Joseph-Mitchell v. Seiu Local 721

• Decision Date: 08 January 2020
• Docket Number: B289210
• Parties: PATRICIA JOSEPH-MITCHELL, as Personal Representative, etc., Plaintiff and Respondent, v. SEIU LOCAL 721, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

PATRICIA JOSEPH-MITCHELL,as Personal Representative, etc., Plaintiff and Respondent, v. SEIU LOCAL 721, Defendant and Appellant.

B289210

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

January 8, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC575572)

APPEAL from a judgment and order of the Superior Court of Los Angeles County, Susan Bryant-Deason, Judge. Affirmed as modified.

Horvitz & Levy, Lisa Perrochet, Jeremy B. Rosen, Eric S. Boorstin, Scott P. Dixler; Skiermont Derby, Paul B. Derby, Hajir Ardebili and Mane Sardaryan for Defendant and Appellant.

Shegerian & Associates, Carney R. Shegerian and Jill P. McDonell for Plaintiff and Respondent.

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INTRODUCTION

SEIU Local 721 appeals from a judgment entered after a jury awarded Talbert Mitchell over $2 million in compensatory damages and $6.1 million in punitive damages for whistleblower retaliation, disability discrimination, medical leave discrimination, wrongful termination in violation of public policy, and intentional infliction of emotional distress. Local 721 argues that the trial court erred in excluding certain evidence and that substantial evidence does not support the jury's awards of noneconomic and punitive damages. Local 721 also argues the punitive damages award is excessive under state and federal constitutional law.

We conclude that the trial court's evidentiary rulings in the liability and damages phase of the trial were not erroneous and that Local 721 has failed to show prejudicial evidentiary error in the punitive damages phase. We also conclude that substantial evidence supports the compensatory damages award, but that substantial evidence does not support the findings of fact underlying the punitive damages award. Therefore, we modify the judgment to reduce the punitive damages award to reflect Local 721's financial condition at the time of trial. As modified, we affirm the judgment. We also affirm a postjudgment order awarding Mitchell his expert witness fees.

FACTUAL AND PROCEDURAL BACKGROUND

A. Mitchell Becomes the De Facto Head of the Advocacy Department at Local 721

Mitchell began working in 1997 for the predecessor to Local 721, a union that represents over 100,000 members including employees of Los Angeles County. In 2000 Mitchell became an Advocate, a union employee who helps union members resolve disputes with their employers. If a Local 721 member experienced a problem in the workplace, another member of the union, called a Steward, would initially attempt to resolve the dispute. If the Steward failed to facilitate a resolution, an Advocate (who was not a member of Local 721) assisted the member with the employee's grievance. If resolution remained elusive, the grievance was referred to arbitration and, if the Los Angeles County Employee Relations Commission (ERCOM) approves the arbitration, Local 721's legal department represented the member in the arbitration. The legal department was also responsible for scheduling arbitration hearings with Los Angeles County employers.

In 2012 Local 721 promoted Mitchell to the position of interim coordinator in the advocacy department, and several months later he became the coordinator. The union's general counsel, Rebecca Yee, and its chief of staff, Gilda Valdez, recommended Mitchell's promotion. Cathleen Garcia, Local 721's director of human resources, announced Mitchell's promotion in an email that stated, "[Mitchell] has extensive experience and knowledge in representation and . . . has been praised for the great work he has done as an Advocate in helping protect our members['] rights. He also has developed relationships withseveral employers and through those relationships he has been able to gain trust and respect for Local 721." The promotion included a 5 percent pay raise, and Mitchell's title changed to Advocacy Manager in January 2013.

Mitchell reported to Yee, who reported to Robert Schoonover, the president and executive director of Local 721. Mitchell supervised approximately 17 employees in the advocacy department, including a legal assistant, Deborah Tejeda, and two advocates, Stephanie Aguilar and Craig McNair. A director oversaw the advocacy department when Mitchell started working at the union, but from 2009 to early 2014 there was no formal director overseeing Local 721's advocacy department. From mid-2012 to September 2013, Mitchell led the department and performed many of the duties a director would have performed.

Employees in the advocacy department spoke highly of Mitchell. Aguilar called Mitchell "very knowledgeable" and said she and other advocates frequently went to him for advice. Aguilar said that Mitchell was always professional and a "very hard worker" and that he "went over and above for the members and fought for them." She also said Mitchell had "great working relationships" with Los Angeles County human resources departments, which facilitated settlements for union members. McNair described Mitchell as an "ideal supervisor" and said Mitchell was knowledgeable and always available and willing to help. McNair interacted daily with Mitchell and said Mitchell was never disrespectful or insubordinate to anyone in management. McNair said that, with Mitchell "at the helm," the advocacy department was "a very cohesive team," and its members "were all confident." Tejeda similarly said that Mitchell was a strong advocate for union members and that he alwaystreated her with dignity and respect. Until 2014 neither SEIU nor Local 721 ever reprimanded or counseled Mitchell for insubordination, failing to follow a directive from a supervisor or another manager, or failing to represent members competently. The only negative report in his personnel file was from 2009, when a prior Director of Advocacy counseled Mitchell to keep information in the computer system up to date.

B. Mitchell and Others Complain About an Arbitration Backlog in the Legal Department

Beginning in 2012 employees in the advocacy department began hearing complaints from union members whose arbitrations had been approved by ERCOM but not scheduled for up to five years. Boxes of pending case files were also stacking up in the advocacy department. Mitchell and others in the advocacy department believed union members could sue Local 721 for breaching its duty of fair representation to its members. And ERCOM Rule 7.07(d) required Local 721 to schedule arbitrations within 180 days of the date the employee filed the matter with ERCOM or risk automatic dismissal of the arbitration request.¹ In December 2012 Mitchell told Yee he was concerned about the number of calls from members asking about the status of their arbitrations, and Yee told Mitchell she would look into it.

In early 2013 Tejeda used Local 721's electronic case management system (CMS) to create a list of backlogged cases. The report identified cases that ERCOM had approved for arbitration but that CMS still listed as "open." Because the legal department did not regularly update a case's status on CMS, and because of other ambiguities in the system, it was unclear whether the "open" cases identified in Tejeda's report were actually open and unscheduled arbitrations or cases that had been arbitrated and closed but not yet updated by the legal department. Nevertheless, Tejeda described the size of the backlog as "substantially more" than at any other time in her 38 years at the union. She brought the backlog report to Mitchell, who notified the legal department. Mitchell reiterated his concerns to Yee about the numerous complaints the advocacy department had received from members in the spring of 2013. Mitchell said Yee appeared to be "tired of hearing about the complaints." Yee told Mitchell "to just be concerned with advocacy, and legal would take care of legal."

On June 25, 2013 Yee sent Mitchell an email expressing concerns Mitchell had been "third partying" Yee by criticizing her and the legal department to others in Local 721. Yee told Mitchell that what he says "travels back" to her, Valdez, and Schoonover. Mitchell said the only concern he had expressed to others was concern about the arbitration backlog. Mitchell also had a meeting with Yee in which he expressed concerns "there was no movement as far as scheduling" arbitrations.

In August or September 2013 Mitchell asked Aguilar to run another report of open cases that had been approved for arbitration. The report listed 500 to 600 cases. Mitchell provided the report to Michael Green, the Los Angeles County RegionalDirector of Local 721, hoping Green would raise the backlog issue with "someone higher up the chain." Aguilar stated, "We thought we were trying to bring [the backlog] to light so we could fix it." Around the same time, Mitchell learned the legal department was trying to blame the advocacy department for the backlog. Mitchell heard from the chair of the Stewards Council that, at one or more monthly Stewards Council meetings, Yee tried to "pin the backlog on advocacy." Aguilar also reported that the Stewards Council "was very vocal" about the backlog and blamed the advocacy department for it. Mitchell also learned and discussed with Green that the legal department was attempting to close cases without notifying affected members.

After Mitchell began telling Yee about the high number of calls from members complaining about their pending arbitrations, Mitchell, Aguilar, and Tejeda noticed Yee treated Mitchell differently. Mitchell stated that Yee was not "as cordial" as she had been previously and that their relationship deteriorated. Tejeda said she saw "upper management" treat Mitchell "poorly,"...