Tech school department head claims defamation and retaliation. $914K. Alameda County.
Head of electronics department is not interviewed for dean position; later threatens legal action. Claims retaliation and defamation after he is fired.
- Case Name: Duong v. ITT Educational Services, Inc., et al.
- Court and Case Number: Alameda County Superior Court / RG 14724442
- Date of Verdict or Judgment: Friday, July 01, 2016
- Date Action was Filed: Thursday, May 08, 2014
- Type of Case: Defamation, Employment
- Judge or Arbitrator(s): Hon. Julia Spain
Plaintiffs: Hung "Henry" Duong
Defendants: ITT Educational Services, Inc.Allison Hopkins (fka Allison Hawkins)Sam Russell
- Type of Result: Jury Verdict
- Gross Verdict or Award: $914,150 per plaintiff's counsel; $862,381.25 per defense counsel.
Award as to each Defendant:
ITT Educational Services, Inc. is liable for all damages, as the conduct of the individual defendants was found to be within the course and scope of employment.
Per defense counsel:
$207,075 against ITT for retaliation.
$155,306.25 against Allison Hopkins and ITT for defamation.
$264,150 ($89,150 past economic; $175,000 future economic).
Per defense counsel:
Reduced to $231,131.25 to account for verdict in favor of Sam Russell.
Per defense counsel:
$150,000 past; $0 future (reduced to $131,250 to account for verdict in favor of Sam Russell.)
$500,000 against ITT.
- Trial or Arbitration Time: 4 weeks.
- Jury Deliberation Time: 2 days on liability and damages. 1 hour on punitive damages.
- Jury Polls: The jury was given a special verdict with over 30 questions. Polling varied based on each question.
- Post Trial Motions & Post-Verdict Settlements: Plaintiff will move for attorneys' fees and costs under the Fair Employment and Housing Act. Sam Russell will move for costs. ITT and Allison Hopkins will move for judgment notwithstanding the verdict and for a new trial.
Attorney for the Plaintiff:
Law Office of Kevin Schwin by Kevin Schwin, Fresno.
Peck Peterson LLP by Elizabeth "Lisa" Peck, Santa Cruz.
Attorney for the Defendant:
Ogletree Deakins Nash Smoak & Stewart by Tom McInerney and Cara Barrick, San Francisco.
Defendant's Medical Expert(s):
Howard Terrell, M.D., forensic psychiatry, Fresno.
Plaintiff's Technical Expert(s):
Phil Allman, Ph.D., forensic economics, Oakland.
Rick Sarkisian, Ph.D., vocational rehabilitation, Fresno.
Defendant's Technical Expert(s):
Ronald Schmidt, forensic economics, Hawai'i.
Ronald Morrell, vocational rehabilitation, San Jose.
Facts and Background
Facts and Background:
Plaintiff, Henry Duong, was born in Vietnam in the late 1950s. He came to the United States as a refugee of the Vietnam War. He subsequently learned to speak English and attained a Master’s degree in Electrical Engineering from San Jose State University.
Mr. Duong worked for ITT Educational Services for nearly 7 years with consistently satisfactory performance evaluations and two promotions. His position at the time of termination was Department Chair of the Electronics Department. In October 2012, Mr. Duong sought a promotion to the Dean position. Instead, ITT hired Pha Mouavangsou as the Dean.
In January 2013, Mr. Duong’s supervisor, Mr. Mouavangsou, met with him to issue a write-up for three instances of leaving work early without permission, which the plaintiff attributed to simple miscommunication. Plaintiff testified that he indicated he felt this was harassment and mentioned he believed defendant Allison Hopkins had discriminated against him previously by not interviewing him for a promotion.
Mr. Mouavangsou testified that he informed Ms. Hopkins that Mr. Duong reported to him that Mr. Duong felt that she was harassing Mr. Duong.
Mr. Mouavangsou testified that Ms. Hopkins called defendant Sam Russell about this, and that during the call Ms. Hopkins expressed concern about what was going to happen to her and what the company was going to do. Ms. Hopkins and Mr. Russell testified that this phone call never occurred.
In April 2013 another employee, Dawn Lawrence, approached Ms. Hopkins and divulged that Mr. Duong had been discussing taking legal action regarding Ms. Hopkins’ failure to interview him for the Dean position, among other things. On April 17, 2013 defendant Allison Hopkins sent an email to defendant Sam Russell and HR titled “Lawsuit Threat” discussing what Ms. Lawrence had reported. The email recounted that Mr. Duong told Ms. Lawrence that he was finding out if he had a case against the school and against her personally for not getting an interview for the Dean position, and that Mr. Duong went to the labor board to determine his rights for the demand of hours.
Thirteen days later, on April 30, 2013, Ms. Hopkins accused plaintiff of openly admitting in a meeting to engaging in a practice of having another instructor, Hector Gonzales, sign blank attendance revision (AR) forms that Mr. Duong would later fill out in Mr. Duong’s own handwriting. Ms. Hopkins described this as “very shady and out of compliance” and labeled this as an act of "falsification." Ms. Lawrence and Mr. Mouavangsou testified at trial that Mr. Duong made this admission at the April 30, 2013 meeting, and the jury found that Mr. Duong had indeed admitted to being in possession of pre-signed blank student attendance revision forms. Both Ms. Lawrence and Mr. Mouavangsou also admitted that Ms. Hopkins told them they were fired on multiple occasions as some kind of “joke.” Ms. Lawrence admitted she feared for her job at the time.
Plaintiff denied admitting that Mr. Gonzales signed blank AR forms to be filled out later by somebody else. Hector Gonzales corroborated this as Mr. Gonzales testified he never signed any blank AR forms. In addition, the defendants did not have any blank forms signed by Mr. Gonzales nor do they have any forms signed by Mr. Gonzales and filled out in somebody else’s handwriting. No such forms were put in evidence. According to Ms. Hopkins, she directed Mr. Duong to destroy any pre-signed AR forms.
On May 1, 2013, Mr. Duong filed a complaint using the company’s employee alert line, alleging discrimination based upon his age. ITT commenced an investigation into Mr. Duong’s complaint, as well as the allegations that he had violated company policies. ITT concluded that Mr. Duong’s complaint was unfounded. In June 2013, ITT terminated Mr. Duong’s employment.
Defendants contended at trial that the discrepancies with the forms did not matter because Mr. Duong had admitted that there were pre-signed forms, which they considered an independent basis for termination. The jury rejected this defense and found that ITT would not have fired Mr. Duong at the time merely for admitting that there were pre-signed forms.
On May 9, 2013, Ms. Hopkins further accused Mr. Duong of a separate and unrelated act of falsification of student attendance records. Ms. Hopkins claimed Mr. Duong falsely marked students in a particular class as being present so as to avoid them from being dropped from the course pursuant to the “21 day rule” – a policy whereby a student will be dropped if they do not show up to class for 21 days. This particular class was taught by Hector Gonzales. Mr. Duong had nothing to do with marking students present in that class. However, Ms. Hopkins claimed to have believed Mr. Duong was involved in this alleged falsification because she claimed that a substitute taught the class and when a sub teaches, the department chair (Mr. Duong) is usually responsible for entering the attendance.
Dawn Lawrence, again at the request of Ms. Hopkins, corroborated that a substitute taught the class, but could not identify who the sub was. Hector Gonzales testified it was not a sub who taught the class; it was him. This was corroborated by evidence that Mr. Gonzales entered the attendance for that class on that day, along with additional evidence that a substitute never submitted a request to get paid for subbing on that day. Defendant Sam Russell contended that he investigated the allegations of falsification prior to Mr. Duong’s termination. He ultimately accused Mr. Duong of using pre-signed AR forms to falsely mark students present to avoid them from being dropped per the 21 day rule. He sent an email to HR with his conclusions indicating, “I think we have enough for termination …”
Even though the issue with "pre-signed" forms had nothing to do with the unrelated issue of students allegedly being falsely marked present, the jury found that defendants Hopkins and Russell conflated the two issues by falsely accusing Mr. Duong of using pre-signed forms to falsely mark students present to avoid them from being dropped under the 21 day rule. Defendant’s own attendance reports proved these accusations to be false. In addition, despite accusing Mr. Duong of somehow being involved in falsely marking students present in this particular class, nobody ever changed the official attendance record for the class to show any students were absent. Defendants admitted Hector Gonzales was equally culpable in the alleged acts of falsification. However, Mr. Gonzales was not fired. He continued working for ITT for several months after Mr. Duong's termination until he resigned. His personnel file indicated he was eligible for re-hire. Mr. Duong was not eligible for re-hire.
That defendants unlawfully retaliated against and defamed Mr. Duong by fabricating accusations of falsification of student attendance records in retaliation for Mr. Duong's "Lawsuit Threat" and other activities protected under the Fair Employment and Housing Act.
That ITT fired Mr. Duong for legitimate, non-retaliatory reasons, because he had admitted to possessing pre-signed request for attendance revision forms and had cancelled classes without proper authorization.
Defendants had a good faith belief in the truth of these statements.
Defendants further contended that all statements that were the subject of the defamation cause of action fell within the common interest privilege, and that certain statements were non-actionable opinion.
Injuries and Other Damages
Physical Injuries claimed by Plaintiff:
Lost earnings and benefits. Emotional distress.
- Special Damages Claimed - Past Lost Earnings: $89,150 per plaintiff's counsel; $89,409 per defense counsel.
- Special Damages Claimed - Future Lost Earnings: $369,123 per plaintiff's counsel; $605,843 per defense counsel.
Per plaintiff's counsel:
Plaintiff served a 998 offer in January 2015 to settle the case for $1,000,000 with each side paying its own costs and attorneys' fees. Defendants' best settlement offer was $5,000.
Per defense counsel:
Plaintiff’s last demand was $3 million, not $1 million.
The jury found in the special verdict that Mr. Duong admitted to having pre-signed forms.
Judge Spain has not entered judgment yet. The jury found in favor of defendant Sam Russell. Accordingly, the report’s summary of damages awarded is incorrect. However, the plaintiff disputes whether damages that the jury would have otherwise attributed to Sam Russell can still be awarded despite his complete defense, so the parties are currently briefing this issue and a hearing is set for August 10. Defendants also intend to file post-trial motions (i.e., motion for judgment notwithstanding the verdict and motion for new trial).