Me Too? Too Far

"Me too" evidence is when the plaintiff attempts to prove discrimination against him or her by offering evidence that others suffered similar discrimination.  The courts admit this evidence as proof of intent or motive, where it otherwise would be excluded as "character" evidence.

The Court of Appeal rejected the attempted use of "me too" evidence in a case where an employee claimed his boss discriminated against him because of his Asian national origin.  But this employee did not seek to admit "me too" evidence to show that the boss discriminated against other Asians.  Rather, the employee tried to admit evidence showing the boss discriminated against anyone who was not "Arab."

The trial court excluded the evidence as more prejudicial than probative under Evidence Code Section 352. The Court of Appeal affirmed:

Here, Hatai alleged he is a person of “Asian or Japanese race or national origin or ancestry,” and that he suffered discrimination, harassment and retaliation on the basis of his national origin and/or race. Thus, the “me-too” doctrine entitled Hatai to present evidence that other employees at Caltrans of east Asian or Japanese descent had been subjected to similar discrimination. However, given the nature of Hatai‟s lawsuit, the “me-too” doctrine did not entitle Hatai to present evidence of discrimination against employees outside of Hatai’s protected class to show discrimination or harassment against Hatai.

 The case is Hatai v. Department of Transportation and the opinion is here.

Southern California

Lovelies,

This past week, I spent some time in Southern California touring the Claremont colleges. I especially love college visits because they tend to renew my energy and drive.... after weeks of monotonous school days, little sleep and piles of homework, it's nice to get away. Claremont village, a quiet yet upscale town located about an hour away from Downtown L.A, is full of small restaurants and boutiques. I spent a lot of time exploring the downtown area with my mom when I wasn't sitting in on a class or attending an information session.

Not much to write about otherwise. Several Disneyland posts coming soon! :)

Notes on the Outfit-

Jacket by J. Crew

Shirt by Madewell

Shorts by Zara

Bag by Marc by Marc Jacobs

White Converse

-Em 

No words needed.

Lovelies,

So....this happened.

I think the photos speak for themselves. Rather than provide background information on HOW I was able to land a tour at Teen Vogue, I want to talk about my experience while visiting.
(Sorry this took so long to publish; I wanted it to be extra special and lengthy).

My friend Amanda and I entered the Conde Nast building, only to see Marc Jacobs chatting happily on his cell phone in the lobby. I took mental notes on his outfit (grungy black leather boots, white beanie and skinny jeans even Olivia Newton John couldn't fit into during her Grease days), and continued to security without missing a step. It took quite an effort to avoid staring, but I succeeded at NOT being a fangirl. (After all, Louis Vuitton and MBMJ are two of my favorite brands). We received our guest passes, passed the security gates and boarded the elevator. All the while, panic welled up inside me- What if Anna Wintour, the Editor in Chief of Vogue, boarded the elevator with us?? Would I have to let her ride it alone á la Devil Wears Prada? Should I compliment her shoes? Bag? Hair? Thankfully, the only people riding the elevator besides us included a few GQ and Vanity Fair employees carrying large Jamba Juices. Pas d'Anna. ;) Once we arrived at the 9th floor, I began snapping several photos on my iPhone. Eventually, Alyssa Reeder, the Assistant to the Editor-in-Chief, came to greet Amanda and I in the Teen Vogue lobby. She led us past the glass doors, and the tour began.

A few things about the office stood out to me almost immediately....

1) It was much quieter than I expected. Everyone seemed either engulfed in their work, or quietly discussing upcoming issues with other staff members. However, staff members were also incredibly friendly. I was introduced to around 15-20 different people, all of whom greeted me with a wave or smile.

2) The infamous closet was not as overwhelming as one would think. After inquiring to Alyssa why this was, I learned that most designers send samples to the magazine. Once shot or featured, they are returned promptly to their proper showroom. However, racks of samples DID line the hallways.
So. Much. Clothing. It was ridiculous.

3) When we were ushered into the review room (future issues are assembled here via various magnetic boards), Alyssa mentioned the level of collaboration between Vogue and Teen Vogue. I was surprised to hear that Anna visits Teen Vogue to look over each issue, and give it the stamp of approval before it is submitted for print. Meanwhile, Grace Coddington, the Creative Director at Vogue, occasionally visits the Style Department to see what they're working on.

The tour lasted around twenty minutes. In this time, we visited all major departments, including casting, photography and beauty. Afterwards, Alyssa presented us with copies of the April issue! Super special magazine status. ;) Overall, it was a wonderful experience and I felt so lucky to see the office in action!

Em

Court of Appeal Explains Invasion of Privacy Claim in California

Ignat worked for a Yum! Brands restaurant. She had bi-polar disorder.  While on a leave, her supervisor allegedly disclosed her condition to other employees, verbally.  Ignat sued for invasion of privacy, based on the common law claim "public disclosure of private facts."

The court of appeal reversed summary judgment.  The court explained that, contrary to the trial court's ruling, a claim for invasion of privacy based on disclosure of private facts is viable even if the disclosure is verbal as opposed to written:

We conclude that limiting liability for public disclosure of private facts to those recorded in a writing is contrary to the tort‟s purpose, which has been since its inception to allow a person to control the kind of information about himself made available to the public – in essence, to define his public persona. (See Briscoe, supra, 4 Cal.3d at p. 534; The Right to Privacy, supra, 4 Harv. L.Rev. at pp. 198-199.) While this restriction may have made sense in the 1890‟s – when no one dreamed of talk radio or confessional television – it certainly makes no sense now. Private facts can be just as widely disclosed – if not more so – through oral media as through written ones.

Because the trial court found no written dissemination of the plaintiff's condition, it ruled she could not prevail. The appellate court sent the case back to the trial court for re-evaluation.

However, the court also explained that the common law tort is not established based on mere disclosure to a few individuals. The court also distinguished between a claim for invasion of privacy based on the California constitution, and a common law claim.

Our Supreme Court regards the two legal theories as providing separate, albeit related, ways to insure privacy. The constitutional variety focuses on institutional record-keeping and does not require a wide dissemination of private information. (See Hill, supra, 7 Cal.4th at pp. 35-37 [elements of constitutional privacy violation].) Liability for the common-law tort requires publicity; disclosure to a few people in limited circumstances does not violate the right. (Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 840; Timperley v. Chase Collection Service (1969) 272 Cal.App.2d 697, 700; Schwartz v. Thiele (1966) 242 Cal.App.2d 799, 805.) Moreover, the facts disclosed must be offensive or objectionable to a reasonable person. (See, e.g., Shulman, supra, 18 Cal.4th at p. 214.) If they are not, there is no liability. (See, e.g., Johnson v. Harcourt, Brace, Jovanovich, Inc., supra, 43 Cal.App.3d at p. 892 [facts disclosed not "„so offensive as to shock the community‟s notions of decency.‟ [Citation.]"]; Carlisle v. Fawcett Publications, Inc. (1962) 201 Cal.App.2d 733, 748.) The constitutional right, however, may be violated if any private record that was supposed to be kept confidential is disclosed, for example, a college transcript. (Porten v. University of San Francisco, supra, 64 Cal.App.3d at p. 827.)

Based on the papers filed in the case, Ignat was limited to the common law claim, and therefore will have to prove widespread dissemination.

This case underscores the need to limit communications about the nature of an employee's disability or other sensitive private facts that would be "so offensive as to shock the community" if disclosed.

The case is Ignat v. Yum Brands, Inc. and the opinion is here.

Court of Appeal Affirms Denial of Class Certification

The court of appeal decided in a retail exemption case that the trial court ruled within its discretion to de-certify or preclude class action status.  The  case involved Sears automotive center managers and a dispute over whether they were correctly classified as exempt. The trial court issued a brief order denying certification, which the plaintiff appealed.

The appellate court's analysis focused on a few issues of interest. First, the trial court has discretion to credit one party's evidence over the other party's conflicting evidence. Second, the appellate court defers to the trial court's discretion by inquiring only whether there is substantial evidence supporting the trial court's ruling.  It does not matter if the other side also offered enough evidence to support a contrary ruling. 

Third, the court emphasized that an employer's uniform policy or classification of a group of employees as exempt is not going to suffice as a "predominating" common issue to warrant class action treatment. Rather, the trial court is supposed to determine whether the actual work performed by the potential class members is susceptible to common questions and answers.

And that brings us to the important part of the opinion. The court rejected the plaintiff's attempt to offer a statistician's opinion that one could "sample" a small group of managers to predict whether all class members were exempt or non-exempt.

To obtain class certification, Dailey was required to demonstrate the predominance of common questions of law or fact. . . . We have found no case, and Dailey has cited none, where a court has deemed a mere proposal for statistical sampling to be an adequate evidentiary substitute or demonstrating the requisite commonality, or suggested that statistical sampling may be used to manufacture predominate common issues where the factual record indicates none exist. If the commonality requirement could be satisfied merely on the basis of a sampling methodology proposal such as the one before us, it is hard to imagine that any proposed class action would not be certified.
***
[C]ourts have held that when the class action proponent fails to satisfy the threshold requirement of commonality, as occurred here, the trial court does not err in rejecting the use of statistical sampling or other methodologies to establish liability as to the whole proposed class. (See, e.g., Mora, supra, 194 Cal.App.4th at pp. 501, 509-510 [rejecting argument that trial court erred in failing to consider survey methodology proposed by plaintiffs' expert to measure the amount of time employees spent on exempt versus nonexempt tasks, in light of that court's reasonable conclusion that common questions of fact or law did not predominate over individual ones]; Dunbar v. Albertson's Inc. (2006) 141 Cal.App.4th 1422, 1432 (Dunbar) [no error in court's conclusion — and in its implicit rejection of the use of surveys and exemplar evidence — that the "findings as to one grocery manager could not reasonably be extrapolated to others given the variation in their work"].)

 The court of appeal also rejected the notion that the absence of a formal policy regarding meals and breaks for exempt employees supports class certification:

Dailey also is not helped by evidence that Sears does not have formal written policies regarding rest breaks and meal periods for salaried managers, does not ensure that breaks are taken, and does not keep records of breaks these employees take. First, such evidence is consistent with Sears's contention that Managers and Assistant Managers are exempt employees. Second, to the extent this evidence relates to whether Managers and Assistant Managers actually take uninterrupted breaks, or to whether Sears enforces meal and rest periods, that evidence is not directly relevant after Brinker. (Brinker, supra, 53 Cal.4th at pp. 1034, 1040-1041.) Finally, the absence of a formal written policy explaining salaried managers' rights to meal and rest periods does not necessarily imply the existence of a uniform policy or widespread practice of either depriving these employees of meal and rest periods or requiring them to work during those periods. Sears presented substantial evidence that no one prevents Managers and Assistant Managers from taking meal and rest breaks, and they are free to do so as they deem appropriate. As explained previously, the trial court was entitled to credit this testimony over contrary inferences suggested by Dailey's evidence. (See, e.g., Sav-On, supra, 34 Cal.4th at p. 331.)

The case is Dailey v. Sears, Roebuck & Co. and the opinion is here.

The Armory Show

Lovelies,

I was fortunate enough to be in New York City this past weekend to attend the Armory Show. For those of you not familiar with the show, the once-a-year display highlights various artwork from small galleries located across the globe. (A few notable galleries present include the Gagosian Gallery and the Lisson Gallery).  This year's show featured thousands of works, hundreds of which varied in their mediums. I specifically enjoyed the use of film, lighting and recycled material to enhance the gallery experience. I photographed some of my favorite works, which you will find above. It was clear that an exorbitant amount of care was placed in the design of each gallery space (Some of the galleries even had printed wallpaper illustrated by a specific artist!)

Most importantly, the Armory Show cleverly placed several "refreshment stands" along the hallways. I luckily had enough control to stick with one dessert offered at the stands. After sampling a red velvet flavored baked doughnut, I will never be able to eat another doughnut again. Too delicious.

More NYC Posts coming soon!

XOXO,

Em

P.S. I will be hosting a Teen Vogue Girls' Night In 10th Anniversary Celebration tomorrow evening. A new post will follow soon! ;)

West Coast Blues

Lovelies,

Today, I had the wonderful opportunity to visit the deYoung Museum with my AP Art History class.  The exhibition, which featured a series of 'Dutch Master' favorites from the Maurithuis, specifically highlighted the famous work Girl with a Pearl Earring by Vermeer. Not surprisingly, the piece quickly caught my attention and was easily one of my favorite pieces in the exhibition. Vermeer's use of lighting is certainly prevalent in the piece, as well as the fluidity of his brushstroke and lack of definite line.

Although I had spent time in the museum prior to the trip, it was nice to be able to discuss the art with my peers...as well as eat Caramel Mystique in the café, and marvel at the giant safety pin sculpture next to the Japanese Tea Gardens at Golden Gate Park. ;) These photos, taken by the lovely Rachel, were snapped at the fountains in front of the deYoung Museum. In a way, the small gardens remind me of the Tuileries in Paris. I think the similarity must be affiliated with the green-iron and wooden benches located in the park, but I can't be certain. :)

I especially love piecing together outfits designed for city life and city adventures, simply because I feel the most inspired when it comes time to put the final look together. Currently, I'm really interested in pops of color, high buns and denim-on-denim. Obviously, these are all reflected in the outfit. ;)

XOXO,

Em

P.S. I was en route to San Francisco this morning when I decided to check my email. Scrolling through the countless number of junk messages, I opened a J. Crew email titled West Coast Blues. To my delight, the model featured in the advertisement sported an outfit rather similar to my own. Fittingly, I figured that the title of the email seemed perfect for this blog post. 

P.P.S I'm off to New York City tomorrow! Can't wait to document the adventures. ;)

Notes on the outfit-

Denim Jacket- J. Crew

White Shirt- Abercrombie and Fitch

Scarf- Boutique Scarf

Purse- Dooney and Bourke

Shoes- J. Crew

Ninth Circuit: Class Action Erroneously Certified Given Wal-Mart v. Dukes

Back in 2004, employees of the Chinese Daily News started a class action, claiming mis-classification, unpaid overtime and denied meals and breaks.  The trial court eventually certified a class, and the employees won summary judgment on whether reporters for the newspaper qualified under the professional exemption.  The employees won millions of dollars after trial, which the Ninth Circuit affirmed.

Not so fast, said the Supreme Court.  Following the Supreme Court's Wal-Mart Stores v. Dukes decision (discussed here), the Supreme Court vacated the Ninth Circuit's decision in this case.  The Ninth Circuit decided that Wal-Mart requires reconsideration of the decision and sent it back to the district court.

Why? The trial court did not apply the proper analysis (after Wal-Mart) to determine whether there is sufficient commonality to certify the class.  As explained by the Court:

On remand, the district court must determine whether the  claims of the proposed class “depend upon a common contention . . . of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart, 131 S. Ct. at 2551.

So, it's not enough that there are "common questions" in the abstract, because, as the Ninth Circuit stated (quoting Wal-Mart and its own later decision in Ellis v. Costco):

"any competently crafted class complaint literally raises common questions.” Wang [sic], 131 S. Ct. at 2551 (alteration and internal quotation marks omitted). “What matters to class certification is not the raising of common questions — even in droves — but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Id. (alteration and internal quotation marks omitted). Dissimilarities within the proposed class may “impede the generation of common answers.” Id. “If there is no evidence that the entire class was subject to the same allegedly
discriminatory practice, there is no question common to the class.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 (9th Cir. 2011).

The Ninth Circuit also decided that the district court would have to reconsider whether certification is appropriate under Federal Rule of Civil Procedure 23(b)(3).  That rule permits monetary recovery in class action cases when

the court finds that the questions of law or fact  common to class members predominate over any questions affecting only individual  members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.

First, the district court over-relied on the employer's policies applicable to all employees, but without considering whether issues pertaining to individual claims and defenses would "predominate" over the common policy.  Second, the district court did not have the California Supreme Court's Brinker decision (you've heard of it, right?) to assess whether certification of a meal / rest claim was appropriate. 

Of note, the Ninth Circuit also wrote this, which will likely be of interest to class action litigators:

In Wal-Mart, the Supreme Court disapproved what it called “Trial by Formula,” wherein damages are determined for a sample set of class members and then applied by extrapolation to the rest of the class “without further individualized proceedings.” Wal-Mart, 131 S. Ct. at 2561. Employers are “entitled to individualized determinations of each employee’s eligibility” for monetary relief. Id. at 2560.
Employers are also entitled to litigate any individual affirmative defenses they may have to class members’ claims. Id. at 2561. 

The case is Wang v. Chinese Daily News and the opinion is here.