The Legal Issues Surrounding Mayor Filner And Sexual Harassment Allegations
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August 8, 2013 1:58 p.m.
Dan Eaton, Employment law attorney, Seltzer Caplan McMahon & Vitek
CAVANAUGH: The problems faced by mayor Bob Filner are not just political. Legal proceedings are underway in the form of a lawsuit filed against the mayor, and a counter suit filed by the city. And criminal investigations of the mayor's conduct are also possible as a result of sexual harassment allegations being reported on the San Diego County sheriff's hotline. As much as this story -- this is a story of political embarrassment, the mayor's problems are also a big legal story. Joining us to outline the procedures and potential arguments ahead, is my guest, Dan Eaton, employment law attorney with Seltzer Caplan McMahon & Vitek. Good to see you.
EATON: Nice to see you too, Maureen.
CAVANAUGH: Harvey Berger is requesting a change of venue for the sexual harassment lawsuit filed by Irene McCormack Jackson. On what grounds does that usually happen?
EATON: There are a variety of potential ground, including that the lawsuit was filed in the wrong court, that the convenience of the witnesses would make it more sensible to have it somewhere else. But the particular grounds that Mr. Berger is asserting, and I have read his moving papers, is that a trial -- an impartial trial cannot be had in this venue, meaning San Diego County. Let's be clear what venue means, it means the place where the trial is going to be heard. And the specific ground that he is using that there's just been too much trial publicity and too many San Diegans have made up their mind for him to get an impartial jury to try Mayor Filner on the sexual harassment allegations.
CAVANAUGH: Now, this has become a national story. It's not just a San Diego story. So Harvey Berger wants the case moved to Imperial County. What's the case being made to move it to Imperial County instead of San Diego? Is it just the number of media reports?
EATON: Well, are that's a big part of it, and an important part of it. According to his papers, there have been some 238 stories in the San Diego county media alone, including 37 on KPBS alone as of the time have gone the motion. By contrast, in Imperial County, the Imperial Valley paper, which is the newspaper of record down there, there have only been 6 stories, not counting the national coverage. So there has been a very big difference. Another factor the Court can consider on this ground is the stature of the person involved, and you're talking about the mayor. Another factor which works against Mr. Berger in this case is the size of the county. And San Diego County is a very big place. And a judge may very well be wary that you can't find a jury of 12 people who can properly vetted be fair and impartial toward Mayor Filner on these explicit allegations.
CAVANAUGH: Do defendants usually have the right to choose when they ask for a motion for a change of venue where they want the trial to be moved to?
EATON: I wouldn't call it the right to choose. The defendant has the right to suggest to the judge. It's going to be the trial court's call, and it is a discretionary call. Of the judge has wide latitude about whether to agree or not to agree to grant this kind of a motion. You understand understand those that these motions are very, very rarely granted. There was 1 story that I read about 1 case where a motion for change of venue was denied. Back in 2002, that was the criminal case against Christian Rossam, are the toxicologist. And a news story at the time noted that only 2 cases in the prior two decades had ever been moved on the grounds that an impartial trial could not be had on the grounds of trial publicity.
CAVANAUGH: Jackson's attorney, Gloria Allred, said she will fight against the change of venue request. She says the case should be heard and decided by a jury of Mayor Filner's peers here in San Diego. Does that argument carry weight?
EATON: Oh, yeah! It will resonate for sure. The issue is that are people so set in their ways that it's virtually impossible to find a jury of peers that can weigh this case impartially? There is another piece of evidence that Filner's lawyer cites about a poll that shows that a lot of San Diegans, 77% have made up their minds. 77% apparently support a recall. The question is whether over time that's going to dissipate or intensify because understand, Maureen, that usually these kinds of motions aren't made until we're much further along in the proceedings than we are now.
CAVANAUGH: Let's also talk about another motion. We learned that the mayor's attorney filed a motion to quash the subpoena for his deposition of the case. What does that mean?
EATON: Well, it means that the deposition is not going to go forward. Mayor Filner was served with a Notice of Deposition by the city. Basically right out of the shoot. The reason for that, bay the way, why didn't Ms. McCormack Jackson serve a notice on the mayor for his deposition, because she couldn't. There was a hold for 20 days. So the city as a codefendant said, all right, we'll serve a Notice of Deposition subpoena on the mayor. By filing this motion to quash the deposition subpoena, the mayor's attorneys have blocked the deposition from going forward on the notice date of August 9th. It doesn't mean the deposition will never occur. It definitely will occur. But it will not occur on August 9th because filing the motion itself blocks the notice date, the deposition from going forward on the notice date.
CAVANAUGH: And I noticed that both of these motions are going to be heard in September. Are we looking at a long proceeding here? Is that the kind of delay from month to month to month that we should be seeing in this kind of a lawsuit?
EATON: Well, speaking from my perspective, as a civil lawyer, September 16th is a very quick hearing date in my view. The judge is going to make a ruling, and then they're going to go forward at that point.
EATON: What Mr. Berger is asking for is that he be deposed no earlier than 30 days after he was served. That's going to put it sometime in September. So we're not talking about a tremendously long delay. And that particular motion was not only directed at staying the deposition or getting a delay in the deposition. It was also directed at making the deposition nonpublic until it's produced at trial.
CAVANAUGH: I see. Now, let's talk about the legalities involved in the allegations against mayor Filner. The women who've come forward tell somewhat similar stories. But they have differences. Some involve just words. Others touching and kissing. Some stem from Filner's time as Congressman, others from his time as mayor. When you're hearing these allegations, listening with a lawyer's ear, how do they differ from a legal standpoint?
EATON: From a legal standpoint, those that have I heard that are the most likely actionable are those involving the workplace, specifically Ms. McCormack Jackson. It's very interesting that Ms. Allred's latest client who is not an employee of the city is not bringing a lawsuit at this time. Because there are only very limited categories where a person who is not an employee can sue for sexual harassment. Now, California does recognize that there are categories of nonemployees who can sue for sexual harassment. But it depends on the specific kind of relationship. I was looking for allegations of severe or pervasive sexual harassment that altered the workplace condition for Ms. Jackson's perspective. And at least the allegations on their face seem to meet that test.
CAVANAUGH: I'm wondering, what are these exceptions to the workplace rule? How can under California law someone actually claim to be sexually harassed if they are not in the workplace?
EATON: Well, according to the statute, Civil Code ß51.9, you have to have a special kind of relationship, such as teacher/student, attorney/client, or the statute adds similar kinds of relationships, and it leaves that open-ended. The question is whether lobbyist/politician, is that the relationship? One of the requirements of that particular law is that the relationship cannot easily be ended. And you also have to meet the basic requirement of a sexual harassment claim, that the conduct be severe or pervasive. A lot of the allegations that we're hearing from these women, appalling as they are, are one-off situations, where it happened one time. So there's a question of whether it would meet a severe or pervasive test even if they had the kind of relationship that falls within the law that allows nonworkplace sexual harassment to go forward.
CAVANAUGH: What about the statute of limitations on these allegations? Some of these alleged incidents happened several years ago.
EATON: Well, yes, exactly right. And for a nonworkplace sexual harassment, are the statute of limitations is a number of years. It's two year, actually. So the statute of limitations probably has run on the vast majority of those that we're hearing about. A lot of them date to his early or middle years in Congress. Some of these, if the relationship can be established, who knows? At this point, I see the real action being those who were employees of his in the workplace.
CAVANAUGH: How difficult is it to prove sexual harassment?
EATON: It's pretty difficult, actually. One of the early tests is have they produced enough evidence even to get to a jury at all? Or is the defendant and the city, are they entitled to get rid of this on summary judgment so a jury never hears it? Are the allegations such that they were severe or pervasive? Did they really alter the environment, in this case Ms. McCormack Jackson's environment, from her perspective, subjectively, and from an objective perspective from a reasonable woman in her position? Proving it is tough. But when you do prove it, the damages can be serious! We're talking about 7-figure verdicts, not unheard of if you get it to a jury.
CAVANAUGH: Will the public statements that Mayor Filner has already made, apologizing, admitting to disrespecting women, will that hurt him in a sexual harassment lawsuit?
EATON: They will hurt him, but they're not dispositive. And by that I mean, he has never admitted even once to engaging in sexual harassment. And that's what I look at as a lawyer. Some people say well, he's admitted sexual harassment. No, he hasn't. He specifically denied it. And that means he has not admitted to legally actionable misconduct no. Controlling legal authority, as it were. But he has not engaged in acts that constitute severe or pervasive conduct of a sexual nature or directed at any of these employees because they are a woman, which is what the standard is. But that said, you bet these statements are going to be used against him, that he has admitted to disrespectful behavior, that he shouldn't have behaved in this way. The question is whether they can build on that and show that he did more, and that what he did to the extent they can prove it is legally actionable.
CAVANAUGH: And what about the directive issued by the city attorney's office that the mayor should not meet alone with women? Is that legally bind something
EATON: Well, it is because the parties have agreed to it. The mayor has agreed to it, and the city has agreed to it as well. That is designed to prevent further instances or potential allegations of sexual harassment. But one of the interesting questions about that is does that directive in some way impair the ability of women in the office to advance professionally? His chief of staff right now is a woman. And she said in a recent interview with the UT San Diego that she isn't meeting alone with the mayor. Well how does that affect the function. The office, and what about lower ranking women in the mayor's office who seek to move up, and whose performance the mayor would have to evaluate? Wouldn't meeting alone -- is just allowing the mayor to meet with men alone going to impair the ability of women working in the office to advance professionally? That's a question. But with respect to the threshold question of whether it is legal now, it's legal at least for now because the parties have agreed to it. Unless it turns out that that stipulation has some sort of discriminator effect on women who seek to move up in his office.
CAVANAUGH: What does harassment cross the line to sexual assault?
EATON: Sexual assault of course is a crime, and that involves actually touching a person's intimate body parts. The one that I can talk about on the air for women, it specific says if you're talking about touching a breast, unwanted sexual conduct with an intimate body part. So that's where we're talking about a crime. And that's where a lot of the action is. One of the allegations that was made before names were being named was about touching a woman behind the bra. Now, that woman I don't think has ever been identified. But if she is identified, then we might be talking about a different quality of action all together.
CAVANAUGH: I'm going to ask you a speculative question.
CAVANAUGH: If there are other women at City Hall who have experienced what Irene McCormack Jackson claims she experienced, would they be allowed now to join this lawsuit? Or would they have to file separately?
EATON: Well, they'll certainly have to file a separate claim. And they don't have to file a lawsuit at all.
CAVANAUGH: If they wanted to.
EATON: Sure, they could file a claim. And there have been reports that another woman has separately filed a claim with the department of fire employment and housing, which is the state's antidiscrimination law. But unlike Jackson has not asked for a right to sue letter but has asked for state officials to investigate the matter instead before she decides whether to bring an action in court, which was an alternative route available. Jackson said I want a right to sue letter so I can go to work right away. But apparently there is another city employee who has filed an administrative claim that says I want state officials to separately investigate this.
CAVANAUGH: Is there a responsibility on the person being harassed to go through channels before they file a lawsuit? In other words, if their company has an HR department and a policy against harassment, do they have to notify that department before they can go go outside and file suit?
EATON: Well, as far as a legal duty, sort of no. If the company has a policy and they fail to take advantage of going through channels, can according to a California Supreme Court decision limit their damages going forward. But it wouldn't prevent them from getting an order, injunctive relief barring the who engaged in the misconduct from assigning anymore. If they don't go through channels and the defendant, the employer can show that it would have at least prevented some of the sexual harassment of which they are complaining, then their right to damaging limited or even eliminated.
CAVANAUGH: Now, there have been hints at various news conferences that if the mayor resigns, the lawsuit against him might be dropped. And I'm wondering, can that happen at any time? Or is there a point of no return where a lawsuit can't be dropped?
EATON: No, it can happen at any time. The interesting thing about that though is understand that resignation is not a form of relief that can be sought in this lawsuit. And also understand that if he resigns, it's not automatic that these claims, the sexual harassment lawsuits, go away. In fact, they will not go away unless there is an agreement to make them go away. And here's another interesting twist. What happens if he makes an agreement with Ms. McCormack Jackson, and the other women in the workplace who have come forward? That doesn't block anyone else from suing separately, assuming the statute of limitations hasn't run. So no, the lawsuit does not go away necessarily if the mayor actually resigns. But you can bet that he would probably make it part of an agreement with at least those who have been identified so far.
CAVANAUGH: I have a feeling we're going to be talking more about that Dan.
EATON: I have a feeling we are, absolutely.
CAVANAUGH: Thank you very much.
EATON: Sure. Thank you very much, Maureen.