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Court of Appeal, Second District, Division 5, California.

Samuel HARRIS, Plaintiff and Respondent, v. HUGHES AIRCRAFT COMPANY, Defendant and Appellant.

No. B070235.

Decided: October 04, 1993

Paul, Hastings, Janofsky & Walker, Paul Grossman, J. Al Latham, Jr. and George W. Abele, Los Angeles, for defendant and appellant. Law Offices of Jonathan W. Biddle and Donald E. Warner, Jr., Beverly Hills, for plaintiff and respondent.

Defendant and appellant Hughes Aircraft Company appeals from the judgment following a jury trial in favor of plaintiff and respondent Samuel Harris in his action for wrongful termination based on racial discrimination.   Hughes Aircraft maintains that substantial evidence does not support the judgment, the damages awarded were excessive, and the trial court erred in failing to grant its motion for new trial.   In the published portion of this opinion, we conclude substantial evidence supports the judgment.   In the unpublished portion, we conclude the damages were not excessive and the trial court properly denied the motion for new trial.   We affirm.


In September 1990, Harris filed a complaint for wrongful termination against Hughes Aircraft.   An amended complaint alleged the following causes of action arising from Harris's termination:  (1) breach of contract;  (2) breach of the implied covenant of good faith and fair dealing;  (3) violation of public policy;  (4) racial discrimination in violation of state law;  (5) intentional infliction of emotional distress;  and (6) interference with contract.   Trial commenced on May 4, 1992.   After a two-week trial, the jury returned a verdict in favor of Harris, awarding him $140,000 in lost wages, $250,000 in emotional distress damages, and $3.5 million in punitive damages.   Hughes Aircraft moved for judgment notwithstanding the verdict (JNOV), new trial, or remittitur.   The JNOV and new trial motions were denied, conditioned upon Harris's acceptance of a remittitur of the punitive damages to $975,000.   Harris accepted the remittitur.   This timely appeal followed.


We view the facts adduced at trial in the light most favorable to the judgment, giving a prevailing plaintiff the benefit of every reasonable inference, and resolving conflicts in support of the judgment.  (Sanchez–Corea v. Bank of America (1985) 38 Cal.3d 892, 906–907, 215 Cal.Rptr. 679, 701 P.2d 826;  Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429, 45 P.2d 183.)   These presumptions are given added support by a trial court's denial of a losing defendant's motion for new trial.  (Lerner v. Glickfield (1960) 187 Cal.App.2d 514, 526, 9 Cal.Rptr. 686.)

At the time of trial, Harris was a 37–year–old Black male possessing a 1976 undergraduate degree from California State University Northridge with a major in Pan–African Studies and a minor in English.   In 1978, Harris commenced his employment with Hughes Aircraft as an assistant accountant at a starting salary of $220 per week.   Harris satisfactorily completed his six-month probationary period.   He was assigned to Hughes Aircraft's Missile Systems Group.

Harris's performance was reviewed by his supervisor in a face-to-face meeting during 1982.   At this performance review meeting, Harris's subordinate was permitted to be present.   The subordinate had been asked to evaluate Harris, which was not normal company practice.   Harris complained of unfair treatment and raised the subject of racial discrimination.   The supervisor apologized;  the initial written review was destroyed and another performance evaluation was scheduled.   Harris also complained that his salary increases had not reflected the performance evaluations which he had previously received.

In 1983, Harris was directed to meet with Robert Cole, a representative of the Equal Employment Opportunity Commission (EEOC).   Cole explained to Harris that Cole was performing an analysis of minority employees who had worked for Hughes Aircraft in their current positions for five years or longer and who had been unable to obtain promotions.   Harris had in the past applied for six promotions to vacant positions within the company and had received none.

Harris then moved laterally to the Costs Input Systems Group.   Harris's performance was again evaluated on December 9, 1983.   He received a favorable performance review.   On February 14, 1985, another review was conducted.   Harris was rated “excellent” in his position as an assistant accountant.   Harris complained in writing that he had been in his present classification for six years and had not been upgraded.   Harris noted a White employee trained by him had been upgraded before him.   Harris was told by his supervisor to keep up his good work.

In late 1985, Harris was approached to join the company's AMRAM 1 Division.   Harris expressed concern that he would be leaving a secure position and did not wish to join a group where he probably would be laid off.   He was assured to the contrary.   He joined the AMRAM Division in a lateral move in September 1985.   In his December 1985 evaluation by the company's Costs Input Systems Group, Harris again complained about the company's failure to promote him.   Harris provided statistics demonstrating that he was performing the same work tasks as a White colleague, whom he had trained and who had been promoted.

The January 1986 performance evaluation was performed by Harris's new supervisor in the AMRAM Division.   Harris was rated “good.”   Harris complained that he was under the impression he was being promoted but had not received a pay raise.   He asked what he had to do to get a raise.   He was told to be patient.   Harris applied for two new positions on June 14, 1985, and a third position on July 15, 1985.   He did not receive the first two positions.   Ultimately, Harris was given the third position, a program analyst control position in the AMRAM Division, which he accepted.   It was recorded on the first two applications that Harris had already accepted another position (and was, therefore, unavailable to fill the position), which was untrue.   The third position was the lowest grade of the three.   In fact, the description for the position explained that it was an entry level position.

In July 1986, Harris was informed that he was to be laid off due to a shortage of work.   Harris had trained a White former secretary to perform the same tasks he had been performing.   Harris complained about the layoff and retained legal counsel.   Harris's counsel sent a letter protesting the layoff to Hughes Aircraft.   Harris was given two weeks to find another position.   He was told not to charge his time during that period to active projects, but to an overhead account.   At the end of the two-week period, Harris was told that his layoff had been delayed.   He continued to be paid weekly from an overhead account until he was offered another position in the company in September 1986.   Liz Strong, a department manager, had called Harris and informed him that there was an employment possibility in the administration section of the Missile Systems Group.   Harris met with her and was offered a position as her administrative assistant helping with the summer hiring program and the safety committee, as well as other special projects.

Initially, Harris did not accept Strong's offer because he had been offered other employment outside the company at higher pay.   Strong persuaded him to accept the position, arguing that the benefits were superior and he had already established himself with the company.   She specifically mentioned his seniority and alluded to the fact that he could retire from Hughes Aircraft.   He was offered a $35 per week raise.   By that time, Harris had been offered $500 per week at another company, substantially more than he was making with Hughes Aircraft.   Strong contacted him again and offered him a grade-level increase from grade 7 to grade 8 with an $87 per week raise.

Because Harris was a member of a minority group, his layoff was reviewed by Hughes Aircraft's layoff review board pursuant to a formal corporate policy.   Unbeknownst to Harris, Strong had been ordered to create a position for Harris in her department, even though she did not need an additional employee.   In connection with his layoff review, a salary study was performed which demonstrated that Harris was underpaid for someone of his educational background and experience.

When Harris started in Strong's department, it was composed of the following individuals:  Strong, Laura Fenmore, an administrative assistant to Strong, a part-time employee named Kenji who performed data input, Vicki Dahlgren, the department secretary, Bob Folk, the facilities manager, and Joan Gouch, Folk's administrative assistant.   All of these employees were White, except Kenji.

By September 1987, Fenmore had transferred out of the department and Kenji had been laid off.   Harris assumed Fenmore's and Kenji's responsibilities.   Harris also developed an affirmative action plan for the company and attended a human resources workshop for supervisors.

On August 3, 1987, Harris received his first performance evaluation from Strong.   It was the first time that Harris had ever been evaluated at mid-year.   He was rated a “3” (exceeds expectations) and given a special merit salary increase.

At some point, Robert Baum, a White male, joined the department and Harris began to report directly to him.   Late in 1987, Harris told Baum that he deserved a promotion because he had accomplished a great deal in his minority recruiting and taken over the work of Fenmore and Kenji.   Baum agreed and told Harris that he would look into it.   Harris also pointed out that Dahlgren, the department secretary, made only $12 per week less than Harris and she had no college degree.   By this time, Harris had ten units toward his master's degree.   Over time, Harris and Baum had similar conversations on approximately ten occasions.   Baum told Harris that he had a “legitimate gripe.”

On January 14, 1988, Harris was evaluated for the 1987 calendar year.   Harris included on his self-evaluation form under “accomplishments” that he had increased the number of minorities hired by Hughes Aircraft over the previous period.   He included the comparable percentages.   Strong told him that such statistics did not belong on his form and instructed him to delete the figures.   Harris met with Baum to discuss his performance review.   Baum told him that Strong had made Baum change his original evaluation, which was more favorable (“exceeds expectations”) than the one shown to Harris (“meets standards”).   Baum told Harris not to get mad, because Baum had a plan to work out this problem.

At one point, Strong questioned Harris concerning his tardiness.   He had been coming to work at approximately 8:17 or 8:18 a.m., which he understood to be two to three minutes late, assuming an 8:15 to 5:15 working day.   Harris did not understand why that was a problem.   He discussed the matter further with Baum and explained that he took his children to school in the morning.   Baum told him that there was no problem and to work an extra ten minutes during lunch or after work.   Baum noted that Harris also was not compensated for his evening recruiting appearances which “balanced out” the tardiness.   In fact, at approximately the time Harris began working for Strong, working hours had been changed to 8:00 a.m. to 5:00 p.m.   However, no one had informed Harris.

Harris was next evaluated on November 29, 1988.   Baum told Harris again that Strong had instructed him to downgrade his initial evaluation of Harris.2  Harris was angry, and he and Baum immediately conferred with Strong to attempt to convince her to commit to a plan for Harris's promotion to senior administrative assistant.   Baum believed that Harris was one of the most knowledgeable employees he had ever supervised, was performing his duties in a timely and professional manner, and was a dedicated employee.   Hughes Aircraft's formal policy was to leave the evaluation process to immediate supervisors.   In addition, it was company policy to communicate any criticism in an ongoing process with an employee and not to present negative information to the employee only during his annual review.   Hughes Aircraft also included in its practices a policy of corrective action, to allow an employee an opportunity to remedy a problem.   A separate policy required that if changes were made to an evaluation, they should be acknowledged by both the employee and his supervisor.   Finally, although it was company policy to maintain a personnel file on each employee, Strong kept a “shadow file” on Harris on her desk.   She placed information concerning Harris in that file, but not in his personnel file.

Baum also received a negative review from Strong in November 1988.   For the first time in his career with Hughes Aircraft, Baum did not receive a salary increase.

During 1988, Harris began to notice that White employees with less time in comparable positions were making more money than he was.   By 1989, one administrative assistant who had been employed as such for two to three months (compared to Harris's nearly three years) was making $659 per week when Harris was making $632 per week.   That same employee had no college degree.   In addition, Harris noticed that Gynene Smith, a White female drafting supervisor, was allowed to transfer into his department from Tucson, despite a formal transfer freeze.   It appeared to Harris that White employees were allowed to transfer and Black employees were not.3  Smith had no prior relevant experience and told Harris that she was frightened to take on the job.   Harris essentially trained her for the position.   Strong told Smith, during the hiring process, that Harris “might not be around.”

Harris again met with Strong in February 1989, to discuss his career objectives.   Baum had announced his retirement and Harris assumed that he would take over Baum's responsibilities.   Strong informed him that he would not.   Strong suggested Harris specialize in a particular area and mentioned that he might transfer to the Human Resources Department to receive this training.   When Harris said that he had no interest in transferring to Human Resources, Strong informed him that his services were no longer needed in her department.   At trial, Strong testified that she had never promoted a Black employee under her supervision, but had promoted White employees.

Harris was invited to join the board of the National Society of Black Engineers—U.S.C.   When he showed the letter of invitation to Strong, she told him that he was not qualified.   Harris applied despite Strong's comment and was appointed to the board.   He also received numerous awards from similar groups for his recruiting work.

A Black Caucus was formed at the company.   Meetings were attended by company executives and Black employees.   The purpose of the group was to discuss affirmative action and advancement for Blacks within the company.   When Strong learned that the Black Caucus was in formation, she called Harris into her office, asked him about the group, and instructed him to keep her informed of any developments in the group.

As a result of Harris's 1989 performance review, he received a double grade increase to grade 11 with no salary increase, but his salary was subsequently increased to $632 per week.   The salary increase would have been greater if his review had been more favorable.   At that time, the range in salary for Harris's grade was $504 to $804 per week.

In the interim, during 1987, Harris began working a second job for the Los Angeles County Probation Department as a group supervisor on weekends, from 7:00 a.m. to 3:00 p.m., in order to supplement his income from Hughes Aircraft.   However, his seven-day work schedule adversely affected his marriage, and he and his wife separated in April 1989.   He had been unable to attend family gatherings or church on Sundays.   In February 1989, he quit his employment with the County in response to his wife's unhappiness.

On August 24, 1989, Harris's wife called and informed him that she and their two children were returning home after a four-month separation.   Harris was ecstatic.   That same day, Strong called Harris into her office and told him that he was a candidate for layoff.   A company-wide reduction in force was in effect.   The layoff notice recited that the reduction in force was due to a lack of work in the department, even though the work in the department had actually increased.   Harris was terminated effective October 6, 1989.   Although Harris expressed interest in a downgraded or reclassified position, he was never contacted about those options.   The company's formal layoff policy was to “give recognition to performance, skills, and length of company service in determining which employees in each work group will be laid off, retained or transferred.”   Layoffs of minority group members and those employees with 12 or more years of service were required to be approved by the department, the division manager and the group president/corporate executive.   Layoffs were to be utilized only for lack of funds or work.

On September 21, 1989, Harris filed a complaint with the Department of Fair Employment and Housing, alleging racial discrimination in his termination.

Harris testified that the emotional effects of the termination were devastating.   Shortly after his layoff became effective, Harris's wife again left with the children and filed for divorce.   He was unsuccessful in his many attempts to find employment.   During 1990, his total gross income was $4,872, mostly from painting jobs.   He frequently ate at the homes of various family members.   He lost his own home late in 1990.   His debts totalled $12,000 to $13,000.



Although couched in terms of a legal causation argument, Hughes Aircraft in essence contends that substantial evidence does not support the finding of intentional racial discrimination against Harris.   We begin our analysis with an overview of the law in this area.   Both state and federal law make it unlawful for an employer to discharge a person on the basis of race, or otherwise “ ‘discriminate against the person [on the basis of race] in compensation or in terms, conditions or privileges of employment.’ ”  (Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1316, 237 Cal.Rptr. 884;  Gov.Code, § 12900 et seq. [the California Fair Employment and Housing Act];  42 U.S.Code, § 2000e et seq. [Title VII of the Federal Civil Rights Act].)   California courts have relied upon federal law to interpret the state statute.  (Mixon, supra, at pp. 1316–1317, 237 Cal.Rptr. 884.)

 In a disparate treatment case, where an employer treats an employee less favorably than other employees because of race, “an employee must show that the employer harbored a discriminatory intent.”  (Mixon, supra, 192 Cal.App.3d at p. 1317, 237 Cal.Rptr. 884.)   An employee may prove discriminatory intent either by establishing that unlawful discrimination was a motivating factor in the adverse employment decision (a so-called “mixed-motives” case) or by establishing that the employer's stated reason for the adverse employment decision is pretextual (a so-called “pretext” case).   (Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 247, fn. 12, 109 S.Ct. 1775, 1789, fn. 12, 104 L.Ed.2d 268 (plur. opn. of Brennan, J.).)   This case is a pretext case.   In a pretext case, a three-part procedure for the allocation of the burden of production and an order for presentation of proof has been established:  (1) the employee must establish a prima facie case of racial discrimination by a preponderance of the evidence;  (2) the employer must offer a legitimate nondiscriminatory reason for its actions;  and (3) the employee must prove that this reason was a pretext to mask an illegal motive.   (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668.)

“The McDonnell Douglas model for a prima facie case is as follows:  The complainant must show ‘(i) that he belongs to a racial minority;  (ii) that he applied and was qualified for a job for which the employer was seeking applicants;  (iii) that, despite his qualifications, he was rejected;  and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.’ ”   (Mixon, supra, 192 Cal.App.3d at p. 1317, 237 Cal.Rptr. 884.)   This test has been adapted to a variety of contexts, including discharge cases.  (Id. at p. 1318, 237 Cal.Rptr. 884.)  “The prima facie case for discriminatory discharge can therefore be stated thusly:  (1) complainant belongs to a protected class;  (2) his job performance was satisfactory;  (3) he was discharged;  and (4) others not in the protected class were retained in similar jobs, and/or his job was filled by an individual of comparable qualifications not in the protected class.”  (Ibid.)

 Establishment of a prima facie case by a preponderance of the evidence creates a rebuttable presumption of unlawful discrimination.  (St. Mary's Honor Center v. Hicks (1993), 509 U.S. 502, ––––, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407, 416.)   This rebuttable presumption places on the employer the burden of producing evidence of legitimate nondiscriminatory reasons for the adverse employment action.  (Ibid.)  The employer, however, bears only a burden of production, not of persuasion.  (Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 254–255, 101 S.Ct. 1089, 1094–1095.)   If the employer fails to introduce evidence of legitimate nondiscriminatory reasons, the trial court must award judgment to the employee as a matter of law.  (St. Mary's Honor Center, supra, 509 U.S. at p. ––––, 113 S.Ct. at p. 2748, 125 L.Ed.2d at p. 417.)   If the employer produces evidence of legitimate nondiscriminatory reasons, the presumption of discrimination created by the establishment of the prima facie case is rebutted and disappears.  (Id. at p. ––––, 113 S.Ct. at p. 2747, 125 L.Ed.2d at p. 416.)   The employee then has the burden of persuading the trier of fact that the reason proffered by the employer was a mere pretext for illegal discrimination, and that race was the true reason for the adverse employment action.  (Ibid.)  The burden of persuasion as to intentional discrimination remains at all times with the employee.  (Ibid.)

The employee may succeed in proving that the proffered reason is a pretext, i.e., that he or she was the victim of intentional discrimination “ ‘either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.’ ”  (Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 664, 8 Cal.Rptr.2d 151 citing Texas Dept. of Community Affairs, supra, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095.)  “In short the trier of fact decides whether it believes the employer's explanation of its actions or the employee's.”  (Mixon, supra, 192 Cal.App.3d at p. 1319, 237 Cal.Rptr. 884.)

 Evidence that the proffered reason is incredible, particularly where incredulity is accompanied by a suspicion of mendacity, may, together with the elements of the prima facie case, be sufficient to support a finding of intentional discrimination.  (St. Mary's Honor Center, supra, 509 U.S. at p. ––––, 113 S.Ct. at p. 2749, 125 L.Ed.2d at p. 418.)   The trier of fact may find intentional discrimination where it determines on the basis of substantial evidence that the employer's proffered reasons are pretextual, but it is not required to do so.  (Id. at pp. –––– – ––––, 113 S.Ct. at pp. 2749–2750, 125 L.Ed. at pp. 418–419.)   No additional proof of discrimination is required to support a ruling in favor of the employee.  (Ibid.)  However, a finding of pretext does not compel the trier of fact to find in favor of the employee.   (Ibid.)  The employee must persuade the trier of fact the employer's proffered reasons were not only pretextual but in fact a pretext for discrimination.  (Id. at p. ––––, 113 S.Ct. at p. 2747, 125 L.Ed.2d at p. 416.)   After a case is fully tried on the merits, the question is whether the employee has by substantial evidence established discrimination by a preponderance of the evidence.  (U.S. Postal Service Bd. of Governors v. Aikens (1982) 460 U.S. 711, 715–716, 103 S.Ct. 1478, 1481–1482.)

 “Pretext” refers to “but for” causation.  (Clark, supra, 6 Cal.App.4th at p. 665, 8 Cal.Rptr.2d 151.)   While an employee need not prove that racial animus was the sole reason for the adverse treatment, the employee must prove by a preponderance of the evidence there was a causal connection between the employee's protected status and the adverse employment decision.   (Mixon, supra, 192 Cal.App.3d at p. 1319, 237 Cal.Rptr. 884.)   No particular type of evidence is required to be presented;  any particular means of proving the existence of a pretext is acceptable.  (Patterson v. McLean Credit Union (1989) 491 U.S. 164, 187–188, 109 S.Ct. 2363, 2378–2379, 105 L.Ed.2d 132.)   Pretext, however, must be established by material evidence.   (Gonzales v. MetPath, Inc. (1989) 214 Cal.App.3d 422, 426–427, 262 Cal.Rptr. 654;  University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1036–1037, 272 Cal.Rptr. 264;  Los Angeles County Dept. of Parks & Recreation v. Civil Service Com. (1992) 8 Cal.App.4th 273, 282, 10 Cal.Rptr.2d 150.)   An employee may not prevail solely on the basis of unsubstantiated suspicions that the employer is lying about its proffered legitimate nondiscriminatory reasons for the adverse employment action.   (Gonzales, supra.)   Nor is it sufficient to demonstrate only that the minority employee is just as qualified as the non-minority employee who received the promotion.  (Los Angeles County Dept. of Parks & Recreation, supra, at pp. 283–284, 10 Cal.Rptr.2d 150.)

 Such pretext evidence may be either “direct” or “circumstantial.”   (Los Angeles County Dept. of Parks & Recreation, supra, 8 Cal.App.4th at p. 283, 10 Cal.Rptr.2d 150.)   Direct evidence may include derogatory racial remarks or a pervasive attitude of racial bias.   However, direct evidence of an employer's intent is very difficult to obtain (Clark, supra, 6 Cal.App.4th at pp. 662, 670, 8 Cal.Rptr.2d 151;   Mixon, supra, 192 Cal.App.3d at p. 1317) and presents an “elusive factual question.” (Texas Dept. of Community Affairs, supra, 450 U.S. at p. 255, fn. 8, 101 S.Ct. at p. 1094, fn. 8.)  “There will seldom be ‘eyewitness' testimony as to the employer's mental processes.”  (U.S. Postal Service Bd. of Governors, supra, 460 U.S. at p. 716, 103 S.Ct. at p. 1482.)   The “smoking gun” of racial animus is rarely available to the litigant given employer sophistication about fair employment laws.  (1 Rossein, Employment Discrimination Law & Litigation, Clark Boardman Callaghan (1990) p. 16–1.)

Circumstantial evidence may include comparative or statistical evidence.   (Los Angeles County Dept. of Parks & Recreation, supra, 8 Cal.App.4th at p. 284, 10 Cal.Rptr.2d 150.)   Circumstantial evidence may include improper “command influence” in the employment action and conflicting testimony by witnesses for the employer.  (University of Southern California, supra, 222 Cal.App.3d at p. 1039, 272 Cal.Rptr. 264.)   Circumstantial evidence may also include a pattern of unfair treatment, including the fact that the employer “never dealt squarely” with the employee from the beginning.  (Lindsey v. Angelica Corp. (1981) 508 F.Supp. 363, 366.)

 In the instant case, Hughes Aircraft contends that there is no substantial evidence to support the jury's finding of intentional racial discrimination because Harris failed to adduce at trial direct evidence of racial animus.   Hughes Aircraft contends that unfair treatment alone is insufficient;  rather, evidence of intentional discrimination must be shown either by racially derogatory remarks or comparative or statistical evidence.   Hughes Aircraft contends that Harris was laid off solely because of a company-wide reduction in force.   Hughes Aircraft maintains that Harris was marked for layoff because he was the least senior employee within his group, with the exception of the secretary, Dahlgren.

Hughes Aircraft misreads the applicable case law in contending that only direct evidence of racial animus (such as racial slurs) or comparative or statistical evidence of disparate treatment of minorities will suffice to prove intentional discrimination.   The intentions of the employer are extremely difficult to substantiate.   Occasionally, an employee will come across direct evidence of racial discrimination in the form of a loose remark, joke, or observation intended to be confidential.   Often this is by happenstance.   (Clark, supra, 6 Cal.App.4th at p. 652, 8 Cal.Rptr.2d 151.)   In others cases, comparative or statistical evidence will persuade the jury that minorities were treated differently than non-minorities.   However, pursuant to the authorities cited above, it is clear an employee may present any admissible evidence to prove either it was more likely that the reason for the adverse employment action was due to racial discrimination or simply the employer's stated reason was “unworthy of credence.”   The employee is entitled to argue any permissible inference from the facts presented.

Here, it would be permissible to infer from the evidence adduced at trial that but for racial animus, Hughes Aircraft would not have laid off Harris.   The jury could fairly conclude that Harris had been subjected to a pattern of unfair treatment during his entire 11–year career with Hughes Aircraft.   He was unfairly targeted for layoff in 1986, when a White employee less senior to him was retained.   Up to that date, Harris had never been promoted, despite good performance reviews.   As a result of his layoff review, he was offered what was described as a wonderful opportunity to work for Strong.   When he was reluctant to accept, the ante was upped until he was offered $85 more per week in the position.   In truth, an internal review of Harris's layoff concluded that his proposed layoff had not been appropriate.   A separate but confidential study of his remuneration demonstrated that he had been underpaid for years.   Strong was told to make room for him whether she wanted him or not.   Strong had no need for Harris in her group at that time.

Not long after Harris was transferred into her group, Strong worked with her supervisors to create a “shadow” or “bootleg” file on Harris, which she kept on her desk.   Derogatory information was placed in the shadow file, but not in Harris's formal personnel file.   Strong ordered Baum to change his glowing review of Harris's performance not once, but twice.   As a result, Harris's overall performance rating was average, instead of above average.   Baum told Folk that Strong might have to lay off Harris and did not want Harris to look good in that event.   Strong admitted ordering Harris to remove from his self-evaluations the statistical record of his accomplishments in affirmative action and lists of awards and commendations.   She told him not to apply for a board position with the National Society of Black Engineers—U.S.C., because he was not qualified.   Harris was paid only $12 per week more than Strong's secretary, who did not have a college degree.

Strong refused to promote Harris.   When Baum retired, Strong refused to consider Harris for the job.   It appears that Smith, a former draftswoman, was allowed to transfer to fill Baum's position even though a company transfer freeze was in existence and despite the fact that she had no relevant experience.   She admitted she had been told at hiring that Harris “might not be around.”   Harris trained Smith for the position.   At the time of the reduction in force, Smith was retained as more senior.

Hughes Aircraft essentially admits that Harris was treated unfairly on many occasions during his tenure with the company.   It seems indisputable that Strong was “out to get” Harris, with the support and advice of her own superiors.   However, Hughes Aircraft maintains that no evidence supports the necessary inference of racial, as opposed to personal, animosity.   We disagree.

Having impliedly rejected Hughes Aircraft's proffered reason for the layoff, the jury then determined whether the pretext masked unlawful racial discrimination.   While there were no racial slurs attributed to Strong, she insisted that Harris report to her concerning the activities of the newly formed Black Caucus.   She directed him not to apply to a Black professional organization.   She directed him to delete from his self-evaluations reference to his successes in affirmative action.   In addition, Strong admitted that she had never promoted any Black employee who reported to her, although she had promoted White employees.   Baum, who opined formally and informally that Harris was doing an excellent job and who confronted Strong about promoting Harris, was given his first “below standards” review in 20 years and took an early retirement.4  These facts, when combined with Strong's calculated plan to lay off Harris, could lead to the permissible inference that Strong was motivated by racial animus.

That racial animus may have had its genesis in the company's abortive 1986 layoff of Harris, which resulted in a potential lawsuit for racial discrimination.   The jury could have concluded on this record that Hughes Aircraft decided at that point to “get it right” the second time and, but for Harris's minority status, he would not have been the target of a layoff scheme.   We have mentioned but a few of the unfair actions perpetrated by Hughes Aircraft against Harris which were introduced at trial.   This evidence of unfair treatment could be considered by the jury in addition to the evidence which constituted the prima facie case.5  Such inferences are patently permissible once the stated reason for the layoff is rejected, especially where Hughes Aircraft is suspected of dishonesty, and particularly in the absence of any other legitimate explanation, such as poor work performance.   We note that this is not a case involving a single adverse employment decision unaccompanied by other evidence of unfair treatment—as are many of the cases cited by Hughes Aircraft.   This case involves a history of unfair treatment resulting in the consistent underpayment of, failure to promote, attempted improper layoff of, and improper influence in the evaluations of Harris.

Stripped to its essentials, Hughes Aircraft's argument is nothing more than a request that we reexamine and reweigh the evidence.   In its briefs, each ostensible damaging fact is cast in a new light and a permissible inference is suggested which is inconsistent with a finding of intentional racial discrimination.   Hughes Aircraft fails, however, to show that such inferences are the only permissible inferences to be drawn by a rational trier of fact.   Obviously, they are not.   Equally obvious is the fact that we cannot and will not reweigh such evidence even when characterized as a purely legal argument such as causation.   Where different inferences may reasonably be drawn from undisputed evidence, the conclusion of the jury or trial judge must be accepted by the appellate court unless the inference was wholly improper.  (Clark, supra, 6 Cal.App.4th at p. 669, 8 Cal.Rptr.2d 151.)   Ultimately, the jury in this matter rejected the official explanation for Harris's layoff—a company-wide reduction in force—as “unworthy of credence” and concluded on the totality of the evidence that the true motive was, at least in part, racial discrimination.   On the facts in this record, such a conclusion is supported by substantial evidence.6



The judgment is affirmed.   Hughes Aircraft shall bear Harris's costs on appeal.


1.   Advance Medium Range Air–to–Air Missile.

2.   There was testimony at trial that Baum told Folk that Strong might have to lay off Harris and did not want him to look good in that event.

3.   Hughes Aircraft introduced documentary evidence purporting to demonstrate that both Whites and Blacks were allowed to transfer on occasion, despite the freeze.

4.   Hughes Aircraft repeatedly argues that Strong was simply a “harsh” boss who treated all her employees roughly, but who did not intentionally discriminate on the basis of race.   The jury could have inferred from the evidence concerning Baum that he was punished with a negative evaluation because he supported the promotion of Harris against the wishes of Strong.

5.   Hughes Aircraft does not contend that Harris failed to marshal a prima facie case of race discrimination.

6.   Hughes Aircraft's citation to an employee's greater burden of supporting allegations of discrimination in the context of a company-wide reduction in force are found in the peculiar context of federal age discrimination cases which have no counterpart in California cases.   (E.g., Aungst v. Westinghouse Elec. Corp. (7th Cir.1991) 937 F.2d 1216, 1220–1221;  Simpson v. Midland–Ross Corp. (6th Cir.1987) 823 F.2d 937, 941;  Ridenour v. Lawson Co. (6th Cir.1986) 791 F.2d 52, 57;  cf. Clark, supra, 6 Cal.App.4th at p. 670, 8 Cal.Rptr.2d 151.)

FOOTNOTE.   See footnote *, ante.

GRIGNON, Associate Justice.

TURNER, P.J., and PEREZ, J., concur.