Dias v. Sky Chefs, Inc.
| Decision Date | 27 November 1990 |
| Docket Number | No. 89-35778,89-35778 |
| Parties | 54 Fair Empl.Prac.Cas. 852, 55 Empl. Prac. Dec. P 40,398, 59 USLW 2359, 6 Indiv.Empl.Rts.Cas. 1860 Connie DIAS, Plaintiff-Appellee, v. SKY CHEFS, INC., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Walter V. Siebert and Susan K. Grebeldinger, Sherman & Howard, Denver, Colo., for defendant-appellant.
Richard C. Busse and Donald B. Potter, Law Offices of Richard C. Busse, Portland, Or., for plaintiff-appellee.
Appeal from the United States District Court for the District of Oregon.
Before FLETCHER, FERGUSON and FERNANDEZ, Circuit Judges.
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.
According to Dias and other witnesses at trial, Nathalia upon arrival engaged in ongoing sexual harassment of women employees. The harassment included daily comments on the breasts, buttocks, and physical appearance of individual women; suggestions to women that they show Nathalia "a good time" and treat him as well as the women employees in the San Diego facility had treated him; staff meetings at which he established job standards for women employees that included the wearing of dresses or skirts, nylons and heels specifically so that he could admire women employees' legs. Nathalia denied these allegations at trial.
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. Sec. 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).
Under Oregon law,
[T]he common law rule for "at will" employment prevails unless the employe is discharged while pursuing a right related to his or her role as an employe and the right is one of important public interest indicated by constitutional and statutory provisions and caselaw.... We have stated that sexual harassment on the job is a forbidden discriminatory act under state and federal law and an employe has a legal right which is of important public interest not to be discharged for resisting sexual harassment on the job.
Holien v. Sears, Roebuck & Co., 298 Or. 76, 689 P.2d 1292, 1300 (1984).
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."
Under Oregon law the general requirements for this tort action are as follows:
To succeed on a claim for the intentional infliction of severe emotional distress plaintiff must show that (1) defendant intended to inflict severe emotional distress on plaintiff; (2) defendant's acts did in fact cause plaintiff to suffer severe emotional distress; (3) defendant's acts consisted of "some extraordinary transgression of the bounds of socially tolerable conduct."
Lewis v. Oregon Beauty Supply Co., 302 Or. 616, 733 P.2d 430, 436 (1987).
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 context in which the acts are committed. For example, in Turman v. Central Billing Bur., Inc., 279 Or. 443, 568 P.2d 1382, 1385 (1977), a case involving abuse of a debtor by a bill-collector, the outrageousness of the bill-collector's acts was judged not only by the collector's...
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