McCoy v. Pacific Maritime Asso.

Filed 5/14/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

CATHERINE Y. MCCOY, B210953

Plaintiff and Appellant, (Los Angeles County

Super. Ct. No. BC346725)

v.

PACIFIC MARITIME ASSOCIATION, et

al.,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of Los Angeles County, Jane

Johnson, Judge. Affirmed in part, reversed in part, and remanded with directions.

Martin & Martin, Areva D. Martin, Aram Kouyoumdjian, and Surisa E. Langbell

for Plaintiff and Appellant.

Morgan, Lewis & Bockius, Clifford D. Sethness, Robert Jon Hendricks, and Jason

M. Steele for Defendants and Respondents.

_________________________________________

Appellant Catherine Y. McCoy appeals from the judgment of the trial court. She

makes the following contentions: (1) the court erred in summarily adjudicating her

sexual harassment and intentional infliction of emotional distress claims because the

harassment was sufficiently pervasive and the emotional distress was purposeful and led

to her emotional collapse; (2) the court erred in excluding evidence of harassment and

discrimination, including racially derogatory remarks and sexually offensive conduct,

which were relevant to her remaining retaliation claim; (3) the court misapplied

governing law in granting judgment notwithstanding the verdict on her unlawful

retaliation claim where the totality of the circumstances provided substantial evidence

upon which the jury verdict in her favor should have been upheld; (4) the court erred in

ruling that respondent Pacific Maritime Association (PMA) was not her employer

because PMA exercised sufficient control over her employment to be considered her

employer for purposes of the California Fair Employment and Housing Act (FEHA)

1

(Gov. Code, § 12900 et seq.) ; and (5) the court improperly granted the motion for a new

trial filed by respondents Yusen Terminals, Inc. (Yusen) and PMA (collectively

respondents) because none of the five grounds upon which the court based its decision

warranted a new trial.

We conclude: The court did not err in summarily adjudicating the sexual

harassment and emotional distress claims, because the harassment was not so severe and

pervasive as to alter the conditions of appellant‟s employment, and respondents‟ conduct

failed to meet the extreme and outrageous standard necessary for the emotional distress

claim; the court properly found respondent PMA was not appellant‟s employer as that

term is used in FEHA; and the court did not abuse its discretion in granting a new trial.

We also conclude that the court did not abuse its discretion in excluding evidence, except

as to evidence of sufficiently similar retaliation by respondents against other employees.

Finally, we conclude there was substantial evidence to support the jury verdict in

1

All further statutory references are to the Government Code unless otherwise

indicated.

2

appellant‟s favor on the retaliation claim and thus the court erred in setting aside that

verdict.

Respondents assert in their protective cross-appeal that the trial court erred in

denying them partial judgment notwithstanding the verdict regarding the economic

damages award because appellant failed to establish she was constructively discharged.

We conclude a constructive discharge is not a prerequisite to an award of economic

damages for discrimination under FEHA.

The judgment is affirmed in part, reversed in part, and remanded with directions.

FACTUAL AND PROCEDURAL SUMMARY

PMA is a California nonprofit organization that serves as a bargaining agent for its

membership, which includes various stevedore companies, steamship lines, and terminal

operators. Yusen is a terminal operator in California and is a member company of PMA.

Appellant McCoy had been working as a marine clerk at the ports for more than a

decade when, in 1998, she and others filed a federal lawsuit against respondents based on

allegations of unlawful discrimination. The lawsuit led to a confidential settlement

between appellant, respondents, and several other fellow employees. One provision of

the settlement agreement provided appellant with “standard nightside vessel planner

training.” The vessel planner position offered a modest increase in compensation and

held a higher place of prestige in the industry than the marine clerk position, due to the

heightened skill involved.

Appellant‟s training to be a vessel planner began in December 2003. The practice

at Yusen was for the current vessel planners to provide training to those seeking to

become vessel planners. On appellant‟s first day, the marine operations manager at

Yusen, Tracy Burdine, introduced her to vessel planners who would be training her going

forward. She testified that none of them acknowledged her presence. Her assigned

workspace was in a “less desirable” room off the main vessel planner area. The room

was small and increased her isolation from the rest of the vessel planning staff.

Appellant presented evidence at trial indicating that she was denied a series of

training materials during this period and was given substandard instruction. She claimed

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this adverse treatment was based on her filing of the original federal lawsuit. She

testified that she never received a copy of the vessel planner supplemental agreement

(which detailed the duties of a vessel planner), a scope of work checklist, a computer

manual or password, a vessel planner practice test, or any other formal training materials.

Appellant also stated that she was denied access to a mock ship upon which she could

hone her vessel planning skills.

Vessel planners at Yusen testified that vessel planner training does not involve

formalized instructional materials, but rather is accomplished through on-the-job training.

There also was testimony that the materials cited by appellant were almost all out of date

and rarely used, and that available materials were given to appellant upon request. One

vessel planner who trained appellant testified that no one ever had been given access to a

mock ship and that, after a supervisor looked into it, the programmers at Yusen were

unable to create one.

Appellant also was not told about a class being conducted on working with

hazardous materials, in which another trainee was participating at the time. When

appellant brought this up with Burdine, she was given access to the class. Another port

employee, Cornell Mingo, testified that appellant was being shunned and isolated by the

other employees. He stated that he saw other trainees receive much better treatment and

more hands-on instruction. Mingo also said that only appellant was isolated in the

smaller room adjacent to the main vessel planner room.

Appellant testified that she was harassed and shunned throughout her training

period. Her complaints centered around one vessel planner in particular, Anthony

Spanjol. Appellant testified that Spanjol would disrespect her by talking down to her and

by putting his feet up on her work space. On one occasion, he yelled at her in front of

other employees and called her stupid. One of appellant‟s supervisors, Marc Izzo,

witnessed this incident, but left the room rather than address it. Appellant testified that

when she complained about the incident she was told that she should go home and that

Spanjol‟s behavior was just a part of his personality. She also stated that Spanjol often

made racially derogatory remarks and engaged in sexually offensive behavior. He would

4

comment on the buttocks of other female employees once they left the room, using terms

like “„nigger ass‟” and “„J-Lo ass.‟” On at least one occasion, Spanjol also made crude

gestures toward a woman when the woman‟s back was turned. He also mocked these

women in appellant‟s presence. During another incident, appellant asked Spanjol a

question regarding the unloading of a ship, but he ignored her and “never spoke to [her]

again.” Appellant testified that shortly after this incident she decided she could no longer

handle the work environment and quit her job entirely.

After having left her position as a marine clerk, appellant filed a grievance against

Yusen. The arbitration hearing was presided over by the Southern California area

arbitrator who was previously appointed jointly by the International Longshoremen‟s and

Warehousemen‟s Union (ILWU), on behalf of the port employees, and PMA on behalf of

its member employers, for such purposes. Appellant did not attend the hearing at the

PMA office in Long Beach, California, although she had been notified of the date.

Appellant asked the arbitrator to direct by subpoena a list of witnesses to appear before

the arbitrator, and the arbitrator interviewed each of them in addition to receiving sworn

testimony from five others involved in the relevant incidents. A written opinion was

issued finding that no harassment or discrimination took place and concluding that the

grievance was frivolous. The arbitrator imposed a temporary suspension on appellant.

He ruled that she could return to work once she completed a diversity class and agreed to

refrain from filing additional frivolous grievances.

Appellant filed a lawsuit against respondents and ILWU in January 2006. She

brought claims for sexual harassment and retaliation in violation of FEHA, negligent

supervision, hiring and retention, and intentional infliction of emotional distress. She

dropped all claims against ILWU before trial.

After discovery, respondents moved for summary judgment or summary

adjudication. The trial court granted summary adjudication of all claims except for the

retaliation under section 12940, subdivision (h).

Prior to trial, each party filed motions in limine to exclude certain evidence.

Respondents sought to exclude evidence regarding appellant‟s allegations of Spanjol‟s

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racially derogatory remarks. Another motion in limine sought to exclude evidence

regarding other allegations of discrimination or harassment by any current or former port

employee. This included the exclusion of allegations that other employees who were

parties to the confidential settlement had been retaliated against by respondents. A

further motion in limine sought to exclude evidence related to the claims disposed of by

summary adjudication. The trial court granted all three of these motions, and the case

proceeded to trial.

Prior to closing argument, the trial court admonished both parties to follow the

evidentiary limitations set by the court. The admonishment was triggered by repeated

reference by appellant‟s attorney to the federal lawsuit, despite an explicit court order and

an agreement of the parties not to discuss it. During closing argument, appellant‟s

counsel also alluded to racial and gender-based motivations for the conduct of

respondents, in violation of court order. Appellant‟s counsel then displayed to the jury

the photo of a man whose head appeared to have been cut off, and told the jury the

picture depicted what the respondents wanted to do to appellant. The trial court found

that appellant‟s counsel willfully persisted in violating the rulings of the court, the

agreement of the parties, and the rules of court.

After three days of deliberation, the jury returned a verdict for appellant, awarding

her $660,000 in economic damages and $540,000 in emotional distress damages.

Respondents filed joint motions for judgment notwithstanding the verdict, partial

judgment notwithstanding the verdict on the economic damages award, and a new trial.

PMA filed a separate motion for judgment notwithstanding the verdict on the basis that it

was not appellant‟s employer as defined by FEHA.

The trial court granted PMA‟s motion for judgment notwithstanding the verdict

because appellant had failed to provide sufficient evidence to prove PMA was her

employer as required by FEHA. The court also granted the joint motion for judgment

notwithstanding the verdict concluding there was not substantial evidence to support the

jury verdict in appellant‟s favor. It denied the motion for partial judgment

notwithstanding the verdict with respect to the economic damages, on the ground that

6

respondents‟ failed to cite relevant case authority. The trial court alternatively granted

the motion for a new trial on five separate grounds: (1) irregularity in the proceedings;

(2) surprise; (3) excessive damages; (4) insufficiency of the evidence; and (5) errors in

law. (Code Civ. Proc., § 657, subds. (1), (3), (5)-(7).)

This appeal and protective cross-appeal followed.

DISCUSSION

I

Appellant contends the trial court erred in summarily adjudicating her claims of

sexual harassment and intentional infliction of emotional distress in favor of respondents.

On appeal, we review the summary adjudication of claims de novo. (Aguilar v.

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) “We review the facts presented to the

trial court and independently determine their effect as a matter of law.” (Transamerica

Ins. Co. v. Superior Court (1994) 29 Cal.App.4th 1705, 1713-1714.)

A. Sexual Harassment

California law prohibits sexual harassment in the workplace. (§ 12940, subd. (j).)

In order to prevail on such a claim, an employee “must demonstrate that the conduct

complained of was severe enough or sufficiently pervasive to alter the conditions of

employment and create a work environment that qualifies as hostile or abusive to

employees because of their sex.” (Miller v. Department of Corrections (2005) 36 Cal.4th

446, 462.) Harassment that is “occasional, isolated, sporadic, or trivial” generally fails to

meet this standard. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th

264, 283.) There is both a subjective and objective component to this standard. (Id. at

pp. 283-284.) “[A] plaintiff who subjectively perceives the workplace as hostile or

abusive will not prevail under the FEHA, if a reasonable person in the plaintiff‟s position,

considering all the circumstances, would not share the same perception.” (Id. at p. 284.)

A sexual harassment claim must be evaluated in light of the totality of the

circumstances. This may include “„the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee‟s work performance.‟

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[Citation.]” (Miller v. Department of Corrections, supra, 36 Cal.4th at p. 462.) There is

no requirement that a plaintiff alleging such conduct be the direct target of the

harassment; however, “sexual conduct that involves or is aimed at persons other than the

plaintiff is considered less offensive and severe than conduct that is directed at the

plaintiff.” (Lyle v. Warner Brothers Television Productions, supra, 38 Cal.4th at pp. 284-

285.) In such cases, it is necessary “to establish that the sexually harassing conduct

permeated the plaintiff‟s direct work environment.” (Fisher v. San Pedro Peninsula

Hospital (1989) 214 Cal.App.3d 590, 610, italics added.)

Appellant points to evidence she argues was sufficient to withstand a motion for

summary adjudication of the sexual harassment claim. She claimed that during the

training period her coworkers made comments about other women who came into the

vessel planners‟ office. This included comments about the women‟s bodies and once

included their speculation as to who one of the women was in a sexual relationship with.

On one of these occasions, Spanjol referred to one of the women as having a “J-Lo ass”

or a “nigger ass.” Spanjol also once ogled and made gestures toward one of the women

when she had her back turned. Altogether appellant estimated that these comments

2

regarding other women were made on approximately five to nine occasions.

We conclude the factual allegations made by appellant were insufficient to support

a sexual harassment claim under the hostile workplace theory. Over the four months she

was working in the vessel planner‟s office, comments were made on, at most, nine, and

possibly as few as five occasions. Although the details of most of the comments were

vague, they involved discussion of other women‟s bodies outside their presence.

Appellant did not claim any sexual comment or conduct was directed at her. Although

2

In her opening brief, appellant cites statements she made in a declaration

submitted to the court in which she indicated that she was sexually harassed throughout

the entire training period. However, the court sustained respondents‟ objection to all

these statements based on their lack of foundation and contradiction of appellant‟s

deposition testimony. Appellant does not challenge these evidentiary rulings on appeal.

Therefore, they will not be considered as valid supporting evidence of her sexual

harassment claim.

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crude and offensive, these remarks were not so severe and pervasive as to alter the

conditions of appellant‟s employment; the conduct did not create a work environment

“permeated” with sexual harassment. (See Fisher v. San Pedro Peninsula Hospital,

supra, 214 Cal.App.3d at p. 610.)

In addition, despite appellant‟s contention in her brief, Spanjol was not her

supervisor, but rather a vessel planner charged with partial responsibility for training her.

In order to be actionable, it must be shown that respondents knew, or should have known,

of the alleged harassment and failed to take appropriate action. (Roby v. McKesson Corp.

(2009) 47 Cal.4th 686, 706-707; § 12940, subd. (j)(1).) Appellant admitted she never

mentioned to anyone in management that Spanjol made these remarks about other

women. Nor was there evidence that she ever mentioned anything about sexual

harassment to management.

B. Intentional Infliction of Emotional Distress

In order to be actionable as a claim for intentional infliction of emotional distress,

a defendant‟s conduct must be extreme and outrageous. (Hughes v. Pair (2009)

46 Cal.4th 1035, 1050-1051; 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts,

§ 450, pp. 668-669.) The defendant must act with the intent to cause emotional distress

or with reckless disregard of the likelihood of such an outcome. (Hughes, at p. 1050.)

Further, the conduct must be the actual and proximate cause of the plaintiff suffering

severe emotional distress. (Ibid.) To be “outrageous,” the conduct must go “beyond all

bounds of decency; ordinary rude or insulting behavior is not enough . . . .” (5 Witkin,

supra, § 451 at p. 669.)

Appellant contends her valid claim of sexual harassment alone warrants reversal

of the summary adjudication of the intentional infliction of emotional distress claim.

While a claim of sexual harassment may establish the outrageous conduct element for an

intentional infliction of emotional distress claim, our affirmance of the trial court‟s

summary adjudication of appellant‟s sexual harassment claim makes this argument moot.

(Hughes v. Pair, supra, 46 Cal.4th at p. 1051.)

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Appellant also argues the evidence underlying her retaliation claim is sufficient to

meet the conduct element of her intentional infliction of emotional distress claim. As we

shall discuss, we conclude there was substantial evidence to support the jury‟s finding

that respondents engaged in unlawful retaliation. Nevertheless, appellant‟s argument

fails as to the intentional infliction claim. A “series of subtle, yet damaging, injuries” is

sufficient to constitute retaliation; however, it does not necessarily rise to the “extreme

and outrageous” standard required for an intentional infliction of emotional distress

claim. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1055 (Yanowitz); Hughes

v. Pair, supra, 46 Cal.4th at pp. 1050-1051.) Although appellant claimed she was faced

with continued isolation and ostracism, we conclude respondents‟ conduct did not go

“beyond all bounds of decency.” (5 Witkin, Summary of Cal. Law, supra, § 451, p. 669.)

We find no error in the trial court‟s grant of summary adjudication on the sexual

harassment and intentional infliction of emotional distress claims in favor of respondents.

II

Appellant contends the trial court erred in excluding evidence of racially

derogatory remarks and sexually offensive conduct, depriving her of supporting evidence

on her claim of retaliation. In addition, she claims the court erred in finding the evidence

regarding discrimination of other employees not relevant and therefore inadmissible

under Evidence Code section 350.

The trial court enjoys “broad authority” over the admission and exclusion of

evidence. (3 Witkin, Cal. Evidence (5th ed. 2012) Presentation at Trial, § 55, pp. 104-

105.) We review a trial court‟s ruling on a motion in limine to exclude evidence for an

abuse of discretion. (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1493; County of

Glenn v. Foley (2012) 212 Cal.App.4th 393, 398.) The trial court‟s authority is

particularly broad “with respect to rulings that turn on the relevance of the proffered

evidence.” (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 281.)

Furthermore, “[i]t is for the trial court, in its discretion, to determine whether the

probative value of relevant evidence is outweighed by a substantial danger of undue

prejudice. The appellate court may not interfere with the trial court‟s

10

determination . . . unless the trial court‟s determination was beyond the bounds of reason

and resulted in a manifest miscarriage of justice.” (Rufo v. Simpson (2001)

86 Cal.App.4th 573, 596.)

Appellant argues the court should have admitted evidence regarding derogatory

remarks made by Spanjol and evidence of the sexual harassment and discrimination faced

by other female employees at the terminal.

The trial court granted respondents‟ motion in limine to exclude evidence

concerning Spanjol‟s comments, which referred to other women‟s buttocks in racial

terms and mocked the vernacular of other African-American employees. In granting

another of respondents‟ motions in limine, the court also excluded evidence regarding

harassment and discrimination against other female employees. The court found much of

this evidence irrelevant to the sole remaining cause of action, unlawful retaliation, and

also found it excludable under Evidence Code section 352 as unduly prejudicial and

likely to lead to confusion of the issues.

Appellant argues the evidence was relevant to prove the level of hostility in her

work environment, supporting her claim that respondents were retaliating against her.

However, the evidentiary ruling does not go so far as to preclude any evidence regarding

the working environment and specifically the role Spanjol played in creating that

environment. The trial court made it clear that evidence that Spanjol and other

employees screamed at her, ignored her, shunned her, excluded her and gave her

confusing or inadequate instruction, was admissible. However, it stated that evidence of

stray comments made about other women employed at Yusen would be excluded under

Evidence Code section 352 because “it leaves the impression that this is a sexual

harassment case.” The trial court additionally pointed out that the comments were made

by a nonparty, nonsupervisory employee, further undermining its probative value. We

find that the court‟s decision to exclude such comments was within its authority and that

it did not result in a miscarriage of justice.

The trial court also excluded evidence that other women were harassed or

discriminated against, on the basis that such evidence was not relevant under Evidence

11

Code section 350 as to appellant‟s unlawful retaliation claim. Generally, the relevance of

evidence of discrimination or harassment by defendants against nonparties is “fact based

and depends on many factors, including how closely related the evidence is to the

plaintiff‟s circumstances and theory of the case.” (Sprint/United Mgmt. Co. v.

Mendelsohn (2008) 552 U.S. 379, 388; see also Johnson v. United Cerebral Palsy/Spastic

Children’s Foundation (2009) 173 Cal.App.4th 740, 767; Pantoja v. Anton (2011)

198 Cal.App.4th 87, 113-115.) We conclude the court was within its discretion to find

evidence of discrimination and harassment based on race and gender had little relation to

the surviving retaliation claim, and was excludable on that ground.

The record indicates there may have been evidence regarding retaliation against

two other female employees similarly situated to appellant. Appellant argues respondents

retaliated against her and these other women for filing the original federal lawsuit, the

protected activity under her current retaliation claim. These employees also were granted

the opportunity to train as vessel planners with respondents as part of the settlement

agreement. Because intent is an element in an unlawful retaliation claim, evidence that a

defendant intentionally retaliated against other employees for the same conduct engaged

in by the plaintiff would be relevant. (Sprint/United Mgmt. Co. v. Mendelsohn, supra,

552 U.S. at p. 388; Johnson v. United Cerebral Palsy/Spastic Children’s Foundation,

supra, 173 Cal.App.4th at pp. 760, 767; Pantoja v. Anton, supra, 198 Cal.App.4th at pp.

114-115.) Appellant asserted at the evidentiary hearing that these two other women were

in “the exact same situation” as she and urged the court to allow the evidence “only to the

extent . . . that [it] relates to the retaliatory conduct” in order to prove the necessary

element of intent.

The court did not base its decision to exclude this evidence of similar retaliation

on its prejudicial nature under Evidence Code section 352. Rather, the court ruled that

evidence of retaliation against these other employees was irrelevant to appellant‟s own

retaliation claim. Although the exclusion of evidence and argument regarding the

underlying factual allegations in the federal lawsuit leading to the settlement was

mutually agreed to, if these other employees faced similar retaliation to that alleged by

12

appellant when seeking training, it cannot be said that such evidence could be of no

relevance to appellant‟s retaliation claim. If this “me-too evidence” was probative of

respondents‟ intent in retaliating against appellant, as alleged, it should have been

admitted under Evidence Code section 350. (Pantoja v. Anton, supra, 198 Cal.App.4th at

p. 115.) However, determining whether such claims are sufficiently similar to constitute

relevant evidence is inherently fact-intensive. (Sprint/United Mgmt. Co. v. Mendelsohn,

supra, 552 U.S. at p. 388.) Because of the possible relevance of such evidence, the court

should have, at the very least, conducted a hearing to ascertain the details of the evidence

and the similarity to appellant‟s claims before subjecting it to a blanket exclusion. We

find the record before us does not provide sufficient details of the evidence being

excluded for us to make such a determination on our own.

As we shall discuss, this case is being remanded for retrial. The trial court shall

reconsider the evidence regarding retaliation against other employees consistent with our

opinion, and determine whether such evidence presents factual scenarios involving other

employees that are “sufficiently similar” to those presented by appellant in her retaliation

claim. (See Johnson v. United Cerebral Palsy/Spastic Children’s Foundation, supra,

173 Cal.App.4th at p. 767.) With this exception, the trial court‟s evidentiary rulings are

affirmed.

III

Appellant contends there is substantial evidence in the record to support the jury

verdict in her favor. Although she did not assert a constructive discharge theory,

appellant contends the evidence supported a finding that the action taken by respondents

materially affected the terms and conditions of her employment amounting to an adverse

3

employment action, as required by FEHA. As a result, she argues the trial court ruling

granting the motion for judgment notwithstanding the verdict should be reversed.

Appellant specifically contends the court failed to properly apply the “totality of the

circumstances” test required for retaliation claims.

3

In a hearing on the posttrial motions, appellant explicitly stated to the court that

she “never had a constructive discharge claim.”

13

Appellant brought her claim for retaliation under section 12940, subdivision (h),

of FEHA. In order to establish a prima facie case of retaliation under that statute, “a

plaintiff must show (1) he or she engaged in a „protected activity,‟ (2) the employer

subjected the employee to an adverse employment action, and (3) a causal link existed

between the protected activity and the employer‟s action.” (Yanowitz, supra, 36 Cal.4th

at p. 1042.) If a prima facie case is established, the employer is required to offer a

legitimate, nonretaliatory basis for the adverse employment action in order to shift the

burden back to the plaintiff, who must then prove intentional retaliation. (Ibid.)

In order to meet the FEHA standard, an employer‟s adverse treatment must

“materially affect the terms, conditions, or privileges of employment.” (Yanowitz, supra,

36 Cal.4th at p. 1052.) “[T]he determination of whether a particular action or course of

conduct rises to the level of actionable conduct should take into account the unique

circumstances of the affected employee as well as the workplace context of the claim.”

(Ibid.) Such a determination “is not, by its nature, susceptible to a mathematically

precise test.” (Id. at p. 1054.) “Minor or relatively trivial adverse actions or conduct by

employers or fellow employees that, from an objective perspective, are reasonably likely

to do no more than anger or upset an employee cannot properly be viewed as materially

affecting the terms, conditions, or privileges of employment and are not actionable, but

adverse treatment that is reasonably likely to impair a reasonable employee‟s job

performance or prospects for advancement or promotion falls within the reach of the

antidiscrimination provisions of sections 12940(a) and 12940(h).” (Id. at pp. 1054-1055.)

FEHA not only protects against “ultimate employment actions such as termination or

demotion, but also the entire spectrum of employment actions that are reasonably likely

to adversely and materially affect an employee‟s job performance or opportunity for

advancement . . . .” (Id. at p. 1054.) Actionable retaliation need not be carried out in

“one swift blow,” but rather may be “a series of subtle, yet damaging, injuries.” (Id. at

p. 1055.) Thus, each alleged retaliatory act need not constitute an adverse employment

action in and of itself, and the totality of the circumstances must be considered. (Id. at

pp. 1036, 1055.)

14

In contrast to ruling on a motion for new trial, ruling on a defendant‟s motion for

judgment notwithstanding the verdict, the trial court may not weigh the evidence or judge

the credibility of witnesses. (Stubblefield Construction Co. v. City of San Bernardino

(1995) 32 Cal.App.4th 687, 703 (Stubblefield).) All reasonable inferences must be drawn

in favor of the plaintiff and conflicting evidence is to be disregarded. (Ibid.) “A party is

entitled to judgment notwithstanding the verdict only if there is no substantial evidence to

support the verdict and the evidence compels a judgment for the moving party as a matter

of law.” (Paykar Construction, Inc. v. Spilat Construction Corp. (2001) 92 Cal.App.4th

488, 493.) On review, we apply the substantial evidence test to the jury‟s verdict,

ignoring the judgment of the court and reading the record in the light most advantageous

to the plaintiff. (Stubblefield, at p. 703; Sole Energy Co. v. Petrominerals Corp. (2005)

128 Cal.App.4th 212, 227.) Actions for retaliation are “inherently fact-driven”; it is the

jury, not the court, that is charged with determining the facts. (McRae v. Department of

Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 389.)

Appellant contends there was substantial evidence in this case from which the jury

could reasonably conclude that she was unlawfully retaliated against, and, therefore, the

court erred in granting judgment notwithstanding the verdict. We agree.

The jury heard testimony detailing how management at Yusen exposed details of

the confidential settlement agreement to appellant‟s supervisor and the vessel planners on

the nightside shift. Appellant testified that she was subjected to harassment from the

vessel planners, upon whom she relied for the training necessary to advance. She

detailed how her requests for assistance were ignored, the abusive language to which she

was subjected, and the failure of her supervisor to intervene despite witnessing this abuse

and being told about its effect on appellant. Mingo, a dockworker for over 20 years who

visited the vessel planner office numerous times, testified that appellant was being “hard-

timed” and received substandard training as compared to other trainees he observed.

Appellant‟s psychologist, Nina Rodd, testified, with “reasonable psychological

15

4

certainty,” that appellant suffered from “major depressive disorder and generalized

anxiety due to systematic and regular exposure to the hostile environment that she was in,

where she was pushed away, discriminated against, and treated with hostility.”

Although respondents introduced evidence to dispute much of appellant‟s

testimony regarding various training materials denied to her, when reviewing the jury‟s

verdict, we disregard such evidence. (Stubblefield, supra, 32 Cal.App.4th at p. 703.) The

testimony presented by appellant that the management at Yusen revealed the

circumstances surrounding her arrival in the vessel planner unit to the vessel planners had

to be considered in the workplace context of the claim. (Yanowitz, supra, 36 Cal.4th at

p. 1052.) The factfinder needed to consider the unique circumstances of respondents‟

conduct. (Ibid.) Here, appellant relied on these vessel planners for instruction and their

cooperation was necessary to her successful training. The jury could infer respondents

revealed the information with the intent to turn the vessel planners against appellant,

knowing this would likely make her training period intolerable. After hearing all the

testimony and weighing the evidence presented on the issue, the jury could have

concluded that management‟s actions were specifically carried out in retaliation against

appellant for having brought the initial lawsuit. It also could have credited the testimony

of the psychologist, which indicated appellant‟s work environment caused her severe

emotional trauma, undermining her ability to complete the training or return to work.

The jury could have found this emotional toll from respondents‟ actions amounted to a

material alteration of the conditions of her employment. (Ibid.) If these inferences and

conclusions were drawn by the jury, such an intentional, adverse action taken by

respondents in response to appellant‟s protected activity and causing such emotional

distress could constitute unlawful retaliation. A judgment can be supported by inference

so long as it is a reasonable conclusion from the evidence presented; it is the jury‟s duty

to determine the facts. (McRae v. Department of Corrections & Rehabilitation, supra,

4

This and similar phraseology may not be accurate and is problematic. (See

Rest.3d Torts, § 28, com. e, p. 416.)

16

142 Cal.App.4th at pp. 389-390.) We conclude the inferences and conclusions implicitly

drawn by the jury were supported by the record, and not “„rebutted by clear, positive and

uncontradicted evidence of such a nature that it is not subject to doubt in the minds of

reasonable men.‟” (Id. at p. 389.)

Although appellant does not argue she was constructively discharged, such a claim

is not necessary to find unlawful retaliation. (Yanowitz, supra, 36 Cal.4th at pp. 1053-

1054.) The question whether the evidence of harassment and hostility in her workplace

was sufficient to support the conclusion that it was “reasonably likely to impair a

reasonable employee‟s job performance” was put before the jury. (Id. at pp. 1054-1055;

see also id. at p.1056, fn. 16.) Because we accept as true the evidence supporting the

jury‟s findings, we find the court‟s conclusion that respondents did not retaliate against

appellant is not, as a matter of law, the only conclusion legally deducible from the

evidence; therefore, the court would not have been justified in taking the case away from

the jury. (See Spillman v. City etc. of San Francisco (1967) 252 Cal.App.2d 782, 786.)

Neither was it justified in granting judgment notwithstanding the verdict on this ground.

Even if contradicted, there was substantial evidence supporting the jury‟s conclusion that

respondents unlawfully retaliated against appellant for engaging in protected activity and

that the retaliation resulted in a material alteration of the terms, conditions, or privileges

of appellant‟s employment. (Yanowitz, supra, 36 Cal.4th at p. 1052.) We reverse the

trial court‟s entry of judgment notwithstanding the verdict.

IV

Appellant also contends the court erred in granting judgment notwithstanding the

verdict in favor of PMA on the ground there was insufficient evidence to prove that PMA

5

was her employer.

5

Appellant also argues the partial judgment notwithstanding the verdict should be

reversed because PMA waived its right to contest its employer status. However, an

essential element of appellant‟s retaliation claim was that the alleged perpetrators were

her “employers,” and thus she carried the burden of proving each respondent qualified as

such. (§ 12940, subd. (h).)

17

The “fundamental foundation for liability” under FEHA is the “„existence of an

employment relationship‟” between the parties, even if indirect. (Vernon v. State of

California (2004) 116 Cal.App.4th 114, 123, italics omitted.) An assessment of whether

such an employment relationship exists requires a consideration of the totality of the

circumstances. (Id. at p. 124.) Factors to be considered are the payment of salary or

other benefits, the ownership of the equipment used by the employee, the location where

the relevant work is performed, the responsibility of the employer to train the employee,

the authority to promote or discharge the employee, and the power to determine the

schedule, assignment, and amount of compensation earned by the employee. (Id. at

p. 125.) Although there is “„no magic formula‟” and no one dispositive factor, the most

important consideration is the right of the employer “„to control the means and manner of

the workers‟ performance.‟” (Id. at pp. 124-125, 126.) That control must be significant

in order to hold the alleged employer responsible, especially when the conduct

underlying the claim was committed indirectly, by an immediate employer other than the

defendant. (Id. at p. 126.)

While we review an order granting judgment notwithstanding the verdict based on

insufficiency of the evidence under the substantial evidence standard, if the motion

presents a legal question based on undisputed facts we review the ruling de novo. (Gillan

v. City of San Marino (2007) 147 Cal.App.4th 1033, 1043-1044.)

Appellant relies on evidence that PMA negotiated labor contracts and the

collective bargaining agreement between ILWU and the member terminal companies;

PMA signed the vessel planner supplemental agreement; it paid for the arbitrator who

suspended her; and it reimburses the terminal operator for the cost of training vessel

planners. We conclude, as a matter of law, this evidence is insufficient to establish PMA

was her employer as that term is used in FEHA.

There was uncontradicted testimony that Yusen employed her, managed the site

where the retaliation took place, and supervised and employed those individuals

responsible for the retaliatory acts. Under the widely accepted control test, PMA had

very little if any control over appellant or her workplace. It was Yusen that paid her

18

salary, owned the equipment she worked on, controlled the location where she worked

and where the retaliation took place, was responsible for her training, had the right to

promote or discharge her and was the only party to supervise her work. There is no

evidence that PMA participated in any of these functions.

Based on the similar objectives and wording of title VII of the Civil Rights Act of

1964 (42 U.S.C. § 2000e et seq.) (hereafter Title VII), courts often look to reasoning

employed by federal courts when interpreting FEHA. (Vernon v. State of California,

supra, 116 Cal.App.4th at p. 124, fn. 6.) In Anderson v. Pacific Maritime Association

(9th Cir. 2003) 336 F.3d 924 (Anderson), the Court of Appeal considered whether PMA

was the employer of a group of plaintiff longshoremen. The court found it was PMA‟s

member-companies, not PMA itself, that were the employers of those working the ports,

and thus the ones responsible for workplace discrimination. It reasoned “the hostile work

environment did not occur at any facility controlled by PMA, but instead at the docks and

waterfront facilities controlled by the member-employers that actually employ and

supervise [the dock workers] and their putative harassers on the job site.” (Id. at p. 931.)

Anderson supports the conclusion that PMA cannot be held liable as an employer for the

retaliation by Yusen against appellant.

The judgment notwithstanding the verdict in favor of PMA is affirmed.

V

Appellant contends the trial court erred in granting respondents‟ motion for a new

trial, on five separate grounds.

Code of Civil Procedure section 657 provides seven bases on which a trial court

may grant a motion for a new trial. When the court properly identifies its basis for

granting a new trial, “the appropriate standard of judicial review is one that defers to the

trial court‟s resolution of conflicts in the evidence and inquires only whether the court‟s

decision was an abuse of discretion.” (Oakland Raiders v. National Football League

(2007) 41 Cal.4th 624, 636.) The court‟s order is affirmed if it should have been granted

upon any ground stated by the court. (Code Civ. Proc., § 657.) “The determination of a

motion for a new trial rests so completely within the court‟s discretion that its action will

19

not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.

This is particularly true when the discretion is exercised in favor of awarding a new

trial . . . . So long as a reasonable or even fairly debatable justification under the law is

shown for the order granting the new trial, the order will not be set aside.” (Jiminez v.

Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387.) The reason for this high level of

deference is the trial court is much closer to the evidence than a reviewing court and sits

as a trier of fact independent of the jury. (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th

405, 412.) “Therefore, the trial court‟s factual determinations, reflected in its decision to

grant the new trial, are entitled to the same deference that an appellate court would

ordinarily accord a jury‟s factual determinations.” (Ibid.) We now examine the reasons

set forth by the court for granting the motion for a new trial.

A. Irregularity in the Proceedings

A jury‟s verdict may be vacated and a new trial ordered based on “[i]rregularity in

the proceedings of the court, jury or adverse party.” (Code Civ. Proc., § 657, subd. (1).)

Misconduct of counsel can amount to an irregularity and thus can be a ground for a new

trial. (Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th

1108, 1122.) However, it must be “reasonably probable that the party moving for a new

trial would have obtained a more favorable result absent the misconduct” in order to

justify a new trial. (Ibid.)

The trial court found appellant‟s counsel at trial engaged in misconduct when he

presented “a host of improper arguments” and a provocative photo to the jury in closing

argument. The court cited appellant‟s many violations at trial of its rulings on the

motions in limine regarding evidence of race and gender discrimination and the details of

the previous federal litigation. The court stated it had warned appellant numerous times

and even admonished the parties on the record just prior to closing argument about these

rulings and the evidence that was not to be referenced. Appellant then proceeded to cite

that very evidence in closing argument and, compounding the misconduct, introduced a

“highly inflammatory photo” which was not admitted as evidence or presented to

opposing counsel. Based on this conduct, the court found that appellant, through her

20

attorney, “affirmatively chose to ignore court orders” and made a “blatant attempt to

inject race and gender into a case which was a retaliation, not a race or gender

discrimination, case.” It concluded this misconduct resulted in a miscarriage of justice

and was sufficient to constitute irregularity in the proceedings, justifying a new trial

under Code of Civil Procedure section 657, subdivision (1).

Appellant argues there was no evidence the conduct of her counsel at trial affected

the outcome of the case, and therefore it did not justify granting a new trial.

The record reveals appellant was specifically directed not to discuss certain

evidence, but then immediately proceeded to cite that evidence in closing argument to the

jury in flagrant disobedience of the court‟s orders. Appellant‟s closing argument implied,

many times, that race and gender played a role in respondents‟ conduct toward appellant.

In addition, appellant‟s attorney began the rebuttal argument by flashing a photo of a

decapitated man to the jury, suggesting that the image captured what respondents wanted

to do to appellant. Because appellant did not show the photograph to opposing counsel

prior to its use, its introduction was in violation of former Superior Court of Los Angeles

6

County, Local Rules, rule 8.74, in effect at the time of trial. The first question from the

jury during deliberations was: “How many black women have been vessel planners[?]”

This provides support for the court‟s conclusion that appellant‟s improper references to

race had an impact on the jury.

The court‟s finding that this misconduct resulted in a miscarriage of justice is

given great deference. The trial court sat much closer to the alleged misconduct and

could more closely monitor its possible effect on the jury. The court, acting as a

“„thirteenth juror‟” in this case, felt the misconduct was severe enough that it likely

affected the outcome for respondents. (See Boeken v. Philip Morris, Inc. (2005)

127 Cal.App.4th 1640, 1689.) Considering the wide discretion accorded to a trial court in

6

Former Superior Court of Los Angeles County, Local Rules, rule 8.74, in effect at

the time of trial, has been retitled as rule 3.180. It provides: “A graphic device . . . which

is not in evidence and is to be used for illustration only in argument must be shown to

opposing counsel before commencement of the argument.”

21

ruling on a new trial motion, we find the trial court‟s order granting a new trial based on

irregularity in the proceedings was not a “manifest and unmistakable abuse of

discretion.” (Jiminez v. Sears, Roebuck & Co., supra, 4 Cal.3d at p. 387.) We therefore

defer to the court‟s conclusion that it was “reasonably probable that [respondents] would

have obtained a more favorable result absent the misconduct.” (Bell v. Bayerische

Motoren Werke Aktiengesellschaft, supra, 181 Cal.App.4th at p. 1122.)

B. Surprise

A trial court may order a new trial based on surprise. (Code Civ. Proc., § 657,

subd. (3).) The surprise must have detrimentally impacted the party moving for a new

trial, but the movant must not have been able to prevent or guard against it by ordinary

prudence. (Hata v. Los Angeles County Harbor/UCLA Medical Center (1995)

31 Cal.App.4th 1791, 1806.)

Appellant argues that introduction of the photo during closing argument failed to

affect the outcome of the case and was insufficient to constitute surprise as a ground for a

new trial order.

The court found the photo introduced by appellant was “highly inflammatory,”

and would have been excluded under Evidence Code section 352 because of its

prejudicial effect had appellant not failed to seek permission before presenting it. In fact,

the court found appellant‟s counsel “made a conscious decision not to comply with

[former Superior Court of Los Angeles County, Local Rules, rule 8.74] because he knew

that the court would deny him the right to show [the photograph] to the jury.” The court

concluded that revealing the “shocking photo” to the jury was “clearly detrimental” to

respondents and had a “material adverse effect” on them. The court stated respondents

could not have guarded against this effect, especially when considering appellant‟s

counsel‟s repeated violations of court orders and admonitions.

As we have discussed, failure of appellant‟s counsel to show the photograph to

opposing counsel before presenting it to the jury violated the Local Rules of the Los

Angeles Superior Court. The court‟s order indicates the photograph shows a man with

his head cut off. The determination of whether this constituted surprise as understood in

22

Code of Civil Procedure section 657 relies heavily on actually witnessing its presentation

to the jury. In such situations, “[e]ven the most comprehensive study of a trial court

record cannot replace the immediacy of being present at the trial, watching and hearing as

the evidence unfolds.” (Lane v. Hughes Aircraft Co., supra, 22 Cal.4th at p. 412.) We

conclude the order granting respondents‟ motion for a new trial based on surprise was not

a manifest abuse of discretion. The conduct of appellant‟s counsel in violating the rules

of the court and offering such an inflammatory photograph is sufficient evidence to

support the court‟s conclusion that it was prejudicial to respondents.

C. Excessive Damages

A jury‟s verdict also may be set aside and a new trial ordered when it awards

excessive damages. (Code Civ. Proc., § 657, subd. (5).) “As a general rule, when a

motion for new trial is granted on the ground of excessive damages . . . the order will not

be reversed unless it plainly appears the court has abused its discretion . . . .” (Dell’Oca

v. Bank of New York Trust Co., N.A. (2008) 159 Cal.App.4th 531, 547.)

Because appellant opted not to argue a constructive discharge theory, both counsel

and the court agreed that her economic damages award would be “limited to the

difference between the earnings of a marine clerk and the earnings of a vessel planner.”

Appellant‟s own attorney reiterated to the jury that it could only award the difference

between the two salaries. After the jury‟s questions to the court expressed confusion

regarding damages, the court, with agreement by all parties, clarified to the jury that the

difference between the two salaries was five percent and the evidence indicated the

yearly salary of a marine clerk was $160,000. The difference between the salaries of a

marine clerk and a vessel planner would have been $8,000 annually. The jury awarded

appellant $660,000 in economic damages. As the court pointed out in its order, this

would have required appellant to have worked for over 88 years. The court found this

award was “clearly excessive” and a “result of the application of the wrong standard” or

passion or prejudice. Based on the math before us, it does not appear the court has

abused its discretion. Appellant‟s main argument is the court should have rectified the

error through remittitur rather than awarding a new trial. This would have been the

23

proper remedy if it was the sole basis for the granting of a new trial. However, excessive

damages was not the only ground upon which the trial court granted the motion nor the

only ground upon which we affirm. Therefore, remittitur was not and is not an

appropriate method of dealing with the improper damages award.

The court‟s order granting a new trial on these three grounds is affirmed. Since

we must affirm an order granting a new trial “if it should have been granted upon any

ground stated in the motion” and identified by the court, we need not address appellant‟s

additional challenges to the court‟s new trial order on the grounds of insufficient

evidence and error in law. (Code Civ. Proc., § 657; see also Maher v. Saad (2000)

82 Cal.App.4th 1317, 1327.)

VI

Respondents cross-appeal the trial court‟s denial of a partial judgment

notwithstanding the verdict as to economic damages. Respondents ask us to reverse so as

to clarify for the court upon retrial that appellant has no claim for economic damages.

Respondents argue appellant‟s failure to establish a constructive discharge precluded her

from recovering any economic damages.

Respondents rely almost exclusively on federal law for this proposition. The trial

court denied the motion for partial judgment notwithstanding the verdict on economic

damages, concluding that respondent failed to cite statutory or case law authority for the

position that a constructive discharge was a prerequisite to recovery of economic

damages. Many federal courts have ruled that a constructive discharge is a prerequisite

when determining whether a plaintiff is entitled to economic damages. (See Sanchez v.

City of Santa Ana (9th Cir. 1990) 915 F.2d 424, 431; Betts v. Costco Wholesale Corp.

(6th Cir. 2009) 558 F.3d 461, 475; Spencer v. Wal-Mart Stores, Inc. (3d Cir. 2006) 469

F.3d 311, 317; Mallinson-Montague v. Pocrnick (10th Cir. 2000) 224 F.3d 1224, 1236.)

The federal cases applying this approach have dealt with employment discrimination

claims under Title VII rather than FEHA. As we have discussed, California courts look

to federal court interpretations of Title VII as a guide to interpreting FEHA provisions.

Nevertheless, this is limited to cases where the relevant provisions of each statute are

24

sufficiently similar. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 74.) When

there are significant differences between

federal law and FEHA, the persuasiveness and weight of federal precedents are

weakened. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026,

1040.)

Here we deal with the issue of what damages are recoverable in an employee‟s suit

alleging a violation of FEHA. While FEHA indicates individual suits for damages are

permitted to enforce its provisions, it does not specify what damages are recoverable.

(§ 12965, subds. (b)-(c); State Dept. of Health Services v. Superior Court, supra,

31 Cal.4th at p. 1042.) Title VII, on the other hand, expressly describes the remedies a

court may assess in such actions. (Commodore Home Systems, Inc. v. Superior Court

(1982) 32 Cal.3d 211, 217.) “FEHA does not limit the relief a court may grant in a

statutory suit charging employment discrimination.” (Id. at p. 215.) An analysis of the

two reveals that “FEHA offers greater protection and relief to employees than does Title

VII.” (Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 842.) Thus, federal

precedents are of diminished value in determining whether economic damages are

7

recoverable by appellant in the case at hand.

We addressed this issue in Cloud v. Casey (1999) 76 Cal.App.4th 895. There the

plaintiff resigned after being denied a promotion based on gender discrimination. (Id. at

p. 900.) After upholding the trial court‟s summary adjudication of a constructive

discharge claim, we found the court erred in refusing to allow the plaintiff‟s claims for

economic damages. (Id. at p. 909.) In doing so, we rejected the defendant‟s argument,

asserted here by respondents, that the federal precedents compelled the preclusion of

economic damages in the absence of a constructive discharge. We reasoned such a

7

Respondents also cite federal precedent for the theory that appellant was not

entitled to economic damages under FEHA because she was not objectively qualified for

the vessel planner position. The cases cited by respondents address the requirements for

establishing a prima facie case of discriminatory hiring or failure to promote. Thus, they

are not analagous to the context of what damages are awardable in a successful claim for

unlawful retaliation.

25

narrow limitation on what damages were recoverable was in disharmony with the

underlying statutory objective of FEHA, which is “to make the victim of discrimination

whole.” (Ibid.)

We conclude economic damages are awardable to appellant despite the absence of

a constructive discharge. FEHA does not limit damages and “all forms of relief granted

to civil litigants generally . . . are available . . .” regardless of whether the party aggrieved

was constructively discharged. (Commodore Home Systems, Inc. v. Superior Court,

supra, 32 Cal.3d at p. 215.) We affirm the trial court‟s denial of the motion for partial

judgment notwithstanding the verdict on the issue of economic damages. The claim may

again be brought upon retrial. The finder of fact will then be able to determine whether

unlawful retaliation took place and if so, what level of damages were suffered by

appellant as a result.

DISPOSITION

We affirm the court‟s summary adjudication of the sexual harassment and

intentional infliction of emotional distress claims. The award of judgment

notwithstanding the verdict in favor of PMA is affirmed. However, the trial court‟s

granting of judgment notwithstanding the verdict on appellant‟s retaliation claim is

reversed. We also reverse the court‟s exclusion of the evidence of retaliation by

respondent Yusen against other employees and direct it to reconsider the evidence in

accord with this opinion. We affirm the court‟s exclusion of the remaining evidence

included in respondents‟ motions in limine.

The court‟s granting of a new trial is upheld on the grounds of irregularity in the

proceedings, surprise and excessive damages. In all other respects, the judgment of the

court is affirmed. The case is remanded to the trial court for retrial consistent with this

26

opinion. PMA is to have its costs on appeal. Appellant and Yusen are to bear their own

costs on appeal.

CERTIFIED FOR PUBLICATION.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

SUZUKAWA, J.

27