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Newton v. Equilon Enterprises, LLC

United States District Court, N.D. California

September 18, 2019

Ciara Newton, Plaintiff,
Equilon Enterprises, LLC dba Shell Oil Products US, Defendant.


          Yvonne Gonzalez Rogers United States District Judge

         On December 19, 2018, the jury returned a unanimous verdict in favor of defendant Equilon Enterprises LLC (“Equilon”), on plaintiff Ciara Newton’s claims for discrimination, Fair Employment and Housing Act (“FEHA”) retaliation, and whistleblower retaliation under California Labor Code section 1102.5, and in favor of plaintiff on her claims for harassment based upon gender and failure to prevent harassment. (Dkt. No. 248.) After phase two of their deliberations, on December 20, 2018, the jury returned a verdict awarding plaintiff $475,000 for past and future mental suffering and emotional distress, but found that plaintiff had not established knowledge, authorization, or ratification as a predicate for punitive damages. (Dkt. No. 253.)

         Presently pending before the Court are the following motions: defendant’s Renewed Motion for Judgment as a Matter of Law, for a New Trial, for Remittitur, or to Alter or Amend the Judgment (Dkt. No. 304); plaintiff Ciara Newton’s Motion for Attorneys’ Fees (Dkt. No. 292); and plaintiff’s Motion for Review of Taxation of Costs (Dkt. No. 332). Having fully considered the papers filed in support of and in opposition thereto, and for the reasons stated herein, the Court Orders that:

         The renewed motion for judgment as a matter of law, or in the alternative for a new trial, for remittitur, or to alter or amend the judgment is Denied.

         The motion for attorneys’ fees is Granted In Part and plaintiff is awarded reasonable attorneys’ fees in the amount of $841,543.73 and costs not otherwise awarded on her costs bill in the amount of $20,389.04.

         The motion for a review of taxation of costs is Granted In Part, and plaintiff is awarded $7,406.34 for trial transcripts and $5,885.63 for videotaped depositions previously disallowed by the Clerk on her costs bill.


         By its motion, defendant seeks an Order: (a) entering of judgment in Equilon’s favor plaintiff’s First Cause of action for sexual harassment and Fourth Cause of Action for failure to prevent harassment; (b) a new trial on plaintiff’s First and Fourth Causes of Action; (c) a remittitur of damages awarded by the jury to a sum of no more than $25,000; or (d) an amendment of the judgment to reduce the damages herein to no more than $25,000. Defendant seeks this relief on the grounds that: (1) a reasonable jury would not have a legally sufficient evidentiary basis to find in favor plaintiff on her First or Fourth Causes of Action, or to award the damages that were awarded; (2) the liability verdict was the result of prejudicially erroneous jury instructions; (3) the damages verdict was the result of erroneous instructions; (4) the damages verdict was the result of plaintiff’s counsel’s prejudicial misconduct, and/or passion and prejudice; and (5) the damages were excessive and against the clear weight of the evidence.

         I. Applicable Standards

         In order to grant a motion for new trial under Rule 59, the trial court must find that “the verdict is contrary to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice.” Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d 493, 510 n. 15 (9th Cir. 2000). “Upon the Rule 59 motion of the party against whom a verdict has been returned, the district court has the duty . . . to weigh the evidence as [the court] saw it, and to set aside the verdict of the jury, even though supported by substantial evidence, where, in [the court’s] conscientious opinion, the verdict is contrary to the clear weight of the evidence.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (internal quotation omitted). Thus, in connection with a motion for new trial, “[t]he judge can weigh the evidence and assess the credibility of witnesses, and need not view the evidence from the perspective most favorable to the prevailing party.” Landes Constr., Co., Inc. v. Royal Bank of Canada, 833 F.2d 1365, 1371–72 (9th Cir. 1987) (quoting 11 Wright & Miller, Fed. Prac. & Proc. § 2806, at 48–49). While there is no set formula, the Ninth Circuit has held that the Court should grant the motion for new trial “[i]f, having given full respect to the jury’s findings, the judge on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id.; see also O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc., 420 F.Supp.2d 1070, 1075 (N.D. Cal. 2006) aff’d, 221 Fed.Appx. 996 (Fed. Cir. 2007) (same). Where multiple theories could support the verdict, sufficient evidence as to any of one of them will defeat a motion for new trial. See McCord v. Maguire, 873 F.2d 1271, 1273–74 (9th Cir.), opinion amended on denial of reh’g, 885 F.2d 650 (9th Cir. 1989) (“When a general verdict may have rested on factual allegations unsupported by substantial evidence, we will uphold the verdict if the evidence is sufficient with respect to any of the allegations.”); Weaving v. City of Hillsboro, 763 F.3d 1106, 1121 (9th Cir. 2014) (same); S.E.C. v. Todd, 642 F.3d 1207, 1213 n.1 (9th Cir. 2011) (on motion for new trial, where four independent factual bases supported the jury verdict, reviewing sufficiency of evidence for all four bases not necessary).

         Similarly, a court must “allow substantial deference to a jury’s finding of the appropriate amount of damages” and “must uphold the jury’s finding unless the amount is grossly excessive or monstrous, clearly not supported by the evidence, or based only on speculation or guesswork.” Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422, 1435 (9th Cir. 1996).

         A more stringent standard applies to a motion for judgment as a matter of law after a verdict pursuant to Rule 50(b). In reviewing a renewed motion for judgment as a matter of law under Rule 50(b), the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. Josephs v. Pacific Bell, 443 F.3d 1050, 1062 (9th Cir. 2006). “The test applied is whether the evidence permits only one reasonable conclusion, and that conclusion is contrary to the jury’s verdict.” Id. “A jury’s verdict must be upheld if it is supported by substantial evidence.” Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir. 2001) (emphasis supplied) (further explaining that “[s]ubstantial evidence is evidence adequate to support the jury’s conclusion, even if it is also possible to draw a contrary conclusion from the same evidence”). The court may not weigh evidence or order a result it finds more reasonable if substantial evidence supports the jury verdict. Mosesian v. Peat, Marwick, Mitchell & Co., 727 F.2d 873, 877 (9th Cir. 1984). While the court should review the record as a whole, “it must disregard all evidence favorable to the moving party that the jury is not required to believe.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000). A motion under Rule 50(b) cannot be granted unless “the evidence permits a reasonable jury to reach only one conclusion . . . and that conclusion is contrary to the jury’s verdict.” Martin v. California Dep’t of Veterans Affairs, 560 F.3d 1042, 1046 (9th Cir. 2009) (internal citations and quotation marks omitted).

         II. Discussion

         A. Lack of Substantial Evidence of Harassment or Failure to Prevent Harassment

         1. Harassment on the Basis of Gender

         Defendant argues that there was no substantial evidence to support the jury’s verdict on her harassment claim because the evidence on which she relies largely was not gender-based or linked to bias, and most events took place outside of the applicable statute of limitations period. Here, plaintiff filed her complaint with the Department of Fair Employment and Housing on May 24, 2017, and the statute of limitations is one year. Cal. Gov’t Code § 21960(d). Thus, defendants argue that events occurring prior to May 24, 2016 cannot be considered to establish the gender harassment claim.

         An employer may be held liable for hostile environment harassment “created by one or more supervisors with immediate authority over the plaintiff.” Davis v. Team Elec. Co., 520 F.3d 1080, 1096 (9th Cir. 2008); see also State Dept. of Health Services v. Sup. Ct. (McGinnis), 31 Cal.4th 1026, 1041 (2003) (“by implication the FEHA makes the employer strictly liable for harassment by a supervisor.”). Where a defendant’s “supervisors played a significant role in creating the environment, making it clear to [the plaintiff] on more than one occasion that women were not welcome on the work site,” a reasonable jury can find the defendant liable for harassment. Id.

         Under the continuing violations doctrine, “an employer is liable for actions that take place outside the limitations period if these actions are sufficiently linked to unlawful conduct that occurred within the limitations period.” Yanowitz v. L’Oreal USA, Inc., 36 Cal.4th 1028, 1056 (2005). A continuing violation may be established by a series of related acts against a single individual. Morgan v. Regents of the Univ. of Cal., 88 Cal.App.4th 52, 64 (2000).[1] The continuing violation doctrine applies when an employer’s unlawful acts are: (1) sufficiently similar in kind; (2) have occurred with reasonable frequency; and (3) have not acquired a degree of permanence. Richards v. CH2M Hill, Inc., 26 Cal.4th 798, 823 (2001). “Cases alleging a hostile work environment due to racial or sexual harassment are often found to come within the continuing violations framework” since a hostile environment claim, by its nature, often concerns an ongoing course of conduct rather than a single, discrete act. Morgan, 88 Cal.App.4th at 65; see, e.g., Sanders v. Dania Inc., No. CV-01-33-HU, 2001 WL 34736295, at *20 (D. Or. Dec. 6, 2001) (finding sufficient evidence of a continuing violation where “most of the ten incidents expressly involve a common type of discrimination: . . . racial harassment . . . [and] different supervisors perpetuated or condoned the acts at different times . . . [indicating that the incidents] are not isolated, sporadic, or discrete.”).

         The jury heard substantial evidence from which it could conclude that conduct by Jeffrey Fischer that occurred prior to May 24, 2016, was sufficiently linked to his and others’ conduct within the limitations period. Prior to May 24, 2016, Fischer stated that “women don’t last long” in the Op-Cen department where plaintiff was assigned. (Trial Tr. Vol 2 at 401.) He challenged the reasons for plaintiff’s hiring, stating “who would hire you,” “you must have put on a good show,” and “things would have been different if he did the hiring.” (Trial Tr. Vol. 2 at 10-20.) Fischer told plaintiff she was not “mechanically inclined,” even though she passed the same mechanical aptitude test that all operators had to take in order to be hired. (Trial Tr. Vol. 3 at 431-32.) Fischer also told her she could not be assigned to a team because they “already had a girl” referring to a male employee he said was “basically a girl . . . [because he] bitches all the time.” (Trial Tr. Vol. 2 at 398.) Fischer repeatedly told plaintiff that “women don’t make it” and “women don’t last long” in his department. (Trial Tr. Vol. 2 at 401.)

         After that May 24, 2016, plaintiff testified that on May 27, 2016, Fischer “asked to see my checklist and he told me that I wasn’t qualified, and he took a whiteout and whited out all of the guy[s’] signatures who had signed off on my list,” even though the same signatures were accepted on her male co-workers’ checklists. (Trial Tr. Vol. 3 at 442.)[2]

         With respect to other supervisors, plaintiff testified that, after May 24, 2016, Cameron Curran, repeatedly asked her if she was scared, if she was sure she wanted to work at the refinery, and whether her husband thought it strange or was bothered by her working there. (Trial Tr. Vol. 3 at 450-452.) On August 29, 2016, plaintiff testified that her then-supervisor Richard Metcalf held a daily team safety meeting in which the topic of the conversation was “train your wives so they don’t panic because they don’t know how to react in the case of an emergency.” (Trial Tr. Vol. 3 at 508.) Plaintiff perceived the conversation as “being offensive because it was just a lot of categorizing that women were not able to react under pressure.” (Trial Tr. Vol. 3 at 508.)

         Also on the morning of August 29, 2016, plaintiff found the “stay home” sticker[3] left on her desk, just before that morning safety meeting. Some of plaintiff’s male co-workers wore the sticker on their hardhats. (Trial Tr. Vol. 1 at 138-139; Vol. 5 at 870.) After being told about the sticker by another supervisor, later that day Metcalf called plaintiff into his office and asked if plaintiff found the sticker offensive, to which she said “yeah.” (Trial Tr. Vol. 3 at 506.) Plaintiff testified that Metcalf then asked her “are you easily offended” and said he:

needed to know because I’m going to have to talk to these guys about changing the way they talk. They have been working on this team for so long and, if they need to change the way they talk, I’m going to have to let them know.

(Trial Tr. Vol. 3 at 507.) Plaintiff responded that she was not easily offended and “just wanted to do my job and go home and not be . . . singled out.” (Id.)

         Ultimately, defendant’s motion rests not on a lack of substantial evidence, but on defendant’s own interpretation of that evidence. Defendant cites to testimony by employees Jose Navarro and Patrik Neuman that they never witnessed Fischer disparaging or treating plaintiff differently on account of her gender, while discounting that the jury also heard plaintiff’s testimony to the contrary. Similarly, defendant recounts trial testimony about various incidents solely to characterize them as “gender-neutral,” “managerial activity,” or “simply someone’s observation,” rather than evidence of a hostile work environment. For instance, defendant’s witness, Jose Navarro, testified that “[t]he only thing I heard [Fischer] say [about women] was that typically women don’t last long in OpCen and that they tend to leave or [t]hey don’t make it in the department.” (Trial Tr. Vol. 5 at 857.) Defendant argues that this testimony did not mean Fischer did not want women in OpCen, or did not think women were capable of making it in the department, so it could not be evidence of bias against women. However, it is the jury’s purview to decide what the evidence means, whether it is credible, and how to weigh it.

         2. Failure to Prevent Harassment

         Moreover, plaintiff presented substantial evidence to support the jury’s finding on failure to prevent harassment. “The most significant immediate measure an employer can take in response to a sexual harassment complaint is to launch a prompt investigation to determine whether the complaint is justified.” Swenson v. Potter, 271 F.3d 1184, 1193 (9th Cir. 2001). The investigation “can itself be a powerful factor in deterring future harassment . . . [since it] puts all employees on notice that [the employer] takes such allegations seriously and will not tolerate harassment in the workplace.” Id.

         Here, the substantial evidence included Equilon’s failure to take reasonable steps to prevent harassment. In response to the “stay home” sticker incident, the jury heard evidence that Equilon failed to take any steps to investigate the sticker incident and discipline any employee for it and that Equilon failed to take reasonable steps to prevent harassment at the refinery. (Trial Tr. Vol. 1 at 71-74, Vol. 2 at 262, 329-30.) More than that, prior to the sticker incident plaintiff reported to her superiors that she felt she was being subjected to unfair, differential treatment. Specifically, on August 2, 2016, plaintiff met with Human Resources representative Christine Layne. Plaintiff explained in that meeting that Fischer had told her “women don’t make it” and “women don’t last long” in OpCen, that “you can’t go on that team because you’re a girl,” and constantly threatened to “walk her to the gate” (i.e. terminate her) like another female operator who had been walked to the gate in tears. (Trial Tr. Vol. 3 at 500.) Rather than let plaintiff say anything more about what had happened, plaintiff testified Christine Layne told her to “stop right there” and “think about what you’re doing,” because “you are making some very serious accusations.” (Id. at 500-01.) Layne did nothing to follow up or investigate plaintiff’s concerns or the incidents with Fischer. (Trial Tr. Vol. 2 at 327-30.) Plaintiff further testified that when she told her supervisor, Eric Perez, about these same incidents about a month before the August 2 meeting, Perez told her it was just hearsay unless she could get her male co-workers in her training group to corroborate her story. (Tr. Vol. 3 at 501-02.)

         Based upon Equilon’s failure to investigate plaintiff’s complaints of unfair treatment, failure to investigate the sticker incident, and the implicit message that the company put the onus on plaintiff to get her co-workers (who were also on probation at the time) to speak up against their superior rather than do any investigation itself. The jury had more than sufficient evidence to conclude that defendant “failed to take all reasonable steps to prevent harassment.”

         B. Erroneous Instructions On Liability Standard

         1. Harassment Instruction

         Defendant next argues that the Court substantially and prejudicially deviated from the standard California Judicial Council-approved model Civil Jury Instruction on “Harassing Conduct” (CACI 2523) when it instructed the jury that:

         Harassing conduct may include, but is not limited to, any of the following:

a. Verbal harassment, such as obscene, demeaning, derogatory, or intimidating language;
b. Visual harassment, such as offensive posters, objects, cartoons, or drawings; or
c. Other hostile or abusive social interactions

(Dkt. No. 238 at 8, emphasis supplied; see Trial Tr. Vol. 6 at 1117:17-25.) Defendant contends the “other hostile or abusive social interactions” language misstates California law and creates an inference that any unpleasant conduct can be used to establish harassment. Specifically, defendant urges that the phrase “hostile social interactions” drawn from the California Supreme Court’s decision in Roby v. McKesson Corp., 47 Cal.4th 686 (2009), was simply a summary label for the more specific types of conduct encompassed by CACI 2523, not an additional category of behavior to be included in the definition of harassing conduct. Defendant thus urges that the “other” category was sufficiently vague as to invite the jury to attempt to fill the conceptual gap, and to sweep any offensive conduct up into the “harassment” claim.

         The CACI 2523 model instruction contemplates modifications to tailor the instruction to fit plaintiff’s theory of the case consistent with the case law. Thus, the model provides:

         Harassing conduct may include, but is not limited to, [any of the following:]

[a. Verbal harassment, such as obscene language, demeaning comments, slurs, [or] threats [or] [describe other form of verbal harassment];] [or]
[b. Physical harassment, such as unwanted touching, assault, or physical interference with normal work or movement;] [or]
[c. Visual harassment, such as offensive posters, objects, cartoons, or drawings;] [or]
[d. Unwanted sexual advances;] [or]
[e. [Describe other form of harassment if appropriate, e.g., derogatory, unwanted, or offensive photographs, text messages, Internet postings].]

         The Court modified CACI 2523 by deleting sections [b] and[d] which were not at issue in this case.[4]Section [e] calls for an instruction describing the other forms of harassment specific to plaintiff’s theory of the case. The Court thus instructed the jury that harassing conduct could include “other hostile or abusive social interactions.”

         As noted, the case law supporting the Court’s instruction comes from the California Supreme Court’s decision in Roby, supra, a case specifically cited in CACI 2523’s annotations. The Roby court held that evidence of harassment can include “bias that is expressed or communicated through interpersonal relations in the workplace,” “hostile social interactions,” and “abusive messages that create a hostile working environment.” Id. at 707-09. The court found that evidence of a supervisor engaging in daily “rude comments and behavior” toward plaintiff, “shunning” her during staff meetings, “belittling” her work, making demeaning comments, gestures, and facial expressions related to her disability, and reprimanding her in front of her coworkers was “sufficient to allow the jury to conclude that the hostility was pervasive and effectively changed the conditions of Roby’s employment.” Id. at 710 (citing Lyle v. Warner Brothers Television Productions, 38 Cal.4th 264, 278–279 (2006)); see also Pantoja v. Anton, 198 Cal.App.4th 87, 130 (2011) (finding that a trial court should have given additional jury instruction to “make clear that abusive language or behavior of many kinds, not only sexual innuendo or gender-related language, can create an actionable hostile working environment if motivated by gender bias”).[5]

         Contrary to defendant’s argument, CACI 2523 sections [a]-[c]-which focus on obscene language, slurs, threats, unwanted touching or physical assault, and offensive visual representations-do not capture the conduct discussed in Roby as “hostile social interactions.” Had the Court given only the instructions in sections [a]-[c], without further explanation of harassing conduct, it would have risked misleading the jury. Under similar circumstances, the California Court of Appeal reversed a defense judgment, finding that a jury instruction limited along the lines of sections [a]-[c] to be:

misleading under the circumstances of this case. Without some form of clarification, the instruction could have caused the jury to draw the inference that harassing conduct or comments motivated by a gender-based discriminatory intent do not amount to an actionable hostile environment unless there is “sexual innuendos” or “gender-related language.” This inference would be incorrect because abusive conduct that is not facially sex specific can be grounds for a hostile environment sexual harassment claim if it is inflicted because of gender, i.e., if men and women are treated differently and the conduct is motivated by gender bias.

Pantoja, 198 Cal.App.4th at 130. The court there held that the problem could have been corrected by instructing the jury that verbal abuse and hostility alone did not constitute actionable harassment but could be actionable “if motivated by gender bias.” Pantoja, 198 Cal.App.4th at 132 (emphasis in original).

         Here, the jury was instructed on the meaning of “harassing conduct” in the context of an instruction requiring them to find both that plaintiff was “subjected to unwanted harassing conduct because she was a woman” and that “the harassing conduct was severe or pervasive.” (Dkt. No. 238 at 8.) Thus, the instruction on plaintiff’s harassment claim, considered in full, properly allowed the jury to consider hostile or abusive conduct not expressly sexual or gender-based on its face, while still cabining conduct motivated by gender bias.[6]

         Further, here, the jury heard evidence of supervisors engaging in conduct or making statements that were not expressly “obscene, demeaning, derogatory, or intimidating language” as stated in section [a] of CACI 2523, but that could nevertheless, under Roby, constitute harassing conduct if the jury found they were “rude,” “belittling,” or “hostile social interactions” that amounted to “bias . . . expressed or communicated through interpersonal relations in the workplace.” The instruction was properly tailored to the theory of harassment argued by plaintiff and supported by California law.[7]

         2. Failure to Investigate Instruction

         Defendant next argues that the Court’s “failure to investigate” instruction compounded the error in its harassment instruction. Defendant contends that the Court’s instruction, in connection with plaintiff’s gender discrimination and retaliation claims, that “[t]he lack of an investigation may be considered evidence that Ciara Newton’s gender was a substantial motivating reason for defendant’s decision to terminate her,” invited a false inference that failure to conduct an investigation could also establish plaintiff’s harassment or failure to prevent harassment claims.

         The “failure to investigate” instruction about which defendant complains was one portion of the instruction entitled “‘Substantial Motivating Reason’ For Purposes of Gender Discrimination (Second Claim) and FEHA Retaliation (Third Claim).” The full instruction stated:

As used in the instructions for the Second and Third Claims, a “substantial motivating reason,” like a “substantial factor,” means a reason that actually contributed to Ciara Newton’s termination. It must be more than a remote or trivial reason. It does not have to be the only reason motivating the termination.
Even if the person or persons who made the ultimate decision to terminate Ciara Newton did not hold any discriminatory or retaliatory intent, you may still find that gender discrimination or retaliation was a “substantial motivating reason” for defendant Equilon Enterprises, LLC dba Shell Oil Products US’s decision to terminate Ciara Newton if she proves:
(a) gender discrimination or retaliation was a substantial motivating reason for recommending her termination or providing information supporting her termination; and
(b) the recommendation or information actually contributed to the decision to terminate her.
The lack of an investigation may be considered evidence that Ciara Newton’s gender was a substantial motivating reason for defendant’s decision to terminate her.

(Dkt. No. 238 at 12, emphasis supplied; see Trial Tr. Vol. 6 at 1122:12-1123:6.)

         The Court’s instruction on the Fourth Claim for failure to prevent harassment followed next in the order of the jury instructions provided. The instruction on the ...

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