1

Filed 2/24/14 Kell v. Autozone, Inc. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

TRAVIS KELL,

Plaintiff and Respondent,

v.

AUTOZONE, INC.,

Defendant and Appellant.

C064839

(Super. Ct. No. 07AS04375)

ORDER MODIFYING 

OPINION

[NO CHANGE IN 

JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on February 10, 2014, be modified as 

follows:

1. On page 38, in the fifth line of the first full paragraph following the heading 

“2. The Effect of other Jury Instructions,” insert a space between “No.” and “12.26.”

2. In the first line of page 45, insert the word “the” between “statute,” and 

“defendants” so that the phrase reads: 
2

“failure to instruct on the immunity statute, the defendants were unable to 

argue that they.”

3. On page 50, in the second sentence following the heading “B. Analysis,” 

replace the word “Kell” at the start of the sentence with “AutoZone” so that the sentence 

reads:

AutoZone argues the people who made the decision to fire Kell --

AutoZoner relations -- were unaware of his protected activity, his June 2, 2005 

complaint to Saucier.

4. On page 58, in the fifth sentence of the first paragraph, remove the closing 

quotation mark before the phrase “”Q & A going” so that the sentence reads:

Kulbacki testified that White told him there was a “Q & A going” and said 

it did not look good for Kell.

5. On page 58, in the sixth sentence of the first paragraph, replace the word 

“Kublacki” with the word “Kulbacki,” so that the sentence reads:

At Zarate’s store, Zarate overheard Kulbacki and White talking about Kell 

taking medication.

6. On page 65, in the first sentence following the heading “Disparity between 

Actual Harm and Punitive Damages,” replace the “em dash” with two dashes so that the 

sentence reads:

“California published opinions on this issue have adopted a broad range of 

permissible ratios--from as low as one to one to as high as 16 to one--depending 

on the specific facts of each case.”

There is no change in the judgment.
3

BY THE COURT:

 NICHOLSON , Acting P. J.

 BUTZ , J.

 MURRAY , J.
1

Filed 2/10/14 Kell v. AutoZone CA3 (unmodified version)

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

TRAVIS KELL,

Plaintiff and Respondent,

v.

AUTOZONE, INC.,

Defendant and Appellant.

C064839

(Super. Ct. No. 07AS04375)

A jury awarded plaintiff, Travis Kell, compensatory and punitive damages against 

his former employer, defendant AutoZone, Inc., finding AutoZone (1) terminated Kell’s 

employment in retaliation for his complaining about harassment and retaliation (Gov. 

Code, § 12940, subd. (h))1, and (2) failed to prevent harassment and retaliation (§ 12940, 

subd. (k)) under the California Fair Employment and Housing Act (FEHA, § 12900 et 

 

1

 Undesignated statutory references are to the Government Code.
2

seq.). The jury rejected Kell’s claim of disability harassment. AutoZone appeals from 

the judgment and the postjudgment order denying defendant’s motion for judgment 

notwithstanding the verdict (JNOV) or a new trial.2 AutoZone initially contended 

(1) there was insufficient evidence that Kell’s protected activity was “a motivating 

reason” for his termination; (2) there was insufficient evidence of oppression, fraud or 

malice to support punitive damages; and (3) the amount of punitive damages was 

unconstitutionally excessive.

While this appeal was pending, the California Supreme Court in Harris v. City of 

Santa Monica (2013) 56 Cal.4th 203 (Harris), articulated a heightened burden of proof 

for FEHA cases. The court held that a plaintiff seeking money damages for employment 

discrimination under FEHA must prove the illegal criterion was “a substantial factor 

motivating” the employer’s decision. (Harris, supra, at p. 229.) Just before oral 

argument, AutoZone submitted a letter to this court citing Harris, but at oral argument 

neither party mentioned Harris, despite our invitation to do so. After oral argument, we 

requested and received supplemental briefing as to the effect, if any, of Harris and its 

progeny, specifically Alamo v. Practice Management Information Corp. (2013) 

219 Cal.App.4th 466 (Alamo). 

We conclude Harris’s heightened standard applies to this retaliation case, but the 

absence of a jury instruction requiring a “substantial factor motivating” AutoZone’s 

decision did not result in a miscarriage of justice and therefore does not require reversal. 

(Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.) We conclude AutoZone’s original 

 

2

 Another defendant, AutoZone Regional Manager Jim Kulbacki, is not a party to this 

appeal. The complaint alleged retaliation against both AutoZone and Kulbacki, but 

nonmanagement individuals are not personally liable for their role in retaliation. 

(Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173-1174 

(Jones).) Judgment was entered against AutoZone only, and the notice of appeal was 

filed by AutoZone only. 
3

contentions lack merit, except as to the amount of punitive damages. We reduce the 

amount of punitive damages, but otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2007, Kell filed a complaint against AutoZone and his supervisor,

Jim Kulbacki, alleging: (1) disability discrimination, (2) disability harassment, (3) failure 

to prevent discrimination and harassment (§ 12940, subd. (k)),3(4) failure to engage in 

an interactive process to discuss accommodation of Kell’s disability, (5) failure to 

accommodate Kell’s disability, (6) retaliation (§ 12940, subd. (h)), and (7) wrongful 

termination in violation of public policy. Before trial, Kell dismissed four counts and 

proceeded to trial on three claims: (1) disability harassment, (2) retaliation, and 

(3) failure to prevent harassment and retaliation. 

Trial Evidence 

Kell began working for AutoZone as a part sales manager in March 1996 and 

was a district manager when he was fired in November 2005. That Kell performed 

well over the course of his employment over nine and a half years is not disputed by 

AutoZone. Rather, AutoZone claims it terminated Kell for “falsifying” a store audit.

During the relevant timeframes here, Kell’s supervisor was Jim Kulbacki, 

AutoZone’s Sacramento regional manager. Kulbacki’s supervisor was Rick Smith, vicepresident of operations for the western division. Stacy Saucier was the divisional human 

resources (HR) manager. The regional HR manager was Nicole McCollum. McCollum 

reported to Kulbacki. 

 

3

 Section 12940, subdivision (k), which makes it unlawful for an employer to fail to 

take reasonable steps to prevent discrimination and harassment, applies to failure to 

prevent retaliation. (See Taylor v. City of Los Angeles Dept. of Water & Power (2006) 

144 Cal.App.4th 1216, 1239-1240, disapproved on another ground in Jones, supra, 

42 Cal.4th at pp. 1173-1174.) The jury was so instructed. 
4

In February 2004, Kell was diagnosed with “bipolar condition” and went on 

medical leave for six weeks. Kell testified that when he returned to work, coworkers 

at AutoZone’s regional office were standoffish. One fellow district manager asked 

him how he was doing and said, “I heard you went crazy.” 

Another district manager, Michaele “Alonzo” Lombardi, testified he heard people 

at the regional office make fun of Kell’s mental disability. Some of these comments were 

made under their breath within earshot of Lombardi at conference tables during meetings 

at the regional office. 

Lombardi heard McCollum -- who no longer works for AutoZone and who did not 

testify -- make comments about Kell almost every time Lombardi was in the regional 

office. Lombardi visited the regional office approximately once a week. McCollum 

referred to Kell as “retarded” behind his back. Lombardi testified that McCollum 

“discussed in front of” him and several other regional staff that Kell was claiming he 

was “bipolar and schizophrenic,” needed to take medication and was asking for a leave. 

McCollum said she thought Kell was “faking it” and asked Lombardi and others to 

monitor Kell to see if he actually had a problem. Lombardi testified that he complained 

to McCollum about her comments, but she replied that she was an HR manager, had 

extensive background and she knew what she was doing. Based on McCollum’s 

responses, Lombardi became uncomfortable with her. 

Thereafter, Lombardi had a conversation with Kell’s direct supervisor, regional 

manager Kulbacki, in which Lombardi informed Kulbacki that Kell “was having a rough 

time.” He further told Kulbacki that Kell “needs to be talked to by you, and he’s got 

some concerns and you might want to consider it.” Kulbacki said he would look into it. 

Kell testified Kulbacki also made comments about Kell’s mental health. For 

example, Kulbacki asked Kell if he was taking his medications and told Kell he seemed 

“loopy.” Another district manager, Randy Crosby, testified that Kulbacki, referring to 
5

Kell, said it was “stupid for somebody to go on a leave of absence for stress.” Kulbacki 

denied making such comments. 

After returning from medical leave, Kell for the first time was rated “needs 

improvement” on his performance evaluations in March and October of 2004. After the 

October 2004 evaluation, Kulbacki and McCollum met with Kell. Kell thought the 

evaluation was unfair because it included time he was on leave, and he thought it related 

to his disability. He expressed this concern to Kulbacki during the meeting. McCollum 

responded, “You don’t have a disability or handicap, you’re taking medication.” 

Kulbacki denied that Kell expressed this concern and that McCollum made that response. 

From May 31 to June 2, 2005, Kell attended AutoZone’s training conference in 

Ontario, California. Kell testified that, on the first day of the conference, after speaking 

with Saucier about his 360 evaluation, he told her he planned to talk to her about 

complaints he had of unprofessional conduct and harassment by Kulbacki and 

McCollum, as well as complaints made by three of his store managers, Bobbie 

Standridge, Mario Zarate, and Tasha Trease. He did not give Saucier the details at 

that time. 

On the second day of the conference, a meeting of district managers with an 

outside employment law consultant was held. According to Kell, senior management 

personnel were excluded. During this meeting, Kell asked a “hypothetical” question 

about a regional manager making comments to an employee about medication and an HR

manager referring to employees as “retards.” The outside consultant said to report the 

issues to HR. 

On June 2, 2005, at the end of the training conference, Kell and Lombardi waited 

outside Divisional HR Manager Staci Saucier’s office to report harassment and 

discrimination complaints. Both Kell and Lombardi testified that as they waited, Rick 

Smith, vice-president of operations for the western division and Kulbacki’s supervisor, 
6

went to Saucier’s office door and told her that he (Smith) needed to hear everything Kell 

and Lombardi had to say. 

Lombardi testified he went into Saucier’s office first and told her that McCollum 

and others were making fun of Kell, calling Kell a “tard wrangler,” “retarded,” and 

questioning his mental stability. Saucier listened, took notes, and said she would look 

into it. 

Kell went into Saucier’s office after Lombardi came out. Kell testified he told 

Saucier that when he said he had a disability, McCollum responded that he did not have 

a disability, because he was taking medication. Kell told Saucier about Kulbacki’s 

unwelcome comments about medication and Kell sounding “loopy.” Kell also related to 

Saucier complaints about McCollum that Kell, as district manager, had received from 

store managers in his district. These managers testified they had, indeed, made these 

complaints to Kell. Kell told Saucier that store manager Bobbie Standridge complained 

that at the end of an onsite investigation of an employee complaint, McCollum 

sarcastically said that everybody in Standridge’s store were “retards.” Store manager 

Mario Zarate complained that McCollum commented that a particular employee was 

“retarded” and “white trash.” Store manager Tasha Trease asked for a transfer to the 

Sacramento area, to which McCollum responded that a “little white girl” like Trease 

should not be working with “a bunch of [Blacks].” Trease had reported to Kell that 

McCollum actually used the “ ‘n’ word,” but Kell was uncomfortable repeating it to 

Saucier, who is African-American. Kell testified Saucier asked questions, took notes, 

and said she would investigate. 

Saucier then went into Smith’s office for about half an hour. Thereafter, because 

Lombardi was concerned about missing their flight, Saucier gave Kell and Lombardi a 

ride to the airport. Kell and Lombardi testified that Kell reiterated his concerns in the car. 

Kell brought up the “retard” comments and stressed that he wanted that to be addressed. 

Saucier coldly said they could not discuss the matter further. Saucier’s demeanor had 
7

changed. According to Kell, it was like talking to a wall. Her demeanor was “totally 

different” than when they spoke in her office. She had been “really engaged” earlier. 

According to Lombardi, Saucier was “very closed,” “almost robotic” during the 

conversation on the way to the airport. 

Concerned about Saucier’s change in attitude, Lombardi later expressed his 

concerns to Kulbacki. Lombardi told Kulbacki that Kell “was speaking about things and 

[Kulbacki] needed to look into it.” Lombardi further testified, “I pretty much reiterated 

to [Kulbacki] as much as I could without violating confidentiality confirmed what 

[Saucier] told me [sic].” Lombardi also told Kulbacki that Kell was “sounding like he 

was going to have a lawsuit coming.” Kulbacki appeared “shocked and astonished” and 

“taken aback” at the mention of a lawsuit. Kulbacki told Lombardi he would look into it. 

Nobody followed up with Lombardi regarding the complaints he made to Saucier. 

Likewise, Kell and the people who had complained to Kell about McCollum testified that 

there was no followup regarding their complaints. 

At trial, Saucier, Smith, and Kulbacki all denied any knowledge and/or memory of 

any complaint of disability harassment or discrimination reported by Kell or Lombardi. 

Saucier also denied that Kell relayed any complaints from other managers about 

McCollum, and Smith denied being told about any such complaints. 

Smith recalled that Kell wanted to talk to Saucier about his 360 evaluation, not 

about being treated unfairly. Smith said that after Saucier returned from the airport, she 

told him Kell had complained that Kulbacki was not “hands on,” did not know the 

business, was disorganized and late for his own meetings. Based on what Saucier told 

him, Smith did not think Kell was complaining about being treated unfairly by Kulbacki. 

Smith said he talked to Kulbacki about “the complaints that were addressed with [him],” 

though he may not have mentioned Kell’s name. 

Saucier testified that she had no recollection about the 360 evaluation meeting 

Kell had with her on the first day of the conference. She did meet with Kell and 
8

Lombardi on the last day of the conference, but claimed that neither of them said 

anything about disability harassment or discrimination against Kell. She recalled 

only that Kell expressed concerns that his supervisor, Kulbacki, was being hard on 

him, mean to him, and riding him about his performance. Saucier said she was unaware 

that Kell had a mental disability4 and denied that Kell mentioned his mental health 

disability to her. Lombardi only reported that Kell had complaints about how Kulbacki 

was talking to and managing him. 

Saucier testified that after meeting with Lombardi and Kell, she talked with Smith 

about what they had said. Thereafter, she took Kell and Lombardi to the airport, but she 

could not remember Kell complaining as they drove to the airport about McCollum using 

the word “retard.” She said she could not remember any specifics about the conversation 

on the way to the airport, except discussion about her new baby. 

Saucier testified she did not retain her notes of her office conversation with Kell or 

Lombardi because, “Our process is when we have a complaint that rises to the level of 

like a diversity, a diversity complaint or sexual harassment or the types of complaints that 

we’re going to do an investigation on, we will go ahead and switch to our internal 

investigation form. So when we talk to employees, and we talk to a lot of employees if 

they have complaints, we take that information down and it doesn’t rise to a level of an 

investigation or it doesn’t violate their rights, we don’t -- I haven’t retained those because 

of the sheer volume of employee concerns that are brought forward that don’t fall into 

that criteria. But when it is, we do a formal investigation.” 

For a formal investigation, the matter would be sent to the AutoZoner Relations 

Department and personnel there would be informed of the complaint, but no formal 

investigation was begun in this case. Saucier nevertheless testified she had a subsequent 

 

4

 Saucier testified that medical files are not maintained with the personnel files. 
9

phone conversation with Kell to let him know “we’re looking into this, we’re looking 

into your concerns, they’ve been heard and we have a process going with it.” What 

Saucier said she did was to “informally investigate[]” by speaking with Kulbacki and 

giving him “some coaching,” which is Saucier’s word for “follow-up for the informal 

complaint.” Saucier said she asked Kulbacki “questions about his management of 

[plaintiff], [plaintiff’s] district performance, how he was coaching him, how he was 

speaking to him, how he was directing his performance, . . . how they’re working with 

the regional team.” She testified that she asked “how are you approaching it, what’s your 

conversation with him. And then formal if you want to call it from a perspective it could 

involve some coaching where you could direct him about different ways to direct their 

employees.” 

Saucier also had a conversation with McCollum about Kell’s complaint that 

Kulbacki was being mean and unfair. Saucier did not ask Kell or McCollum why 

Kell was bringing the matter to Saucier rather than to McCollum, which was the 

“recommended flow” within the AutoZone hierarchy. Saucier indicated AutoZone 

allows employees to submit complaints to other managers outside the “recommended 

flow.” 

Saucier testified that less than a month after Kell’s complaint, she had a 

conversation with Kell, in which she informed him, “we have looked at your concerns, 

I have talked to [Kulbacki] about them. [¶] There are some things that are differences 

or disagreements or disputes between two people in a working relationship. We spoke 

to [Kell’s] regional manager, gave him some coaching.” 

Kulbacki testified he did not recall Saucier telling him that Kell complained about 

him (Kulbacki) being mean and unfair. He also testified he did not recall whether he 

received any coaching from Saucier. 

AutoZone’s “Legal Module” in the district manager training manual provided at 

the training conference stated, “Emails are discoverable - Don’t retain emails detailing 
10

problems.” It also stated, “Information in your daytimer/planner is discoverable. When 

logging information for yourself only list the facts - leave out your opinions.” The 

manual directed that this “Legal Module” should be posted in all stores so store managers 

and supervisors would know what to do in problem situations. Smith testified that the 

outside counsel who made these advisements further explained that e-mails should be 

forwarded to AutoZoner Relations so they could all be retained in one place, and notes 

should be understandable and professional. Nothing in the written document describes 

this additional explanation regarding e-mails and notes.

After the training conference, Kell performed a loss prevention (LP) audit of store 

2858 in Stockton around June 6 or 8, before his upcoming vacation June 19 to 25, 2005. 

Because the store had a history of cash or inventory losses (“high shrink”), monthly 

audits were required. Audits are based on documents from a “look-back period” of 

14 days. Kell said the practice was to print out copies of the audit for the LP binder, store 

manager, etc., and then press F7 on the computer keyboard to enter the audit into the 

system. 

On June 24, 2005, near the end of his Disneyland vacation with his family, Kell 

received a phone call from Regional LP Manager Kathryn White, saying Kell needed to 

complete the LP audit for store 2858. Kell told her it was already done. White said the 

audit did not show in the system, and he needed to “get to the store and get it done as 

soon as possible.” Kell repeated that the audit was done. He also told her a copy was at 

the store. White had not said anything about the audit coming due during the weekly 

regional conference call on June 13, 2005, before Kell left for vacation, despite her 

practice of reminding district managers of outstanding audits. Kell testified that, had 

White brought it up at that time, he would have discovered that the computer had not 

captured the audit, and he could have simply provided her with his hard copy. But since 

more than 14 days had passed, the audit had to be redone. However, Kell also testified 

that, when White called him on vacation, he did not think of simply giving White a copy 
11

of the audit he had already performed. Of the five or six audits Kell completed before 

he went on vacation, only the LP audit of store 2858 was missing. Kell testified that 

White could have done the audit herself. White testified that she had done audits for 

district managers many times if a district manager said he or she was too busy with 

other things. 

When Kell returned from vacation on June 27, 2005, his workload was “pretty 

horrendous.” Decisions had been put off while he was gone and there was an HR 

problem in one his stores. Because he had other pressing matters, he enlisted the help of 

store manager Zarate to do a new audit for store 2858. The audit was completed on 

June 28, 2005. There was conflicting evidence as to whether it was permissible for 

district managers to rely on store managers in conducting audits. Kell found a few errors 

in the store manager’s self audit. Kell gave store 2858 a passing score of 93. However, 

in his deposition, Kell admitted he was in a rush and did not comply with audit 

procedures required by AutoZone’s DIY (Do It Yourself) LP Audit Training Guide. He 

did not personally verify the portions of the audit done by Zarate. Kell admitted he knew 

that, by pressing F7 to enter the audit on the store’s computer, he was representing to 

AutoZone that he, Kell, had verified the accuracy of the audit, when in fact he had not 

done so. He nevertheless did not consider what he had done to be document falsification. 

White testified that on July 7, 2005, she visited store 2858 to conduct a “pre-blitz” 

LP audit before an LP blitz, in which combined regional LP teams go through stores in 

detail looking for loss prevention issues. White’s audit yielded a score of 57 -- much 

lower than the 93 in Kell’s audit. She said she did the audit to help the store, though it 

was not required. She did not keep the printout of her audit. 

There was conflicting evidence as to whether White actually conducted an audit 

and the results. According to Kell, White never showed him her audit and did not 

provide him with an actual score from her audit. She asked him why his audit was 

different from hers, but she did not explain what the differences were. In response, he 
12

told her, “Remember, you told me I needed to come into the store and do it really quick” 

and she said “[y]eah” and that it “wasn’t really a big deal.” Zarate also testified White 

did not tell him that his store received a failing audit score of 57. Neither Kell nor Zarate 

received from White an “audit fix-it list” to detail flaws and provide tips on improving 

performance, even though it was AutoZone policy to do so. White gave Kell only a blitz 

fix-it list.5 

Kell never saw a fix-it list from a July 7 audit until after this litigation started. 

At her deposition, White produced an unsigned fix-it list consisting of two pages dated 

on the first page July 7, 2005. White admitted at the deposition that she had nothing 

other than her memory to prove she conveyed the information to Kell. At trial, White 

produced a three-page July 7, 2005 fix-it list bearing purported signatures of Kell 

and Zarate on the third page. She said she happened to find it after her deposition. 

She did not subsequently correct her deposition testimony. Her deposition notice had 

not required a production of documents, so she gave the fix-it list to AutoZone’s counsel 

and did not provide it to Kell’s counsel. 

White testified that the newly discovered fix-it list is the original. The first two 

pages were identical to copies of the two pages White brought to the deposition. The 

third page, which bore only the signatures, was not dated and there was nothing on that 

page connecting it to the first two pages. 

After her July 7 audit, White told Kulbacki that “there was a Q & A going on” and 

“it doesn’t look good” for Kell. 

 

5

 AutoZone says Kell admitted White gave him a short fix-it list on July 7, but the cited 

page of the transcript shows only that Kell testified White gave him a “blitz fix-it list” of 

“stuff that needed to be focused on before the blitz,” but he testified she did not give him 

an audit fix-it list. 
13

No one asked Kell about the audit discrepancy until over a month after White’s 

visit, when she conducted a handwritten investigative “Q&A” of Kell on August 15, 

2005. In the interim, Kell performed his normal duties, including performing audits, 

training others on audit procedures, and even participating in the LP blitz of other stores. 

AutoZone did not save any documents which would have validated White’s audit and 

proved that Kell’s audit was false. 

White conducted the August 15 investigative Q&A with McCollum -- the person 

about whom Kell had complained to Saucier and with whom Saucier had conversed 

about Kulbacki -- present as a witness. McCollum’s presence made Kell uncomfortable. 

As part of the Q&A, Kell handwrote answers to specific questions and signed the form. 

Kell wrote he was in a rush during the June 28 audit, having just returned from vacation. 

He “skimmed” the audit, and probably trusted Zarate, the store manager, too much. He 

wrote that this was the first time he had relied on a store manager’s audit. Kell wrote 

“yes” in response to questions asking if he was treated fairly and gave his statement 

without threats or promises. In response to a question, “Is there anything you wish to 

add?” Kell wrote he “should have dug deeper” but this was the first time he had a 

discrepancy, and it had come to light at conference calls that a lot of district managers’ 

audits did not match LP grades, and Kell hoped that all district managers were being 

treated the same. 

White never interviewed Zarate. She testified Kell “was the one who was in 

question for failing to do his audit properly. It had nothing to do with [Zarate].” 

The day after the Q&A, Kell met with his doctor and was put on medical leave. 

While on leave, Kell phoned Saucier and left a voicemail message complaining 

that the Q&A had been in retaliation for his complaints. Kell testified that Saucier called 

him back and they spoke for 40 to 45 minutes. He again told her he believed the Q&A 

was in retaliation for his complaints. He also said he had medication issues during the 

session. 
14

Saucier testified Kell attempted to make contact with her after the Q&A, but she 

had no recollection of speaking with him and denied that Kell ever called her with a 

retaliation complaint. 

While on leave, Kell received an e-mail from Smith that should not have been 

directed to Kell, indicating Saucier had requested a self-demotion.6 Kell took it as a 

message that he no longer had anyone to follow up on his complaints, and he should just 

shut up. Smith testified the e-mail was sent to Kell by mistake.7 

On October 21, 2005, a second Q&A was conducted by AutoZone’s divisional 

lead investigator, Octavio Jara, because plaintiff had complained of medication issues at 

the first Q&A. Kell testified he was told the second Q&A was needed for followup. Jara 

did not testify, but the second written Q&A was used in the decision to fire Kell. The 

form showed that, pursuant to company policy, Jara prohibited Kell from using the tape 

recorder he brought into the room. Kell handwrote on the second Q&A that he rushed his 

audit because he had just returned from vacation, was “behind on issues in the district,” 

was told the audit had to be done, and had a doctor’s appointment later in the same 

morning of the audit. Kell wrote he believed he was supposed to go back 14 days for the 

audit, but he “mistakenly” went back only two or three days. In response to the question 

whether he wanted to add anything, Kell wrote: (1) White found discrepancies in other 

district managers’ audits and asked whether they underwent similar interviews, (2) in the 

past he had asked the regional staff for support but did not get it, and (3) his mental 

health condition had become very bad during this time frame and he had to take a leave 

 

6

 Saucier and Smith testified that Saucier requested a demotion so she could spend more 

time with her new baby. 

7

 Smith testified that he intended to send the e-mail to a payroll clerk named Traveka. 

He said he typed in the first two or three letters in AutoZone’s e-mail system, and the 

system filled in the address.
15

of absence. When asked who denied him support, Kell gave the names of Kulbacki and 

McCollum and wrote that Kulbacki had recently acknowledged he should have given 

Kell support. 

Kell testified he told Jara that somebody was out to retaliate against him for 

having filed a complaint with Saucier. When asked during his testimony why he did not 

mention retaliation in his written comment on the Q&A, Kell testified he did not think of 

putting it on there. He thought it important but did not think it important enough to put it 

on the written Q&A. He said the Q&A was over and his mentioning it was more of a 

general conversation he had with Jara. Jara told him to put it in writing, but Kell declined 

to do so and told Jara to talk to Saucier because she took notes when he made the 

complaint. Kell thought there was no need for him to rewrite the complaints after having 

already reported them to Saucier. 

On November 4, 2005, AutoZone fired Kell. Kulbacki delivered the news to Kell 

in the parking lot outside one of the stores, with McCollum as a witness, after the three of 

them had spent hours together that day working. Kulbacki told Kell he was being fired 

for falsification of AutoZone documents and loss of confidence. Kell was not allowed to 

leave in his company car and had to accept a ride from Kulbacki. Kell was humiliated. 

Kulbacki testified he took no part in the decision to fire Kell, though he was 

included in a telephone conference call with Smith and AutoZoner Relations to discuss 

Kell’s termination. AutoZoner Relations is part of AutoZone’s legal department. 

Kulbacki testified that the “termination was determined by the evidence that was turned 

over to AutoZoner Relations and reviewed by my boss, Rick Smith, the divisional VP.” 

Kulbacki acknowledged he had a responsibility to prevent retaliation but said he had no 

authority to check the facts whether Kell’s audit was false. According to Kulbacki, 

AutoZoner Relations’ recommendation to terminate an employee is essentially a 

mandate. He was unsure whether Smith had the authority to override AutoZoner 

Relations. 
16

Saucier testified she was not involved in the LP investigation of Kell. Nor was she 

involved in his termination. Her understanding of the process is that regional LP

conducts investigations and sends the results to the “legal department,” which makes a 

recommendation to the regional team. Rick Smith would have been part of the review of 

the investigation but would have received a recommendation for termination from the 

“legal department.” Because this involved the termination of a district manager, Rick 

Smith and the divisional team would have been responsible for reviewing it or knowing 

what was going on with it, but the recommendation is made to the region where the 

investigation is conducted -- Kulbacki’s team. According to Saucier, Smith would not 

have made the ultimate decision to terminate Kell. 

Smith testified he is an officer and managing agent for AutoZone. He testified it 

was his job to make sure the decision to terminate Kell was fair. He said he reviewed the 

AutoZoner Relations’ investigation and “could not come up with anything that would 

cause [him] to go against their recommendation,” so he concurred with it. But Smith, 

who had 25 years with AutoZone, with the last 12 years as the divisional vice-president, 

also testified in terms of his being the one making the termination decision. He testified 

that “[a]s a best practice, [he] personally get[s] involved in all district manager 

terminations to make sure that the process is fair, to make sure there’s oversight above 

the RM [regional manager], so that[] it’s never just an RM decision making a decision on 

a DM [district manager].” (Italics added.) He testified about the AutoZoner Relations 

review for fairness and consistency, “before they ever bring me the recommendation.” 

(Italics added.) When asked whether he understood that a person who is wrongfully 

terminated from his employment will experience lost income, Smith testified, “I have not 

been wrongfully terminated but I will tell you every decision that I ever make concerning 

an AutoZoner, I spend time agonizing over it. Because I know these people. I’ve grown 

up in this company. I don’t make the decisions lightly. I don’t sit there flippantly and 

decide who stays and who goes. I look at the facts and I do what I’m paid to do, and I 
17

make a decision to the best of my ability.” (Italics added.) When asked whether he had 

done anything other than reviewing Kell’s statements and having a teleconference about 

it “with regard to making the decision as to” Kell, Smith testified, “Other than process 

the entire incident and the situation just like I would do or anybody would do to think 

through what the situation was, what the facts were, what the evidence was and then try 

to make the best decision I can make.” (Italics added.) He added that he went over and 

thought about Kell’s statements, “and I made the decision based on all the facts that I 

had.” When asked whether he relied on Kell’s annual evaluation, “in making [his]

decision to terminate” Kell, he acknowledged that he did not. (Italics added.) 

Smith testified Kell was fired for falsification of an AutoZone document, the 

June 28, 2005 audit. When asked whether Kell accidentally provided false information 

or intentionally falsified information, Smith said Kell “intentionally falsified 

information.” Smith concluded the falsification was intentional because Smith read a 

document that said Kell admitted he did it intentionally. Smith testified, “he did it and he 

knew he did it and he knew he shouldn’t have done it.” Whether Kell had done an earlier 

audit was “not even a question in the situation in the case.” There is a double verification 

to show an audit has been done. “The F7 approval captures it electronically and the hard 

copy printout backs up that.” Without either, “the assumption would be that [an audit] 

wasn’t done.” 

Smith never spoke to Kell, White, or Zarate about the audit. Smith did not read 

the June 28 audit. He did not save the documents from the “period box” used to complete 

the audit. Smith just read the investigative report and the two Q&A’s. Smith testified 

there was no reason for him to talk to anybody, because Kell never called the audit into 

question. Kell admitted he skimmed the audit -- that he only looked back two days. 

Smith did hear that Kell complained after the first Q&A that he had been having 

problems with his medication. But Smith did not construe this as a challenge to fairness. 

And the second Q&A was consistent with the first Q&A. 
18

Jury Instructions

The defense asked for jury instruction on “business judgment” and at-will 

employment because, as defense counsel told the court, “a major defense, a theory of 

defense of AutoZone in this case is that look, whether our decision was right or wrong, 

fair, unfair, wise, unwise, it doesn’t matter because this gentleman was an at-will 

employee. As long as it was not motivated by retaliatory minimis [sic], then it shouldn’t 

be second guessed by the jury, and that’s a major theory by the defense.” 

The trial court rejected the defense request, because the point was already covered 

in other instructions on the elements of retaliation as well as a BAJI instruction on mixed 

motives (BAJI No. 12.26)8that the court stated it would give the jury. 

Defense counsel said, “but the danger here without the business judgment 

[instruction], if a jury disagrees with AutoZone’s reason, suppose they think we were too 

harsh and there should have been a demotion instead of a termination, then there’s a void 

left as to what they do. [¶] It could be very tempting for the jury at that juncture, to say, 

well, we disagree. We think this was unfair, so it must have been retaliation. But if you 

put the business judgment instruction in there, then it prevents that. So that’s my point.” 

 

8

 Pursuant to BAJI No. 12.26, the trial court instructed: “If you find that AutoZone, 

Inc.’s action, which is the subject of Travis Kell’s claims, was actually motivated by both 

discriminatory and non-discriminatory reasons, AutoZone, Inc. is not liable if it can 

establish by a preponderance of the evidence that its legitimate reason, standing alone, 

would have induced it to make the same decision.

 “An employer may not, however, prevail in a mixed-motives case by offering a 

legitimate and sufficient reason for its decision if that reason did not motivate it at the 

time of the decision. Neither may an employer meet its burden by merely showing that 

at the time of the decision it was motivated only in part by a legitimate reason. The 

essential premise of this defense is that a legitimate reason was present, and standing 

alone, would have induced the employer to make the same decision.” 
19

Kell’s attorney argued the mixed-motives instruction applied only if the employer 

admittedly considered the employee’s protected status at the time of the decision, e.g., 

firing a woman because she is pregnant and showing up late to work. The instruction is 

inapplicable here, Kell’s counsel argued, because, “[i]n this case nobody is saying that 

they were specifically considering the fact of Travis Kell’s disability and weighing that 

versus what had happened and that was their mixed motive and so we require a mixed 

motive instruction.” Kell also argued the mixed-motives instruction applied only to 

discrimination, and Kell had dismissed the discrimination claim. 

The court ruled that it would give the BAJI instruction on mixed motives. 

The court also instructed the jury with CACI former No. 2505:

“Travis Kell claims that AutoZone, Inc. retaliated against him for complaining to 

AutoZone, Inc. about unlawful harassment and retaliation. To establish this claim, Travis 

Kell must prove all of the following:

“1. That Travis Kell complained to AutoZone, Inc. about unlawful harassment and 

retaliation;

“2. That AutoZone, Inc. discharged Travis Kell;

“3. That Travis Kell’s complaint to AutoZone, Inc. about unlawful harassment and 

retaliation was a motivating reason[9] for Autozone, Inc.’s decision to discharge Travis 

Kell;

“4. That Travis Kell was harmed; and

“5. That AutoZone, Inc.’s conduct was a substantial factor in causing Travis Kell’s 

harm.” (Italics added.) 

 

9

 In light of Harris, supra, 56 Cal.4th at page 232, CACI No. 2505 has been revised to 

change “a motivating reason” to “a substantial motivating reason.” (Judicial Council of 

Cal., Civ. Jury Instns. (2013 supp.) Directions for Use, p. 178.)
20

CACI former No. 2507 told the jury: “A ‘motivating reason’ is a reason that 

contributed to the decision to take certain action, even though other reasons also may 

have contributed to the decision.”10 

Regarding causation of harm, the court instructed with CACI No. 430 (Negligence 

Causation) that “A substantial factor in causing harm is a factor that a reasonable person 

would consider to have contributed to the harm. It must be more than a remote or trivial 

factor. It does not have to be the only cause of the harm. [¶] Conduct is not a substantial 

factor in causing harm if the same harm would have occurred without that conduct.” 

Regarding failure to prevent harassment or retaliation, the jury was instructed with 

CACI former No. 2527 that Kell had to prove he was subjected to harassment “because” 

he had a mental disability, or retaliation “because” he opposed AutoZone’s unlawful 

practices, and AutoZone’s “failure to take reasonable steps to prevent harassment or 

retaliation was a substantial factor in causing [him] harm.” 

The trial court instructed the jury with BAJI No. 12.26 on mixed motives. (See fn. 

8, ante.)

Jury Verdicts 

The jury returned special verdicts finding:

Kell was not subjected to unwanted harassing conduct by AutoZone or Kulbacki 

due to Kell’s mental disability.

However, the jury found that Kell engaged in activities protected by the laws 

against unlawful harassment and retaliation by a vote of 11 to one. AutoZone discharged 

 

10

 In light of Harris, supra, 56 Cal.4th at page 232, CACI No. 2507 has been revised 

to read, “A ‘substantial motivating factor’ is a reason that actually contributed to the 

[specify adverse employment action]. It must be more than a remote or trivial reason. 

It does not have to be the only reason motivating the [adverse employment action].” 

(Brackets and italics in original.) (Judicial Council of Cal., Civ. Jury Instns. (2013 supp.) 

Sources and Authority for CACI No. 2507, p. 183.)
21

Kell. Kell’s protected activity was “a motivating reason” forAutoZone’s decision to 

discharge Kell from his employment. AutoZone’s conduct was a substantial factor in 

causing harm to Kell. Polling of the jury revealed nine voted “yes” and three voted 

“no” on the latter two questions. The jury unanimously found that Kell’s damages were 

$36,827 for past economic damages, and $100,000 for past mental suffering, with zero 

for future mental suffering.11

In addition to finding retaliation, the jury found by a vote of 10 to two that 

AutoZone failed to take reasonable steps to prevent the “harassment or retaliation.” By a 

vote of nine to three, the jury found that Kell was subjected to “either harassing conduct 

because of his mental disability or retaliation because he engaged in activities protected 

by the law against unlawful harassment and retaliation.” And by a vote of nine to three, 

this failure was a substantial factor in causing Kell’s harm.12 The jury unanimously 

found the same amount of damages for economic loss and mental suffering. 

The jury also found, by clear and convincing evidence, an agent or employee of 

AutoZone engaged in the conduct with malice, oppression or fraud, and one or more 

officers, directors, or managing agents of AutoZone authorized or ratified this conduct. 

The vote on these questions was nine to three. 

 

11

 Kell got a new job in retail sales management about four months after AutoZone fired 

him. 

12

 In his respondent’s brief on appeal, Kell says AutoZone does not challenge the 

verdict concerning prevention, but AutoZone’s opening brief does argue the prevention 

claim is derivative of the retaliation claim and falls with it. We agree with AutoZone 

that the prevention claim is derivative. (Trujillo v. North County Transit Dist. (1998) 

63 Cal.App.4th 280, 289 [“there’s no logic that says an employee who has not been 

discriminated against can sue an employer for not preventing discrimination that didn’t 

happen, for not having a policy to prevent discrimination when no discrimination 

occurred”].)
22

For punitive damages, AutoZone submitted its annual report showing operating 

profits of over one billion dollars per year for 2006, 2007, and 2008, and net income of 

$641,606,000 for the 53 weeks ending August 30, 2008. The jury awarded Kell 

$1,231,848 in punitive damages. 

The trial court entered judgment that Kell recover from AutoZone the total of 

$1,505,502. 

Postverdict Motions 

AutoZone moved for JNOV or new trial, arguing inconsistent verdict in that the 

nine jurors who voted in favor of Kell on liability were not the same nine jurors who 

voted in favor of punitive damages,13 insufficiency of evidence for punitive damages, and 

unconstitutionally excessive award of punitive damages. The trial court denied the 

motions, except to order an amendment to the judgment, which incorrectly counted 

compensatory damages twice. The court ordered amendment of the judgment to show 

the correct amount of $1,368,675, though no amended judgment appears in the record. 

DISCUSSION

I. FEHA Retaliation

FEHA makes it unlawful for an employer to discharge an employee in retaliation 

for opposing unlawful harassment or discrimination in employment, even if the charge of 

harassment or discrimination is unfounded. (§ 12940, subd. (h);14 Yanowitz v. L’Oreal 

USA, Inc. (2005) 36 Cal.4th 1028, 1043.)

 

13

 Juror No. 9 voted “yes” on the retaliation questions, but “no” as to whether the 

amount of punitive damages represented his/her verdict. Juror No. 12 voted “no” on 

the retaliation questions, but “yes” when polled about the punitive damage award. 

14

 Section 12940 states in pertinent part: “It is an unlawful employment practice, unless 

based upon a bona fide occupational qualification, or, except where based upon 

applicable security regulations established by the United States or the State of California: 

[¶] . . . [¶] (h) For any employer, labor organization, employment agency, or person to 
23

“To establish a prima facie case of retaliation, the plaintiff must show (1) he or she 

engaged in a protected activity; (2) the employer subjected the employee to an adverse 

employment action; and (3) a causal link between the protected activity and the 

employer’s action. [Citations.] Once an employee establishes a prima facie case, the 

employer is required to offer a legitimate, nonretaliatory reason for the adverse 

employment action. [Citation.] If the employer produces a legitimate reason for the 

adverse employment action, the presumption of retaliation ‘drops out of the picture,’ 

and the burden shifts back to the employee to prove intentional retaliation. [Citation.]” 

(Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.)

When an employer proffers a facially sufficient lawful reason for the termination, 

the plaintiff must show the termination resulted from retaliatory animus. (Reeves v. 

Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 112 (Reeves).) The employee cannot 

simply show the employer’s decision to fire him was wrong or mistaken, since the factual 

dispute is whether retaliatory animus motivated the employer, not whether the employer 

is wise, shrewd, prudent, or competent. Rather, the employee must demonstrate such 

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the 

employer’s proffered legitimate reasons for its action that a reasonable fact finder could 

rationally find them unworthy of credence, hence infer the employer did not act for the 

asserted nondiscriminatory reasons. (Hersant v. Department of Social Services (1997) 

57 Cal.App.4th 997, 1005.)

Causation is generally a question of fact for the jury. (Lucas v. County of Los 

Angeles (1996) 47 Cal.App.4th 277, 289.) A causal link may be established by an 

inference derived from circumstantial evidence such as evidence demonstrating that the 

employer was aware of the protected activity, and the adverse action followed within a 

 

discharge, expel, or otherwise discriminate against any person because the person has 

opposed any practices forbidden under this part or because the person has filed a 

complaint, testified, or assisted in any proceeding under this part. . . .” (Italics added.) 
24

relatively short time. (Morgan v. Regents of University of California (2000) 

88 Cal.App.4th 52, 69.)

II. New Issue of Instructional Error

The parties’ initial appellate briefs argue, among other matters, whether Kell met 

his burden to show that his termination resulted from retaliatory animus for complaining 

of mental disability harassment, rather than nonretaliatory reasoning related to the audit, 

i.e., whether retaliation was “a motivating reason” for AutoZone’s decision to fire Kell, 

in accordance with then-extant case law and the jury instructions. We normally review a 

substantial evidence contention first, because if it has merit, our reversal of the judgment 

ends the case, whereas other contentions may call for a remand for retrial. (McCoy v. 

Hearst Corp. (1991) 227 Cal.App.3d 1657, 1661 [a reversal for insufficiency of the 

evidence is based on the fact that the plaintiff’s evidence, as a matter of law, does not 

support the plaintiff’s cause of action].) However, while this appeal was pending, the 

California Supreme Court articulated a heightened standard of causation, requiring the 

plaintiff in a FEHA discrimination case to prove that the illegal criterion was “a 

substantial motivating factor.” (Harris, supra, 56 Cal.4th 203.) Therefore, we begin by 

considering the effect of this new standard on this case.

A. The Harris Decision

In Harris, our high court held that, in order for a plaintiff to recover damages 

for employment discrimination under FEHA, it is not enough for the plaintiff to prove 

the illegitimate criterion was “ ‘a motivating factor’ ” for the employer’s decision. 

Rather, the plaintiff must produce evidence to show that the illegitimate criterion was a 

“substantial motivating factor” for the employer’s decision.15 (Harris, supra, 56 Cal.4th

at p. 232.)

 

15

 We conclude post that Harris applies to retaliation claims under FEHA.
25

The plaintiff in Harris alleged that she was fired from her job as a city bus driver 

because she was pregnant -- a violation of FEHA’s prohibition against sex 

discrimination.16 (Harris, supra, 56 Cal.4th at p. 211.) The city asserted the plaintiff 

was fired for poor performance, but asked the trial court to give BAJI No. 12.26 (see 

fn. 8, ante), which would have told the jury that if it found a mix of discriminatory and 

legitimate motives, the city could avoid liability by proving that a legitimate motive alone 

would have led it to make the same decision to terminate the plaintiff. (Harris, supra, at 

pp. 211, 213.) The trial court refused to give BAJI No. 12.26. Instead, the trial court 

merely instructed the jury that the plaintiff had to prove her pregnancy was a motivating 

factor/reason for the termination -- something that moved the will and induced action 

even though other matters may have contributed to the taking of the action. (Id. at 

p. 213.) The jury found by a vote of nine to three that the pregnancy was a motivating 

reason for the city’s decision to fire the plaintiff. (Ibid.) The Court of Appeal held the 

refusal to instruct on mixed motives was prejudicial error. (Id. at pp. 211, 214.) The 

Supreme Court granted review “to decide whether BAJI No. 12.26’s mixed-motive 

instruction is correct.” (Harris, supra, 56 Cal.4th at p. 214.)

The focus of the Harris court’s analysis was the interpretation of the phrase 

“because of” in section 12940, subdivision (a). (See fn. 16, ante.) The court noted that 

the phrase means there must be a causal link between the employer’s consideration of a 

protected characteristic and the action taken by the employer. (Harris, supra, 56 Cal.4th 

at p. 215.) The court noted that there are three plausible meanings of “because of,” as set 

forth in section 12940, subdivision (a): (1) discrimination was a “but for” cause of the 

employment decision, (2) discrimination was a “substantial factor” in the decision, or 

(3) discrimination was simply a “motivating factor.” (Id. at p. 217.)

 

16

 Section 12940, subdivision (a) provides in pertinent part that it is an “unlawful 

employment practice” to discharge a person from employment “because of . . . sex.”
26

In rejecting the “but for” test, the Harris court reasoned, “The FEHA’s express 

purpose of ‘provid[ing] effective remedies that will . . . prevent and deter unlawful 

employment practices (§ 12920.5) suggests that section 12940(a)’s prohibition on 

discrimination is not limited to instances where the discrimination is a ‘but for’ cause of 

the employment decision. An adverse employment decision substantially corrupted 

by. . . improper discrimination may be indicative of a recurrent policy or practice. A 

company’s practice of sex stereotyping or a supervisor’s refusal to promote ‘another 

woman’ may not be determinative for a particular job applicant, but it may be 

determinative for a future applicant if left unsanctioned and allowed to persist as a 

lawful employment practice.” (Harris, supra, 56 Cal.4th at p. 230.) 

The Harris court addressed the legal consequences that flow from an employer’s 

proof that it would have made the same decision in the absence of any discrimination. 

(Harris, supra, 56 Cal.4th at p. 224.) The court clarified that a “same decision” showing 

meant “proof that the employer, in the absence of any discrimination, would have made 

the same decision at the time it made its actual decision.” (Ibid.) In light of FEHA’s 

goal of prevention and deterrence, “a same-decision showing by an employer is not a 

complete defense to liability when the plaintiff has proven that discrimination on the 

basis of a protected characteristic was a substantial factor motivating the adverse 

employment action. . . . [M]ere discriminatory thoughts or stray remarks are not 

sufficient to establish liability under the FEHA. But it would tend to defeat the 

preventive and deterrent purposes of the FEHA to hold that a same-decision showing 

entirely absolves an employer of liability when its employment decision was substantially 

motivated by discrimination.” (Id. at p. 225.) “[T]o say that discrimination was not the 

‘but for’ cause of an employment decision is not to say that discrimination played an 

insignificant role or that it necessarily played a lesser role than other, nondiscriminatory 

factors.” (Id. at p. 229.) The court said it did not suggest “that discrimination must be 

alone sufficient to bring about an employment decision in order to constitute a substantial 
27

motivating factor. But it is important to recognize that discrimination can be serious, 

consequential, and even by itself determinative of an employment decision without also 

being a ‘but for’ cause.” (Ibid.) “When discrimination has been shown to be a 

substantial factor motivating an employment action, a declaration of its illegality serves 

to prevent that discriminatory practice from becoming a ‘but for’ cause of some other 

employment action going forward.” (Id. at p. 230.) The Harris court went on to say, 

“Requiring the plaintiff to show that discrimination was a substantial motivating factor, 

rather than simply a motivating factor, more effectively ensures that liability will not be 

imposed based on evidence of mere thoughts or passing statements unrelated to the 

disputed employment decision. At the same time, . . . proof that discrimination was a 

substantial factor in an employment decision triggers the deterrent purpose of the FEHA 

and thus exposes the employer to liability, even if other factors would have led the 

employer to make the same decision at the time.” (Harris, supra, 56 Cal.4th at p. 232.) 

The Harris court held, “In sum, we construe section 12940(a) as follows: When a 

plaintiff has shown by a preponderance of the evidence that discrimination was a 

substantial factor motivating his or her termination, the employer is entitled to 

demonstrate that legitimate, nondiscriminatory reasons would have led it to make the 

same decision at the time. If the employer proves by a preponderance of the evidence 

that it would have made the same decision for lawful reasons, then the plaintiff cannot be 

awarded damages, backpay, or an order of reinstatement. However, where appropriate, 

the plaintiff may be entitled to declaratory or injunctive relief. . . .” (Harris, supra, 

56 Cal.4th at p. 241.) The court declined to say what evidence might be sufficient for 

“substantial motivating factor,” because of “the wide range of scenarios in which mixedmotive cases might arise . . . .” (Id. at p. 232.) As for asserting the defense, the court

said the city’s answer to the complaint, in which it contended its decision was based on 

legitimate nondiscriminatory reasons, sufficed to put the plaintiff on notice that the city 

would defend on the basis that it did not unlawfully discriminate and had a legitimate 
28

reason for firing her. (Harris, supra, 56 Cal.4th at p. 240.) The court also said an 

employer need not concede mixed motives in order to rely on a “same decision” 

defense. (Ibid.) “[T]here is no inconsistency when an employer argues that its motive 

for discharging an employee was legitimate, while also arguing, contingently, that if the 

trier of fact finds a mixture of lawful and unlawful motives, then its lawful motive alone 

would have led to the discharge.” (Ibid.) A defendant may plead inconsistent defenses in 

an answer, and such defenses may not be considered admissions against interest. (Id. at 

pp. 240-241.)

As for jury instructions, the court concluded, “In light of today’s decision, a jury 

in a mixed-motive case alleging unlawful termination should be instructed that it must 

find the employer’s action was substantially motivated by discrimination before the 

burden shifts to the employer to make a same-decision showing, and that a same-decision 

showing precludes an award of reinstatement, backpay, or damages.” (Harris, supra, 

56 Cal.4th at p. 241.) The court affirmed the Court of Appeal’s judgment overturning the 

damages verdict and remanded for the trial court to determine, in the event of a retrial, 

whether the evidence warranted a mixed-motive instruction. (Id. at pp. 241-242.)

B. The Alamo Decision 

Following Harris, the Court of Appeal, Second Appellate District, filed Alamo, a 

FEHA discrimination case which reversed a judgment in favor of the plaintiff on the 

ground that the trial court’s failure to instruct on Harris’s “substantial motivating factor” 

standard was prejudicial error. The Court of Appeal initially had affirmed the judgment, 

but the California Supreme Court granted review and transferred the case back to the 

Court of Appeal to reconsider its opinion in light of Harris. (Alamo, supra, 

219 Cal.App.4th at pp. 469, 474.)

In Alamo, the plaintiff was fired the day she returned from maternity leave. She 

alleged she was fired due to pregnancy discrimination and retaliation in violation of the 
29

FEHA and common law wrongful discharge.17 (Alamo, supra, 219 Cal.App.4th at 

pp. 469-470, 471-472.) The employer maintained it fired her for poor performance, 

insubordination, and misconduct in engaging in a verbal altercation with a coworker. (Id. 

at pp. 472-473.) 

The trial court instructed the jury, pursuant to then-extant CACI instructions, that 

the plaintiff had to prove her pregnancy or taking pregnancy leave was “a motivating 

reason” for her termination, and that “a motivating reason” was a reason that contributed 

to the decision even though other reasons also would have contributed. (Alamo, supra, 

219 Cal.App.4th at p. 474.) Regarding failure to prevent discrimination or retaliation, the 

court instructed the jury that the plaintiff had to prove she was subjected to discrimination

or retaliation “because” she took a pregnancy-related leave. (Ibid.) The trial court 

refused the employer’s requests to modify the standard CACI instructions to require 

“a substantial motivating reason” and to define the term as not being met if the same 

decision would have been made in the absence of any discriminatory or retaliatory 

motive. (Id. at p. 475.) The trial court also rejected the employer’s request to instruct 

the jury with the mixed-motive instruction, BAJI No. 12.26, though the record did not 

reveal the court’s reasoning. (Ibid.)

The jury returned a general verdict in favor of the plaintiff and awarded her 

$10,000 in compensatory damages, but the jury found she failed to prove malice, 

oppression, or fraud, to support punitive damages. (Alamo, supra, 219 Cal.App.4th at 

p. 473.)

 

17

 It is not clear from the recitation of the facts in Alamo what complaint the plaintiff 

made or what the plaintiff did to oppose unlawful employment practices so as to provide 

a basis for the retaliation claim. (§ 12940, subd. (h) [unlawful for employer to discharge 

or discriminate against any person “because the person has opposed any practices 

forbidden under this part or because the person has filed a complaint, testified, or assisted 

in any proceeding under this part”].)
30

On appeal, the employer argued the trial court erred by (1) instructing the jury 

pursuant to CACI that the plaintiff merely had to prove her pregnancy was “a motivating 

reason,” rather than the “but for” cause of her discharge; and (2) refusing to instruct with 

BAJI No. 12.26 that the employer could avoid liability under a mixed-motive defense by 

proving it would have made the same decision even in the absence of any discriminatory 

or retaliatory motive. (Alamo, supra, 219 Cal.App.4th at p. 474.)

As to the first point, the Alamo court concluded that, in light of Harris, the jury 

should have been instructed that the pregnancy was a substantial motivating reason for 

the termination. (Alamo, supra, 219 Cal.App.4th at pp. 478-479.) The court went on to 

say, however, that the trial court did not err in instructing the jury regarding failure to 

prevent discrimination or retaliation pursuant to CACI former No. 2527, that the plaintiff 

had to prove the employer discriminated or retaliated against her “because” she took a 

leave for pregnancy, childbirth or related medical conditions. (Id. at pp. 479-480.)

As for BAJI No. 12.26 on mixed motives, the Alamo court held that the trial 

court’s refusal to give that instruction was not error. (Alamo, supra, 219 Cal.App.4th at 

pp. 480-481.) The employer’s failure to plead a mixed-motive or same-decision defense 

in its answer forfeited the defense at trial. (Ibid.) The Alamo court recognized that 

“[w]here an employer fails to plead the mixed-motive defense in its answer to the 

plaintiff’s complaint, the trial court is not precluded from instructing the jury on the 

defense provided that the employer’s properly pleaded affirmative defenses placed 

the plaintiff on notice of its intent to defend on the basis that it had not discriminated 

against the plaintiff and had legitimate reasons for the adverse employment decision.” 

(Alamo, supra, 219 Cal.App.4th at p. 482, citing Harris, supra, 56 Cal.4th at pp. 239-
31

240.) But the employer’s pleading did not put the plaintiff on notice of a mixed-motive 

defense.18 (Alamo, supra, 219 Cal.App.4th at p. 482.)

The Alamo court summarily concluded, without analysis, that the error in 

instructing the jury on “a motivating reason” rather “a substantial motivating reason” was 

prejudicial error “because the proper standard of causation in a FEHA discrimination or 

retaliation claim is not ‘a motivating reason,’ as stated in the instructions [given], but 

rather ‘a substantial motivating reason’ as set forth in Harris.” (Alamo, supra, 

219 Cal.App.4th at p. 483.) The Alamo court reversed the judgment and remanded for 

retrial using the Harris standard of causation, and excluding the mixed-motive defense. 

(Ibid.)

C. Application of the Harris Standard

Kell’s supplemental brief argues AutoZone forfeited any challenge to the 

“motivating reason” instruction by failing to raise it as an appellate issue. Kell is wrong. 

Although the trial court in this case correctly instructed the jury on causation 

under the then-extant case law, Harris’s articulation of a heightened standard applies to

this appeal, because Kell’s judgment is not yet final. (Waller v. Truck Ins. Exchange, Inc.

(1995) 11 Cal.4th 1, 23-25 [“Courts of Appeal routinely consider newly published case 

law that was not available until after entry of judgment in the trial court”; see id. at pp. 

24-25].) Judicial decisions apply retroactively to cases not yet final. (Id. at pp. 24-25; 

Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1334-1335 [same].) And we 

 

18

 No such obstacle appears in the case before us. AutoZone’s answer to the complaint 

asserted as an affirmative defense that, even assuming disability was a factor in the 

employment decision, AutoZone would have made the same decision even if disability 

was not considered. AutoZone’s answer did not expressly assert the same defense on the 

retaliation claim. Nevertheless, the trial court, at AutoZone’s request and over Kell’s 

objection, instructed the jury with BAJI No. 12.26. (See fn. 8, ante.) Kell’s 

supplemental brief acknowledges, “There is no issue of waiver as to the ‘mixed-motive’ 

instruction . . . .” 
32

cannot fault trial counsel or the court for failing to anticipate the new case law. (In re 

Glady R. (1970) 1 Cal.3d 855, 861; Guardianship of Stephen G. (1995) 40 Cal.App.4th 

1418, 1422-1423.)

Though Harris and Alamo dealt with FEHA discrimination, and the instant case 

deals with retaliation, neither party argues retaliation should be treated differently in this 

context, and we see no reason to do so. Similar to the discrimination provision in 

subdivision (a) of section 12490, the FEHA retaliation provision prohibits discharging an 

employee “because” he or she has opposed any practices forbidden by FEHA. (§ 12940, 

subd. (h).) This language suggests the causation requirements should be the same. 

Moreover, to construe Harris as applicable only to discrimination and not retaliation for 

opposing discrimination would make it harder for a plaintiff to prove discrimination (as 

“a substantial motivating reason”) than retaliation (as “a motivating reason”). No policy 

reason supports such a disparity.

Retaliation has been part of California’s fair employment statutes since the 1959 

enactment of Labor Code former section 142019 as part of the California Fair 

Employment Practice Act or FEPA (Stats. 1959, ch. 121, § 1, p. 2002), and remained in 

the statutes when they were moved to the Government Code as the California Fair 

Employment and Housing Act in 1980. (Stats. 1980, ch. 992, § 4, p. 3140 et seq.

[originally enacted as subd. (e) of § 12940 in Stats. 1980, ch. 992, § 4, p. 3149, 

redesignated as subd. (f) of § 12940 in Stats. 1982, ch. 1193, § 2, p. 4259; see § 12940, 

subd. (a)(2), (4), p. 4258), and later redesignated as subd. (h) of § 12940 in Stats. 2000, 

 

19

 Labor Code former section 1420, subdivision (d) made it unlawful “For any employer, 

labor organization or employment agency to discharge, expel or otherwise discriminate 

against any person because he has opposed any practices forbidden under this act or 

because he has filed a complaint, testified or assisted in any proceeding under this part.” 

(Stats. 1959, ch. 121, § 1, p. 2001.) The only material change in language is that the 

current statute, Government Code section 12940, subdivision (h), says “or person” after 

“employment agency.” 
33

ch. 1049, § 7.5, p. 7716].) And Harris acknowledged FEHA’s purpose is both to 

“prevent and deter unlawful employment practices” (Harris, supra, 56 Cal.4th at 

p. 223, quoting § 12920.5), which covers both discrimination and retaliation. 

We observe that, after Harris, the United States Supreme Court held in June 2013 

that plaintiffs suing for employment discrimination/retaliation under Title VII of the Civil 

Rights Act of 1964 (42 U.S.C. § 2000e et seq.) must meet a higher (not lesser) standard 

of causation for retaliation claims than for discrimination claims. (University of Texas 

Southwestern Medical Center v. Nassar (2013) U.S. [186 L.Ed.2d 503] (University 

of Texas).) For discrimination claims, the plaintiff must prove that the illegitimate 

criterion was “a motivating factor.” (University of Texas, supra, U.S. at p. ... 

[186 L.Ed.2d at p. 516].) For retaliation claims, the plaintiff must prove traditional 

“but for” causation. (University of Texas, supra, U.S. at pp. , [186 L.Ed.2d at 

pp. 518, 523, 524-525].) The reason is because Title VII, pursuant to a 1991 amendment, 

expressly states in the discrimination provision (42 U.S.C. § 2000e-2(m)) -- but not the 

retaliation provision (42 U.S.C. § 2000e-5(g)(2)(B) -- that a plaintiff must show race, 

color, etc. was “a motivating factor for any employment practice, even though other 

factors also motivated the practice,” but if the employer then showed it would have taken 

the same action anyway, the plaintiff’s remedies are limited to declaratory and injunctive 

relief. (University of Texas, supra, U.S. at pp. , [186 L.Ed.2d at pp. 516, 530].)

No such language appears in FEHA. The Harris court, though it filed its opinion 

several months before the University of Texas case, said California does not follow the 

federal Title VII statute regarding the standard of proof. (Harris, supra, 56 Cal.4th at 

pp. 222-223.) We see no reason to adopt a stricter standard for retaliation than for 

discrimination.

We conclude Harris’s standard applies to retaliation cases. Thus, the instruction 

in which the jury was told that Kell need only show his protected activity was a 

motivating reason was incorrect. 
34

D. Harmless Error

Our conclusion that error occurred does not compel reversal of the judgment.

California Constitution, article VI, section 13, states, “No judgment shall be set 

aside, or new trial granted, in any cause, on the ground of misdirection of the jury . . . 

unless, after an examination of the entire cause, including the evidence, the court shall be 

of the opinion that the error complained of has resulted in a miscarriage of justice.”

Code of Civil Procedure section 475 states, “The court must, in every stage of an 

action, disregard any error, improper ruling, instruction, or defect, in the pleadings or 

proceedings which, in the opinion of said court, does not affect the substantial rights of 

the parties. No judgment, decision, or decree shall be reversed or affected by reason of 

any error, ruling, instruction, or defect, unless it shall appear from the record that such 

error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, 

ruling, instruction, or defect, the said party complaining or appealing sustained and 

suffered substantial injury, and that a different result would have been probable if such 

error, ruling, instruction, or defect had not occurred or existed. There shall be no 

presumption that error is prejudicial, or that injury was done if error is shown.”

“When deciding whether an instructional error was prejudicial, ‘we must examine 

the evidence, the arguments, and other factors to determine whether it is reasonably 

probable that instructions allowing application of an erroneous theory actually misled the 

jury.’ [Citation.] A ‘reasonable probability’ in this context ‘does not mean more likely 

than not, but merely a reasonable chance, more than an abstract possibility.’ [Citation.]” 

(Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 682 (Kinsman).)

Instructional error improperly shifting the burden of proof on causation in a 

products liability case was held harmless in Rutherford v. Owens-Illinois, Inc. (1997) 

16 Cal.4th 953, 983-985 (Rutherford). The erroneous instruction shifted the burden to 

the defendant to prove its asbestos products were not the legal cause of the decedent’s 

asbestos-related cancer and death. (Id. at p. 957.) A correct instruction would have
35

required the plaintiff to establish causation by showing that exposure to the defendant’s 

defective asbestos-containing product, in reasonable medical probability, was a 

substantial factor in contributing to the risk of developing asbestos-related cancer. (Id. 

at pp. 957-958, 982-983.)

In Rutherford, our high court reiterated the harmless error analysis it had 

previously articulated. In considering whether such instructional error was prejudicial, 

courts should consider (1) the state of the evidence, (2) the effect of other jury 

instructions, (3) the effect of the attorneys’ arguments to the jury, and (4) whether 

there is any indication that the jury was misled. (Rutherford, supra, 16 Cal.4th at 

p. 983.) In applying these four considerations, the Rutherford court reasoned:

1. The instruction in no way impaired the defendant’s ability to put before the 

jurors its full case on substantial factor causation. (Rutherford, supra, 16 Cal.4th at 

p. 983.) The instruction would not, by its nature, result in exclusion of evidence, and 

both sides put on evidence, including expert testimony on causation. (Id. at p. 984.)

2. Other instructions minimized the importance of the burden of proof as to the 

substantial factor issue. The jury was told that each concurrent factor contributing to 

an injury is a legal cause regardless of the extent to which it contributes. Even if the

plaintiffs had borne the burden of proving exposure was a substantial factor creating 

the risk of cancer, it was unlikely the jury would have accepted the defendant’s argument 

that the degree of risk such exposure contributed was too small to be considered a legal 

cause of the illness. (Rutherford, supra, 16 Cal.4th at p. 984.)

3. Counsels’ arguments to the jury suggested the burden-shifting instruction 

played little or no role at trial. The defense primarily argued that the plaintiffs failed 

to meet their burden of showing decedent was ever exposed to inhalable fibers from 

defendant’s product. Both sides discussed what portion of the decedent’s asbestos 

exposure was attributable to the defendant’s product and whether such exposure was 

a substantial factor compared to all other sources of cancer risk. Neither attorney drew 
36

the jury’s attention to the improper instruction. The plaintiffs’ counsel, in fact, expressly 

took on the burden the instruction shifted to the defense. (Rutherford, supra, 16 Cal.4th

at p. 984.)

4. The record did not indicate the jury was misled. The verdict -- assigning only 

1.2 percent of fault to the defendant (Rutherford, supra, 16 Cal.4th at pp. 962, 985) --

suggested the jury accepted much of the defense’s factual theory, concluding that 

exposure to the product contributed a relatively small amount to the decedent’s 

cancer risk but rejected the defense argument that such a small contribution should 

be considered insubstantial (id. at p. 985). It thus appeared the jury resolved most of 

the factual uncertainty in the defendant’s favor despite the burden-shifting instruction. 

A different result seemed unlikely had the jury been correctly instructed. (Ibid.)

Applying the Rutherford analysis, we conclude that the instructional error in the 

instant case was harmless.

1. The State of the Evidence

As in Rutherford, the erroneous instruction here did not impair AutoZone’s ability 

to put on its full case. (Rutherford, supra, 16 Cal.4th at pp. 983-984.) The instruction 

“would not, by its nature, result in exclusion of relevant defense evidence.” (Ibid.) 

The “state of the evidence” consideration also examines the degree of conflict 

in the evidence on critical issues related to the instruction. (Soule v. General Motors

Corp. (1994) 8 Cal.4th 548, 580-581 (Soule); Pool v. City of Oakland (1986) 42 Cal.3d 

1051, 1069-1070 (Pool).) Thus, unlike our substantial evidence discussion post, where 

we do not reweigh the evidence, we do consider the degree of conflict in the evidence 

in determining whether instructional error had prejudicial effect. 

In Pool, the plaintiff sued the city on various causes of actions related to his arrest 

by the city’s police officers. (Pool, supra, 42 Cal.3d at p. 1058.) As to the plaintiff’s 

false arrest cause of action, the trial court erroneously instructed the jury on the issue of 

probable cause. (Id. at p. 1069.) Our high court noted that the critical issue was whether 
37

the police had reasonable cause to arrest the plaintiff for willfully resisting, delaying, or 

obstructing them in the discharge of their duties. The police officers had such cause if 

they believed the plaintiff swung at them or otherwise resisted their efforts to move him, 

but the plaintiff denied resisting and testified he cooperated with the officers. (Id. at 

pp. 1070-1071.) The Pool court observed, “Were this the only evidence presented on 

the matter, a conflict would be present and a finding that the instructional error was 

prejudicial might be supportable.” (Id. at p. 1071.) However, a neutral witness 

corroborated the plaintiff’s version of the events. (Ibid.) Consequently, it was likely 

the jury resolved the conflict on the critical issue of probable cause in the plaintiff’s favor 

and thus the state of the evidence did not support a finding of prejudice resulting from 

the erroneous instruction. (Ibid.)

As in Pool, the conflict of evidence in this case was mainly a conflict of 

credibility. And as we will discuss in detail in our substantial evidence discussion, there 

were independent witnesses who corroborated aspects of Kell’s recitation of critical 

events from which one could infer retaliatory motivation and thus, the evidence was not 

limited to testimony by Kell versus testimony by AutoZone’s personnel. It is not likely 

that the jury would have found AutoZone’s witnesses more credible had the jury been 

instructed that it could impose liability on AutoZone only if AutoZone was 

“substantially” motivated by Kell’s protected activity. 

AutoZone argues Kell’s evidence of retaliatory animus was entitled to little or 

no weight because there was no direct or circumstantial evidence, only speculation. 

AutoZone argues lack of evidence of retaliatory animus, combined with solid evidence 

of the legitimate business reason for Kell’s termination, demonstrates AutoZone was 

prejudiced by jury instructions using the lesser standard of causation. AutoZone argues 

there is no “genuine” dispute that the only reason for the termination was the faulty audit

investigated by the LP department. AutoZone also claims it is “undisputed” that the 

operational decision makers, Kulbacki and Smith, could not interfere with or second 
38

guess LP’s investigation, especially absent evidence that either was aware of any defects 

in the investigation. These arguments, however, depend on AutoZone’s myopic view of 

the evidence and misguided insistence that the jury was required to believe the testimony 

of AutoZone’s personnel. As we will discuss, the credibility of AutoZone’s witnesses on 

these matters was suspect and there was substantial evidence supporting conclusions 

contrary to AutoZone’s arguments.

2. The Effect of other Jury Instructions

Regarding causation of harm, the trial court instructed the jury that AutoZone’s 

conduct had to be “a substantial factor in causing . . . Kell’s harm.” Thus, the jury found 

that the nature of AutoZone’s conduct was “substantial.” Additionally, unlike in Harris

and Alamo, the trial court here instructed the jury on “mixed motive” as an affirmative 

defense, pursuant to BAJI No.12.26. (See fn. 8, ante.) AutoZone asserts that an 

affirmative defense comes into play only after Kell met his burden to show that protected 

activity was a substantial motivating reason for the termination. Moreover, it appears

AutoZone considered the mixed-motive instruction a counterbalance to any perception 

by the jury that firing Kell was too harsh a penalty for his defect in performance. 

Nevertheless, if the jury found that protected activity was a mere minor motivating 

reason, the mixed-motive instruction would have allowed the jury to relieve AutoZone of 

liability, because the legitimate reason for firing Kell, “standing alone,” would have 

induced AutoZone to make the same decision. (BAJI No. 12.26, fn. 8, ante.)

Furthermore, in connection with punitive damages, the jury not only found by 

clear and convincing evidence that AutoZone acted with malice, oppression, or fraud,

but also awarded more than Kell had requested in punitive damages. Both of these 

circumstances indicate the jury did not find that the retaliatory motive was insubstantial. 

AutoZone maintains we cannot consider the punitive damages instruction because, 

had the jury been properly instructed on the elements of the cause of action, it never 

would have reached the punitive damages instruction. However, when deciding whether 
39

the instructional error was prejudicial, our duty is to determine whether it is reasonably 

probable that the erroneous instruction actually misled the jury. (Kinsman, supra, 

37 Cal.4th at p. 682.) 

Our high court used a punitive damage instruction to conclude the jury was not 

misled by instructional error in Vaughn v. Jonas (1948) 31 Cal.2d 586, a civil lawsuit for 

battery where the trial court erroneously instructed on self-defense by telling the jury that 

the defendant was permitted to use only the amount of force reasonably necessary to 

repel the attack, rather than the amount of force that appeared reasonably necessary to 

the defendant. (Id. at pp. 599-600.) The Supreme Court concluded the instructional error 

was harmless. “[I]t does not seem reasonably possible that the jury [was] misled by the 

error in question to defendant’s prejudice. From the verdict awarding punitive damages it 

appears that the jury necessarily found that the defendant acted maliciously. Exemplary 

damages, under the instructions given on that subject, could not have been awarded 

unless the jury found that the shooting was actuated by malice; if it was actuated by 

malice it was unjustified on any theory. [Citation.] We [the Supreme Court] do not find 

any persuasive basis for believing that the finding as to malice was influenced to any 

extent whatsoever by the erroneous statements of law. In view of the verdict, therefore, 

and our duty under . . . the state Constitution, we cannot hold that the error in question 

requires reversal of the judgment.” (Id. at pp. 600-601.)

Here the jury’s punitive damages finding demonstrates it did not consider 

defendant’s retaliatory motive to be minor. To the contrary, the findings necessary for 

punitive damages indicate that the jury found the motivation was, indeed, substantial. 

Viewing the totality of the instructions here, it does not seem reasonably likely 

that the jury was misled into imposing liability for an insubstantial unlawful motive.

3. The Attorneys’ Argument to the Jury

In Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, a FEHA retaliation 

case, the appellate court concluded the trial court erred by failing to instruct the jury that 
40

“adverse employment action” meant only those actions that substantially and materially 

affected the terms and conditions of employment. The instruction the trial court gave left 

room for the jury to conclude that a mere change in the conditions of employment was 

enough to constitute an adverse employment action. (Akers, supra, 95 Cal.App.4th at 

pp. 1458-1459.) Nevertheless, the Akers court held the error was harmless because the 

plaintiff’s attorney told the jury in closing argument that it must find the employer 

materially adversely changed the terms or conditions of the employment. (Id. at 

pp. 1459-1460.)

In Soule, our Supreme Court affirmed a judgment in favor of a plaintiff in a 

products liability case, even though the trial court erred in instructing the jury on the 

ordinary consumer expectations test for determining design defect, because the plaintiff’s 

theory of design defect involved matters not subject to ordinary consumer expectations. 

(Soule, supra, 8 Cal.4th at p. 570.) Nevertheless, the error was harmless because all the 

evidence and argument focused on expert evaluation of the design and -- even though the 

plaintiff’s counsel briefly reminded the jury that the instructions allowed it to find 

liability based on consumer expectations -- the consumer expectations theory was never 

emphasized. (Id. at p. 571.) 

Here, counsel’s closing arguments did not cure the error by telling the jury it must 

find the protected activity was a “substantial” motivating reason for the discharge. To the 

contrary, Kell’s attorney told the jury it was “enough” if protected activity was “a reason”

for the discharge. However, counsel did so only briefly. And counsel for Kell did not 

present a theory that protected activity was an insubstantial motive for the termination; 

nor did AutoZone. AutoZone’s theory was that there was no protected activity.

Kell’s attorney focused his closing argument on refuting the defense position that 

Kell had not engaged in any protected activity and characterizing defense witnesses as 

liars. After 45 pages of transcript on these matters, Kell’s lawyer spoke of motive, 

stating:
41

“. . . A motivating reason. Okay, this goes back to what I told you at opening. 

Only two stories are possible here, Ladies and Gentlemen. Only two. Either the 

plaintiff’s side or the defense side. There’s no middle ground here. Either every one of 

those [plaintiff’s] witnesses were lying or AutoZone is lying about the fact that these 

things happened and about the fact that they were reported.

“So here’s how that flushes out. Well, they claim they never knew. It never 

happened. Well, of course they have to do that because then that would mean they didn’t 

have a motivating reason. I never knew. It never happened, so I couldn’t have had a 

motivating reason.

“That’s why Rick Smith is out of sink [sic] because he told you all he was the 

decision maker. But you know he knew because he read the statements and he didn’t do 

anything about it. You know he knew because Staci Saucier told him. . . . Even if you 

were inclined to believe that there was any legitimacy as to doing the auto [sic: audit] 

together being some kind of violation of policy, well, there are the reasons. Even another 

reason doesn’t kill it. As long as protected activity was a reason, that’s enough.

“But considering AutoZone and all the people that they’ve brought here and lied 

to you, it would also be reasonable for you to throw all that out and say, well, they’re 

lying because the only reason was to protect the company from liability . . . .” (Italics 

added.) 

Defense counsel’s argument on the motivating reason was that the decision 

makers, Smith and Kulbacki, did not know of the protected activity and, therefore, could 

not have been motivated by it. Defense counsel told the jurors that, assuming they found 

protected activity, “the third question [motivating reason] is crucial. Was the protected 

activity of . . . Kell a motivating reason for AutoZone’s decision to discharge him? [¶] 

“In other words, Ladies and Gentlemen, what you have here, you have protected activity. 

You have adverse employment action. There has -- [Kell] has to prove a causal link 

between those two.
42

“Okay, that is another way of maybe rephrasing this motivating reason. So we 

have to ask ourselves were the two decision makers, Kulbacki and Smith, were they even 

aware of this protected activity. They both testified that they were not. They both 

testified very clearly that they were not aware of . . . Kell complaining to Staci Saucier on 

June 2 about unlawful harassment or discrimination. Obviously if you’re not aware of 

something it can’t motivate you to retaliate.

“Now again it has to be a motivating reason, something that causes you to make 

that decision. No evidence of that in this case at all.

“Now, even if they were aware of this so-called protected activity, was there an 

intervening event that came along to break that causal link? Yes, 6-28-05 was the 

intervening event. Did Mr. Smith or Mr. Kulbacki somehow stage that whole thing to 

come up with an excuse to terminate . . . Kell?

“Not very plausible, is it?

“So the intervening event was the falsified audit of 6-28-05. That’s the reason he 

was terminated.” 

AutoZone’s counsel further argued:

“Okay, so we get to this question on the retaliation . . . verdict form, you know, a 

motivating reason. Has to be a motivating reason, something that moves the mind to 

make that decision. All right, I submit to you the answer to this question should be a 

resounding no.

“Now one more thing about the audit before we move on. Katherine White’s 

audit. Even if, let’s assume for a minute that Katherine White’s audit was incorrect, 

incomplete, whatever. The decision makers relied on that audit. The decision makers 

relied on the Q and A’s, and so in their good-faith business judgment they felt that there 

was this discrepancy between the two audits which was not explained other than by . . . 

Kell himself who said I didn’t go back more than the two or three days. I know I’m 

supposed to go back fourteen days.
43

“So but [sic] even if you believe her audit is somehow, you know, incorrect, 

incomplete, whatever, what this all goes to, Ladies and Gentlemen, is something they call 

the business-judgment rule, and that is that if -- for an at-will employee if a termination 

decision is unwise, incorrect, if you would disagree with it, it doesn’t matter as long as 

it’s not illegal, as long as it’s not motivated by unlawful motivation.

“Then you can’t second guess the business judgment of the private sector of an atwill employer. Keep that in min[d]. Don’t be tempted to go there. It has to be an 

unlawful motivation. If it’s not unlawful, even if it’s unwise, incorrect, unfair, whatever, 

it doesn’t -- you don’t answer yes to that question. All right. So extremely important 

point to keep in mind.

“Maybe I’ll just illustrate that to you for a second here. . . . Let’s say this circle 

represents the sort of world of at-will employment in the private sector. [¶] Now there’s 

certain things you cannot do even if you’re an at-will employer. You can’t discriminate 

because of race, age. You can’t retaliate for unlawful -- based on protected activity. You 

can’t discriminate because of disability, so even if you’re at-will, you cannot terminate 

somebody for these reasons. And there’s more. There’s national origin, sexual 

orientation, etc. But any other reason, all these other reasons out here, no matter how 

unwise, unjust, unfair, that’s not unlawful. It may be stupid. It may be bad for moral[e] 

to terminate folks for those unwise, unfair, incorrect reasons, but it’s not illegal. That’s 

the point I’m trying to make.

“There’s a huge difference here and especially when you get to that retaliation 

claim. There’s a huge difference between garden variety, run-of-the-mill complaints 

about some supervisor’s management style, personality clashes, etc. If it’s not based on 

race, gender, age, disability, etc., then it is not a protected activity. Huge distinction here.

“Ms. Saucier’s testimony was on June [2nd], . . . Kell complained, and maybe she 

did use the words mean and unfair, whatever the words were. But again, it’s not 

unlawful to be mean. Not very good for a supervisor to be mean, but as long as that 
44

meanness is not motivated by one of these unlawful reasons it doesn’t constitute 

protected activity for purposes of that first element of that retaliation claim. Remember 

protected activity, adverse employment action, causal link.” 

In rebuttal argument, Kell’s attorney ridiculed the defense theory that they might 

have been mean and unfair to Kell for a not-unlawful reason. 

We conclude that, even though Kell’s counsel briefly referred to “a” motivating 

reason being “enough,” he did not urge a verdict on a theory of liability based on less 

than substantial motive. (Soule, supra, 8 Cal.4th at p. 571 [counsel briefly mentioned but 

did not emphasize incorrect theory].)

3. Whether the Jury was Misled

The jury found protected activity by a vote of 11 to one, motivating reason by a 

vote of nine to three, and liability for punitive damages by a vote of nine to three. 

AutoZone argues the closeness of the verdict in this case indicates the jury was misled, 

quoting from Whiteley v. Phillip Morris, Inc. (2004) 117 Cal.App.4th 635 (Whiteley), in 

which the court said, “A close verdict is a key indication that the jury was misled by an 

instructional error.” (Id. at p. 665.) However, neither Whiteley nor its cited authorities 

suggest a nine-to-three vote in itself suffices to conclude the jury was misled. Indeed, the 

Whiteley court concluded that the instructional error was prejudicial based on multiple 

factors.

In Whiteley, a cigarette smoker sued tobacco companies and won a verdict on 

some fraud and negligence claims. (Whiteley, supra, 117 Cal.App.4th at p. 641.) The 

appellate court held the trial court erred by failing to instruct the jury not to hold the 

defendant tobacco companies liable for fraud or negligence (or punitive damages) based 

on conduct during a 10-year-period covered by an immunity statute, unless injury was 

caused by additives adulterating the product. (Id. at p. 654.) The Whiteley court 

concluded the error was prejudicial, based on a number of factors, including: (1) there 

was significant evidence of wrongdoing during the immunity period, and based on the 
45

failure to instruct on the immunity statute, defendants were unable to argue that they were 

shielded from liability for 40 percent of the time the plaintiff’s husband smoked; (2) no 

other instructions lessened the prejudice by informing the jury that it could not base 

liability for fraud or negligence upon the defendants’ conduct during the immunity period 

or that punitive damages could not be based upon the defendants’ conduct during this 

period; (3) the plaintiff in closing arguments during the liability and punitive damages 

phases of trial forcefully argued a continuing course of blameworthy conduct by the 

defendants over the decades, including the immunity period; and (4) the verdicts in favor 

of the plaintiff were close, nine to three on fraud by intentional misrepresentation, and ten

to two finding the defendants acted with oppression, fraud, and malice in connection with 

the false promise and negligent misrepresentation counts. (Id. at pp. 657-666.) Thus, 

prejudice was not found based on a close verdict alone. 

The cases cited in Whiteley also noted other factors in concluding the instructional 

error was prejudicial. In Mitchell v. Gonzales (1991) 54 Cal.3d 1041, the appellate court 

held that the trial court in a wrongful death case erred in giving the proximate cause 

instruction containing the “but for” test of cause in fact, rather than the legal cause 

instruction using the “substantial factor” test for cause in fact. (Id. at pp. 1044 & fn. 2, 

1048-1054.) The jury concluded the defendants were negligent, but their negligence was 

not the cause of death. (Id. at p. 1044.) The Supreme Court held the instructional error 

was prejudicial because (1) the evidence indicated the defendants were at least partially 

responsible for the decedent being in a position in which his inability to swim resulted in 

death; (2) although the jury’s verdict on causation was not close, it was illogical and 

inconsistent to conclude that the defendants were negligent yet not a cause in fact of the 

death; (3) defense counsel’s argument to the jury contributed to the instruction’s 

misleading effect because it was “replete” with references to the decedent’s inability to 

swim and his decision nevertheless to go out on the lake; and (4) other instructions did 

not remedy the error. (Id. at pp. 1054-1056 [verdicts of nine to three and 11 to 1 finding 
46

defendants negligent, and a verdict of 10 to 2 finding no causation, were inconsistent 

given the record and strongly suggest prejudice from failure to instruct on “substantial 

factor” causation].) 

In Pool, also cited in Whiteley, the Supreme Court concluded the error was 

harmless because (1) although there was conflicting evidence as to whether the plaintiff 

resisted or obstructed the police, the only neutral witness supported the plaintiff’s 

version; (2) the closing arguments to the jury minimized the effect of the error by 

implicitly informing the jury that acceptance of the city’s version of the facts was 

necessary to a verdict in the city’s favor; (3) the jury did not ask for further instructions; 

and (4) the 11-to-1 verdict was a clear victory for the plaintiff. (Pool, supra, 42 Cal.3d at 

pp. 1070-1072.)

In LeMons v. Regents of University of California (1978) 21 Cal.3d 869, also cited 

by the Whiteley court, the trial court, at the defendants’ request in a medical malpractice 

case, erroneously instructed the jury on a patient’s contributory negligence in failing to 

follow proper medical advice and an injured party’s duty to mitigate damages. (LeMons, 

supra, at pp. 873-874.) The jury rendered a nine-to-three verdict in favor of the 

defendants. (Id. at p. 874.) The Supreme Court reversed. Since there was no evidence 

that the plaintiff’s original injury resulted from any failure to follow medical instructions, 

the trial court erred in instructing on contributory negligence. (Id. at pp. 875, 878.) The 

error was prejudicial, given: (1) the sharply conflicting expert witness testimony on the 

critical issue of whether the doctor’s conduct was within the community standard of 

medical practice; (2) the increased harm caused by defense counsel’s argument to the 

jury, in which counsel argued that the plaintiff was responsible for her lack of significant 

recovery because she sought “incompetent medical assistance” after abandoning the 

operating doctor’s treatment program; and (3) the general instruction on liability for 

negligence intended to be given when there is no issue of contributory negligence did not 

cure the error because, when two instructions are inconsistent, the more specific charge 
47

controls. (Id. at pp. 873, 876.) In addition to these factors, the LeMons court reasoned 

that the fact that only the bare number of jurors required to reach a verdict agreed upon 

the verdict in favor of the defendants lent “ ‘ “further” support to the probability that the 

erroneous instruction was the factor which tipped the scales in the defendants’ favor.’ ” 

(Id. at p. 877.)

In Sandoval v. Bank of America (2002) 94 Cal.App.4th 1378, cited in Whiteley,

the court reversed a judgment not for instructional error, but for trial court error in 

responding to a jury question about causation during deliberations. (Sandoval, supra, at 

pp. 1381, 1386-1387.) The plaintiffs in a wrongful death case sued a bank, alleging the 

bank’s negligent failure to provide adequate security was a cause of their decedent’s 

death. The court submitted to the jury a special verdict form proposed by the bank, 

which asked the jury to answer: “If the defendant had not been negligent in the 

management of the premises, would the criminal assault on [decedent] have been 

prevented[?]” (Id. at p. 1382 & fn. 2, italics added.) During deliberations, the jury asked 

if it was correct in assuming that the word “would” was an absolute and the word 

“prevent” meant to totally eliminate the assault, shooting, and death. The trial court 

simply answered “yes.” (Id. at pp. 1382-1383.) The jury returned a verdict in favor of 

the bank, finding the bank was negligent in its management of the premises, but its 

failure to provide increased security did not “actually cause[]” the decedent’s injuries. 

(Id. at p. 1387.) The appellate court reversed, because the record indicated the jurors 

were confused, and the trial court prejudicially erred by giving an answer to the jury’s 

question that imposed on the plaintiff a standard impossible to meet. (Id. at pp. 1387-

1388.)

Lastly, in Nizam-Aldine v. City of Oakland (1996) 47 Cal.App.4th 364, the court 

reversed a judgment holding a city liable for defamation for falsely accusing civil 

engineers of conducting inaccurate and fraudulent boundary surveys. Since the 

statements pertained to a matter of public interest, the trial court erred by instructing 
48

the jury that the burden was on the city to prove its statements were true. (Nizam-Aldine, 

supra, at pp. 367, 379.) The court concluded the error was prejudicial based on a number 

of factors, including: (1) there was voluminous conflicting evidence on the question 

whether the surveys were valid, and substantial evidence would have supported a finding 

either way -- a conflict in the evidence the court characterized as the “strongest factor 

evincing prejudice” (id. at p. 380), (2) the plaintiffs’ trial counsel “repeatedly 

emphasized” the erroneous instruction during closing argument, (3) the jury deliberated

nearly seven full days, (4) individual defendants were found not liable, and (5) the verdict 

against the city was by a nine-to-three vote. (Ibid.)

Here, although the verdicts on the key questions were by votes of nine to three, no 

other factors suggest the jury was misled. The jury deliberated approximately20 two 

days, which was not a particularly long time, given the fact there were multiple claims 

and 12 pages of special verdict questions. The jury requested additional copies of the 

verdict forms but asked no questions about the instructions.

We conclude the instructional error in this case did not prejudice defendant.

E. Summary Regarding the Harris Substantial Motivation Standard

We conclude Harris’s heightened standard applies to this case; the absence of a 

jury instruction on the heightened standard constitutes instructional error; but the error 

was harmless in this case. We now turn to the arguments in the initial briefs.

 

20

 The court minutes state the jury began deliberations at 3:15 p.m. on January 13, 2010, 

but also state the court adjourned at 10:16 a.m. that day, while the jury deliberated. The 

length of the transcript that day suggests 3:15 p.m. was accurate. The jury deliberated all 

day on Thursday, January 14, 2010. On the next court day, Tuesday, January 19, the 

jurors resumed deliberations at 9:00 a.m., reported at 2:15 p.m. that they had reached a 

verdict, and at 3:00 p.m. the verdicts were read. 
49

III. Substantial Evidence of Causal Link

AutoZone contends there is insufficient evidence of a causal link between Kell’s 

protected activity and his termination to support Kell’s retaliation claim. Kell responds in 

part that AutoZone has forfeited this contention by failing to set forth evidence favorable 

to the judgment in its appellate briefing. (Foreman & Clark Corp. v. Fallon (1971) 

3 Cal.3d 875, 881 (Foreman & Clark).) AutoZone does skate close to forfeiture by 

omitting evidence favorable to Kell, e.g., that AutoZone rushed Kell to do an audit upon 

his return from vacation even though Kell had already performed an audit before he left 

for vacation, and evidence undermining the legitimacy of White’s July 7 audit. Despite 

these deficiencies, we address the matter on its merits, and conclude substantial evidence 

supports the judgment, even under the heightened standard of “a substantial motivating 

factor.”

A. Standard of Review

“ ‘When a jury’s verdict 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 any substantial evidence, 

contradicted or uncontradicted, which will support it, 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 jury. It is of no consequence that the jury 

believing other evidence, or drawing different inferences, might have reached a contrary 

conclusion.’ [Citation.]” (People v. Castro (2006) 138 Cal.App.4th 137, 140, italics 

omitted.)

“[A] judgment may be supported by inference, but the inference must be a 

reasonable conclusion from the evidence and cannot be based upon suspicion, 

imagination, speculation, surmise, conjecture or guesswork. [Citation.] Thus, an 

inference cannot stand if it is unreasonable when viewed in light of the whole record. 
50

[Citation.]” (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 

44 Cal.App.4th 1160, 1204 (Beck).) 

“[T]he credibility of witnesses is generally a matter for the trier of fact to resolve. 

Accordingly, the testimony of a witness offered in support of a judgment may not be 

rejected on appeal unless it is physically impossible or inherently improbable and such 

inherent improbability plainly appears. [Citation.] Similarly, the testimony of a witness 

in derogation of the judgment may not be credited on appeal simply because it contradicts 

the plaintiff’s evidence, regardless how ‘overwhelming’ it is claimed to be. [Citation.] 

Moreover, so long as the trier of fact does not act arbitrarily and has a rational ground for 

doing so, it may reject the testimony of a witness even though the witness is 

uncontradicted. [Citations.] Consequently, the testimony of a witness which has been 

rejected by the trier of fact cannot be credited on appeal unless, in view of the whole 

record, it is clear, positive, and of such a nature that it cannot rationally be disbelieved. 

[Citation.]” (Beck, supra, 44 Cal.App.4th at p. 1204.)

B. Analysis

AutoZone argues it fired Kell solely for the nonretaliatory reason of his falsifying 

the June 28, 2005 audit. Kell argues the people who made the decision to fire Kell --

AutoZoner Relations -- were unaware of his protected activity, his June 2, 2005 

complaint to Saucier. Although Smith participated in the decision to terminate Kell, 

AutoZone contends Smith had no choice, because he had no reason to dispute White’s 

and Jara’s investigations and could not interfere with or second guess the AutoZoner 

Relations people. Defendant focuses on the supposed “separation of powers,” in 

that AutoZoner Relations, which handles the employee discipline investigations, is 

completely independent of operations (Smith and Kulbacki). AutoZone’s arguments 

fail because they understate Smith’s responsibilities and ignore evidence from which 

the jury could infer that Smith was aware of Kell’s protected activity.
51

Certainly, an employer cannot be liable for retaliation if it was unaware of the 

plaintiff’s protected activity. (Reeves, supra, 121 Cal.App.4th at p. 107.) The court in 

Reeves explained this concept is complicated with corporate employers. “This concept--

which for convenience we will call the ‘defense of ignorance’--poses few analytical 

challenges so long as the ‘employer’ is conceived as a single entity receiving and 

responding to stimuli as a unitary, indivisible organism. But this is often an inaccurate 

picture in a world where a majority of workers are employed by large economic 

enterprises with layered and compartmentalized management structures. In such 

enterprises, decisions significantly affecting personnel are rarely if ever the responsibility 

of a single actor. As a result, unexamined assertions about the knowledge, ignorance, or 

motives of ‘the employer’ may be fraught with ambiguities, untested assumptions, and 

begged questions.” (Reeves, supra, 121 Cal.App.4th at p. 108.) In this pre-Harris case, 

the Reeves court reasoned, “The issue in each case is whether retaliatory animus was a 

but-for cause of the employer’s adverse action. [Citations.] Logically, then, the plaintiff 

can establish the element of causation by showing that any of the persons involved in 

bringing about the adverse action held the requisite animus, provided that such person’s 

animus operated as a ‘but-for’ cause, i.e., a force without which the adverse action would 

not have happened.” (Ibid.) 

We conclude there was sufficient evidence to establish that Smith was a decision 

maker and that retaliatory animus on his part was a substantial motivating factor when he 

participated in the decision to terminate Kell. Circumstantial evidence of retaliatory 

animus exists in defense witness denials, selective memory, inconsistencies, and the 

timing of Kell’s termination. 

As we have summarized, there was evidence that Kell complained to Saucier 

about discrimination and harassment and that Saucier spoke to Smith immediately after 

the report. While Saucier and Smith testified that the complaints registered by Kell and 

Lombardi related to aspects of Kulbacki’s management style, both denied that Kell 
52

relayed any harassment or discrimination complaints. But their testimony concerning the

nature of Kell’s complaints was inconsistent. Saucier testified that Kell complained 

Kulbacki had been mean and unfair to him and was riding him about his performance. 

Smith testified he thought Kell went to talk to Saucier about his 360 evaluation, not

unfair treatment, and Saucier told him that Kell complained only about Kulbacki not 

knowing the business and various shortcomings of his management capabilities. Smith 

did not think, based on what Saucier told him, that Kell had complained about Kulbacki

being mean and unfair to him. Saucier testified in detail that, as part of her informal 

investigation, she coached Kulbacki regarding Kell’s complaints. But Kulbacki had no 

recollection of Saucier telling him Kell had complained that he had been mean and unfair 

or of being coached by Saucier. 

Not only did Kell complain to Saucier about how McCollum and Kulbacki had 

treated him, but Kell also relayed to Saucier complaints made by three store managers 

about McCollum. All three store managers testified they had made those complaints to 

Kell. The jury could reasonably have found it unbelievable that three store managers 

made complaints to Kell about McCollum which somehow Kell did not relay to Saucier. 

Kell had no reason not to relay these complaints. Indeed, it was his job to do so. 

The jury also could have reasonably found it unbelievable that Saucier would 

receive complaints about discrimination and harassment from Kell and talk to Smith 

about her conversation with Kell without mentioning the discrimination and harassment 

complaints. The jury obviously disbelieved Smith’s testimony that no one told him that 

Kell complained about discrimination and harassment. On appeal, AutoZone does not try 

to perpetuate this disingenuous testimony. AutoZone’s reply brief says, “For purposes of 

this appeal, AutoZone is not claiming that Kell failed to ‘report’ claims of unlawful 

conduct.” AutoZone acknowledges that the jury presumably found that Smith and 

Kulbacki were aware of Kell’s protected activities when Kell was terminated. 
53

Further circumstantial evidence of Smith’s retaliatory animus can be found in 

Saucier’s change of attitude after speaking to Smith and Saucier’s failure to recall any 

complaints being made on the way to the airport. The jury reasonably could have 

concluded that Saucier’s change in attitude and failure to recall was a result of her 

conversation with Smith. Furthermore, the jury likely found it odd that Saucier took 

notes during her meeting with Kell and Kulbacki, and then discarded those notes without 

somehow documenting the conversations she had with them. Under the circumstances, 

the jury could reasonably have inferred that Saucier’s destruction of her notes was 

consistent with the direction in the training manual legal module to not retain e-mails 

“detailing problems.” Added to this was Saucier’s denial that Kell complained the first 

Q&A was in retaliation for his complaint to her. Like Smith, the jury obviously did not 

believe Saucier.

Having concluded Smith’s and Saucier’s denials that Kell complained about 

harassment or discrimination were false denials, the jury reasonably could have inferred 

that the denials were part of an effort to cover up the true reason for Kell’s termination. 

The jury could infer there would be no reason to deny that Kell made harassment or 

discrimination complaints if the reason for terminating him was the June 28 audit. 

On appeal, AutoZone takes great pains to distance LP investigations and 

AutoZoner Relations from operations and give Smith a role other than decision maker.21 

In its reply brief, defendant argues, without citation to evidence in the record, that “[a]s a 

practical matter, . . . absent any awareness by Smith or Kulbacki that the loss prevention 

investigation was somehow defective, AutoZoner Relations’ ‘recommendation’ of 

 

21

 In contrast, as we have noted, in closing argument at trial, counsel for AutoZone 

characterized Smith and Kulbacki as decision makers, but contended they were unaware 

of Kell’s protected activity. Counsel told the jury, “So we have to ask ourselves were 

the two decision makers, Kulbacki and Smith, were they even aware of this protected 

activity.” (Italics added.)
54

termination was, in effect, the final decision. The concurrence of the operational 

managers was essentially a formality.” 

Yet, the jury reasonably could have found from the evidence that Smith was a 

decision maker and the effort to convert the AutoZoner Relations’ recommendation to a 

mandate was yet another attempt to hide the truth.22 While Smith testified that he had no 

ability or reason to question the AutoZoner Relations’ recommendation, he testified that 

he does not take lightly his “decision” of “who stays and who goes” and made other 

statements indicating he had been the decision maker. And while Smith testified he 

merely “concurred” in the AutoZoner Relations’ recommendation, he did not expressly 

state that his refusal to concur would have been overridden by AutoZoner Relations or 

that he had no authority to veto the AutoZoner Relations’ recommendation for reasons 

other than flaws in the investigation.

23 No written company policy was introduced to 

establish this point either. Nor did anyone from AutoZoner Relations testify. 

Furthermore, the jury was not required to believe Smith’s testimony that he concurred in 

the termination only because Kell “admitted” intentionally falsifying the audit. The jury 

could reasonably have found AutoZone’s assertion of intentional fraud to be an 

 

22

 Only Kulbacki referred to the AutoZoner Relations’ recommendation as a “mandate.” 

Neither Smith nor Saucier called the AutoZoner Relations’ recommendations a mandate. 

Indeed, Saucier understood that the recommendation by AutoZoner Relations would have 

been made to Kulbacki’s regional team. Furthermore, Kulbacki called his own credibility 

into question, for example by denying memory of being accused of sexual harassment 

and disability discrimination in prior lawsuits by other employees in which Kulbacki was 

deposed. The jury could conclude that there was no reasonable basis for him to forget 

such events and discounted his testimony in other particulars. 

23

 At oral argument, counsel for AutoZone asserted that Smith testified he could not 

veto the AutoZoner Relations’ recommendation unless there was a serious flaw in the 

investigation. No such testimony appears in the record. At no time did Smith state he 

lacked the authority to veto the AutoZoner Relations’ recommendation absent flaws in 

the investigation.
55

exaggeration. Indeed, White testified in her deposition that Kell never admitted 

intentional falsification. He admitted “not conducting the audit the way AutoZone 

required.” 

Moreover, despite AutoZone’s cries of fraud, AutoZone allowed Kell to keep 

doing audits and “integrity interviews” of potential management candidates after the 

June 28 audit. Also, after White’s July 7 audit, a month and a half went by before White 

interviewed Kell in the Q&A session. Kulbacki admitted that White discovered what she 

perceived as falsification on July 7 causing her concern about Kell’s integrity. White 

said she concluded on July 7 that Kell’s audit was falsified. While Kulbacki testified 

that, until Kell signed a Q&A admitting wrongdoing, the audit was a mere discrepancy 

and that Kell would be treated as innocent until the investigation concluded, the jury was 

not required to believe that testimony. 

We note that the company policy is that any discrimination or harassment 

complaint must be forwarded to AutoZoner Relations. Smith testified that the failure 

to do so could result in discipline, including termination, and that this policy applies to 

him and people below and above him. Based on the evidence, the jury reasonably 

could have concluded that after Kell and Lombardi complained to Saucier and Saucier 

reported to Smith, those complaints went no further than Smith’s office -- a violation of 

AutoZone policy. And given the close temporal proximity between Kell’s protected 

activity, of which Smith was aware, and Kell’s termination,24 in which Smith participated 

as a decision maker, the jury could reasonably have concluded Smith retaliated by 

terminating Kell. 

Even assuming for the sake of argument that the AutoZoner Relations staff who 

made the termination recommendation were ignorant of Kell’s complaint to Saucier 

 

24

 We note the time lapse was protracted by White’s delay of a month and a half in 

interviewing Kell about the audit.
56

and that Smith was required to rubber stamp the AutoZoner Relations’ termination 

recommendation, there is still sufficient evidence to establish causation. We again look 

to Reeves. Though Reeves was a summary judgment case, the principles we take from 

Reeves have application in this jury trial case. As the Reeves court noted, there are a 

number of cases which suggest that “ignorance of a worker’s protected activities or 

status does not afford a categorical defense unless it extends to all corporate actors 

who contributed materially to an adverse employment decision” (Reeves, supra, 

121 Cal.App.4th at p. 109, second italics added) and “no case . . . holds that the ignorance 

of a ‘decisionmaker’ [sic] would still categorically shield the employer from liability if 

other substantial contributors to the decision bore the requisite animus” (id. at p. 110). 

The Reeves court gave an illustration: “A supervisor annoyed by a worker’s complaints 

about sexual harassment might decide to get rid of that worker by, for instance, 

fabricating a case of misconduct, or exaggerating a minor instance of misconduct into 

one that will lead to dismissal. Another manager, accepting the fabricated case at face 

value, may decide, entirely without animus, to discharge the plaintiff. It would be absurd 

to say that the plaintiff in such a case could not prove a causal connection between 

discriminatory animus and his discharge. The situation is equivalent to one in which the 

supervisor simply fires the worker in retaliation for protected conduct. The supervisor’s 

utilization of a complex management structure to achieve the same result cannot have the 

effect of insulating the employer from a liability that would otherwise be imposed.” 

(Reeves, supra, 121 Cal.App.4th at pp. 108-109, italics added.)

In such a case, an innocent manager (here, AutoZoner Relations) could be a 

“cat’s paw” doing the bidding of a manager who has retaliatory animus. As explained 

in Reeves, the term “cat’s paw” apparently derives from a fable in which a cat and a 

monkey are watching some chestnuts roasting on hot chimney ashes, and, through 

flattery, the monkey persuades the cat that its paws are uniquely designed for pulling 

out the chestnuts. (Reeves, supra, 121 Cal.App.4th at p. 114, fn. 14.) The cat pulled out 
57

the chestnuts, burning its paws. When the cat could pull out no more, he turned to see 

that the monkey had cracked and eaten the chestnuts. (Ibid.) The term has a second 

meaning -- a carpenter’s tool used to extend the reach when pulling nails. (Ibid.) In the 

context of retaliatory discharge, the concept is broader: “Imputation of retaliatory animus 

will be justified by any set of facts that would permit a jury to find that an intermediary, 

for whatever reasons, simply carried out the will of the actuator, rather than breaking the 

chain of causation by taking a truly independent action.” (Id. at pp. 114-115, fn. 14.)

Here, even if AutoZoner Relations’ decision makers were ignorant of Kell’s 

complaint to Saucier, and Smith could not reject the AutoZoner Relations’

recommendation, the jury could reasonably conclude that Smith acted with retaliatory 

animus and exaggerated Kell’s misconduct to justify his dismissal. 

We also note, contrary to AutoZone’s contention, there was evidence supporting 

an inference that White may have been aware of Kell’s protected activity. Though 

AutoZone argues its loss prevention department is completely independent of its 

operations, the evidence suggests that the wall AutoZone says exists between loss 

prevention and operations is suspect. The evidence indicates that White maintained a 

close working relationship with operations and shared information regarding her 

investigation of Kell with Kulbacki. Circumstantial evidence that Kulbacki knew of 

Kell’s protected activity can be found in evidence that Saucier spoke to him about Kell’s 

complaints (complaints she claimed related to being mean and unfair) and Kulbacki’s 

lapse of memory concerning any such conversation. Further, Lombardi twice told 

Kulbacki that Kell had concerns about which Kulbacki needed to talk to Kell. In the 

second conversation, Lombardi told Kulbacki it looked like Kell was going to file a 

lawsuit, news that “shocked and astonished” Kulbacki and caused him to appear “taken 

aback.” After both conversations with Lombardi, Kulbacki told him he would look into 

Kell’s concerns. It is reasonable to infer that Kulbacki did since he never talked to Kell 

about his concerns. 
58

White testified she worked with Kulbacki and other regional staff. As regional LP 

manager, White participated in weekly meetings, sometimes in person, with Kulbacki, 

the regional manager, and other regional and district managers. Lombardi testified that 

multiple people in the regional office were talking about Kell’s mental disability and had 

been advised by McCollum to monitor him. White testified she saw Kulbacki in the 

regional office shortly after her July 7 audit and gave him a “heads up” about her 

suspicion. Kulbacki testified that White told him there was a “”Q & A going” and said 

it did not look good for Kell. At Zarate’s store, Zarate overheard Kublacki and White 

talking about Kell taking medication. The jury could reasonably have inferred that given 

these circumstances, the purported separation between loss prevention and operations and 

the “independence” of the investigation was suspect.

There was also evidence from which the jury could conclude that White was 

involved in the retaliatory action, even if she did not participate in the decision to 

terminate Kell. Even assuming an innocent explanation for the computer’s failure to 

register plaintiff’s June 8 audit, the jury could conclude from a series of oddities 

involving White that AutoZone manipulated circumstances to create a crisis and got 

lucky when Kell took shortcuts in his rush to redo the audit when he returned from 

vacation. White did not remind Kell of any outstanding audit in their June 13 conference 

call, as was her practice, and which would have allowed Kell to produce his hard copy 

within the 14-day look-back period or perform a new audit without being rushed. White 

did not do the audit while Kell was on vacation, even though, as she testified, she had 

done audits for district managers “many times” when they were too busy with other 

things. White did not go to the store to look for the hard copy of Kell’s earlier audit. Nor 

did she keep a copy of the printout of the audit she purportedly did on July 7. Yet, that 

audit was relied upon in firing Kell, even though, as Smith testified, without the computer 

entry or hard copy, the assumption is that an audit has not been done. Further, there was 

conflicting evidence whether White gave Kell a fix-it list after her audit. White belatedly
59

produced a copy of the fix-it list with signatures, but the signatures represented the last 

page of the newly discovered document and there was nothing except White’s word to 

connect that last page to the two pages of the fix-it list she had previously produced at her 

deposition. The jury could reasonably have been suspicious of White’s late disclosure of 

the purported signature page which allegedly showed that Kell and Zarate received the 

fix-it list. 

Even if Smith had no authority to veto the AutoZoner Relations’ termination 

“recommendation” and was nothing more than a rubber stamp and White had no 

knowledge of Kell’s protected activity, there was sufficient evidence to establish that 

White’s investigation and AutoZoner Relations became the cat’s paw for Smith’s 

retaliation. (See Reeves, supra, 121 Cal.App.4th at pp. 113-116 [discussion of federal 

cases adopting or referring to the “ ‘cat’s paw model’ or a functional equivalent”].) 

We conclude substantial evidence supports a causal link between Kell’s protected 

activity and his termination.

IV. Substantial Evidence of Oppression, Fraud, or Malice

AutoZone contends there is insufficient evidence of oppression, fraud, or malice to 

support punitive damages. We disagree.

Civil Code section 329425 authorizes an award of punitive damages if plaintiff 

proves by clear and convincing evidence that defendant is guilty of oppression, fraud, or 

malice. “The clear and convincing standard ‘ “requires a finding of high probability . . . 

‘ “so clear as to leave no substantial doubt”; “sufficiently strong to command the 

 

25

 Civil Code section 3294, subdivision (a) provides: “In an action for the breach of an 

obligation not arising from contract, where it is proven by clear and convincing evidence 

that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition 

to the actual damages, may recover damages for the sake of example and by way of 

punishing the defendant.”
60

unhesitating assent of every reasonable mind.” ’ ” (Scott v. Phoenix Schools, Inc. (2009) 

175 Cal.App.4th 702, 715 (Scott).)

Malice is “conduct which is intended by the defendant to cause injury to the 

plaintiff or despicable conduct which is carried on by the defendant with a willful and 

conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) 

Oppression is “despicable conduct that subjects a person to cruel and unjust hardship in 

conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) Fraud is 

“an intentional misrepresentation, deceit, or concealment of a material fact known to the 

defendant with the intention on the part of the defendant of thereby depriving a person of 

property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).)

AutoZone claims this case is similar to Scott, in which this court reversed a

punitive damages award. AutoZone is wrong. 

In Scott, a jury found that a preschool wrongfully fired its director, in violation of 

public policy, after the director told the parents of a prospective student that the school 

had no room for their child, based on state regulations setting minimum teacher-student 

ratios. (Scott, supra, 175 Cal.App.4th at p. 705.) This court affirmed the judgment but 

reversed the punitive damages award, reasoning that “[t]he only evidence of wrongful 

conduct directed toward Scott was her termination for an improper reason.” (Id. at 

p. 716; see id. at p. 718.) The court distinguished another case, Cloud v. Casey (1999) 

76 Cal.App.4th 895, 912, where an employer was liable for punitive damages because it 

denied the plaintiff a promotion based on gender, “then attempted to hide the illegal 

reason for denying the promotion with a false explanation, and that it was this fabrication 

that constituted the despicable conduct.” (Scott, supra, 175 Cal.App.4th at p. 717.) This

court said that, as to Ms. Scott, “There was no evidence [the school] attempted to hide the 

reason it terminated Scott. It admitted to terminating her because she would not enroll 

the . . . child. Likewise, there was no evidence [the school] engaged in a program of 
61

unwarranted criticism to justify her termination.” (Scott, supra, 175 Cal.App.4th at 

p. 717.)

Here, in contrast, there was ample evidence that retaliation was a motive in Kell’s 

termination, as we have set forth ante, and that AutoZone attempted to hide that reason 

with false explanations and fabrications.

We conclude substantial evidence supports the jury’s finding of oppression, fraud, 

or malice to support an award of punitive damages.

V. Claim of Excessive Punitive Damages Award

AutoZone argues the amount of the punitive damages award is unconstitutionally 

excessive, as the $1,231,848 punitive damages award is nine times the combined 

damages of $100,000 for mental suffering and $36,827 for economic damages. 

AutoZone contends that the constitutional limit in this case is a one-to-one ratio of 

punitive damages to compensatory damages. While we disagree with AutoZone’s 

contention that a one-to-one ratio is the constitutional limit, we agree that the jury’s nineto-one award is excessive. We conclude that a five-to-one ratio is within constitutional 

limits here.

A. Constitutional Limits of Punitive Damages

Punitive damages may be imposed under state law to further a state’s legitimate 

interests in punishing unlawful conduct and deterring its repetition. (State Farm Mut.

Ins. v. Campbell (2003) 538 U.S. 408, 416 [155 L.Ed.2d 585] (State Farm).) However, 

the Due Process Clause “prohibits the imposition of grossly excessive or arbitrary 

punishments on a tortfeasor. . . . ‘[E]lementary notions of fairness enshrined in our 

constitutional jurisprudence dictate that a person receive fair notice not only of the 

conduct that will subject him to punishment, but also of the severity of the penalty that 

a State may impose.’ ” (State Farm, supra, 538 U.S. at pp. 416-417.) 

Our Supreme Court discussed State Farm in Roby v. McKesson Corp. (2009) 

47 Cal.4th 686, 712-719 (Roby). “In State Farm, the high court articulated ‘three 
62

guideposts’ for courts reviewing punitive damages: ‘(1) the degree of reprehensibility of 

the defendant’s misconduct; (2) the disparity between the actual or potential harm 

suffered by the plaintiff and the punitive damages award; and (3) the difference between 

the punitive damages awarded by the jury and the civil penalties authorized or imposed in 

comparable cases.’ (State Farm, supra, 538 U.S. at p. 418; see also BMW[ of North 

America, Inc. v. Gore (1996)] 517 U.S. [559,] 575 [134 L.Ed.2d 809].)” (Roby, supra, 

47 Cal.4th at p. 712.)

In Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159 (Simon), a 

post-State Farm case discussed in Roby, our high court observed that an appellate court’s 

reduction of a jury’s punitive damages award “ ‘ “is not an enviable task. . . . In the last 

analysis, an appellate panel, convinced it must reduce an award of punitive damages, 

must rely on its combined experience and judgment.” ’ [Citation.] The high court’s due 

process analysis does not easily yield an exact figure: we must attempt to arrive at such a 

number using imprecisely determined facts and ‘applying guidelines that contain no 

absolutes.’ [Citation.] An appellate court should keep in mind, as well, that its 

constitutional mission is only to find a level higher than which an award may not go; 

it is not to find the ‘right’ level in the court’s own view. While we must . . . assess 

independently the wrongfulness of a defendant’s conduct, our determination of a 

maximum award should allow some leeway for the possibility of reasonable differences 

in the weighing of culpability. In enforcing federal due process limits, an appellate court 

does not sit as a replacement for the jury but only as a check on arbitrary awards.” 

(Simon, supra, 35 Cal.4th at p. 1188, some italics in original, italics added.)

B. Analysis

1. Degree of Reprehensibility 

“Of the three guideposts outlined in State Farm . . . , the most important is the 

degree of reprehensibility of the defendant’s conduct. On this question, the high court 

instructed courts to consider whether ‘[1] the harm caused was physical as opposed to 
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economic; [2] the tortious conduct evinced an indifference to or a reckless disregard of 

the health or safety of others; [3] the target of the conduct had financial vulnerability; 

[4] the conduct involved repeated actions or was an isolated incident; and [5] the harm 

was the result of intentional malice, trickery, or deceit, or mere accident.’ ” (Roby, supra, 

47 Cal.4th at p. 713, quoting State Farm, supra, 538 U.S. at p. 419, italics added.) The 

court in Roby, a wrongful discharge case, reduced a compensatory damage award from 

$3.5 million to $1.4 million and reduced punitive damages from $15 million to $1.9 

million, a ratio of one to one. (Roby, supra, 47 Cal.4th at pp. 692-693, 719-720.) The 

employer’s wrongdoing with respect to discrimination was limited to its one-time 

decision to adopt a strict attendance policy that, in requiring 24-hour advance notice 

before an absence, did not reasonably accommodate employees who had disabilities or 

medical conditions that might require unexpected absences. (Id. at p. 713.)

Here, AutoZone argues its conduct was not reprehensible because it simply 

followed its strict LP policies and “independent” LP investigation; there was no evidence 

it adopted its LP policies with a purpose to discriminate or retaliate; no one tricked Kell 

into performing the June 28 audit improperly; and AutoZone did not “repeatedly” 

retaliate. AutoZone’s position depends to a great extent on its theory of the case,

which the jury rejected. However, in determining whether a punitive damage award is 

excessive, we review the evidence under the substantial evidence standard of review in 

which appellate courts cannot reweigh the credibility of witnesses or resolve conflicts in 

the evidence. Rather, we must view the conflicting evidence regarding punitive damages 

in the light most favorable to the judgment. (Bankhead v. ArvinMeritor, Inc. (2012) 

205 Cal.App.4th 68, 77 (Bankhead).)

a. The Harm Caused

Here, the harm caused was not purely economic. Plaintiff suffered emotional 

harm. In Roby, the court observed that, “the harm to [plaintiff] was ‘physical’ in the 

sense that it affected her emotional and mental health, rather than being a purely 
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economic harm.” (Roby, supra, 47 Cal.4th at p. 713.) Thus, because defendant caused 

emotional harm, the degree of reprehensibility is elevated here.

b. Indifference or Reckless Disregard for the Health or Safety of Others

AutoZone’s tortious conduct evinced an indifference to Kell’s mental health. In 

Roby, the court observed it was “objectively reasonable to assume that [the defendant’s] 

acts of discrimination and harassment toward [the plaintiff] would affect her emotional 

well being, and therefore [the defendant’s] ‘conduct evinced an indifference to or a 

reckless disregard of the health or safety of others.’ ” (Roby, supra, 47 Cal.4th at p. 713.) 

Likewise, here it is objectively reasonable to assume retaliation by termination would 

affect Kell’s emotional well being. Indeed, AutoZone personnel knew Kell was suffering 

from mental health problems and was emotionally vulnerable.

Additionally, the evidence discloses that AutoZone did nothing about the 

complaints Kell received from store managers about McCollum after Kell relayed those 

complaints to Saucier. The jury could have inferred from the evidence that those 

complaints were swept under Smith’s office rug and that by doing so, AutoZone evinced 

an indifference or reckless disregard for the mental health of the employees that were the 

subject of McCollum’s discriminatory comments.

The degree of reprehensibility is further elevated by this factor.

c. Isolated Event or Repeated Events

Here, unlike in some other cases, we cannot say the conduct was repeated. While 

the conduct went beyond Kell’s termination in the sense that the complaints of other 

AutoZone personnel were ignored, AutoZone’s conduct relative to Kell was an isolated 

event. This factor makes AutoZone’s conduct less reprehensible than cases involving 

repeated conduct. 

d. Intentional Malice, Trickery, or Deceit or Mere Accident

The conduct here was not accidental. The termination was obviously intentional. 

Instead of taking corrective action involving inappropriate conduct by its managers, 
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the evidence supports a finding by the jury that AutoZone retaliated against Kell by 

terminating him for reporting that conduct. As we have noted in our substantial evidence 

analysis ante, the jury could reasonably have inferred that the deceit and lies regarding 

knowledge of Kell’s protective activity evinced a cover-up.

This factor elevates the degree of reprehensibility here.

e. Summary of Reprehensibility Factors

Of the five State Farm reprehensibility factors, only one is not present here. 

Given the applicable State Farm factors and the facts underlying those considerations, we 

conclude that AutoZone scores in the medium-high range on the reprehensibility scale --

more reprehensible than in some cases, less than in others.

2. Disparity between Actual Harm and Punitive Damages

“California published opinions on this issue have adopted a broad range of 

permissible ratios--from as low as one to one to as high as 16 to one—depending on the 

specific facts of each case.” (Bankhead, supra, 205 Cal.App.4th at p. 88; accord, 

Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1312-1313 (Pfeifer).) 

Our high court has noted that, “ ‘[D]ue process permits a higher ratio between 

punitive damages and a small compensatory award for purely economic damages 

containing no punitive element than [it does] between punitive damages and a substantial 

compensatory award for emotional distress; the latter may be based in part on indignation 

at the defendant’s act and may be so large as to serve, itself, as a deterrent.’ ” (Roby,

supra, 47 Cal.4th at p. 718, quoting Simon, supra, 35 Cal.4th at p. 1189.) Thus, a 

relevant consideration is whether the compensatory damages award includes a punitive 

element in the form of substantial mental suffering damages. (Pfeifer, supra, 

220 Cal.App.4th at p. 1313.)

Here, the economic damages were small ($36,827), because Kell found another 

retail job within a few months of being fired by AutoZone. Despite the request in closing 

argument by Kell’s counsel to award $1 million to $10 million for mental suffering, the 
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jury awarded plaintiff only $100,000. Thus, neither the circumstances nor the amount of 

mental suffering damages awarded suggest those damages reflect a punitive element or 

indignation by the jury. (See Amerigraphics, Inc. v. Mercury Casualty Co. (2010) 

182 Cal.App.4th 1538, 1566 [“The $130,000 awarded by the jury in compensatory 

damages is the precise amount of damages that Amerigraphics sought. In light of the 

amount, there does not appear to be a punitive element to the compensatory damages 

award”]; see also Bullock v. Phillip Morris USA, Inc. (2011) 198 Cal.App.4th 543, 566-

567 [“Unlike the situation where the plaintiff is awarded a generous amount for 

emotional distress arising from economic harm with no physical injury [citations], neither 

the circumstances . . . nor the amount of emotional distress damages suggests that those 

damages reflect . . . the jury’s indignation at Philip Morris’s conduct. [Fn. omitted.] We 

therefore have no reason to believe that the compensatory damages contain any 

significant punitive element.”].) 

In State Farm, the court suggested a one-to-one ratio might be the federal 

constitutional maximum in a case involving relatively low reprehensibility and a 

substantial award of noneconomic damages. (State Farm, supra, 538 U.S. at p. 425.)

The court in Roby, in concluding a one-to-one ratio was the constitutional limit in that 

case, explained, “We note in particular the relatively low degree of reprehensibility on 

the part of [the defendant] and the substantial compensatory damages verdict, which 

included a substantial award of noneconomic damages. (Roby, supra, 47 Cal.4th at 

p. 719.) In contrast, here we have a relatively low compensatory damage award, with 

no punitive element to the award for mental suffering, and a medium-high level of 

reprehensibility. Thus, contrary to defendant’s argument, the constitutional ceiling here 

is not a one-to-one ratio.

3. Civil Penalties

The third guidepost is the difference between the punitive damages and any civil 

penalties authorized or imposed in comparable cases. (Roby, supra, 47 Cal.4th at p. 718.) 
67

FEHA violations subject employers to an administrative fine of up to $150,000. (Id. at 

pp. 718-719.) 

In oral argument, counsel for defendant conceded that this factor is perhaps 

the least important of the State Farm factors, but asserted it is a factor that militates 

in favor of reducing the punitive damages here. We note that “ ‘[t]he rationale for 

this consideration is that, if the penalties for comparable misconduct are much less than 

a punitive damages award, the tortfeasor lack[s] fair notice that the wrongful conduct 

could entail a sizable punitive damages award.’ [Citation]” (Grassilli v. Barr (2006) 

142 Cal.App.4th 1260, 1290.) 

This guidepost weighs in favor of a lower constitutional limit in this case. 

However, we note that despite the limited civil penalties available, the Roby court 

nevertheless concluded that punitive damages of $1,905,000 was the constitutional 

ceiling in that FEHA wrongful termination case, notwithstanding that it found a 

“relatively low degree of reprehensibility.” (Roby, supra, 47 Cal.4th at p. 719) 

4. Reduction of Punitive Damages

In applying the State Farm factors, we consider that even Kell’s attorney did not 

think this case warranted a multiplier of nine. Kell’s attorney argued to the jury that an 

appropriate award would be a multiplier of seven or eight times the compensatory 

damages.26 The jury nevertheless awarded nine times the compensatory damages. Kell’s 

counsel argued to the jury: “The law makes it very clear, nine times, nine times is what 

we do for the worst, most reprehensible conduct that there could be in a case. That’s the 

 

26

 At oral argument, counsel for Kell, who was also Kell’s trial attorney, indicated 

that he made this argument because he “presumed” that the jury would return the 

noneconomic damages award he had requested. We do not understand how that could 

be the case, since the jury returned its verdicts awarding the compensatory damages 

before the punitive damages phase of the trial and closing arguments on the issue of 

punitive damages. 
68

maximum. So 136,000 x 9 is the highest you all could go even if you wand [sic] to 

punish them beyond that. It is not constitutional to go beyond that.” Kell’s counsel told 

the jury, “. . . I am going to give you a recommendation. This is not the nine. This isn’t 

the worst it could ever be, although it is hard to imagine it being more pervasive than it is 

in this case. But this is about a seven to eight, that’s where we’re at in terms of sweeping 

some ugly, ugly conduct under the rug. This is a seven to an eight.” Despite counsel’s 

argument to the jury, Kell on appeal says the jury got it right. 

“ ‘ “In the last analysis, an appellate panel, convinced it must reduce an award of 

punitive damages, must rely on its combined experience and judgment.” ’ [Citation.]” 

(Simon, supra, 35 Cal.4th at p. 1188.) We conclude that the jury’s award of punitive 

damages was constitutionally excessive. We agree with the assertion of Kell’s counsel. 

A nine-to-one ratio exceeds constitutional limits here. But we also conclude that a ratio 

of seven to one also exceeds constitutional due process limits. 

Keeping in mind that our “constitutional mission is only to find a level higher than 

which an award may not go” and not “the ‘right’ level” in [our] own view (Simon, supra, 

35 Cal.4th at p. 1188), and further, “allow[ing] ‘some leeway for the possibility of 

reasonable differences in the weighing of culpability’ ” (Simon, supra, 35 Cal.4th at 

p. 1188), we conclude that a multiplier of five is within constitutional limits, making the 

punitive damages award $684,135. “This amount, we believe, will ‘further [California’s] 

legitimate interests in punishing unlawful conduct and deterring its repetition.’ ” (Simon, 

supra, 35 Cal.4th at pp. 1188-1189.)

We have authority to order an absolute reduction of the award, rather than a 

conditional reduction with the alternative of a new trial on the amount of punitive 

damages. (Simon, supra, 35 Cal.4th at pp. 1187-1188.) We exercise that authority and 

order that the punitive damage award here be reduced to $684,135.
69

DISPOSITION

The judgment is modified to reduce the award of punitive damages award to 

$684,135. The trial court shall issue an amended judgment showing the correct amounts 

for compensatory and punitive damages. As modified, the judgment is affirmed. Kell 

shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3), (5).)

 MURRAY , J.

We concur:

 NICHOLSON , Acting P. J.

 BUTZ , J.