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Passantino v. Johnson & Johnson Consumer Products

March 10, 2000

JENNIFER L. PASSANTINO, AND THE MARITAL COMMUNITY; CHARLES PASSANTINO, AND THE MARITAL COMMUNITY, PLAINTIFFS-APPELLEES-CROSS-APPELLANTS,
v.
JOHNSON & JOHNSON CONSUMER PRODUCTS, INC., DBA CUSTOMER SUPPORT CENTER, DEFENDANT-APPELLANT-CROSS-APPELLEE.
UNITED STATES OF AMERICA, INTERVENOR.



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

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

The opinion of the court was delivered by: Reinhardt, Circuit Judge.

Argued and Submitted March 11, 1999--Seattle, Washington

As amended April 27, 2000

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

OPINION

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.

I. FACTS

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 co-workers, 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."*fn1 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.*fn2

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 newly-created 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 try to determine whether he could raise her concerns without revealing Passantino's identity. He also offered to perform a salary analysis in order to see if there was any truth to Passantino's suspicion that she was being paid less than similarly-situated male workers. Passantino testified that Soo Hoo never provided her with the results of his inquiry.

In December, 1994, Passantino decided to lodge a formal complaint. In response to her complaint, Soo Hoo contacted Upshaw, who supported Passantino's version of the facts and echoed her concerns about discrimination. In January 1995, a meeting was held in New Jersey with Soo Hoo, Williams, John Hogan, who was Vice President of Sales, Passantino, and Ruth Hague from the Employee Assistance Program. At this meeting, Passantino recounted her complaints. Williams, her supervisor, responded that the military market was an "old boy network" in which it was hard for women to be successful. He also asked Passantino directly if she thought he was a sexist.

A second meeting was held in February, also in New Jersey. First, Williams and Hogan conducted Passantino's 1995 performance review, based on her 1994 evaluation report. She was given a good review and told she was qualified for a number of promotional positions. Then, Hogan told Passantino that his salary analysis had revealed no discrepancies and no discrimination. Although Passantino never saw this analysis, a salary analysis document was placed in her personnel file. This document falsely reported that Kenan -- one of Passantino's colleagues about whom she had complained--received a performance rating of "5," while in fact he had received a "4." Another performance review in the document similarly misrepresented another male manager's performance rating. Passantino asserts that these ratings were fabricated in order to justify the fact that these male workers were better paid than she. Apart from this, her complaints were not addressed.*fn3

At a subsequent division meeting, Hogan said that everyone needed to "shape up and act professional" or they would be "off the team." He also indicated his support for Williams. Both Passantino and Upshaw testified that they understood this to be a public rebuke of them for their complaints. Both women felt that they were being told that if they did not shut up they would be fired.

Passantino remained unsatisfied with CPI's response to her complaint. On March 16, 1995, she informed Soo Hoo of her intentions to seek private legal counsel. She filed an EEOC complaint in June, 1995. Thereafter Passantino testified that she experienced a range of retaliatory acts by CPI, making it nearly impossible for her to perform her job effectively. Job responsibilities (such as her training duties) were removed, accounts (including the European account) were transferred to other employees without notice, and she was no longer included in division managers' meetings, such as those concerning development of the division business plan. In addition, her performance objectives were reduced (which, according to her testimony, indicated that she was considered less capable than before her complaint) and her job title was changed (and then restored after she protested). Passantino also testified that other actions were taken which undermined her performance. She stated that Williams became distant and communicated less with her, that she received product and sales information late, and that she lost out on bonuses (including an award trip) and sales opportunities as a result. Finally, Passantino stated that Williams made comments demeaning her participation in the policy groups that she had joined, even though she had joined them upon his suggestion, in order to enhance her advancement within the military division.

Passantino testified, and provided documentary corroboration to prove, that prior to her complaints she was consistently regarded as well-qualified for promotion into upper management. After her complaints, and particularly after her public EEOC complaint, however, it was a different story. Passantino was told by Hogan that she would have to accept taking a step back in order to advance, and that she should accept a district manager job, which is the lowest position within her job grade. Her review also stated, for the first time in years, that she was not qualified for a national account manager position. Her 1997 promotional assessment described her as "not to VP level," an obvious sign that, as Passantino put it, she was "losing ground." For some unexplained reason, Williams was instructed to send his evaluations of Passantino and Upshaw to Hogan, the Vice President, before releasing them to the two women. No other employees' evaluations were similarly screened.

CPI also retaliated against Passantino by offering her demotions, without always making clear that the jobs offered were below her current level. After initiating her complaints, Passantino received three offers of district manager positions. She rejected these jobs as demotions. Then, in August 1995, she was offered the position of National Accounts Manager in Dallas. Although this would have been a lateral move, it would have been undertaken as a part of a test group, with the distinct possibility of layoffs in the immediate future, Passantino accepted on the condition that CPI guarantee her one year of employment, absent cause for termination, as insurance against the inherently risky undertaking. CPI refused. In March 1996, Passantino rejected a district manager position in Los Angeles because it was a "step backwards" with no potential for salary growth (and a higher cost of living). Passantino was then offered a demotion to a position as a sales administration manager, with a much lower salary range. In this position, she would have lost her company car, had no opportunity for commissions, and would have had to live in a more expensive area. Passantino accepted the position, however, on the condition that she receive a year of guaranteed employment. Again rejecting her conditional acceptance, Hogan told her not to take the job, that the position was two steps backwards, and that it was only offered to Passantino because it was one of the jobs involved in her litigation. Finally, she rejected another position which was a step back with no potential for salary growth. During the same period, on a different occasion, when Passantino expressed interest in a new military marketing position, Williams told her she should not be interested in that position because it paid less, even though in fact that position paid $20,000 more than the position she held at the time.

Ultimately, Hogan told Passantino that because she refused to accept these district manager positions (which were demotions), she would not be considered for higher positions. He also told her that her decision not to accept the demotions meant that she could be deemed no longer promotable. After August 1996, Passantino did not receive any further offers.

Throughout this period, which followed her complaints, CPI executives were repeatedly vague about whether positions offered to Passantino were promotions, demotions, or lateral transfers. For example, Hogan initially characterized the district manager demotions as promotions. In a letter sent several months later, he called them laterals. Others in the corporation told her that these jobs would be demotions. The same dissembling and equivocation marked CPI's other job offers and its responses to her inquiries:*fn4 Passantino never knew if she was considering a job that would improve her prospects or effectively end her career's advancement opportunities.

Passantino testified that, as a result of this stressful series of events, she constantly worried, cried, and felt trapped and upset. She felt she was forced to spend less time with her family because she feared she would lose her job, given that her performance rating had been declining. She suffered stomach problems, rashes, and headaches which required medical attention. In addition, she sought counseling from her pastor. Most important, her advancement within the company was brought to a halt.

II. PROCEDURAL HISTORY

In January, 1996, Passantino brought this action in the United States District Court for the Western District of Washington for violations of Title VII and the Washington Law Against Discrimination. CPI immediately moved for a change of venue to New Jersey, which was denied.

Following a jury trial, the jury returned a large verdict in Passantino's favor. The jury found that although CPI had not discriminated against Passantino initially, it did retaliate against her for complaining about what she perceived as sex discrimination. The jury awarded Passantino $100,000 in back pay, $2,000,000 in front pay, $1,000,000 in compensatory emotional distress damages, and $8,600,000 in punitive damages. CPI moved to strike or reduce the punitive and compensatory damage awards, which the court granted in part and denied in part. The court allocated all of the compensatory damages, front pay, and back pay to Passantino's state law claim and all of the punitive damages to the Title VII claim. It then reduced the punitive damage award to the $300,000 Title VII cap and affirmed the remainder of the award.*fn5 CPI then moved for judgment as a matter of law, or in the alternative for a new trial, or to amend the judgment; all were denied. The court then awarded Passantino $580,414 in attorney's fees, costs, and expenses.

III. VENUE

CPI argues that venue was improper in Washington, because the unlawful employment practices at issue occurred in New Jersey. We review the district court's venue ruling de novo. Decker Coal Co. v. Commonwealth Edison Co. , 805 F.2d 834, 841 (9th Cir. 1986). CPI argues that when a plaintiff alleges a discriminatory or retaliatory failure to promote, the decision not to promote is the sole act that can constitute the unlawful employment practice for venue purposes. Thus, under CPI's theory, for purposes of promotion claims, unlawful employment action "is committed" where the decision to take that action is made. Passantino counters that the unlawful action occurs where its effects are felt.*fn6

Title VII authorizes suit "in any judicial district in the State in which the unlawful employment practice is alleged to have been committed" as well as in the district where employment records are kept, in the district where the plaintiff would have worked but for the alleged unlawful practice, and, if those provisions fail to provide a forum, in the district where the defendant keeps its principal office. 42 U.S.C.S 2000e-5(f)(3); Johnson v. Payless Drug Store Northwest , 950 F.2d 586 (9th Cir. 1991).*fn7 Some courts have noted that "this broad provision for alternative forums was necessary to support the desire of Congress to afford citizens full and easy redress of civil rights grievances." Richardson v. Alabama State Board of Education, 935 F.2d 1240, 1248 (11th Cir. 1991). In fact, the only limitation contemplated by the provision is that it seeks to "limit venue to the judicial district concerned with the alleged discrimination." Stebbins v. State Farm Mutual Ins., 413 F.2d 1100, 1102 (D.C. Cir. 1969); Ford v. Valmac Industries, Inc., 494 F.2d 330, 332 (10th Cir. 1974).

In general, the effect of Title VII's venue provision is to allow suit in the judicial district in which the plaintiff worked or would have worked. See, e.g., Montero v. AGCO Corp., 192 F.3d 856 (9th Cir. 1999) (suit brought in district where plaintiff worked). This is consistent with our case law in analogous contexts. For example, in Varsic v. United States District Court, 607 F.2d 245 (9th Cir. 1979), a case involving a suit against a pension fund, we found venue to be proper where the employee works (and earns his pension credits). Id. at 247. We rejected the Fund's argument that venue should be limited to the district in which the Fund is administered because that district is where the decisionmaking for the plan's administration takes place. Id. at 248.

We have also held that personal jurisdiction over a defendant may be proper where the defendant has committed an act which has effects in a state, because the defendant "purposefully directed" its economic activity towards that state. Haisten v. Grass Valley Medical Reimbursement Fund, 784 F.2d 1392, 1397-98 (9th Cir. 1986). In Haisten, we held that jurisdiction was proper even though the defendant had absolutely no physical contact with California, because its policies had effects in the state, and because California had an interest in providing a forum for the protection of its residents. Id. at 1399. See also Gordy v. Daily News, 95 F.3d 829 (9th Cir. 1996) (finding personal jurisdiction proper in California defamation action against New York newspaper because 13 to 18 California residents subscribed to the paper).*fn8 Thus, the statute itself and analogous case law suggest that venue should be found where the effect of the unlawful employment practice is felt: where the plaintiff works, and the decision to engage in that practice is implemented.

CPI, however, would have us reject such a rule, at least for cases involving failure to promote, in favor of one that would allow venue only where the decision to commit the unlawful employment practice is made. We find this theory unpersuasive for several reasons. First, CPI's theory would require us to draw a distinction between promotion claims and other types of Title VII claims -- which allow venue where the plaintiff is employed. Had Passantino been wrongfully discharged or subjected to a hostile work environment, she could have sued in the district in which she worked. Nothing in the text or history of the statute's venue provision suggests that a different rule should apply in failure-to-promote cases. Plaintiffs unlawfully denied a promotion, like those discharged, feel the effects of their injury where they actually work.

CPI suggests that the rule advanced by Passantino would leave corporations which employ people in far-away home offices vulnerable to suit in distant fora, a problem which it warns will increase in the internet age. CPI is concerned that "potential plaintiffs could evaluate their preferred locations for bringing a lawsuit and simply locate their home offices within that jurisdiction." This forum shopping scenario seems fanciful; we doubt that many people would reorganize their entire lives by moving home offices to other judicial districts in anticipation of as yet uncommitted acts of discrimination, in order to file Title VII actions in those districts. It is of more concern that national companies with distant offices might try to force plaintiffs to litigate far away from their homes, as CPI seeks to do here. Forcing the plaintiff to litigate in a federal court on the other side of the country would significantly increase the plaintiffs' costs of prosecuting her action. CPI's theory would create a substantial burden on plaintiffs working for national sales companies, a burden inconsistent with the beneficent purposes of Title VII.

This is not to suggest that an action involving a failure to promote is not also appropriately brought in the district in which the employment decision is made. CPI rightly points out that that district also has some interest in an action involving promotions. Here, however, we need not choose between districts. Title VII's venue provision obviously contemplates the possibility that several districts could provide an appropriate venue for the same action. For example, a company could keep business records in an office located in one judicial district, but engage in discriminatory hiring practices at a different office in another district. An action could properly be brought in either district. See 42 U.S.C.S 2000e-5(f)(3). Thus, we hold that venue is proper in both the forum where the employment decision is made and the forum in which that decision is implemented or its effects are felt.

IV. RETALIATION

CPI also appeals the district court's denial of its motion for judgment as a matter of law on Passantino's retaliation claim. We review the district court's decision de novo, and reverse only if the evidence, viewed in the light most favorable to the prevailing party, admits only of a contrary conclusion. Omega Environmental, Inc. v. Gilbarco, Inc., 127 F.3d 1157, 1161 (9th Cir. 1997).

[1] Under Title VII, a plaintiff may establish a prima facie case of retaliation by showing that (1) she engaged in activity protected under Title VII, (2) the employer subjected her to an adverse employment decision, and (3) there was a causal link between the protected activity and the employer's action. Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987). Initially, we note that Passantino's informal complaints to Williams in 1993 constitute a protected activity, such that actions taken against her after these initial complaints are appropriately the subject of her retaliation claim. See, e.g., Moyo v. Gomez, 40 F.3d 982 (9th Cir. 1994) (allowing retaliation claim based on informal protest of allegedly discriminatory policy).

[2] CPI contends that Passantino suffered no adverse employment action. However, ample evidence exists in the record for the jury to have made a contrary finding. There was evidence that her complaints affected a performance review she received and resulted in decreased job responsibilities. Other evidence supported her contention that CPI responded to her complaints by transferring accounts out of her portfolio, excluding her from planning meetings, and preventing her from receiving information she needed. The jury could also have found that CPI substantially downgraded her promotability status and that she failed to receive promotions because of her complaint. We have held such actions sufficient to establish retaliation. For example, in Hashimoto v. Dalton, 118 F.3d 671, 675 (9th Cir. 1997) we held that the dissemination of a negative job reference constituted retaliation. Similarly, in Yartzoff, we held that transfers of job duties and "undeserved" performance ratings were adverse employment decisions. Yartzoff, 809 F.2d at 1376. See also Strother v. Southern California Permanente Group, 79 F.3d 859, 869 (9th Cir. 1996) (exclusion from meetings, denial of administrative support, and transfer of duties deemed retaliatory).

[3] The purpose of Title VII's anti-retaliation provision is to bar employers from taking actions which could have "a deleterious effect on the exercise of these rights by others." Garcia v. Lawn, 805 F.2d 1400, 1405 (9th Cir. 1986). Title VII allows employees to freely report actions that they reasonably believe are discriminatory, even if those actions are in fact lawful. Moyo, 40 F.3d at 985. Absent a judicial remedy, the type of actions Passantino asserts her employer engaged in could discourage other employees from speaking freely about discrimination. We ...


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