The Impact of “Me-Too” Evidence Post-Pantoja v. Anton

The term “me too” in employment litigation predates its momentous use in the #MeToo movement that gained prominence in 2017.  Under California Evidence Code section 1101(b), evidence of a crime, civil wrong, or other act is admissible when relevant to prove some fact—including, but not limited to, identity, motive, or intent—other than the person’s disposition to commit the act.  “Me-too” evidence allows a plaintiff to provide testimony from other employees with similar experiences of harassment as evidence of a defendant’s discriminatory or biased intent or motive.  In 2011, Pantoja v. Anton, 198 Cal.App.4^th 87 (2011) radically shaped “me-too” evidence by finding that evidence of harassment against other employees that occurred outside the plaintiff’s presence—including both before and after the plaintiff worked for the employer—is admissible “me-too” evidence. Pantoja’s holding extends beyond sexual harassment and discrimination; it assists plaintiffs alleging discrimination based on race, age, religion, and national origin as well.

In Pantoja, Lorraine Pantoja experienced sexual harassment at work.  She alleged her former employer, attorney Thomas J. Anton and his professional corporation, Thomas Anton & Associates, violated the Fair Employment and Housing Act (henceforth “FEHA”) by, among other incidents, touching and slapping her buttocks, touching her leg while offering her money, asking for a shoulder massage, calling her a “stupid bitch,” and derogatorily referring to employees as “my Mexicans.”  Anton terminated Pantoja’s employment through a series of expletives, and she declined an offer for her rehire.  The trial court granted defendants’ two motions in limine—one to exclude evidence of Anton’s derogatory use of the word “Mexicans” because his “occasional or sporadic” use could not establish a racially harassing environment, and a second motion to exclude any evidence that Pantoja did not personally witness or that did not adversely affect her working environment.

Pantoja later filed an offer of proof detailing other female employees’ experiences of harassment by Anton, including frequent use of swear words directed toward them, repeated firing and rehiring of employees, remarks about and touching of their clothing, touching of employees’ bodies, and derogatory use of the word “Mexicans.”

The appellate court held the evidence of Anton’s treatment of other female employees may be used (1) for a jury to determine whether Anton had a discriminatory intent or bias based on gender, which is permissible character evidence under California Evidence Code section 1101(b), (2) to impeach Anton as a witness, and (3) to rebut factual claims by made other defense witnesses.  This evidence is admissible even if it occurred outside Pantoja’s presence (including before and after her employment with Anton) and was unknown to her.  Similarly, Anton’s derogatory use of the word “Mexicans” toward other employees is admissible to demonstrate Anton’s racial bias.  The appellate court noted discriminatory intent or bias is an element of sex discrimination, sexual harassment, and hostile work environment claims under FEHA.  The probative value of this “me-too” evidence is “unquestionable.”

A number of cases have followed Pantoja, affirming the important precedent set.  A few years after Pantoja, in McCoy v. Pacific Maritime Assn., 216 Cal.App.4^th 283 (2013), the appellate court found the trial court erred in subjecting potentially relevant “me-too” evidence to a “blanket exclusion” of irrelevance.  In McCoy, Catherine Y. McCoy, the plaintiff and appellant, alleged the defendants and respondents retaliated against her and other employees for filing a prior lawsuit for unlawful discrimination.  The court cites Pantoja in ruling that if McCoy’s “me-too” evidence was probative of the defendants and respondents’ intent in retaliating against McCoy, it should have been admitted under California Evidence Code section 350 (which provides, “[n]o evidence is admissible except relevant evidence”).  The trial court should have engaged in the fact-intensive process of determining whether the “me-too” witnesses’ claims were similar enough to McCoy’s claim of retaliation, and, if they were, the evidence should have been admissible.

In another post-Pantoja case, Meeks v. AutoZone, Inc., 24 Cal.App.5^th 161 (2018), Natasha Meeks experienced workplace sexual harassment, including unwanted sexual texts, comments on her clothes and body, and nonconsensual attempts to kiss her.  Other female employees experienced similar harassment from the same harasser, including sending unwelcomed sexual text messages and looking at female employees’ bodies in a suggestive manner.  The harasser alleged he was not motivated by gender bias, claiming he treated male and female employees equally.  Applying Pantoja, the appellate court held Meeks was entitled to prove otherwise, including through “me-too” evidence even if it occurred outside Meeks’ presence or at times other than when she was employed.

Other cases, however, caution when Pantoja does not apply.  In Hatai v. Department of Transportation, 214 Cal.App.4^th 1287 (2013), Kenneth Hatai alleged he suffered discrimination, harassment, and retaliation on the basis of race and/or national origin as a person of Japanese or Asian race or ancestry.  Hatai sought to introduce “me-too” evidence from employees who experienced discrimination because they were not of Arab descent.  The appellate court distinguished this case as “far afield” from Pantoja, as the “me-too” doctrine does not entitle a plaintiff to present evidence of discrimination outside of his protected class (in Hatai, Hatai’s protected class was other employees of Japanese or Asian race or ancestry).

Furthermore, in Pinter-Brown v. Regents of the University of California 48 Cal.App.5^th 55 (2020), the appellate court found the plaintiff and respondent failed to proffer evidence that the allegations in the Department of Fair Employment and Housing (now called the Civil Rights Department) complaints she sought to introduce were similar enough to her experience of discrimination.  This “me-too” evidence was inadmissible propensity evidence and thus distinct from the “me-too” evidence contemplated in Pantoja.

Over twelve years later, Pantoja remains a forceful decision that shaped California courts’ findings of the admissibility of others’ experiences to evidence a harasser’s discriminatory intent or bias.  Paving a way for the #MeToo movement that gained prominence in 2017, years before the term “me too” garnered significant societal relevance, Pantoja remains well-cited as leading authority on “me-too” evidence.