Do Witnesses Don Masks? Tesla Trial Date Cues Virus Queries

By Hannah Albarazi
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Law360, San Francisco (May 11, 2020, 9:13 PM EDT) -- Tesla and a former factory worker alleging racial discrimination spoke with a California federal judge Monday about whether their June trial should be pushed to September, with the parties raising concerns about what a trial in the age of COVID-19 looks like — including whether testifying witnesses would wear masks.

Former Tesla Motors worker Owen Diaz, who alleges the electric vehicle company's Northern California factory was a hotbed of racial discrimination against African Americans reminiscent of the Jim Crow era, had been planning to face off with Tesla at trial June 8, but U.S. District Judge William Orrick said Monday that's not likely to happen.

At a pretrial videoconference, Judge Orrick said it's likely COVID-19 will push the trial to late September. He said there's a slight chance the trial would proceed as scheduled, but with heightened safety precautions.

"The court is still working through how we will reopen, assuming that we are allowed to do that, and how we will have trials," Judge Orrick said.

But the judge noted that when trials do start up again, "everything is going to be different."

Counsel for Diaz asked the judge on how the court plans to address witnesses' concerns about the safety of going to the courthouse and whether people would wear masks during trial.

Judge Orrick said he's prepared to do what it takes to ensure people's safety and a fair trial. He said he expects that people will be spaced around the courtroom differently than before the pandemic, and that counsel may need to make some adjustments, such as addressing the jury and witnesses from a greater distance.

"There may be a lot that's different," Judge Orrick said.

Diaz, his son Demetric Di-az and Lamar Patterson lodged their suit in California state court in 2017, saying that their time working at the Tesla factory was a "scene straight from the Jim Crow era."

After the case was removed to federal court, Judge Orrick sent Patterson's claims to arbitration. The father and son then filed a 16-count amended complaint targeting Tesla and its staffing agencies.

The pair claim they felt threatened while working at Tesla in 2015 and 2016, and that their supervisors did nothing to address their concerns. They say their supervisors and coworkers regularly used the N-word, with one supervisor allegedly saying it more than 60 times and telling Diaz to "go back to Africa." Diaz also reported finding a cartoon at work that depicted "a black face person with a bone in his hair with the caption that read, 'Booo.'"

Last year, defendants Tesla, staffing agency CitiStaff Solutions Inc. and staffing liaison nextSource Inc. each asked Judge Orrick to grant them summary judgment on nearly all of the claims. But Judge Orrick ordered the companies to trial, finding that a reasonable jury could conclude the defendants didn't do enough to redress the allegedly hostile work environment. 

In March, CitiStaff Solutions reached a settlement with Diaz and exited the case. NextSource was terminated as a defendant, leaving just Tesla to face Owen's claims. The following month, the parties stipulated the dismissal, with prejudice, of all claims brought by Demetric Di-az.

On Monday, Judge Orrick told the parties he didn't think the trial would be held in June as scheduled, and instead suggested Sept. 28 as a potential trial date. He also expressed his hope that the parties might be able to reach an accord before then.

"I think there may be jury trials in June in San Francisco. And if there are, I don't think civil trials will be among them," Judge Orrick said, noting that criminal trials will take precedent.

But the judge was optimistic that clarity would soon be coming, saying, "I think we'll know in the next week or so what the plan is going to be."

Representatives for the parties did not immediately respond to requests for comment Monday.

Diaz  is represented by Lawrence A. Organ and Cimone Annmarie Nunley of the California Civil Rights Law Group and John Bernard Alexander III of Alexander Krakow Glick LLP.

Tesla is represented by Tracey Adano Kennedy and Patricia Melody Jeng of Sheppard Mullin Richter & Hampton LLP.

The case is Di-az et al. v. Tesla Inc. et al., case number 3:17-cv-06748, in the U.S. District Court for the Northern District of California.

--Additional reporting by Dave Simpson. Editing by Breda Lund.

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Case Information

Case Title

Di-az et al v. Tesla, Inc. et al

Case Number



California Northern

Nature of Suit

Civil Rights: Jobs


William H. Orrick

Date Filed

November 22, 2017

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