Passantino v. Johnson and Johnson

Decision Date27 April 2000
Docket NumberNos. 97-36191,98-35036,s. 97-36191
Citation212 F.3d 493
Parties(9th Cir. 2000) JENNIFER L. PASSANTINO, and the marital community; CHARLES PASSANTINO, and the marital community,Plaintiffs-Appellees-Cross-Appellants v. JOHNSON & JOHNSON CONSUMER ORDER AND PRODUCTS, INC., dba Customer Support Center, Defendant-Appellant-Cross-Appellee. UNITED STATES OF AMERICA, Intervenor
CourtU.S. Court of Appeals — Ninth Circuit

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[Copyrighted Material Omitted] COUNSEL: Steve B. Berlin, Ronald J. Holland, Terry Chapko, Katherine C. Franklin, Littler, Mendelson, et al., Seattle, Washington; Susan L. Barnes, McCay, Chadwell & Matthews, Seattle, Washington; Paul G. Ulrich, Ulrich, Kessler & Anger, Phoenix, Arizona; for the defendants-appellants.

Marsha S. Berzon, Altshuler, Berzon, Nussbaum, Berzon & Rubin, San Francisco, California; John R. Connelly, Jr., Victoria L. Vreeland, Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim, Tacoma, Washington; for the plaintiffsappellees.

David O. Ogden, Marleigh D. Dover, and Dana J. Martin, Department of Justice, Washington, D.C., for the intervenor.

Elliot L. Bien and E. Elizabeth Summers, Bien & Summers, Novato, California, for amicus curiae Chamber of Commerce of the United States.

Appeals from the United States District Court for the Western District of Washington; Robert J. Bryan, District Judge, Presiding. D.C. No.CV-96-05044-RJB

Before: Betty B. Fletcher, Stephen Reinhardt, and Sidney R. Thomas, Circuit Judges.

Opinion by Judge Reinhardt; Partial Concurrence and Partial Dissent by Judge Thomas

Prior Report: 207 F.3d 599


Part VIII B of the opinion, concerning front pay damages, has been amended.

REINHARDT, Circuit Judge:

Defendant, Johnson and Johnson Consumer Products, Inc. (hereinafter CPI), a subsidiary of Johnson & Johnson, appeals the district court's decision and order entering judgment for plaintiff, Jennifer Passantino (hereinafter Passantino), after a jury awarded her substantial damages. We affirm the district court's decision in all respects but one. We remand for a new trial on the punitive damages issue in light of the Supreme Court's decision in Kolstad v. American Dental Association, 119 S.Ct. 2118 (1999). With respect to the other issues on this appeal, we hold that venue was proper, that the evidence was sufficient to support the jury's finding that CPI retaliated against Passantino, that the district court did not abuse its discretion in admitting a taped interview into evidence, that the district court did not err in its jury instructions, and that the district court acted within its discretion in allocating all front pay, backpay, and compensatory damages to Passantino's state law claims while allocating the punitive damages to Passantino's Title VII claim. Additionally, we hold that, under Washington state law, the district court did not err in determining the front pay, backpay, and compensatory damage awards. Finally, we affirm the district court's award of attorneys' fees.


Jennifer Passantino began working for Johnson & Johnson Consumer Products Inc. (CPI) in 1979, when she was 25 years old. Over the next 18 years, she rose through the ranks at CPI to become one of its most successful female managers, and was characterized by executives as "a leader in her field." She was personally responsible for selling $12 million in product annually, within a division with total sales of $48 million. Her success is all the more remarkable because she worked within CPI's "military" division, characterized by one of its own executives as an "old boy network. " In spite of her success, Passantino's career prospects deteriorated rapidly after she complained that her advancement within the company was being limited by sex discrimination.

Passantino started with CPI in 1979 as a Health Care territory manager in the San Francisco Bay area. In 1982, she was promoted to territory manager for northern California and Washington state in the military sales department. After a brief stint in the child development products division, she was asked to return to the military sales department. She became area manager for the western region in the military sales department in 1986. Her title was changed to Western Regional Manager in 1987. In 1988, with CPI's permission, Passantino relocated to Tacoma Washington. She was promoted to National Account Manager in December, 1989, a position she held for the remainder of her employment with CPI.

Passantino maintained a home office, as CPI requested. (Most sales persons within CPI had home offices.) Passantino testified that she was on the "developmental" path, which is the career path for employees within sales who are in line for executive and management positions. Her testimony is confirmed by her performance reviews, which were consistently "outstanding" and "above average." For example, her 1992 performance report which was considered at her May 1993 performance evaluation meeting with her supervisor, Lew Williams, stated that "Jennifer demonstrates very strong selling skills, organizational ability, and good business judgment. She has developed the sales and promotional plan for Key Accounts, generating 12 million dollars in Johnson & Johnson annual volume." It added that she was "well qualified" and should be "strongly considered" for promotions within CPI's parent company, Johnson & Johnson. In fact, Williams discussed several promotional opportunities with her. As the Western regional manager, Passantino was rated the employee with the greatest promotional potential in her division.

Here, it is useful to describe CPI's advancement track in order to help explain Passantino's history with the company. The track was composed of multiple "levels." Level 3 includes mid-level managers, Level 4 includes upper level managers and staff directors, and Level 5 refers to executive and corporate officer jobs. Passantino, as a National Account Manager, held a high-end Level 3 position. Making the step between Level 3 and 4 is very important to staying on the "promotion" track, and Level 4 pays approximately $50,000 more than Level 3. Level 5 positions carry very high compensation, as much as $200,000 more than Passantino's salary at Level 3. In spite of the importance of promotion, the method for determining who was to advance within the company was neither systematic nor fair. Instead, employees were promoted through what the district court called "the worst kind of a good old boy system that allowed discrimination and discouraged reasonable questions about the promotion process."

Despite her qualifications for promotion and her string of positive reviews, Passantino began to suspect that, because of her sex, she had been passed over for several promotions for which she was qualified. Several events gave her reason to suspect discrimination. First, Williams, her supervisor, exhibited sexist behavior. He referred to women buyers as "PMS," "menstrual," and "dragon lady." He also stated that most women probably just wanted to stay home. This sexism was not limited to Williams. Passantino also testified that two coworkers, VanDerveer and Kenan, had a condescending attitude towards women. Most important, during her 1993 performance evaluation meeting, Williams told Passantino that she should consider looking outside the company for employment because he did not believe that either the company or his boss was committed to promoting women.

In 1993, both Passantino and Jackie Upshaw, the only other female manager in the military division, voiced complaints to Williams. First, Passantino complained about the conduct of VanDerveer and Kenan, as well as about Williams' behavior. Upshaw also told Williams that she found his use of crude language troublesome. Both women testified that Williams' response was inadequate; Williams was short and brusque with Passantino and told her that it was her problem to get along with her co-workers.

Following the complaints by Passantino and Upshaw, the offensive behavior of all three men increased both in degree and frequency. Although Passantino's 1993 performance report was good overall, Williams was brusque at the subsequent performance evaluation meeting and gave her a low rating for "relationship with peers."1 From this point on, Passantino felt she was slighted when trying to speak, and was the subject of derision generally -co-workers rolled their eyes at her suggestions, and there were side-bar conversations among other managers that excluded her. In short, after Passantino complained, she was no longer taken seriously.2

In 1994, her opportunities for advancement within the company appeared to further close down. Following Johnson & Johnson's reorganization, Passantino expressed interest in a particular sales administration manager position, but she was not interviewed for the job and the position was filled by a male co-worker about whom she had complained to Williams. In October of that year, Passantino learned about three newlycreated positions (National Commissary Manager, Director of Trade Marketing, and Manager of Sales Administration) that she felt would offer her greater exposure, experience, and higher sales volume than her current position. However, these jobs were filled, before she had a chance to apply and, without being advertised openly, by the two men she had complained of and by a third male employee from outside the division.

In November 1994, Passantino contacted CPI's EEO officer and was warned several times that if she made a complaint, she would have to "live with the burden of coming forward" because the decision to complain "could have many ramifications." In spite of these warnings, Passantino formally complained to Doug Soo Hoo in the Human Resources department. Soo Hoo offered to...

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