Hunio v. Tishman Const. Corp. of California

Decision Date31 March 1993
Docket NumberNo. B064811,B064811
Citation14 Cal.App.4th 1010,18 Cal.Rptr.2d 253
CourtCalifornia Court of Appeals
PartiesPreviously published at 14 Cal.App.4th 1010, 19 Cal.App.4th 918, 24 Cal.App.4th 792 14 Cal.App.4th 1010, 19 Cal.App.4th 918, 24 Cal.App.4th 792 Robert A. HUNIO, Plaintiff and Respondent, v. TISHMAN CONSTRUCTION CORPORATION OF CALIFORNIA et al., Defendants and Appellants.

Jones, Day, Reavis & Pogue, Elwood Lui, Jeffer, Mangels, Butler & Marmaro, Louise Ann Fernandez, and Jay A. James, Los Angeles, for defendants and appellants.

Law Offices of Hardy L. Thomas, Los Angeles, Philip J. Ganz, Jr., Santa Monica, Valensi, Rose & Magaram, and Laurie Susan Gorsline, Los Angeles, for plaintiff and respondent.

ARANDA, * Associate Justice.

BACKGROUND

This is an employment discrimination case. The parties are Robert A. Hunio, the plaintiff and respondent; Tishman Construction Corporation of California ("Tishman") and Tishman Realty and Construction Company ("TRCC"), defendants and appellants; and defendants Abraham S. Bolsky, the president and chief executive officer of Tishman, and Joseph Garron, executive vice-president and chief operating officer of Tishman. 1 Hunio reported directly to Garron.

STATEMENT OF THE CASE

The complaint in this case was filed on August 4, 1988, and amended on December 5, 1990. As amended, it stated five causes of action: (1) that Hunio was constructively discharged in breach of an implied-in-fact employment contract guaranteeing his discharge only for good cause; (2) that Hunio's alleged constructive discharge was in breach of the implied covenant of good faith and fair dealing; (3) that Tishman intentionally caused Hunio to suffer emotional distress; (4) that Hunio was constructively discharged because of his age, in violation of the California Fair Employment and Housing Act ("FEHA"; Gov.Code, § 12900 et seq.); and (5) that Hunio was harassed because of his age in violation of FEHA. Hunio dismissed the third cause of action prior to the trial.

The jury trial lasted more than two months. After eight days of deliberation, the jury returned a nine to three verdict in Hunio's favor on all causes of action, awarding Hunio a total of $7.1 million--$2.1 million in economic damages, $4 million in emotional distress damages, and $1 million in punitive damages.

The trial court denied Tishman's motion for judgment notwithstanding the verdict ("JNOV"), but conditionally granted Tishman's motion for a new trial unless Hunio accepted a $2 million remittitur of his emotional distress damages award. After Hunio accepted the remittitur, the trial court denied Tishman's motion for a new trial. The trial court later awarded Hunio $1,163,457 in attorney fees and costs and an additional $591,780 in prejudgment interest. Tishman filed a timely notice of appeal.

FACTS

Hunio began employment with Tishman in June 1960. At the time he filed his complaint, Hunio had served Tishman for 27 years, was 56 years of age, and had attained the position of first vice-president at Tishman with an annual salary of $104,000. His salary was the result of continuous pay increases over the years and represented the rewards of age and seniority. Hunio testified that he had been promised lifetime employment and that he was looking forward to retirement in six or seven years. His position was the third highest in Tishman's California operation.

In 1986, Hunio was assigned to the 30-story, $40 million Grand Promenade project at the request of Tishman's client, Goldrich & Kest. He was assigned as both the project executive and the project manager. In such position, he was the highest ranking Tishman executive at the job site. Hunio testified that he started having difficulties with Goldrich & Kest in early 1986. He testified he told Garron that Goldrich and Kest were very abrasive and abusive and that Garron instructed him that if this conduct continued to "just walk right out of the meetings."

On June 18, 1987, Hunio walked out of a meeting with Goldrich & Kest. Hunio testified that, after a particularly vilifying session, he said to Sol Kest: "Gentlemen, we have another couple of years to go on this project. Stop behaving like this. Let's all conduct ourselves like gentlemen, because I'm not going to take this kind of behavior for two more years." Sol Kest then said, "If you don't like it, don't wait two months, don't wait two weeks, don't wait two days. Get out now." Hunio walked out and called Garron.

On June 22, 1987, Hunio requested that Garron reassign him to another project because "[t]he owners' reps and I do not get along, and they have stated: if you don't like it, get out. So, I am getting out. Thus, they will be satisfied and so will I." Garron met at the job site with the owners and then told Hunio to return because the owners did indeed want him. When Hunio refused to reconsider his decision, Tishman brought in another employee, George Noonan, as the project manager. After turning the project over to Noonan, Hunio went on a previously scheduled vacation.

Upon his return from vacation, Hunio assisted on a number of projects. On September 29, 1987, Hunio was called into Bolsky's office and was informed that there was no project to put him on and that, if Tishman could not find a project to put him on, they would have to consider letting him go. Bolsky told him that Hunio's high salary was also a problem. The following day, Hunio met with Garron and was told a decision was made to terminate him. He was told he would be given severance pay and that he could use his Tishman offices to get a new job. He was given the option of one large check and no benefits or four monthly checks and continued benefits until February 1. He chose the latter option.

The next day, Hunio was told by Garron that he would receive a letter of recommendation. He was further told that, although Tishman could not continue to carry him on the payroll, he was not to inform potential employers of this fact.

On October 2, 1987, Bolsky said Hunio was "not terminated," but that he was "on notice" that he had to leave Tishman. He was advised to "see what is out there." He was told that his pay over four or five months should be "consider[ed] severance pay." When the Pico Roxbury project came up, a younger man in his 20's was assigned to it instead of Hunio. Hunio offered to relocate, take a salary reduction, or take an unpaid leave of absence until things got better in order to save his job. This offer was rejected. He was denied a year-end bonus. He was told that, if a job came up, he would be retained, but that he should determine an end date. He began to see a psychiatrist in October.

Younger men were put in charge of Tishman jobs on the Ronald Reagan State Building and the Carlisle project. Hunio testified he was shocked and demoralized each time younger men were assigned jobs that he was capable of doing.

In late January 1988, just before Hunio thought he would have to leave, he was assigned to three new minor projects that had come up and told by Bolsky to forget all previous conversations about looking for a job elsewhere. Hunio testified that he did not know from day to day whether he was being retained or let go because, although Bolsky said to forget about looking elsewhere, Bolsky started to blame Hunio for the loss of the Grand Promenade project. From January 22nd to March 23rd, Hunio worked on the three minor projects to the apparent satisfaction of Tishman.

On March 23, 1988, unable to bear the uncertainty of unemployment after 27 years on the job, Hunio entered a psychiatric hospital. His physicians testified that it was the repeated inconsistent, ambiguous and conflicting messages from Hunio's superiors coupled with the threat of the loss of his career, his retirement and his lifetime medical benefits which caused him to suffer a severe depression. Hunio's doctor told him it would be detrimental to his health and would seriously undermine his psychiatric therapy for him to return to work at Tishman. Accordingly, on April 1, 1988, while hospitalized, Hunio resigned.

Tishman responded to Hunio's resignation letter by stating that Hunio had not been terminated under any circumstances and that Hunio should immediately take advantage of Tishman's disability program. Hunio did not do so and instead maintained the position that Tishman's conduct had effectively terminated his employment.

ISSUES

The issues presented essentially break down into four. First, whether the trial court erred in failing to grant Tishman's motion for JNOV on the first, second, and fourth causes of action on the ground that there was no substantial evidence that Hunio was constructively discharged; second, whether the trial court erred in failing to grant Tishman's motion for JNOV on the ground that there was no substantial evidence that Tishman intentionally discriminated against Hunio because of his age; third, whether the trial court erred in denying Tishman's motion for a new trial on the grounds that (1) the record was infected with inadmissible hearsay evidence, including a litigation diary reflecting Hunio's version of the facts, (2) the trial court failed to instruct the jury on certain essential issues, (3) the trial court gave a jury instruction prejudicial to Tishman that was allegedly justified neither by the facts nor the law, and/or (4) the damages award of $5.1 million was excessive; and fourth, whether the trial court erred in awarding Hunio $591,780 in prejudgment interest and $1,163,457 in attorney fees and costs.

I

Tishman alleges that the trial court erred in failing to grant its motion for JNOV on the first, second, and fourth causes of action on the ground that there was no substantial evidence that Hunio was constructively discharged. In so asserting, Tishman refers this court only to the evidence which was most favorable to...

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