Bihun v. AT&T Information Systems, Inc.

• Decision Date: 24 February 1993
• Docket Number: No. B053181,B053181
• Citation: 16 Cal.Rptr.2d 787,13 Cal.App.4th 976
• Court: California Court of Appeals Court of Appeals
• Parties: , 67 Fair Empl.Prac.Cas. (BNA) 427 Oksana R. BIHUN, Plaintiff and Respondent, v. AT & T INFORMATION SYSTEMS, INC., Defendant and Appellant.

Page 787

16 Cal.Rptr.2d 787

13 Cal.App.4th 976, 67 Fair Empl.Prac.Cas. (BNA) 427

Oksana R. BIHUN, Plaintiff and Respondent, v. AT & T INFORMATION SYSTEMS, INC., Defendant and Appellant.

No. B053181.

Court of Appeal, Second District, Division 7, California.

Feb. 24, 1993.

As Modified on Denial of Rehearing

March 25, 1993.

Gartner & Young and Lawrence J. Gartner, Los Angeles, and Greines, Martin, Stein & Richland and Kent L. Richland, Barbara M. Ravitz and Barry M. Wolf, Beverly Hills, for defendant and appellant.

Grassini & Wrinkle and Roland Wrinkle, Woodland Hills, for plaintiff and respondent.

JOHNSON, Associate Justice.

Defendant, AT & T Information Systems, appeals from a judgment in favor of Oksana Bihun, a former employee, in her suit for damages arising from sexual harassment by one of defendant's senior officials. We affirm.

FACTS AND PROCEEDINGS BELOW

Ms. Bihun worked for defendant or one of its predecessors from 1977 to 1985. Ms. Bihun became an area personnel manager in 1983. Her immediate supervisor was Ms. Jimetta Moore, the district personnel manager. Ms. Bihun received a "number one" staff rating and was eligible for promotion to the next level of management in January 1984.

In March 1984, Peter Fellows, a long-time employee of defendant, was transferred from Denver to Los Angeles as area vice-president. Fellows' sexual harassment of Ms. Bihun began almost immediately.

On their first meeting, Fellows winked at Ms. Bihun and lightly brushed his hand against hers. Later that month while Ms. Bihun and Ms. Moore were working after hours in Ms. Moore's office, Fellows walked in with his shirt unbuttoned and his pants unzipped. He pressed his body against Ms. Bihun's right shoulder. Ms. Bihun jumped up and left Ms. Moore's office. As she retreated down the hall she heard Fellows softly calling her name, "Oksana." Again in March, at a birthday luncheon for Ms. Moore, Fellows sat down next to Ms. Bihun and started rubbing her leg with his foot. When she kicked his leg away, Fellows stood up and thrust his groin at her. He pointed to his groin area and told Ms. Bihun there was a food spot there and asked her to rub it off. Later that day, Fellows summoned Ms. Bihun to his office. When she arrived he asked her to have dinner with him that evening. She declined. Fellows then asked her to go to the beach with him the following Saturday. Again, she declined. Fellows then leaned back in his chair revealing his open fly.

The week after these events took place Fellows walked into Ms. Bihun's office, closed the door, and told her they were having dinner together that evening. Ms. Bihun said "No," but Fellows insisted, stating that it was "strictly business" to discuss staff and job-related matters. Ms. Bihun felt threatened and not at liberty to refuse. They drove to the restaurant in separate cars. When they arrived Fellows presented Ms. Bihun with a bouquet of flowers. After they were seated Fellows began telling Ms. Bihun about his unsatisfactory sex life with his wife and his need for extramarital affairs. Then he told her a major reorganization of the company was going to take place soon and if she "played her cards right" she could have any job she wanted. He asked her if she would like Ms. Moore's job and remarked Ms. Moore could be made to disappear. Fellows then leaned across the table and began playing with her earring. He told her she looked like a gypsy and asked her to have an affair with him. He went on to say he did pretty much what he wanted in the company and no one questioned him. For example, he told her, he once hired a waitress from a restaurant to be his secretary because of her large breasts.

The next day, Ms. Bihun told Ms. Moore what had happened at the restaurant. Ms. Moore went to Fellows and complained about his treatment of Ms. Bihun. Fellows told Ms. Moore it was none of her business. After that, the incidents of direct sexual harassment by Fellows became less frequent. Once, while they were passing in the hall, Fellows cupped his hand on her breast. On another occasion Fellows asked Ms. Bihun if she had "softened up yet." And, in November 1984, Fellows asked her "Have you changed your mind?"

Fellows retaliated against Ms. Bihun for rejecting his advances. Her budgetary responsibilities were taken away from her and branch managers stopped dealing with her and took their work to another personnel manager on the same level as Ms. Bihun. A few months later, Fellows accused Ms. Bihun of forging her supervisor's signature on a memo. All her responsibilities were taken away from her; she had nothing to do.

In December 1984, Ms. Bihun went on disability leave. Her doctor diagnosed her as suffering from an "adjustment disorder" coupled with anxiety and depression. He attributed this to what had occurred at work.

Although Ms. Bihun made numerous complaints about Fellows to defendant's supervisory personnel, no one ever contacted her or Ms. Moore regarding these complaints. While she was on disability leave, Fellows resigned.

The day before Ms. Bihun was due to return to work she was told not to come back for another week because there was no job for her. When she did return she was demoted two levels and placed in sales where she had no background or skills. Shortly thereafter Ms. Bihun resigned.

When Ms. Bihun took disability leave and sought psychological help she suffered from headaches, dizziness, vomiting, diarrhea, weight loss, sleep disturbances, teeth grinding, a facial twitch, crying spells and depression. Her psychologist testified that, in his opinion, the incidents of sexual harassment would continue "to affect her in the future." At the time of trial, Ms. Bihun was employed as an attorney with the Los Angeles County Public Defender.

The case went to the jury on Ms. Bihun's claims of sexual harassment and subsequent retaliation for complaining about the harassment in violation of California's Fair Employment and Housing Act (FEHA). ¹ The jury awarded Ms. Bihun compensatory damages of $1.5 million and $500,000 in punitive damages. The trial court added $893,698 in prejudgment interest, $151,468 in attorneys' fees plus costs and interest from the date of the verdict. The total judgment against defendant was for $3,057,369.34.

I. EVIDENCE OF FELLOWS' SEXUAL MISCONDUCT WITH OTHER FEMALE EMPLOYEES WAS PROPERLY ADMITTED.

Defendant argues the trial court improperly admitted the following evidence of Fellows' sexual misconduct with other female employees.

1. Fellows' superiors had received an anonymous letter claiming Fellows was having an extramarital affair with his executive assistant and they had moved their "love nest" from Denver to Los Angeles.

2. Plaintiff's supervisor was told by her supervisor, prior to Fellows' transferring to Los Angeles, "that there were instances where Mr. Fellows was unprofessional around women."

3. When plaintiff recounted her experiences with Fellows to her supervisor, her supervisor stated, "You, too?"

4. Plaintiff's supervisor testified another supervisor told her two other female employees "were having the same problem with Fellows."

Defendant contends this evidence should have been excluded because it was: (1) irrelevant to any issue in the case; (2) hearsay, not subject to an exception; (3) unduly prejudicial; and (4) impermissible evidence of character. We consider each of these objections in order.

1. The Evidence Was Relevant.

Defendant claims the only possible relevance of this evidence was to demonstrate defendant's knowledge of Fellows' conduct and failure to properly investigate or take corrective action. However, defendant argues, under our decision in Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608, footnote. 6, 262 Cal.Rptr. 842, neither defendant's knowledge of Fellows' conduct nor its response to that knowledge was relevant because an employer is strictly liable for acts of sexual harassment by a supervisor, such as Fellows.

Defendant's decision to embrace Fisher comes too late. Its position on appeal, that employer knowledge is irrelevant to employer liability, is directly contrary to the position it took at trial. Defendant cannot be allowed to change the theory of its case on appeal in order to argue evidence that was relevant at trial is now irrelevant. (See Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 874, 242 Cal.Rptr. 184.)

Furthermore, as discussed below, the employer's knowledge and failure to act are relevant to the award of punitive damages. (Civ.Code, § 3294, subd. (b).)

Defendant argues the anonymous tip Fellows was sharing a "love nest" with one of his subordinates was not relevant even if knowledge was in issue because an affair between employees does not necessarily involve sexual harassment. In this case, however, Fellows had proposed to Ms. Bihun they have an affair and told her if she consented he would get her any job she wanted. These statements, taken together with the information about Fellows' affair with his executive assistant, are relevant to both categories of sexual harassment: quid pro quo and hostile work environment. (See Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at p. 607, 262 Cal.Rptr. 842.) Information about the affair could reasonably be taken by Ms. Bihun as indicating Fellows meant what he said about getting her any job she wanted if she would have sex with him. Such information could also reasonably suggest the opposite result if she refused.

2. The Evidence Was Not Hearsay.

Defendant next contends even if the challenged evidence was relevant to the issues of defendant's knowledge of Fellows' conduct or the existence of a hostile work environment it was only relevant if offered to prove the truth of the matters asserted. But, in that event, the evidence was inadmissible hearsay. We disagree.

The challenged evidence was not admitted to prove the truth of the matters asserted, e.g., that Fellows was...