Ninth Circuit Addresses Several Issues Regarding Harassment And Retaliatory Discharge

In Winarto v. Toshiba America Electronics, 274 F.3d 1276 (9th Cir. 2001), the Ninth Circuit Court of Appeals upheld a jury’s verdict in a harassment and retaliatory discharge case. In doing so, the Court addressed several issues involving pretext, individual liability of supervisors, violation of California Civil Code § 51.7, and punitive damages.

Plaintiff, a woman of Indonesian descent, worked for Defendant, Toshiba America Electronics, in its Management Information System Department. Soon after she was hired, a co-worker began harassing her, both verbally and physically. The verbal harassment included comments regarding her gender and her sexual preference, and the physical harassment included kicking, messing with her hair, and physical threats. Plaintiff also complained that other employees harassed her about her nationality, gender, and medical problems. Plaintiff complained to her supervisor and to the human resources department; although they took some action, the harassment never stopped. Moreover, following her complaints, Plaintiff received a significantly lower year-end evaluation than she had previously received. Based on her low evaluation score, Plaintiff was laid off as part of a reduction in force.

Plaintiff filed a lawsuit against Toshiba, the co-worker who harassed her, and her supervisor. The jury returned a verdict for Plaintiff on her claims of discrimination and harassment based on national origin and sex and her claim of retaliatory discharge. The jury awarded her compensatory damages and found that she was entitled to punitive damages, although it could not agree as to the amount of punitive damages. The trial court set the jury verdict aside, and Plaintiff appealed to the Ninth Circuit Court of Appeals, which reinstated the jury verdict.

Plaintiff’s retaliation claim

Plaintiff claimed that Toshiba’s reason for discharging her, the low evaluation score, was merely a pretext for retaliating against Plaintiff for complaining about the discrimination and harassment. The Court of Appeals agreed that the reduction in Plaintiff’s performance review score was evidence of pretext. Considering Plaintiff’s previous high evaluation scores, her supervisor’s comments about Plaintiff’s need to improve her teamwork, and his animosity and lack of sympathy toward Plaintiff, the Court noted that Toshiba had presented little evidence to show that Plaintiff’s low scores were based on anything but retaliation.

Individual liability of the supervisor for retaliation

The Court of Appeals affirmed the jury’s decision to hold Plaintiff’s supervisor individually liable for retaliation under California’s Fair Employment and Housing Act (FEHA). The retaliation provision of the FEHA, Cal. Govt. Code § 12940(h), clearly applies to “any employer, labor organization, employment agency, or person.” Therefore, the Court concluded that an individual supervisor may be held personally liable for retaliation under the FEHA.

Plaintiff’s claim of violation of California Civil Code § 51.7

Section 51.7 of California Civil Code provides that “[a]ll persons . . . have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, . . . national origin, . . . [or] sex.” The Court noted that this section is not a “hate crime” statute, in that there is no requirement that the violence be extreme or motivated by hate or that the violence even constitute a crime. According to the Court, section 51.7 creates “civil liability which sweeps more broadly than the common, colloquial meaning of the phrase ‘hate crime.'” The Court concluded that the jury could have reasonably concluded that there was a violation of section 51.7, because there was evidence that the co-worker who harassed Plaintiff was motivated by animus toward Plaintiff’s gender or national origin when he committed violence against Plaintiff and threatened her with violence that was intimidating.

The award of punitive damages

Finally, the Court concluded that there was sufficient evidence that the supervisor and the harassing co-worker were guilty of malice, oppression, or fraud that justified an award of punitive damages against them. However, the Court noted that Toshiba may be able to limit its liability for punitive damages if it can show that it had an adequate anti-retaliation policy that was implemented in good faith or that it did not ratify or authorize the supervisor’s conduct.

The Court of Appeals upheld the verdict of $93,000 for compensatory damages and sent the case back to the trial court to determine the amount of punitive damages and Toshiba’s liability, if any, for punitive damages.