MARALEEN BRULEE v. LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In February 2007, appellant Maraleen S. Brulee brought suit under the Fair Employment and Housing Act (Gov.Code, § 12940 et seq., (FEHA)) against her employer, the Los Angeles County Metropolitan Transportation Authority (MTA).   She asserted claims for retaliation, hostile work environment and discrimination based on gender, claiming she had been “wrongfully suspended, demoted, involuntarily transferred, and denied [ ] a promotion․”

Brulee's claims for hostile work environment based on sexual favoritism and retaliation were tried to a jury in July 2008.¹  The parties prepared a special verdict form for the jurors' use.   Under its provisions, the jurors were first to address whether there was sexual favoritism in Brulee's work environment.   The jurors answered “no.”   The jurors were next to address the retaliation claim, and answered “yes” to the following questions:  (1) “Did Maraleen Brulee complain that she was being subjected to racial discrimination, gender discrimination or sexual favoritism?”;  (2) “Did MTA, through its employees, engage in conduct that, taken as a whole, materially and adversely affected the terms and conditions of Maraleen Brulee's employment?”;   and (3) “Were Maraleen Brulee's complaints of racial discrimination, general discrimination or sexual favoritism a motivating reason for MTA, through its employees, to suspend, fail to promote, transfer her to San Gabriel, or refuse to increase her annual salary?”   However, to the question whether MTA's conduct was “a substantial factor in causing harm to Maraleen Brulee,” the jurors answered “no.”   Accordingly, the jurors did not proceed to the final questions on the form, viz., “What are Maraleen Brulee's damages?” and whether her supervisor's conduct was undertaken with malice, fraud or oppression.

Brulee contends the verdict was inconsistent and that substantial evidence does not support the jury's finding that MTA's conduct was not a substantial factor in causing harm to her.   We conclude the jury's findings were consistent and supported by the evidence presented.   Accordingly, we affirm.

Factual Background

Certain facts were not in dispute.   Brulee, an African-American woman who was 61 at the time of trial, began working for MTA in September 2001.   In 2002, she received a good performance review and was promoted.   In her new position, she supervised a staff of three, including a woman named Fern Rose. Brulee's supervisor was Ted Montoya.   From 2002 to 2005, Brulee generally received good performance reviews.   In 2004, Rose left MTA and Brulee took on many of her responsibilities.   Montoya supported Brulee's (unsuccessful) attempt to re-classify her position to a higher level.

In September 2005, MTA re-hired Rose to her old position.   This decision was against the recommendation of Brulee, who favored a different candidate for the opening and told Montoya so.   Brulee also told Montoya and his superior she believed Montoya had offered Rose an excessive salary.

Shortly after Rose was re-hired, she complained to Montoya about Brulee's supervision of her.   On October 13, 2005, Robert New, who occupied a position similar to Brulee's but had no direct supervisory relationship over Rose, called Rose into his office.   Brulee, having observed Rose in New's office, asked why he had met with Rose. She accused New of undermining her authority.   Brulee brought Montoya into the discussion.   The next day, October 14, Montoya and Brulee met privately.   Montoya told Brulee that henceforth, Rose would be reporting directly to him.   The following Monday, October 17, Brulee filed a formal complaint with MTA's Equal Opportunity Employment (EEO) office, contending that Montoya's actions constituted gender discrimination or discrimination based on race, and that Montoya treated women with whom he had or was having sexual relationships more favorably in the workplace.²

Immediately after Brulee filed the EEO complaint, Montoya cut off her access to certain software she had previously used to perform her job functions.   One month after the EEO filing, in November 2005, Brulee sought and was denied a promotion.   In June 2006, Brulee was put on leave for two weeks.   When she returned, she was assigned to an office in an older building, which was in a state of disrepair.   In November 2006, she received a negative performance review from her new supervisor, Robert New, and as a consequence did not receive an annual raise.   A subsequent supervisor, Steven Rosenberg, instructed Brulee to change the hours she worked, requiring her to start and leave later.   Paula Faust, the supervisor who replaced Rosenberg, wrote Brulee up for minor infractions.   In 2007, Brulee went out on disability leave, which was her status at the time of trial.

With respect to the retaliation claim, the focus at trial was on the reasons for the changes to Brulee's work environment after she filed her EEO complaint and on the damages she allegedly suffered as a result.   Brulee testified that within days of her filing the complaint, Montoya said she had made his life miserable and that he was going to make sure she was out of his department.   When she asked why her November 2006 application for a promotion was denied, a personnel department representative said it was due to the EEO complaint she filed.³

Brulee further testified that the office to which she was transferred was substantially inferior to the office she previously occupied, suffering from vermin infestation, lead dust contamination and lack of heat.   Her commute became more difficult because use of public transportation was impractical.   She was given no responsibilities for four months.   Afterward, her responsibilities became primarily clerical.   Constant negative feedback from her new supervisors convinced her she was being set up to be fired.   This caused her to suffer from stress, which brought on physical ailments and led to the decision, made under the advice of her physician, to take medical leave.

Brulee's psychologist diagnosed her as suffering from a depressive disorder brought on by MTA's treatment, which led to physical ailments, loss of self-esteem, stress and anxiety.   Her psychologist and physician prescribed an anti-depressant and blood pressure medication.   Brulee's economics expert provided a number of scenarios for damages, dependent on whether she was permitted to return to work after the medical leave ended and whether the jury believed she was entitled to the promotion she sought.   The expert testified that Brulee's probable economic damages-lost salary, benefits and pension-ranged from $21,315 to $452,591.   Brulee also sought damages for past and future medical expenses and emotional or mental distress.⁴

Defense witnesses told a different story.   Montoya testified that a conflict arose with Brulee when he attempted, several days before Brulee filed the EEO complaint, to address ongoing problems with Brulee's management of Rose. According to Montoya, at the October 13 meeting in New's office, Brulee lost control and began yelling at him.   The next day, Montoya tried to smooth things over by meeting with Brulee privately, but Brulee became insubordinate and rather than agreeing to change her behavior, dared Montoya to fire her.   Montoya denied knowing about the EEO complaint when he terminated Brulee's access to the software program, and said that he terminated her access because she no longer needed it to perform her job functions once Rose and her staff had been removed from Brulee's supervisory control.   Montoya subsequently attempted to assist Brulee in getting her access to the software restored, but she rebuffed his efforts and made no affirmative efforts of her own.   Defense witnesses testified that Brulee did not get the promotion she sought in November 2005 because she did not have the minimum qualifications.   Witnesses explained that Brulee was transferred out of Montoya's department to a new position not to retaliate against her for filing a complaint, but to accommodate her refusal to continue working with Montoya.⁵

Montoya and others testified that after the October meetings and Brulee's filing of the EEO complaint, she became uncooperative and unproductive at work.   In her new position, Brulee refused to perform tasks assigned to her and was reluctant to learn new skills.   MTA's witnesses conceded that the building to which Brulee was assigned was in a state of disrepair, but noted that it was scheduled to be torn down and replaced, and that the responsibilities of Brulee's new position included coordinating the move to the new building then under construction.   Rosenberg testified that he asked Brulee to change her work hours slightly in order to be in the office at the same general time as her co-employees.   At one point, New met with Brulee to discuss returning her to her prior position.   Brulee, who had by that time instituted litigation, stated she preferred to wait until the lawsuit made its way through the legal process.

The defense psychological expert, after examining Brulee, reviewing her medical records and administering a series of tests, concluded she had an underlying, long-standing personality disorder that led her to react badly when challenged or criticized at work.   He took issue with Brulee's expert's failure to take into account prior incidents of anxiety, depression and pain that predated her work at MTA. He concluded:  “[I]n terms of causation, those problematic traits would certainly have influenced her response to issues that arose at the MTA, but were not causal.   They were not caused by her experiences there but were preexisting and seemed to have developed at different times in her life.”

DISCUSSION

A. Failure to Move for New Trial

Preliminarily, we address MTA's contention that we are precluded from addressing the issues raised in Brulee's brief because they amount to an indirect attack on the adequacy of the damage award, an issue which cannot be addressed on appeal unless first presented to the trial court by way of a motion for new trial.   We disagree.

The failure to move for a new trial generally precludes a party from complaining on appeal the the damages awarded were either excessive or inadequate.  (Christiansen v. Roddy (1986) 186 Cal.App.3d 780, 789;  Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App.3d 101, 122;  Mendoyoma, Inc. v. County of Mendocino (1970) 8 Cal.App.3d 873, 877.)   It has been said that this rule applies when the appellant's challenge to the amount of damages turns on “the credibility of witnesses, conflicting evidence or other factual questions” (County of Los Angeles v. Southern Cal. Edison Co. (2003) 112 Cal.App.4th 1108, 1121) or on “whether a jury verdict was influenced by passion or prejudice” (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co., supra, 66 Cal.App.3d at p. 122).   As the court in County of Los Angeles v. Southern Cal. Edison Co. explained, when ruling on a new trial motion on the ground of excessive or inadequate damages, a trial court “must weigh the evidence and act[ ] as an independent trier of fact.”  (112 Cal.App.4th at p. 1121.)   Brulee's challenge does not turn on the credibility of the witnesses, conflicting evidence or other factual questions regarding the amount of damages, and she does not allege that the jury was influenced by passion or prejudice.

Moreover, MTA misinterprets the issues raised.   The jury concluded that MTA behaved improperly in the aftermath of receiving the EEO complaint, but found that MTA's conduct was not a substantial factor in causing Brulee harm.   Brulee does not, and could not, contend that the damages awarded were inadequate as the jury, having found no causation, did not reach the issue of damages.   The purely legal issues Brulee raises-whether the responses to the special verdict questions were inconsistent and whether substantial evidence supported the finding of no causation-do not require her to have first sought relief in the court below.  (See, e.g., Cavallaro v. Michelin Tire Corp. (1979) 96 Cal.App.3d 95, 105 [prior objection to inconsistency of verdict not required to preserve issue for appeal];  Mendoyoma, Inc. v. County of Mendocino, supra, 8 Cal.App.3d at p. 878 [“ ‘Generally speaking, any error of law can be raised on an appeal even though a motion for a new trial has not been made.’ ”].)

B. Consistency of Verdict

Where factual findings are irreconcilable, the verdict is “ ‘ “against the law” ’ ” within the meaning of Code of Civil Procedure section 657, subdivision 6, and the remedy is a new trial.  (Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1344;  Campbell v. Zokelt (1969) 272 Cal.App.2d 315, 319.)   Inconsistent results based upon the same set of facts “cannot be permitted to stand.”  (Morris v. McCauley's Quality Transmission Service (1976) 60 Cal.App.3d 964, 970.)   Where the consistency of findings in a special verdict is challenged on appeal, “[the reviewing court does] not imply findings on all issues in favor of the prevailing party, as with a general verdict.”   (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 285.)   Instead, “[t]he verdict's correctness must be analyzed as a matter of law.”   (Ibid.;  accord, Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287, 303.)

We find no inconsistency in the jury's responses to the questions on the special verdict form.   Along with harassment, discrimination and/or retaliatory conduct, causation and damages are essential elements of a FEHA claim that must be established to the jury's satisfaction.  (Trujillo v. North County Transit Dist., supra, 63 Cal.App.4th at pp. 286-287;  Brown v. Smith (1997) 55 Cal.App.4th 767, 783-784;  see CACI No. 2505.)   There is nothing inherently inconsistent about the jury finding on the one hand, that some or all of the changes to Brulee's terms and conditions of employment after she filed the EEO complaint resulted from a desire to retaliate on the part of MTA and, on the other, that any injury allegedly suffered by Brulee was not the result of MTA's conduct.   The verdict could be considered “inconsistent” only if causation and damages were uncontested, or the evidence did not support that Brulee's alleged injuries resulted from other causes.   Brulee raises that issue in the second portion of her brief, contending that substantial evidence did not support the jury's negative response to the question of causation.   It is to that issue we now turn.

C. Substantial Evidence

A party who claims insufficiency of the evidence takes on a “ ‘daunting burden.’ ”  (Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 678, quoting In re Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 328-329.)  “When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.   If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.”  (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics omitted;  accord, Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1489.)  “The substantial evidence standard of review is applicable to appeals from both jury and nonjury trials.”  (Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138, 143.)

To prevail in a tort action, the plaintiff must do more than present evidence of abstract injury;  he or she must establish a causal connection between the injury and the defendant's conduct.  (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 773;  Noble v. Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912, 916;  see Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968[“[T]he burden is on the plaintiff to establish causation.”].) In determining whether the defendant's conduct caused the injury alleged, California applies the substantial factor test of the Restatement Second of Torts.  (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p. 969.)   Under the applicable standard, the defendant's conduct is not a substantial factor in bringing about harm to the plaintiff if the harm would have been sustained in the absence of the wrongful conduct.  (Viner v. Sweet (2003) 30 Cal.4th 1232, 1240.)

There were three components to Brulee's alleged injury:  (1) lost salary, pension and other employment benefits;  (2) past and future medical expenses;  and (3) monetary compensation for emotional or mental distress.   The cause of all components of Brulee's claimed damages was the subject of legitimate dispute at trial.   With respect to damages for medical expenses and emotional or mental distress, Brulee and her psychological expert attributed her stress and the physical ailments that allegedly resulted from it to the actions that followed her EEO complaint, such as MTA's refusal to promote her to a higher position, the transfer from her regular position to a new position in an outlying office and the criticism and negative evaluations she received during her final period of employment.   Defense witnesses testified that the decisions were made for legitimate reasons, the criticism was warranted and that in any event, none of these actions caused Brulee any loss of pay or status.   Moreover, the defense psychological expert expressed the opinion that Brulee suffered from a long-standing personality disorder that caused her to react badly when challenged or criticized at work, and Brulee herself testified that at least some component of the stress she described derived from pre-complaint actions.⁶  The jury could have concluded that Brulee's stress and the resulting injury was triggered by the preexisting mental condition and conflict with Montoya.  (Cf. Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 390 [trial court's decision to reduce noneconomic damage award in FEHA action justified by evidence indicating that plaintiff's emotional distress arose from causes unrelated to harassment or retaliation, such as dislike of supervisor's leadership style].)

If the jury did not attribute the stress allegedly suffered by Brulee to MTA's retaliatory conduct, it necessarily would have concluded that the loss of salary and other employment benefits were not attributable to that cause.   The evidence was undisputed that MTA did not terminate Brulee or reduce her salary in the wake of the EEO complaint.   Brulee's theory for holding MTA responsible for lost salary and benefits derived from her claim that she began to suffer such severe stress from MTA's post-complaint actions, that she had no choice but to give up her position and take medical leave.  (See Mullins v. Rockwell Internat.   Corp. (1997) 15 Cal.4th 731, 740 [employee constructively terminated where employer coerces employee's resignation];  Reno v. Baird (1998) 18 Cal.4th 640, 665 [atmosphere of pervasive harassment may lead to constructive discharge].)   However, to the extent the jury did not believe Brulee's stress derived from MTA's retaliatory conduct, there was no basis to place the blame for her decision to leave and the resultant loss of salary and benefits on MTA.⁷ In sum, the jury's finding on causation was supported by substantial evidence, and there is no basis to reverse it or order a new trial.

DISPOSITION

The judgment is affirmed.   Respondent is awarded its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. See Miller v. Department of Corrections (2005) 36 Cal.4th 446, 466 [employee may establish actionable claim of sexual harassment under FEHA by demonstrating sexual favoritism “severe or pervasive enough to alter his or her working conditions and create a hostile work environment”]..  FN1. See Miller v. Department of Corrections (2005) 36 Cal.4th 446, 466 [employee may establish actionable claim of sexual harassment under FEHA by demonstrating sexual favoritism “severe or pervasive enough to alter his or her working conditions and create a hostile work environment”].

FN2. Brulee believed Montoya had or was having relationships with Rose and with another female employee, Lynn Montano.   Brulee believed both Rose and Montano received preferential treatment from Montoya.   Montoya and Montano admitted having had an affair prior to her transfer to his department.   Montoya and Rose denied ever having had an amorous relationship.   The jury found there was no sexual favoritism in the workplace, and Brulee does not contest that finding on appeal..  FN2. Brulee believed Montoya had or was having relationships with Rose and with another female employee, Lynn Montano.   Brulee believed both Rose and Montano received preferential treatment from Montoya.   Montoya and Montano admitted having had an affair prior to her transfer to his department.   Montoya and Rose denied ever having had an amorous relationship.   The jury found there was no sexual favoritism in the workplace, and Brulee does not contest that finding on appeal.

FN3. The employee in the personnel department to whom Brulee attributed the comment denied making it..  FN3. The employee in the personnel department to whom Brulee attributed the comment denied making it.

FN4. During closing argument, Brulee's counsel asked the jury to award between $2 million and $4 million for “pain and suffering.”  (See Stephens v. Coldwell Banker Commercial Group, Inc. (1988) 199 Cal.App.3d 1394, 1402 [FEHA plaintiff may recover compensation for severe emotional distress, which may include “ ‘ “unpleasant mental reactions,” ’ ” such as “ ‘ “fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry and nausea” ’ ”].).  FN4. During closing argument, Brulee's counsel asked the jury to award between $2 million and $4 million for “pain and suffering.”  (See Stephens v. Coldwell Banker Commercial Group, Inc. (1988) 199 Cal.App.3d 1394, 1402 [FEHA plaintiff may recover compensation for severe emotional distress, which may include “ ‘ “unpleasant mental reactions,” ’ ” such as “ ‘ “fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry and nausea” ’ ”].)

FN5. Brulee testified that on October 19, she informed the EEO office that she no longer wished to have any contact with Montoya.   She said that the thought of being in Montoya's presence made her “want to vomit.”.  FN5. Brulee testified that on October 19, she informed the EEO office that she no longer wished to have any contact with Montoya.   She said that the thought of being in Montoya's presence made her “want to vomit.”

FN6. Brulee testified that Montoya's decision to transfer Rose and her staff caused her to become upset and feel sick.   She also testified that her feelings of stress began during the period she was performing Rose's functions as well as her own.   In a similar vein, the plaintiff's psychological expert testified that Brulee's mental and physical state was related in part to having her job duties stripped and given to Montoya's “ex-girlfriend,” referring to Rose. As the jury rejected Brulee's claim for harassment based on sexual favoritism, it was entitled to disregard the contention that Montoya's pre-complaint actions caused compensable psychological injury..  FN6. Brulee testified that Montoya's decision to transfer Rose and her staff caused her to become upset and feel sick.   She also testified that her feelings of stress began during the period she was performing Rose's functions as well as her own.   In a similar vein, the plaintiff's psychological expert testified that Brulee's mental and physical state was related in part to having her job duties stripped and given to Montoya's “ex-girlfriend,” referring to Rose. As the jury rejected Brulee's claim for harassment based on sexual favoritism, it was entitled to disregard the contention that Montoya's pre-complaint actions caused compensable psychological injury.

FN7. With respect to the loss of salary and other benefits, the jury also reasonably could have concluded that the conditions described by Brulee were not sufficiently severe to cause a reasonable employee to voluntarily deprive herself of the salary and benefits which otherwise would have accrued.  (See Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1022, quoting Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251 [“ ‘[T]o establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign.’  [ ] Whether conditions were so intolerable or aggravated under that standard is usually a question of fact․”].).  FN7. With respect to the loss of salary and other benefits, the jury also reasonably could have concluded that the conditions described by Brulee were not sufficiently severe to cause a reasonable employee to voluntarily deprive herself of the salary and benefits which otherwise would have accrued.  (See Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1022, quoting Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251 [“ ‘[T]o establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign.’  [ ] Whether conditions were so intolerable or aggravated under that standard is usually a question of fact․”].)

EPSTEIN, P.J. WILLHITE, J.