*1 Plaintiff-Appellant, Marjati WINARTO, AMERICA ELECTRONICS
TOSHIBA INC.,
COMPONENTS, Roger E.A. McKinley, Wayne Liem,
Taylor, Bill Nancy Alexander, Birtch, Defen-
Ron
dants-Appellees.
No. 99-55448. Appeals, States Court of
United
Ninth Circuit. 11, 2000
Argued and Submitted Oct.
Filed Dec.
Tyrоn Sheppard, Angeles, Los Cali- J. fornia, plaintiff-appellant. Silbergeld, F. Proskauer Rose Arthur California, L.L.P., for the Angeles, Los defendants-appellees. (“MIS”).
partment qualified She was well job; degrees for the she held relevant a com- experienced fields and was more than puter programmer most of other THOMAS, FLETCHER, Before: B. group. members of the PC WARDLAW, Judges. Circuit Roger Taylor (“Taylor”) became Winar- BETTY Opinion by Judge B. supervisor shortly to’s after she was hired. FLETCHER; Partial Concurrence and thereafter, him reported Soon by Judge Partial Dissent WARDLAW. that she had been harassed a co-work- FLETCHER, Judge: B. BETTY Circuit (“Birtch”). er, Ronald Birtch com- She Marjati off from her Winarto was laid plained that Birtch had called her a lesbian job with Toshiba America Electronic Com- virgin and a in front of other co-workers. ponents. sued the and some company She response testified that to this managers co-workers in federal of her he “took it on his own and it complaint, court, raising illegal re- claims stopped.” taliation, discrimination, *5 disability and civil 1992, In managing after Winarto for violations, rights among others. A months, Taylor completed three Winarto; returned a verdict of favor $93,000 performance first evaluation and rated in cоmpensatory awarded her performance a damages; and found that the liable defen- Winarto’s overall as 8.7 on fraud, oppression, evaluation, dants had acted with a scale of 5. At the time of this malice; as to the amount but deadlocked yet complained Winarto had not about dis- punitive of After the damages. verdicts criminatory treatment or about of- other returned, granted the district court by fensive conduct Birtch. 50(a) judg- defendants’ Rule motion for Birtch continued to harass Winarto ver- law, ment as a matter of set all aside bally, disturbing and he also undertook a Winarto, verdicts that favored and denied physical kicking. form of harassment: Winarto’s motion for a new trial as moot. testified that Birtch kicked Winarto her part jury’s reverse and reinstate of the We “many, many work times.” She com- compensatory damages verdict for re- orally Taylor early to as 1993 plained jury’s finding instate the that defendants fraud, Birtch in malice, with that she had been kicked oppression, acted co-workers; Tay- and remand for a new trial determine presence although to of her whether punitive Toshiba is liable for dam- stop, lor reassured Winarto this would ages punitive and on the amount of dam- and, although Taylor by Winarto thanked ages due from defendants. We sustain the helping stop kicking, email for her jury’s district court’s vacation of the find- kicking later testified that Winarto ing discrimination. “never cease[d].” I. History Factual that, day Winarto also testified one 1992, Birtch followed her down the stairs (“Win- 1992, Marjati
In March Winarto taunt, “Chick, began you to better arto”), ancestry, a woman of Indonesian I going you walk faster or am to hurt began working for Toshiba America Elec- (“Toshiba”) again.” pass He tried to her while simul- Components tronic Per- as a (“PC”) taneously blocking going her from down Analyst sonal Computer Support stairs, Management Systems causing her to her trip Information De- twist her so wrote a second note that was more restric- injury ankle troubled ankle. The than the surgery years two tive first. required much that it later. complained Taylor to about oth- Winarto of the Birtch. group was trans- er members besides Winarto
Sometime Liem, complained Wayne a co- group placed and was She ferred to another acting supervisor, worker and sometimes Royer of Mark supervision under review, problems her her back year-end In the 1993 harassed about (“Royer”). being derided her for an “Asian woman.” rating an of 3.29. Royеr gave her overall Taylor present testified that dur- praise evaluation contained mixed She Royer’s ing McKinley, one conversation when Bill His overall conclusion was and criticism. co-worker, worker, complained another about the pleasure “is a hard that Winarto with, employed by number of Asians Toshiba. organiza- and an asset to the to work being complaining McKinley after also used to harass January tion.” In woman, injured, and Asian. Winarto department to the Human Resources (“HR”) complained had “all Royer, with Winar- also testified she problems about during the Human Resources” Taylor’s group. way back to to was transferred period. this time Trial Tr. at 98-99. began complain supervising throughout After about Birtch. She com- again an overall Taylor gave him email that Birtch had score plained to review, year-end performance at- in her “nasty things” about her and 3.04 written point seven-tenths of a lower than sign-out tributed incorrect times to her on almost *6 given he her. In the rating in the office. After Winarto’s had last a board removed, evaluation, Taylor’s performance the board was and complaint, need to the hall and comments focused on Winarto’s Winarto was moved down Hе player. gave become a better team away from Birtch. work rating despite noting good low Winarto, According to the harassment directory phone had done on a Winarto throughout Birtch her em- continued at trial that the project; Taylor admitted Birtch called Winarto names ployment. and that project very important was Win- “clueless,” up messed her hair with such job a on it. good arto had done handkerchiefs out grabbed his hands and 1994, Winarto took regular “on a basis.” He On December pocket of her ankle surgery leave to have on her mimicked her accent and continued to kick medical Winarto, she returned on or about According to when she re- from which her. 20, 1995, days approximately eleven Taylor, Birtch’s behavior to he March ported funny before she was laid off. “thought that it was like or some- really seriously.” take it thing. He doesn’t response in to declin- January In began to consider diagnosed ing profits, Toshiba August In Winarto was (“Su- jobs. Mr. eliminating some Suboni injury. a A doctor wrote a note with back boni”), MIS, of called the Vice President sought lifting responsibili- to limit her this, within ties, position for the elimination of one despite but her co-workers downsizing effort. computers. part MIS аs forced her to continue to move and, back, layoff, result, reinjured Taylor proposed a her. which As she made, work; final were any before decisions caused her to miss more the doctor eral court. In her first amended Trubey (“Trubey”), supervisor a Carol (1) HR, in employee complaint relations conducted she asserted claims for dis- (“RIF”) race, analysis. In “Reduction Force” crimination and harassment based on Trubey ratings sex, at the of Winarto origin looked and in violation of Title national skills, impor- and their employees, Employment various Fair VII and the California (2) ages (“FEHA”); and in order company, tance to Housing and Act discrimi- an appropriate to ensure Winarto was nation and harassment based on there lay-off (3) candidate for and FEHA; in violation of the retaliation part no discrimination the decision. As making complaints of discrimination review, Trubey of the RIF looked at the and harassment in violation of Title VII recent evaluation of the mem- most scores FEHA; (4) and the violation of her civil Taylor’s McKinley Bill bers of team: rights as defined California Civil Code (3.67), (3.56), (3.62), Birteh Chuck Struckel 52(b) (5) 51.7, 52.1; sections discrimi- (3.04). and Winarto nation and harassment in violation of the Constitution, I, California Article Sеction Trubey RIF completed Soon after (7) 8; termination in public violation of analysis, in March filed two (8) policy; discrimination violation of the complaints response written to her 1994 (“ADA”); Disability Americans with Act evaluation, performance which she had re- The negligence. claims based on ceived while on medical leave. these VII, Constitution, Title the California ter- complaints alleged she that she had been public policy, mination violation of against discriminated and harassed ADA, negligence brought against several other co-workers and only. Toshiba The other claims were woman, managers because she was a brought against various combinations of minority, injuries and had suffered the individual defendants. kept away from work. Once Toshiba’s management received Winarto’s com- The case was tried to a that re- plaints, they postponed the decision to ter- special comprised turned a verdict of an- pending investigation. minate her an Tru- twenty-six questions. swers *7 bey investigated complaints; spoke the she unanimously Tay- found that Toshiba and with each of the people listed the com- discriminating against lor were liable for plaints, ultimately concluded that shе injuries, Winarto based on her that Toshi- allega- could not “substantiate [Winarto’s] “inflicting ba and Birteh were liable for tions of harassment and discrimination.” or workplace violence intimidation the (an- point, Trubey, At that Linda Martin race, of [ ] because Winarto’s national ori- supervisor), other and Suboni determined sex,” gin Taylor and that had aided and that they go layoff. would forward with the abetted the infliction of violence. It also found that both termi- Toshiba March, In Toshiba terminated six indi- nated Winarto in retaliation for her com- only viduals: Winarto was the non-Cauca- plaints to HR. Toshiba’s It found none of time; sian at that laid off four of those the defendants liable for discrimination or terminated were women. sex, race, harassment based on or national origin. It also found that Winarto did not II. History Procedural ability suffer a that limited her Toshiba, Birteh, major Taylor, participate Winarto sued life activities. The employees jury unanimously compensatory and three other Toshiba in fed- awarded
1283 $93,000 jury party to find for that on that issue.” found that Toshi- damages of Products, Plumbing Reeves v. Sanderson of mal- ba, guilty Birtch were Taylor, and Inc., 133, 149, 2097, 120 147 conduct, 530 U.S. S.Ct. ice, in their or fraud oppression (2000) (quoting L.Ed.2d 105 Fed.R.Civ.P. punitive damages. for and thus liablе 50(a)). However, reach a ver- jury could not puni- amount of a respect with to the dict JMOL, ruling on a motion for award. damages
tive
credibility
the court is not to make
deter
trial,
filed a motion
During
defendants
weigh
minations or
the evidence and
that the
as a matter of law
judgment
light
all inferences in the
most
should view
submission; after
court took under
district
Reeves,
nonmoving party.
favorable to the
verdict,
jury returned its
150,
(citing
530
at
moving party Reeves, to believe.” U.S. 50(a) Judgment III. Rule Standard for “may not substitute 2097. The court S.Ct. Law as a Matter of for that of the its view of the evidence that the district court mis We hold Valley jury.” Johnson v. Paradise Uni post- standard of review for applied the (9th Dist., 1222, 1227 251 F.3d Sch. fied a matter judgment motions for verdict .2001). Cir (“JMOL”). The trial court can of law grant such a motion overturn Retaliation IV. law, if, can governing there under as to the be but one reasоnable conclusion that defendants violat- Winarto claimed words, Title provisions In other the motion verdict. ed the anti-retaliation FEHA.2 Both of only if “there is no and the California granted should be VII1 from prohibit employers for a reasonable these statutes legally sufficient basis proceed- investigation, any manner in an provides that it is an 1. Title VII subchapter. ing, hearing under this *8 employment practice em- for an unlawful 2000e-3(a). § 42 U.S.C. any against of his ployer to discriminate (the applicants employment, § employees or Government Code 12940 2. California Housing Employment employment agency, joint labor- for an or California Fair Act) controlling appren- makes it management committee retraining, ticeship training in- or other or practice, employment unless an unlawful cluding on-the-job training programs, occupational quali- upon a bona fide based individual, against any or, or for a fication, upon appli- discriminate except based where against organization to discriminate by labor the security regulations established cable applicant for mem- any member thereof or California: or the State of United States any prac- (h) organization, opposed any employer, bership, because he has labor For practice person to dis- employment employment agency, or an unlawful tice made expel, discriminate subchapter, charge, made or otherwise or because he has this testified, assisted, person any person the has against because participated charge, a 1284 against employees discriminatory direct evidence of motive is
taking adverse actions sufficient, but if circumstantial evidence is complain who about discrimination and offered, “specific” evidence has to such be harassment at work. 1222; Id. at v. “substantial.” Little Relocation, Inc., Windermere 265 F.3d A. Pretext (9th Cir.2001). 903, 915 An unwarranted form, special On the verdict in performance reduction review scores “yes” you answered when asked: “Do pretext can constitute evidence of in retali Thomas, find a of the evidence v. preponderance ation cases. See 809 Yartzoff (9th 1371, 1377 Cir.1987); F.2d Roger Taylor terminated Steiner defendant cf. Co., Operating v. Showboat 25 F.3d Marjati in plaintiff retaliation for (9th Cir.1994) (low satisfy pri- 1465 marks making complaint a Hu Toshiba’s case, ma facie but in were this case insuffi man find department?” Resourcеs We prove pretext). cient to record, light that the viewed most Winarto, supports finding, favorable to this by considering The district court erred holding and we reverse the district court’s Trubey’s analysis the effect of RIF contrary. to the by ignoring Taylor’s the evidence of retaliatory giving motive for burden-shifting Under poor evaluation. selected Winarto FEHA, scheme of Title VII and the after lay-off justified decision, his plaintiff prima establishes facie case large part, on those low evaluation scores. retaliation, production the burden of Trubey did not start from a clean slate legit shifts to the defendant to articulate a analysis, with her RIF but instead used imate, non-retaliatory explanation for the Taylor’s lay-off selection of Winarto for employment adverse action. Nidds v. starting and Winarto’s low scores as her 912, point. Trubey Schindler Elevator testified at trial: Corp., 113 F.3d (9th Cir.1997); Henderson, Ray v. 217 Q: you perfor- And did review the (9th Cir.2000); F.3d Guz anyone mance reviews of [besides else Nat’l, Inc., 317, 354, Bechtel Cal.4th department Winarto] or her (2000). Cal.Rptr.2d 8 P.3d working group? If employer rebuts the inference of detail, great A: Not in they because retaliation, the production burden of shifts hers, higher were than but I skimmed back the plaintiff tо show that the de through them. fendant’s explanation merely pretext is Q: They were than higher hers what for impermissible retaliation. Id. Pretext respect? (1) may directly by per be shown either I rating. A: The overall would have suading that a discriminatory mo just through skimmed to see if there likely tive more than not motivated the any concerns on the individual rat- employer indirectly by showing ings, rating because the overall is re- employer’s proffered explanation un average flected an score. worthy of credence. Hunt Godwin v. *9 Inc., (9th Wesson 150 F.3d Cir. Through Trial Tr. at 502-03. her RIF 1998). pretext, “very analysis, Trubey To establish little” verified that Winarto was testified, opposed any practices plaint, any proceed- forbidden under this in or assisted
part person ing part. or because the has filed a com- under this with replete is The record retaliation. candi- choice, appropriate an justifiable a written com- many oral and her of proof that premise the on lay-off, based for date con- record also The scoring employee Taylor.5 to plaints lowest the was Winarto HR Al- to complaints of had declined.3 her tains evidence skills one whose and Trubey that her March before suggests years even and no evidence months most evalu- wrote Taylor’s whether and before complaint inquired into improper retalia- on based Winarto was 1994 evaluation.6 ation itself the December discriminatory motives.4 sever- tory complained or on had that she testified at E.g., Trial Tr. HR. to al occasions very little trial, offered defendants At this corroborated 227. Birtch low scores Taylor’s that to show evidence that, provoked, when noting testimony by retaliation. but anything on based were to “I’m say going would often Winarto substantial contrast, offered Winarto By to talked HR,” employee an HR and that from evidence retaliation evidence a lesbian. after he called him inferred, and could be retaliation which protected were many complaints Winarto’s defendants’ pretext sufficiently rebutted VII, and Title and the FEHA acts within The rec- low for the scores. explanations the been basis have any of these could that Winarto findings the supports ord of retaliation. claim an actionable protected acts that were complaints made (2) Tay- and and FEHA Title VII under that the conclusion supports The record in comments negative low lor’s scores Al- retaliatory. was Taylor’s evaluation for her com- in retaliation given 1994 were counter Win- sought to though defendants decline legitimate for a not plaints, de- dramatically that the arto’s evidence performance. unjustified, clining evaluations viewing conflicting; evidence was the best protected acts many engaged Winarto, was a she in favor of the evidence statutes that by the antidiscrimination had not performance whose employee good for unlawful trigger the have been could form jury's special verdict Although the analysis 5. the RIF characterizes 3. The dissent jury the found “retaliation confirmed asked whether independently Trubey had ifas Human qual- complaint least to Toshiba’s department's making a MIS the Winarto was employee. This only replaceable instructions department,” ified Resources defendants on may theory be conclusion relied that Winarto's elaborated draw, jury did not. jury to but wanted supervisor and made to her "complaints conclusion, the assertion especially This at 24 Jury Instructions Resources.” Human a co-workers had every Winarto's one of sug- added). Despite the dissent’s (emphasis irreplacea- "unique [them] made which skill never contrary, gestion to the unsuрported in the record. simply ble” is March on to focus or directed instructed complaint. testified, she "talked passing, that Trubey 4. supervisor, Linda [Taylor and another with undermining dissent’s flaw The critical 6. couple occasions a at least Martin] on conclude evidence to ignore analysis is to this perfor- and her skills [Winarto's] understand mance, only in complained to HR decline that Winarto why there was con- way this Trubey to draw nev- 502. 1995. Trial Tr. at March performance.” defen- disclosed credit on this statement the record elaborated from er clusion decline. to resolve about Winarto's what she concluded witnesses over dants’ in the record about evidence testimony. no other There is This resolution conflict direct did, anything, to scrutinize if Trubey what its head. on of review standard turns our Taylor’s scores. low *10 deteriorated from 1992 to 1994. Never- anything but resentment many for her theless, Taylor’s overall rating of Winarto complaints. (out 5.0) fell from of possible 3.7 in 1992 As further support for jury’s 1994, to 3.047 1992, in a drop of 17.8%. In findings, record Taylor’s reflects exas Taylor gave Winarto 3.5’s or in 4.0’s peration, sympathy, lack of and even ani categories, individual gave while he her mosity toward Winarto. Winarto testified (with 1994, 2.8’s and one exсeption) 3.0’s that when complained she Taylor to to amounting decreases in score from Birteh accent, had mimicked Taylor 14.3%to 30%.8 laughed at her and did not it take serious Furthermore, Winarto introduced sub- ly. In response note, to a Taylor doctor’s stantial specific Taylor’s evidence that became you furious and said “if cannot do explanations were pretextual as both un- all this you else can what do?” When she
worthy of credence and likely motivated
asked him question
occasion,
on one
by unlawful
Godwin,
retaliation. See
150 Taylor
looked
her rudely, angrily, and
F.3d at 1220.
example,
For
unlike the with such intensity that she almost “fell to
generally positive
Taylor
comments
had
ground.”
Winarto testified also to
made
Taylor’s
some of
1994 com- Taylor’s
biases;
racial
she once
him
heard
ments can
interpreted
be
only
penalize
to
say that Toshiba
any
“doesn’t need
more
having
made legally protected
Again,
Asians.
just Toshiba,
this is
what
complaints.
In
Taylor noted that
can we do
it?”
about
The dissent chastises
“she sometimes does not assume responsi-
us for relying
evidence,
on this
because it
bility to help resolve
Taylor
conflicts.”
“only
is
evidence of her impressions.” On
implored
also
Winarto “to become more
the contrary,
ignore
Winarto’s testimo
efforts,”
involved in team
and suggested
ny is to
province
intrude on the
jury.
“improve
she
teamwork with more partic-
Finally, as additional evidence of retaliato
ipation and challenges.”
contrast,
motive,
ry
testified that
review,
the 1992 performance
Taylor had
stopped sending her to training seminars
called Winarto an
player,”
“excellent team
after she complained to him and HR.9
and defendants offered no evidence
sug-
gest that Winarto’s teamwork skills had
The dissent
analysis
attacks our
off,
fallen
or that
the “responsibility
by relying
on the self-serving testimony of
help resolve conflicts” comment reflected Birteh
Taylor, and,
on some points,
7.A rating of 4.0
employee
means the
“consis-
reasonably likely to
charging
deter
party
tently
job requirements.”
exceeds
3.0 means
engaging
others
protected activity).
from
effective,
employee
“fully
is
[and]
not,
8.
It
job requirements.”
meets
matters
suggest,
all
2.0
defendants
means
improvement
"needs
manager
Winarto's
development.”
Royer,
gave
Even
non-sub-average ratings
scores that
can constitute
were lower
given
an
than the scores
emрloyment
"adverse
they
by Taylor
if
decision”
are
in 1992. The
could conclude
clearly undeserved or a large departure from
that a
Royer
three
something
meant
differ-
past
Yartzoff,
reviews. See
1287
by that a rational trier of fact could not find
evidence of defendants controverted
pretext
plaintiffs.
disparages
evidence in the record of
and retal
The dissent
infer
juror
by
Little,
(finding
ences a reasonable
could draw
iation. See
only “an employer” from discriminating in supervisor may personally be held hable hiring and employment decisions. Cal. for retaliation under the FEHA. The dis 12940(a). § Gov’t Code Reno focused on trict court erred insofar it as held other the absence of the “person” word in decid- wise. ing that the discrimination provision does
not
liability
extend
to individual supervi-
sors,
499,
Cal.Rptr.2d
76
Our is consistent with how the The district court also reversed retaliation provision had been interpreted jury’s verdict to the cause of action complaints. tion for Court, 880, Because the Superior 889-90, son v. 16 Cal.4th firing premised (1) 888, on acts that Cal.Rptr.2d violated 66 941 P.2d (2) federal and (1997) state laws furthered (holding some age discrimination can policy (3) public in the interest that were well be the wrongful basis for discharge suit established at the discharge of the time public because it policy expressed violates the (4) fundamental, FEHA); substantial and defen- in the Rojo Kliger, 52 Cal.3d 90-91, dants are also liable for the California com- Cal.Rptr. 801 P.2d law
mon tort of wrongful discharge. See (finding public Cal. policy against sex dis ("The § Gov't Legislature Code finds crimination embodied state constitution to and declares existing policy that it support of wrongful suit for discharge). We prohibit the State of California harassment thus grant reverse the judg district court’s employment discrimination in on the ba- ment as a matter law on the cause of action any protected classification.”); sis of Steven- public termination in policy. violation of limit the reach of wanted to legislature nia Code Sections Civil on California based extreme, acts of criminal the statute find Because we 51.7, 52, 52.1. so. violence, explicitly said it have could jury’s supported evidence substantial liability civil it was create did instead What verdict, reverse.12 we com- broadly than sweeps more which *13 phrase mon, meaning of the colloquial Act Violence A. of that evidence clear crimе.” Without “hate otherwise, stat we will crimes” “hate intended legislature are not the These meaning of the stat- per plain “[a]ll that disturb the provides not 51.7 utes. Section Bd., Tax 9 Franchise v. free from Lennane to be ute. right ... have the sons 563, 263, 268, 885 Cal.Rptr.2d 36 of threat Cal.4th violence, by intimidation or any (1994). 976, 978 P.2d persons violence, against their committed race, na ... of their because property or against committed Birtch violence Civ.Code ... sex.” Cal. [or] origin, tional dispute beyond established It is Winarto. § 51.7.13 least once. Birtch Winarto kicked that and this section that may be true It or kicked her that Birtch testified Winarto en- were statutes California similar other occas on other many feigned kicking in- alarming response [the] “in acted ions.14 City Boccato in hate crimes.” crease of 282, Beach, 29 Cal.Rptr.2d 35 vi commit Hermosa did Birtch only Not (alteration 1797, Winarto, also but he Cal.App.4th against acts olent Nevertheless, intimidating. no re- there is that was violence original). threatened is: § or The test extreme 51.7. violence be that the Cal. Civ.Code quirement See standing person, of plain language a reasonable in the “would by hate motivated intimi been have construing plaintiff, the shoes of sections, in the cases the the the of defendant by that the actions them; requirement no dated is there also violence?” threat of a perceived have If Califor- a crime. the act constitute the respect Winarto's only with argument, but argument waived have the defendants 12.The action, negligence. of a under the of claim is cause of action barred seventh this cause that 22, statute limit its consciously chose to On November of limitations. Toshiba statute defen- ac- ordered cause of argument district court to one limitations of summary judgment tion; to file motions others respect dants to the arguments with purely defenses that any on affirmative waived. are law, any of limi- including statute of questions order warned The defenses. 52.1(b) tations action a cause of provides 13. Section waiver of deemed a will be to file “[flailure rights denied any person who has been defenses.” respective affirmative in- California-presumably of the laws under filed response, individual defendants In cluding § 51.7. summary judgment, separate motions two individual third. The a Toshiba filed “glanced off” that his foot 14. Birtch testified any stat- to make failed motions defendants’ accident, apolo- that he Winarto once arguments. The limitations ute and later happened orally it gized when denying January order court's dissent Taylor's direction. writing upon any statute of deemed two motions these testimony concludes focuses on this de- these was waived defense limitations improp- This once. was kicked fendants. having testimony of erly Winarto's discounts summary separate motion for Toshiba’s many times. kicked been limitations a statute of did judgment include Judge Donna J. Hitchens & Robert any D. animus plaintiffs based on national Links, Civil Practice: Civil origin, any sex or that she might California have”; Rights Litigation § the dissent agrees. 3:4. This Specifically, holding we because, unsupportable focus on taking woman. the facts in Elli reasonable Cf. light Winarto, Brady, son v. (9th most favorable to a rea- F.2d Cir. 1991) sonable could find that Birtch (using reasonable woman test to motivated his by gender violence decide whether sexual harassment creates national origin animus.15 environment). a hostile During incident, stairwell approached Birtch Birtch derisively called Winarto “chick”. stairwell, from behind and threatened Sometimes, just her, before he kicked he her, “chick, *14 saying, you better walk faster say would “I’m going you to hurt again, or I am going you to again.” hurt Winarto Chick.” Trial Tr. at 55. At deposition, his rushed injured down the stairs and Birtch admittеd messing that the hair was ankle so severely that she needed surgery a “girl thing” although he later recanted years two later. Birtch tousled Winarto’s this statement and claimed to have messed grabbed hair and handkerchiefs out of her with the hair of his male friends too. pocket many on occasions. After experi- Birtch also mimicked Winarto’s accent encing violence, Birtch’s acts of including “very, very frequently.” beyond It is dis kicks, one of which Winarto described as pute that Birtch singled out Winarto as the being “very, very it painful,” is reasonable victim of his attacks. The circumstantial that later, Winarto was by intimidated his supports evidence the reasonable inference less violent personal invasions of her space Winarto, that he targeted partly, least touching. unwanted spoke because she with an accent and be cause she was only woman in his B. Animus group, in other that gen words [19] The district court ruled that Win- der and national origin were substantial arto’s claims failed because Winarto motivating did factors in Birtch’s attacks. not any “offer Thus, evidence whatsoever that the court stepped proper outside its Birtch’s conduct by was any motivated ani- deferential in granting role JMOL.16 mus towards Winarto because of her mem- VI. Disability Discrimination bership in protected a persons.” class of Instead, the district court excused Birtch Although jury found that Win- having for “acted immaturely, but not with arto did not have a that limited It is unclear requires whether the statute Taylor’s 15. address liability sepa- and Toshiba's motivation, bias to be the sole a substantial rate liability. from Birtch's Nor do defen- motivation, part of the or an incidental moti- argue appeal Taylor dants on that and Toshi- vating factor. § Civil Practice 3:6. California ba are somehow immune from this kind of However, we need not decide because under law, liability. As a Taylor matter of can be standards, any of these could reason- ”aid[ing], liable for inciting], conspir[ing] or ably conclude that Birtch bore animus toward in the rights denial” of Winarto’s Sec- under Winarto. may Winarto’s status not be the 52(b). tion § 51.7. Cal. Civ.Code It follows targeted, reason she was but the record that Toshiba can be liable for the acts of its supports the that conclusion it was at least a Furthermore, agent. supports the records substantial factor. jury’s finding Taylor that and Toshiba aided depriving Birtch rights. Winarto of these 16. Taylor found that also and Toshi- ba were liable for the violence inflicted оn by Birtch. The district court did not Toshiba, Taylor, and Birtch that” major ac- dence life ability participate to malice, or fraud oppression “guilty that Defen- were tivities, found it nevertheless [its] on which based [it] “liable in the conduct Toshiba dants jury’s finding ... based A plaintiff damages.” discriminating against award lifting injury damage injury, supports punitive ankle her back the evidence on reconcile are unable to We if it is supported restriction.” award be affirmed should affirm the therefore findings and these two Lambert v. Ack by evidence. substantial jury’s reversing (en ruling (9th Cir.1999) court’s erley, 180 F.3d If the disability discrimination. banc). verdict that substantial evidence We find that To- conclusion supported the record all jury’s determination that supports the have dis- been perceived shiba with sufficient cul acted three defendants sus- abled, finding could be jury’s punitive expose themselves pability FEHA,17 not. Under It does tained. See, e.g., Passantino v. Johnson damages. re- “being includes disability” “physical Prods., Inc., 212 Johnson Consumer & or oth- employer or treated garded (9th Cir.2000) (holding F.3d 514-516 having part this entity er covered “un retaliation the evidence of any physical condition having had satisfy the “mal sufficient” to questionably *15 activity major of a life makes achievement for indifference” standard ice or reckless 1292600(4). § Gov.Code. difficult.” Cal. VII). damages under Title punitive employer’s that an instructed The was liabil limit its vicarious Toshiba seeks employee is disabled that an perception by in damages ity punitive Title VII for disability” require- “physical satisfies the principles law as elaborated voking agency ment. Ass’n, U.S. Am. Dental 527 in Kolstad v. she had testified that Although Winarto 526, 539-46, L.Ed.2d S.Ct. temporary about her managers told (1999). is Because the district court limitations, no evi- she introduced physical decided, Kolstad was before sued its order to establish that in the record dence Although this defense. it did not consider be disabled. her to managers perceived this the issue to briefed parties the have nature of temporary Winarto’s Given the fully devel court, have not been the facts restrictions, fact that the injuries work and Specifical the district court. oped before notes from given two Toshiba had been given opportuni be ly, Toshiba should that To- enough prove was not doctors that it had proof burden ty to meet its disabled. to be perceived Winarto shiba 'that policy anti-retaliation adequate an err Thus, court did not Pas faith. See good implemented disability jury’s verdict reversing santino, Kol (citing at 516-17 212 F.3d FEHA. We af- under the discrimination 2118]). stad, 119 S.Ct. [527 U.S. firm. sug current record The evidence “fairly and not policy was that the gests Damages VII. Punitive Taylor Id. at 517. adequately enforced.” com that when testified at trial verdict special on the being kicked him about plained to convincing evi- “by clear and found form FEHA, expressly distin- and appeal to the brought discrimination 17. Winarto our review We likewise limit guishes ADA. and FEHA. the ADA both claims under However, under FEHA. to the claims arguments on limited her she has Birtch, he did not memorialize the com- taliation policy good faith in order to plaint, nor did he believe that he had to determine whether Toshiba is entitled to report the complaint Furthermore, to HR. invoke the Kolstad limit on vicarious liabil- (2) ity; he testified that his whether supervisor, Linda Toshiba ratified or Martin, authorized Taylor’s wrongful him told when conduct for informed about the purposes of deciding apply whether to complaint that the Cal- simple warning he had ifornia Civil Code section If 3294. there given to Birtch sufficed. Birtch was not are fact, material issues of disputed disciplined otherwise and the abusive con- jury should decide liability Toshiba’s under cease; fact, duct not did Birtch contin- proper instruction. Regardless of whether ued to work for Toshiba at the time of the Toshiba is punitive liable for damages, pu- trial had been promoted af- sometime nitive damages appropriate are against ter departure. It seems on this Birtch, and the amount thereof record Toshiba did not have a suffi- shall be determined the jury. cient policy or at least one that was ade- quately enforced in handling Title VII
complaints. See Cadena Pacesetter VIII. Conclusion (10th Corp., Cir.2000) 224 F.3d reasons, For the foregoing we reverse (“[T]o avail itself of goodfaith- Kolstad’s the district court’s decision granting Ap- standard, compliance employer an must at pellee’s motion judgment as a matter of adopt least policies!!,] antidiscrimination (1) law on three claims: retaliatory dis- good make a faith effort to educate its (2) charge; termination in pub- violation of employees about policies,” these lic policy; and California Civil Code good “make efforts to enforce” policy.). *16 51.7, 52, §§ and 52.1. The district court’s Nevertheless, given Toshiba should be the decision to jury’s reverse the verdict opportunity develop to the on record this only affirmed respect with to the claim for point. disability discriminatiоn. Toshiba also contends that dam punitive Because we affirm the district
ages are not
against
recoverable
it under
court’s reversal of
jury’s
the
finding of
the FEHA and California Civil Code Sec
discrimination,
disability
we must decide
52(b)
tion
officer, director,
unless an
jury
whether the
should recalculate Winar
agent of
managing
employer
the
ratified or
compensatory
to’s
damages on remand.
wrongful
authorized
cpnduct. Cal. Civ.
urged
the
to
lost
award
§ 3294;
Code
Weeks v.
&
Baker McKen
$39,000
wages
per year,
of
less the small
zie,
Cal.Rptr.2d
74
63 Cal.
amount she made working for other com
App.4th 1128,
(1998)
1147-48
(applying
panies
fired,
after she was
plus future
action).
section 3294 to FEHA
As with
$200,000
compensation, plus
damages
defense,
the Kolstad
the district court
for emotional distress.
The damages
issue,
failed
reach
to
this
decline
we
to
wages
awarded for lost
specific
were not
decide whether
applies
section 3294
with
particular
action;
furthermore,
cause of
out further development of
factual rec
the
based
the relatively
on
small
of
amount
ord.
awarded,
compensatory damages
as com
remand,
On
the district
may
court
con- pared
the emotional
damages
distress
sider
parties
evidence from the
claimed,
as to
it is evident that emotional dis
Toshiba implemented
whether
an anti-re-
damages
tress
specifically
caused
by dis-
race,
origin,
national
claim of
de minim- written
would be
ability discrimination
Human Re-
Toshiba’s
jury’s
sex discrimination.
the
we reinstate
Accordingly,
is.
investigated the claim
Department
sources
$93,000verdict.
entire
Thereafter,
it meritless.
on
and found
jury’s
the
determina-
reinstate
We also
31, 1995, Toshiba notified Winarto
March
Fur-
damages.
liability
punitive
for
tion of
laid off.
among
would be
those
that she
thermore,
for a new trial
motion
court’s
majority
reverses the district
damages is no
punitive
the amount of
on
ensuing claim
of
on Winarto’s
grant
JMOL
We remand
granted.
and is
longer moot
stating that
retaliatory discharge,
of
whether Toshi-
to determine
trial
“misapplied the standard of
district court
damages and
punitive
ba is liable
motions for” JMOL.
post-verdict
review
as to all de-
damages
punitive
amount of
Not
did the district
disagree.
I
fendants.
for ren-
court recite the correct standard
appellant.
awarded to
Costs are
50, but,
under Rule
unlike
dering JMOL
it.
majority,
actually applied
it
See
PART, REVERSED
IN
AFFIRMED
Players
Baseball
Ass’n v.
Major League
PART and REMANDED.
IN
1724, 1728,
Garvey, 532
S.Ct.
U.S.
(2001) (“To be sure the
L.Ed.2d 740
WARDLAW,
concurring
Judge,
Circuit
princi-
recited these
Appeals
here
Court
dissenting
part:
part
nothing
of them is
application
but its
ples,
Moreover,
First,
majori-
with the
my agreement
baffling.”).
I note
short of
Supreme
of the district
majority
ty
exactly
on its reversal
here
what
does
claims
recent
upon
on Winarto’s
another
grant
court’s
of JMOL
Court
frowned
51.7, 52(b),
§§
contrary
inferences
Civil Code
it has drawn
opinion:
under California
52.1,
unimpeached
its affirmance of
ev-
and with
the uncontradicted and
“a
the FEHA
record to build
whole
court on
idence
with the
retalia-
part company
I
harassment and
alleged
claim. Where
edifice of
Breeden,
reversal of the district
at 1511.
majority is on its
tion.”
See
S.Ct.
*17
claim
of
on Winarto’s
grant
court’s
JMOL
First,
jury
us be clear as to what
let
retaliatory discharge.
of
ver-
26-question special
in
not find
its
did
firm-
1995,
any
that a
or
of
Toshiba determined
not find Toshiba
dict.
It did
necessary.
supervi-
in force was
co-workers or
reduction
individual
wide
Winarto’s
harassment,
as one of the em-
harass-
was identified
for sexual
Winarto
sors liable
(i)
origin,
her de-
national
or
to be laid off because
on race or
ployees
ment based
ei-
lay
off one
It did not find
required
be
discrimination.
partment would
sexual
(ii)
year,
Roger Taylor liable
prеvious
and
in the
Toshiba or
employee
ther
on race or national
1994,
based
performance
received the lowest
discrimination
she
suf-
Af-
not find that Winarto
department.
origin.
in
It did
scores
evaluation
ability to
limited her
identified,
disability
a
but before
fered
ter she was so
did,
activities.
It
made,
major
life
participate
filed a
was
final decision
Supreme
States
Judge
reversed
the United
Fer-
language is borrowed from
1. This
County
v. Bree
District
panel
in Clark
School
unpublished
Court
from the
nandez’s dissent
1508,
den,
268,
149
121 S.Ct.
County
532 U.S.
School
in Breeden v. Clark
decision
curiam).
District,
(9th Cir.2000),
(per
which
L.Ed.2d 509
taliation). presented But she no such evi I affirm the would therefore Faced with dence to the district court. lia- judgment except court’s on all claims was forced to declining profits, Toshiba 51.7, §§ bility under Civil Code California by reducing its operating lower its costs 52(b) and 52.1. of Doc department
workforce. The entire eliminated, Training
umentation and departments, in
and a number of other
cluding Management Informa (“MIS”), Systems Department
tion their head count one. asked to reduce America, STATES of UNITED per Not did Winarto have the lowest Plaintiff-Appellee, department, evaluations in her formance but, co-workers, unlike each of her Winar- WILLFONG, Duane A. Defendant- that made her possessed unique no skill Appellant. Although received irreplaceable. No. 00-10227. 1994, ramming praise for her efforts longer were no essential to the MIS skills Appeals, United States Court of assume, department, speculative so it is Ninth Circuit. if majority, as does the that even Winarto’s May Argued and Submitted higher, she would not have scores were lack of Filed Dec. been laid off due to her current skills.
Lastly, majority relies on Winarto’s discriminatorily de-
argument that she was