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Mangano v. Verity

November 16, 2009

THOMAS MANGANO, PLAINTIFF AND APPELLANT,
v.
VERITY, INC., DEFENDANT AND RESPONDENT.



(Santa Clara County Super. Ct. No. CV079221). Honorable John F. Herlihy.

The opinion of the court was delivered by: Mihara, Acting P. J.

CERTIFIED FOR PUBLICATION

Appellant Thomas Mangano brought an action for retaliatory termination in violation of California‟s Fair Employment and Housing Act (FEHA) (Gov. Code § 12900 et seq.) against respondent Verity, Inc. (Verity) after Verity terminated his employment. The trial court granted two of Verity‟s in limine motions to exclude certain evidence. Verity prevailed at the jury trial, and the trial court denied Mangano‟s new trial motion, which was based on his claim that the trial court had erroneously granted Verity‟s in limine motions. On appeal, Mangano renews his contention that the trial court prejudicially erred in granting Verity‟s in limine motions to exclude certain evidence. We reject his contentions and affirm the judgment.

I. Background

In September 2005, Mangano filed an action against Verity alleging disability discrimination. On November 17, 2006, the superior court entered judgment for Verity in that action after granting Verity‟s summary judgment motion.*fn1 On December 11, 2006, Verity terminated Mangano‟s employment.

At the time it terminated Mangano‟s employment, Verity presented Mangano with a letter proposing "terms of the separation agreement... which Verity... is offering to you to aid in your employment transition." In the proposed separation agreement, Verity offered to pay Mangano a lump sum equivalent to 17 weeks of salary in exchange for Mangano‟s agreement to a "Nonsolicitation" clause, a "Nondisparagement" clause, a "Release" clause, an "ADEA Waiver" clause, a "Section 1542 Waiver" clause, and a "No Voluntary Adverse Action" clause.

The proposed "Release" clause read: "Except as otherwise set forth in this Agreement, in exchange for the consideration under this Agreement to which you would not otherwise be entitled, including the Severance Payment, you hereby generally and completely release the Company... from any and all claims, liabilities and obligations, both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring at any time prior to and including the date you sign this Agreement. This general release includes, but is not limited to: (1) all claims arising out of or in any way related to your employment with the Company or the termination of that employment;... (4) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; (5) all claims made in the lawsuit filed by you against Verity, Inc. and Steven R. Springsteel (Santa Clara Superior Court Case No. 1-05-CV-048586) ("Prior Lawsuit‟); and (6) all federal, state, and local statutory claims arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990 (as amended),... and the California Fair Employment and Housing Act (as amended).... Other than the Prior Lawsuit, you represent that you have no lawsuits, appeals, claims or actions pending in your name, or on behalf of any other person or entity, against the Company or any other person or entity subject to the release granted in this paragraph."

Mangano declined the proposed separation agreement. In February 2007, Mangano filed this action against Verity for retaliatory termination in violation of FEHA.*fn2 In May 2008, Verity filed a group of in limine motions. In Limine Motion No. 1 (Motion 1) sought an order excluding evidence of Mangano‟s "purported disability" and evidence of Verity‟s "allegedly discriminatory statements or acts regarding Mangano‟s actual or perceived disability." Verity claimed that this evidence was irrelevant and that it should be excluded under Evidence Code section 352. In Limine Motion No. 3 (Motion 3) sought exclusion of the proposed separation agreement under Evidence Code section 1152. The trial court granted both motions.

At trial, Mangano contended that he had been fired in retaliation for filing and prosecuting his 2005 lawsuit against Verity.*fn3 Verity contended that Mangano‟s employment had been terminated because his job responsibilities had gradually been eliminated for legitimate business reasons after Verity merged with another company in late 2005. Mangano claimed that Verity‟s asserted justification for his termination was a pretext for retaliation.

The jury‟s special verdict resolved a single question: "Was Thomas Mangano‟s opposition to what he reasonably believed to be improper treatment in the work place by filing a lawsuit against Verity the motivating reason for Verity‟s decision to terminate his employment?"*fn4 The jury answered "No."

Mangano moved for a new trial on the ground that the trial court had erred in granting Motion 1 and Motion 3. The court denied the motion and entered judgment on the jury‟s verdict in favor of Verity. Mangano filed a timely notice of appeal.

II. Discussion

A. Motion 1

In Motion 1, Verity sought exclusion of evidence of Mangano‟s "purported disability" and of Verity‟s "allegedly discriminatory statements or acts regarding Mangano‟s actual or perceived disability." Mangano‟s "conditional non-opposition" to Motion 1 consisted of an agreement to stipulate that he had filed an action against Verity for disability discrimination and harassment and that Verity was aware of that lawsuit, and a request that evidence of his disability be admitted solely as relevant to mitigation of damages. Mangano‟s attorney stated: "I‟m okay to keep out the specific allegations of the ‟05 ...


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