Tesla Thread

[tater]

They also count on settlement simply because it is just cheaper. This encourages grifters, though. It would be nice if the process was really finding the truth, vs finding a financial expedient

Every single large company gets hit with these sorts of claims all the time.

[mikegarrison]

2 hours ago, tater said:

all the incentive structures are for HR to stomp this, honestly to the point of over correction in many cases

Are they, though, at Tesla? How do you know?

Just now, tater said:

They also count on settlement simply because it is just cheaper. This encourages grifters, though. It would be nice if the process was really finding the truth, vs finding a financial expedient

Every single large company gets hit with these sorts of claims all the time.

According to the video posted by Joe, Tesla went to arbitration twice, and the arbiters found in favor of the complaints. Arbitration is usually seen as an industry-friendly process.

[JoeSchmuckatelli]

12 minutes ago, tater said:

Every single large company gets hit with these sorts of claims all the time.

It is true that companies are routinely hit with employment discrimination suits.  What isn't common is the specific allegations in the video I posted.  Certainly, in a public gas station bathroom, it's not uncommon to find racist graffiti... but less so at a workplace.  GM had a similar incident

GM on graffiti at plant: 'It's unacceptable.' (newschannel5.com)

and had this to say:

Quote

We have zero-tolerance for racist or discriminatory behavior, and we are outraged that any of our employees would be subjected to harassment. It’s unacceptable and we are going to drive it out of the workplace. We are investigating and will fire the person or persons responsible.

 

The allegations further claim that supervisors were the source of 'N-Word' usage; and this is uncommon.  Similarly the allegation of physical segregation is rare.

FWIW, I served for a time as a defense attorney for large companies and am quite familiar with what Tater is saying.  And, for the most part, he is correct.  The vast majority of the cases are, indeed, overstated and especially so for a popular company like Tesla.  Plaintiff's counsel will also try to make their cases seem especially egregious and play to public sympathies to the press.  Doesn't actually lend credence to their case - but is a tactic for swaying public opinion and trying to force a favorable settlement, even when the claims are fairly weak.

12 minutes ago, tater said:

It would be nice if the process was really finding the truth, vs finding a financial expedient

This is ultimately one of the factors of the 'legal economy' that soured me on the practice of law.  I'm someone who believes strongly in fighting for what is right... but more often than not what wins is what is expedient or pragmatic.

 

Edited February 20, 2022 by JoeSchmuckatelli

[tater]

46 minutes ago, JoeSchmuckatelli said:

t's not uncommon to find racist graffiti... but less so at a workplace. 

Unless there is video of the person applying said  graffiti I'd assume it's like many such accounts on the news—done by the victim. If there is possible huge financial reward, it might be the default assumption sans proof otherwise. Ditto claims of supervisors—I assume they have video of it actually occurring then? Cause, otherwise, it's a claim with zero evidence.

No, didn;t watch MSNBC video

 

[JoeSchmuckatelli]

Just now, tater said:

No, didn;t watch MSNBC video

You don't really need to.  It's entirely a plaintiff's piece, playing to a sympathetic audience.  Still, it lays out what the claims are for anyone who's stumbled upon the news.

[CatastrophicFailure]

1 hour ago, tater said:

Cause, otherwise, it's a claim with zero evidence.

This. The allegations are egregious and extreme, not at all something one expects to find in this day and age, and especially in a place like California. But I’ve seen little in the way of actual evidence. Allegations like these should also be easy to prove, if they are true. 

[tater]

It’s not a lot to demand actual evidence. When the possible outcome involves really large sums of money, there are powerful incentives to make things up. Sucks if there are real abuses, since people’s words are not enough, but they are not enough. 

[JoeSchmuckatelli]

27 minutes ago, tater said:

It’s not a lot to demand actual evidence. When the possible outcome involves really large sums of money, there are powerful incentives to make things up. Sucks if there are real abuses, since people’s words are not enough, but they are not enough. 

Well - you know... that's what Juries are for: the "Sniff" test.  If it smells fishy, they're pretty good at sussing that out.

Edited February 20, 2022 by JoeSchmuckatelli

[tater]

11 minutes ago, JoeSchmuckatelli said:

Well - you know... that's what Juries are for: the "Sniff" test.  If it smells fishy, they're pretty good at sussing that out.

In criminal trials the standards are higher than civil. Given how totally radioactive this particular claim is evidence should be required to even seriouslyconsider it (which shows how absurd the idea of it somehow being widespread that it's literally among the what, 4 worst things you can say about someone, and the other 3 are heinous physical crimes (have a seat over there ).

Note that a few decades ago every human  was not holding a recording device, so the evidence required would be different. But right now, recording is trivial.

[tater]

A jury or judge will presumably decide, but if I was on the jury, I would not take any claim as credible without evidence. For this, or for any actual crime, either. I've sat on grand juries before, been an alternate in a criminal trial, I took/take the prosecution's burden very seriously, and for claims like this one, if I was on a civil jury I'd do the same.

The person making the claim has the burden of proof in all things.

[JoeSchmuckatelli]

5 minutes ago, tater said:

evidence should be required to even seriouslyconsider it

Well - one of the things companies can do is a Motion to Dismiss.  The plaintiff has to show they actually have a claim with the minimum of facts to be able to present to a jury.  Does not mean the plaintiff will succeed - but if its wholly made up?  Gone.  (Mind you, that's a pretty low bar).

OTOH - lots and lots of spurious claims do get dismissed.  I had one where we discovered the basis of the claim was totally fraudulent, and not only did we get the claim dismissed, we got sanctions against both the client and the plaintiff's counsel.  (Sweet bit of investigative work on my part, if I do say so myself).

[mikegarrison]

Wow.

Look, @tater, we all can see what is going on here. You are so hard over on the idea that this can't possibly be true that you are now saying the complainants either made the whole thing up or even that they drew racist graffiti on the bathrooms just in order to sue about it. That's not cool.

Yes, of course, people can make stuff up. It has happened before. But the vastly bigger problem is usually when people come out and say what is going on, but nobody wants to believe them. Very few people actually make up this stuff, and as Joe says, it is often discovered pretty quickly if they do. And has he also alludes to, there are some pretty severe penalties if you get caught doing that.

What's more, when there is a whole chain of similar complaints, that's another sign that this stuff really is going on.

1 hour ago, CatastrophicFailure said:

This. The allegations are egregious and extreme, not at all something one expects to find in this day and age, and especially in a place like California. But I’ve seen little in the way of actual evidence. Allegations like these should also be easy to prove, if they are true. 

It's often not so easy. Not unless somebody recorded it. How do your prove what somebody said to you in private?

Unless it is recorded, the best bet for proving it is to either find that multiple people are claiming pretty much the same thing or you find a witness that is willing to confirm or deny it.

[tater]

9 minutes ago, mikegarrison said:

Wow.

Look, @tater, we all can see what is going on here. You are so hard over on the idea that this can't possibly be true that you are now saying the complainants either made the whole thing up or even that they drew racist graffiti on the bathrooms just in order to sue about it. That's not cool.

Yes, of course, people can make stuff up. It has happened before. But the vastly bigger problem is usually when people come out and say what is going on, but nobody wants to believe them. Very few people actually make up this stuff, and as Joe says, it is often discovered pretty quickly if they do. And has he also alludes to, there are some pretty severe penalties if you get caught doing that.

What's more, when there is a whole chain of similar complaints, that's another sign that this stuff really is going on.

It's often not so easy. Not unless somebody recorded it. How do your prove what somebody said to you in private?

Unless it is recorded, the best bet for proving it is to either find that multiple people are claiming pretty much the same thing or you find a witness that is willing to confirm or deny it.

I'm saying exactly that. It is so trivially easy to fake, that the burden of proof requires forensic evidence to demonstrate the veracity of the claim. Everyone believes the claims as a default. The famous case in Chicago being a recent example where people immediately jumped on the bandwagon for a claim that was self-evidently loopy (and turned out to be a hoax by the "victim" who thought he would gain by the claim).

All I ask is that they prove their claim. No, their word is not enough.

I would do the same for a criminal charge on a jury, the prosecution would have to prove the claim was true, I'd rather let a person I think is guilty free, than let an unproved claim be punished.

13 minutes ago, mikegarrison said:

It's often not so easy. Not unless somebody recorded it. How do your prove what somebody said to you in private?

If it was said in private, you're SOL. Record it.

If only everyone had an HD recoding device on them literally always, oh, wait.

[mikegarrison]

1 minute ago, tater said:

If only everyone had an HD recoding device on them literally always, oh, wait.

In some states (mine is one), one-party consent for recording is not legal. But in most others it is. (Also, I don't have a smart phone and often don't carry a phone of any kind. Just a personal quirk. But it's not true that *everybody* has one.)

[tater]

2 minutes ago, tater said:

You are so hard over on the idea that this can't possibly be true

BTW, I am NOT saying this ^^^^^

I am saying I do not consider it to be true for the sake of punishment/etc without actual evidence.

I never said it was not possibly true, I said that to punish anyone for it (person, or company), it would require proof.

It could in fact be true, AND they could not be able to prove it. Tough. Punishment requires proof. They can make the claims sans evidence all they like.

Just now, mikegarrison said:

In some states (mine is one), one-party consent for recording is not legal. But in most others it is. (Also, I don't have a smart phone and often don't carry a phone of any kind. Just a personal quirk. But it's not true that *everybody* has one.)

Wow. My dad  and father in law even have them (86 and 91 respectively)—though they could not record something with it to save their lives, lol, not even with a real-time consult from me or my son.

Regardless of legality, the claim would have far more weight with a recording, legality aside. The civil claim might not admit it as evidence, but the company would settle to make it go away, instantly I bet.

Truth and legal responsibility are not the same thing. The latter IMHO requires proof. Using a claim to attack them in the court of public opinion is fine, if they want a payday, bring proof.

[CatastrophicFailure]

21 minutes ago, mikegarrison said:

It's often not so easy. Not unless somebody recorded it. How do your prove what somebody said to you in private?

Racist graffiti should be easy to prove. Forced segregation of multiple people should be really easy to prove. 
What I am saying is simple; show me evidence. 
Thus far I have not seen any related to this case, just allegations. 
 

And yes, these days “everyone” has a smart phone, even if that is not, in point of fact, *everyone.*

[tater]

1 minute ago, CatastrophicFailure said:

Racist graffiti should be easy to prove.

The simple solution is to cover the facility with HD cameras. Maybe all the employees have to wear devices to ping their location at work. Something appears, go over the vid and employee locations, find out who did it. Course now the employees have the bosses knowing exactly how long they are in the bathroom, getting some water, etc.

Unfortunate that this would be the sort of workplace that would result, IMO.

[tater]

This particular situation requires proof because of how bad the claim reads in modern society. Functionally, it's no worse than many other claims, ageism, etc, but it is at a societal level in reality.

It's literally number 3 or 4 in the top 4 list of things you could claim someone is to cause them harm. The others involve the claim the person/organization physically harmed people at the highest levels of harm possible.

Calling someone one particular word is in the same category (lesser, but up there) as murder/etc in terms of reputational risk to the accused.

If this goes to court it likely gets more press attention than the press has wondered about who is in Ghislaine Maxwell's black book (which seems to be mostly crickets). Hence in my top 4, this might be 3, to Epstein, et al's 4.

[mikegarrison]

47 minutes ago, tater said:

The simple solution is to cover the facility with HD cameras. Maybe all the employees have to wear devices to ping their location at work. Something appears, go over the vid and employee locations, find out who did it. Course now the employees have the bosses knowing exactly how long they are in the bathroom, getting some water, etc.

Unfortunate that this would be the sort of workplace that would result, IMO.

Uh, no, adding cameras to the restrooms is not acceptable to most people.

[mikegarrison]

Hmm. What I didn't realize before is that this lawsuit is not being brought by Tesla workers. It is being brought by California’s Department of Fair Employment and Housing, which has some significant consequences, none of them good for Tesla.

Tesla workers have mostly signed agreements that they will bring any disputes to arbitration rather than the court, but the state has no such obligation. And of course the state has far more resources to pursue a lawsuit than individual workers would have. Also, the fact that the state is bringing the lawsuit would indicate that they have done their own investigation already and have a fairly high level of confidence they can prove their case.

According to Tesla's blog post on the subject, they say the DFEH has been investigating the claims for three years now. Tesla also says the claims are for incidents that allegedly happened between 2015 and 2019. But the state responded that the behavior goes back farther than 2015 and also that they have continued to receive complaints in the years since 2019.

Edited February 20, 2022 by mikegarrison

[JoeSchmuckatelli]

@taterI hear your concern about false claims but I think you would force an almost impossible standard on someone subject to harassment.

Think about the world that would be: some people feeling they have to record every encounter they have with others, some people fearing that every interaction will be recorded and possibly used against them... It's dystopian.

The fact is that testimony is evidence.  You brought up criminal law earlier.  The person who witnessed a crime (but did not record it) is still a valid witness.  Simply relating what they saw is legally cognizable. The weight of how compelling witness testimony is compared to other evidence - whether physical, recorded or otherwise - is a judgment call. 

Juries are actually pretty good at this.  They can listen to the respective stories, judge the evidence and decide who is the most credible.  

 

All of which is to say that

• witness testimony is admissible without corroborated support.
• Forcing people to have an overly high bar to even bring a claim (credible or not) is a bad thing. 
• People are good at weighing different testimony and other evidence and making judgments about the credibility and veracity of the evidence 

... 

 

 

 

... 

 

Edited February 20, 2022 by JoeSchmuckatelli

[tater]

9 minutes ago, JoeSchmuckatelli said:

@taterI hear your concern about false claims but I think you would force an almost impossible standard on someone subject to harassment.

"Proof" is an impossible standard? The standard needs to be actual evidence, or you can't possibly tell real claims from fake claims.

I consider this true of all claims. A large % of people consider magical claims real, and that they have special knowledge of the universe. Those are exceptional claims that require exceptional evidence. These claims are—compared to the creation of the universe—pretty mundane. I don't require special, exceptional proof, just actual proof.

My default is the same as the justice system, I consider the accused innocent—that the claims are in fact false—until proved true.

 

[JoeSchmuckatelli]

58 minutes ago, tater said:

standard needs to be actual evidence,

So you discount testimony as Evidence?  Boeng approves. 

[tater]

15 minutes ago, JoeSchmuckatelli said:

So you discount testimony as Evidence?  Boeng approves. 

If it is a claim vs a counter claim, how can you tell which claim is true sans actual objective evidence? Personal testimony by third parties is notoriously unreliable, and testimony by 2 people both involved with something to gain/lose are not even remotely reliable.

And I don't care if Boeing, Amazon, Microsoft, et al approve. Doesn't matter what the company is, or the person if an individual. I think claims that result in reputational harm should require objective evidence to be considered likely true. testimony of multiple people on the scene of some event would be possible, for example, "I saw X actually write a slur on the bathroom wall with a sharpie." Or "I was in the room when he called so and so this word."

Just as I think that criminal cases should require objective evidence as well. The guy charged with some serious crime might be a known bad guy, but that doesn't justify railroading him in the particular case in question if the evidence doesn't exist for that particular charge.

I don't have a dog in this fight other than thinking that due process is a good thing, and people should not have their lives ruined by mere claims.

 

[JoeSchmuckatelli]

1 hour ago, tater said:

due process is a good thing,

Okay - so I think I'm reading that you don't discount witness testimony out of hand, but think that there should be reasonably good standards before the evidence can be presented.  This actually happens in the law.  It's part of why it can take years from the filing of a suit to the trial. 

You can take the Aubrey case - evidence of the prior racist behavior of the perpetrators wasn't allowed in the trial where the jury was tasked with determining whether a crime occurred or not.  That would have been unduly prejudicial against the accused. However, in the sentencing phase - after guilt is established - the prior racist stuff comes in to determine if it was more than a simple crime, but also a hate crime under the statute. 

There is a level of evidentiary rigor required by courts - however I think you are conflating the complete lack of vigor required by the media with what might be presented at trial or in motion practice.