UPS

FILED

NOT FOR PUBLICATION APR 23 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL MARLO, No. 12-57170

Plaintiff - Appellee, D.C. No. 2:09-cv-07717-DDP-RZ

v.

MEMORANDUM*

UNITED PARCEL SERVICE, INC.,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Dean D. Pregerson, District Judge, Presiding

Argued and Submitted February 4, 2015 Pasadena, California

Before: KLEINFELD and NGUYEN, Circuit Judges and CARR,** Senior District Judge.

United Parcel Service, Inc. challenges the jury’s verdict awarding Michael

Marlo $15.9 million (later reduced to $6.6 million) in punitive damages arising out

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable James G. Carr, Senior District Judge for the U.S. District Court for the Northern District of Ohio, sitting by designation. of his wrongful termination. Reviewing de novo, White v. Ford Motor Co., 312

F.3d 998, 1010 (9th Cir. 2002), we…

MEMORANDUM **

United Parcel Service, Inc. challenges the jury’s verdict awarding Michael Mario $15.9 million (later reduced to $6.6 million) in punitive damages arising out of his wrongful termination. Reviewing de novo, White v. Ford Motor Co., 312 F.3d 998, 1010 (9th Cir.2002), we affirm.

UPS argues that the evidence was insufficient to support the jury’s determination that Vice President and District Manager Tim Robinson was a “managing agent” under California law. Viewing the evidence in the light most favorable to Mario, as we must, Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir.2002), we conclude that the evidence was sufficient to support the jury’s verdict. Under California Civil Code § 3294(b), Robinson qualified as a “managing agent” if he “exercise[d] substantial independent authority and judgment in [his] corporate decisionmaking so that [his] decisions ultimately determinefd] corporate policy.” White v. Ultramar, Inc., 21 Cal.4th 563, 566-67 , 88 Cal.Rptr.2d 19 , 981 P.2d 944 (1999). Here, the evidence showed that Robinson was the highest-ranking supervisor in a 7,000-employee district that covered a vast geographic area from downtown Los Angeles to the inland deserts…

CARR, Senior District Judge,

Respectfully, and aware of my lesser familiarity with California law relating to managing agents, I dissent.