYELL, HIS PHYSICAL
TOUCHING OF HER WAS MUCH
MORE SEVERE THAN MISS
DUPONTS.
>> WAS THAT AGAIN, WHEN DID
THAT OCCUR IN THE
COMPLAINING BY THAT PERSON
VERSUS THE PERSON IN THE
CASE?
>> WELL, STANDING HERE RIGHT
NOW, I DO NOT HAVE A
RECOLLECTION.
I THOUGHT IT WAS PRIOR TO OR
ABOUT THE SAME TIME AS
MRS. DUPONT MAKING HER
COMPLAINT.
I DID NOT UNDERSTAND, I
DON'T RECALL, ON THE RECORD,
THAT IT WAS AFTER.
>> AGAIN, AS WE LOOK BACK,
IS THAT SOMETHING YOU RELIED
ON AS FAR AS THE LIABILITY
OF THE EMPLOYER IN THE CASE?
OR NOT?
>> WELL, CERTAINLY, YOU HAVE
-- THIS IS, FIRST OF ALL,
THIS CASE IS MUCH MORE
EGREGIOUS THAN MENDOZA, MANY
OF THE OTHER CASES CITED,
BUT ON THAT POINT, YOU HAVE
TWO EMPLOY YES, COMPLAINING
ABOUT THE SEXUAL HARASSER,
YOU HAVE VIDEO CAMERAS IN
THE STORE, FOUR OF THEM,
WHICH ARE GOING THE ENTIRE
24 HOURS A DAY.
>> THAT WAS ACTUALLY MY
OTHER QUESTION.
YOUR VIDEO CAMERA, YOU
MENTIONED THAT ON THE BRIEF.
>> YES.
>> WERE THOSE INTRODUCED
INTO EVIDENCE?
WAS THERE ANY EVIDENCE THAT
ANYONE ACTUALLY WATCHING
SAID THIS IS MR. CORYELL
HA-HA RAS MISS DUPONT.
THEY LOOK AT SOME.
WITH IT KIND OF INTERESTING.
IF YOU ARE LOOKING AT THEM
FOR CRIMES.
>> MOST RESPECTFULLY, YOU
ARE THOUGH IT OUT THERE, BUT
THAT ALONE, IF WE WERE
WRITING AN OPINION SAID
WHETHER IT WAS VIDEO
CAMERAS, THAT DOESN'T REALLY
SAY ANYTHING ABOUT THE
EMPLOYER MAYBE COULD HAVE
CONSTRIFKT KNOWLEDGE BUT THE
PURPOSES OF PUNITIVE DAMAGE
THE VIDEOTAPES ARE NOT
RELEVANT, ARE THEY?
>> WELL, UNFORTUNATELY, WHEN
WE TRY TO GET THOSE
VIDEOTAPES AND DISCOVERY, WE
WERE TOLD THEY HAD BEEN
DESTROYED.
>> SO THE ANSWER I THEY ARE
NOT RELEVANT?
>> NO, THEY ARE NOT A MAJOR
ISSUE IN THE CASE.
I MEAN, THE I THINK THEY ARE
IMPORTANT.
THE TOTALITY OF THE FACTS
BUT THEY WERE NOT A MAY
ISSUE ON THE CASE.
>> WHAT CORRECTRECTION
ACTION WAS TAKEN FROM
CORYELL OTHER THAN THE
MINOR.
>> THE CORRECTIVE ACTION OF
THIS EMPLOYER, YOUR HONOR,
HE WAS RECK HENDED FOR
POSITION IN MANAGE AM.
THAT WAS THEIR ACTION.
>> HE WAS APPARENTLY TOLD
THAT TO DO SOMETHING WITH
MISS DUE UPON.
I AM NOT SURE WE HAVE
$PICATION OF WHAT.
HE WAS RECOMMENDED FOR
MANAGEMENT POSITION.
>> THANK YOU VERY MUCH.
>> OKAY.
THANK YOU.
REBUTTAL?
YOU HAVE A COUPLE MINUTES.
THE SUPREME COURT IMPOSED AN
EMPLOYER MAY NOT BE VIE
VARIOUSLY LIABLE OF MANAGERIAL
AGE GENS IF THOSE DECISIONS
ARE CONTRARY TO THE
EMPLOYER'S GOOD-FAITH
EFFORTS TO COMPLY WITH TITLE
7.
AND SHE DID CALL THE 1-800-
NUMBER TON THE FRIDAY SHE
QUIT.
SHE DID KNOW ABOUT IT.
TESTIFIED SHE HAD GIVEN THE
NUMBER AND SHE HAD IT
POSTED.
>> DID JURY GET INSTRUCTION
IF THEY ACTED IN GOOD FAITH
THEY WOULD NOT BE LIABILITY
FOR PUNITIVE DAMAGES?
DID YOU REQUEST A CALL FOR
THAT IN SFLUX
>> WE RAISED ON THE GNOB, I
DON'T, I DON'T THINK IT WAS
DONE AT THE CHARGE
CONFERENCE, BUT IT WAS RAIDS
JNOV, GOOD FAITH DEFENSE.
THANK YOU.
>> THANK YOU VERY MUCH.
WE'LL TAKE THIS CASE
UNDERADVISEMENT, THANK YOU
VERY MUCH.