Moran v. Qwest Communications Internat.,
Inc.
Filed 8/27/12
Moran v. Qwest Communications Internat., Inc. CA1/2
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying
on opinions not certified for publication or ordered published, except as
specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
TWO
AMY MORAN,
Plaintiff and Appellant,
v.
QWEST
COMMUNICATIONS INTERNATIONAL, INC. et al.
Defendants and Appellants.
A128840
(San Francisco County
Super. Ct. No. CGC-08-480654)
Qwest
Communications International, Inc., Qwest Corporation,
and Dennis Sherwood, defendants below, appeal the judgment entered upon a jury
verdict in favor of Amy Moran, plaintiff below.
The jury found all defendants liable for the sexual harassment of Moran
and Qwest liable for failure to take reasonable steps to prevent the
Moran’s employment in violation of public policy. The jury awarded Moran $492,710 for economic
damages, a total of $2.8 million for noneconomic damages, and $1 million in
supported by substantial evidence; (2) the trial court prejudicially abused its
discretion when it admitted evidence that Sherwood harassed other individuals
at Qwest and had been investigated for sexual harassment at a previous job; (3)
the award for noneconomic damages is excessive; and (4) Qwest cannot be liable
for punitive damages because the jury’s finding that Sherwood was a managing
agent of Qwest was not supported by substantial
evidence.
Moran
cross-appeals from the order of the trial court granting summary adjudication
to defendants on her first and fifth causes of action, for gender-based
discrimination and for failure to pay wages on termination, contending that
triable issues of fact exist.
With
the exception of the awards for noneconomic damages, we affirm the judgment
entered by the trial court. The awards
of noneconomic damages are reversed and we remand the cause for a new trial,
solely on the issue of noneconomic damages, unless Moran accepts a remission of
noneconomic damages in the amount of $750,000.
We also affirm the court’s order granting summary adjudication to
defendants on Moran’s first and fifth causes of action.
Because
our review of the jury’s findings of fact will be for substantial evidence, we
state the facts with a view of the evidence in the light most favorable to
Moran, resolving any conflicts in a manner to support the findings and
indulging all reasonable inferences to sustain the findings and the
judgment. (Jeffrey Kavin, Inc. v. Frye (2012) 204 Cal.App.4th 35, 43.)
Joins Qwest and Sherwood Replaces Her Initial Supervisor
Moran
joined Qwest in early 2006 when she was hired by Tom Rabone, her supervisor at
a previous job with Lucent Technologies.
Her position was that of “customer premises equipment†(CPE)
overlay. CPE refers to equipment that
physically resides on a customer’s premises, connecting with Qwest’s
communications networks. Moran had the
responsibility of building relationships with hardware vendors, establishing
discount agreements, arranging for product demonstrations, and training Qwest’s
sales representatives.
name="_ftnref2" title="">[2] Moran was often involved in customer sales
calls with sales representatives, sometimes taking the lead with customers and
sometimes working behind the scenes.
The
CPE overlay position was compensated in base salary plus commission. When Moran joined, Rabone’s region had made
only $300,000 in hardware sales and Moran was given a $2 million sales quota
for 2006.
Moran
reported directly to Rabone, as did the managers of sales teams in San
Francisco, Walnut Creek, San Jose, and Sacramento (Rancho Cordova). The region managed by Rabone had about 30
sales representatives working under the sales managers.
When
Rabone held management meetings, Moran was very involved and she felt that
Rabone valued her expertise. Rabone was
a demanding executive, but his criticisms were “always relating to business,
not anything personal.â€
By
May of 2006, Moran was already over her quota for the year. That month, Rabone left and was replaced by
Dennis Sherwood. Sherwood had received
sexual harassment training at previous employers and recognized such harassment
as a serious issue. In a position he
held at SBC before coming to Qwest, Sherwood had suggested an intimate
relationship with a subordinate employee, both while she was a candidate for
hire and after she was hired. This
employee eventually made a complaint against Sherwood and SBC concluded that
the complaint was well founded. Sherwood
was placed on “final warning†and was classified as “ineligible for rehireâ€
when he left SBC.
Sherwood’s
management style was described as harsh to both men and women. Rabone’s sales managers all eventually left
Qwest, leaving Moran the sole holdover from Rabone’s management team.
Treatment of and Comments about Third Parties at Qwest
Cassie
Huynh was one of the top SAEs in the San Jose office. Huynh’s boyfriend worked for LinkedIn and
Huynh had developed leads and connections at that company. After a sale to LinkedIn, which Moran attributed
to her own and Huynh’s work, Sherwood remarked, “Oh, you know, she’s making
sales quotas for her boyfriend.†Moran
did not hear Sherwood make such personal comments concerning male employees.
Stacey
Lyn was the highest performing SAE at Qwest nationally. Lyn described Sherwood as being “more
reverent to the male employees, more interested in what they had to say,†but
condescending or disinterested in her.
She stated that Sherwood, when talking with her, would get very close,
leer at her, and stare at her chest.
Before
Rabone left Qwest, he and Lyn had discussed Lyn’s large sales quota and Rabone
said he intended to lower it before the end of the year. After Sherwood replaced Rabone, Lyn discussed
the issue of her quota with him.
Sherwood told Lyn that he would try to help with the quota, but the way
he said it made Lyn feel uncomfortable:
“It was as if he would try to take care of it, like condescending, and
as if there was some sort of string attached to him taking care of it.†While discussing this with Lyn, Sherwood was
“very close in [her] space†and looking down on her. Lyn concluded that “he want[ed] something in
return for this and it might not be something [she] want[ed] to give him.â€
In
the summer of 2006, the air conditioning in the Walnut Creek office, where Lyn
worked, was broken and the office became very warm. Employees were allowed to dress casually when
they had no meetings scheduled and because of the heat, Lyn was wearing tank
tops to the office. One day, Lyn and a
coworker passed by a glass-walled conference room and were observed by the
sales managers, who were holding a meeting.
Randy Trevino, one of Sherwood’s sales managers, recalled that at a
restaurant lunch that day, Sherwood “brought up that Stacey was sitting
[nearby] wearing a tank top and that he didn’t think she should be dressed like
that†because she was “large breasted.â€
Roger Pruett, she was told that she would not receive a previously promised
promotion to MAE, that she needed more seasoning, that she dressed too
casually, and that her shirts were always too tight. Pruett said that he and Sherwood were in
accord on these issues. Sherwood
subsequently mandated a dress code in his region requiring business casual
attire.
Lyn
contacted Qwest Human Resources (HR) in Denver to complain about Sherwood and
spoke with Sandy Hudnall.
name="_ftnref4" title="">[4] Lyn felt that Hudnall was dismissive of her
complaints. She heard nothing further
from HR but the next day received a voice message from Sherwood that said he
was aware of the complaint and that he would be handling the matter. Lyn felt threatened that her complaint had
been turned over to the person about whom she had complained and felt that her
job was in jeopardy. Lyn resigned from
Qwest because HR was not adequately addressing her complaint and she later
filed an EEOC complaint but did not pursue a lawsuit. Moran was present in Sherwood’s office when
Sherwood received a call from Lyn’s lawyer, after which Sherwood told Moran,
“That was Stacey Lyn’s lawyer. What a
joke.â€
Janine
Lappin was another sales representative at Qwest and Trevino, her supervisor,
said that Sherwood told him that Lappin’s husband made a lot of money, that
Sherwood didn’t know why Lappin was working and that Lappin was a “high
roller.†Moran reported Sherwood saying
of Lappin: “Oh, you
know, . . . Janine’s husband is very wealthy. He’s so rich she doesn’t need to work. And, you know, she’s lazy. She’s not doing anything.†This made Moran uncomfortable because Lappin
had been working on a large sales opportunity with Netflix.
One
day Sherwood met with Trevino in the latter’s San Jose office and said that he
had “the scoop†on Lappin—that she was “an aggressive, assertive woman†who
“wanted to do whatever she wanted to do and thought she could do anything she
wanted.†Sherwood also told Trevino that
Lappin wasn’t working and wasn’t competent to be in the job. At the time these remarks were made, Lappin
was working on the Netflix sale, which, once closed, would put her very close
to her quota.
Sherwood
asked Trevino to place Lappin on an “action plan.†Trevino did not think this was necessary, but
he acquiesced to Sherwood’s request.
Finally, in early September, Trevino had to tell Lappin that she would
soon be placed on a performance improvement plan. This prompted Lappin to contact Qwest HR,
because she felt that Sherwood was trying to “run her out of the business,†and
she spoke with Hudnall. She told Hudnall
that she felt Sherwood had a problem with women and had created a hostile
environment for her. In an email
afterwards, Hudnall informed Lappin that her complaint had been forwarded to
Qwest’s Equal Employment Opportunity group and that Lappin would hear from
them, but Lappin never did. Hudnall’s
email also said that she would contact Sherwood about providing proper notice
for meetings, an issue about which Lappin had also complained. Hudnall called Trevino, who told her that he
did not agree with Sherwood’s approach to managing Lappin, whom he felt would
successfully meet her quota that year.
A
few days later an account review meeting was held in Walnut Creek. The meeting was held in a conference room
that had a large window facing a hallway.
When it came time for review of Lappin’s accounts, Sherwood asked
everyone else to leave the room so he could converse privately with
Lappin. Lappin was taken aback when
Sherwood leaned forward and said, “I need to know what you’re doing.†Lappin said she was there to give her review
and Sherwood said, “Fine, just fine. Get
your boss.†Moran observed this from
outside, without hearing, and described Sherwood as “definitely furious†and
Lappin as “scared and upset.†Trevino
also observed the encounter and said Sherwood was talking with Lappin “pretty
fervently.†Moran was aware that Lappin
had filed a complaint against Sherwood with Qwest HR.
At
the end of the day, Sherwood told Trevino to put Lappin on a performance
improvement plan immediately and to make it “airtight†because she had gone to
HR and “made a lot of comments†about him.
Trevino was to tell Lappin that she would not “beat†the plan with the
Netflix sale, which was due to close soon.
Trevino was also put on a performance improvement plan that day. Trevino complained to Hudnall that Sherwood
was trying to fire him for attempting to protect Lappin.
As
part of her performance plan, Lappin was required to report into the office at
8:30 in the morning every day, whether or not she had a customer meeting that
would require her to leave the office immediately and retrace the route she had
just driven to work. Lappin could not
see the business sense in the requirement, which was not imposed on other sales
representatives. She was given no grace
time to make arrangements for her daughter, whose daycare would not allow her
to be dropped off so early as to ensure that Lappin could be in the office at
8:30 am. When Trevino told Lappin that
Sherwood had said to make the performance plan “airtight,†Lappin decided to
resign. Even though Lappin believed that
she should have been credited with the Netflix sale, it was credited to a male
sales representative who had not been involved in the negotiations. After several iterations of his own
performance improvement plan, Trevino was fired in December 2006.
Treatment of Moran
Moran’s
role in management meetings changed after Sherwood replaced Rabone: “I was put
more into the background and not a forefront on the agenda. Maybe I got a couple of minutes in, but it was
definitely different.†Moran felt
disrespected and humiliated at these meetings because Sherwood regularly
criticized her for being too emotional or for giving him a “diatribe†instead
of answers. In an early meeting,
Sherwood imitated Moran’s habit of breathing through her mouth. Moran observed that Sherwood was generally
harsh with everyone in his organization, but that with women his harshness was
“more personal and hostile versus just being hard on you about your activity or
your sales, which was the case with the men.â€
At
business meetings, in the presence of others, Sherwood would comment on Moran’s
dating status. In one such meeting,
Moran felt insulted when Sherwood told her “You’re never going to get married. You’re good at being single.†Trevino thought that Sherwood was dismissive
of Moran and did not respect her, once calling her a “silly girl.†At a business gathering, Trevino asked Moran
what she was doing that evening, and Sherwood interjected with: “Oh, are you
going out looking for sex tonight?†or “Oh, Amy, are you going out to look for
some?â€
In
one-on-one meetings, Sherwood would tell Moran that she “wasn’t bringing
anything to the table†and that she was riding the coattails of the sales
representatives. He told her that her
parents didn’t raise her properly.
Sherwood would often “get very heated†and raise his voice. Moran had never before been “badgered to
tears,†but became “teary-eyed†after her meetings with Sherwood.
Sherwood
did not consistently behave in ways that Moran found offensive or that upset
her. At times he would be encouraging
and compliment her on a job well done.
Sherwood gave Moran a good performance review in 2006. Some email between Moran and Sherwood
demonstrated mutual appreciation. But
Moran thought that Sherwood was “literally Jekyll and Hyde, because a couple of
weeks [after receiving a compliment] he’s like, you didn’t do anything on
that. Like, you aren’t responsible for
that sale, that was all the rep.â€
During
2006, Moran was always over her quota, and at the end of the year CPE sales had
amounted to about $8 million, despite her initial quota of $2 million. At the end of the year, Moran was awarded for
exceeding her sales targets and she expected to be even more successful in
2007. However, she was not enjoying the
job, which she described as “stressful and starting to take a toll†because of
Sherwood’s behavior. She did not
consider complaining to Qwest’s HR department because she had seen what
happened to Lyn and Lappin after they had done so. Instead, Moran simply “hoped it would get
better.â€
For
2007, Sherwood increased Moran’s quota to $8 million. During the year, Moran stayed on track toward
meeting that quota and Sherwood admitted that Moran’s performance during 2007
was satisfactory. In spite of this,
Moran characterized one-on-one meetings with Sherwood as worse in 2007 than in
2006. Sherwood told her that none of the
managers or sales representatives liked her and that she was on thin ice. He compared Moran to “his insecure
15-year-old daughter.†Moran thought
these meetings were “pretty hostile.â€
During a telephone call with his own supervisor, at which Moran was
present, Sherwood said that Moran was doing an “okay job†but that they needed
to find someone “really qualified to do the position.â€
Sherwood
continued to make personal comments during 2007 in other business settings as
well. Once, Moran was discussing her
style of working with sales representatives and observed that she didn’t like
to push herself on them. Sherwood
interjected that the conversation was not about her personal life and how she
pushed herself on men. At a business
dinner Sherwood made Moran “very uncomfortable†by describing how “hot†his
daughter looked in a bikini, “going on and on about her breasts.â€
In
mid-2007, Sherwood hired a second CPE overlay, a male, Shawn Larsen, for his
region. Moran had no objection to
Larsen’s hire, but felt that the way it was positioned, that she “couldn’t get
the job done so we had to bring a man in to do the job†was “unfair and
insulting.†At the time, Moran was ahead
of her sales quota, but the sales team managed by Pruett was struggling and was
harder to work with. When Sherwood split
the sales teams between Moran and Larsen, Pruett’s team was assigned to Moran
because, Sherwood explained, other teams had more senior sales representatives
and Moran was not qualified to work with them.
Despite this assignment, Moran continued to meet her quota, but Larsen
did not.
In
2007, Moran had a worsening knee problem that required physical therapy
starting in the summer. Moran discussed
her need for physical therapy with Sherwood.
Her doctor had told her to reduce her driving and Sherwood was aware,
from more than one conversation, that driving caused Moran pain.
Moran
put her physical therapy appointments in her online calendar, to which Sherwood
had access. However, Sherwood and Pruett
frequently claimed ignorance of Moran’s appointments and questioned her
non-attendance at conflicting meetings.
Moran reminded them that her appointments were posted, but this did not
change their conduct, even though Moran frequently moved her physical therapy
appointments to accommodate meetings.
In
the fall of 2007, Sherwood imposed a requirement on Moran to make five customer
visits a week. Moran saw the business
logic for the requirement, which she “was pretty much doing†already. Sherwood also imposed a requirement that she
be in a different Northern California Qwest office (Rancho Cordova, Walnut
Creek, San Jose, and San Francisco) each day.
Moran saw no business logic to this requirement because driving up to
five hours each day interfered with performing her role. Moran, consulting with her doctor, bought a
new car in order to meet the increased driving requirement.
Around
this time, Qwest had arranged a weekend excursion on the Wine Train for those
meeting their quota. Moran was not able
to attend because she was ill that weekend and her aunt was in critical
condition in the hospital. Moran called
Sherwood to inform him she would not be attending and Sherwood responded with
an email that said, “Amy, if you are really sick, I hope you feel better. And if your aunt is in fact dying, I hope she
gets better. And, you know, I want you
to know the ticket cost $200 and so this is really, you know, really kind of
unfair, rude of you, you know, to cancel out at the last minute.â€
In
November 2007, Moran went to the emergency room with “stomach problems,†which
she attributed to stress. Moran took a day
off work and when she returned, Sherwood said, during a management conference
call, “Oh, Amy, you are back from the land of the living dead.â€
In
December, Sherwood was planning a regional Christmas party with the
managers. Sherwood asked who would be
bringing a guest and Moran said that she would come alone. Sherwood’s response was: “What do you mean? You know, you said you had a boyfriend and I
want proof. And you go back and find out
when your boyfriend can come to this party, and I’m going to schedule the party
to be on this date. You know, I want
proof that you have a boyfriend.†Moran
felt insulted.
By
this time, Moran was receiving up to 10 phone calls or emails a day from
Sherwood asking, “Where are you? What
are you working on? What are you
doing? Where are you today?†Moran found this “extremely distractive†and
felt that she was “constantly defending [herself] in what [she] was doing, and
where [she] was going, and what office [she] was in, that it became very
impossible for [her] to focus and to do [her] job.â€
One
day in December, Moran had a physical therapy session at 3:30 p.m. and also had
to submit some paperwork to Cisco by 5:00 p.m.
Because driving back to the office would have meant missing the Cisco
deadline, Moran went to a Starbuck’s after her therapy to finish the work on
her laptop. Sherwood called while Moran
was there, asking “Where are you?†Moran
explained and Sherwood berated her and asked, “Why are you not driving back to
the office?â€
Sherwood
called Moran again at home that evening.
Sherwood was furious, telling her she could not work from home and had
to be in the office each day. Moran
again explained that she had not been working from home, but had been at a
Starbucks. Sherwood wanted proof that she
had submitted the paperwork to Cisco and Moran provided it.
The
next day, Sherwood again berated Moran, asking why she did not go back to the
office, telling her that she was “on thin ice with this company†and that none
of the managers or sales representatives liked her. Moran asked why he was making an issue of
doing what was necessary to accomplish her work and Sherwood replied, “You
know, Amy, I’m turning up the heat on you, and I’m making it very uncomfortable
for you and I know it.â€
Despite
being afraid of retaliation and losing her job, Moran contacted Qwest HR and
spoke with Beverly Emmanuel on the phone.
Emmanuel gave her a “compliance number†to call in order to talk with an
organization external to Qwest about her complaint. On December 13, 2007, Moran went to the Qwest
garage and called the compliance number while sitting in her parked car so no
one would overhear. Moran was asked for
“a couple of examples†of incidents.
Moran provided some examples and explained that what she was experiencing
was interfering with her health and ability to work. The person with whom she spoke seemed to be
making notes but Moran never saw them.
Moran was given a confirmation number.
All calls are given an A, B, or C priority and Moran’s call was marked a
C (lowest) priority.
After
having no contact concerning her complaint for a week or more, Moran called
Qwest HR again and gave her confirmation number. Emmanuel told Moran that Ali Barry was her HR
representative and that Barry would call her regarding the complaint. Barry, however, did not call back and Moran
left her a voice message. Barry returned
Moran’s call a day or two later and told her, “Well, I don’t really see where
the problem is here. It’s just a couple
of rude comments.†Moran said it was
more than that and gave further examples, telling her that the problem had been
going on for a year and a half. She also
explained that Sherwood’s driving requirements caused her pain and were
“counterintuitive and counterproductive.â€
Barry
asked if Sherwood had said he was harassing Moran because she was a woman. Moran said no, not directly, but that
Sherwood would compare her to his 15-year-old daughter. Moran told Barry, “I know that I have rights
here, and I know that I deserve not to be bullied or harassed at work.†Moran reminded Barry that Qwest had a code of
conduct prohibiting harassment or bullying based on gender and said that
Sherwood was “clearly violating that.â€
Barry
told Moran that Moran could talk to Sherwood, they could talk to him together,
or Barry could talk to Sherwood alone.
Moran asked for time to consider these options. When Moran called Barry back the next day,
she told Barry that the relationship with Sherwood was broken and that she was
counting on Barry to fix things. Barry
said she would call Sherwood and “give him some coaching about his
comments.†Moran again reminded Barry
that her complaint was about more than comments and that she didn’t think
Barry’s approach would resolve the problem.
Barry
called Sherwood and told him that Moran had “two complaintsâ€: (1) the comparison of Moran to Sherwood’s
daughter and (2) the email saying, “If you are really sick, I hope you feel
better.†Sherwood told Barry he had
customer feedback that Moran was “late, unprepared, and forgetful.†He claimed that Moran would not tell him when
she had physical therapy sessions scheduled and that she was not “doing what
she needed to do.†Sherwood convinced
Barry that he was “really open to feedback†and Barry saw no need to conduct a
fact-finding investigation.
Barry
then called Moran and told her that she had asked Sherwood to “remove any
inappropriate comments from your conversations.†Again, Moran told Barry that the issue was
more than inappropriate comments and that she did not feel she was in a safe
work environment. Barry said that
Sherwood would want to talk with Moran about the situation, and this made Moran
“very scared.â€
After
talking with Barry, Moran received a voice message from Sherwood telling her to
meet him the next day “at 8:30 a.m. sharp.â€
Sherwood’s tone “was very harsh and he was clearly very upset.†Sherwood followed up with an email relaying
the same message. Fearing retaliation,
Moran called her doctor and went on medical leave.
No
one from Qwest ever called Moran to follow up her complaint. Sherwood left Moran voice messages twice
while she was on medical leave. The
first message simply stated that Sherwood knew she was on leave and would
return at a certain point, but Moran thought he sounded annoyed. After Moran extended her medical leave,
Sherwood called again and asked her to let him know if she planned on resigning
so that he could fill the position. At
the end of her medical leave, Moran reluctantly decided to resign, even though
professionally she loved the job.
Background
Moran
filed suit against defendants in 2008, alleging the following causes of
action: (1) gender-based discrimination;
(2) sexual harassment; (3) failure to take reasonable steps to prevent discrimination;
(4) termination in violation of public policy; and (5) failure to make
immediate payment of wages upon discharge, plus waiting time penalties. All five causes of action were alleged
against Qwest. The sole cause of action
alleged against Sherwood was the second, for sexual harassment.
The
claim of gender-based discrimination was based on the allegation that Sherwood
had doubled Moran’s 2006 sales quota from $2 million to $4 million and that
this action operated to deprive Moran of $100,000 in income for 2006. The claim of failure to pay wages on
discharge was based on the failure to pay Moran the income that she lost due to
the change in her sales quota.
Defendants
filed a motion for summary judgment or, in the alternative, summary adjudication
on all five causes of action. The trial
court denied the motion for summary judgment, but granted summary adjudication
as to the first (discrimination) and fifth (failure to pay wages) causes of
action. The court determined that
defendants had offered a nondiscriminatory reason for increasing Moran’s quota
and that Moran had failed to provide evidence that this reason was a mere
pretext. The court also found that Moran
was paid all the compensation to which she was entitled under her compensation
agreement. Defendants’ motion for
summary adjudication was denied on the three remaining causes of action.
The
case then went to trial before a jury.
Using a special verdict form, the jury found: (1) Sherwood subjected Moran to unwanted
harassing conduct; (2) Sherwood’s harassing conduct was based on gender; (3)
the gender-based harassing conduct was severe or pervasive; (4) a reasonable
woman in Moran’s circumstances would have considered the work environment
created by Sherwood to be hostile or abusive; (5) Moran considered the work
environment created by Sherwood to be hostile or abusive; (6) the gender-based
harassing conduct by Sherwood was a substantial factor in causing harm to
Moran; (7) Qwest failed to take reasonable steps to prevent Moran from being
subjected to sexual harassment; (8) Qwest’s failure to take such reasonable
steps caused additional harm to Moran; (9) the sexual harassment to which Moran
was subjected was so intolerable that a reasonable person in Moran’s position
would have had no reasonable alternative except to resign; (10) Moran resigned
her position with Qwest because of sexual harassment; (11) the sexual
harassment which caused Moran to resign was a substantial factor in causing
harm to Moran; (12) Qwest had a procedure in place to address complaints of
sexual harassment; (13) Moran did not unreasonably fail to use Qwest’s
harassment complaint procedures; (14) Sherwood engaged in gender-based
harassment with malice, oppression, or
fraud; (15) Sherwood was an officer, director or managing agent of Qwest
acting on behalf of Qwest; (16) no persons other than Sherwood who were
officers, directors or managing agents of Qwest, acting on behalf of Qwest,
engaged in sexual harassment of Moran with malice, oppression, or fraud; (17)
no persons other than Sherwood who were officers, directors or managing agents
of Qwest, acting on behalf of Qwest, acted with malice, oppression, or fraud in
failing to take reasonable steps to prevent sexual harassment of Moran; and
(19) no officer, director or managing agent of Qwest, acting on behalf of
Qwest, knew of Sherwood’s conduct and adopted or approved it after it
occurred.
As
compensatory damages, the jury awarded: (1) $492,710 for past lost earnings against
Qwest for gender based harassment; (2) $750,000 for past noneconomic loss,
including physical pain and mental suffering, against Sherwood for gender-based
harassment; (3) $50,000 for past noneconomic loss, including physical pain and
mental suffering, for constructive discharge; and (4) $2 million for past
noneconomic loss, including physical pain and mental suffering, against Qwest
for failure to prevent sexual harassment.
The
issue of punitive damages had been bifurcated and was presented to the jury
after the jury’s findings supported the imposition of punitive damages. After deliberation, the jury awarded Moran $1
million in punitive damages against Qwest.
The
trial court entered judgment on the jury verdict on April 7, 2010. Defendants filed motions for judgment
notwithstanding the jury’s verdict and for a new trial. Moran filed a motion for a new trial on her
first and fifth causes of action, for which the court had granted summary
adjudication in favor of defendants. The
court denied all of these motions on June 4, 2010. Defendants timely filed their notices of
appeal. Moran timely filed her notice of
cross-appeal.
Prior
to trial, the court denied defendants’ motions in limine to exclude evidence
that Sherwood had sexually harassed others at Qwest (“me too†evidence) and to
exclude evidence that Sherwood had sexually harassed a subordinate while
employed at SBC. On appeal, defendants
argue that the trial court prejudicially abused its discretion by admitting
this evidence because it was not relevant to Moran’s claims and “could only
serve to prejudice the jury and . . . persuade them that Sherwood’s
innate propensities supported Moran’s allegations.â€
Evidence
Code section 1101, subdivision (a), generally prohibits introducing evidence of
character or character traits, in the form of opinion, reputation, or specific
instances of conduct, in order to prove conduct on a specific occasion. Evidence Code section 1101, subdivision (b),
makes clear that when evidence of past acts is relevant to prove a fact (“such
as motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake or accident, or whether a defendant in a prosecution for an unlawful
sexual act or attempted unlawful sexual act did not reasonably and in good
faith believe that the victim consentedâ€) other than disposition to commit such
acts, admission of the evidence is not prohibited.
Defendants
rely on Beyda v. City of Los Angeles
(1998) 65 Cal.App.4th 511 (Beyda). In Beyda,
the plaintiff argued that the trial court had erred by excluding evidence of
other acts of sexual harassment by two of the defendants because such acts,
occurring when the plaintiff was not present, were not relevant to prove that
the plaintiff was sexually harassed. (
court first rejected “the use of the proffered evidence of other acts of
harassment by respondents to prove that they engaged in similar conduct against
appellant†because this would be evidence of propensity and therefore
inadmissible. (Id. at p. 518.) However, the
court found that the evidence would be relevant for another, permissible
purpose: “ ‘The plaintiff’s work
environment is affected not only by conduct directed at herself but also by the
treatment of others. A woman’s
perception that her work environment is hostile to women will obviously be
reinforced if she witnesses the harassment of other female workers.’ †(Id.
at p. 519.) Further, the court opined
that “a reasonable person may be affected by knowledge that other workers are
being sexually harassed in the workplace, even if he or she does not personally
witness that conduct. [¶] If, however, the plaintiff neither witnesses
the other incidents nor knows that they occurred, these incidents cannot affect
his or her perception of the hostility of the work environment.†(Ibid.)
Applying
Beyda, defendants contend that
because Moran knew nothing about the SBC complaints during her employment, the
SBC evidence was inadmissible.
Defendants also argue that “Moran likewise had no personal knowledge of
most of the incidents allegedly experienced by Lyn, Lappin, and Trevino at
Qwest,†rendering the evidence of sexual harassment of others at Qwest also
inadmissible.
The
flaw in defendants’ reasoning is that Beyda
considered one permissible purpose for which such evidence could be
admitted, but it does not bar litigants from proposing other permissible
purposes for evidence of the sexual harassment of others.
That
evidence of the sexual harassment of others may be admitted for purposes not
considered by Beyda, even when the
plaintiff was not aware of such harassment during his or her employment, is
demonstrated by Johnson v. United
Cerebral Palsy/Spastic Children’s Foundation (2009) 173 Cal.App.4th 740,
760 (Johnson): “Beyda did
not address whether the evidence could be admitted under the provisions of
subdivision (b) of Evidence Code section 1101. . . . [M]any courts have held that evidence of the
type sought to be introduced by the plaintiff in Beyda . . . is admissible under rule 404 (b) of the
Federal Rules of Evidence . . . to show intent or motive, for the purpose of
casting doubt on an employer’s stated reason for an adverse employment action,
and thereby creating a triable issue of material fact as to whether the stated
reason was merely a pretext and the actual reason was wrongful under employment
law.†The Johnson court examined numerous federal cases admitting evidence of
sexual harassment by others and concluded that the plaintiff’s evidence “sets
out the factual scenarios related by former employees of defendant that are
sufficiently similar to the one presented by plaintiff concerning her own
discharge by defendant†to be relevant under Evidence Code section 1101,
subdivision (b). (Johnson, at p. 767; accord, Pantoja
v. Anton (2011) 198 Cal.App.4th 87, 114 (Pantoja).)
Defendants
observe that Johnson was a
gender-based discrimination case and not one of sexual harassment. However, Pantoja
extended the Johnson reasoning to
cases of sexual harassment as well: “
Pantoja’s claim of hostile environment sexual harassment. Like her claim that gender discrimination
motivated her firing, Pantoja’s claim of hostile environment harassment
required her to show a discriminatory intent on Anton’s
part. . . . It follows
that if the me-too evidence was probative of Anton’s intent in behaving as
Pantoja alleged, . . . then that evidence was admissible under
[Evidence Code] section 1101, subdivision (b). . . . [¶] We
recognize that the kind of intent or
motivation required for hostile environment harassment may be different from
the kind required for discriminatory hiring or firing. An employer may refuse to hire a woman
because the employer thinks women are less competent than men. The employer may create a hostile
environment, for example, because the employer feels important or powerful
while humiliating women. Either way,
however, the defendant’s discriminatory mental state is crucial. Sex discrimination of the first type (e.g.,
discriminatory hiring or firing) and sexual harassment are ‘distinct causes of
action’ under the FEHA [citation], but a hostile environment, to be actionable,
still must constitute a form of ‘ “ ‘discrimina[tion] . . . because
of . . . sex,’ †’ [citation,] and, in fact, the FEHA ‘regard[s] the
prohibition against sexual harassment as part and parcel of the proscription
against sexual discrimination’ [citation].
There is no reason why me-too evidence would be admissible under section
1101, subdivision (b), to prove the defendant’s discriminatory mental state in
one type of case but not the other. In
fact, evidence of one type of discriminatory conduct can even be probative of a
defendant’s mental state in engaging in another type of conduct.†(Pantoja,
supra, 198 Cal.App.4th at pp.
114-115.)
Here,
Moran was obligated to prove that actions and comments of Sherwood that were
directed toward her were motivated by Moran’s gender. Evidence that Sherwood sexually harassed
others at Qwest would tend to show that Sherwood harbored a gender bias. (See Pantoja,
supra, 198 Cal.App.4th at p. 114
[“[t]he excluded evidence tended to show that Anton harbored a gender bias and
therefore tended to disprove the ostensible reason for her dismissalâ€].) The evidence was also relevant to the
question of whether Qwest failed to take reasonable steps to prevent harassment
because it tended to show that Qwest had notice of allegations that Sherwood
was harassing others.
The
jury was instructed that any discriminatory conduct or statements that Moran
did not personally witness were not relevant in its determination of whether
Moran had actually experienced harassment, but the jury was not so constrained
when determining whether the harassment was because of Moran’s gender. These instructions are actually more
restrictive than Beyda,
evidence in question, when determining whether Moran actually experienced
harassment, if Moran had been aware of it during her employment, not only if
she had personally witnessed it. We see
no abuse of discretion by the trial court when it admitted evidence of
Sherwood’s sexual harassment of others at Qwest.
As
for the evidence of prior sexual harassment by Sherwood at SBC, the evidence
was admitted, as the jury was instructed, “for the limited purpose of
considering whether Sherwood was aware that the behavior alleged by Moran
constituted sexual harassment and for assessing Sherwood’s credibility.†As Moran argued in her opposition to
defendants’ motion in limine, “[t]his evidence is relevant towards plaintiff’s
burden to show that Sherwood’s attitude was not the result of ignorance, but
was a deliberate decision to violate the rights of female employees despite
having had unusually relevant prior experience showing him that his conduct was
unlawful and a serious infringement on the rights of subordinates.†Evidence of other acts, admitted to
demonstrate knowledge, is permitted by Evidence Code section 1101, subdivision
(b), and the court did not abuse its discretion by admitting the evidence.
Liability
Defendants
seek reversal of the jury’s findings of liability, contending that Moran failed
to prove that she experienced severe or pervasive harassment, harassment
because of her gender, constructive termination, or termination in violation of
public policy. Defendants also argue
that Moran failed to prove that Sherwood was an officer, director or managing
agent of Qwest, and thus failed to prove that Qwest was liable for punitive
damages.
A. Standard of Review
A
challenge to findings of fact is reviewed to determine if the jury’s verdict
was supported by substantial evidence. (
193 Cal.App.4th 1563, 1569.) “The
substantial evidence standard has two components, and both work generally
against [defendants]: First, all
resolved in favor of the prevailing party; second, all reasonable inferences from the evidence (all conflicts already
having been resolved) must be drawn in favor of the prevailing party.†(Le v.
Pham (2010) 180 Cal.App.4th 1201, 1205-1206 (Le).) For evidence to be
substantial, it “ ‘must be reasonable in nature, credible, and of solid value.’
†(Joaquin
v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1219.)
Defendants
suggest an approach to review that they claim “collapses the distinction
between substantial evidence review and independent
review. . . .†They
propose that an appellant can “minimize issues of fact†on review for
substantial evidence “by predicating [its] argument solely on the testimony ofâ€
the respondent and asking the reviewing court to “confine [its] review†to that
testimony while indulging every inference favorable to the judgment. (Jara
v. Suprema Meats, Inc. (2004) 121 Cal.App.4th 1238, 1250 (
Defendants ask the court to rely “on Moran’s own testimony and a few
documentary trial exhibits of undisputed authenticity.†Then, so the argument goes, all the facts are
undisputed and the question becomes a purely legal issue—a circumstance in
which independent review is the
proper standard. (Le, supra, 180 Cal.App.4th
at p. 1206.)
We
decline the invitation to confine our review to less than the entire
record. In Jara, the relevant evidence on the issue in question was “found in
the testimony of the parties themselves†and defendants minimized issues of
fact “by predicating their argument solely on the testimony of Jara, Sr., whom
the trial court found most credible.†(
Here, as discussed above, we conclude that the testimony of other
witnesses, besides Moran, is relevant to the question of whether Sherwood acted
because of Moran’s gender. Unlike
our review solely to Moran’s testimony, but to also consider selected documents
entered as evidence at trial. Doing so
would mean that we ignore other documents, also of “undisputed authenticity,â€
that were admitted into evidence. We
will not modify the well established scope of substantial evidence review by
allowing defendants to cherry-pick helpful trial evidence while ignoring the
rest.
B. Sexual Harassment
The
Fair Employment and Housing Act (FEHA) prohibits an employer from harassing an
employee because of sex or gender. (Gov.
Code, § 12940, subd. (j)(1).)
“ ‘[H]arassment’ because of sex includes sexual harassment, gender
harassment, and harassment based on pregnancy, childbirth, or related medical
conditions.†(Gov. Code, § 12940,
subd. (j)(4)(C).)
Sexual
harassment may be alleged upon one or both of two theories: (1) quid pro quo harassment, “where a term of
employment is conditioned upon submission to unwelcome sexual advances,†and
(2) hostile work environment, “where the harassment is sufficiently pervasive
so as to alter the conditions of employment and create an abusive work
environment.†(Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th
1047, 1058-1059.) A claim of hostile
work environment sexual harassment requires a showing that the employee was
subjected to comments and/or conduct that were (1) unwelcome, (2) because of sex,
and (3) sufficiently severe or pervasive to alter the conditions of employment
and create an abusive work environment.
(Lyle v. Warner Brothers
Television Productions (2006) 38 Cal.4th 264, 279 (Lyle).)
“ ‘ “[W]hether
an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at
all the circumstances [including] the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s
work performance.†[Citation.]’
[Citation.] Therefore, to
establish liability in a FEHA hostile work environment sexual harassment case,
a plaintiff employee must show she was subjected to sexual advances, conduct,
or comments that were severe enough or sufficiently pervasive to alter the
conditions of her employment and create a hostile or abusive work
environment.†(Lyle, supra, 38 Cal.4th
at p. 283, italics omitted.) “With
respect to the pervasiveness of harassment, courts have held an employee
generally cannot recover for harassment that is occasional, isolated, sporadic,
or trivial; rather, the employee must show a concerted pattern of harassment of
a repeated, routine, or a generalized nature.â€
(Ibid.)
“To
be actionable, ‘a sexually objectionable environment must be both objectively
and subjectively offensive, one that a reasonable person would find hostile or
abusive, and one that the victim in fact did perceive to be so.’ [Citations.]
That means a plaintiff who subjectively perceives the workplace as
hostile or abusive will not prevail under the FEHA, if a reasonable person in
the plaintiff’s position, considering all the circumstances, would not share
the same perception. Likewise, a
plaintiff who does not perceive the workplace as hostile or abusive will not
prevail, even if it objectively is so.â€
(Lyle, supra, 38 Cal.4th at p. 284.)
C. Moran’s “Admission†that
Harassment was not Because of Her Gender
Before
talking to Qwest HR, Moran had written three pages of notes concerning events
that had offended her. During
cross-examination, Moran said that she had not listed the “most significantâ€
events because she “wasn’t in sexual harassment thinking.†Also during cross-examination, Moran said,
“[Barry] asked me if he said—she said to me, ‘Is he harassing you? Did you say he’s harassing you because you’re
a woman?’ [¶] And I said, ‘No, he’s not.’ †These two snippets
from Moran’s extensive testimony are, defendants propose, “fatal to every cause
of action that reached the jury.†As
authority for this conclusion, defendants cite Jones v. Department of Corrections & Rehabilitation (2007) 152
Cal.App.4th 1367, 1378 (Jones)
(holding that plaintiff “negat[ed] her FEHA claim†by admitting that hostile
comments were not based on her gender or race).
We
first note that Moran testified at other points that she did indicate to Barry that Sherwood’s actions and words were based
on her gender. Moran told Barry that
Sherwood was not allowed to bully someone based on gender and Sherwood was
“clearly violating that.†Moran twice
testified that Barry asked her whether Sherwood had said he was harassing her
because she was a woman, to which Moran responded that Sherwood had not, but
had indirectly indicated that he was.
In
the context of Moran’s entire testimony, what defendants find to be an
admission that Moran told Barry that Sherwood had not harassed her because of
her gender is more easily interpreted as a confused reiteration of her previous
testimony that Sherwood had not said
that he was harassing her because of her gender. It does not amount, as defendants claim, to
“testimony so firm and unequivocal that it appeared to retract a contradictory
prior statement . . . .â€
Nor is it equivalent to the example of Jones. Jones was asked
several times “whether the comments and complaints her coworkers made about her
were prompted by her gender or race†and she “repeatedly answered†that they
were not or that she didn’t know. (
As
for Moran’s testimony that, when she made her notes, she was not in “sexual
harassment thinking,†defendants argue that a claim of hostile work environment
sexual harassment must fail when the plaintiff does not, during the time of
employment, view the harassing conduct as based on gender. For this proposition, defendants cite
(S.D.Fla. 1991) 801 F.Supp. 621, 629:
“We find that during the course of her employment, Schneider was in no
way offended by the foregoing incidents nor did she at any time view them as
sexually offensive.†We do not read
requirement from Lyle, recited above,
that a plaintiff, while employed, subjectively perceive the work environment as
hostile or abusive. Lyle does not impose a similar subjective prong to the element that
the harassment be because of sex or gender; nor, as we read it, does
necessarily equate gender based hostility with sexual harassment, Moran’s
admission that she was not in “sexual harassment thinking†does not mean that
she did not perceive the harassment she experienced to be based on her gender.
D. Evidence that Sherwood’s Harassment of Moran was Severe or Pervasive
Moran
was required to prove that the harassment she experienced was so severe or
pervasive as “to alter the conditions of her employment and create a hostile or
abusive work environment.†(
only a handful of incidents with any sexual tinge whatsoever over a roughly
19-month span of employment.†Defendants
also review a number of cases in which allegations of sexual harassment have
failed the “severe or pervasive†test even though the sexual component of the
plaintiff’s allegations was arguably more severe than the incidents to which
Moran testified. (See, e.g.,
1040 [defendant implied he would release funds requested by plaintiff only if
she had sex with him, and later told her, “ ‘I’ll get you on your knees
eventually. I’m going to fuck you one
way or another’ â€].)
The
problem with defendants’ argument is that it ignores Sherwood’s actions towards
Moran that did not have a “tinge†of sexual content. “Sexual harassment does not necessarily
involve sexual conduct. It need not have
anything to do with lewd acts, double entendres or sexual advances. Sexual harassment may involve conduct,
whether blatant or subtle, that discriminates against a person solely because
of that person’s sex.†(
Cal.App.4th 341, 345 (Accardi).)
“shows itself in the form of intimidation and hostility for the purpose of
interfering with an individual’s work performance.†(Accardi,
at p. 348.) This court has approved the
analysis of Accardi “as both
intuitively and legally sound . . . .†(Birschtein
v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 1001.)
During
2007 Moran was meeting her sales quota and Sherwood regarded Moran’s
performance as satisfactory. Despite
these facts, during the last quarter of 2007, Sherwood imposed a requirement
that Moran be present at a different Qwest sales office each day, adding many hours
of extra driving time per week. Sherwood
knew that driving caused Moran pain because of her knee injury and the extra
driving reduced Moran’s ability to perform the tasks upon which her performance
was judged. Sherwood also subjected
Moran to numerous, distracting phone calls to check on her whereabouts and
activities. When Moran finished one of
her required activities at a Starbucks after a physical therapy session in
order to meet a deadline, Sherwood repeatedly challenged her reasonable
justification for doing so and told her that she was on “thin ice†with the
company, that he was “turning up the heat†on her and that he knew he was
“making it very uncomfortable†for her.
The
jury could reasonably conclude that, during the last three months of 2007,
Moran daily experienced physical pain imposed by Sherwood’s driving
requirement, was forced to waste many hours driving instead of performing
useful tasks, and was distracted daily, perhaps even hourly, by Sherwood’s
calls or emails that conveyed the message that Sherwood distrusted her and had
no confidence in her. The jury could
also conclude that Sherwood intended to undermine Moran’s morale and
performance, and that a reasonable woman in Moran’s position would find these
actions hostile, abusive, and destructive of work performance. We conclude that substantial evidence
supported the jury’s finding that Sherwood’s harassment of Moran was severe or
pervasive.
E. Evidence that Sherwood’s Harassment was Because of Moran’s Gender
Even
though Sherwood’s harassment of Moran was severe or pervasive, the harassment
is not actionable under FEHA unless Moran could also show that the harassment
was due to her gender, i.e., that she would not have been subjected to the
harassment if she had been male.
In
Oncale v. Sundowner Offshore Servs., Inc.
(1998) 523 U.S. 75, 80-81 (Oncale),
court noted three ways that a plaintiff might demonstrate that harassing
behavior was based on gender: (1)
“proposals of sexual activityâ€; (2) harassment “in such sex-specific and
derogatory terms . . . as to make it clear that the harasser is
motivated by general hostility to the presence of women in the workplaceâ€; and
(3) “direct comparative evidence about how the alleged harasser treated members
of both sexes in a mixed-sex workplace.â€
Defendants contend that Moran failed to present substantial evidence
that Sherwood harassed Moran because of her gender via any of these
routes.
In
the first category, proposals of sexual activity, the only evidence in the
record is that Lyn believed that, while Sherwood was standing close and looking
at her breasts, his manner suggested that Lyn might obtain quota relief if she
granted him sexual favors. This single
incident during Moran’s employment at Qwest was not an explicit sexual proposal
and was completely different from any of the harassment alleged by Moran. It is not evidence from which a reasonable
jury could conclude that Sherwood’s harassment of Moran was motivated by
Moran’s gender.
Most
of Moran’s evidence comes in the second category, sex-specific and derogatory
terms. Sherwood used terms, when talking
to Moran or about Moran to others, that Moran characterizes as “sex
stereotypical termsâ€: “emotionalâ€;
“silly girlâ€; comparing Moran “to his insecure 15-year-old daughterâ€; and that
her parents did not “raise [her] properly.â€
Sherwood expressed speculation about Moran’s relationships, or lack
thereof: “good at being singleâ€; “going
out looking for sexâ€; “I want proof that you have a boyfriend.†Sherwood made disparaging remarks about other
female employees: Lappin made “too much
money†and didn’t need to work because her husband was rich; Lappin was an
“aggressive, assertive woman;†Huynh made a sale because of her boyfriend’s
help. Sherwood also made comments about
Lyn’s tight shirt and referred to her “tits or something.â€
As
for the third Oncale category, direct
comparative evidence, Moran testified that male colleagues were not subjected
to the kinds of personal comments to which Sherwood subjected Moran. Similarly, Lyn testified that Sherwood was
more reverent to male employees but condescending or disinterested in her. When Sherwood hired a second CPE overlay,
Larsen, a male, Moran was assigned to work with the less senior sales
representatives. Even though Moran
continued to meet her sales quota during 2007 and Larsen did not, Sherwood
“turn[ed] up the heat†on Moran and told her that she was on “thin ice†with
the company.
“[P]roof
of discriminatory intent often depends on inferences rather than on direct
evidence . . . .†(
Cal.App.4th 191, 203.) Defendants
contend that, at most, Moran proved that Sherwood “was just an indiscriminately
vulgar and offensive supervisor, obnoxious to men and women alike.†(Lack
v. Wal-Mart Stores, Inc. (4th Cir. 2001) 240 F.3d 255, 262.) We disagree.
The words and incidents recited above present numerous and varied
indications from which a reasonable jury could infer that Sherwood’s hostility
to Moran was motivated by her gender. We
conclude that there was substantial evidence supporting the jury’s finding on
the “because of gender†element.
F. Constructive Termination and Termination in Violation of Public Policy
In
order to prevail on her cause of action for termination in violation of public
policy, Moran had to show that she had suffered constructive termination, which
requires proof that “the employer either intentionally created or knowingly
permitted working conditions that were so intolerable or aggravated at the time
of the employee’s resignation that a reasonable employer would realize that a
reasonable person in the employee’s position would be compelled to
resign.†(Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251,
disapproved on other grounds by Romano v.
Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 498.)
As
detaile
| Description | Qwest Communications International, Inc., Qwest Corporation,[1] and Dennis Sherwood, defendants below, appeal the judgment entered upon a jury verdict in favor of Amy Moran, plaintiff below. The jury found all defendants liable for the sexual harassment of Moran and Qwest liable for failure to take reasonable steps to prevent the sexual harassment and for terminating Moran’s employment in violation of public policy. The jury awarded Moran $492,710 for economic damages, a total of $2.8 million for noneconomic damages, and $1 million in punitive damages. Defendants contend that: (1) the jury’s findings of liability were not supported by substantial evidence; (2) the trial court prejudicially abused its discretion when it admitted evidence that Sherwood harassed other individuals at Qwest and had been investigated for sexual harassment at a previous job; (3) the award for noneconomic damages is excessive; and (4) Qwest cannot be liable for punitive damages because the jury’s finding that Sherwood was a managing agent of Qwest was not supported by substantial evidence. Moran cross-appeals from the order of the trial court granting summary adjudication to defendants on her first and fifth causes of action, for gender-based discrimination and for failure to pay wages on termination, contending that triable issues of fact exist. With the exception of the awards for noneconomic damages, we affirm the judgment entered by the trial court. The awards of noneconomic damages are reversed and we remand the cause for a new trial, solely on the issue of noneconomic damages, unless Moran accepts a remission of noneconomic damages in the amount of $750,000. We also affirm the court’s order granting summary adjudication to defendants on Moran’s first and fifth causes of action. |
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