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Employee pursuing retaliation claim cannot offer evidence of verdict confirming propriety of her actions

Leeann Martuch agreed to support a co-worker's age discrimination claim and encouraged the co-worker to pursue it.  Martuch was allegedly fired in retaliation.  Ultimately, the co-worker achieved a verdict of 2.18 million dollars against the employer--apparently confirming the propriety of the two workers' repulsion over the employer's conduct.

This month, the Court of Appeals, in a typical Henry Saad opinion, ruled that Ms. Martuch could not offer into evidence the fact of the verdict to document the propriety of Martuch's support for her co-worker.  Saad's unpublished, per curiam opinion reversed the trial court, and suggested that the 2003 verdict is "too remote in time to explain the Defendant's motives for decisions made in 2000".  This is a semantic rationalization utilized to deflect the court from the true basis for offering the evidence:  the verdict proves that the Plaintiff was engaged in "protected activity" as required by statute, and in fact establishes her good faith in supporting the co-worker.  Frankly, it is the very persuasive power of this evidence that causes Saad and the Defendants and the remaining judges to strive to exclude it from the Martuch jury's consideration.  You can bet that a different rationalization would be offered if the employer were attempting to offer evidence of a verdict establishing that the co-worker had NOT been discriminated against.

As an aside, the Court of Appeals also reversed the trial court's holding regarding Defendant's claimed Affirmative Defenses, and ruled that the Defendant can admit evidence to support its claim that Martuch could have been fired for copying (although not disseminating) confidential documents that corroborated the co-worker's claim.  The only "bone" thrown to the Plaintiff in the opinion was a denial of the Defendant's attempt to exclude all evidence of the co-worker's discrimination claim, entirely.  The Court did not dismiss this blanket effort entirely, but ruled that the trial court would have to consider related evidence on a piece-by-piece basis.  Imagine how an employee can prove unlawful retaliation without offering evidence of the genesis of the protected activity?

Thompson O’Neil, P.C.
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