APPEAL from a judgment of the Superior Court of Los Angeles County, Jane Johnson, Judge. (Los Angeles County Super. Ct. No. BC346725)
The opinion of the court was delivered by: Epstein, P. J.
CERTIFIED FOR PUBLICATION
Affirmed in part, reversed in part, and remanded with directions.
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) (Gov. Code, § 12900 et seq.)*fn1 ; 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 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 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 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 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 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.
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 ...