FILED

NOT FOR PUBLICATION NOV 20 2009

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS

FOR THE NINTH CIRCUIT

KIRAN PANDE, No. 08-15855

Plaintiff - Appellee, D.C. No. 3:04-CR-05107-JCS

v.

MEMORANDUM *

CHEVRONTEÈACO CORPORATION

and CHEVRON TEÈACO

INTERNATIONAL EÈPLORATION &

PRODUCTION, et al.,

Defendants - Appellants.

Appeal from the United States District Court for the Northern District of California Joseph C. Spero, Magistrate Judge, Presiding

Argued and Submitted October 6, 2009 San Francisco, California

Before: FERNANDEZ and THOMAS, Circuit Judges, and ALDRICH, ** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Ann Aldrich, Senior United States District Judge for the Northern District of Ohio, sitting by designation. Chevron appeals the district court's denial of its motion for judgment as a

matter of law as to Pande's Fair Employment and Housing Act and to the award of

punitive damages. We affirm.

I

A jury found for Pande on her retaliation claims under California's Fair

Employment and Housing Act and for violations of California public policy. Because

the evidence put before the jury at trial was sufficient to support its finding a causal

linµ between Pande's protected conduct (complaints of employment discrimination)

and the adverse employment action (failure to obtain a new position within Chevron

after her employment group was relocated), the district court's denial of Chevron's

motion for judgment as a matter of law is affirmed.

II

The same jury also awarded Pande punitive damages. Under California law,

punitive damages against a corporate employer may not be awarded unless the

'advance µnowledge and conscious disregard, authorization, ratification or act of

oppression, fraud, or malice' is 'on the part of an officer, director, or managing agent

of the corporation.' California Civil Code y 3294(b). Pande must have proved her

case to the jury by 'clear and convincing evidence.' Cal. Civ. Code y 3294(a).

2 Chevron appeals, arguing that Pande did not introduce sufficient evidence to

permit the jury to find, under the clear and convincing evidence standard, that one or

more of the relevant actors was a managing agent.

Under California law, a ''managing agent'' includes 'only those corporate

employees who exercise substantial independent authority and judgment in their

corporate decisionmaµing so that their decisions ultimately determine corporate

policy.' White v. Ultramar Inc., 21 Cal. 4th 563, 566-67 (1999). Indeed, this is the

definition cited and relied upon by Chevron and used, verbatim, in the jury

instructions. Whether someone is a 'managing agent' is a question of fact and the

individual need not occupy any particular 'level' or 'official title.' White, 21 Cal. 4th

at 571, 573.

Because we find sufficient evidence to support the jury's determination, we

affirm for the same reasons stated by the district court in its denial of Chevron's

motion for judgment as a matter of law.

AFFIRMED.

3

FILED

Pande v. Chevron, No. 08-15855 NOV 20 2009

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FERNANDEZ, Circuit Judge, concurring and dissenting:

I concur with the majority regarding the compensatory damage award, but

because I do not thinµ that the evidence in support of the punitive damage award

meets California's stringent standards, I respectfully dissent as to that.