865 F2d 264 Hakanson-Black v. United Pacific Insurance Co

865 F.2d 264

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Nadine HAKANSON-BLACK, Plaintiff-Appellee,

No. 87-4252.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 31, 1988.
Decided Dec. 14, 1988.

Before JAMES R. BROWNING, TANG and FARRIS, Circuit Judges.

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Nadine Hakanson-Black sued United Pacific in this diversity action for wrongful discharge, alleging she was fired in retaliation for giving a statement to Oregon's Civil Rights Division in support of a co-worker's complaint of sex discrimination. The jury awarded Hakanson-Black $95,000 in special, general and punitive damages. The district court rejected United Pacific's motions for judgment notwithstanding the verdict and for a new trial. United Pacific appeals, claiming: (I) Oregon law permitted only equitable relief and barred jury trial; (II) the Civil Rights Divisions' findings and conclusions were erroneously admitted into evidence; (III) the verdicts were not supported by the evidence; and (IV) general and punitive damages were improperly awarded. We affirm.


* United Pacific asserts Hakanson-Black could not try her case to a jury, and could not be awarded tort damages, because her complaint alleged only a violation of Or.Rev.Stat. Sec. 659.030(1),1 and the sole remedy available for such a violation is injunctive and other equitable relief.2 The district court concluded, and we agree, that under Holien v. Sears, Robuck & Co., 689 P.2d 1292 (Or.1984), Hakanson-Black also had a common law cause of action for tortious wrongful discharge.


In Holien, Oregon's Supreme Court reiterated the requirements for recovery of damages for wrongful discharge in a common law tort action. See id. at 1297. The employee must first show she was discharged for fulfilling an important societal obligation or for exercising an important public right related to her role as an employee. Id. at 1295, 1297; Campbell v. Ford Indus., Inc., 546 P.2d 141, 145-46 (Or.1976). Oregon's Supreme Court has recognized a common law action for wrongful discharge by an employee fired for performing his societal obligation to serve on a jury, Nees v. Hocks, 536 P.2d 512, 516 (Or.1975), and for an employee fired for refusing to sign defamatory statements falsely exculpating the employer for a racially motivated discharge of a co-worker. Delaney v. Taco Time Int'l, Inc., 681 P.2d 114, 118 (Or.1984). In Holien, the Oregon Supreme Court also extends common law protection to the exercise by an employee of her right to resist gender discrimination at the workplace without fear of discharge. 689 P.2d at 1299-1300.


We have no difficulty concluding that Oregon's highest court would hold that giving a truthful statement in an administrative investigation is a societal obligation for which an employee cannot be fired, and that informing state authorities about discriminatory practices is an important, public right justifying common law protection from retaliatory discharge.


Accordingly, Hakanson-Black had a common law cause of action for tortious wrongful discharge under Oregon law unless in enacting Sec. 659.121 the Oregon legislature created a statutory remedy it considered adequate to compensate wrongfully discharged employees, and indicated an intent that the statutory remedy supersede the common law cause of action. Holien, 689 P.2d at 1300; Brown v. Transcon Lines, 588 P.2d 1087, 1093-94 (Or.1978). After exhaustive review of the legislative history, Holien declared Sec. 659.121 was not an adequate remedy for tortious wrongful discharge based upon the performance by the employee of a societal obligation or the exercise by the employee of an important public right related to the victim's role as an employee, and was not intended by Oregon's legislature to be the exclusive remedy for such a discharge. 689 P.2d at 1303-04. According to the court, "[l]egal as well as equitable remedies are needed to make the plaintiff whole." Id.


Contrary to United Pacific's contention, Justice Linde's concurrence does not define the standard established by Holien. Justice Linde's analysis that where the wrongs underlying the statutory and common law actions are the same then plaintiffs likely have no remedies in tort, id. at 1305, was not adopted by the majority. See id. at 1304-05. Moreover, even under Justice Linde's standard United Pacific loses, since "this plaintiff's case does not hinge on showing that her employer ... discharged her by reason of her sex. Her case depends on showing that [United Pacific] discharged her for exercising a legal right ... which is a very different thing." Id. at 1305.

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United Pacific also misreads Holien as a case in which the plaintiff had no statutory remedy. In fact, Holien had a remedy under Oregon's civil rights statute, see Kofoid v. Woodard Hotels, Inc., 716 P.2d 771, 774 (Or.App.1986) ("In Holien, the plaintiff was discharged for resisting sexual harassment. The court concluded that, although the employer's conduct in harassing the plaintiff and in firing her for resisting that harassment was actionable under the employment discrimination statutes, she also had a common law action for wrongful discharge....") (emphasis added), and under Title VII. See Holien, 689 P.2d at 1297-99.


In sum, Holien "leaves little room for concluding that the statutory remedies for employment discrimination preclude prosecution of a tort action for wrongful discharge" in a case such as this. Kofoid, 716 P.2d at 774.



United Pacific apparently concedes for purposes of this appeal that the Civil Rights Division's determination that there was substantial evidence of an unlawful employment practice, and the notice it issued of Hakanson-Black's right to sue, were admissible per se under Plummer v. Western Int'l Hotels Co., 656 F.2d 502 (9th Cir.1981). However, United Pacific challenges the propriety of admitting the Division's findings of fact and summary conclusions of law.


The district court's conclusion that it was "bound" by Plummer to admit the findings of fact was erroneous in light of Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488 (9th Cir.1986). We held in Gilchrist that an EEOC "letter of violation," reporting the Commission's determination that the employer had in fact discriminated against the employee, was potentially more prejudicial than an EEOC determination that there was probable cause to believe such discrimination had occurred, and hence was not per se admissible under Plummer. Id. at 1499-1501. Because the Division's findings and conclusion are more like a determination that a violation had occurred than a determination of probable cause, the district court was not "bound" to admit them. Rather, whether to admit the findings and conclusion was left to the court's discretion after weighing potential prejudice against probative value. Id. at 1500. However, as in Gilchrist, we hold admission of the administrative material without exercise of the court's discretion was harmless. See id.


As a general rule, administrative reports and findings are relevant and admissible. See Chandler v. Roudebush, 425 U.S. 840, 863 n. 39 (1976); Jordan v. Clark, 847 F.2d 1368, 1378 (9th Cir.1988); Clark v. Chasen, 619 F.2d 1330, 1337 & n. 19 (9th Cir.1980); Bradshaw v. Zoological Soc'y, 569 F.2d 1066, 1069 (9th Cir.1978); Smith v. Universal Servs., Inc., 454 F.2d 154, 157-58 (5th Cir.1972). A finding by Oregon's Civil Rights Division of a past policy of discrimination is "highly relevant" because it "goes to the very heart of plaintiff's cause of action." McCuller v. Gaudry, 650 P.2d 148, 149-50 & n. 4 (Or.App.1982). The same is necessarily true of a finding that discrimination had occurred in the very event at issue.


Such relevant evidence may be excluded only "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed.R.Evid. 403. In similar situations the probative value of administrative findings have been held to "outweigh[ ] any potential for prejudice." McCuller, 650 P.2d at 150; Bradshaw, 569 F.2d at 1069; Smith, 454 F.2d at 157; cf. Gilchrist, 803 F.2d at 1500-01. In this case, the district court's limiting instructions substantially diminished the possibility that the administrative material would mislead the jury. Id. at 1501.


We reject United Pacific's contention that the findings and conclusion were inadmissible hearsay. They fell within the public records and reports exception to the hearsay rule reflected in Fed.R.Evid. 803(8)(c) and the Federal Business Records Act, 28 U.S.C. Sec. 1732. See Chandler, 425 U.S. at 863 n. 39; Bradshaw, 569 F.2d at 1069; Smith, 454 F.2d at 157-58. Such reports are "prepared by professional investigators on behalf of an impartial agency." Plummer, 656 F.2d at 505; see Brown, 588 P.2d at 1091; School Dist. No. 1 v. Nilsen, 534 P.2d 1135, 1138 (Or.1975). "There is no reason to suspect any lack of trustworthiness." Smith, 454 F.2d at 158.



Oregon's civil rights laws are "substantially similar" to Title VII, Nilsen, 534 P.2d at 1139, and Oregon's courts have often looked to Title VII cases in analyzing claims brought under Or.Rev.Stat. Sec. 659. See Vaughn v. Pacific Northwest Bell Tele. Co., 611 P.2d 281, 289-92 (Or.1980); Nilsen, 534 P.2d at 1139-41; School Dist. No. 1 v. Mission Ins. Co., 650 P.2d 929, 935-36 (Or.App.1982). We therefore apply Title VII precedent in analyzing whether Hakanson-Black's claims are supported by substantial evidence. Sorosky v. Burroughs Corp., 826 F.2d 794, 803 (9th Cir.1987).


The order and allocation of the burden of proof in Title VII suits established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) apply equally to actions for retaliatory discharge. Miller v. Fairchild Indus., 797 F.2d 727, 730 (9th Cir.1986). Plaintiff must establish a prima facie case of retaliatory discharge; the burden then shifts to the employer to articulate a non-retaliatory basis for the discharge; if the defendant does so, the onus is on plaintiff to establish that the asserted reason is pretextual. Yartzoff v. Thomas, 809 F.2d 1371, 1375-77 (9th Cir.1987); Gunther v. County of Washington, 623 F.2d 1303, 1314 (9th Cir.1979).


To establish a prima facie case, Hakanson-Black had to show: (1) she was engaged in activity protected by Sec. 659.030(1)(f); (2) United Pacific subsequently terminated her employment; and (3) there was a causal link between these events. Yartzoff, 809 F.2d at 1375; Ruggles v. California Polytechnic State Univ., 797 F.2d 782, 785 (9th Cir.1986). United Pacific contends she failed to establish the third element--a nexus between her protected statement to the Civil Rights Division and her discharge.


A causal link exists if Hakanson-Black "would not have been discharged but for defendant's discriminatory motives of retaliation." Schubbe v. Diesel Serv. Unit Co., 692 P.2d 132, 134 (Or.App.1984); Vaughn, 611 P.2d at 292. "Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity." Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir.1982).


Hakanson-Black offered testimony from which the jury could conclude that: (1) her immediate supervisor, Robert Munley, was aware of, and highly critical of, her statement to the Civil Rights Division; (2) thereafter Munley became increasingly critical of her work; (3) Munley told Hakanson-Black he participated in the decision to fire her; (4) the branch manager, Cliff Jones, met with Munley just prior to firing her; and (5) Munley told employee Susan Chamberlain he had wanted to fire Hakanson-Black "for some time but that the Branch Manager [Jones] was against it," and that it was he (Munley) who had convinced Jones to fire her. This was substantial evidence of a causal link.


The jury also had before it the Civil Rights Division's findings and conclusions. Under the court's instructions, the jury could not consider the Division's determination of substantial evidence as sufficient in itself to satisfy Hakanson-Black's burden of proof. The jury could, however, consider the findings as relevant evidence of causation, giving the findings such weight as the jury believed proper. See Sumner v. San Diego Urban League, Inc., 681 F.2d 1140, 1143 (9th Cir.1982); Plummer, 656 F.2d at 504-05; Bradshaw, 569 F.2d at 1068-69.


The evidence was also sufficient to permit the jury to conclude that United Pacific's explanation that it fired Hakanson-Black because of the Alaska Steel incident was pretextual. "To show pretext, the plaintiff is not necessarily required to introduce evidence beyond that already offered to establish her prima facie case, although she may of course provide additional proof of the defendants' unlawful motivation." Miller, 797 F.2d at 732. The jury could conclude from the evidence that Munley waited for a pretext to fire Hakanson-Black for her statements to the Civil Rights Division, and that the alleged mishandling of the Alaska Steel account presented such a pretext.


"[S]trong circumstantial evidence" of retaliation exists where plaintiff's supervisors "did not suggest that [plaintiff's] conduct was deficient until after [s]he began criticizing [the employer] publicly." Schwartzman v. Valenzuela, 846 F.2d 1209, 1212 (9th Cir.1988); Yartzoff, 809 F.2d at 1377. There was evidence that Hakanson-Black received a promotion, involving an increase in authority and pay, the day before her statement to the Civil Rights Division, and that after Munley learned the substance of her statements he "was looking for trouble," he closely scrutinized and criticized her work, and he consistently gave her negative evaluations.



Punitive and general damages may be awarded for tortious wrongful discharge under Oregon law. See Delaney, 681 P.2d at 118-19; Nees, 536 P.2d at 516; Leggett v. First Interstate Bank, 739 P.2d 1083, 1085 (Or.App.1987). Our review of the sufficiency of the evidence to sustain such an award is "narrow." City of Phoenix v. Com/Systems, Inc., 706 F.2d 1033, 1039 (9th Cir.1983). The award must be upheld unless the evidence clearly does not support it. Id.; LuMetta v. United States Robotics, 824 F.2d 768, 770 (9th Cir.1987).


Evidence of anguish or mental pain supports an award of general damages. Hale v. Elec. Steel Foundry Co., 191 P.2d 396, 399 (Or.1948). Contrary to United Pacific's argument, Oregon does not require specific testimony that the plaintiff suffered such pain or anguish. See id. Both may be inferred from plaintiff's exposure to traumatic events. See Fredeen v. Stride, 525 P.2d 166, 169 (Or.1974); Fehely v. Senders, 135 P.2d 283, 285 (Or.1943). Retaliatory wrongful discharge is such an event. See Holien, 689 P.2d at 1303. Alternatively, Hakanson-Black's testimony that her discharge damaged her reputation and thus prevented her from obtaining employment supported an award of general damages. See Beck v. Croft, 700 P.2d 697, 700 (Or.App.1985).


Oregon allows punitive damages "in those instances where the violations of societal norms are (1) of an aggravated nature and (2) of the kind that sanctions would tend to prevent." Milliken v. Green, 583 P.2d 548, 550 (Or.1978); see also Noe v. Kaiser Foundation Hosps., 435 P.2d 306, 308 (Or.1967). United Pacific's contention that the evidence was insufficient to establish these prerequisites is meritless. Oregon's Supreme Court has "uniformly sanctioned the recovery of punitive damages whenever there was evidence of a wrongful act done intentionally, with knowledge that it would cause harm to a particular person." McElwain v. Georgia-Pacific Corp., 421 P.2d 957, 958 (Or.1966); Schumann v. Crofoot, 602 P.2d 298, 302 (Or.App.1979). The evidence was sufficient for the jury to conclude that Munley intentionally caused Hakanson-Black to be fired because of her statement to the Civil Rights Division, in violation of state statutory and common law. Moreover, Munley's "conscious indifference" or "deliberate disregard" of the likely harm to Hakanson-Black resulting from his wrongful retaliatory action satisfied the "knowledge" requirement. Andor v. United Air Lines, Inc., 739 P.2d 18, 22 (Or.1987); McElwain, 421 P.2d at 958.




This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


This section reads in pertinent part:

[I]t is an unlawful employment practice:

(f) For any employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because the person has opposed any practices forbidden by this section ... or because the person has filed a complaint, testified or assisted in any proceeding under [the statute] or has attempted to do so.

Or.Rev.State. Sec. 659.030(1)(f).


Under Or.Rev.Stat. 659.121(1):

Any person claiming to be aggrieved by an unlawful employment practice prohibited by ORS 659.030 ... may file a civil suit in circuit court for injunctive relief and the court may order such other equitable relief as may be appropriate including but not limited to reinstatement or the hiring of employees with or without back pay.

Employees "are deprived of a jury trial under the staute." Holien v. Sears, Roebuck & Co., 689 P.2d 1292, 1303 (Or.1984).