Update (February 23, 2012): Are an alleged sexual harasser’s (indeed, an alleged rapist’s) repeated (and deleted) visits to pornographic websites on the business’ computer relevant to claims against the alleged perpetrator and his employer in civil litigation (for sexual harassment)? Many would think so, and, this past week, so did U.S. Mag. Judge Janie S. Mayeron (D. Minn.) (see attached order on the parties’ e-discovery dispute).
Original Post (January 17, 2012): (Original Post by Minnesota employment attorney and Minnesota Litigator guest poster, T.J. Conley): Jarndyce and Jarndyce, as retired U.S. District Court Judge James M. Rosenbaum (D. Minn.) once cautioned me at an initial appearance in his chambers, was the fictional court case described in Dickens’ novel “Bleak House” that has become synonymous with interminable litigation. Within the world of single-plaintiff employment cases, the matter of Leticia Zuniga Escamilla v. SMS Holdings Corp., Service Mgmt Sys. Inc., and Marco Gonzalez venued in Federal District Court here in Minneapolis may be achieving such notoriety.
The allegations in this matter are horrific. Gonzalez was Zuniga’s supervisor; they worked as cleaners at Ridgedale Mall and were employed by SMS from 2005 to 2007. Plaintiff alleges that Gonzalez first fired her and then re-hired her. After the re-hiring, he made inappropriate sexual comments and touched her inappropriately, including grabbing her from behind. In one incident, Zuniga alleges that Gonzalez locked the door to his office and told her to take off her uniform so that he could see her underwear. When she refused, he forcibly removed her clothes and sexually assaulted her. When Zuniga began bleeding, Gonzalez gave her a tissue and told her not to tell anyone. Several weeks later, Gonzalez told Zuniga he wanted to have sex with her in his office. When she refused, he raped her. Zuniga alleges that he raped her on three other occasions. Zuniga eventually stopped coming to work.
Last week, Plaintiff filed her Second Amended Complaint, which adds claims for punitive damages under Title VII against the two corporate defendants, and punitive damages for assault and battery against Gonzalez. What is most striking about this pleading, however, is that it bears document number 495 on the court’s electronic filing system. That is a remarkably large number of filings for a single-plaintiff case with only three counts: sex discrimination and reprisal under Title VII; sex discrimination and reprisal under the MHRA; and assault and battery. The other indicator that his has been a hard-fought battle is that the issue of punitive damages has been considered at least four separate times: twice by Magistrate Judge Mayeron, and twice on appeal to District Judge Ann Montgomery.
A look at the docket sheet provides more evidence of this case’s complexity. It was filed in August 2009, and the first Scheduling Order predicted trial in December 2010. The Tenth (10th!) Amended Scheduling Order was recently issued. It has seen the retirement of one federal judge (the aforementioned Judge Rosenbaum) and the appearances and disappearances of about 20 different lawyers for the parties. There have been disputes over ESI, IMEs, spoliation, protective orders and privileged documents.
The filing last week of the Second Amended Complaint is the direct result of Judge Montgomery’s affirmance of Judge Mayeron’s July 29, 2011 Order regarding punitive damages. Back in September 2010, Judge Mayeron granted plaintiff’s motion for leave to seek punitive damages from Gonzalez, finding that plaintiff had established a prima facie case of assault and battery by clear and convincing evidence as required by Minn. Stat. § 549.191. At the same time, however, she denied plaintiff’s motion as to the corporate defendants because there was insufficient evidence that they had ratified or approved Gonzalez’s conduct.
More recently, plaintiff brought a second motion relating to punitive damages, this time against the corporate defendants on her MHRA claim. Judge Mayeron denied that motion, finding again that plaintiff had failed to establish a prima facie showing by clear and convincing evidence that they had ratified or approved Gonzalez’ s conduct. In her affirmance, Judge Montgomery made two interesting holdings:
- Gross negligence in conducting an investigation cannot form the basis of a punitive damages claim under 549.20 because the subjective state of mind of the employer must be considered; and
- A motion for leave to amend to include a claim for punitive damages under the MHRA is considered under Fed. R. Civ. Pro. 15(a), not section 549.20. Thus, a claim for punitive damages under the MHRA could be included in the original complaint filed in federal court, and there is no requirement to seek leave to include it later.
After two-and-a-half years, there does not seem to be an end in sight for this case. Stay tuned for further developments.