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On Nov. 1, 2001, a jury in state court in El Paso, Texas, awarded a former employee of the Toro Co. $30.5 million in an employment retaliation case, including $30 million in punitive damages. The plaintiff was represented by John A. Wenke, George Andritsos and John Mobbs of El Paso. Toro was represented by Carr, Flora & Carroll, also of El Paso. Steven Jones v. Toro Co., No. 2000-2429. In presenting an employment law case to a jury, a trial lawyer has two simple goals: Make the employer look as evil as possible, while portraying the client as the good guy. From my standpoint, the second goal was easy in this case. Steven Jones was a 15-year veteran of Toro with an excellent work history. Three days after suffering second-degree burns to his hand at work, his employment was terminated. No matter how unfair a termination is, however, you still need to prove that the employer intended to discriminate based on a prohibited reason. While “smoking guns” are rare, this case may be an exception. That’s because of certain information obtained during discovery. Plaintiff Jones was initially told he was fired for refusing to take a drug test after he suffered his work injury. Employees for the company doctor, however, could only testify that Jones left the facility without receiving treatment or taking a drug test, but there was no evidence that he refused a drug test. Toro knew this and the human resources manager altered the reason for termination during his deposition, stating that Jones was fired because he failed to take a drug test the same day as his accident. We now needed evidence to show that this reason for the termination was pretextual. In discovery we requested a list of every employee who reported an injury during the last three years. We then requested the drug-test result for every injured Toro employee during the last three years. Obviously, if every injured employee indeed took a drug test the same day as the accident, Toro’s policy was uniformly applied and our case would be severely weakened. As luck would have it, Toro’s discovery responses indicated that several employees took their drug test several days after their injury, and most shocking, 59 injured Toro employees never took a drug test at all. We now had evidence to attack Toro’s proffered reason for Jones’ termination. As a former prosecutor, I like trying to damage the employer’s credibility immediately by calling the defendant’s decision-maker as my first witness. The fact that this witness is adverse further permits me to ask leading questions and establish the theme of my case through a major defense witness. In this case, the HR manager testified as expected, stating that he had no choice but to terminate Jones’ employment because he failed to take a drug test on the same day as his accident. Once the magical words were spoken, a list of the 59 injured Toro employees who failed to take a drug test was offered and admitted into evidence. Upon hearing this, some of the jurors audibly gasped aloud. The witness stumbled in trying to explain these embarrassing inconsistencies, but it was too late. The final damaging shot came from a former Toro supervisor. In most employment cases, it’s good to locate former employees who have incriminating evidence about the defendant. In our case, we found Jones’ former supervisor at Toro. Although he had no direct knowledge of Jones’ termination, he was able to testify that he was instructed by the same HR manager to watch closely other workers’ compensation claimants, and to document problems that would justify a subsequent termination. At this point, several jurors were shaking their heads in disbelief. We now had evidence that the decision-maker had a negative attitude toward the protected group. We were able to achieve our goals of making Toro look bad, and Jones look like the good guy that he was. A unanimous jury found that Jones was fired because he made a workers’ compensation claim, and awarded him $475,000 in compensatory damages and $30 million in punitive damages. The jury deliberated a mere 30 minutes before returning its punitive damage award. In my opinion — and apparently the jury’s as well — the Toro Co. paid dearly for its deception.

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