Appellate judges probe 'trial-by-ambush' claim in Olivera employment appeal
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Summary
Appellant argues that trial testimony introduced performance criticisms not disclosed in pretrial materials, prejudicing an indirect-evidence discrimination case; appellee says discovery and internal memos disclosed performance concerns and witnesses were identified.
Christopher Trumby, arguing for appellant Susan Olivera, told the panel that the trial judge allowed testimony suggesting Ms. Olivera "was not a good manager" and that such criticisms were introduced after the plaintiff rested, depriving the plaintiff of notice and the ability to rebut. "We never terminated her," Trumby told the court, emphasizing the employer previously framed the separation as an elimination of the position rather than a termination for cause.
The panel focused on whether the testimony cited by appellant was new at trial or disclosed during discovery and whether impeachment of the CEO's testimony helped or harmed the appellant's case. Appellee counsel Kier Wachterhauser said the record and discovery (including interrogatories and a 30(b)(6) deposition) showed the employer consistently disclosed reorganization and performance-related materials and that contradictions were part of a plaintiff's indirect-evidence strategy.
Judges questioned whether the jury instructions followed the McDonnell Douglas paradigm and whether the late-introduced statements fundamentally altered the legal framework for the jury. The court submitted the case after argument; no ruling was announced at session end.