Kelly-Zurian v. Wohl Shoe Co.

• Decision Date: 10 February 1994
• Docket Number: Nos. B054032,P,B054838,KELLY-ZURIA,s. B054032
• Court: California Court of Appeals Court of Appeals
• Parties: , 64 Fair Empl.Prac.Cas. (BNA) 603, 64 Empl. Prac. Dec. P 42,933 Kathleen Joycelaintiff and Appellant, v. WOHL SHOE COMPANY, INC., Wohl Shoe Company-Fanfares Shoe Division, Robert Lawicki, etc., et al., Defendants and Appellants.

Page 457

27 Cal.Rptr.2d 457

22 Cal.App.4th 397, 64 Fair Empl.Prac.Cas. (BNA) 603,

64 Empl. Prac. Dec. P 42,933

Kathleen Joyce KELLY-ZURIAN, Plaintiff and Appellant, v. WOHL SHOE COMPANY, INC., Wohl Shoe Company-Fanfares Shoe Division, Robert Lawicki, etc., et al., Defendants and Appellants.

Nos. B054032, B054838.

Court of Appeal, Second District, Division 3, California.

Feb. 10, 1994.

As Modified March 4, 1994.

Review Denied April 28, 1994.

West & Miyamoto and Ronald K. Miyamoto, Oxnard, for plaintiff and appellant

Sonnenschein Nath & Rosenthal, Robert F. Scoular, Alan M. Posner and Laura R. Petroff, Los Angeles, Saltarelli & Steponovich, Michael J. Steponovich, Jr. and Stephen A. Steponovich, Irvine, for defendants and appellants.

KLEIN, Presiding Justice.

Defendant and appellant Robert Lawicki (Lawicki) appeals a judgment entered upon a $125,000 jury verdict in favor of plaintiff and appellant Kathleen Joyce Kelly-Zurian (Zurian) in a sexual harassment case. Defendants and appellants Wohl Shoe Company, Inc./Wohl Shoe Company-Fanfares Shoes Division (Wohl), Lawicki's former employer, separately appeal, contending Wohl is not liable for Lawicki's conduct. Zurian also appeals, contending she is entitled to a new trial against Wohl on the issue of punitive damages.

The issues presented include an employer's liability for sexual harassment by a supervisory employee. Due to Lawicki's status as a supervisor, Wohl is strictly liable to Zurian in compensatory damages for Lawicki's misconduct. (Gov.Code, § 12940, subd. (h)(1).) However, Zurian is not entitled to recover punitive damages against Wohl because Lawicki, although a supervisor, was not a managing agent of Wohl and there was no ratification. (Civ.Code, § 3294, subd. (b); Agarwal v. Johnson (1979) 25 Cal.3d 932, 950, 160 Cal.Rptr. 141, 603 P.2d 58; Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 822-823, 169 Cal.Rptr. 691, 620 P.2d 141.)

For the reasons discussed below, the judgment is affirmed in full.

FACTUAL AND PROCEDURAL BACKGROUND

Viewing the evidence in the light most favorable to the judgment (Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488, 492, fn. 1, 102 Cal.Rptr. 795, 498 P.2d 1043), the evidence showed:

In May 1979, Zurian was hired by Wohl as a manager trainee in its Fox Hills store. In 1980, she was promoted to manager of the Palos Verdes store where she remained about four years. In 1984, at the age of 25, Zurian was promoted to regional supervisor in charge of six different stores in the Los Angeles area.

At the time of Zurian's 1984 promotion, Lawicki was a company administrator and in charge of two supervisors, including Zurian.

During Zurian's first week in that new position while on a drive to a store in Oxnard, Lawicki put his hand on her knee and asked if she "fooled around." Zurian responded she wished he would leave her alone and that she just wanted to have a business relationship. She did not report the incident to anyone in the company at that time.

For the next three years, Lawicki sexually harassed Zurian both physically and verbally.

                He would come up from behind and put both his hands on her breast.  He would pinch her buttocks as he walked by.  He grabbed her crotch and asked "if [she] was wet."   He made other graphic inquiries such as:  "what kind of lingerie [she] was wearing underneath her clothes," "how was [her] pussy," "if [she] got any last night," "if [she] took it in the ass," "if [she] swallowed," and "if [she] gave head."
                

At no time did Zurian engage in any sexual activity with Lawicki. ¹

Zurian's testimony of harassment was corroborated by other witnesses. Koroush Dawoodi, a former Wohl manager, testified in 1987 he heard Lawicki state in front of Zurian, regarding a customer: "I bet you ten bucks she's not wearing underwear." Diana Carol Moon, another former Wohl employee, testified she heard Lawicki state to Zurian about another woman: "I wonder if she takes it up the ass."

In July 1987, Zurian complained to Fred Zarf, vice president in charge of personnel at corporate headquarters in St. Louis. Zurian asked Zarf not to mention her name in connection with the matter.

In late August 1987, Zurian discussed Lawicki's conduct with two visiting Wohl managers, Rich Donnelly and David Neri. Donnelly wanted Zurian to confront Lawicki directly but Zurian refused. Nonetheless, at the conclusion of a management meeting at which Zurian and Lawicki were present, Donnelly asked Zurian if there was anything she wanted to bring up. Zurian left the room crying. The next day before their departure, Donnelly and Neri took Zurian aside and told her they had spoken to Lawicki and he wasn't going to do it anymore. They said Lawicki knew she had made a complaint but that she shouldn't feel badly about working with him.

Thereafter, Zurian told Joseph Ennis, a vice president in St. Louis, of Lawicki's behavior. Ennis said the company's hands were tied because Zurian was unwilling to confront Lawicki face to face, and therefore nothing could be done. Zurian was upset and asked what more she had to do and what more she had to give in order to be believed. Ennis said, "well, you don't have any video movies, do you?"

Ennis did not offer her another position in the company. Zurian tendered her resignation on September 3, 1987.

After her resignation, Zurian suffered from panic attacks consisting of anxiety, tightness in the chest and heart palpitations. She was depressed and unable to sleep. She began drinking and developed a serious drinking problem. She was diagnosed with post-traumatic stress disorder. She experienced recurring and intrusive recollections of the events, recurring nightmares of the sexual harassment and flashbacks of the events.

Zurian was unemployed for three months. Her salary, upon her termination from Wohl, was $28,000 per year.

In December 1988, Zurian commenced this action against Wohl and Lawicki, alleging sexual harassment and discrimination in employment, constructive wrongful discharge, intentional infliction of emotional distress and negligence.

The matter came to trial in July 1990 and was tried to a jury. The issue of punitive damages was bifurcated.

The jury rendered a verdict in favor of Zurian and against Lawicki, awarded compensatory damages in the amount of $125,000, and found Lawicki's conduct involved oppression or malice. ² The jury returned a verdict in favor of Wohl. Judgment on the verdict was filed August 2, 1990.

The parties filed various post-trial motions. On September 25, 1990, the trial court granted Zurian's motion for judgment notwithstanding the verdict (JNOV) against Wohl in the sum of $125,000. It also granted Zurian's motion for attorney fees as against Wohl and Lawicki in the sum of $103,000. Zurian's motion for a new trial on the issue of punitive damages against Wohl was denied. The trial court also denied Lawicki's The order granting JNOV against Wohl was filed October 9, 1990. Thus, Wohl became a party to the $125,000 judgment obtained by Zurian against Lawicki.

motions for JNOV and new trial. Wohl's motion for attorney fees also was denied.

Lawicki, Wohl and Zurian each appealed.

Lawicki filed notice of appeal on October 22, 1990, from the August 2, 1990 judgment and the September 25, 1990 order granting Zurian's motion for attorney fees.

Zurian filed notice of appeal on November 13, 1990, seeking review of the August 2, 1990 judgment on the verdict in favor of Wohl and the September 25, 1990 order denying a new trial against Wohl.

Wohl filed notice of appeal on November 21, 1990, from the September 25, 1990 order granting Zurian's motion for JNOV, awarding her $103,000 in attorney fees and denying Wohl attorney fees.

I. LAWICKI'S APPEAL

CONTENTIONS

Lawicki contends: (1) the trial court abused its discretion in its rulings on motions in limine which caused erroneous exclusion and admission of evidence; (2) the trial court abused its discretion in limiting the length and scope of the cross-examination of Zurian; (3) no substantial evidence exists which can support the jury verdict against Lawicki; (4) no substantial evidence exists to support the amount of the jury verdict; (5) Lawicki was prejudiced by erroneous instructions submitted to the jury and by the trial court's refusal to give proper jury instructions submitted by Lawicki; and (6) Lawicki is entitled to a reversal of the judgment for the trial court's erroneous denial of his motion for new trial.

DISCUSSION

1. No merit to Lawicki's challenge to sufficiency of evidence to support verdict against him.

a. Substantial evidence exists of pervasive sexual harassment.

Lawicki argues Zurian failed to introduce evidence which would establish the pervasive and continuing nature of the alleged harassment. Lawicki asserts his alleged acts were intermittent at worst, and there were significant periods when he was "on his best behavior." The argument fails.

When the workplace is permeated with discriminatory intimidation, ridicule and insult that is " 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' " the law is violated. (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295, 301.)

The instant conduct easily meets this test. Rather than a few isolated episodes, the harassment by Lawicki persisted for over three years. Further, the harassment was not limited to verbal abuse. Lawicki also touched Zurian's breast and crotch and he regularly pinched her buttocks. Accordingly, we reject Lawicki's contention there was no substantial evidence of pervasive sexual harassment.

b. No merit to Lawicki's arguments re credibility.

Lawicki argues at length the jury should have believed him and not Zurian.

Because a reviewing court will not reweigh the evidence or pass upon the credibility of witnesses (Mosesian v. Bagdasarian (1968) 260 Cal.App.2d 361, 368, 67 Cal.Rptr. 369), and...