FERGUSON, Circuit Judge:
Sky Chefs, a Delaware corporation, appeals from a jury verdict finding it liable for the actions of its Portland, Oregon general manager, Mr. Tony Nathalia. The jury found that Nathalia sexually harassed women employees and intentionally inflicted emotional distress upon and ultimately wrongfully discharged a woman employee, Ms. Connie Dias, for resisting that sexual harassment. We affirm.
Sky Chefs, Inc. is a Delaware corporation headquartered in Dallas, Texas. It maintains a number of regional facilities in the United States, each of which is directed locally by a General Manager. In Portland, the General Manager is responsible for "general supervision" of approximately 230 employees. The company supplies meals to airlines.
Dias began work at the Portland, Oregon facility in April 1985 as a clerical worker in the billing department. In September 1986 she was promoted while working under General Manager Jim Durham. Later that month, Nathalia replaced Durham as the Portland General Manager. Nathalia had been transferred by the company from its San Diego facility, where he had also served as General Manager.
Dias asserted that she refused to wear nylons and heels and confronted Nathalia about the dress standards; that she complained to lower-level supervisors about Nathalia; that she acted as a spokesperson for other women employees in complaining to local supervision about the sexual harassment. She alleged that particularly after complaining to Office Manager Tom Illk, Nathalia began to make numerous remarks to Dias complaining about her personal appearance and criticizing her work performance. She alleged that Nathalia changed her work location, instructed her not to talk with women in other departments, "overscrutinized and sabotaged her work; directed supervisors to discipline her for trivialities; interfered with her receipt of benefits; [and] had her followed." Dias alleged that this treatment caused her severe emotional distress. In June 1987 she fell at work, injuring herself. She filed a workers' compensation claim and took a leave of absence. Her physician released her for a limited duty return to work as of December 7, 1987, with a recommendation that she gradually increase her hours to full-time work. However, upon her return to the office on December 7, Dias alleged that her supervisor informed her that her position had been eliminated, that the company had no work for her, and per General Manager Nathalia's recommendation, Dias was terminated.
Following her termination, Dias filed suit in federal district court, which had diversity jurisdiction under 28 U.S.C. § 1332. She alleged three claims: wrongful discharge for protesting the sexual harassment of her co-workers; intentional infliction of severe emotional distress; and discrimination against her for having applied for workers' compensation benefits. The jury found for Sky Chefs on the workers' compensation claim, but found for Dias on the wrongful discharge and intentional tort claims. The jury awarded Dias $125,000 in general damages and $500,000 in punitive damages.
Sky Chefs filed a post-trial motion for judgment notwithstanding the verdict, which was denied. It now appeals, asserting the following:
(1) The evidence could not, as a matter of law, support a finding of liability for wrongful discharge or intentional infliction of emotional distress;
(2) Punitive damages could not be awarded in this case as a matter of law; and the general damages were excessive;
(3) Sky Chefs is entitled to a new trial, because of misconduct by Dias' attorney and because of various mistakes by the trial court;
(4) Sky Chefs was denied a fair trial because the only three men in the jury venire were struck by peremptory challenge, leaving an all-woman jury.
We address the claims sequentially.
We will reverse a jury finding of liability only if "without weighing the credibility of the witnesses, the evidence and its inferences, considered as a whole and viewed in light most favorable to the [prevailing] party ... can support only one reasonable conclusion...." Davison v. Pacific Inland Nav. Co., Inc., 569 F.2d 507, 509 (9th Cir.1978); see also Walker v. KFC Corp., 728 F.2d 1215, 1223 (9th Cir.1984). Since this is a diversity action, we apply the law of Oregon to the claims of wrongful discharge and intentional infliction of emotional distress. County of Maricopa of State of Ariz. v. Maberry, 555 F.2d 207, 210 (9th Cir.1977).
A. Wrongful Discharge.
Under Oregon law,
Dias alleged that she was discharged principally for "resisting sexual harassment on the job." At trial a number of witnesses testified supporting the allegations of sexual harassment and of Dias' resistance to it. A jury could have concluded that her firing was caused by her actions involving this "important public interest."
B. Intentional Infliction of Emotional Distress.
Under Oregon law the general requirements for this tort action are as follows:
The standards for intent and for socially tolerable conduct depend on the type of relationship which exists between plaintiff and defendant. "[A]n employer-employee relationship ... imposes a greater obligation to refrain from inflicting mental distress than the obligation which exists between strangers." Trout v. Umatilla Co. School District, 77 Or.App. 95, 712 P.2d 814, 818-819 (1985).
The Oregon Supreme Court has held that "the duty to refrain from abusive behavior in the employment relationship comes closer to that of the physician toward a patient ... than to that of ... police officers toward a citizen not in custody and free to terminate the encounter...." Hall v. May Dept. Stores Co., 292 Or. 131, 637 P.2d 126, 131 (1981).
As to intent, the key inquiry is "whether the jury could find that [the company agent] attempted to threaten and frighten plaintiff as a deliberate tactic even though he knew that he did not have convincing evidence of misconduct on her part." Id. 637 P.2d at 131; see also id. 637 P.2d at 134 n. 4. In this case Dias need not show that the employer's actions were intended to cause the specific psychological injury which resulted, so long as plaintiff showed that those actions were a tactic designed to stifle opposition to sexual harassment. The plaintiff so argued and a jury could reasonably have agreed.
As to the standard of "outrageousness" in the employment context, "the key focus ... is not on the result, but on the purpose and the means used to achieve it." Patton v. J.C. Penney Co., 301 Or. 117, 719 P.2d 854, 858 (1986). The defendant's behavior must be distinguishable from "the insults, ill temper, and offensive jokes that persons are expected to endure under contemporary standards of behavior." Id. (quoting Brewer v. Erwin, 287 Or. 435, 600 P.2d 398, 411 (1979)).
In cases such as Patton, 719 P.2d at 858, and Snyder v. Sunshine Dairy, 87 Or.App. 215, 742 P.2d 57, 58 (1987), the Oregon courts have held that "rude" or "tyrannical" behavior by supervisors, or excessive supervision and unjustified reprimands, when occurring in the context of discharges not invoking any significant public interest, could not in themselves give rise to an intentional tort claim. At the same time, the outrageousness of the conduct is measured not merely by the severity of the acts themselves but also by the
In Dias' case, the injury she suffered is distinguishable from ordinary employment abuses because it was carried out in the context of an allegedly sexually abusive work environment intentionally established by Sky Chefs' local general manager. The jury was entitled to consider that context and the intent behind the manager's specific acts in its determination of outrageousness. See Hall, 637 P.2d at 133 n. 3 ("permissible" acts may become impermissible if done with illicit intent and knowledge of predictable illicit result).
C. Respondeat Superior.
Defendant claims that the company should not be held liable for Nathalia's acts, because any sexual harassment committed was Nathalia's sole responsibility.
An employer is liable for the torts of an employee if the employee acts within the scope of employment. Stanfield v. Laccoarce, 284 Or. 651, 588 P.2d 1271 (1978). Generally, whether an employee acts within the scope of employment depends on three factors:
Clearly the specific egregious act giving rise to an intentional tort claim will itself rarely be "of a kind which the employee was hired to perform;" the appropriate inquiry is whether the employee committed the tort while performing, or in connection with, his job responsibilities. See, e.g., Holtzman and Trelz, Recent Developments in the Law of Sexual Harassment: Abusive Environment Claims after Raritor Savings Bank v. Vinson, 31 St. Louis U.L.J. 239, 276 (1987) ("Sexual harassment simply is not within the job description of any supervisor or any other worker in any reputable business."). The Oregon Supreme Court has discussed this issue in the following way:
Chesterman, 753 P.2d at 408 (Peterson, C.J., concurring) (citations omitted).
In the present case, Sky Chefs acknowledges that in his capacity as General Manager, the highest-ranking corporate officer in Portland, "Nathalia was its agent for such purposes as general supervision of Dias and others." Sky Chefs further asserts that "Nathalia's motivation with respect
Sky Chefs seeks review of the damage awards. "The jury's verdict should be accepted if it could reasonably have been reached" and a trial court's decision against remittitur is reversed only on a showing of "clear abuse of discretion." Raynor Bros. v. American Cyanimid Co., 695 F.2d 382, 385 (9th Cir.1982).
A. Punitive Damages.
"The rationale for allowing punitive damages is to punish the offender and to deter others from similar conduct." Honeywell v. Sterling Furniture Co., 99 Or.App. 94, 781 P.2d 379, 380-381 (1989).
Sky Chefs argues that the conduct alleged was not sufficiently aggravated to justify punitive damages as a matter of law. But as the Oregon Supreme Court has stated,
Hall, 637 P.2d at 134-135.
Sky Chefs does not allege that the jury was improperly instructed either on the standard of liability or on the standard for awarding punitive damages. Further, Oregon law has long held that punitive damages may be awarded when a company agent is "employed in a managerial capacity and [is] acting in the scope of employment." Stroud v. Denny's Restaurant, Inc., 271 Or. 430, 532 P.2d 790, 791 (1975); see also Hodel, The Doctrine of Exemplary Damages in Oregon, 44 Or.L.Rev. 175, 233 (1965). Given the importance of deterring corporate practices, including hiring decisions, which permit abuse of women who resist sexual harassment on the job, we find nothing in this record to indicate that "the amount of the verdict is `outrageous,' `shocking' or `monstrous'." Oliver v. Burlington Northern, Inc., 271 Or. 214, 531 P.2d 272, 274 (1975). A jury could reasonably have concluded that the punitive damage award was an appropriate penalty and deterrent.
B. General Damages.
Sky Chefs alleges that Dias' damages are compensable and preempted by the Oregon Workers' Compensation Act. Damages for intentional torts are not preempted. Palmer v. Bi-Mart Co., 92 Or.App. 470, 758 P.2d 888, 891 (1988).
Sky Chefs asserts that Dias' calculation of her non-economic damages, including treatment by a psychiatrist, was "not credible." Dias alleged that she was caused severe emotional distress on the job during Nathalia's tenure. She alleged that she had never been discharged before, that after discharge she became depressed, suffered eating and sleeping disorders, and has had psychological difficulty returning to the workforce, resulting in her receiving welfare assistance for the first time in her life. She has had ongoing and regular treatment by a psychologist, and has incurred all medical bills since her discharge without medical insurance. In light of these allegations and our deference to the jury's decision, we find Sky Chef's simple assertions inadequate to justify overturning the jury verdict.
Sky Chefs also seeks a new trial, alleging reversible errors by the trial court and misconduct by plaintiff's attorney. Trial court rulings on evidentiary matters, and on whether there has been attorney misconduct, are reviewed for abuse of discretion. Chalmers v. City of Los Angeles, 762 F.2d 753, 761 (9th Cir.1985); County of Maricopa of State of Ariz. v. Maberry, 555 F.2d 207, 219 (9th Cir.1977).
A. Evidentiary Rulings.
First, Sky Chefs asserts that all testimony regarding sexual harassment which Dias did not specifically protest should have been excluded. Sky Chefs cites to Haskell v. Kaman Corp., 743 F.2d 113 (2d Cir.1984), which is inapposite. Haskell was an Age Discrimination in Employment Act (ADEA) case, not an intentional tort case, in which testimony by plaintiff's co-workers on age discrimination was submitted in an improper attempt to show a "pattern and practice" of age discrimination. Id. at 121-122. The standards of relevance in Dias case are entirely different. Admitted testimony on discussions of sexual harassment not directly protested by Dias, to which Sky Chefs' objects, was relevant both to show Sky Chefs' awareness of and failure to rectify the harassment, and to show the basis for and significance of the protests which Dias did in fact make.
Secondly, Sky Chefs asserts that Dias' attorney asked questions about incidents of sexual harassment without first establishing that Dias had knowledge of those incidents. Sky Chefs asserts that this was in violation of the court's order to "exclude the testimony by Dias of incidents of sexual discrimination not witnessed by her or not related to her while she was on the job because it's the job environment that is at issue here."
The trial court ruling at issue was directed at Dias' personal testimony. With regard to the testimony of others, and the court's attempts to limit testimony about sexual harassment to statements familiar to Dias, the court stated, "I'll try to carve out a rule and then within that rule there may be other objections at the time and I'll have to rule on those ... and then within that broad ruling you'll have to make other objections." On some occasions, the trial court permitted plaintiff's attorney to establish Dias' knowledge of specific incidents of sexual harassment after questions were put to witnesses about harassment, rather than before, by way of foundation. The trial court's decision on this matter, as on the remaining issues objected to by Sky Chefs, was within its discretion.
B. Attorney Misconduct.
Sky Chefs also alleges that Dias' counsel repeatedly asked objectionable questions beyond the limits of the court's orders described above, and that this constituted attorney misconduct. However, given the justifiable flexibility of the court's rulings, there is no indication of deliberate disregard of the court's orders. Nor is there any showing that Dias' attorney intentionally introduced evidence which he knew was improper. Cf. Maberry, 555 F.2d at 217-218. Therefore, these claims also must fail.
Finally, Sky Chefs asserts that its Fifth Amendment rights were violated by the plaintiff's use of peremptory challenges to strike three males from the jury venire, leaving an all-woman jury, relying on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We review this issue of law de novo, United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). We pay it particular attention since this court has recently extended the Batson equal protection right to gender-based peremptory challenges in criminal cases. United States v. De Gross, 913 F.2d 1417, 1423 (9th Cir.1990).
However, since 1986, black criminal defendants have also enjoyed the right to object to purposeful discrimination through the use of peremptory challenges against members of their own race, under the equal protection clause of the Fourteenth Amendment. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). This right is based on ethnic group membership rather than status as a criminal defendant; however, it has never been extended to civil cases, to corporate defendants, or to cross-racial peremptory challenges in this circuit.
Like Batson, Sky Chefs claims that its Fifth Amendment right to equal protection was violated by the plaintiff's exercise of peremptory challenges allegedly based on gender. See United States v. De Gross, 913 F.2d 1417, 1423 (9th Cir.1990). But the confines of this equal protection right are narrow. To assert such a claim the petitioner must either be a member of the constitutionally protected class being excluded, Batson, 476 U.S. at 86, 106 S.Ct. at 1717, or must be asserting the rights of the excluded jury members, rather than his or her own rights, De Gross at 1420.
Petitioner, a corporation, cannot claim to be a member of the constitutionally protected class allegedly excluded from the jury, i.e., males.
Even if Batson were to be extended to allow black defendants to challenge peremptory strikes of white venirepersons or vice versa, see Holland at 811-812 (Kennedy, J., concurring), 813-814 (Marshall, J., dissenting), 821-822 (Stevens, J., dissenting), it does not logically follow that corporations would be allowed the same latitude. Nothing in equal protection jurisprudence suggests that corporations should be considered a suspect class meriting heightened judicial review. See, e.g., Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949). Sky Chefs has made no attempt to show that the peremptories were irrational or discriminatory against corporations as a class.
Peremptory challenges are an important aspect of the trial process, as Holland emphasizes:
Id. at 808-809 (citations omitted). Such goals clearly supply a rational basis for the tradition of allowing peremptory challenges in civil jury trials. Since the corporation cannot claim that members of its own "race" were discriminatorily excluded, Dias' peremptory challenges did not violate Sky Chef's equal protection rights under Batson.
However, this does not end the inquiry. We must also examine whether petitioner has standing under De Gross to assert the equal protection rights of the excluded jurors themselves. See De Gross at 1420. Ms. De Gross appealed her conviction on criminal charges of transporting aliens, claiming that the district court erred in denying her peremptory challenge of a male venireperson.
Third-party standing is generally disfavored by the courts, on both constitutional and prudential grounds. See, e.g., Valley Forge College v. Americans United, 454 U.S. 464, 474, 102 S.Ct. 752, 759, 70 L.Ed.2d 700 (1982). "[A]t an irreducible minimum, Art. III requires the party who invokes the court's authority to `show that he personally has suffered some actual or threatened injury as a result of the putatively illegal
As in De Gross, the corporation here seeks to extend Batson to a gender-based peremptory challenge. However, as we have seen, Sky Chefs has no Batson rights of its own. Furthermore, Sky Chefs cannot meet the three-part test established in De Gross, which would allow it to take on the government's role and assert the rights of the excluded veniremembers, as did the U.S. Attorney in that case. The second requirement of the three elements is met, since clearly the excluded venirepersons in this case can no more protect their own rights than could the excluded jurors in De Gross.
However, Sky Chefs cannot satisfy either the first or the third element. It has no relationship with the venirepersons whatever except to obtain what it perceives to be a panel more favorable to its position. It has no interest in the rights of the venirepersons beyond its own self-interest. Its position is different from that of the government, which has a duty to protect the individual rights of each venireperson. Similarly, the third standing requirement is not met in this case, since Sky Chefs does not suffer any redressible injury when a venireperson's rights are violated. Unlike the U.S. government, a civil defendant has no inherent duty to safeguard the integrity of the judicial process and ensure that "[s]election procedures that purposefully exclude ... persons from juries [do not] undermine public confidence in the fairness of our system of justice." Holland at 821 (Stevens, J., dissenting) (quoting Batson, 476 U.S. at 87, 106 S.Ct. at 1718). Thus, we hold that petitioner lacks standing to sue on behalf of the male jurors who were allegedly excluded due to their gender.
Having found that petitioner has no standing to raise a claim under either Batson or De Gross, petitioner's due process claim to an evidentiary hearing examining the motives behind the peremptory strikes must also fail.
In extending the Batson equal protection right to gender-based challenges, De Gross broke new ground by also allowing a prosecutor to object to a defendant's peremptories. De Gross at 1423. However, the panel was careful to point out that the U.S. Attorney had standing to assert this right only on behalf of the excluded juror, not the government. Therefore, De Gross itself affords no new rights to civil defendants or plaintiffs, such as Sky Chefs or Dias. Id. at 1420 & n. 5.
In Holland itself, however, several Justices expressed their readiness to extend Batson to peremptory challenges which operate on racial lines, regardless of the defendant's race. See Holland, 110 S.Ct at 811 (Kennedy, J., concurring), 813 (Marshall, J., dissenting) & 821 (Stevens, J., dissenting). Should such an extension occur, however, there is no reason to assume that it would apply to corporate defendants, to gender-based claims, or to civil cases.
Here, the objection was raised only after the jury had been sworn, the court had recessed and reconvened, defendant's motions in limine had been presented and argued, and defendant had noted several other objections. Sky Chefs did not ask the judge to conduct a Batson hearing on the issue of discriminatory intent, but merely stated "for the record" that "[w]e think there has been a systematic exclusion of males from the jury and that is evidenced by the list that went back and forth ..." Transcript at 57.
Unlike Thompson, this objection could have been raised much earlier, and the plaintiff here was prejudiced by its tardiness. The objection could have been raised when petitioner's lawyer first saw the list of challenged jurors, when the challenged jurors were asked to move to the back of the room, immediately after the jury was sworn in, or when the judge recessed the court. Had the objection been contemporaneous with the voir dire, the court could have requested an explanation from the plaintiff and denied the challenge if no neutral explanation was presented, as he did in De Gross. Where, as here, the claimed discrimination is apparent before the close of voir dire, an objection made after jury empanelment is arguably untimely.