Harvey v. Sybase, Inc.
Filed April 18, 2008, First District, Div. Five
Cite as 2008 SOS 2271

JNOV on Punitive Damages Reversed

Plaintiff Marietta Harvey (Harvey) is a Filipina Human Resources Director of two separate companies, Pyramid Technology and defendant Sybase, Inc. (Sybase). She was supervised by Nita White-Ivy (White-Ivy).

In 2003, White-Ivy terminated Harvey from Sybase. After her layoff, she applied for two lower-paying positions, but both went to white men. Admittedly, Sybase’s president told Harvey’s boss that there was a perception that the resource department “looked like an airport” – supposedly meaning that it had too many Asians.

Consequently, Harvey filed an action under the California Fair Employment and Housing Act (FEHA) asserting that Sybase, acting through White-Ivy, violated FEHA by terminating her based on either race or gender.

The jury made a favorable judgment and awarded Harvey both compensatory and punitive damages.

When Sybase unsuccessfully moved for motion for judgment notwithstanding the verdict (JNOV), it appealed the judgment by arguing that the proof of discriminatory intent Harvey presented was insufficient.

This is because White-Ivy’s has long history of treating Harvey with extraordinary favor.

Sybase also claimed that the trial court committed prejudicial error in responding to a question posed by the jury during deliberations.

Harvey, on its part, filed a cross-appeal and made the following contentions:

• trial court erred in permitting Sybase JNOV on the issue of punitive damages and nonsuit on Harvey’s claims of wrongful termination in violation of Labor Code sections 232 and 232.5


• the trial court used the wrong standards when it awarded her attorney fees as a prevailing party under the FEHA

The California Court of Appeal reversed the court’s grant of JNOV and directed to reinstate the jury’s findings on punitive damages. Said pronouncement was based on the following grounds:

• Trial court did not err in denying Sybase’s motion for JNOV after jury returned verdict for Harvey. This is because jury’s conclusion was supported by substantial evidence where White-Ivy acted pursuant to officer’s directive to hire more white males. Moreover, White-Ivy’s "same actor" evidence that she had previously hired and promoted Harvey was not entitled to special weight.


• Trial court properly granted nonsuit on Harvey’s claims of wrongful termination in violation of public policy under California Labor Code Secs. 232.5 and 232. Said provisions prohibited discharge of an employee for disclosing information about employer’s working conditions or for disclosing the amount of his or her wages.

However, Harvey’s statements that White-Ivy intended to demote her and cut her pay were not a disclosure of the amount of her wages. Moreover, the policy set forth in Sec. 232.5 was not "well established" at time of discharge.

In sum, the trial court’s grant of JNOV on the jury’s award of punitive damages to Harvey was reversed. The court’s award of attorney fees was reversed, in part. In all other respects, the judgment was affirmed.