Wysinger v. Automobile Club of So. Calif.

69 Cal.Rptr.3d 1

157 Cal.App.4th 413

Guy WYSINGER, Appellant, v. AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, Appellant.

No. B191028.

Court of Appeal, Second District, Division 6.

November 29, 2007.

Hadsell & Stormer, Dan Stormer, Virginia Keeny, Pasadena, Murray & Whitehead and Nigel A. Whitehead, Nipomo, for Appellant Guy Wysinger.

Reed Smith, Margaret M. Grignon, Zareh Jaltorossian, Los Angeles, Sheppard Mullin Richter & Hampton, Jeffrey A. Dinkin, Deborah Lynn Martin, San Francisco, and John K. Beckley, Costa Mesa, for Appellant Automobile Club of Southern California.

GILBERT, P.J.

An employee sues his employer for various discrimination claims under the Fair Employment and Housing Act (FEHA). Among other things, the jury found the employer liable for its failure to engage in an "interactive process" to determine reasonable accommodations for the employee's disability. The jury found the employer not liable, however, for the claim it failed to provide a reasonable accommodation for the employee's disability. Here we conclude these jury findings require different proofs and are not inconsistent.

Defendant Automobile Club of Southern California (ACSC) appeals a judgment after jury trial. Guy Wysinger filed a discrimination action against ACSC, his former employer. We affirm because 1) substantial evidence supports the finding that ACSC unlawfully retaliated against Wysinger for filing an age discrimination claim; 2) the court did not commit reversible error with instruction on retaliatory employer conduct; 3) the jury verdicts were consistent; 4) substantial evidence supports the findings that ACSC's conduct damaged Wysinger; 5) the $1 million punitive damages award was not excessive; and 6) the court properly apportioned the award of attorney fees to Wysinger.

FACTS

Wysinger was a district manager for ACSC's Santa Barbara office. He had received favorable performance evaluations during the 25 years of his employment. He suffered from lupus, a heart condition, and rheumatoid arthritis. His daily commute to Santa Barbara aggravated his arthritis. He wanted to be ACSC's Ventura office manager because it would involve a less arduous commute, and would be a promotion.

In the late 1990s, ACSC decided to implement a new compensation plan. ACSC's older office managers opposed it because they would receive a disproportionate reduction in their compensation.

Robert Kane, ACSC's vice president of district office operations, called Wysinger into his office and told him, "[W]e are going to crush" those opposing the plan. Kane told Michael Coleman, another senior manager who opposed the plan, that ACSC would not tolerate opposition to it. He said, "It doesn't matter what you did for this company in the last 30 ... years. None of that matters. And you can die at your desk. We'll replace you tomorrow. Nobody cares."

In 1999, Wysinger filed a complaint with the Equal Employment Opportunity Commission (EEOC) claiming ACSC committed age discrimination. ACSC did not impose the pay cuts.

Wysinger's work environment changed. ACSC no longer invited him to be on management committees or to apply for management positions. He was treated coldly and ignored at management meetings. ACSC ignored requests to accommodate his disabilities. He received unfavorable job evaluations. Bill Figge, his immediate supervisor, said it was not about Wysinger's performance, but involved one of Wysinger's staff members who needed improvement. ACSC transferred staff from Wysinger's office to Ventura, creating a hardship for him.

In 2002, there was an opening for a manager in ACSC's Ventura office, a position that Wysinger wanted. Figge testified that Wysinger ran an "elite," or extremely well-managed office, unlike the one operated by employee Grant Sigmund. Figge recommended Wysinger for the job because he was the most qualified and had formerly managed the Ventura office. Kane agreed.

Peter McDonald, an ACSC senior vice president, met with Kane. McDonald testified, "[W]e were ... trying to change the culture of the organization.... We were actively trying to get people from other parts of the company to apply." Wysinger was not reassigned to Ventura and ACSC posted the position to attract other applicants. Several people applied, Sigmund did not. Nevertheless, Kane recommended Sigmund for the position and McDonald approved it.

Wysinger testified that because of ACSC's conduct he became depressed and was unable to work. Dr. Alan Karbelnig, a psychotherapist, testified Wysinger suffered from depression because of the way he was treated at ACSC. Stephanie Rizzardi-Pearson, a forensic economist, testified that given Wysinger's age and inability to work he would suffer a $280,129 loss in future earnings.

The Jury Verdict

In its special verdict, the jury found 1) that ACSC did not "fail to provide a required reasonable accommodation to ... Wysinger for his physical disability"; 2) ACSC did not discriminate against him because of his physical disability; 3) ACSC retaliated against Wysinger because he filed a complaint of age discrimination; 4) ACSC did not discriminate against him because of his age; and 5) ACSC failed to engage in an interactive process regarding his disability. It found Wysinger sustained economic damages of $204,000, noneconomic damages of $80,000 and ACSC's conduct was "malicious, oppressive, and/or fraudulent."

Evidence on ACSC's Financial Position

Victor Robinette, a certified public accountant, testified that ACSC's net worth was $353,791,000. John, Boyle, ACSC's expert, testified the net worth was the same amount. He said ACSC's profits are placed into a "member equity fund." The trial court sustained objections to ACSC's questions to Boyle about the interest the equity fund earns. ACSC made an offer of proof in a side bar conference that was not reported. The jury awarded $1 million in punitive damages.

Attorney Fees

The trial court awarded Wysinger attorney fees of $978,791. ACSC requested that the fees be apportioned. The court denied that request.

DISCUSSION

I. Substantial Evidence Supporting the Finding of Retaliation

ACSC contends the evidence is not substantial to support the finding that it retaliated against Wysinger because he filed an age discrimination claim. We presume there is evidence to support every finding unless the appellant demonstrates otherwise and we draw all reasonable inferences from the record to support the judgment. (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App.3d 101, 152, 135 Cal. Rptr. 802.)

ACSC contends denying Wysinger a transfer to Ventura is not a FEHA adverse employment action. Plaintiff must show that he or she engaged in protected activity and was thereafter subjected to adverse employment action by his or her employer because of that protected activity. (Morgan v. Regents of the University of California (2000) 88 Cal.App.4th 52, 69, 105 Cal.Rptr.2d 652.) Where an employer retaliates by denying prospects for advancement or promotions to employees because they filed age discrimination claims, the employer has engaged in an adverse employment action in violation of FEHA. (Gov.Code, § 12940, subd. (h); Yanowitz v. L'Oreal USA Inc. (2005) 36 Cal.4th 1028, 1055, 32 Cal.Rptr.3d 436, 116 P.3d (Yanowitz); Stevenson v. Superior Court (1997) 16 Cal.4th 880, 895-896, 66 Cal.Rptr.2d 888, 941 P.2d 1157.)

ACSC claims that the Ventura position would not have changed Wysinger's employment status. Sandi Adame, ACSC's human resources manager, testified however, it would have been a promotion. Kane said it involved a higher classification within management, and offers higher salary.

ACSC contends it is not responsible for Kane's retaliatory conduct. But an employer generally can be held liable for the retaliatory actions of its supervisors. (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 109, fn. 9, 16 Cal.Rptr.3d 717 (Reeves).) Here Kane supervised ACSC's managers. His threat to "crush" the managers opposed to ACSC's plan shows an intent to retaliate. Jurors could reasonably infer Wysinger became one of those targeted managers after he filed the EEOC claim and challenged the plan.

ACSC claims that McDonald independently decided not to promote Wysinger and was not influenced by Kane. But McDonald said he followed Kane's final recommendation to reject Wysinger and routinely relied on Kane's advice about managers. Kane knew Wysinger had more experience than Sigmund, that Wysinger's office was classified as elite and Sigmund's was not. The jury could find that Kane agreed with Figge that Wysinger was the best qualified, but selected Sigmund even though he had not applied for the position. It could reasonably infer that McDonald relied on Kane in making this selection.

ACSC argues that McDonald did not know that Wysinger filed an age discrimination claim and was motivated by neutral business justifications. But the jury could reasonably infer that anyone in his position would know about the EEOC complaint because of its financial impact on the company. In addition, jurors could infer the sudden decision to "change the culture" instead of approving Wysinger's transfer was a pretext to deny Wysinger what should have been a routine reassignment. Wysinger had previously managed the Ventura office.

In any event, a decision maker's ignorance does not "categorically shield the employer from liability if other substantial contributors to the decision bore the requisite animus. [Citation.]" (Reeves, supra, 121 Cal.App.4th at p. 110, 16 Cal.Rptr.3d 717.) If he participated in the decision, jurors may infer animus. (Roebuck v. Drexel University (3rd Cir. 1988) 852 F.2d 715, 727.) Because Kane was a motivating force in the selection, his animus is imputed to ACSC. (Reeves, supra, at p. 110, 16 Cal.Rptr.3d 717.) Moreover, notwithstanding McDonald's alleged ignorance, ACSC must have known Wysinger made the EEOC claim. This prevented ACSC from implementing...