Pacific Maritime Association (PMA) serves as a bargaining agent for its membership, which includes stevedore companies, steamship lines, and port terminal operators. Yusen is a port terminal operator and a member of PMA.
Catherine McCoy worked as a marine clerk for Yusen. In 1998, she and others filed a federal lawsuit against Yusen and PMA based on allegations of unlawful discrimination. The lawsuit led to a confidential settlement that provided McCoy with training to become a vessel planner.
McCoy then filed a second action, alleging that the defendants deprived her of training materials and opportunities, harassed and shunned her in retaliation for her having brought the initial action. She also alleged that her supervisors made racially and sexually inappropriate comments, creating a hostile work environment. She brought claims for sexual harassment and retaliation in violation of FEHA, negligent supervision, hiring, and retention, and intentional infliction of emotional distress.
The trial court granted summary adjudication for defendants of all claims other than retaliation. The jury returned a retaliation verdict for McCoy against Yusen and PMA, but the trial court granted defense motions for JNOV and new trial. The Court of Appeal held:
The trial court did not err in granting summary adjudication on McCoy's sexual harassment claim. Comments by coworkers about other women's bodies on five to nine occasions over a four month period were insufficient to support a sexual harassment claim on a hostile workplace theory. "Although 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." Slip op. at 7-9.
The same evidence, together with evidence that McCoy faced isolation and ostracism, was not sufficient to support a claim for intentional infliction of emotional distress, and the trial court did not err in adjudicating that claim in favor of defendants. Slip op. at 9-10.
Regarding the trial of McCoy's retaliation claim, the trial court did not err in excluding evidence that one of McCoy's trainers "referred to other women's buttocks in racial terms and mocked the vernacular of other African-American employees." These "stray comments" were made by a nonparty, nonsupervisory employee, and had little probative value as to the retaliation claim. Slip op. at 10-11.
However, the trial court did err in excluding evidence that other employees who had filed the earlier litigation also faced retaliation. The trial court should have conducted a hearing to learn the details of the evidence and to determine the similarity to the conduct alleged by McCoy. Slip op. at 11-13.
The trial court erred in entering judgment for the defendants notwithstanding the verdict. McCoy presented substantial evidence from which the jury could conclude that she suffered retaliation: management exposed details of the prior litigation's confidential settlement to McCoy's supervisor and coworkers; these workers, upon whom McCoy relied for training, subjected McCoy to harassment and ignored her requests for assistance; McCoy's supervisor failed to intervene despite witnessing this abuse and being told of its impact on McCoy; and McCoy suffered "major depressive disorder and generalized anxiety" as a result. Slip op. at 15-17.
McCoy did not need to bring a claim for constructive discharge in order to prevail on her retaliation claim. Slip op. at 17.
However, the trial court did not err in granting JNOV for PMA, as McCoy did not present substantial evidence to support her claim that PMA was her joint employer:
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 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.
Slip op. at 17-19.
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.Slip op. at 19-22.
Counsel's use of this photo in closing also supported the trial court's decision to grant a new trial on the basis of surprise. Slip op. at 22-23.
Because McCoy did not sue for wrongful discharge, her damages were limited, and the jury's award of 88 years worth of economic damages was in error, supporting the trial court's decision to grant new trial on the basis of excessive damages. Slip op. at 23-24.
On the defendants' protective cross-appeal, the Court held that McCoy could recover economic damages in her retaliation action, even though she did not bring an action for constructive discharge. Slip op. at 24-26.
The opinion is available here.
On the defendants' protective cross-appeal, the Court held that McCoy could recover economic damages in her retaliation action, even though she did not bring an action for constructive discharge. Slip op. at 24-26.
The opinion is available here.
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