Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG04172014
Margulies, J.
A jury found San Francisco Bay Area Rapid Transit (BART) liable to plaintiff Oliver Hill under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) in the aggregate amount of $1,271,500 for (1) retaliation (§ 12940, subd. (h)); and (2) failing to take reasonable steps to prevent racial harassment, discrimination, or retaliation (§ 12940, subd. (k)). BART challenges the award on multiple grounds including instructional error, insufficient evidence, and excessive damages. We reverse the portion of the judgment based on the jury’s retaliation award, finding that the jury was improperly allowed to consider matters outside the pleadings in arriving at its verdict on this claim. We affirm the portion of the judgment based on BART’s failure to prevent conduct violating FEHA. We remand the matter for a limited retrial on the retaliation claim and for a redetermination of the amount of the statutory attorney fees to be awarded to Hill’s attorneys.
All further statutory references are to the Government Code unless otherwise specified.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Pleadings
Hill filed his original complaint in August 2004. The complaint alleged four causes of action against BART: (1) retaliation (§12940, subd. (h)); (2) unlawfully making an employee undergo a psychiatric examination (§ 12940, subd. (f)(1)); (3) racial discrimination (§12940, subd. (a)); and (4) failure to prevent racial discrimination and harassment (§12940, subd. (k)). At the time his complaint was filed, Hill was represented by attorney Daniel Bartley.
BART demurred to the first three causes of action, asserting that the vast majority of the incidents alleged as a basis for these causes of action were time-barred under section 12960, because they took place more than one year before the date—January 12, 2004—when Hill filed his first complaint with the Department of Fair Employment and Housing (DFEH). Hill argued that the challenged causes of action alleged “continuing violations” under Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 802, and were therefore not time-barred. In December 2004, the trial court (Judge Steven A. Brick) sustained BART’s demurrer but granted Hill leave to amend to either allege additional facts coming within the applicable limitations period or facts showing that the continuing violations doctrine applied.
Section 12960, subdivision (d) provides that “[n]o [DFEH] complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice [under section 12940]... occurred.” No civil action alleging FEHA claims may be filed by the complainant until he has filed a complaint with the DFEH and the DFEH has issued him a right-to-sue notice. (§ 12965, subd. (b); Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 213–214.) Hill filed his FEHA complaint on January 12, 2004, and received his right-to-sue letter the same day.
Instead of amending the challenged causes of action, Hill filed a first amended complaint in February 2005 that (1) restated all of the factual allegations against BART in the original complaint, (2) dropped all of the FEHA claims except the failure-to-prevent claim, and (3) added a federal civil rights cause of action under section 1983 of title 42 of the United States Code. At that point, BART removed the case to federal court based on federal question jurisdiction. Hill filed a second amended complaint in federal court, adding a new claim for the deprivation of his civil rights under section 1981 of title 42 of the United States Code. After discovery closed in federal court, BART moved for summary judgment. On January 17, 2006, the federal district court ruled that both of Hill’s federal claims failed as a matter of law, declined to exercise supplemental jurisdiction over Hill’s remaining state law claim for failure to prevent discrimination and harassment, and remanded that claim to the state court.
Following remand to the state court, Hill filed a third amended complaint (TAC) in May 2007, pursuant to a stipulation for leave to amend with BART. The TAC (1) repeated the factual allegations of Hill’s original complaint, (2) added a new cause of action for retaliation alleging that BART’s failure to promote him in 2004 and later was retribution for the filing of the lawsuit in August 2004 and other discrimination complaints, and (3) repleaded the failure-to-prevent claim. The retaliation cause of action included the following key allegations: “[BART’s] aforesaid retaliatory conduct, in retaliation for protesting discrimination, his seeking a fair and complete investigation, and his filing of this lawsuit, continuously from August 4, 2004, forward through the present, constituted adverse employment actions against Plaintiff, in violation of [section] 12940[, subdivision ](h).... [¶]... Plaintiff’s subject complaints... were substantial or motivating factors for [BART’s] adverse employment actions against Plaintiff. Such actions include, but are not limited to, Plaintiff continually being isolated, his work being subject to special scrutiny, and continually being denied promotion, most recently on November 9, 2006.” (Italics added.)
The 2007 retaliation claim was timely because Hill had filed a second FEHA complaint encompassing these allegations on December 15, 2006. A right-to-sue letter was issued on January 5, 2007.
Hill retained the Boxer & Gerson law firm to assist with his case in June 2007, and Bartley withdrew in August 2007. Just before trial, Hill’s new counsel moved for leave to amend the TAC to (1) expand his retaliation cause of action to allege that BART’s retaliatory conduct encompassed events occurring in 2003, and (2) add a claim for racial harassment. With respect to the retaliation claim, the proposed fourth amended complaint would have deleted the italicized language of the TAC quoted above and added as adverse employment actions that plaintiff was accused of falsifying a complaint, was subjected to formal discipline, had a claim of harassment against him unjustly substantiated, and was characterized by BART management as violent and dangerous. All of these events occurred in 2003 or earlier.
The trial court (Judge Gordon S. Baranco) denied Hill’s motion, finding that BART would be prejudiced by the late amendment and that Hill had failed to show a reasonable excuse for his delay in seeking to amend.
B. Trial Evidence
Hill, an African-American, began working for BART as a transit vehicle mechanic in 1999, after a 21-year career in the United States Air Force. He started at the Daly City shop, one of four BART maintenance shops, and transferred to the Richmond facility in September 1999.
Hill testified that about six months after he transferred to the Richmond facility, he began to feel “things... just weren’t right there in the Richmond shop.” He felt that another transit vehicle mechanic, Christopher Van Fossen, was watching him closely even though Van Fossen was not a supervisor or foreworker. Van Fossen followed and monitored Hill’s work, subjected other African-American employees to similar conduct, and behaved toward Hill in an intimidating manner when he was studying technical manuals to improve his ability to do his job. Hill also experienced what appeared to be favoritism toward non-African-American employees, including Van Fossen, by the manager of the Richmond shop, Tamar Allen.
In December 2000, Hill complained about the racial harassment and favoritism to BART’s Office of Civil Rights. The day after Hill made his complaint, Van Fossen hit the top of Hill’s hard hat “very hard” with his open hand while Hill was seated in the Richmond break room. Hill reported that incident to the Office of Civil Rights as well.
BART met with Hill concerning his discrimination allegations, but it conducted no follow-up investigation of and took no other action to address those allegations. Tamar Allen was assigned to investigate Hill’s complaint that Van Fossen had hit him on the head, despite having herself been named in his discrimination complaint. Allen concluded that Hill had made the incident up. She discounted information she received from a union official who investigated the incident that two employees present at the time of the alleged incident heard a slapping sound and saw Van Fossen passing by Hill.
Based on her conclusion that Hill had made a false complaint against Van Fossen, Allen informed Hill that he was going to be suspended. She later told Van Fossen that Hill had made a serious threat of violence against him and Allen. Allen testified that Hill asked questions about her children when she interviewed him about the Van Fossen incident that she interpreted as veiled threats. Hill testified that he asked about her children as an “ice breaker” at the beginning of the meeting with her. Van Fossen testified that he communicated Allen’s warning about Hill’s alleged threats to most of the employees working on his shift.
Allen also spoke to Barbara George, BART’s workplace violence prevention coordinator, about the alleged threats to her children. Following this, Hill was required to undergo a psychological fitness-for-duty examination and was placed on an administrative leave that continued for 21 months. During this leave, Hill saw Dr. Frank Ranuska, the psychiatrist to whom BART referred him, three times. Each time, Ranuska recommended that Hill could return to work although not under Allen. Hill was finally permitted to return to work in October 2002. During Hill’s leave, Allen had been promoted to group manager and was no longer supervising the Richmond shop. However, when Allen learned that consideration was being given to returning Hill to work at the Richmond shop, she contacted the superintendent in Richmond at the time, Sean Steele, and informed him of the events that had taken place among Hill, herself, and Van Fossen in 2000. Hill was told to report to the Concord shop on October 12, 2002.
In June 2003, Hill sought and received a transfer to the Richmond shop because it would enable him to have weekends off to spend with his daughters. Hill believed he and Van Fossen would be working different shifts. He did not realize that Van Fossen was working on a special project and his shift overlapped Hill’s by two hours.
Hill testified that not long after his return to Richmond, Van Fossen whispered to him, “We don’t want you here, nigger,” as they were passing in the hall. Approximately two weeks later, Van Fossen surreptitiously kicked Hill while wearing a steel-toed boot. Hill initially attempted to address the problem through his union, but eventually filed a complaint with Sean Steele and BART police in October 2003. Van Fossen denied that either event had occurred.
Hill testified that he was instructed by a union official to let the union represent his concerns to management. He also stated that based on his experience in 2000, he did not believe management would do anything about his complaint. According to Hill, the union representative, Ray Quan, assured him that he would contact management on Hill’s behalf. Steele testified that he first learned of the incidents from Hill in October 2003. When he questioned Quan about them as part of his investigation, Quan told him he had advised Hill to report them to management immediately. Quan died before trial and could not corroborate either account.
After learning from Steele in October 2003 that Hill was complaining about him, Van Fossen filed his own complaint alleging that Hill engaged in intimidating behavior toward him on three occasions in the previous months. According to Van Fossen, Hill came up to him while Van Fossen was speaking to a coworker near the water cooler in early August and said, “Excuse me, Mr. Van Fossen,” in a manner that Van Fossen found intimidating. Hill came up to Van Fossen a second time approximately 30 minutes later as Van Fossen was standing at the lunchroom doorway and said, “Excuse me, Mr. Van Fossen,” in what Van Fossen considered to be a disrespectful tone. The third incident occurred in October, when Hill allegedly walked through the middle of a group with whom Van Fossen was conversing when he could easily have walked around the group. Van Fossen had complained about these incidents at the time to his supervisor.
After an investigation that included interviewing witnesses identified by Hill and Van Fossen in the presence of union representatives, and obtaining written statements from them, Steele concluded that the kicking incident had not occurred. Although none of the witnesses who were present when the incident occurred corroborated Hill’s account, Hill’s girlfriend told Steele that she had assisted Hill in treating a bad bruise on his leg that lasted for one week after the kicking incident. Steele could not determine if the racial slur had occurred because there were no witnesses other than Hill and Van Fossen. Steele conducted a similar investigation of Van Fossen’s complaint and found that it was valid because it was corroborated by others who were present. However, Hill testified that Steele never interviewed him about Van Fossen’s harassment charges.
Steele reprimanded Hill in November 2003, for making a false complaint about the kicking incident, for failing to file his complaint in a timely manner, and for harassing Van Fossen. The reprimand noted that Hill had also made a false allegation in 2000.
Following this reprimand, Hill transferred out of Richmond in January 2004, and moved to the Concord shop. While at the Concord shop, Hill repeatedly attempted to obtain a promotion to the position of foreworker, without success. Steele was the chairperson of the selection committee in at least two of the instances when Hill applied for foreworker. He consistently gave Hill very low ratings in areas not requiring objective measurement. Steele denied conferring with other members of the selection committee about their assessments of Hill, but union observers complained that in one instance where Steele chaired the selection committee members were conferring together about scores.
At the time of trial, Hill continued to work at the Concord facility with individuals who had been told by Van Fossen that Hill posed a threat of violence. Hill and other witnesses testified that he had suffered significant emotional harm as a result of BART’s treatment of him.
C. Jury Verdicts and Fee Awards
By a vote of 12 to 0, the jury found that BART had subjected Hill to retaliation and awarded him $6,500 in past economic damages, $65,000 in future economic damages, $350,000 in past noneconomic damages, and $250,000 in future noneconomic damages. On a vote of 11 to 1, the jury also found that BART had failed to prevent harassment, discrimination, or retaliation and awarded Hill $300,000 in past noneconomic damages, and $300,000 in future noneconomic loss.
The trial court awarded the Boxer & Gerson law firm $370,148 in attorney fees under section 12965, subdivision (b), and awarded Bartley and his co-counsel FEHA fees totaling $118,680. BART timely appealed from the judgment on the jury’s verdict (case No. A120302) and the postjudgment order awarding fees to the Boxer & Gerson firm (case No. A122248). Bartley timely appealed from the order awarding fees for the pretrial work performed by him and his co-counsel (case No. A122881). We have consolidated all three appeals for decision.
II. DISCUSSION
BART contends the judgment must be reversed because (1) the trial court improperly allowed the jury to consider events that were outside the scope of the pleadings with respect to both of Hill’s causes of action, (2) there was no substantial evidence to support either cause of action, (3) the failure-to-prevent verdict resulted from instructional error, and (4) the noneconomic awards made to Hill are duplicative and excessive.
We agree in part with BART’s first contention and will (1) reverse the judgment insofar as it awards damages for retaliation and attorney fees, and (2) remand the case to the trial court for retrial of the retaliation cause of action and a redetermination of the fee awards made to Hill’s attorneys.
A. Scope of the Pleadings
BART claims that the trial court erroneously allowed the jury to consider whether BART had engaged in improper conduct in 2003 and earlier even though, according to BART, Judge Brick’s demurrer ruling in December 2004 and Judge Baranco’s denial of Hill’s motion for leave to amend before trial together should have foreclosed the jury from considering that conduct.
Preliminarily, we note that the scope of the issues to be decided by the jury must be measured by the scope of the pleadings. “It is axiomatic that ‘[t]he pleadings establish the scope of an action and, absent an amendment to the pleadings, parties cannot introduce evidence about issues outside the pleadings.’ [Citation.]” (Schweitzer v. Westminster Investments, Inc. (2007) 157 Cal.App.4th 1195, 1214.) It is error for the trial court to instruct on any theory that is outside the scope of the issues raised by the pleadings. (Levy-Zentner Co. v. Southern Pac. Transportation Co. (1977) 74 Cal.App.3d 762, 783; Nicholas v. Harger-Haldeman (1961) 196 Cal.App.2d 77, 89.)
In this case, over BART’s objections, Hill was allowed to put in extensive evidence regarding events occurring in 2003 and earlier, culminating in the formal reprimand he received in late 2003 arising from the harassment complaints and counter-complaints made by him and Van Fossen. Over BART’s objection, Hill was allowed to argue to the jury that it could find BART liable for retaliation based on adverse employment actions taken against him from January 9, 2003 forward. BART proposed instructions on retaliation and failure to prevent that would have (1) limited the retaliation claim to Hill’s failure to obtain a promotion, and (2) limited his failure-to-prevent claim to a failure to prevent those specific post-2003 acts of alleged retaliation. The trial court rejected these instructions and instead instructed the jury, over BART’s objection, that it could (1) find retaliation if “BART subjected [Hill] to adverse employment action” motivated by his complaints of racial discrimination or harassment; and (2) find BART liable for failing to prevent harassment, discrimination, or retaliation, all without any time limitation. Although Judge Baranco stated during the trial that he intended his rulings to be consistent with Judge Brick’s demurrer ruling, BART insists that the court’s evidentiary and instructional rulings cannot be reconciled either with Judge Brick’s demurrer ruling or with the scope of the TAC.
In their closing arguments, both parties told the jury that Hill’s retaliation claim was limited to adverse employment actions occurring after January 9, 2003. In response to a jury question about this after deliberations began, the court did ultimately give a limiting instruction that the jury should consider events occurring after January 9, 2003 in deciding whether any adverse employment actions were taken against Hill. The adequacy of this instruction is further discussed below.
Regarding the retaliation claim, BART points out that following its successful demurrer to Hill’s original retaliation claim, Hill dropped his retaliation claim based on events in 2003 or earlier rather than try to amend the claim to state a continuing violation or base it on new or different allegations encompassed by his January 2004 FEHA complaint. The failure to amend constituted an admission by Hill that he could not allege any facts that would have cured the defect in his retaliation claim. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1091.) Hill later sought and obtained BART’s stipulation to assert a different retaliation claim in the TAC that was based on new facts arising after the filing of the original complaint. That new retaliation claim was limited by its own express language to adverse employment actions taken by BART after August 2004. The only such actions Hill has alleged or proven is his failure to obtain the promotions for which he applied in 2004 and thereafter. These were encompassed in his second FEHA complaint for which he obtained his right-to-sue letter on January 5, 2007. According to BART, Hill’s motion for leave to amend just before trial, and its denial by Judge Baranco, served to confirm the narrow scope of the retaliation cause of action framed by the TAC as the trial began. As discussed below, we agree with BART that the retaliation claim was limited to Hill’s failure to obtain a promotion after the filing of his lawsuit and the trial court erred by failing to so instruct the jury.
BART’s argument with regard to the scope of the failure-to-prevent cause of action is more complicated and less persuasive. BART maintains that its liability exposure at trial should have been limited to liability for failing to prevent only those specific acts of retaliation alleged and proven in connection with the retaliation cause of action. BART relies in part on Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280 (Trujillo), which held that a defendant should not be liable for failure to prevent under section 12940, subdivision (k), unless there is proof of underlying conduct violating FEHA—such as discrimination (§ 12940, subd. (a)), harassment (§ 12940, subd. (j)(1)), or retaliation (§ 12940, subd. (h))—that the employer failed to prevent. Because the only underlying FEHA violation alleged in the TAC was retaliation based upon the denial of promotions after August 2004, BART maintains that Hill was not entitled to rely on any other conduct to prove his failure-to-prevent cause of action. Further, Judge Brick’s demurrer ruling necessarily determined that Hill could not state a timely cause of action for retaliation or discrimination based on events occurring in 2003 and earlier—a determination that Hill admitted by failing to file an amended pleading attempting to reallege those causes of action.
Based on BART’s reading of Trujillo, it would therefore follow that Hill’s second amended complaint failed to adequately allege any state law failure-to-prevent FEHA cause of action because it alleged no cause of action for an underlying FEHA claim of discrimination, harassment, or retaliation. In stipulating to the filing of Hill’s TAC, BART believed that its liability, if any, to Hill under the TAC’s failure-to-prevent claim would be limited to whether BART failed to take reasonable steps to prevent Hill from being unfairly denied promotion after August 4, 2004 in retaliation for his complaints about discrimination, including the filing of this lawsuit.
We agree in part with BART’s analysis of the pleadings. The retaliation claim pleaded in the TAC is limited by its own terms to retaliatory conduct occurring “continuously from August 4, 2004, forward through the present.” Hill conceded as much when he (1) proposed to delete those words from his proposed fourth amended complaint and add references to alleged retaliatory conduct occurring in 2003, and (2) stated in his motion for leave to amend that these changes would “enlarge his claim for retaliation to incorporate adverse actions taken against him in 2003” and afford him “the opportunity to present the totality of the circumstances within the statutory period” supporting his retaliation claim. These are effectively admissions by Hill that the retaliation theory pleaded in the TAC is limited to the denial of Hill’s promotion requests after the filing of this lawsuit, since these are the only adverse employment actions alleged or proven to have occurred after August 2004.
Hill does not dispute that conduct occurring before January 2003 is outside the “statutory period” and time-barred.
Hill’s failure-to-prevent claim requires a different analysis. To begin with, the TAC does not by its terms limit the scope of that cause of action to events occurring after the filing of the complaint. BART instead asks us to infer that the claim is so limited based on its analysis of Trujillo and the effect of the December 2004 demurrer. We are not persuaded.
Trujillo merely holds that failure to prevent cannot be found unless there is proof of an underlying FEHA violation such as discrimination, harassment, or retaliation. (See Trujillo, supra, 63 Cal.App.4th at pp. 285–289 [damages verdict for failure to prevent cannot stand where jury made accompanying findings that defendants did not discriminate, racially harass, or retaliate against plaintiffs]; see also Kohler v. Inter-Tel Technologies (9th Cir. 2001) 244 F.3d 1167, 1174, fn. 4; Tritchler v. County of Lake (9th Cir. 2004) 358 F.3d 1150, 1154.) Nothing in the Trujillo case suggests that a viable failure-to-prevent cause of action does not exist unless the complaint pleads a separate cause of action for discrimination, harassment, or retaliation. It is irrelevant under Trujillo whether a separate FEHA cause of action for discrimination, harassment, or retaliation is pleaded, as long as the complaint pleads facts showing that the defendants committed one or more of those violations.
Further, the trial court’s December 2004 demurrer ruling did not determine whether the facts alleged in the complaint concerning the events of 2003 would, if true, support a cause of action for failure to prevent. BART chose not to demur to the failure-to-prevent cause of action and the trial court consequently never decided directly whether sufficient facts occurring during the statutory period were pleaded to support that cause of action. The court’s other rulings on the demurrer did not, as BART maintains, resolve that issue indirectly.
First, although the court did rule that Hill failed to state facts sufficient to support the retaliation and racial discrimination causes of action, the complaint included no cause of action for racial harassment under section 12940, subdivision (j)(i), and the court therefore did not decide, implicitly or explicitly, whether the facts alleged in the complaint would have been sufficient to state a claim for failure to prevent racial harassment.
Second, the court sustained BART’s demurrers to the racial discrimination and retaliation causes of action based on the specific manner in which Hill’s original counsel chose to plead them. The racial discrimination claim was based on a specific allegation of the original complaint, which inexplicably based that cause of action solely on BART’s orders that Hill submit to certain psychological evaluations—conduct that was time-barred when the complaint was filed. The court did not in fact decide whether Hill’s allegations regarding the events of 2003, which were not time-barred, would have supported a claim for failure to prevent racial discrimination. The disposition of the retaliation claim also depended entirely on the adverse employment actions alleged in one paragraph of the complaint, paragraph 2, only one of which pertained to the period after January 2003. The court’s ruling on that issue did not preclude Hill, in our view, from proceeding with a claim against BART for failure to prevent retaliation based on other adverse employment actions that could be proven to have occurred in 2003.
The allegation in question—paragraph 61 of the original complaint—makes no reference to racial discrimination and appears to have been pleaded under the discrimination cause of action due to an error in drafting the complaint. The allegations of paragraph 61 were cited by BART as the sole basis for its demurrer to the discrimination cause of action.
Because Hill opted not to file an amended retaliation claim at that time, the court’s 2004 ruling did preclude him, however, from later attempting to revive a retaliation claim based on alleged adverse employment actions in 2003, absent leave of court.
Based on our analysis of the case law, the effect of the 2004 demurrer ruling, the court’s pretrial denial of Hill’s motion to amend, and the language of the TAC, we agree with BART that the operative pleadings going into the trial did limit the scope of BART’s potential liability to Hill for retaliation to the consequences of its failure to promote him after August 2004. At the same time, however, those pleadings fairly placed in issue whether BART’s conduct from January 2003 forward made it liable for failing to prevent discrimination, harassment, or retaliation.
In our view, the trial court’s instructional and other errors with respect to the scope of Hill’s retaliation claim were prejudicial. BART argued before trial that it would be prejudiced if the court granted Hill leave to file the proposed fourth amended complaint because BART had conducted virtually no discovery and was not prepared to commence trial on claims of harassment and retaliation based on events occurring in 2003. BART also pointed out that the late amendment would foreclose it from seeking summary adjudication before trial of such claims. In denying Hill’s motion, the trial court agreed that BART was in fact prejudiced by the lateness of the motion.
Further, instructional error is prejudicial if it “ ‘seems probable’ that the error ‘prejudicially affected the verdict.’ ” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580 (Soule).) Given the extensive evidence and argument offered with respect to the events of 2003, as well as the jury’s question regarding the significance of the January 9, 2003 date and the court’s response to it, it seems improbable that the jury would have rendered the same verdict on retaliation had they been instructed to consider only the adverse actions taken after August 2004.
“[W]hen deciding whether an error of instructional omission was prejudicial, the court must also evaluate (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury itself that it was misled.” (Soule, supra, 8 Cal.4th at pp. 580–581, fn. omitted.)
We will therefore reverse the judgment and remand the matter for a limited new trial on the issue of whether BART was liable for retaliating against Hill after August 2004 by failing to promote him. Subject to Evidence Code section 352, otherwise admissible evidence that Hill complained about practices violating FEHA before that date may be relevant and admissible in that proceeding if there is evidence linking such complaints to BART’s later failure to promote Hill. Moreover, evidence of any retaliatory acts before August 2004 may be admissible under Evidence Code section 1101, subdivision (b), provided an appropriate limiting instruction is given. (Pistorius v. Prudential Insurance Co. (1981) 123 Cal.App.3d 541, 556–557.) As further discussed below, damages testimony on retrial must be limited to economic and noneconomic damages caused by BART’s failure to promote Hill.
We do not reach BART’s further contention that the retaliation verdict must be overturned because there was no substantial evidence that any adverse employment actions taken against Hill in 2003 or thereafter were motivated by his discrimination complaints. On remand, BART is entitled to test its claim that no viable retaliation claim can be based on its failure to promote Hill by bringing an appropriate motion.
B. Failure to Prevent Unlawful Conduct
BART maintains that if the retaliation verdict fails, the jury’s special verdict on failure to prevent must also fail because it is impossible to determine whether the latter verdict was based, in whole or in part, on BART’s failure to prevent retaliation. For the reasons discussed above, we disagree. Hill was entitled to base his failure-to-prevent claim on events constituting retaliation that occurred in 2003, whether such facts were alleged as part of his separate retaliation cause of action or not. No principle of law, prior ruling by the trial court, or limiting language in the TAC precluded Hill from establishing that BART was liable for damages caused by its failure to prevent any acts of retaliation that were proven to have occurred within the statutory period.
BART further contends that no substantial evidence supports the failure-to-prevent special verdict, and that this verdict would not have been rendered in Hill’s favor but for the court’s instructional errors—its failure to instruct on the elements necessary to prove discrimination or harassment and its inadequate instruction on evidence of events occurring before 2003.
A racial harassment claim under FEHA must be supported by evidence that the harassment is sufficiently pervasive so as to alter the conditions of employment and create a hostile or abusive work environment. (See Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 516–517 (Beyda).) There is no threshold “magic number” of harassing incidents that gives rise to liability or a number of incidents below which a plaintiff fails as a matter of law to state a claim. (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 36.) Whether an environment is “hostile” or “abusive” must be determined by looking at all the circumstances. (Beyda, at p. 517.) The plaintiff in a harassment case must show that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that he or she was actually offended by the defendant’s conduct. (Ibid.)
In our view, substantial evidence was presented that Hill was subjected to a racially hostile working environment. There was substantial evidence before the jury that in 2003, Van Fossen (1) physically assaulted Hill by kicking him; (2) whispered to him, “We don’t want you here, nigger”; and (3) filed an unfounded harassment complaint against him. The evidence that Hill had been subjected to similar conduct by Van Fossen in 2000, reinforced the inference that Van Fossen’s conduct in 2003 created a work environment that a reasonable person would have considered to be racially hostile or abusive.
We also disagree with BART’s position that there was no evidence BART could have anticipated or prevented Van Fossen’s behavior in 2003. Hill offered evidence that BART responded dismissively to his complaints of discrimination in 2000. It did not pursue any investigation of Hill’s first discrimination complaint against Van Fossen at that time, and it assigned Tamar Allen, whom Hill had accused of racial favoritism, to investigate his complaint that Van Fossen struck his head the day after he filed the first complaint. If Hill’s evidence is credited, BART responded to Hill’s complaints, not by punishing Van Fossen or Allen or warning them to desist, but by putting Hill on leave for 21 months. The jury could reasonably conclude from this evidence that BART led Van Fossen to believe he could resume his harassment of Hill in 2003 without adverse consequences. According to Hill’s evidence, this is exactly what occurred. In our view, Hill presented substantial evidence to support his theory that BART failed to take reasonable steps to prevent Van Fossen’s asserted harassment.
BART contends the trial court erred by failing to give an instruction defining harassment and discrimination in connection with Hill’s failure-to-prevent claim. While such an instruction should in fact have been given, we cannot say that the error was prejudicial. The use note accompanying the pattern instruction for failure to prevent, CACI No. 2527, recommends that if harassment is alleged, CACI No. 2523, “ ‘Harassing Conduct’ Explained,” be given in conjunction with it. The latter instruction merely lists various types of harassing conduct, including “[v]erbal harassment, such as... slurs, [or] threats,” or “[p]hysical harassment, such as unwanted touching [or] assault.” We are unable to say that it is probable the jury would have reached a different verdict had this instruction or CACI No. 2524 (defining “severe or pervasive” conduct) been given. (Code Civ. Proc., § 475.) BART also offers no argument explaining how an instruction defining discrimination might have resulted in a different verdict.
We also find no prejudicial abuse of discretion in the trial court’s admission of evidence concerning events occurring before 2003. First, the evidence was relevant to material issues in the case. As discussed, the pre-2003 evidence helped to show that BART had prior notice of Van Fossen’s asserted bad conduct and could be charged with failing to take reasonable steps to prevent him from resuming the conduct when Hill returned to work in 2003. Second, although BART could not be held liable for any adverse employment actions taken against Hill before January 2003, evidence of Hill’s discrimination complaints in 2000 was relevant to establish BART’s potential motivation for taking adverse employment actions against him after August 2004. Third, while the jury could not award Hill damages for the emotional harm he suffered before 2003, evidence of his emotions at that time helped to establish the reasonableness of his reactions to what occurred in 2003 and the extent of the harm he suffered in response to having to relive his earlier experience in 2003. Finally, any prejudice BART might have suffered from the introduction of pre-2003 evidence was alleviated by counsel’s closing arguments and the additional instruction given to the jury after they began deliberations. The jury was specifically instructed that it should “consider the events from January 9, 2003 to date” in deciding whether Hill suffered any adverse employment actions. This occurred after both counsel had made the same point in their closing arguments to the jury.
As noted earlier, after deliberations began, the jury asked for further guidance concerning the significance of the January 9, 2003 date mentioned by the parties in their closing arguments. The court conferred with the parties and responded to the jury that “[i]n deciding whether Mr. Hill suffered adverse employment action, you are to consider the events from January 9, 2003 to date.” BART complains the court should have specified that the jury should “only consider the events from January 9th, 2003 to date,” as BART had proposed. (Italics added.) While BART’s proposed wording may well have been preferable, we cannot say that the omission of the word “only” rendered the instruction confusing or misleading.
C. Damages
The jury awarded Hill $600,000 in past and future noneconomic damages for retaliation and $600,000 in past and future noneconomic damages for BART’s failure to prevent harassment, discrimination, or retaliation. BART maintains the two awards are duplicative of one another and each award is excessive. We focus on BART’s arguments with respect to the failure-to-prevent award and offer some guidance on damages issues that may arise upon retrial of the retaliation claim.
Here, the trial court found sufficient evidence to support the jury’s award on the failure-to-prevent cause of action and denied BART’s motion for a new trial on this issue. An appellate court’s power to overturn a jury award is much more constricted than that of the trial court. (Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 507.) We have no power to reweigh the evidence or judge the credibility of witnesses, and no duty to reduce an award merely because it appears to us to be excessive. (Ibid.) The duty of an appellate court is to uphold the jury and trial judge whenever possible. (Id. at p. 508.) We may not interfere with the jury’s award of damages “ ‘unless it is so grossly disproportionate to any reasonable limit of compensation warranted by the facts that it shocks the court’s sense of justice and raises a presumption that it was the result of passion and prejudice.’ ” (Ibid., quoting Johnston v. Long (1947) 30 Cal.2d 54, 76.)
Hill presented considerable evidence of the effects of BART’s conduct on his emotional well-being in the case. Hill’s closest friend, Arnold Fauria, and his companion, Jackie Snowden, both testified that Hill’s personality, mood, interest in socializing with others, and relationships with his children had been significantly affected by his problems at work. Snowden testified that Hill is restless and has difficulty sleeping at night, that he could not seem to get past the way BART had treated him, and that it had consumed him. Hill testified that when Van Fossen called him a “nigger” it took him back in time to other insults he had suffered, and that he could not think of another word that was more painful to him. He described his emotional reaction to being kicked in the leg, receiving the written reprimand from Steele, and realizing that he had, and still has, nowhere to turn for protection. He further testified that he feels he has to stay at BART to feed his family and must continue to endure the situation there until he is able to retire.
We cannot say on this record that the award Hill received for his failure-to- prevent claim is so disproportionate to the evidence presented that it is unjust and supports an inference that it was the result of passion and prejudice. We also reject BART’s claim that the award was based in part on, and duplicates, damages attributable to his retaliation claim. The jury returned two separate awards that were different in amount for the two claims. Both awards differentiated between past and future noneconomic damages. The jury included amounts for past and future economic damages in their retaliation award, but entered zeroes for economic damages in their award for failure-to-prevent harassment, discrimination, or retaliation. We are satisfied from the record that the jury evaluated the two claims separately and awarded distinct damages for each claim.
We recognize there is a substantial danger that a new jury hearing the retaliation claim separately after remand might award noneconomic damages duplicating those already awarded for Hill’s failure-to-prevent claim. Accordingly, the jury in any retrial of the retaliation claim should be instructed, in substance, that noneconomic damages should be limited to those flowing from Hill’s failure to obtain the promotions to which he believes he is entitled, and which he would have obtained, but for BART’s retaliatory failure to promote him.
D. Attorney Fees
Because we are reversing the judgment in part, we must also reverse and remand the fee awards at issue in case Nos. A122248 and A122881 for a redetermination of the amounts of those awards in light of the outcome of the retaliation claim. Such redetermination should reflect Hill’s success on his failure-to-prevent claim as well as the eventual disposition of his retaliation claim.
III. DISPOSITION
The judgment is partially reversed and the case is remanded to the trial court for (1) retrial of Hill’s retaliation cause of action limited to the issue of BART’s liability under section 12940, subdivision (h) for failing to promote him after August 2004, in accordance with the views expressed in this opinion; and (2) a redetermination of the amount of attorney fees to be awarded to Hill’s pretrial and trial counsel. In all other respects, we affirm the judgment.
Each party shall bear its own costs on appeal.
We concur: Marchiano, P.J., Graham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.