$2,150,876.75 Final Judgment After Verdict in Employment Retaliation Case

On April 14, 2010, Judge David B. Flinn of the Contra Costa County Superior Court signed a final judgment in the amount of $2,150,876.75 in favor of Plaintiff J. Steven Wiley. The judgment includes $1,029,500 in attorney’s fees and $121,376.75 in costs, added to the jury’s verdict of $1,000,000 awarded on March 10, 2009.

Wiley was represented by Gary Gwilliam and Randall Strauss of Gwilliam, Ivary, Chiosso, Cavalli & Brewer, and Jan C. Nielsen of the Law Offices of Jan C. Nielsen. Defendants have appealed the jury verdict, and Plaintiffs have appealed the attorney’s fee award.

In Wiley v. Wyndham Vacation Ownership, Inc., et al., Contra Costa Case No. C05-01991, the jury found that that Wiley was retaliated against by his employer, Trendwest Resorts, Inc., for making complaints about age discrimination. In 2003, Wiley met with his employer’s attorneys related to a co-worker’s claim of age discrimination and provided information favorable to the co-worker. A series of retaliatory acts commenced the next day, and eventually Wiley took a medical leave when the workplace stress caused his diabetes to become unmanageable. He was terminated on August 11, 2004 while on this leave. Wiley claimed he sustained stress and major depression which aggravated his pre-existing diabetes and caused him to become permanently disabled.

In addition, Wiley contended that Trendwest discriminated against him after he became disabled. Plaintiff introduced evidence at trial that a Trendwest executive had disparaged employees who took disability leave, and threatened them with stagnated careers or termination.

Trendwest hired Wiley in 1991. He sold timeshares for vacation property, and was consistently promoted during his tenure with the company. In 2003, he was the sales manager at the company’s Walnut Creek office. In January of 2003, he was directed to meet with the company’s lawyers to disclose his knowledge of facts surrounding a co-worker’s age discrimination claim. Wiley provided information that favored the co-worker against Trendwest. The next day, the company placed Wiley on a series of performance contracts and warned him that he would be terminated if he did not meet them. Later, attempts were made to intimidate him into not giving adverse deposition testimony. One of Wiley’s direct supervisors testified that he was transferred to his position with express orders to “get rid” of Wiley. Wiley’s complaints of retaliation went un-investigated by Trendwest’s human resources department. Wiley was deposed over three days. Trendwest’s top executive threatened Wiley, saying “if you’re with us, we will protect you.” Finally, top management in Redmond, Washington go involved and changed Wiley’s job duties. Testimony indicated this was done to force him out of the company. By this time, February of 2004, Wiley had become extremely stressed. His doctor placed him on medical leave. Before he was able to recover, the company terminated him on August 11, 2004.

The case was filed on September 22, 2005, when Wiley, along with 10 other plaintiffs, sued Trendwest, now known as WorldMark by Wyndham, for various forms of discrimination, retaliation and harassment. The litigation was very hotly contested, with many discovery disputes, over 17 summary judgment/summary adjudication motions, and at least 80 days of depositions. Although 8 of the 10 plaintiffs’ cases eventually settled (one remaining plaintiff’s case goes to trial in August, 2010), Defendants refused to discuss meaningful settlement with Wiley.

During the trial, over Plaintiff’s objections, the Court allowed evidence of Wiley’s twenty-year old felony conviction for tax evasion and obstruction of justice. Over Plaintiff’s objection, Defense counsel read from the indictment and allocution in the criminal case to the jury, and argued that the conviction fully impeached Plaintiff’s testimony. Thus, the jury was told that Wiley had evaded paying taxes and lied to a Federal judge, and plead guilty to the charges. Plaintiff’s counsel argued that the felonies were irrelevant, in that Trendwest hired him with full knowledge of his past, and even wrote letters on his behalf to the Department of Real Estate to help him obtain his real estate license.

Defendants further argued that Wiley’s claims were barred by the statute of limitations, the complained of acts of discrimination were not adverse employment actions and were unrelated to Wiley’s protected activities, and that he was legitimately administratively terminated when he did not return from medical leave.

Following a 21 day trial, the Court dismissed Wiley’s claims related to disability discrimination. The jury deliberated for two ½ days before awarding Plaintiff $1,000,000 for past and future lost wages. The jury did not award Plaintiff anything for emotional distress. Plaintiff contends that the jury failed to award him emotional distress because it believed that once they found for Defendants on the intentional infliction of emotional distress cause of action, emotional distress damages could not properly be awarded.

Defendants filed a motion for new trial, arguing that the evidence did not support the damages awarded. Plaintiff filed a motion for additur, arguing that because Wiley suffered a physical injury (uncontrolled diabetes), emotional distress damages were mandatory. In addition, Plaintiff argued that he jury operated under the mistaken assumption that it could not award emotional distress damages. The Court denied both post-trial motions.

Under the California Fair Employment and Housing Act, Wiley was entitled to his attorney’s fees as prevailing party. Following extensive briefing and several contested hearings, Judge Flinn awarded Wiley’s counsel $1,029,500 in attorney’s fees and $121,376.75 in costs, which was added to the $1,000,000 jury verdict , resulting in a total judgment of $2,150,876.75. Plaintiffs contend that the fee award is inadequate, in that the Court improperly reduced Plaintiff’s actual attorney hours, and failed to a “multiplier” to compensate Plaintiff for the contingency risk endured taking the case to trial after almost five years of contested litigation.

The case is currently on appeal at the California Court of Appeal First Appellate District.

Attorneys:

• Plaintiff – J. Gary Gwilliam and Randall E. Strauss of Gwilliam, Ivary, Chiosso, Cavalli & Brewer; Jan C. Nielsen of the Law Offices of Jan C. Nielsen.
• Defendants – Robert S. Shwarts and Erin Connell of Orrick, Herrington & Sutcliffe, LLP

Medical Experts:

• Plaintiff – Paul S. Berg, (psychologist), Dennis Reno, M.D. (diabetes) and Dale Ritzo (treating psychologist)
• Defendants – Bernard Rappaport, M.D. (psychiatrist).

Technical Experts:

• Plaintiff – Jay Finkelman, Ph.D. (human resources standards) and Patrick F. Mason, Ph.D (economist)
• Defendants – Ronald W. Morrell (vocational rehabilitation) and Michael Ward, Ph.D. (economist).