JOYCE WATSON, Plаintiff and Appellant, v. DEPARTMENT OF REHABILITATION, Defendant and Appellant.
No. B029148
Second Dist., Div. Seven
Aug. 8, 1989
Jerry L. Webb for Plaintiff and Appellant.
John K. Van de Kamp, Attorney General, Henry G. Ullerich and Thomas Scheerer, Deputy Attorneys General, for Defendant and Appellant.
NEWMAN, J.* —The State of California Department of Rehabilitation (State and agency) appeals from a judgment awarding Joyce Watson (Watson), a civil service employee of the State, damages of $1.5 million after a jury trial. Watson proceeded to trial on two statutory causes of action for race and age discrimination in violation of
PROCEDURAL HISTORY
Watson sought a promotion from her clerical position of intake clerk to vocational rehabilitation assistant in a promotional examination given in August 1977. She did not receive the promotion; the position went to a Caucasian. Watson filed a charge on March 28, 1978, with the Department of Fair Employment Practices (DFEP) alleging that the denial of promotion was based on her race. She received a “right-to-sue” letter from the DFEP on August 31, 1978. Thereafter on January 8, 1979, Watson filed suit alleging violation of former
The parties reached a stipulation in the trial court on October 23, 1985, taking the matter off calendar so that Watson could file a second charge with the Department of Fair Employment and Housing (DFEH) and then her third amended complaint. The parties stipulated that Watson could file
* Assigned by the Chairperson of the Judicial Council.
On May 16, 1986, Watson filed her fourth amended complaint alleging four causes of action, including two statutory causes of action for race and age discrimination, a cause of action for breach of the covenant of good faith and fair dеaling, and a cause of action for intentional infliction of emotional distress. Watson again named Davis and the two other supervisors as individual defendants, and again sought compensatory and punitive damages as well as injunctive relief. On June 9, 1986, the defendants again demurred and moved to strike. On July 1, 1986, the trial court again overruled the demurrers, and ordered Davis, Nitta and Rainey stricken as defendants, as well as the allegation and prayer seeking punitive damages.
The State filed its answer raising as affirmative defenses claims previously presented by way of demurrer and overruled. On July 31, 1986, plaintiff filed her fifth amended complaint, apparently because the trial court on July 1, 1986, mistakenly instructed Watson to file still another amended complaint rather than ordering the State to answer as it apparently intended.
The State again moved to strike—this time the fifth amended complaint—on August 6, 1986. On October 22, 1986, the trial court struck the fifth amended complaint and allowed the State 30 days to answer. It again filed the same answer it filed previously in response to the fourth amended complaint.
On November 25, 1986, Watson filed her at-issue memorandum listing $1 million in general damages, $25,000 in special damages and $1 million in punitive damages. The matter was set for trial on March 16, 1987. The State agreed to withdraw all objections to the complaint except that based on Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148 [233 Cal.Rptr.
After trial, the jury brought in a general verdict in favor of Watson for $1.5 million. The State moved for a new trial on several grounds, including excessive damages. The trial court denied the motion. The State appealed and Watson cross-appealed asserting the trial court erred in striking the individual defendants and the punitive damages allegаtion and prayer. Subsequently, Watson conditionally abandoned her cross-appeal if the judgment was to be affirmed.
FACTUAL HISTORY
We state the facts in the light most favorable to the judgment, giving the prevailing party the benefit of every reasonable inference and resolving conflicts in support of the judgment. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429 [45 P.2d 183].) Although the foregoing is elementary black letter law, we reiterate it at the outset of our factual recitation because the State in essence asks that we resolve the considerable evidentiary conflicts in its favor, contrary to our obligation under the law.
Watson is a female of mixed Mexican, Asian and Black ancestry. She was employed by the State as an intake clerk in January 1972. Although she worked in a clerical position, her goal was to become a vocational rehabilitation counselor. Fellow employees considered her a hard worker; her supervisors were satisfied with the quantity and quality of her wоrk; she was polite, compassionate and helpful to clients. Watson was entitled to laterally transfer from her clerical position to the entry level professional position of vocational rehabilitation assistant (VRA) upon passing an examination.
Davis became district administrator for the agency district in which Watson worked in the fall of 1975. Davis announced a promotional oral examination for the VRA position to be held in August 1977. Originally Davis told Watson the examination would be limited only to employees from the district. Subsequently, Davis announced the examination would be open to employees from other districts of the agency, and to nonpermanent employees, such as Laurel Dann (Dann), a Caucasian CETA1 employee who suffered from a disability.
Just before the examination, however, Davis announced she would choose whoever came in first in the examination, bypassing the additional interview process, a virtually unprecedented departure from the normal procedure. During the examination, Davis was observed by Watson and another Black examinee to be coaching Dann. Dann emerged first among the 12 examinees on the promotional list. Watson was rated fifth, but moved to third when two above her withdrew their applications for the position.
The affirmative action рrogram of the agency for any branch under parity for a particular minority group required that a person from that minority group be chosen if such there was in the top three ranks. For a six-month period ending in 1978, Davis‘s Inglewood branch office was under parity by two Hispanics.
Davis chose Dann for the position. Watson responded by protesting the entire examination process to Davis. She complained to her union, the Clerical and Allied Services Employees Union; she wrote to the administrative services division of the agency. She filed a discrimination complaint with the agency‘s parent, the Department of Industrial Relations. She filed her discrimination charge with the DFEP.
Several clerical and professional employees working under Davis testified that she favored Whites over non-Whites; that she said the district employed too many Blacks and was serving too many Black clients; that she did not feel that minorities had the intelligence and thе skills to be professionals, managers, or supervisors.
After protesting the failure to promote her, Watson was subjected to a campaign of retaliatory harassment by Davis and Watson‘s supervisors who were under her control, Nitta and Rainey. Rainey, too, was Black.
In June 1979, Davis announced another VRA examination for which Watson was qualified. Watson requested of Davis that she be considered for the position and formally applied for it in July 1979. Shortly thereafter, it
On January 6, 1978, Davis told Watson to withdraw her discrimination complaints from the Department of Industrial Relations and her union; Watson refused and was downgraded from intake clerk to switchboard receptionist, although her civil service rating and salary remained the same. On January 25, 1978, a public announcement was made that Watson had been transferred from Inglewood to another office in the district. Watson had not requested the transfer and fought it through her union. The transfer was cancelled.
Beginning in January 1978, Watson was ordered by her supervisor to keep time sheets of her work activities in 15 minute increments; she was prohibited from making personal calls from her office telephone and instructed to use a public telephone which required that she leave her office building. No other employee was subjected to similar requirements and restrictions. In May 1978, within days of notification to the agency thаt Watson‘s charge had been filed with the DFEP, Davis told Watson that she would discriminate against her as long as she wanted.
Davis had a partition placed behind Watson‘s desk separating her from other clerical employees and told her she would remain isolated until she resigned. Davis told other staff not to associate with Watson, advising her such isolation would cease when Watson withdrew her lawsuit. During September and October 1978, Watson requested of Davis consideration for a vocational rehabilitation counseling position in the Inglewood district; Davis responded that Watson would never receive a position in Inglewood and that she belonged on the “east side” of Los Angeles, in a branch that was primarily Hispanic, because Davis believed Watson was Hispanic. Watson stated she also was part Black; Davis called her a “nigger,” and then said she was neither Black nor White, but “a zebra.”
Watson had been attending college, first at West Los Angeles College, then at California State University, Los Angeles, taking courses in a vocational rehabilitation counselor training program. While she attended classes primarily on her own time, she was allowed time off with pay for class and travel time, and was permitted to work on a variable schedule, under an
In early 1981, Nitta, Watson‘s immediate supervisor, told her that Davis would eliminate her from the off-site college program unless Watson dropped her lawsuit before Davis was to bе deposed. Davis also told this to Watson. Shortly before Davis was to be deposed, a memo was issued by John Littlefield, of the agency‘s staff development section, limiting participation in the off-site college program only to students with 18 units or less, and stating the agency administrative manual would soon be revised to so indicate. The manual was never amended to incorporate the 18-unit limit. By then Watson had nearly completed the 120 units required for a degree. Davis terminated Watson‘s participation in the off-site college program upon receipt of the memo. Watson was unable to complete her studies leading to a degree, which degree would qualify her for the VRA position without having to pass a VRA examination controlled by Davis.
Watson suffered an emotional breakdown in September 1981 and was intermittently disabled from work because of illness through January 1982. Davis charged Watson with being absent without leave (AWOL) from January 11 through Januаry 15, 1982, notwithstanding that administrative requirements for determining AWOL status were not met. Watson was terminated on January 11, 1982, and did not return to work until August 1982. She appealed her termination and was ordered reinstated without backpay in March 1982 by the State Personnel Board. After her reinstatement, Davis telephoned Watson at home and told her she would again be fired but would not again be reinstated.
When she returned to work, at the Culver City branch office, Watson‘s supervisor there, Rainey, informed her she could not have the variable work schedule she needed in order to enroll again in the off-site college program. Non-Hispanic receptionist and clerical employees did have variable work schedules at this time. On March 13, 1985, Watson was once again isolated in the reception area; the desks of the remaining clerical employees were moved to the rear of the floor. Rainey told the other clerical employees, рursuant to instructions from Davis, that they were not to help Watson with her work.
Watson was not presented with a gift and card upon her return for which Rainey had collected donations from fellow employees. Rainey forgot to
Once each year supervisors and employees would decide upon performance objectives and the methods for achieving those objectives. This process resulted in the adoption for each employee of an individual development plan (IDP). Between 1978 and 1985, Watson proposed in her IDP the goal of becoming first a VRA and then a vocational rehabilitation counselor. Davis always rejected Watson‘s proposals. Rainey told Watson she was wasting her time and should resign. Rainey harassed Watson at Davis‘s behest.
Wаtson had symptoms of an emotional breakdown during a number of months in 1981. She complained of headaches, chest pains, loss of appetite, memory loss, loss of sexual drive; she had nightmares; she awakened screaming every night; she heard voices. Watson attempted suicide when her college program was terminated and on two other occasions shortly thereafter.
Dr. Paul Barkopolous, a psychiatrist, examined Watson in 1987 and diagnosed her as suffering from a severe psychiatric disorder which had grown progressively worse since 1981, characterized as a major depressive disorder with psychotic features. He predicted that Watson would in the future require intensive medical treatment, including medication and possibly hospitalization. He attributed her emotional and psychological problems and her somatic complaints to stresses experienced as a result of the refusal to promote her tо a counselling position. She could not remain in a stressful environment.
George Brinton, an economist testifying on Watson‘s behalf, estimated past and future loss of earnings and retirement benefits at a maximum of $383,574, which she would have earned had she become first a VRA and then a vocational rehabilitation counselor and remained at work until retirement at age 70.
I. BACKGROUND
“The California Fair Employment Practice Act (FEPA) was enacted in 1959 (former
“If an accusation is not issued within 150 days after the filing of the complaint or if the department earlier determines not to prosecute the case and the matter is not otherwise resolved, the department must give the complainant a ‘right to sue’ letter. The complainant may then bring a civil suit in superior court. (
II. EXHAUSTION OF REMEDIES
We fail to understand why the State continues to urge on appeal as it did in the trial court that Watson may not prevail because she has not exhausted her civil service administrative remedies. She need not have done so as the State well knows because Watson had a choice between her civil service remedies and those provided by The Fair Employment and Housing Act. (
III. GOVERNMENTAL IMMUNITY
The State asserts with similar lack of authority that the broad tort immunity provided the state by
IV. WORKER‘S COMPENSATION
This same analysis is applicable to the state‘s contention that worker‘s compensation provides the exclusive remedy for any injury Watson suffered on the job. The trial court agreed and dismissed the fourth cause of action for intentional infliction of emotional distress, based on the holding in Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148 [233 Cal.Rptr. 308, 729 P.2d 743]. We note that notwithstanding its action dismissing the emotional distress cause of action, the trial court nonetheless instructed the jury, in the form of BAJI instructions Nos. 12.72, 14.00, 14.13,2 and that pain and suffering and emotional distress constituted
The record shows that Watson suffered severe emotional and psychological illness manifested by both psychological and physical symptoms and the loss of considerable time from work. We conclude Watson suffered physical injury and disability arising out of emotional distress so as to remove this case from the ambit of Renteria v. County of Orange (1978) 82 Cal.App.3d 833, 838-842 [147 Cal.Rptr. 447]. However, we find unpersuasive the State‘s argument that we should depart from our holding in Jones v. Los Angeles Community Colleges Dist. (1988) 198 Cal.App.3d 794 [244 Cal.Rptr. 37], and find this case to be governed by Cole and Shoemaker v. Meyers (1987) 217 Cal.App.3d 475, review granted Aug. 26, 1987 (S001726) [237 Cal.Rptr. 686]. The Supreme Court in Cole stated that even intentional acts of misconduct by an employer causing disability are within the exclusive province of worker‘s compensation so long as the misconduct is due to actions which are a normal part of the employment relationship, such as demotions, promotions, criticisms of work practices, and frictions in grievance negotiations. (Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d at p. 160.)
Other than to say that a plaintiff need merely allege some form of proscribed discrimination to avoid the holding of Cole, the State presents no argument, cogent or otherwise, as to why this court should depart from its holding in Jones, that Cole “has no application to the instаnt case where the claims are based on causes of action created by statute, The Fair Employment and Housing Act. (
jury to reputation. [¶] The amount of such award [including economic and non-economic damages] shall include:” BAJI No. 14.13: “Measure of Damages—Personal Injury—Pain and Suffering. Reasonable compensation for any pain, discomfort, fears, anxiety and other mental and emotional distress suffered by the plaintiff and of which his injury was a [proximate] cause [and for similar suffering reasonably certain to be experienced in the future from the same cause.] [¶] No definite standard [or method of calculation] is prescribed by law by which to fix reasonable compensation for pain and suffering. Nor is the opinion of any witness required as to the amount of such reasonable compensation. [Furthermore, the argument of counsel as to the amount of damages is not evidence of reasonable compensation.] In making an award for pain and suffering you shall exercise your authority with calm and reasonable judgment and the damages you fix shall be just and reasonable in the light of the evidence. [¶] [This is non-economic damage.]”
Moreover, when we examine Cole, we note, as Jones emphasizes, that issues of legislative policy and intent in this area were not addressed. Among cases which the Supreme Court noted permitted tort recovery were those involving conduct in which the employer stepped out of its proper role. (43 Cal.3d at p. 161.)
Unlike Cole and Shoemaker, the allegations and evidence in this case do not involve conduct which can be expected normally to occur in the workplace and which is part of the employment risk. Prohibited racial and age discrimination are against the law and policy of this state. Such discrimination is not a normal incident of employment, no less for an employee of the state than for one employed in the private sector.
We therefore conclude that Watson is not limited to worker‘s compensation for her injuries, but may seek and recover such damages (
V. THE COVENANT OF GOOD FAITH AND FAIR DEALING
We next consider the state‘s contention that no cause of action is stated for breach of the covenant of good faith and fair dealing. We agree. Employment in state civil service is governed by statute, not by contract. (Boren v. State Personnel Board (1951) 37 Cal.2d 634 [234 P.2d 981]; Miller v. State (1977) 18 Cal.3d 808; Valenzuela v. State of California (1987) 194 Cal.App.3d 916 [240 Cal.Rptr. 45].) While “the State civil service system requires good faith and fair dealing in the resolution of the inevitable conflicts inherent in the employment relationship” (Valenzuela, supra, at p. 920), it is that system which provides remedies for resolution of grievances and redress of wrongs. (Id., at p. 920.) “An aggrieved civil service employee must use all agency administrative procedures, including available appellate review, before otherwise resorting to the courts. [Citations.]” (Id., at p. 920.) The obligation of the State to deal fairly and in good
Watson chose not to avail herself of the remedies available through the state civil service system; she chose instead to proceed first through the DFEP and DFEH, and then through the courts. While she may so proceed with respect to her statutory claims and causes of action, she may not avail herself of a remedy which provides damages for breach of the covenant of good faith and fair dealing. The trial court erred in failing to dismiss this cause of action. Because of our resolution of this issue, we need not discuss the state‘s contention that Watson‘s claim filed with the Board of Control was untimely.
VI. FAIRNESS OF THE TRIAL
We also reject the claim that the trial was unfair because the State was not permitted to have Davis present throughout the trial as “an officer or employee designated by its attorney” pursuant to
The State claims that it suffered prejudice because Watson and her witnesses testified about examples of harassing conduct beyond those contained in her charge to the DFEH. The contention is without merit. The charge provides the basis for the DFEH to investigate the aggrieved employee‘s claims of discrimination. It is not intended as a limiting device. (Baker v. Children‘s Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1064-1065 [257 Cal.Rptr. 768]; Jones v. Los Angeles Community College Dist., supra, 198 Cal.App.3d at p. 810; Marshall v. Fair Employment Practice Com. (1971) 21 Cal.App.3d 680, 684 [98 Cal.Rptr. 698].) Once Watson filed her lawsuit, nothing prevented the State from requiring Watson, through discovery, to identify and describe each act of harassment. Moreover, it is too late to raise on appeal an issue not raised at trial. Any claim of error is waived. (Royster v. Montaneza (1982) 134 Cal.App.3d 362, 367 [184 Cal.Rptr. 560].)
We turn to the evidence in this case to determine whether it supports the judgment. We shall treat in this part of our оpinion issues ancillary to sufficiency of the evidence.
It is fundamental that the trial court‘s factual findings will be reversed on appeal only when they are not supported by substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614 [122 Cal.Rptr. 79, 536 P.2d 479]; Stevens v. Parke, Davis & Co. (1975) 9 Cal.3d 51, 64 [107 Cal.Rptr. 45, 507 P.2d 653, 94 A.L.R.3d 1059].) In applying the substantial evidence test, the court views the evidence in the light most favorable to respondent (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920 [101 Cal.Rptr. 568, 496 P.2d 480]), accepting as true respondent‘s evidence, resolving all conflicts in respondent‘s favor, and drawing such favorable inferences as may be drawn from the evidence. (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 544 [138 Cal.Rptr. 705, 564 P.2d 857, 99 A.L.R.3d 158].)
A. Standard of Proof
At the threshold of its argument that the verdict was not supported by substantial evidence, the State argues that plaintiff failed to meet the appropriate standard of proof, as established by the Supreme Court for title VII cases.3 (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 800 [36 L.Ed.2d 668, 676-677, 93 S.Ct. 1817].)4 The State then proceeds to recite only evidence favorable to the defendant, without so much as a nod in the direction of the substantial evidence test. In fact the McDonnell Douglas test was applied in the trial court5 and Watson presented sufficient evidence to show she meets its requirements.
B. Statute of Limitations
In connection with Watson‘s allegations of harassment, the State asserts that those acts occurring more than one year prior to filing of plaintiff‘s second charge with DFEH, in December 1985, are barred by the one year statute of limitations provided by
This doctrine has been “developed in cases examining the timeliness of complaints filed with the Equal Employment Opportunity Commission to establish a violation of Title VII of the Federal Civil Rights Act of 1964. (see
C. Invalidity of the Charge
The State also argues the charge is “invalid,” but a review of its argument demonstrates it is the sufficiency of the evidence to support the charge about which the State complains.
D. Substantial Evidence
Having disposed of the State‘s preliminary contentions, we turn finally to its primary claim that the judgment is not supported by substantial evidence in the record.
The evidence is in sharp conflict, with witnesses testifying for the opposing sides presenting diametrically opposing versions of the events and circumstances in the case and the motivation of the actors. It is for the trier of fact to choose which version to believe; the jury chose to credit plaintiff and her witnesses and to disbelieve those witnesses testifying in behalf of the State. That is the jury‘s function. This court may not substitute its judgment about the credibility of witnesses. (Crawford v. Southern Pacific Co., supra, 3 Cal.2d at p. 429.) We may only examine the evidence to determine if it meets the test of substantiality—that is, that it is reasonably credible, of solid value and of ponderable legal significance. (Estate of Teed (1952) 112 Cal.App.2d 638, 644 [247 P.2d 54].)
We conclude that Watson presented substantial evidence supporting her allegations of discrimination both in the August 1977 promotional examination for VRA and the subsequent harassment and discrimination carried out in retaliation for Watson‘s protest of the original refusal to promote her.
The jury returned a general verdict. “Where there are several counts or causes of action, a general verdict will stand if the evidence supports it on any one sufficient count.” (7 Witkin, Cal. Procedure (3d ed. 1985) Trial, § 331, p. 332; Gillespie v. Rawlings (1957) 49 Cal.2d 359, 369
Watson and witnesses testifying on hеr behalf presented evidence that she was a member of a protected class, in that she was of Black, Mexican and Asian ancestry. She qualified for the promotion. She had completed over 80 units of college work in a vocational rehabilitation program with a B average. She was a permanent employee with the agency. She had performed hundreds of hours of volunteer work with disabled people.
In the examination, she placed number 5, and was later elevated to number 3 when two of those above her on the list waived the promotional opportunity. Thus she was within the first three ranks required for the successful applicant. Davis, the district administrator who decided who would be promoted, discriminated against Watson by violating established procedures for appointing vocational rehabilitation assistants both during and after the examination. Davis was observed during the examination to be coaching a Caucasian woman applicant, Dann. None of the other applicants, including Watson, was coached either before or during the examination. Dann had the highest score and was granted the promotion; however, required further interviews of those in the first three ranks were not conducted. Moreover, affirmative action program requirements were ignored.
On many occasions Watson requested that Davis permit her to transfer to another district to become a VRA. Davis refused, telling Watson that minorities rarely make good professionals. Davis told Watson she would never receive a promotion to VRA at the Inglewood branch. Believing Watson was Hispanic, Davis told her she belonged on the east side. When Davis was told Watson was part Black, she called her a “nigger.”
Watson protested the refusal to promote her to Davis directly, to her union, and to various levels of administration in the agency; she filed a сharge with the DFEP, received a “right to sue” letter from the agency and thereafter filed her lawsuit.
For eight years after Watson first protested the refusal to promote her, Davis directly and through others harassed and discriminated against her. She continually rejected Watson‘s requests for lateral transfer to the VRA position in the same or other districts; isolated Watson physically from her fellow employees; instructed her immediate clerical supervisor, Rainey, to treat Watson badly, which treatment included yelling at her, telling Watson her days were numbered and lying about the quality of her work, and personally demeaned and belittled her.
The State asserts evidence in support of Watson‘s case lacked substantiality, claiming that her testimony was inherently improbable both objectively and because of the very psychiatric and emotional symptoms and disabilities caused by her mistreatment. Unfortunately for the State, Watson‘s testimony was corroborated by a number of witnesses in both the professional and clerical ranks. Such testimony supported Watson‘s claims as to her capability and qualifications for the promotion as well as Davis‘s animus toward her and members of minority racial and ethnic groups.
Moreover, in order for evidence to be deemed “inherently improbable” so as to be disregarded, it must be physically impossible or obviously false without resorting to inference or deduction. Such is not the case. (Estate of Reed (1955) 132 Cal.App.2d 732 [282 P.2d 935].) The State is merely arguing the jury should not have believed Watson and her witnesses; rather it should have believed the State‘s witnesses. That is not an argument which may be made on appeal; the State‘s contention must be rejected.
VIII. DAMAGES AWARD
We conclude by considering the State‘s contention that damages are too high.
“A reviewing court must uphold an award of damages whenever possible [citations] and all presumptions are in favor of the judgment [citations].” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 61 [118 Cal.Rptr. 184, 529 P.2d 608, 65 A.L.R.3d 878].) With respect to a claim that compensatory damages are excessive, “[w]e have recognized that while the jury is entrusted with vast discretion in determining the amount of damages to be awarded, ‘. . . where the recovery is so grossly disproportionate as to raise a presumption that it is a result of passion or prejudice, the duty is then imposed upon the reviewing court to act.‘” [Citations.]” (Id., at p. 64.)
Scrutinizing the facts of this case in light of the foregoing principles, we conclude that the damages awarded are not excessive in view of the substantial and severe harm Watson suffered. The economist testifying for Watson estimated her past and future lost earnings together with interest until the projected date of her retirement had a value as high as $383,000. It is therefore evident that the damages award contemplates in addition compensation for the severe emotional distress suffered by plaintiff for so many years coupled with her disability from work generally and from working in an area which she found so emotionally rewarding. That the award in the instant case may be larger than in similar cases does not provide as a matter of law a basis for overturning it. (Daggett v. Atchison, T. & S. F. Ry. Co. (1957) 48 Cal.2d 655, 666 [313 P.2d 557, 64 A.L.R.2d 1283].) We cannot conclude that the value placed by the jury on both economic loss and general damages is so disproportionate to the harm suffered as to raise a presumption of passion or prejudice affecting the result.
CROSS-APPEAL
Watson‘s cross-appeal is dismissed at her request pursuant to California Rules of Court, rule 19(b).
We affirm the judgment of the trial court on the statutory causes of action and reverse on the cause of action for breach of the covenant of good faith and fair dealing.
The case is remanded to the trial court for determination of attorney‘s fees on appeal.
Costs to respondent.
Johnson, J., concurred.
LILLIE, P. J., Concurring and Dissenting.—I concur in the majority opinion except for part VIII in which the award of damages is upheld. From this I respectfully dissent.
While a reviewing court must uphold an award of damages whenever possible (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 61 [118
Plaintiff‘s past and future lost earnings, plus prejudgment interest on past earnings, amounted to a maximum of $383,574. Reasonable charges for medical services rendered to plaintiff were estimated to be $14,410. Plaintiff‘s economic damages thus totaled $398,000 in round figures. Deducting that sum from the award of $1.5 million leaves us with $1,102,000 attributable to noneconomic items of damage. As to those items the evidence showed: Because of the stress in plaintiff‘s work environment she contracted a severe psychotic disorder which had grown progressively worse since 1981 so that at the time of trial (1987) she suffered from “a major depressive disorder with psychotic features.” Her chief physical complaint was headaches; she also complained of nausea, loss of sleep, loss of appetite, difficulty in swallowing, choking feelings, chest pains, heart flutter, gastrointestinal problems and dizziness. While plaintiff‘s medical expert testified that such physical symptoms are “consistent with the kind of vague complaints that people have who are under some kind of stress,” they are relatively trivial complaints some of which are commonly experienced by many people. Further, there was no expert testimony that plaintiff‘s physical complaints or her psychotic disorder are permanent. It is true that plaintiff also was subjected to harassment and discrimination by defendant for a period of eight years. Nevertheless, it is my view on this record that compensation of $1,102,000 for pain, discomfort, fear, anxiety and other mental and emotional distress is excessive as a matter of law. The size of the verdict attributable to noneconomic factors strongly suggests that the jury improperly determined to рunish defendant for its treatment of plaintiff.
I would reverse that portion of the judgment ordering that plaintiff recover the sum of $1.5 million from defendant, with directions that the trial court retry the issue of damages.
The petition of appellant Department of Rehabilitation for review by the Supreme Court was denied November 2, 1989.