Following a four-week, virtual trial, Alaska Airlines (Alaska) received a complete defense verdict from a King County Superior Court jury on June 1, 2022. The case offers important takeaways for employers on handling disciplinary action and on trial strategy.
The plaintiff was a 13-year Alaska employee who supervised customer service agents. In 2017, numerous agents came forward to report stories of the plaintiff's inappropriate sexual comments, and a three-week investigation determined that the plaintiff had been making these comments to his subordinates in the workplace for many months. As a result, Alaska terminated the plaintiff's employment.
The plaintiff filed suit against both Alaska and two senior managers involved in the investigation, asserting claims of discrimination based on race and sex, retaliation, and wrongful termination in violation of public policy. At trial, he sought nearly $5 million in damages and repeated his claim that he had never done anything wrong or inappropriate in the workplace and anyone and everyone who claimed otherwise was either lying or out to get him because of his race or sex.
After successful motions for summary judgment and for judgment as a matter of law, just two claims remained for the jury to decide: whether the decisionmakers were significantly motivated by the plaintiff's race (African American) or sex (male) when they terminated his employment. After deliberating for a little under two hours, the jury found unanimously in favor of both Alaska and the remaining personally named manager.
This case presents five important takeaways for employers regarding launching an effective trial strategy:
- Spend the money to video key depositions in the case. The plaintiff was cross-examined largely using deposition clips where he repeatedly stated that he had done nothing wrong during his entire 13-year tenure with the company; or that every female employee who reported something negative about him was lying. Because his statements were statements of a party opponent, all his deposition statements were admissible—regardless of whether they were inconsistent with his trial testimony or not. He presented a very different picture during his deposition than he did at trial. Post deliberations, the jury informed the defense team that their cross of the plaintiff was extremely effective and that he was the worst witness in the case.
- Develop and present a strong theme. It is not enough for defendants—particularly when you are a large company defending against claims brought by one or two [former] employees—to simply say that "…we did nothing wrong here…." Most jurors' initial inclination is to believe that the company treated the employee poorly in order to increase profits or to protect senior management. In this case, the trial team developed the theme that the plaintiff "…refused to listen, refused to learn and refused to change his behavior…" which left the company with no choice but to terminate his employment. This theme allowed the defense to admit that plaintiff had been good at the technical aspects of his job and that many people—including those who handled the decision regarding his termination—liked him. The theme was introduced during opening, addressed by all the key defense witnesses, highlighted by graphics, and reiterated at closing.
- Emphasize accountability both for your own witnesses and for the plaintiff. When preparing witnesses for trial, let them know that it is okay to acknowledge that mistakes happen—because they do! And jurors will excuse this and show grace to a witness, if the witness acknowledges that things could have been handled differently (or better). Alaska's defense witnesses did just that—they acknowledged their humanity and didn't try to cover up or defend their mistakes. In the end, the jurors told the defense team that those witnesses—the ones who were willing to own up to their mistakes—were some of the most credible witnesses of the trial. Similarly, when talking with jurors after the verdict, several jurors said that highlighting the plaintiff's refusal to take accountability for his own actions during closing argument resonated with them. It matched the theme (refusal to listen, refusal to learn, and refusal to change) and showed how the plaintiff's discrimination claims were simply one more attempt to avoid taking responsibility for his actions.
- Be willing to spend the time to prepare witnesses. Witness preparation is perhaps the most important key to a successful outcome at trial. Alaska partnered with its outside counsel to ensure that all the defense witnesses could participate in multiple witness preparation sessions—even their highest-ranking officials. As a result, defense witnesses were ready and well-equipped to handle aggressive cross-examination by the plaintiff's counsel. Some witnesses even commented to the trial team after the fact, "wow, our prep sessions were way harder than that. And I'm so thankful they were!"
- Be flexible. By focusing on the jurors' reactions to the evidence and the nuances of the plaintiff's presentation of his case during trial—as opposed to simply relying on how the plaintiff had presented his case through summary judgement—the trial team was able to quickly pivot its presentation. As a result, the team chose not to call several witnesses who originally had been on the team's witness list and were thought to be critical to the case. This approach saved time but, most important, significantly disrupted the plaintiff's counsel's strategy. By adjusting to the needs of the case as trial evolved, the trial team was able to present a stronger case in a shorter period, as confirmed by the feedback from the jurors. This meant cutting witnesses who had been preparing for weeks to testify, which proved to be a difficult but important decision.
Alaska was represented in this matter by a Davis Wright Tremaine trial team that included Portia Moore, Giancarlo Urey, Sarah Ames Benedict, Rebecca Shelton, and Eric Marsh from the firm's Seattle, Los Angeles, and Portland offices. Jordann Vandor and Renee March also provided substantial support.