McCoy v. Pacific Maritime Association

Facts

The statutory framework. The surviving claim arose under the retaliation provision of the California Fair Employment and Housing Act. To make out a prima facie case under Government Code section 12940, subdivision (h), “a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (McCoy, supra, 216 Cal.App.4th at p. 298, quoting Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) The adverse-action element is measured generously: the conduct must “materially affect the terms, conditions, or privileges of employment,” but FEHA reaches “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement.” (Id. at pp. 298–299, quoting Yanowitz, at pp. 1052, 1054.) Retaliation “need not be carried out in ‘one swift blow,’ but rather may be ‘a series of subtle, yet damaging, injuries.’” (Id. at p. 299, quoting Yanowitz, at p. 1055.)

The settlement and the promised training. Catherine McCoy had worked as a marine clerk at the ports for more than a decade when, in 1998, she and others sued Pacific Maritime Association (PMA) and Yusen Terminals, Inc. (Yusen) for unlawful discrimination. (McCoy, supra, 216 Cal.App.4th at p. 289.) That suit produced “a confidential settlement,” one provision of which gave McCoy “‘standard nightside vessel planner training.’” (Ibid.) The vessel-planner position “offered a modest increase in compensation and held a higher place of prestige in the industry” because of “the heightened skill involved.” (Ibid.) Training began in December 2003, and “[t]he practice at Yusen was for the current vessel planners to provide training to those seeking to become vessel planners.” (Ibid.) From the first day, the planners who were to train her “none of them acknowledged her presence,” and her workspace was “in a ‘less desirable’ room off the main vessel planner area” that “increased her isolation.” (Ibid.)

The shunning, the substandard training, and the abuse. McCoy testified she was “denied a series of training materials during this period and was given substandard instruction,” and that she “never received” the supplemental agreement, a scope-of-work checklist, a computer manual or password, a practice test, or “any other formal training materials,” nor access to “a mock ship.” (McCoy, supra, 216 Cal.App.4th at p. 290.) A dockworker, Cornell Mingo, “testified that appellant was being shunned and isolated by the other employees,” that “he saw other trainees receive much better treatment,” and that “only appellant was isolated in the smaller room.” (Ibid.) Her complaints “centered around one vessel planner in particular, Anthony Spanjol,” who “talk[ed] down to her,” “put[] his feet up on her workspace,” and on one occasion “yelled at her in front of other employees and called her stupid” — an incident a supervisor witnessed but “left the room rather than address.” (Ibid.) When she complained, “she was told that she should go home and that Spanjol’s behavior was just a part of his personality.” (Ibid.) After Spanjol ignored a work question and “‘never spoke to [her] again,’” McCoy “decided she could no longer handle the work environment and quit her job entirely.” (Id. at p. 291.)

The grievance and the second lawsuit. After leaving, McCoy filed a grievance that went to the jointly appointed area arbitrator; she “did not attend the hearing,” and the arbitrator issued a written opinion “finding that no harassment or discrimination took place and concluding that the grievance was frivolous,” imposing “a temporary suspension.” (McCoy, supra, 216 Cal.App.4th at p. 291.) In January 2006 she sued PMA, Yusen, and the union, asserting FEHA sexual harassment and retaliation, negligent supervision, and intentional infliction of emotional distress; she dropped the union before trial. (Ibid.) The proof that ultimately mattered was that “management at Yusen exposed details of the confidential settlement agreement to appellant’s supervisor and the vessel planners on the nightside shift” — the very people on whom McCoy “relied for the training necessary to advance.” (Id. at pp. 299–300.)

Procedural history

On summary judgment, the trial court “granted summary adjudication of all claims except for the retaliation under section 12940, subdivision (h).” (McCoy, supra, 216 Cal.App.4th at p. 291.) Through motions in limine, the court excluded Spanjol’s racially derogatory remarks, evidence of discrimination or harassment against other employees (including alleged retaliation against other settlement parties), and evidence tied to the summarily adjudicated claims. (Id. at pp. 291–292.) During closing argument McCoy’s counsel violated court orders by alluding to race and gender, and then “displayed to the jury the photo of a man whose head appeared to have been cut off,” telling jurors “the picture depicted what the respondents wanted to do to appellant.” (Id. at p. 292.)

After three days of deliberation, the jury returned a verdict for McCoy, “awarding her $660,000 in economic damages and $540,000 in emotional distress damages.” (McCoy, supra, 216 Cal.App.4th at p. 292.) The trial court then granted PMA’s JNOV on the ground PMA was not McCoy’s employer; granted the joint JNOV “concluding there was not substantial evidence to support the jury verdict”; denied a partial JNOV directed at the economic-damages award; and “alternatively granted the motion for a new trial on five separate grounds: (1) irregularity in the proceedings; (2) surprise; (3) excessive damages; (4) insufficiency of the evidence; and (5) errors in law.” (Id. at pp. 292–293.) Both sides appealed. The Court of Appeal, in a unanimous opinion by Presiding Justice Epstein, affirmed in part and reversed in part; the Supreme Court denied review on July 31, 2013.

Issue

The central question for this analysis is whether substantial evidence supported the jury’s retaliation verdict — and, more precisely, whether the trial court invaded the jury’s province by granting JNOV when the inferences supporting liability were reasonable but contested. On JNOV review, “the trial court may not weigh the evidence or judge the credibility of witnesses,” and “[a] party is entitled to judgment notwithstanding the verdict only if there is no substantial evidence to support the verdict and the evidence compels a judgment for the moving party as a matter of law.” (McCoy, supra, 216 Cal.App.4th at p. 299.) Embedded in that inquiry were subsidiary questions the court also reached: whether the leak-plus-harassment course of conduct constituted an actionable “adverse employment action,” whether PMA qualified as an “employer,” whether the new-trial order survived, and whether economic damages required a constructive discharge.

Holding

Reasoning

The JNOV standard sets the stage — the court may not reweigh. The opinion frames the retaliation issue around the deferential JNOV posture. Unlike a new-trial motion, on JNOV “the trial court may not weigh the evidence or judge the credibility of witnesses”; “[a]ll reasonable inferences must be drawn in favor of the plaintiff and conflicting evidence is to be disregarded.” (McCoy, supra, 216 Cal.App.4th at p. 299, quoting Stubblefield Construction Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687, 703.) The reviewing court “appl[ies] the substantial evidence test to the jury’s verdict, ignoring the judgment of the court and reading the record in the light most advantageous to the plaintiff.” (Ibid.) The decisive doctrinal premise follows immediately: “Actions for retaliation are ‘inherently fact-driven’; it is the jury, not the court, that is charged with determining the facts.” (Ibid., quoting McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 389.) That sentence is the engine of the reversal — it tells trial judges that on a fact-laden retaliation record, JNOV is the exception, not the cure for a verdict the court dislikes.

The adverse-action standard is broad and totality-based. Before testing the evidence, the court calibrated the adverse-action threshold under Yanowitz. The treatment must “materially affect the terms, conditions, or privileges of employment,” a determination that “‘is not, by its nature, susceptible to a mathematically precise test’” and must account for “‘the unique circumstances of the affected employee as well as the workplace context.’” (McCoy, supra, 216 Cal.App.4th at pp. 298–299, quoting Yanowitz, supra, 36 Cal.4th at pp. 1052, 1054.) Crucially, “each alleged retaliatory act need not constitute an adverse employment action in and of itself, and the totality of the circumstances must be considered.” (Id. at p. 299.) This framing matters because the defense theory — that no single slight rose to a tangible job detriment — could not defeat a claim built on accumulated, coordinated injuries.

The inference of intent — the leak as a weapon. Applying that lens, the court found ample evidence. The jury heard “how management at Yusen exposed details of the confidential settlement agreement to appellant’s supervisor and the vessel planners,” the people “upon whom she relied for the training necessary to advance.” (McCoy, supra, 216 Cal.App.4th at pp. 299–300.) McCoy detailed “how her requests for assistance were ignored, the abusive language to which she was subjected, and the failure of her supervisor to intervene”; Mingo testified she was “‘hard-timed’” and given “substandard training” relative to other trainees; and her psychologist testified she suffered “‘major depressive disorder and generalized anxiety due to systematic and regular exposure to the hostile environment.’” (Id. at pp. 300, 299–300.) From this, the court held, “[t]he jury could infer respondents revealed the information with the intent to turn the vessel planners against appellant, knowing this would likely make her training period intolerable.” (Id. at p. 300.) That inference was “a reasonable conclusion from the evidence presented,” and “it is the jury’s duty to determine the facts.” (Ibid., quoting McRae, supra, 142 Cal.App.4th at pp. 389–390.)

Why the contrary evidence did not compel JNOV. Respondents had introduced evidence that the withheld materials “were almost all out of date and rarely used,” that the mock ship never existed for anyone, and that planner training was simply “on-the-job.” (McCoy, supra, 216 Cal.App.4th at pp. 289–290.) But on JNOV that evidence drops out: “when reviewing the jury’s verdict, we disregard such evidence.” (Id. at p. 300.) The court concluded the jury’s inferences were “supported by the record, and not ‘“rebutted by clear, positive and uncontradicted evidence of such a nature that it is not subject to doubt in the minds of reasonable men.”’” (Id. at pp. 300–301, quoting McRae, at p. 389.) The court also disposed of a built-in defense limit: constructive discharge “is not necessary to find unlawful retaliation,” so McCoy’s decision to quit — and her express disclaimer of any constructive-discharge theory — did not defeat liability. (Id. at p. 301, citing Yanowitz, at pp. 1053–1054.) Because the trial court’s no-retaliation conclusion was “not, as a matter of law, the only conclusion legally deducible from the evidence,” JNOV could not stand. (Ibid.)

The “me-too” evidence — intent makes similar retaliation relevant. Turning to the in limine rulings, the court drew a careful line. It affirmed exclusion of Spanjol’s racial comments about other women and general race/gender harassment evidence as having “little relation to the surviving retaliation claim” and as excludable under Evidence Code section 352. (McCoy, supra, 216 Cal.App.4th at pp. 296–297.) But it reversed the blanket exclusion of evidence that “two other female employees similarly situated to appellant” — also settlement parties promised planner training — had been retaliated against. (Id. at p. 297.) “Because intent is an element in an unlawful retaliation claim, evidence that a defendant intentionally retaliated against other employees for the same conduct engaged in by the plaintiff would be relevant.” (Ibid., citing Sprint/United Management Co. v. Mendelsohn (2008) 552 U.S. 379, 388.) Whether such claims are “‘sufficiently similar’” is “inherently fact intensive,” so the trial court “should have, at the very least, conducted a hearing to ascertain the details of the evidence and the similarity to appellant’s claims before subjecting it to a blanket exclusion.” (Id. at pp. 297–298.)

PMA was not McCoy’s employer. The court affirmed JNOV for PMA under the totality-of-the-circumstances “control test,” whose “most important consideration is the right of the employer ‘“to control the means and manner of the workers’ performance.”’” (McCoy, supra, 216 Cal.App.4th at p. 302, quoting Vernon v. State of California (2004) 116 Cal.App.4th 114, 124–126.) “There was uncontradicted testimony that Yusen employed her, managed the site where the retaliation took place, and supervised and employed those individuals responsible for the retaliatory acts,” while “PMA had very little if any control.” (Ibid.) The court bolstered the conclusion with the Ninth Circuit’s Anderson v. Pacific Maritime Association (9th Cir. 2003) 336 F.3d 924, where “it was PMA’s member companies, not PMA itself, that were the employers.” (Id. at pp. 302–303.) That this issue presented “a legal question based on undisputed facts” meant de novo review applied. (Id. at p. 302.)

The new-trial order survives — counsel’s misconduct and the decapitation photo. Even as it restored the verdict on JNOV, the court affirmed the alternative new-trial order, illustrating how the two motions diverge. On a new-trial motion the trial judge “sits as a trier of fact independent of the jury,” a “‘thirteenth juror,’” entitled to deference unless “a manifest and unmistakable abuse of discretion clearly appears.” (McCoy, supra, 216 Cal.App.4th at pp. 303, 305, quoting Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387.) Counsel’s repeated injection of race and gender despite explicit orders supported a new trial for “[i]rregularity in the proceedings,” reinforced by the jury’s first deliberation question — “‘How many black women have been vessel planners[?]’” — which showed “appellant’s improper references to race had an impact on the jury.” (Id. at pp. 304–305.) The undisclosed “photo of a decapitated man,” shown in violation of the local rule on demonstrative aids, separately justified a new trial for “surprise.” (Id. at pp. 305–306.) And the $660,000 economic award — which “would have required appellant to have worked for over 88 years” given the roughly $8,000 annual salary gap — was “‘clearly excessive,’” foreclosing remittitur because excessive damages “was not the only ground.” (Id. at p. 306.)

Economic damages do not require a constructive discharge. On the cross-appeal, the court rejected respondents’ federal-law argument that a constructive discharge was a “prerequisite” to economic damages. (McCoy, supra, 216 Cal.App.4th at p. 307.) California looks to Title VII “only … to cases where the relevant provisions of each statute are sufficiently similar,” and FEHA differs: it “does not limit the relief a court may grant” and “offers greater protection and relief to employees than does Title VII.” (Id. at pp. 307–308, quoting Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 215, and Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 842.) Following its own decision in Cloud v. Casey (1999) 76 Cal.App.4th 895, the court held “economic damages are awardable to appellant despite the absence of a constructive discharge,” because “‘all forms of relief granted to civil litigants generally … are available.’” (Id. at pp. 307–308.) The panel was unanimous; there was no separate concurrence or dissent.

Significance

It is a clean statement that retaliation belongs to the jury. McCoy’s enduring value is its insistence — quoting McRae — that retaliation is “‘inherently fact-driven’” and that the factfinder, not the court, resolves causation, intent, and materiality. (McCoy, supra, 216 Cal.App.4th at p. 299.) That principle squarely supports CACI No. 2505 (the FEHA retaliation instruction), whose elements — protected activity, adverse action, and causal link — track Yanowitz and are quintessential jury questions. The opinion is a useful citation whenever a defendant seeks JNOV (or, by extension, summary judgment) on a contested retaliation record: contradicted evidence is not the same as evidence that “compels a judgment for the moving party as a matter of law.” (Id. at p. 299.)

It models the totality-of-the-circumstances adverse-action analysis. By upholding a verdict premised on a leak-plus-shunning course of conduct, McCoy shows how Yanowitz’s “series of subtle, yet damaging, injuries” framework operates in practice: discrete acts that might individually be trivial can, in combination and in context, materially impair “a reasonable employee’s job performance or prospects for advancement.” (McCoy, supra, 216 Cal.App.4th at p. 299.) The decision is notable for treating the betrayal of a confidential settlement to coworkers — an act with no formal employment consequence on its face — as the linchpin of a cognizable adverse action because of its predictable, intended effect on the plaintiff’s training.

It clarifies two satellite issues: “me-too” relevance and FEHA damages. First, McCoy reinforces Pantoja and Sprint/Mendelsohn that other-employee retaliation evidence can be relevant to intent and must be screened for similarity through a hearing, not excluded wholesale. (McCoy, supra, 216 Cal.App.4th at pp. 297–298.) Second, it joins Cloud v. Casey in confirming that FEHA economic damages do not depend on a constructive discharge, a point of real practical consequence for plaintiffs who resign short of a provable constructive-discharge claim. (Id. at pp. 307–308.) Its limits are equally instructive: the same plaintiff lost her harassment and IIED claims and faces retrial because her counsel’s misconduct independently justified a new trial — a reminder that winning the legal-sufficiency battle does not insulate a verdict tainted by trial error.

Key quotes

“Actions for retaliation are ‘inherently fact-driven’; it is the jury, not the court, that is charged with determining the facts.” (McCoy, supra, 216 Cal.App.4th at p. 299.)

“The jury could infer respondents revealed the information with the intent to turn the vessel planners against appellant, knowing this would likely make her training period intolerable.” (Id. at p. 300.)

“Even if contradicted, there was substantial evidence supporting the jury’s conclusion that respondents unlawfully retaliated against appellant for engaging in protected activity and that the retaliation resulted in a material alteration of the terms, conditions, or privileges of appellant’s employment.” (Id. at p. 301.)

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Practice pointer

Open questions

Which other-employee evidence comes in. The court reversed the blanket exclusion but expressly declined to decide admissibility itself, holding “the record before us does not provide sufficient details of the evidence being excluded for us to make such a determination on our own,” and directing the trial court on remand to determine whether the other employees’ situations are “‘sufficiently similar.’” (McCoy, supra, 216 Cal.App.4th at pp. 297–298.)

The retrial’s outcome on liability and damages. Because the new-trial order was affirmed, the court left the merits to be retried, noting only that “[t]he finder of fact will then be able to determine whether unlawful retaliation took place and if so, what level of damages were suffered.” (McCoy, supra, 216 Cal.App.4th at p. 308.) The economic-damages measure — limited by McCoy’s own concession to “‘the difference between the earnings of a marine clerk and the earnings of a vessel planner’” — remains for the new jury to apply correctly. (Id. at pp. 306, 308.)

Reliability of “reasonable psychological certainty” testimony. In a pointed footnote the court flagged but did not resolve a concern that the psychologist’s “‘reasonable psychological certainty’” phraseology “may not be accurate and is problematic,” citing the Restatement Third of Torts. (McCoy, supra, 216 Cal.App.4th at p. 300, fn. 4.)