{ "id": 716913, "name": "Patricia BEHRMANN, Plaintiff-Appellee, v. PHOTOTRON CORP., a Delaware corporation, Defendant-Appellant", "name_abbreviation": "Behrmann v. Phototron Corp.", "decision_date": "1990-07-18", "docket_number": "No. 18790", "first_page": "323", "last_page": "329", "citations": [ { "type": "official", "cite": "110 N.M. 323" }, { "type": "parallel", "cite": "795 P.2d 1015" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "784 F.2d 1040", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1548186 ], "weight": 2, "pin_cites": [ { "page": "1047" } ], "opinion_index": 0, "case_paths": [ "/f2d/784/1040-01" ] }, { "cite": "649 F.2d 816", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1236042 ], "weight": 3, "pin_cites": [ { "page": "821", "parenthetical": "citations omitted" }, { "page": "821", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/f2d/649/0816-01" ] }, { "cite": "92 N.M. 446", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557279 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "448" }, { "page": "1039" } ], "opinion_index": 0, "case_paths": [ "/nm/92/0446-01" ] }, { "cite": "567 P.2d 486", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1977, "opinion_index": 0 }, { "cite": "90 N.M. 637", "category": "reporters:state", "reporter": "N.M.", "year": 1977, "opinion_index": 0 }, { "cite": "90 N.M. 454", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2867397 ], "weight": 2, "pin_cites": [ { "page": "459" }, { "page": "1341" } ], "opinion_index": 0, "case_paths": [ "/nm/90/0454-01" ] }, { "cite": "109 N.M. 514", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590351 ], "weight": 8, "year": 1990, "pin_cites": [ { "page": "517", "parenthetical": "citations omitted" }, { "parenthetical": "citations omitted" }, { "page": "517" }, { "page": "436" }, { "page": "518" }, { "page": "521" }, { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0514-01" ] }, { "cite": "411 U.S. 792", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 10002 ], "weight": 3, "year": 1973, "opinion_index": 0, "case_paths": [ "/us/411/0792-01" ] }, { "cite": "490 U.S. 228", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605428 ], "weight": 7, "year": 1989, "pin_cites": [ { "page": "258" }, { "page": "1795" }, { "page": "235" }, { "page": "1782" } ], "opinion_index": 0, "case_paths": [ "/us/490/0228-01" ] }, { "cite": "490 U.S. 228", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605428 ], "weight": 6, "year": 1989, "pin_cites": [ { "page": "243-47" }, { "page": "1787-88", "parenthetical": "Brennan, J., with whom Marshall, Blackmun, and Stevens, JJ., concurred" }, { "page": "258-62" }, { "page": "1795-96", "parenthetical": "White, J., concurring in judgment" }, { "page": "248-52" }, { "page": "1790-91", "parenthetical": "in enacting Title VII, Congress intended to eliminate sex stereotypes as a basis for disparate treatment of men and women in employer's decisional process" } ], "opinion_index": 1, "case_paths": [ "/us/490/0228-01" ] } ], "analysis": { "cardinality": 983, "char_count": 21363, "ocr_confidence": 0.8, "pagerank": { "raw": 1.4991564654623108e-07, "percentile": 0.6653208353073866 }, "sha256": "821f36de934863b14bfd8c223e3d2509783523b57069e9b9965fd8cff26bb7ff", "simhash": "1:31f84e1319a0b5bd", "word_count": 3385 }, "last_updated": "2023-07-14T22:33:30.469339+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MONTGOMERY, J., concurs.", "RANSOM, J., concurs in result only." ], "parties": [ "Patricia BEHRMANN, Plaintiff-Appellee, v. PHOTOTRON CORP., a Delaware corporation, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSOSA, Chief Justice.\nPlaintiff-appellee, Patricia Behrmann, was awarded damages of $94,400 by a jury on her \u201ccomplaint of discrimination.\u201d She had sued defendant-appellant, Phototron Corporation, alleging that she was wrongfully terminated from her job as a salesperson because she became pregnant. Appellee claimed that appellant violated applicable portions of NMSA 1978, Sections 28-1-1 to -7, 28-1-9 to -14 (Repl.Pamp.1987), the \u201cHuman Rights Act\u201d (the Act). She worked for appellant as a marketing and service representative from September 1982 through November 16, 1984. She learned on or about October 1, 1984, that she was pregnant. On October 31, 1984, appellant\u2019s agent, Craig Steblay, told her she was being laid off because of an economic reorganization, and that he told her \u201cYou\u2019ll probably not want to come back to work anyway * * *. Having a baby will really change you.\u201d\nEvidence was presented that appellant hired a male employee to replace appellee and that the male employee made a higher salary than she did. She showed that she won several sales awards while she worked for appellant, and that her doctor notified her in writing that she was capable of continuing to work. Appellee contended that it is appellant\u2019s custom to discharge female employees when they become pregnant, and that Craig Steblay recommended discharge for other female employees who had become pregnant. Appellee sought settlement of her dispute or in the alternative front pay, plus all lost wages and benefits and actual damages.\nAt trial, appellant\u2019s evidence showed that it had been losing accounts nationally and in New Mexico and that it was no longer economically practical to maintain appellee\u2019s position. The male employee who was hired as appellee\u2019s replacement worked for a year to reorganize the region that appellee had serviced, when he too was terminated because of his inability to recoup appellant\u2019s client base in the region. A female employee of appellant testified that she and other female employees had taken pregnancy leave and returned to work with no loss of benefits or unequal treatment. At trial, appellant unsuccessfully attempted to introduce evidence of the prior determination by the New Mexico Human Rights Commission that appellee\u2019s charge of discriminatory practice against appellant had been found to lack probable cause.\nThe court instructed the jury, in pertinent part, as follows:\n[No. 3] Intent ordinarily may not be proved directly because there is no way of fathoming or scrutinizing the operations of the human mind. But you may infer a person\u2019s intent from surrounding circumstances. You may consider any statement made or act done or omitted by a party whose intent is in issue, and all other facts and circumstances which indicate his or her state of mind.\n[No. 13] If you find that the Defendant or its agents based its decision to layoff the Plaintiff because of sex stereotyping then this is evidence that the employer has acted with an improper motive based on pregnancy.\nThe court refused appellant\u2019s tendered instruction reading, \u201cIf you find that Phototron had a nondiscriminatory business reason for discharging plaintiff, you must find for Phototron.\u201d\nThe verdict form providing for damages read simply, \u201cWe find for the Plaintiff in the sum of $94,400.\u201d\nAppellant raises three issues: (1) The court erred in giving the jury instruction No. 13 in that this instruction wrongfully highlighted appellee\u2019s evidence, and, when considered together with instruction No. 3, it was surplusage, thereby misleading the jury; (2) the court erred in refusing to admit evidence of the Human Rights Commission\u2019s determination that appellee\u2019s grievance action before the Commission had been found lacking in probable cause; (3) the court erred in instructing the jury that it could consider as damages \u201cthe present cash value of future earning capacity reasonably certain to be lost in the future,\u201d because the Act provides only for \u201cactual damages\u201d and this phrase does not include future earning capacity. Having considered appellant\u2019s argument as to these issues, its briefs on appeal, the record and transcribed proceedings below, we affirm the verdict and judgment of the court.\nI. JURY INSTRUCTION\nAppellant\u2019s argument as to the jury instruction is as follows. In instruction No. 3 the court detailed the meaning of intent, so that the jury was able from that instruction sufficiently to ascertain how to proceed in evaluating appellant\u2019s intent in discharging appellee. To add the further instruction, No. 13, in which the jury was told to consider whether appellant had been guilty of sex stereotyping in dealing with appellee, was in effect to compound the earlier instruction on intent. Instruction No. 13 thus amounted to a doubling of the instruction on intent \u2014 in appellant\u2019s words, instruction No. 13 \u201chighlighted\u201d the issue of intent, making it more probable that the jury would find discriminatory intent, one way or another, in the appellant\u2019s actions in terminating appellee.\nSecond, appellant argues that the court, by giving instruction No. 13, laid before the jury an improper standard by which the jury was to evaluate appellee\u2019s case. Appellant points to the recent case of Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), in which a four-vote plurality of the Court expressed the view that:\n[W]hen a plaintiff in a Title VII case proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff\u2019s gender into account. Because the courts below erred by deciding that the defendant must make this proof by clear and convincing evidence, we reverse the Court of Appeals\u2019 judgment against Price Waterhouse on liability and remand the case to that court for further proceedings.\nId. at 258, 109 S.Ct. at 1795.\nPrice Waterhouse was a case involving \u201cmixed motives.\u201d There the employer argued that it denied partnership status to the employee because of her hostile behavior toward fellow employees and inability to get along with them amicably, rather than because of her gender. Evidence also showed that several persons involved in the decision whether to advance the employee to partnership status had been guilty of gender stereotyping, in one case, advising the employee that she should \u201c \u2018walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.\u2019 \u201d Id. at 235, 109 S.Ct. at 1782.\nIn the case at bar, appellant argues that the court, by giving instruction No. 13, impermissibly asked the jury to decide appellee\u2019s case according to the standard set forth by the Court in Price Waterhouse, when, in fact, that standard was inapplicable. Appellant concedes that, if appellee had proven at trial that Mr. Steblay, rather than making a \u201ccasual remark\u201d about appellee\u2019s wanting to continue her career after giving birth to a child, had engaged in blatant sex stereotyping of the type presented in Price Waterhouse, then instruction No. 13 would have been proper. In other words, appellant argues there was not substantial evidence to make this a \u201cPrice Waterhouse case,\u201d and thus a \u201cPrice Waterhouse instruction\u201d was impermissible.\nAppellant thus contends that the present case is not a \u201cmixed motives\u201d case. Rather, appellant argues, the present case is a traditional discrimination case to be decided by the traditional standard set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The standard announced in the latter case\nallows proof of discriminatory intent absent direct proof by creating a presumption of discrimination. Initially, a plaintiff bears the burden of showing a prima facie case by \u201celiminatpng] the most common nondiscriminatory reasons\u201d for the employer\u2019s actions. The burden then \u201cshift[s] to the employer to articulate some legitimate, nondiscriminatory reason\u201d for his actions. Then, the plaintiff has the opportunity to show that the articulated reason is pretextual. This burden merges with the plaintiff\u2019s ultimate burden of proof of intentional discrimination.\nSmith v. FDC Corp., 109 N.M. 514, 517, 787 P.2d 433, 436 n. 1 (1990) (citations omitted).\nAppellant argues that instruction No. 13 injected the standard of Price Waterhouse into the jury\u2019s deliberative process when in fact the standard of McDonnell Douglas was the proper standard by which the jury should have evaluated appellee\u2019s case. We have already stated, in reference to McDonnell Douglas, \u201cThe evidentiary methodology adopted therein provides guidance for proving a violation of the New Mexico Human Rights Act. Our reliance on the methodology developed in the federal courts, however, should not be interpreted as an indication that we have adopted federal law as our own.\u201d Smith v. FDC Corp., 109 N.M. at 517, 787 P.2d at 436. We also stated in that case, in words that could as well be repeated here: \u201cOur analysis of this claim is based on New Mexico statute and our interpretation of our legislature\u2019s intent, and, by this opinion, we are not binding New Mexico law to interpretations made by the federal courts of the federal statute.\u201d Id.\nEven assuming, however, that we rigidly adhered to the distinction between a \u201cmixed motives\u201d \u2014 Price Waterhouse case and an absence-of-direct-proof McDonnell Douglas \u2014 case, as urged upon us by appellant, we would not find that the trial court erred in giving instruction No. 13. Nothing in the Price Waterhouse or McDonnell Douglas cases would prevent a trial court, as happened here, from instructing the jury on both methodologies. We stated in Smith, \u201cthe entire McDonnell Douglas framework may be bypassed through a showing of intentional discrimination; the purpose of the [McDonnell Douglas test] is to allow discriminated-against plaintiffs, in the absence of direct proof of discrimination, to demonstrate an employer\u2019s discriminatory motives.\u201d 109 N.M. at 518, 787 .P.2d at 437.\nBy giving jury instruction No. 11, the trial court covered the situation contemplated by the McDonnell Douglas framework. It was within the court\u2019s discretion, after hearing the evidence, to give or not to give this instruction, and we cannot say that the court abused its discretion in giving the instruction. The court also gave instruction No. 13, the \u201cPrice Water-house\u201d instruction relating to evidence of sex stereotyping. From our review of the record, we likewise cannot say that the court abused its discretion in giving this instruction, as certain words and conduct by Mr. Steblay could well have been construed by the jury to have amounted to sex stereotyping. In other words, the jury was entitled to receive both a \u201cMcDonnell Douglas \u201d instruction (No. 11) and a \u201cPrice Waterhouse\u201d instruction (No. 13), in the court\u2019s discretion. In our view, the evidence supported both instructions and the court was justified in giving both instructions.\nNor do we find that instruction No. 13 \u201chighlighted\u201d instruction No. 3, thereby giving the jury too much latitude in finding discriminatory intent. In actuality, it is only instruction No. 3 that deals with intent. Although instruction No. 13 deals with \u201cimproper motive,\u201d it is more directly concerned with whether appellant practiced certain behavior, namely, sex stereotyping. We cannot say that the two instructions confused the jury. By hearing instruction No. 3, the jury could have considered whether the improper motive referred to in instruction No. 13 had been shown \u201cby any statement made or act done * * * and all other facts and circumstances * * In our reading of the two instructions, they are complimentary. This is not a case where the two instructions were repetitious or contradictory or unduly emphasized evidence introduced by a party. Cf. Whitfield Tank Lines, Inc. v. Navajo Freight Lines, Inc., 90 N.M. 454, 459, 564 P.2d 1336, 1341 (Ct.App.), cert. denied, 90 N.M. 637, 567 P.2d 486 (1977).\nII. EVIDENCE OF THE HUMAN RIGHTS COMMISSION\u2019S DETERMINATION OF NO PROBABLE CAUSE.\nAssuming that the Commission\u2019s determination had probative value, it was within the discretion of the court to exclude evidence of the determination if the evidence\u2019s \u201cprobative value [was] substantially outweighed by danger of * * * waste of time or needless presentation of cumulative evidence.\u201d SCRA 1986, 11-403. This rule gives the trial court a great deal of discretion in admitting or excluding evidence, and we will reverse the trial court only when it is clear that the court has abused its discretion. Mac Tyres, Inc. v. Vigil, 92 N.M. 446, 448, 589 P.2d 1037, 1039 (1979).\nWe can not say that the court abused its discretion in disallowing evidence of the Commission\u2019s prior determination. In so finding, we take as instructive the court\u2019s ruling in Denny v. Hutchinson Sales Corp., 649 F.2d 816 (10th Cir.1981), construing the federal equivalent of our own SCRA 1986, 11-803(H)(3), which reads, in pertinent part:\nThe following are not excluded by the hearsay rule, even though the declarant is available as a witness:\nRecords, reports, - statements or data compilations, in any form, of public offices or agencies setting forth\n(3) in civil actions and proceedings * * * factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.\nIn Denny, the court upheld the trial court\u2019s refusal to admit a report in favor of probable cause issued by the Colorado Civil Rights Commission in a housing discrimination case. The court noted with approval the factors that could be of assistance in ruling on admissibility of such a report as listed by the Advisory Committee in its notes to the federal rules of evidence: \u201c[T]he timeliness of the investigation; the special skill or experience of the investigator; whether a hearing was held and the level at which it was conducted; possible motivation problems * * Id. at 821 (citations omitted).\nHere, there was no hearing, but simply an investigation followed by a letter determination stating a finding of lack of probable cause. Appellant contends, nonetheless, that because the determination by the Human Rights Commission is subject to appeal, and because following a hearing that is appealed the Commission has the duty to file with the district court \u201cso much of the transcript of the record [of the hearing] as the parties requesting the transcript designate as necessary for the appeal with the district court,\u201d NMSA 1978, Section 28-1-13(B), that the court was without discretion to deny admissibility of the letter determination of lack of probable cause.\nWe disagree. In the first place, there was no hearing, and in the second place, the Commission\u2019s letter determination was not a \u201ctranscript of the record.\u201d Nothing in the Act precludes the district court\u2019s adherence to SCRA 1986, 11-803(H)(3) in ruling on the admissibility of official reports or statements that are not in the nature of a transcript of the record. Moreover, although the Act uses the word \u201cappeal\u201d in referring to the review which is to be undertaken by the district court, it is clear that the appeal contemplated is in actuality a trial de novo. See \u00a7 28-l-13(A). Consequently, ordinary rules of evidence govern the admissibility of administrative findings such as the one here.\nAs the court held in Denny, \u201cThe lack of formal procedures and an opportunity to cross-examine witnesses are proper factors in determining trustworthiness of the finding * * *. We believe that \u2018the trial court is the first and best judge of whether tendered, evidence meets the standard of trustworthiness and reliability.\u2019 \u201d 649 F.2d at 821 (citations omitted). (Cf. Perrin v. Anderson, 784 F.2d 1040, 1047 (10th Cir.1986)). Here, the court acted within its discretion in excluding evidence of the Commission\u2019s determination.\nIII. DAMAGES\nThe Act provides, \u201cIn any action or proceeding under [Section 28-1-13] if the complainant prevails, the court in its discretion may allow actual damages and reasonable attorney\u2019s fees * * Section 28-1-13(D). Appellant argues that the phrase \u201cactual damages\u201d precludes the award of prospective damages and that the court erred in instructing the jury on prospective damages. Appellant contends that because the verdict form was not delineated into spaces for present and future damages it is impossible to tell whether the jury \u201cinflated\u201d its award of damages. As a result, appellant argues, it should be given a new trial.\nWe disagree. The treatises affirm that the phrase actual damages is synonymous with compensatory damages and that compensatory damages are exclusive of punitive damages. See 22 Am.Jur.2d Damages \u00a7 3 (1988) (\u201cDamages, generally speaking, are of two kinds: compensatory damages and punitive damages, and the term usually includes both types of damages. The term \u2018actual damages\u2019 is synonymous with compensatory damages, and excludes punitive damages;\u201d) See also id. \u00a7 24; H. Oleck, Damages to Persons and Property \u00a7 12 (1955) (\u201c \u2018Actual damages\u2019 mean the same thing as \u2018compensatory damages.\u2019 Both mean expenses which are the natural and reasonable result of an injury or loss.\u201d)\nAs for prospective damages, because they are a species of actual damages, they properly may be granted where evidence has been presented as to their present worth. See C. McCormick, Handbook on the Law of Damages \u00a7 161 (1935) (\u201c[T]he plaintiff [wrongfully discharged from her employment] may recover not only for the loss of earnings already accrued, but for the prospective loss for the unexpired period;\u201d) Oleck, supra \u00a7 93 (\u201cIn general, when once a wrong has been committed, and a complete course of action established, the award of damages may include compensation for prospective and reasonably-certain future damages.\u201d) See also id. \u00a7\u00a7 94-100.\nHere, appellant does not argue that there is a lack of substantia] evidence to justify the jury\u2019s award, but that the court erred as & matter of law in instructing the jury on \u201cthe present cash value of future earning capacity reasonably certain to be lost in the future.\u201d In this, appellant is in error. The court rightly instructed the jury on prospective damages. See Smith, 109 N.M. at 521, 787 P.2d at 440.\nFor the foregoing reasons, the verdict and judgment below are affirmed.\nIT IS SO ORDERED.\nMONTGOMERY, J., concurs.\nRANSOM, J., concurs in result only.\n. The court gave instruction No. 11, which read as follows:\nPlaintiff has the burden of proving that the nondiscriminatory reasons given by Photo-tron for her discharge were a pretext. If Phototron has shown legitimate, nondiscriminatory reasons for discharging Plaintiff, then you must decide whether Plaintiff has proven that the reasons offered by Phototron were not the true reasons for her discharge, and that her employment was terminated because she was pregnant.\nThis is a classic \"McDonnell Douglas\" instruction.", "type": "majority", "author": "SOSA, Chief Justice." }, { "text": "RANSOM, Justice\n(specially concurring).\nI concur with the result reached in this opinion, but write specially to question any consideration of whether the \u201cmixed-motives\u201d aspect of the Price Waterhouse decision is applicable to the State Human Rights Act. See 490 U.S. at 243-47, 109 S.Ct. at 1787-88 (Brennan, J., with whom Marshall, Blackmun, and Stevens, JJ., concurred) (when plaintiff in Title VII case proves employer\u2019s decision was based on a mixture of legitimate and illegitimate considerations, the burden of persuasion shifts to the employer to prove that it would have made the same decision even had it not allowed illegitimate considerations to play a role in decision). Cf. Id. at 258-62, 109 S.Ct. at 1795-96 (White, J., concurring in judgment). Counsel for both parties conceded at oral argument that instruction thirteen was merely a definitional instruction consistent with the Price Waterhouse discussion of the concept of \u201csex stereotyping\u201d as it relates to employment discrimination cases under federal law. See Id. at 248-52, 109 S.Ct. at 1790-91 (in enacting Title VII, Congress intended to eliminate sex stereotypes as a basis for disparate treatment of men and women in employer\u2019s decisional process).\nIndeed, the text of instruction thirteen cannot reasonably be read to shift the burden of persuasion to the employer as might be appropriate in a- true \u201cmixed-motives\u201d case. Nowhere in this case was Price Waterhouse raised or argued as an appropriate methodology for assigning burdens to the parties. Moreover, as stated by the author, counsel for appellant conceded that, if substantial evidence was presented in this case of sex stereotyping connected with the decision to lay off appellee, then instruction thirteen was a proper definitional instruction. I agree there was substantial evidence of such stereotyping in this case; therefore, I would affirm the trial court.", "type": "concurrence", "author": "RANSOM, Justice" } ], "attorneys": [ "Rodey, Dickason, Sloan, Akin & Robb, Robert M. St. John, Jo Saxton Brayer, Andrew G. Schultz, Albuquerque, for defendant-appellant.", "Eric Isbell-Sirotkin, Albuquerque, for plaintiff-appellee." ], "corrections": "", "head_matter": "795 P.2d 1015\nPatricia BEHRMANN, Plaintiff-Appellee, v. PHOTOTRON CORP., a Delaware corporation, Defendant-Appellant.\nNo. 18790.\nSupreme Court of New Mexico.\nJuly 18, 1990.\nRodey, Dickason, Sloan, Akin & Robb, Robert M. St. John, Jo Saxton Brayer, Andrew G. Schultz, Albuquerque, for defendant-appellant.\nEric Isbell-Sirotkin, Albuquerque, for plaintiff-appellee." }, "file_name": "0323-01", "first_page_order": 351, "last_page_order": 357 }