Partner Bernard Alexander Pursuing Racial Discrimination Trial Against Tesla


Ex-Tesla Worker Tells Jury Of ‘Devastating’ Racial Harassment

By Hannah Albarazi

Law360, San Francisco (September 29, 2021, 9:52 PM EDT) — A California federal jury heard tearful testimony Wednesday from a Black former Tesla subcontractor suing the electric vehicle maker for failing to stop rampant racial harassment at its Northern California factory, explaining that after he and his son were repeatedly called racial epithets at work he couldn’t eat or sleep.

Owen Diaz — a former Tesla subcontractor who sued the electric vehicle maker in 2017, claiming it failed to take reasonable steps to stop discriminatory and harassing conduct on the factory floor — testified Wednesday that he wanted to work for Tesla because he believes in protecting the environment and reducing reliance on fossil fuels, but said the race-based harassment he experienced at the company “made me lose faith in my fellow humans.”

Diaz recounted repeatedly being called the N-word by co-workers, both in English and in Spanish.

“[It] messed with me,” Diaz said through sobs.

He said the staffing agency that paid him, CitiStaff Solutions Inc., instructed him to report any incidents to his immediate supervisor at Tesla, so that’s what he did. But Diaz said at least two of his supervisors repeatedly called him the N-word.

Diaz said one of those supervisors also called him “boy” and explained to the jury that “‘boy’ is a term that slave masters would use against Black people to let them know they were their property.”

Diaz said despite the harassment, he encouraged his son, Demetric Di-az, to apply for a job at Tesla. Diaz said that after landing the position, his son also was subjected to racial harassment and that he felt responsible.

“I made mistakes,” Diaz said, sobbing. “I put my son in that position.”

Diaz also told the jury about a day in January 2016 when he found a drawing while at work depicting a dark-skinned person with a bone in his hair and a caption that read, “Booo.” He said it looked like an early Warner Bros. cartoon that depicted Black people as savages.

“I recognized it and my stomach dropped. It felt like someone had kicked me,” Diaz recalled.

Diaz said after the harassment and seeing his son be harassed at the factory, he began having trouble sleeping and lost his appetite.

“It got so devastating,” Diaz told the jury through tears. “Some days I would just sit on my stairs and cry.”

He said he brought this lawsuit to shed light on the wrongs that occurred at the factory to him and others.

Diaz also called to the stand on Wednesday Michael Wheeler, a Black former Tesla subcontractor who also saw the offensive cartoon on the factory floor. He said he too heard the N-word commonly used at the factory and said that Tesla never interviewed him after he reported an incident in which someone placed feces on the seat of his work cart.

Diaz, his son, and another plaintiff, Lamar Patterson, initially lodged their suit against Tesla in California state court in 2017, saying their time working at the factory in 2015 and 2016 was a “scene straight from the Jim Crow era.”

The case was removed to federal court, and U.S. District Judge William H. Orrick sent Patterson’s claims to arbitration.

Tesla, CitiStaff Solutions and staffing liaison nextSource Inc. asked Judge Orrick in 2019 to grant them summary judgment on nearly all the claims, but the judge ordered the companies to face trial, finding that a reasonable jury could conclude that the defendants didn’t do enough to redress the allegedly hostile work environment.

CitiStaff Solutions settled with Diaz and exited the case in March 2020. NextSource was terminated as a defendant, leaving Tesla to face the remaining claims. The following month, the parties stipulated the dismissal, with prejudice, of all claims brought by Di-az, leaving Diaz as the sole plaintiff.

During jury selection on Sept. 24, Diaz’s counsel successfully mounted a Batson challenge, so named for the U.S. Supreme Court‘s 1986 ruling in Batson v. Kentucky , which forbids the use of peremptory challenges to exclude jurors for racial reasons.

On Tuesday, Judge Orrick issued a written order explaining why he had sustained the Batson challenge against one of Tesla’s peremptory strikes.

The judge said that after cause and hardship challenges were completed, there were 15 potential jurors remaining, two of whom were Black. He said Tesla used two of its three peremptory challenges to strike the remaining African Americans in the jury pool, referring to Juror 26 and Juror 33.

“Though Batson applies regardless of the subject matter of the suit, this case is about alleged race-based harassment, strengthening the implication that the strikes were based on race,” Judge Orrick wrote in his order.

While Tesla’s justification for striking Juror 26 was that there was difficulty understanding him, the judge said, “There are several reasons to disbelieve this and to conclude that the strike was purposefully based on race.”

Judge Orrick said Tesla’s “understandability argument is ‘implausible’ — indeed, flatly untrue.”

The judge said that Juror 26’s answers were “perfectly understandable” and in comparison to the understandability of the non-Black jurors who were seated, it “shows that counsel’s justification is spurious.” Several prospective jurors who “were most difficult to understand — as reflected in the repeated requests for clarification and repetition — were not [B]lack and ended up on the jury,” Judge Orrick said.

“Tesla’s primary justification is not credible,” the judge wrote in his order.

Tesla’s counsel, Tracey Adano Kennedy of Sheppard Mullin Richter & Hampton LLP, argued that she struck Juror 26 because he had been called the N-word at a past job, but Judge Orrick said, “This reason is not race-neutral. It is intrinsically and inexorably intertwined with Juror 26’s race.”

“If a party could get around Batson by arguing that jurors who had been treated differently because of their race can be excluded, Batson would mean nothing,” Judge Orrick wrote.

The judge said Kennedy belatedly argued in her rebuttal that she also struck Juror 26 because his manager took no corrective action after he was called the racial slur on the job. But this reason is also partially based on race, the judge said. He pointed out that another juror, who was not Black but had also indicated that she had raised concerns at work that were not addressed, ended up on the jury.

“The totality of the circumstances — that Tesla’s primary and immediate justification is so threadbare and pretextual, that it immediately tried to strike both [Black] prospective jurors, that it relied in part on a reason linked to Juror 26’s race, and that its eleventh-hour argument would also apply to a non-[Black] juror that it did not strike — demonstrates that Tesla’s strike was purposefully discriminatory,” Judge Orrick wrote.

Representatives and counsel for the parties did not immediately respond to requests for comment Wednesday.

Owen Diaz is represented by Bernard Alexander of Alexander Morrison & Fehr LLP and Lawrence A. Organ, Navruz Avloni and Cimone Annmarie Nunley of the California Civil Rights Law Group.

Tesla is represented by Tracey Adano Kennedy, Namal Tantula, Susan Haines and Patricia Melody Jeng of Sheppard Mullin Richter & Hampton LLP and in-house by M. Yusuf Mohamed.

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.

–Editing by Jay Jackson Jr.