Opinion
G052670
05-09-2017
MUYLENG BARDON, Plaintiff and Appellant, v. MICROVENTION, INC., Defendant and Respondent.
Wilson Kyncl & Khashan and Lewis Khashan for Plaintiff and Appellant. Stuart Kane, Bruce D. May and Eve A. Brackmann for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2013-00691552) OPINION Appeal from a judgment of the Superior Court of Orange County, David R. Chaffee, Judge. Reversed and remanded with directions.. Wilson Kyncl & Khashan and Lewis Khashan for Plaintiff and Appellant. Stuart Kane, Bruce D. May and Eve A. Brackmann for Defendant and Respondent.
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A jury rendered a verdict for compensatory and punitive damages in favor of plaintiff Muyleng Bardon in this employment discrimination action. The trial court entered judgment on the jury verdict for plaintiff. The court then granted defendant, Microvention, Inc.'s motion for judgment notwithstanding the verdict (JNOV). Though the jury found in favor of plaintiff on her claims for constructive discharge, harassment based on age and race, retaliation, discrimination, and intentional infliction of emotional distress and awarded compensatory and punitive damages, the court granted JNOV on grounds there was insufficient evidence to support any theory of liability and entered a new judgment in favor of defendant.
Plaintiff contends substantial evidence supports the jury's verdict and therefore the court erred in granting JNOV. We agree substantial evidence supports plaintiff's cause of action for retaliation in violation of the Fair Employment and Housing Act (FEHA). We also agree there is support for the jury's award of compensatory damages. Plaintiff, who is Asian, established she suffered an adverse employment action immediately following her complaint of racial discrimination by a Spanish-speaking employee. We reject defendant's contention its actions were justified due to plaintiff's alleged inability to adequately read English. As such, we need not address whether there is substantial evidence to support plaintiff's other causes of action.
But the punitive damages award cannot stand, because there is no evidence of defendant's financial condition. Accordingly, we reverse the judgment entered after the court granted JNOV with directions to reinstate, nunc pro tunc, the original judgment in favor of plaintiff for compensatory damages.
FACTS AND PROCEDURAL HISTORY
1. Defendant Hires Plaintiff To Work In Quality Control
Plaintiff was born in Cambodia and came to the United States in 1981. She speaks Cambodian (Khmer), English and some Chinese. Defendant manufactures catheters and related medical technology used for treating cerebral aneurysms and preventing strokes. The products are strictly regulated by the Food and Drug Administration and must be manufactured under stringent conditions to assure product quality and patient safety. Defendant has over 1,400 employees worldwide.
In August 2006 defendant hired plaintiff as a quality care technician to work in its Tustin facility. Plaintiff had 29 years of experience working in quality control. Plaintiff interviewed for the position in English. Her job required her to create written records in English, and according to plaintiff she had no problem doing so. Plaintiff's starting salary was $15.50 per hour. She started in the "clean room" inspecting finished goods. Her supervisor was Jimmy Huynh. While in the clean room, her duties included measuring the length of materials using a ruler and microscope.
The parties interchangeably refer to plaintiff's position as quality care technician, quality control technician or inspector. When first hired, plaintiff was a quality control inspector I.
Three years after she was hired, plaintiff was moved to the receiving inspection area outside the clean room. Plaintiff testified she worked hard to earn the right or privilege to work outside the clean room. Her new manager was Theresa McRorie, and Margarita Guzman was the "lead" person. As a lead, Guzman was not a supervisor but provided technical expertise and knew the duties of all the quality care inspectors.
During her time working for defendant, plaintiff attended three classes held in English (precision gage calibration, repair and handling; basic dimensional tools and methods; and blueprint reading) and received a certificate of completion in each. She said her job required her to read blueprints, and she never had difficulty reading blueprints in English. 2. Plaintiff's Performance Reviews
Plaintiff's performance reviews in 2007, 2008, 2009, 2010, and 2011 reflect she performed very well and usually exceeded expectations or met expectations in all areas reviewed. She received yearly merit increases and discretionary bonuses. There were never any complaints about plaintiff's job duties or performance as a quality control inspector I. In her 2008 review, plaintiff received comments stating she can focus on her work and accomplish a high level of quality output and she exhibits a great deal of concern that every device is perfect.
Defendant promoted plaintiff to quality care inspector II in 2009. The job description for quality care inspector II signed by plaintiff states "must read and write English," but plaintiff was never told by McRorie she was required to speak English and was never given an English test. Plaintiff's 2010 review, the first after her promotion to quality care inspector II, states she is "attentive to detail and accuracy, is committed to excellence, looks for improvement continuously, monitors quality levels, finds root cause of quality problems, owns/acts on quality problems." McRorie wrote plaintiff "shows a strong commitment to quality. She is thorough and accurate in all her projects, and continually tries to improve whatever she is doing. [Plaintiff's] attention to detail has brought attention to critical cosmetic issues (i.e. cracked hubs). [Plaintiff] is a great addition to the Receiving Inspection Team." 3. Plaintiff Complains About Guzman But Nothing Is Done
In 2011 Michael Schwartz replaced McRorie as the manager in plaintiff's department. Within a few weeks, plaintiff complained to Schwartz that employees were harassing her and Guzman was mean to her. She also complained about bias against Asian employees. Plaintiff testified Guzman, Carmen Palafox, and Maria Garcia liked to tease or mock her when she was alone working with them. Garcia mocked her by saying she was married to a white man and "how's that possible? You can't speak English."
Schwartz admitted plaintiff approached him when he first took over the department and told him Guzman was speaking mean to her, admitted plaintiff approached him on more than one occasion complaining Spanish-speaking employees were talking about her behind her back, and admitted plaintiff complained to him about bias against Asian employees. He said he called Guzman into his office and she denied plaintiff's allegations. He told Guzman he would not tolerate activity of that nature. He then followed up with employees "both of Hispanic and oriental backgrounds" and none corroborated plaintiff's claim. He states he went to Cheriette Henket, defendant's global human resources director, and told her about plaintiff's complaint. He relayed his findings to Henket but admitted since he was fairly new to the group he could tell some of them were "not exactly comfortable talking to me." However, he did not write a report memorializing his investigation.
Former employee Socorro Merritt corroborated plaintiff's claims of bias. She testified she saw Guzman treat Asian employees differently than she treated Spanish-speaking employees. When asked for detail, she replied, "Well, about making remarks about, you know, how slow this person was." Guzman talked about and made comments about Asians in Spanish. Merritt testified when she was there, McRorie harassed her, and the company could have done more to help her with her harassment complaints. Merritt admitted she had a fallout with Guzman and was fired but denied any bias in her testimony as a result.
When she testified, Guzman denied plaintiff's age or race had anything to do with her treatment of plaintiff. She also denied ever hearing anyone talk in Spanish about plaintiff behind her back. However, she testified she can push the Spanish speakers more than she can push Asians because she feels Asians are sensitive. Guzman admitted to not pushing the Asian employees like she pushes the Spanish-speaking employees. She said she speaks Spanish with the Hispanic people. Later she said she gave directions to Spanish-speaking employees in English, not Spanish, but her deposition testimony read to the jury contradicted her trial testimony. She admitted pushing the Spanish-speaking employees more helps the department "have more expedite out" [sic].
After she complained to Schwartz, plaintiff took her complaints to Thomas Nguyen, a supervisor outside her department. She and two other employees, Michelle Chau and Mao Hoang, complained they had problems with Guzman. According to plaintiff, Nguyen told them to write a united letter and he would then speak with Guzman. Nguyen testified he could not recall this meeting exactly but he believed it was about overtime and plaintiff said nothing about race. They did not write the letter, because plaintiff was afraid of losing her job. Cheriette Henket testified if plaintiff made complaints to Schwartz and Nguyen, they should have brought the complaints to her.
Plaintiff's 2011 review was her first by Schwartz. As to quality he wrote plaintiff "[i]s attentive to detail and accuracy, is committed to excellence, looks for improvements continuously, monitors quality levels, finds root cause of quality problems, owns/acts on quality problems." By 2011 she was earning $19.11 per hour. 4. Plaintiff Again Complains About Guzman And Defendant Investigates
In August 2011 plaintiff made an anonymous complaint to defendant's global hotline stating Guzman was not a good lead person to handle quality control, she does not improve work for the company, and she holds back paperwork that employees need and then releases it claiming the employees are too slow. Plaintiff also complained that Guzman was very prejudicial and discriminatory toward Asian workers, that she trains Mexican workers first in Spanish, and that she does not give Asians the same opportunity for work and training on testing.
Henket testified she responded to the anonymous complaint by conducting an investigation. In a follow-up complaint about a month later, plaintiff identified herself as the complainant. Henket testified she spoke with Schwartz, Guzman, and others, including Garcia, Huynh, Hoang, Chau, Palafox, Vin Cutarelli, Thomas Sternweiler, Annie Lin, Eddie Solana, and Sherika Leng. No one had seen Guzman treat Asians any differently than Hispanics. Henket made notes summarizing what each employee said. However, Henket never spoke with plaintiff about her allegations.
According to Henket, when the second complaint with plaintiff's name was received in September 2011, there was no need to reinvestigate, because it was a follow-up, she had already investigated the first complaint and there was no difference in the content between the two. There was also a third complaint in March 2012.
Exhibit No. 102 labelled "Henket Notes" is a nine-page typed document that appears to summarize conversations Henket had with these individuals. Each entry is dated March 26, 27, 28, or 29, 2012. There is a parenthetical by some individuals' names stating "also interviewed" followed by dates in August and September 2011.
Sternweiler, defendant's senior director of quality and liability, testified Schwartz never told him plaintiff had complained of harassment by Guzman or other employees. If Schwartz had received a complaint, Schwartz should have told him. He recalled an investigation of some sort but did not remember the dates. Similarly, he said Henket never brought him the global hotline complaint, but he remembered having a conversation with Henket about plaintiff's complaint where Henket said she would be doing an internal investigation. Nevertheless he testified he had never seen Guzman treat Asian employees differently than she treated employees who speak Spanish.
Employees Huynh, Chau, Hoang, Garcia, and Lang all testified they were never interviewed regarding plaintiff's complaints. 5. Schwartz Assigns Guzman To Retrain Plaintiff In The Pyrogen Test
The next month, in September 2011 plaintiff was asked to perform the pyrogen test (sometimes called the pyrogen LAL test or the LAL pyrogen test), a technical test commonly conducted in the receiving inspection department. It requires reasonably good English comprehension to read the instructions and to perform the test. Schwartz wanted everybody in the department to be cross-trained to give the company flexibility when people were absent or on vacation, and to allow employees to expand their skill sets.
But at the time of trial there was one person, Rosita Pineda, who had not been trained and could not do the pyrogen test.
Plaintiff was first trained in the pyrogen test in 2010 by Garcia, but plaintiff testified Garcia did not properly train her and she did not learn the test. Garcia, however, said she spent one week and three days training plaintiff, but plaintiff was unable to perform the test. Garcia said the test is very simple and repetitive and she was frustrated when plaintiff could not do it. She said plaintiff complained that Garcia was not training her properly and that Garcia wanted her to fail. Garcia denied wanting to make plaintiff fail. Garcia testified plaintiff told her whenever plaintiff was asked to do something she did not like, she would complain that she was not trained properly, and eventually they would not ask her to do it any more.
Because she had not performed the test since some time in 2010, plaintiff asked for follow-up training. Schwartz instructed Guzman to walk her through the first sample as a reminder and to let plaintiff do the remaining samples. At the time, Schwartz knew plaintiff had been complaining about Guzman harassing her and discriminating against her.
Plaintiff asked Guzman if she could have a day of training so she could perform the test. Guzman responded no because she already had prior training for two weeks. Plaintiff said she had forgotten the specifics of the test and she wanted Guzman to just do a sample walk-through so she could observe what Guzman was doing manually. Plaintiff performed pyrogen testing and several lots failed to pass. When retested by different personnel, the lots passed. Plaintiff testified Guzman was trying to create problems for her by asking her to do the test on five lots. Plaintiff would have preferred Guzman just give her the test instructions and let her read them.
Plaintiff explained her tests failed because she had not performed the test for nine months and if the pipetting was over or under by one drop, the result would change. She understood defendant expected her to be able to do the test exactly right every time. Schwartz testified the consequences to a failed test would not necessarily be fatal to the patient, but it would bring into question the cleanliness of the room in which the product was manufactured. Production would have to stop, and an investigation would need to be done to locate the pyrogen.
Guzman reported back to Schwartz. She said plaintiff could not perform the pyrogen test after being trained for two weeks because of her lack of reading and writing English. To Henket's knowledge, this was the first time during plaintiff's employment that plaintiff was unable to perform her work because of an alleged inability to read English. 6. Plaintiff Is Sent Back To The Clean Room
Upon learning of the situation from Guzman, Schwartz had a one-on-one meeting with plaintiff where he asked her to read over the test methods and tell him in her own words what it meant. According to Schwartz, plaintiff was not able to do it, and he sent her back to the lab to continue working. He then spoke to Sternweiler. He, Sternweiler, and Henket discussed the issue and decided they would move plaintiff into an area where there is less reading required and then allow her to pursue English as a second language classes paid for by defendant. Collectively they decided to reassign plaintiff to the clean room.
Plaintiff was then called into a meeting with Schwartz and Henket. Plaintiff was told the job description for quality control inspector II requires the ability to read and understand technical documents. According to Schwartz, plaintiff acknowledged she had difficulty with comprehending written English in departmental documents. She responded she may not read English well, but she could ask her lead, Guzman, for instruction. She said she does not have a problem reading documents in English but if ever there was a word she did not understand, there was someone she could ask. However, she denied ever having an occasion where she could not read a document in English well enough effective the next day where she would once again report to Huynh. She was told the position change would not change her title/level or current compensation. Henket admitted the work plaintiff would be doing in the clean room was easier than her work in receiving inspection.
Plaintiff testified she felt hurt, disappointed and like she was being unfairly demoted without cause. Schwartz told plaintiff to go home. Plaintiff asked if she could go back to her station to tidy up before leaving, but Schwartz said no, he would send someone else to do it. She left the workplace that day and never returned.
Henket testified after plaintiff left defendant's employ, Schwartz promoted Guzman to supervisor. Sternweiler approved the promotion.
At trial plaintiff was able to read and explain the pyrogen test. Henket admitted plaintiff never had a language comprehension problem before. And she acknowledged there are other tests an employee must perform in receiving inspection and during plaintiff's time working in receiving inspection for over a year, plaintiff had no problems performing these other tests. 7. Plaintiff Takes A Leave Of Absence And Files A Complaint With The Department Of Fair Employment And Housing (DFEH)
In October 2011 plaintiff requested a two-month medical leave of absence effective September 21, 2011 for "stress due to bullying and discriminatory conduct by coworkers, lead, and manager." Defendant approved the medical leave of absence and later approved an extension for her leave. Later plaintiff requested to return to work in March 2012, but defendant did not have a position available for plaintiff and her leave had already expired.
In February 2012 plaintiff filed a discrimination complaint under FEHA with the (DFEH). In April 2012 defendant responded by denying all of plaintiff's allegations. In December 2012 the DFEH dismissed plaintiff's complaint for insufficient evidence and provided plaintiff with a right to sue notice. 8. Plaintiff Files Suit, The Jury Finds For Plaintiff And The Court Grants JNOV
One year later plaintiff filed the instant action naming as defendants Microvention, Inc., Schwartz, and Guzman. She alleged causes of action for wrongful termination in violation of public policy; retaliation in violation of Government Code section 12900 et seq. (all further statutory references are to this code unless otherwise specified); intentional infliction of emotional distress; failure to prevent harassment; discrimination or retaliation in violation of section 12940; hostile work environment harassment in violation of section 12940, subdivision (j); and disparate treatment in violation of section 12900, et seq. Defendant generally denied the allegations of the complaint and asserted nine affirmative defenses.
The case was tried to a jury over six days. At the outset, the parties agreed to dismiss Schwartz. Guzman was dismissed on plaintiff's motion midtrial. Following the evidence, defendant moved for a directed verdict pursuant to Code of Civil Procedure section 630. The court denied the motion without prejudice to posttrial motions "should the need arise," stating, "in many respects some of these causes of action are very tenuous." The court then turned to the punitive damages jury instruction. Defendant's counsel was under the impression plaintiff was not seeking punitive damages, but in any case he thought he made a written request to bifurcate. The court stated, "I think in a very real sense neither side really anticipated fully pursuing punitive damages" but then went on to state it would give the instruction.
The special verdict reflects the jury found plaintiff was constructively discharged; her age or race was a substantial motivating factor for defendant constructively discharging her; defendant unlawfully harassed plaintiff because of her age or race; defendant took adverse action against plaintiff in retaliation for having complained about unlawful harassment or discrimination based on race or age; defendant took other adverse action that discriminated against her because of age or race; and defendant intentionally inflicted emotional distress. The jury awarded plaintiff $200,000 in compensatory damages. The jury also found defendant engaged in conduct toward plaintiff with malice, oppression, or fraud and awarded plaintiff $500,000 in punitive damages.
At the time of trial in 2015, plaintiff had not worked since 2011. Her annual income was between $50,000 and $60,000.
Judgment on special verdict was entered on May 20, 2015. In June 2015 defendant filed a motion for JNOV. Defendant argued there was insufficient evidence to support the verdict on any theory. The court stated, "I don't think the evidence is there for the punitive damage award to support it under the precepts of Adams v. Murakami." With regard to the underlying claims, the court concluded, "Based upon the evidence that was presented, based upon the arguments that you have presented here, number one, in the Court's opinion, the jury, if it so found, improperly found constructive discharge. There was not evidence of demotion even. There was a transfer. The transfer itself did not result in either a reduction in pay, reduction in benefits. It only resulted in a change of location and a different set of job requirements that, according to the company, [plaintiff] performed previously exceptionally well and the company was satisfied with her work there. And the company was not satisfied with her work in the latest job assignment. None of which can or should be conflated into some sort of constructive discharge. Nor can the evidence of someone telling [plaintiff], who was clearly distressed, to go home for the rest of the day be conflated into don't come back. [¶] As far as harassment is concerned, for the reasons and evidence just argued by [defendant's counsel], the Court grants the motion for judgment notwithstanding the verdict
Adams v. Murakami (1991) 54 Cal.3d 105, 110 (Adams).
The court did not make any comments on plaintiff's retaliation claim. On August 13, 2015 the court entered judgment for defendant. Plaintiff appeals.
The minute order is silent, as well. It reads, "Having fully considered the arguments of all parties, both written and oral, as well as the evidence presented, the Court grant[s] the defendant's Motion for Judgment [Notwithstanding] the Verdict for the reasons stated on the record."
The appeal is from the judgment entered after the grant of JNOV, not the order itself. (Walton v. Magno (1994) 25 Cal.App.4th 1237, 1240.)
DISCUSSION
"The trial court's discretion in granting a motion for judgment notwithstanding the verdict is severely limited." (Teitel v. First Los Angeles Bank (1991) 231 Cal.App.3d 1593, 1603.) "'The trial judge's power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict [citations]. The trial judge cannot reweigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. [Citations.] "A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied." [Citation.]'" (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 877-878.) The trial court cannot consider witness credibility. (Id. at p. 877.)
"On an appeal from a JNOV, we ordinarily use the same standard the trial court used in granting the JNOV. We independently determine whether the record, viewed in the light most favorable to the verdict, contains any substantial evidence to support the verdict. If substantial evidence supports the verdict, the trial court erred in granting the JNOV and we reverse." (Mason v. Lake Delores Group, LLC (2004) 117 Cal.App.4th 822, 830.) On review of an order granting JNOV, we "'must resolve any conflict in the evidence and draw all reasonable inferences therefrom in favor of the jury's verdict. [Citation.]'" (Teitel v. First Los Angeles Bank, supra, 231 Cal.App.3d at p. 1603.) 1. Substantial Evidence Supports Plaintiff's Claim for Retaliation in Violation of FEHA
Plaintiff's second cause of action for retaliation in violation of FEHA is alleged under section 12940 et seq. On the special verdict form, the jury was asked to answer a single question regarding retaliation: "Did [plaintiff] prove by a preponderance of the evidence that [defendant] took adverse action against her in retaliation for having complained about unlawful harassment or discrimination based on race or age?" The jury answered yes.
The FEHA protects employees against retaliation for filing a complaint opposing conduct made unlawful by the act. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 472 (Miller).) Under FEHA, it is an unlawful employment practice for an "employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." (§ 12940, subd. (h).) Like FEHA discrimination claims, FEHA retaliation claims may be established through either direct or circumstantial evidence. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69 (Morgan).)
To establish a prima facie case of retaliation under the FEHA, "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 v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz); see also Miller, supra, 36 Cal.4th at p. 472.) "Once an employee establishes a prima facie case, the employer is required to offer a legitimate nonretaliatory reason for the adverse employment action." (Yanowitz, at p. 1042.) "If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation "'"drops out of the picture,'"' and the burden shifts back to the employee to prove intentional retaliation." (Ibid.) A constructive discharge claim is not necessary to find unlawful retaliation. (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 301.)
Applying these standards to the facts of this case, there was sufficient evidence to support the jury's verdict on plaintiff's retaliation claim.
a. Protected Activity
An employee's formal or informal complaints to a supervisor regarding unlawful discrimination is a "protected activity," and actions taken against the employee after such complaints may constitute retaliation. (See Passantino v. Johnson & Johnson Consumer Products, Inc. (9th Cir. 2000) 212 F.3d 493, 506-507 [applying title VII]; see also Chin, Wiseman, Callahan & Lowe, Cal. Practice Guide: Employment Litigation (The Rutter Group 2016) § 5:15 to 5:16 [retaliation claim may be brought by employee who opposed conduct that employee reasonably believes to be discriminatory even if court later determines conduct was not actually prohibited by law].) An employee is protected against retaliation "if the employee reasonably and in good faith believed that what he or she was opposing constituted unlawful employer conduct" such as harassment or discrimination. (Miller, supra, 36 Cal.4th at p. 474 [referring to sexual harassment and sexual discrimination], citing Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 477.) Here, to the extent plaintiff was mistaken that defendant's actions were discriminatory, as long as her mistake was reasonable, it is immaterial whether the mistake was one of fact or law. (See Miller, supra, 36 Cal.4th at p. 475.) It is good faith and reasonableness, not the fact of discrimination, that is the critical inquiry in a retaliation case. (Yanowitz, supra, 36 Cal.4th at p. 1043.)
There is no question plaintiff engaged in protected activity when she made informal complaints to Schwartz and Nguyen and when she made formal complaints to the global hotline. She believed she was treated differently by Spanish-speaking employees, including her lead, because she is of Asian descent.
When Schwartz became her manager, plaintiff complained about the way Guzman and other employees treated her. She said Guzman, Palafox and Garcia liked to tease and mock her when she was alone with them. Plaintiff's race was implicated when Garcia mocked plaintiff, an English-speaking Cambodian, for being married to a white man and "how's that possible? You can't speak English." Schwartz admitted plaintiff approached him on more than one occasion complaining Spanish-speaking employees were talking behind her back.
When plaintiff believed Schwartz's efforts failed to remedy the problem, she and two other Asian employees (Chau & Hoang) took their complaints to Nguyen. While the nature of their complaints to Nguyen is not clear from the record, he advised them to write a united letter and that he would speak to Guzman. Apparently neither occurred. Henket testified if plaintiff made a complaint to Nguyen he should have brought the complaint to her.
Still feeling unheard, in August 2011 plaintiff made the first of three complaints to defendant's global hotline. This complaint was memorialized in writing and unequivocally stated plaintiff believed Guzman was prejudicial and discriminatory toward Asian workers, that Guzman trained Mexican workers first in Spanish, and that Guzman did not give Asians the same opportunity for work and training on testing methods. Like the comment about being married to a white man, these complaints implicate race.
There was also evidence to corroborate plaintiff's contention Guzman treated Asians differently. Merritt testified she saw Guzman do so and that Guzman talked about and made comments about Asians in Spanish. While defendant tried to discredit Merritt by pointing out she had been fired, the jury was free to believe Merritt and perhaps it did. Further, Guzman herself confirmed plaintiff's assertion. While denying plaintiff's race had anything to do with her treatment of plaintiff, she testified she can push Spanish speakers more than she can push Asians, because Asians are sensitive. She admitted that being able to push the Spanish-speaking employees more helped her department.
The jury believed plaintiff suffered discrimination and harassment, because it found in her favor on her causes of action for failure to prevent harassment, discrimination or retaliation in violation of section 12940, hostile work environment harassment in violation of section 12940, and disparate treatment in violation of section 12900, et seq. But even without such findings, the record amply supports plaintiff had a good faith and reasonable belief she was being discriminated against and/or harassed. (See Yanowitz, supra, 36 Cal.4th at p. 1043 [good faith and reasonableness critical inquiry in retaliation case].) Plaintiff's activity was protected.
b. Adverse Employment Action
The term "'adverse employment action'" "does not appear in the language of the FEHA . . . but has become a familiar shorthand expression referring to the kind, nature, or degree of adverse action against an employee that will support a cause of action under a relevant provision of an employment discrimination statute." (Yanowitz, supra, 36 Cal.4th at p. 1049.) Yanowitz observed the FEHA does not expressly define "'discriminate'" or "'otherwise discriminate'" as used in section 12940, subdivision (h). (Yanowitz, at p. 1049.) However, section 12940, subdivision (a)—"the initial and basic antidiscrimination provision of the FEHA applicable to employers—provides in somewhat similar fashion that it is an unlawful employment practice for an 'employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age or sexual orientation of any person to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions or privilege of employment.'" (Yanowitz, at p. 1049.)
The court in Yanowitz determined the proper standard for defining an adverse employment action is the "'materiality'" test. (Yanowitz, supra, 36 Cal.4th at p. 1036.) "[T]he determination of what type of adverse treatment properly should be considered discrimination in the terms, conditions, or privileges of employment is not, by its nature, susceptible to a mathematically precise test, and the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee. 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[ subd. ](a) and 12940[ subd. ](h)." (Id. at pp. 1054-1055, fn. omitted.)
"Retaliation claims are inherently fact-specific, and the impact of an employer's action in a particular case must be evaluated in context. Accordingly, although an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the 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." (Yanowitz, supra, 36 Cal.4th at p. 1052, fn. omitted; see also McCoy v. Pacific Maritime Assn., supra, 216 Cal.App.4th at p. 299 [actions for retaliation are "'inherently fact-driven'" and it is the jury, not thecourt, to determine facts].)
Here the jury found plaintiff had suffered an adverse employment action, but the reason for its finding is not revealed in the record. Nonetheless, substantial evidence supports the jury's finding.
Plaintiff testified she worked hard for the right or privilege to be moved to receiving inspection. While in the clean room plaintiff's duties included measuring the length of materials using a ruler and microscope. Plaintiff's move out of the clean room in 2011 coincided with her promotion to quality care inspector II. At that time her title and job description changed. Plaintiff's testimony and her employment history thus support a reasonable inference her move from the clean room to receiving inspection was a promotion. It also supports a reasonable inference her move back to the clean room was a demotion. It resulted in decreased responsibilities. Henket testified the work plaintiff would be doing in the clean room was easier than her work in receiving inspection.
Defendant argues plaintiff did not suffer an adverse employment action, because her transfer back to the clean room did not impact her hours, pay, or benefits and that a demotion cannot be considered an adverse employment action. While it is true a demotion may not by itself trigger constructive discharge (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1247), and assignment to a less preferred position alone may not always constitute an adverse employment action (Malais v. Los Angeles City Fire Dept. (2007) 150 Cal.App.4th 350, 358), here there was more.
The argument is contrary to the instruction given to the jury, but neither party argues instructional error. The court gave CACI No. 2509, Adverse Employment Action Explained, which read as follows: "[Plaintiff] must prove that she was subjected to an adverse employment action. [¶] Adverse employment actions are not limited to ultimate actions such as termination or demotion. There is an adverse employment action if [defendant] has taken an action or engaged in a course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, conditions, or privileges of [plaintiff's] employment. An adverse employment action includes conduct that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion. However, minor or trivial actions or conduct that is not reasonably likely to do more than anger or upset an employee cannot constitute an adverse employment action." (Italics added.)
"Creation or tolerance of a hostile work environment for an employee in retaliation for the employee's complaining about prohibited conduct is an adverse employment action within the meaning of section 12940[ subd. ](h)." (Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 210.) And, "'workplace harassment, if sufficiently severe or pervasive, may in and of itself constitute an adverse employment action sufficient to satisfy the second prong of the prima facie case for . . . retaliation cases.'" (Yanowitz, supra, 36 Cal.4th at p. 1056, fn. 16.) "Moreover, an employer's alleged retaliatory responses may be considered collectively to determine whether the employee was subjected to an adverse employment action under section 12940[ subd. ](h).)" (Kelley v. Conco Companies, supra, 196 Cal.App.4th at p. 210.)
Here there is some evidence Guzman created a hostile work environment for plaintiff and that defendant knowingly tolerated it and contributed to it. Plaintiff complained to the global hotline in August 2011. Henket's notes reflect she spoke with Guzman about plaintiff's complaint on August 30, 2011. The next month plaintiff was asked to perform the pyrogen test. When she asked to be retrained, Schwartz assigned Guzman to the task even though there was a simmering issue between plaintiff and Guzman. The jury could reasonably infer this fueled the conflict even further.
Guzman refused to devote a day of training to plaintiff, because, according to Guzman, plaintiff had already received two weeks of training. For her part, plaintiff testified Guzman was trying to create problems for her by asking her to do the test on five lots. When plaintiff's pyrogen tests failed, Guzman told Schwartz it was because plaintiff could not read and write English. The jury could reasonably infer Guzman created a hostile work environment for plaintiff by speaking about her behind her back, not training her with the same level of patience or diligence that Guzman showed to Spanish-speaking employees and in general treating her in an inferior manner because she was Asian, and Guzman perceived her as more sensitive and more vulnerable to being pushed. There is some evidence this occurred after Guzman was informed plaintiff had complained about her to upper management. Similarly, there is some evidence Guzman harassed plaintiff; the jury found it occurred.
Garcia, who trained plaintiff initially, testified the training lasted for one week and three days.
Given the totality of plaintiff's unique circumstances and the workplace context of plaintiff's claim, we cannot conclude the jury lacked substantial evidence for its finding plaintiff suffered an adverse employment action. (See Yanowitz, supra, 36 Cal.4th at p. 1055 ["[T]here is no requirement that an employer's retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries"].)
c. Causal Link
A causal link may be established "'"by an inference derived from circumstantial evidence, 'such as the employer's knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.'"'" (Morgan, supra, 88 Cal.App.4th at p. 69.) A plaintiff in a retaliation case need only prove a retaliatory animus was at least a substantial or motivating factor in the adverse employment decision. (George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1492.) "Both direct and circumstantial evidence can be used to show an employer's intent to retaliate. 'Direct evidence of retaliation may consist of remarks made by decisionmakers displaying a retaliatory motive. [Citation.]' [Citation.] Circumstantial evidence typically relates to such factors as the plaintiff's job performance, the timing of events, and how the plaintiff was treated in comparison to other workers." (Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153.) When adverse employment decisions are taken within a reasonable period of time after complaints of discrimination have been made, retaliatory intent may be inferred. (Passantino, supra, 212 F.3d at p. 507.)
We have no trouble concluding there exists a causal link between plaintiff's complaints and the adverse employment action. Defendant moved plaintiff back to the clean room one month after her first complaint to the global hotline. On this evidence alone, we infer retaliatory intent.
d. Defendant's Legitimate Nonretaliatory Reason
An employer need only produce evidence that it had a nonretaliatory reason for its conduct. (Unt v. Aerospace Corp. (9th Cir. 1985) 765 F.2d 1440, 1447.) A plaintiff will attempt to show the employer's proferred reason is a pretext for retaliation. (Miller v. Fairchild Industries, Inc. (9th Cir. 1989) 885 F.2d 498, 506.) "'[T]he plaintiff may establish pretext "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence."'" (Morgan, supra, 88 Cal.App.4th at p. 68.)
The jury rejected defendant's explanation that plaintiff was moved back to the clean room because of her inability to adequately read and write English. When defendant hired plaintiff, her interview was conducted in English. Plaintiff testified her job required her to create written records in English and she had no problem doing so. Plaintiff attended three classes in English while employed with defendant and in each she received a certification of completion. She testified her job required her to read blueprints in English and she never had difficulty. While the job description for quality care inspector II states "must read and write English," plaintiff was never given an English test. Guzman's complaint was the first and only time plaintiff was alleged to be unable to perform her work due to an inability to read English. Significantly, Henket admitted plaintiff never had a language comprehension problem before. Even though English is a second language for plaintiff, plaintiff's performance evaluations contain no criticism of plaintiff's ability to read, write, or understand English.
Nevertheless, shortly after Guzman reported plaintiff could not do the pyrogen test correctly because of her lack of reading and writing English, plaintiff was transferred back to the clean room. It was no doubt a powerful moment during trial when plaintiff was able to read and explain the pyrogen test.
The jury likely disbelieved Schwartz when he testified plaintiff could not read the test methods in English when they met.
Further, when plaintiff was asked to perform the pyrogen test in September 2011, she had not done the test since 2010. As a result she asked for more training, because she felt Garcia had not trained her well enough. There is some evidence plaintiff used lack of proper training as a ploy to avoid work she could not master. Even so defendant does not contend plaintiff's inability to properly conduct the pyrogen test led to her move back to the clean room. Defendant contends only that it was plaintiff's inability to read the pyrogen test instructions that motivated its action. The jury was free to reject this explanation and conclude it was a pretext.
To the extent defendant suggests plaintiff's inability to adequately perform the pyrogen test created an unacceptable safety hazard or compromised quality control, this too was a first for plaintiff as far as the record reflects. Plaintiff had 29 years of experience working in quality control. Plaintiff's performance reviews in 2007, 2008, 2009, 2010, and 2011 reflect she performed very well and usually exceeded expectations. McRorie and Schwartz commented on plaintiff's attention to detail and accuracy and commitment to excellence. She received yearly merit increases and discretionary bonuses. There were never any complaints about plaintiff's job duties or performance as a quality control inspector I. Henket acknowledged there were other tests plaintiff performed in receiving inspection and plaintiff had no problems performing these other tests. On this record, it is reasonable to infer plaintiff could have mastered the pyrogen test with proper training, thus mitigating the potential for an unacceptable safety hazard.
Moreover, the jury may have rejected defendant's claimed nonretaliatory reason for its conduct due to the conflicting evidence over whether Henket actually conducted a good faith investigation after receiving the global hotline complaint. Although Henket testified she conducted an investigation by speaking with several employees Sternweiler, defendant's senior director of quality and liability, testified Henket never brought him the global hotline complaint. Further, several of those employees mentioned in Henket's notes, Huynh, Chau, Hoang, Garcia, and Lang, all testified they were never interviewed regarding plaintiff's complaints. And Henket's notes contradict her testimony. The notes appear to summarize conversations Henket had with the employees she interviewed. Each entry is dated late March 2012, long after the global hotline complaint was received in August 2011. There is a parenthetical by some individuals' names stating "also interviewed" followed by dates in August and September 2011, but this parenthetical only appears next to notes on Guzman, Chau, Garcia, Lin, and Palafox. The jury's verdict reflects a rejection of defendant's conflicting evidence on the issue.
Finally, defendant promoted Guzman to supervisor after all these events. The jury may have found this fact significant.
Therefore, we conclude substantial evidence supports the implied finding defendant did not produce a legitimate reason for its adverse employment action. As such, the burden never shifted back to plaintiff to prove intentional retaliation. (See Yanowitz, supra, 36 Cal.4th at p. 1042.)
Absent a judicial remedy, the type of actions plaintiff asserts defendant engaged in could discourage other employees from speaking freely about discrimination and harassment by coworkers. We realize there are conflicting views of the evidence. However, conflicting evidence does not equate with no substantial evidence. "Our task is to determine whether there is any substantial evidence, contradicted or not, that supports the trial court's conclusion, '"'even if [we] would have ruled differently had [we] presided over the proceedings below, and even if other substantial evidence would have supported a different result.'"'" (Vanderkous v. Conley (2010) 188 Cal.App.4th 111, 121.) The jury believed plaintiff's version of the evidence. We hold the actions the jury could properly have attributed to defendant were sufficient to constitute retaliation within the meaning of FEHA.
Having found substantial evidence supports one of plaintiff's causes of action, we need not determine whether substantial evidence supports the remaining causes of action. (See Crogan v. Metz (1956) 47 Cal.2d 398, 403 [complaint may plead different theories on which relief is sought; where appeal taken from such judgment, reviewing court has power to disregard particular theories and findings and to affirm judgment on theory which is supported by findings and evidence].) The special verdict form did not ask the jury to award damages claim by claim. Instead, there was only one line for the jury to write in a compensatory damage award, if any. The jury wrote in $200,000, the precise amount requested by plaintiff's attorney during his closing argument. We will not disturb the jury's findings and award. 2. Plaintiff Failed to Present Evidence of Defendant's Financial Condition
In a civil case not arising from the breach of a contractual obligation, the jury may award punitive damages "where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice." (Civ. Code, § 3294, subd. (a).) "Because the quintessence of punitive damages is to deter future misconduct by the defendant, the key question before the reviewing court is whether the amount of damages 'exceeds the level necessary to properly punish and deter.'" (Adams, supra, 54 Cal.3d at p. 110.)
"A reviewing court cannot make a fully informed determination of whether an award of punitive damages is excessive unless the record contains evidence of the defendant's financial condition." (Adams, supra, 54 Cal.3d at p. 110.) As explained in Adams, "we have repeatedly examined punitive damage awards in light of the defendant's financial condition. [Citations.] This simple principle is well understood by the bench. The standard jury instruction on punitive damages given in this case expressly directed the jury to consider the 'defendant's financial condition.'" (Id. at pp. 110-111.) "The principle is also axiomatic to the bar. For example, a recent practice guide for attorneys lists 'The Ten Essential Steps To A Proper Punitive Damage Award.' (Riley, Proving Punitive Damages: The Complete Handbook (1981) p. 6.) The guide states, 'RULE 9: Show the defendant's wealth.'" (Id. at p. 111.)
There is no set formula for determining a defendant's wealth. "Although net worth is the most common measure of wealth used in assessing punitive damages, it is not the exclusive measure. (Adams, supra, 54 Cal.3d at p. 116, fn. 7 [declining to adopt any rigid formula, such as net worth, to measure the defendant's ability to pay]; Lara v. Cadag (1993) 13 Cal.App.4th 1061, 1064-1065 & fns. 2, 3 [defining financial condition, concluding that earnings alone is not sufficient evidence of financial condition]; Kenly v. Ukegawa (1993) 16 Cal.App.4th 49, 57 & fns. 6, 7 [some evidence regarding liabilities must be offered, the defendant's profit on the fraudulent transaction, alone, is not sufficient evidence of financial condition]; Robert L. Cloud & Associates, Inc. v. Mikesell (1999) 69 Cal.App.4th 1141, 1152 [income standing alone or wrongful profit standing alone are not sufficient evidence, there must be "'meaningful evidence'" "of the defendant's ability to pay the damage award"].) In Adams, the Supreme Court primarily used the more general terms "financial condition" or "ability to pay" instead of "net worth." (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 621.)
Plaintiff failed to produce any evidence of defendant's wealth. Plaintiff argues the evidence shows defendant has 1,400 employees worldwide. Plaintiff divides $500,000 by 1,400 to arrive at a punitive damage award of $350 per employee, which plaintiff argues is reasonable. Plaintiff cites no authority for this novel approach to determining defendant's wealth for purposes of a punitive damages award. The number of people a defendant employs is not "meaningful evidence" of that defendant's ability to pay a damage award, because while it may be some indication of defendant's financial condition, it does not give the jury an overall picture of defendant's ability to pay a punitive damages award. Profitability is the key.
Perhaps more importantly, plaintiff never presented a meaningful punitive damages argument to the jury. Plaintiff's sole damages argument concerned compensatory damages. On the issue of punitive damages, counsel stated only that the burden is different and an award of punishment damages can be given to "punish the company for certain actions that they did to the plaintiff in this case." As to both, counsel stated "his honor is going to explain." Plaintiff never suggested a formula or a dollar amount on punitive damages. Plaintiff admitted no evidence of defendant's wealth, so there was nothing to argue. On this record, there is a failure of proof, and the punitive damages award cannot stand.
The court erroneously instructed the jury using CACI No. 3940 (Punitive Damages—Individual Defendant—Trial Not Bifurcated). The use notes clearly indicate the instruction is for use when defendant is an individual. When defendant is a corporation as defendant is, CACI No. 3945 (Punitive Damages—Entity Defendant—Trial Not Bifurcated) should be used. Neither party raised the error, and it is harmless given our disposition of the issue.
DISPOSITION
The judgment notwithstanding the verdict entered in favor of defendant on August 13, 2015 is reversed and the matter is remanded to the trial court with directions to reinstate, nunc pro tunc, the original judgment in favor of plaintiff for compensatory damages based on the jury verdict. On remand, the court is instructed to consider plaintiff's claim for costs as reflected in her memorandum of costs filed June 12, 2015. Plaintiff shall recover her costs on appeal.
The reinstated judgment shall bear interest from May 20, 2015, the date of the original judgment. (See Stockton Theatres, Inc. v. Palermo (1961) 55 Cal.2d 439, 442-443.) --------
THOMPSON, J. WE CONCUR: O'LEARY, P. J. ARONSON, J.