Cantua v. Creager

Citation344 Or. 232,169 Or. App. 81,7 P.3d 693
PartiesTammy CANTUA, Caroline Steigleder and Melissa Springer, Cross-respondents, and Karen Kime and Jeannie King, Appellants, v. David CREAGER dba Visual Changes Salon, Respondent—Cross-appellant.
Decision Date12 July 2000
CourtCourt of Appeals of Oregon

7 P.3d 693
169 Or.
App. 81
344 Or. 232

Tammy CANTUA, Caroline Steigleder and Melissa Springer, Cross-respondents, and
Karen Kime and Jeannie King, Appellants,
David CREAGER dba Visual Changes Salon, Respondent—Cross-appellant

(94-2024-L-1; CA A98930)

Court of Appeals of Oregon.

Submitted on Record and Briefs January 15, 1999.

Decided July 12, 2000.

7 P.3d 695
Sandra Sawyer, Medford, filed the briefs for appellants

David Creager filed the briefs for respondent—cross-appellant.

No appearance for cross-respondents.

Before EDMONDS, Presiding Judge, and ARMSTRONG and KISTLER,1 Judges.


Plaintiffs formerly worked at Visual Changes Salon, which was owned by defendant. They stated claims against defendant based on his conduct toward them. The issues on appeal arise from the varying results of their claims. Plaintiffs King and Kime appeal awards of attorney fees that were entered against them pursuant to ORS 20.107 and 659.121(1). King also appeals the grant of a directed verdict for defendant on King's claims for intentional infliction of emotional distress, common-law wrongful discharge, sex discrimination under ORS 659.030(1)(b), and breach of contract. Defendant cross-appeals the jury's award of economic and punitive damages against him for battery. We reverse the awards of attorney fees against Kime and King and reverse the directed verdict against King on her breach of contract claim. We otherwise affirm.

Plaintiffs asserted claims against defendant for sex discrimination under ORS 659.030(1)(b), common-law wrongful discharge, battery, and intentional infliction of emotional distress. King and Kime also asserted a claim for breach of contract, while King did not make a claim for battery. Defendant counterclaimed for interference with business relations, attorney fees, and interference with contract. Kime voluntarily dismissed all of her claims against defendant, and the trial court directed a verdict against

7 P.3d 696
King on all of her claims. The jury returned a verdict in favor of the three remaining plaintiffs, Cantua, Springer, and Steigleider, on the battery count, awarding each plaintiff $500 in economic damages and $10,000 in punitive damages. It found for defendant on plaintiffs' other claims and for plaintiffs on defendant's counterclaims. The trial court awarded costs to Cantua, Springer, and Steigleder. It concluded, however, that Kime's and King's claims were "frivolous, meritless and without foundation or objectively reasonable basis" and entered judgments against them for both costs and attorney fees under ORS 20.107 and 659.121(1)

Defendant assigns error to the denial of his post-trial motions for judgment notwithstanding the verdict and for a new trial. Except for his objection that the punitive damage awards violated the federal Due Process Clause because they were excessive, the issues that defendant seeks to raise under this assignment cannot be raised under it. He objects that plaintiffs failed to plead or prove that they had suffered economic damages as a result of battery and that they failed to establish elements of their claim for punitive damages. Those are objections that cannot be raised on appeal by assigning error, as defendant has, to the denial of post-trial motions. See, e.g., Burke v. American Network, Inc., 95 Or.App. 274, 276-77, 768 P.2d 924 (1989); Davis v. Dumont, 52 Or. App. 73, 76 n. 1, 627 P.2d 907, rev. den. 291 Or. 309, 634 P.2d 1346 (1981). We therefore do not address them.

Defendant's due process objection about the punitive damage awards can be raised by post-trial motion,2 so we address it. Defendant argues that the punitive damage awards of $10,000 for each plaintiff, as compared to the economic damage awards of $500 for each of them, are excessive and therefore violate the Due Process Clause. Defendant was found liable for the battery of three of his former employees. Because the jury returned a verdict for plaintiffs, we state the facts in the light most favorable to them. Steigleder testified that defendant tried to pull her down on a cot while she was staying at his parent's house to attend a waxing class. On another occasion, while giving her a facial, defendant rubbed her upper chest area. He also repeatedly attempted to kiss Steigleder on her mouth and gave her unsolicited hugs during which he rubbed his genitals against her. Cantua also experienced offensive hugs, and defendant touched her upper chest area during a facial. Additionally, during another facial he touched her breasts. At a hair show, defendant rubbed Cantua's thigh and physically tried to pull her out of her seat and onto the dance floor so that he could dance with her. He also rubbed her back, attempted to kiss her on the mouth, and kissed her on the cheek. Springer testified that defendant hugged her tightly and rubbed her shoulders. Additionally, during a facial, he rubbed in between her breasts and pulled up on her shirt. On another occasion, he put her in a headlock and kissed her cheek. Much of defendant's offensive contact occurred when he was alone with one of the plaintiffs in a back room of the salon. Both Cantua and Steigleder were afraid of defendant; all three plaintiffs testified to psychological harm resulting from defendant's conduct.

In evaluating the constitutionality of punitive damage awards under the Due Process Clause, we consider the state's interests in preventing the objectionable conduct, as well as three other factors identified by the United States Supreme Court: the reprehensibility of the conduct; the disparity between the punitive damage award and the harm or potential harm suffered by the plaintiff; and the difference between the amount of the award and civil and criminal penalties that could be imposed for the conduct. See, e.g., Axen, 158 Or.App. at 319, 974 P.2d 224 (citing BMW of North America, Inc. v. Gore, 517 U.S. 559, 575, 116 S.Ct. 1589, 1597, 134 L.Ed.2d 809 (1996)). The first factor is the most important and includes three subfactors: whether the defendant's conduct was violent or threatened violence; whether the defendant acted with trickery or deceit; and

7 P.3d 697
whether the defendant engaged in repeated instances of misconduct. Id. (citing Gore, 517 U.S. at 576-77, 116 S.Ct. 1589)

The state interests involved are significant and include keeping workers safe from nonconsensual sexual contact and minimizing the emotional stress and workplace strife that often result from that conduct. Moreover, the first and most important factor, the reprehensibility of defendant's conduct, also supports this punitive damage award. Both state and federal statutes prohibit unwelcome sexual conduct in the workplace. Those statutes show a strong public policy against nonconsensual sexual advances toward employees. That public policy indicates that nonconsensual sexual contact with one's employees is quite reprehensible.

The first subfactor under reprehensibility, whether defendant's conduct was violent or threatened violence, also supports the award. That defendant tended to touch plaintiffs when they were alone, that he put one of them in a headlock, and that at least two plaintiffs were afraid of him suggest that his conduct threatened violence. Because defendant engaged in repeated instances of misconduct against each plaintiff, the third subfactor also supports the award. Although it is difficult to evaluate the second factor (the disparity between the harm suffered and the punitive damage award) because the jury did not award plaintiffs noneconomic damages, the third factor (the difference between the award and civil and criminal penalties for similar conduct) also supports the award of punitive damages.3

Defendant nonetheless points to the fact that the punitive damage award is 20 times that of the economic damage award as evidence of a due process violation.4 In some cases, such a disparity might be problematic from the standpoint of the Due Process Clause. However, a significant disparity is less likely to be questionable where, as here, egregious acts have resulted in low compensatory awards. See Parrott v. Carr Chevrolet, Inc., 156 Or.App. 257, 277, 965 P.2d 440 (1998), rev. allowed 328 Or. 418, 987 P.2d 511 (1999) (citing Gore, 517 U.S. at 582, 116 S.Ct. 1589). Moreover, where a dignitary right is at issue, a larger disparity between compensatory and punitive damages may be justified. Id. at 278, 965 P.2d 440. Contrary to defendant's contentions, employees have an important dignitary interest in being free from unwanted sexual advances. In light of the above analysis, we cannot conclude that the award of $10,000 in punitive damages to each plaintiff was excessive. We therefore affirm the economic and punitive damage awards against defendant.

We next address the attorney fee award against Kime. ORS 20.107 provides in part:

"(1) In any civil judicial proceeding, * * * the court shall award to the prevailing plaintiff attorney and expert witness fees reasonably and necessarily incurred in connection with [a] discrimination claim * * *. The court may award reasonable attorney fees and expert witness fees incurred by a defendant who prevails in the action if the court determines that the plaintiff had no objectively reasonable basis for asserting a claim * * *.
"(2) In making an award under this section, the court shall calculate attorney and expert witness fees on the basis of a reasonable hourly rate at the time the award is made, multiplied by the amount of time actually and reasonably spent in connection with the discrimination claim."
7 P.3d 698
(Emphasis added.) ORS 659.121(1) provides that "the court may allow the prevailing party costs and reasonable attorney fees at trial and on appeal" in actions for equitable relief brought under enumerated employment law statutes, including ORS 659.030. Finally, ORS 20.075(1) lists a number of factors that courts should consider in determining whether to award attorney

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