McCoy v. Pacific Mar. Ass'n, 216 Cal. App. 4th 283 (2013)

Catherine Y. McCoy was working as a marine clerk at the ports when she and other employees filed a federal lawsuit alleging discrimination against PMA (a nonprofit organization that serves as a bargaining agent for its membership, which includes terminal operator Yusen Terminals, Inc.). After the lawsuit was settled, McCoy was provided "standard nightside vessel planner training." McCoy claimed that during the training, the vessel planners refused to acknowledge her presence and that she was given a less desirable room, which increased her isolation from the rest of the vessel planning staff. McCoy presented additional evidence that she suffered from other forms of retaliation and sexual harassment during the training. Although the jury awarded McCoy $1.2 million in economic and emotional distress damages, the trial court granted defense motions for judgment notwithstanding the verdict ("JNOV") on the grounds that: (1) PMA was not McCoy's employer and (2) there was not substantial evidence of sexual harassment or retaliation. The Court of Appeal affirmed dismissal of the sexual harassment and intentional infliction of emotional distress claims on the grounds that there was insufficient evidence of severity or pervasiveness – McCoy testified about hearing "five to nine" vague sexual comments from a non-supervisor about women's bodies over the course of four months. The Court further affirmed the JNOV in favor of PMA on the ground that PMA's member companies, not PMA itself, are the employers of employees at the ports such as McCoy. However, the Court reversed the JNOV with respect to the retaliation claim, finding "there was substantial evidence supporting the jury's conclusion that respondents unlawfully retaliated against [McCoy] for engaging in protected activity and that the retaliation resulted in a material alteration of the terms, conditions, or privileges of [her] employment." Finally, the Court upheld the trial court's granting of a new trial on the grounds of irregularity in the proceedings, surprise and excessive damages.