Winarto v. Toshiba Am. Elec. Components

• Decision Date: 21 December 2001
• Docket Number: PLAINTIFF-APPELLANT,DEFENDANTS-APPELLEES,No. 99-55448,99-55448
• Citation: 274 F.3d 1276
• Parties: (9th Cir. 2001) MARJATI WINARTO,v. TOSHIBA AMERICA ELECTRONICS COMPONENTS, INC., ROGER E.A. TAYLOR, WAYNE LIEM, BILL MCKINLEY, RON BIRTCH, NANCY ALEXANDER,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1276

274 F.3d 1276 (9th Cir. 2001)

MARJATI WINARTO, PLAINTIFF-APPELLANT v. TOSHIBA AMERICA ELECTRONICS COMPONENTS, INC., ROGER E.A. TAYLOR, WAYNE LIEM, BILL MCKINLEY, RON BIRTCH, NANCY ALEXANDER, DEFENDANTS-APPELLEES

No. 99-55448

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted October 11, 2000

Filed Dec. 21, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Tyron J. Sheppard, Los Angeles, California, for the plaintiff-appellant.

Arthur F. Silbergeld, Proskauer Rose L.L.P., Los Angeles, California, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California;

Christina A. Snyder, District Court Judge, Presiding D.C. No. CV-97-09146-CAS

Before: Betty B. Fletcher, Sidney R. Thomas, and Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge BETTY B. FLETCHER; Partial Concurrence and Partial Dissent by Judge WARDLAW.

BETTY B. FLETCHER, Circuit Judge

Marjati Winarto was laid off from her job with Toshiba America Electronic Components. She sued the company and some of her managers and co-workers in federal district court, raising claims of illegal retaliation, disability discrimination, and civil rights violations, among others. A jury returned a verdict in favor of Winarto; awarded her $93,000 in compensatory damages; and found that the liable defendants had acted with oppression, fraud, or malice; but deadlocked as to the amount of punitive damages. After the verdicts were returned, the district court granted defendants' Rule 50(a) motion for judgment as a matter of law, set aside all verdicts that favored Winarto, and denied Winarto's motion for a new trial as moot. We reverse and reinstate part of the jury's verdict for compensatory damages and reinstate the jury's finding that defendants acted with oppression, fraud, or malice, and remand for a new trial to determine whether Toshiba is liable for punitive damages and on the amount of punitive damages due from defendants. We sustain the district court's vacation of the jury's finding of disability discrimination.

I. Factual History

In March 1992, Marjati Winarto ("Winarto"), a woman of Indonesian ancestry, began working for Toshiba America Electronic Components ("Toshiba") as a Personal Computer ("PC") Support Analyst in the Management Information Systems Department ("MIS"). She was well qualified for the job; she held degrees in relevant fields and was more experienced as a computer programmer than most of the other members of the PC group.

Roger Taylor ("Taylor") became Winarto's supervisor shortly after she was hired. Soon thereafter, Winarto reported to him that she had been harassed by a co-worker, Ronald Birtch ("Birtch"). She complained that Birtch had called her a lesbian and a virgin in front of other co-workers. Taylor testified that in response to this complaint, he "took it on his own and it stopped."

In 1992, after managing Winarto for three months, Taylor completed Winarto's first performance evaluation and rated Winarto's overall performance as a 3.7 on a scale of 5. At the time of this evaluation, Winarto had not yet complained about discriminatory treatment or about other offensive conduct by Birtch.

Birtch continued to harass Winarto verbally, and he also undertook a disturbing physical form of harassment: kicking. Winarto testified that Birtch kicked her at work"many, many times." She complained orally to Taylor as early as 1993 that she had been kicked by Birtch in the presence of her coworkers; although Taylor reassured Winarto that this would stop, and, although Winarto thanked Taylor by email for helping her stop the kicking, Winarto later testified that the kicking "never cease[d]."

Winarto also testified that, one day in 1992, Birtch followed her down the stairs and began to taunt, "Chick, you better walk faster or I am going to hurt you again. " He tried to pass her while simultaneously blocking her from going down the stairs, causing her to trip and twist her ankle. The ankle injury troubled her so much that it required surgery two years later.

Sometime in 1993, Winarto was transferred to another group and was placed under the supervision of Mark Royer ("Royer"). In the 1993 year-end review, Royer gave her an overall rating of 3.29. Royer's evaluation contained mixed praise and criticism. His overall conclusion was that Winarto "is a hard worker, a pleasure to work with, and an asset to the organization." In January 1994, after complaining to the Human Resources department ("HR") about problems with Royer, Winarto was transferred back to Taylor's group.

In 1994, Winarto began to complain again to Taylor about Birtch. She complained to him by email that Birtch had written "nasty things" about her and attributed incorrect sign-out times to her on a board in the office. After Winarto's complaint, the board was removed, and Winarto was moved down the hall and away from Birtch.

According to Winarto, the harassment by Birtch continued throughout her employment. Birtch called Winarto names such as "clueless," messed up her hair with his hands and grabbed handkerchiefs out of her pocket "on a regular basis." He mimicked her accent and continued to kick her. According to Winarto, when she reported Birtch's behavior to Taylor, he "thought that it was like funny or something. He doesn't really take it seriously."

In August 1994, Winarto was diagnosed with a back injury. A doctor wrote a note that sought to limit her lifting responsibilities, but despite this, her co-workers forced her to continue to move computers. As a result, she reinjured her back, which caused her to miss more work; the doctor wrote a second note that was more restrictive than the first.

Winarto complained to Taylor about other members of the group besides Birtch. She complained that Wayne Liem, a coworker and sometimes acting supervisor, harassed her about her back problems and derided her for being an "Asian woman." She testified that Taylor was present during one conversation when Bill McKinley, another co-worker, complained about the number of Asians employed by Toshiba. McKinley also used to harass her for being a woman, injured, and Asian. Winarto also testified that she had complained "all the way to the Human Resources" during this time period. Trial Tr. at 98-99.

After supervising Winarto throughout 1994, Taylor gave her an overall score of 3.04 in her year-end performance review, almost seven-tenths of a point lower than the rating he had last given her. In the 1994 performance evaluation, Taylor's comments focused on Winarto's need to become a better team player. He gave the low rating despite noting the good work Winarto had done on a phone directory project; Taylor admitted at trial that the project was very important and that Winarto had done a good job on it.

On December 22, 1994, Winarto took medical leave to have surgery on her ankle from which she returned on or about March 20, 1995, approximately eleven days before she was laid off.

In January 1995, in response to declining profits, Toshiba began to consider eliminating some jobs. Mr. Suboni ("Suboni"), the Vice President of MIS, called for the elimination of one position within MIS as part of the downsizing effort. Taylor proposed Winarto for layoff, and, before any final decisions were made Carol Trubey ("Trubey"), a supervisor of employee relations in HR, conducted a "Reduction In Force" ("RIF") analysis. Trubey looked at the ratings of Winarto and various employees, their skills, importance to the company, and ages in order to ensure Winarto was an appropriate candidate for lay-off and that there was no discrimination in the decision. As part of the RIF review, Trubey looked at the most recent evaluation scores of the members of Taylor's team: Bill McKinley (3.67), Birtch (3.56), Chuck Struckel (3.62), and Winarto (3.04).

Soon after Trubey completed the RIF analysis, in March 1995, Winarto filed two written complaints in response to her 1994 performance evaluation, which she had received while on medical leave. In these complaints she alleged that she had been discriminated against and harassed by Taylor and several other co-workers and managers because she was a woman, a minority, and had suffered injuries that kept her away from work. Once Toshiba's management received Winarto's complaints, they postponed the decision to terminate her pending an investigation. Trubey investigated the complaints; she spoke with each of the people listed in the complaints, and ultimately concluded that she could not "substantiate [Winarto's] allegations of harassment and discrimination." At that point, Trubey, Linda Martin (another supervisor), and Suboni determined that they would go forward with the layoff.

In March, Toshiba terminated six individuals: Winarto was the only non-Caucasian laid off at that time; four of those terminated were women.

II. Procedural History

Winarto sued Toshiba, Taylor, Birtch, and three other Toshiba employees in federal district court. In her first amended complaint she asserted claims for (1) discrimination and harassment based on race, sex, and national origin in violation of Title VII and the California Fair Employment and Housing Act ("FEHA"); (2) discrimination and harassment based on disability in violation of the FEHA; (3) retaliation for making complaints of discrimination and harassment in violation of Title VII and the FEHA; (4) violation of her civil rights as defined in California Civil Code sections 51.7, 52(b) and 52.1; (5) discrimination and harassment in violation of the California Constitution, Article I, Section 8; (7) termination in violation of public policy; (8) discrimination in violation of the Americans with Disability Act ("ADA"); and (9) negligence. The claims based on Title VII, the California Constitution, termination in violation of public policy, the ADA, and negligence were brought against Toshiba only. The other claims were...