Bakotich v. City of Los Angeles CA2/7 ( 2013 )

Filed 12/16/13 Bakotich v. City of Los Angeles CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
PETER J. BAKOTICH et al., B239418
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. BC442344)
v.
CITY OF LOS ANGELES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Teresa
Sanchez-Gordon, Judge. Affirmed in part as modified, reversed in part.
Carmen A. Trutanich and Michael N. Feuer, City Attorneys, and Brian I. Cheng,
Deputy City Attorney, for Defendant and Appellant.
Law Offices of Gregory W. Smith, Gregory W. Smith; Benedon & Serlin, Douglas
G. Benedon and Gerald M. Serlin for Plaintiffs and Respondents.
______________________
INTRODUCTION
Peter J. Bakotich, Michael Fanning, and Debbie Guerrero, detectives formerly
with the Fugitive Warrants Section of the Los Angeles Police Department (the
Department), filed this action against the City of Los Angeles (the City) for
discrimination and retaliation in violation of the Fair Employment and Housing Act
(FEHA; Gov. Code, § 12940). The three detectives alleged that their immediate
supervisor, Lieutenant Natalie Cortez, along with her supervisors, Captain Justin
Eisenberg and Captain Kevin McCarthy, discriminated against them on the basis of their
gender and retaliated against them for reporting the discrimination. The jury found in
favor of Bakotich, Fanning, and Guerrero and awarded them economic and non-
economic damages. On appeal, the City challenges the jury instructions on adverse
employment action and the awards of future economic damages. With the exception of
one item of future economic damages and a modification to correct an error in the jury’s
arithmetic, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND1
A. Before Cortez
Bakotich joined the Department in February 1972. After serving as a police
officer for 14 years, the Department promoted him to Detective I in March 1986. He
joined the Fugitive Warrants Section, a specialized detective squad that finds and arrests
1 “Following the usual rules on appeal from a judgment rendered after a trial, we
view the facts in the light most favorable to the judgment.” (Blanks v. Seyfarth Shaw
LLP (2009) 171 Cal.App.4th 336, 346, fn. 2; see Green Wood Industrial Co. v. Forceman
Internat. Development Group, Inc. (2007) 156 Cal.App.4th 766, 770, fn. 2. [“[w]e state
the facts in the light most favorable to the jury’s verdict, resolving all conflicts and
indulging all reasonable inferences to support the judgment”].)
2
fugitives, in 1989. Bakotich received promotions to Detective II in November 1998 and
to Detective III, a rank just below Lieutenant I, in December 2000.2
Prior to 2009, the Department considered Bakotich an exemplary police detective.
For example, Bakotich’s 2003-2004 performance evaluation stated that he was an
“[a]mazing success and [his] leadership adaptability and 100 percent commitment are
even more,” and that under his “leadership, the watch time has been very happy and
productive.” His 2004 performance evaluation described Bakotich as “the cornerstone of
institutional knowledge regarding arrest warrants.” According to his 2004-2006
performance evaluation, Bakotich was “the resident expert in fugitive warrant policies,”
including “fugitive apprehension, extradition, rendition, and all matters that relate[d] to
[the] fugitive warrant section.” He knew “how to do everything and do everything right,”
and he was a “team player” and a mentor for and constantly trained his subordinates.
Bakotich was “routinely polite and personable . . . around the office and with the public,”
and was “respectful of authority in the chain of command.” Through 2008 he had
received over 50 commendations and awards for attention to duty, professionalism,
investigation, leadership, and commitment to the Department. He also taught detective
courses at the police academy for 20 years.
Fanning, a third generation police officer, began working for the Department on
December 1, 1983. He was promoted to Detective I in the mid-1990’s. He joined the
Criminal Conspiracy Section at the end of 1998, where he worked on homicide and other
kinds of major cases. While he was in the Criminal Conspiracy Section, he apprehended
Kathleen Soliah, a member of the Symbionese Liberation Army who had been a fugitive
2 Generally, the promotion progression in the Department is from Police Officer I
(probationary officers fresh out of the academy) to Police Officer II (regular police
officers) to Police Officer III (training officers). The career opportunity for officers then
branches into two paths, those officers who become Sergeants and those who become
Detective I’s. Sergeants become supervisors and can go on to become Lieutenants and
Captains, whereas Detectives become investigators and can go on to become Detective II
and Detective III. Captains report to Commanders, who report to Deputy Chiefs, who
report to Assistant Chiefs, who report to the Chief of Police.
3
since the 1970’s, and worked on several murder cases against her after her capture. In
2006, as a Detective II, Fanning successfully applied for and earned the opportunity to
join the Fugitive Warrants Section. He was assigned to night watch with Bakotich.
Prior to 2009 Fanning was also recognized as a model detective. Fanning’s
performance evaluation from 2006, just before he started in the Fugitive Warrants
Section, stated that his “daily interactions with the public are of the highest standards,” he
“fostered a positive work environment by assisting his co-workers as needed,” he
“worked as a team member and could be counted on for on-call duty and off-hours
responses as needed,” and he “embodie[d] on a daily basis, the Department’s Core
Values.” Fanning’s first performance evaluation in his new assignment stated that he had
“outstanding leadership skills” with a “calm and quiet style of leadership,” understood
“the importance of treating all persons with respect,” and performed “his duties dealing
with citizens, victims and suspects . . . treat[ing] each with respect and dignity.” The
evaluation also stated that Fanning “created an environment where each of his
subordinates believes they can be successful,” and where “each employee knows he or
she will be treated fairly based upon his or her work performance. Detective Fanning has
made it crystal clear that retaliation in any form will not be tolerated.” The evaluation
concluded that Fanning’s “loyalty and dedication make him a pleasure to work around.
He is an asset to the Department and a valued member of the FWS [Fugitive Warrants
Section] supervisory team.”
Fanning’s performance evaluations for 2007 and 2008, after he had been promoted
to Detective III, repeatedly referred to his “exemplary” integrity, honesty, fairness, and
impartiality, and called him “an excellent ambassador for the Department.” The
evaluations also noted that he “supports the Department’s Affirmative Action policy” and
“ensures that all his employees treat each other with respect and maintains a working
environment that allows his employees to develop to their fullest potential.” Fanning
received over 60 awards and commendations for attention to duty, commitment to
excellence, demeanor, teamwork, going beyond the call of duty, professionalism,
outstanding investigations, and initiative.
4
Guerrero joined the Department in 1987, and ten years later had risen to
Detective I. She became a Detective II in approximately 2000 and a Detective III in June
2004. In April 2008 she obtained a position in the Fugitive Warrants Section and joined
the day watch.
Guerrero’s performance evaluations over the years stated that she “demonstrates
reverence for the law and respect for her peace officer authority,” and “has an
outstanding knowledge of Department procedures, policies, guidelines, Consent Decree
mandates and the [P]enal [C]ode.” Guerrero “daily demonstrates the maturity and
professionalism to effectively manage and supervise a narcotics enforcement detail,” and
“does an outstanding job of motivating the officers and ensuring that she and the other
supervisors maintain a positive work environment with high morale.” She had “the
leadership skills, training and expertise to succeed in any assignment or mission she is
given,” set a model of police integrity, and was “a self-motivated supervisor always
looking for ways to improve her performance and that of her subordinates.” She
“regularly demonstrated ethical and lawful behavior,” “her administrative work was
consistently outstanding,” and she was “an engaged, approachable supervisor who
created a working environment notable for its high morale and productivity and bereft of
harassment, hazing, favoritism or discrimination.” Her supervisor in 2007 stated, “I trust
her without reservation to always do the right things for the right reasons and would
unconditionally recommend her for any assignment or promotion she should elect to seek
in the future.”
B. Cortez’s Discrimination
In January or February 2009 McCarthy transferred Cortez from the gang section to
the night shift of the Fugitive Warrants Section, and Cortez became the lieutenant who
supervised Bakotich, Fanning, and Guerrero in the Fugitive Warrants Section. Cortez
5
reported to Eisenberg, a Captain II, who in turn reported to McCarthy, a Captain III.3
Cortez had a “special relationship” with McCarthy. Cortez constantly talked about her
close friendship with McCarthy’s wife Debbie McCarthy, who was a Deputy Chief, and
repeatedly bragged to the detectives in the Fugitive Warrants Section, “Debbie McCarthy
is my friend and mentor and I can go directly to KM [Kevin McCarthy] and get whatever
I want.”
Cortez arrived in the Fugitive Warrants Section with a plan to replace the male
supervisors, like Bakotich and Fanning, with female supervisors. Shortly after her arrival
in late January or early February 2009, Cortez told Guerrero, “Gosh, I wish I could have
females working for me.” Cortez also said that “she liked to mentor females and she
wanted to get the girls to go out to lunch” without the male officers in the squad. In
another conversation in the women’s restroom, Cortez stated that she wanted all females
working for her on the night watch, and she told Guerrero to “keep an eye” on Fanning
and Bakotich and tell her what they “were up to.” Cortez told another supervisor,
Detective Ramona Findley, that if she had her “way basically [she] would have all female
supervisors,” and that she “believed that females in general were better employees and
worked better than males.” Cortez also told Findley that she liked to “mentor women and
take care of women” and focus her energy on women.4
Bakotich at first “got along pretty well” with Cortez, but after Guerrero told
Bakotich that Cortez “wanted to replace the male supervisors at [night] watch with
females,” he found it “difficult to form a strong harmonious relationship with someone
3 By the time of trial in September 2011, McCarthy had been promoted to
Commander, and Eisenberg had been promoted to Captain III.
4 Guerrero found these comments troubling. She testified, “I was taken aback
because [of] my reputation of working hard and staying focused and it was bothersome to
me because that was something that was so appalling to me that I didn’t care for that
comment. It was wrong.” Findley was offended by Cortez’s comments because Findley
had been with the department 28 years and “had never been promoted because she was a
woman.”
6
who wants to get rid of you.” Fanning too learned that Cortez had told other female
supervisors that “she wanted to replace the men supervisors on night [shift] with
females.”
Cortez admitted that she understood that making a comment that she preferred to
have all female supervisors on night watch is against the Department’s policy. McCarthy
also admitted that it would have been improper for Cortez to attempt to remove male
detectives from a position and replace them with female detectives on the basis of their
gender. Similarly, Eisenberg stated that if he had heard that Cortez had wanted all
females on the night watch, it would have been improper and required an investigation.
C. After Cortez
Cortez successfully implemented her discriminatory plan. Bakotich was first.
McCarthy directed Eisenberg to “bench” Bakotich because McCarthy “was not
satisfied that Bakotich was supporting Lieutenant Cortez or following her lawful
directions.” McCarthy decided to bench Bakotich based on information he received
“secondhand” from Cortez, who went over Eisenberg’s head and spoke directly to
McCarthy about issues she was having with Bakotich, and from Eisenberg, who got his
information from Cortez.5 McCarthy acknowledged that he received “all [of his]
information” from Cortez because “that’s the chain of command.” For example, Cortez
told McCarthy directly or through Eisenberg that Bakotich said that one of the captains
was “useless” and “doesn’t know what he’s f’ing doing,” that Cortez was young and did
not know what she was doing, and that McCarthy and Eisenberg did not know what they
were doing. Cortez also told McCarthy that Bakotich and Fanning were “resistant” to his
goals for the Department. McCarthy also based his decision on hearing that Bakotich had
been “challenging Lieutenant Cortez in front of several subordinates.” McCarthy
5 McCarthy made the decision to bench Bakotich, however, without consulting
Eisenberg and without Eisenberg’s recommendation.
7
admitted, however, that he was not aware that Bakotich, Fanning, or Guerrero had ever
refused an order by Cortez.
Eisenberg followed McCarthy’s order and benched Bakotich on April 15, 2009.
Eisenberg explained to Bakotich that he had been “disrespectful to Lieutenant Cortez,” an
accusation that was not true. Eisenberg told Bakotich, “You are benched and you no
longer have a squad. I’m taking away your supervisory authority. You cannot respond to
the field for any reason whatsoever. Whether it be personnel complaints, use of force,
whatever, you cannot respond. You are to remain at your desk and perform the due
diligence . . . function only.” Bakotich stated, “I was told I no longer had my squad to
supervise, that my supervisory authority had been suspended, that I was not allowed to
respond to any situations in the field. I was not allowed to participate in arrests or any
field investigations.” Eisenberg stated there was “no doubt that . . . Bakotich was
benched,” as opposed [to] merely “assigned to a new position,” because a “reassignment”
would have been changing his shift or supervising a different squad. According to
Bakotich, Eisenberg “advised me quote, ‘You are benched.’”6
Cortez told Guerrero that Bakotich “was getting benched” and that Cortez wanted
Guerrero to replace Bakotich on the night watch. Cortez told Guerrero that she could
bring anyone she wanted to bring with her from day watch. Guerrero moved to night
watch and took over Bakotich’s squad on or about April 26, 2009.
The day after Eisenberg benched Bakotich, Cortez asked Bakotich for his car keys
and took away his car privileges. This made it difficult for Bakotich to get from his
office to the “offsite locations” where he taught classes. After that, Bakotich’s job duties
included replacing cabinetry and boxing up and transporting case files. He was also
assigned to do “due diligence” paperwork on arrest warrants, which was essentially
“duplicating performing a meaningless task that’s already been done.” McCarthy did not
anticipate transferring Bakotich back to his field assignment.
6 Cortez told Fanning that Bakotich “was going to be benched” and that it was
McCarthy’s decision.
8
Fanning was next.
In late April or early May 2009 McCarthy decided to send Fanning from the
Fugitive Warrants Section to a division referred to as RACER.7 McCarthy called
Fanning into his office and told Fanning that he was sending Fanning “on a long term
loan to RACER effective immediately” and to pack his belongings. Fanning had never
requested a transfer to RACER.8 McCarthy told Fanning that the reason he was
transferring Fanning from the Fugitive Warrants Section to RACER was that Fanning
was “disrespectful to Lieutenant Cortez,” and that “it was only business.”9 Prior to this
time, however, Cortez never told Fanning that he had been discourteous to her.
Eisenberg agreed with McCarthy’s decision to send Fanning to RACER “based on [the]
conflict between Fanning and Bakotich with Lieutenant Cortez.” Eisenberg said
Fanning’s conflict with Cortez was the “main reason” Fanning was transferred from the
Fugitive Warrants Section.
Fanning packed his bags, made a telephone call to find out where RACER was,
and learned that it was in a small basement room six floors beneath city hall. At RACER,
Fanning worked nights essentially as a message service for investigators in the field, ran
criminal histories for other detectives, and “put a dot on a map.” Describing the work he
did in RACER, Fanning explained, “Basically, it was to send out Blackberry messages to
7 RACER is the “real time analysis division. . . . All notifications go to [the]
RACER division and they decide who gets notified.” RACER receives notifications of
“every single victim, shooting, every homicide, every traffic collision that involves a
police officer or fatality.”
8 Fanning’s Standards Based Assessment states that he was “transferred.”
McCarthy testified that this was a mistake.
9 McCarthy testified that he changed Fanning’s assignment because he heard that
Fanning had stated in a meeting with his squad that he was not told “what the mission
was,” and McCarthy thought Fanning did not “have the best interests of the department in
mind.” Eisenberg, however, said that Fanning understood his mission, and that
McCarthy never said anything about Fanning not understanding his mission. McCarthy
also felt Fanning was resistant to change.
9
the captains and the command staff when there was something that happened . . . . It was
a messaging service. They were like tweeting messages. There was very little. I didn’t
see any investigations going on.” After having supervised some of the largest and most
important investigations in the Department, and working in a position that was “sought
after” by other Detective III’s, Fanning had little to do at RACER but watch the Lakers
finals and American Idol on television. As Fanning put it, “they buried me there.”
Approximately one month after his transfer to RACER, Fanning, in order to
escape the figurative and literal burial at the underground RACER office, requested a
transfer to a division back in the field, Hollenbeck, where he was able to work on basic
robbery and homicide cases, as he had done when he was starting out as a Detective I.
The position at Hollenbeck was not part of a specialized unit like the Fugitive Warrants
Section, and it was not a coveted position. It was “going . . . the wrong way” from a
specialized unit to a general “table” assignment.
And finally, for resisting Cortez’s plan, Guerrero.
After Cortez learned that Guerrero had spoken to Fanning about what had
happened to him, Cortez called Guerrero at home and told her to come in for a meeting.
Cortez was angry, “vicious,” and screamed at Guerrero, “totally out of control.” Findley,
who witnessed the telephone call, observed that Cortez was angry with Guerrero because
Guerrero had told Bakotich and Fanning about Cortez’s plans to replace them with
female supervisors. Guerrero took notes of the telephone conversation because she was
concerned about Cortez’s requests “to assist her and engage in acts of discrimination
against Mike Fanning and Pete Bakotich” and Cortez’s accusations that she was “part of
the problem,” which caused Guerrero to become concerned about her job. Guerrero
stated that the subsequent meeting with Cortez “was pretty humiliating. I’ve never been
spoken to that way before. And in closing, she told me that she wanted all female
supervisors in that division and that she was an advocate for women and you could say
she was guilty of gender bias but oh, well, she wanted women to succeed. And she said
that if I did everything she wanted me to do, which I took as spying on the guys, that I
10
would make it there.” Otherwise, Cortez made it “very clear to me that if I didn’t do
what she told me to do, I would be moved just like it happened to Pete and Mike.”
Guerrero subsequently suffered a knee injury during a live fire training exercise in
May 2009 and required treatment and placement on restricted duty. This created an
opportunity for Cortez to get rid of Guerrero. Cortez ordered Guerrero to work a
command post at the June 17, 2009 Lakers championship parade, which aggravated
Guerrero’s injury. On June 24, 2009, while Guerrero was still on restricted duty because
of her injury, McCarthy sent her an email stating that because of her “light duty status”
she would no longer be in charge of her squad. McCarthy sent this email the day after
Guerrero had contacted the Inspector General’s office to report Cortez’s discrimination.
Guerrero had decided to file a report with the Inspector General because Cortez “had
already made it pretty clear that I had to continue and wanted me to engage in the acts of
discrimination that I clearly refused to do, and based on the way she had treated me and
spoken to me, I was really concerned for my job.”10
After Guerrero lost her squad, Cortez had her “doing time keeping, inputting into
the computer people’s daily time worksheets,” and performing “random audits” assigned
by Cortez. Eventually Eisenberg called Guerrero into his office and, although he did not
offer to return Guerrero to her squad in the Fugitive Warrants Section, he said he would
help her transfer somewhere else.
D. Damages
After his benching, Bakotich no longer received any overtime. Because Eisenberg
made it “very clear” that Bakotich “was not allowed to respond to the field for any reason
whatsoever,” and that “whatever may be, [he] was not allowed to respond,” Bakotich
10 Bakotich and Fanning also filed reports with the Office of the Inspector General.
The Office of the Inspector General referred the three matters to Internal Affairs, but
there never was an investigation.
11
could not earn any overtime compensation. Had Bakotich remained in the field, he
would have continued to garner overtime.
Bakotich also failed to obtain a teaching position that he believed was because of
interference by someone at the Department. In March 2011 Bakotich applied for a job
teaching a private police academy course at Rio Hondo College and had a telephonic
interview for the position with a retired Los Angeles Police Department captain, who
initially “seemed interested” in Bakotich. After a few follow-up discussions, the retired
captain stopped returning Bakotich’s calls. Bakotich never got this job, which would
have paid him between $50,000 and $77,000.
While Fanning was with the Fugitive Warrants Section, he earned $12,000 to
$15,000 per year in overtime. At RACER, Fanning did not work any overtime, and he
did not believe there was any overtime in RACER. Even after Fanning moved to
Hollenbeck, Fanning rarely worked overtime anymore.
Fanning also suffered a loss of retirement benefits resulting from entering into the
DROP (Deferred Retirement Option Plan) retirement program earlier than he had
planned. The DROP program allowed police officers to “retire” as of a particular date,
continue to work for five additional years after that date, and then actually retire. During
the five year period, the City paid the officer his or her salary and paid the officer’s
retirement benefits into a fund. At the end of the five year period, the officer received the
accumulated five years of benefits in a lump sum.11
11 “The DROP was intended to offer an incentive to officers who were eligible to
retire to continue working for the LAPD, as it was having difficulty recruiting new
officers and retaining veteran officers. Under the DROP, eligible officers could ‘retire’
and commence drawing their pensions while continuing to work and earning a salary for
up to an additional five years. Rather than actually receiving monthly pension payments,
however, a DROP account was created which would be credited monthly in the amount
of the member’s pension payment.” (In re Marriage of Davis (2004) 120 Cal.App.4th
1007, 1011-1012.) “Upon discontinuing participation in the DROP and terminating
employment with the LAPD, the member would begin to receive monthly pension
payments based upon years of service and salary at the time of entering the DROP, plus
cost of living increases received while in the DROP. At that time, members could
12
Prior to his removal from the Fugitive Warrants Section, Fanning had planned to
“go in DROP” when he was 52 years old, so that he would be at the maximum retirement
benefit level of 70 percent. Thus, Fanning had intended to go into the DROP program in
December 2013, and continue to work another five years until December 2018, collecting
both salary and deferred retirement benefits for those five years. Instead, because of what
happened to him in this case, Fanning went into the DROP program in January 2011,
almost three years earlier than he had planned. As a result, Fanning will be retiring at a
benefit level of 64 percent rather than 70 percent.
Guerrero, like Fanning, experienced a considerable decrease in her overtime
compensation after her removal from the Fugitive Warrants Section. In addition,
Cortez’s actions and their consequences affected Guerrero’s retirement plans. Like
Fanning, Guerrero decided to enter the DROP program early, so that she too will have a
lesser pension percentage than she otherwise would have had.
Karen Smith, a forensic economist, calculated the amount of economic losses due
to loss of overtime and retirement benefits by Bakotich, Fanning, and Guerrero. After
reviewing and analyzing the detectives’ payroll documents, overtime history, the
Department’s pension records, and other information, Smith calculated that Bakotich lost
$2,523 in overtime, which represented the amount of overtime Bakotich would have
earned had he continued to work as a field supervisor in the Fugitive Warrants Section
from April 16, 2009, when he was benched, to February 19, 2010, when he retired.
Similarly, Smith calculated that Fanning lost $19,738 in past overtime and
$34,332 in future overtime, for a total of $54,070. On the issue of reduced retirement
benefits, Smith calculated two different scenarios for Fanning, one where Fanning went
into the DROP program three years earlier than he had planned, and one where he was
receive the DROP funds in a lump sum, or could elect to roll the funds over into a tax-
deferred account.” (Id. at p. 1012.)
13
promoted to lieutenant before retiring a year later.12 Smith calculated these damages as
$336,976 and $540,151. Adding the $19,738 in lost past overtime to the future lost
overtime and reduction of retirement benefits, Smith calculated that the two scenarios
produced economic damages of $356,714 and $559,889.
And for Guerrero, Smith calculated a loss of overtime, past and future, of $5,744.
Smith calculated that Guerrero’s loss of retirement benefits was $573,304 assuming that
she had stayed in the Fugitive Warrants Section and decided to retire early,13 or
$962,644, assuming that she could have transferred back into the narcotics division where
she could have earned even more overtime (i.e., she lost a greater amount of overtime).
E. The Verdict
After a 10-day trial the jury found in favor of all three plaintiffs. The jury found
that Bakotich, Fanning, and Guerrero had been the victims of gender discrimination and
retaliation and had all suffered adverse employment actions that materially affected the
terms and conditions of their employment. The jury awarded Bakotich $2,523 in past
economic damages, $50,000 in future economic damages, $225,000 in past non-
economic damages, and $225,000 in future non-economic damages, for a total of
$502,523. The jury awarded Fanning $20,000 in past economic damages, $360,000 in
future economic damages, $250,000 in past non-economic damages, and $250,000 in
future non-economic damages, for a total of $880,000. Finally, the jury awarded
Guerrero $5,800 in past economic damages, $580,000 in future economic damages,
12 Smith also calculated a third scenario where Fanning did not retire and go into
DROP early; i.e., no loss of retirement benefits and a pure loss of (past and future)
overtime.
13 Counsel for the City referred to this figure in cross-examination as $580,000.
14
$250,000 in past non-economic damages, and $250,000 in future non-economic damages,
for a total of $1,085,000.14 The trial court entered judgment on December 7, 2011.
On February 10, 2012 the trial court denied the City’s motions for judgment
notwithstanding the verdict and for a new trial. The trial court noted that the City
“named every statutory ground for the motion [for a new trial] and failed to state in the
memorandum of points and authorities which grounds were being argued.” The court
then found that “[t]here was sufficient evidence to support the verdict. The testimony
provided by plaintiffs was sufficient to establish that [the Department’s] actions in
removing them from their positions severely harmed their careers and was in fact
punishment. There was expert testimony as to the amount of damages the plaintiffs
suffered and the verdict is reasonably consistent with that testimony.” The court also
ruled that “[a]s to the argument that the jury instructions given were an error in law, [the
City] failed in its motion to show how its instructions differed from the given instructions
or what part of the instructions given misled the jury and how the jury was misled.” The
City filed a timely notice of appeal on February 24, 2012.
DISCUSSION
The City makes two arguments on appeal. First, the City contends that the trial
court erred by giving an erroneous jury instruction on what constitutes adverse
employment action and by refusing to give the City’s proposed instructions on adverse
employment action. Second, the City argues that there is no substantial evidence to
support the jury’s award of future economic damages. We conclude that the jury
instructions on adverse employment action were correct, and, with one exception relating
to Bakotich’s award for loss of future earnings, that there is substantial evidence to
support the award of future economic damages. We therefore affirm the judgment in part
14 The jury added these sums incorrectly. The actual total is $1,085,800. We will
modify the judgment accordingly.
15
and reverse in part as to Bakotich, and affirm the judgment in its entirety as to Fanning
and Guerrero.
A. Standard of Review
“‘The propriety of jury instructions is a question of law that we review de novo.’”
(Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 418.) “A
party is entitled upon request to correct, nonargumentative instructions on every theory of
the case advanced by him which is supported by substantial evidence.” (Soule v. General
Motors Corp. (1994) 8 Cal.4th 548, 572.) “The trial court has no duty to instruct on its
own motion, nor is it obligated to modify proposed instructions to make them complete
or correct.” (Maureen K. v. Tuschka (2013) 215 Cal.App.4th 519, 526.) “A court also
may refuse an instruction requested by a party when the legal point is adequately covered
by other instructions given.” (Alamo v. Practice Management Information Corp. (2013)
219 Cal.App.4th 466, 475; accord, Bell v. H.F. Cox, Inc. (2012) 209 Cal.App.4th 62, 80;
see Arato v. Avedon (1993) 5 Cal.4th 1172, 1189, fn. 11 [“[i]t is not error . . . to refuse to
give an instruction requested by a party when the legal point is covered adequately by the
instructions that are given”].) “The refusal of a proper instruction is prejudicial only if
‘“it seems probable” that the error “prejudicially affected the verdict.” [Citations.]’”
(Bell, supra, at p. 80.)
“We review the jury’s award under the substantial evidence standard and defer to
the trial court’s denial of a new trial motion based on excessive damages because of the
trial judge’s greater familiarity with the case. The amount awarded is peculiarly within
the jury’s discretion.” (Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702,
720.) The amount of damages is a question of fact committed first to the discretion of the
jury and second to the discretion of the trial judge on a motion for new trial. (Pool v. City
of Oakland (1986) 42 Cal.3d 1051, 1067; see Toscano v. Greene Music (2004) 124
Cal.App.4th 685, 691 [amount of damages “is a fact question committed to the discretion
of the trial judge on a motion for new trial; an award of damages will not be disturbed if
it is supported by substantial evidence”].) “A reviewing court must uphold an award of
16
damages whenever possible . . . .” (Bertero v. National General Corp. (1974) 13 Cal.3d
43, 61; see Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1078.)
B. The Jury Instructions on Adverse Employment Action Were Not Erroneous
To establish a prima facie case of discrimination under FEHA, the plaintiff must
show “(1) the plaintiff was a member of a protected class, (2) the plaintiff was qualified
for the position he or she sought or was performing competently in the position held,
(3) the plaintiff suffered an adverse employment action, such as termination, demotion, or
denial of an available job, and (4) some other circumstance suggests a discriminatory
motive.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004; see
Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) For retaliation under FEHA,
“a 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 existed
between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA,
Inc. (2005) 36 Cal.4th 1028, 1042; see McCoy v. Pacific Maritime Assn. (2013) 216
Cal.App.4th 283, 298.)
The City does not contend that that there is no substantial evidence to support the
jury’s findings that Bakotich, Fanning, and Guerrero were subject to discrimination and
retaliation that materially affected the terms and conditions of their employment and
subjected them to adverse employment action. Rather, the City argues that the trial court
erred when it “rejected the City’s instructions [on adverse employment action] and
instead, over the City’s objections, instructed the jury pursuant to competing instructions
offered by Plaintiffs that improperly misled the jury, causing [it] to conclude incorrectly
that Plaintiffs suffered adverse employment actions when they did not.” On the issue of
prejudice, the City argues that “the issue of whether each Plaintiff suffered an adverse
employment action was crucial to the outcome of the trial, and correct instruction on the
applicable law was necessary in order for the parties to obtain an appropriate decision
from the jury.”
17
Adverse employment action includes “the entire spectrum of employment actions
that are reasonably likely to adversely and materially affect an employee’s job
performance or opportunity for advancement in his or her career. Although a mere
offensive utterance or even a pattern of social slights by either the employer or
coemployees cannot properly be viewed as materially affecting the terms, conditions, or
privileges of employment for purposes of [Government Code] section 12940[,
subdivision ](a) [discrimination] (or give rise to a claim under [Government Code]
section 12940[, subdivision ](h) [retaliation]), the phrase ‘terms, conditions, or privileges’
of employment must be interpreted liberally and with a reasonable appreciation of the
realities of the workplace in order to afford employees the appropriate and generous
protection against employment discrimination that the FEHA was intended to provide.”
(Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1054, fn. omitted; see Taylor v.
City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1233
[Yanowitz gives a “broad interpretation of the materiality test”], disapproved on another
ground in Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173-
1174.)
“Minor or relatively trivial adverse actions or conduct by employers or fellow
employees that, from an objective perspective, are reasonably likely to do no more than
anger or upset an employee cannot properly be viewed as materially affecting the terms,
conditions, or privileges of employment and are not actionable, but adverse treatment that
is reasonably likely to impair a reasonable employee’s job performance or prospects for
advancement or promotion falls within the reach of the antidiscrimination provisions of
[Government Code] sections 12940[, subdivision ](a) and 12940[, subdivision ](h).”
(Yanowitz v. L’Oreal USA, Inc, supra, 36 Cal.4th at pp. 1054-1055, fn. omitted.)
“Actions that threaten to derail an employee’s career are objectively adverse” and can
constitute adverse employment action. (Id. at p. 1060; see Horsford v. Board of Trustees
of California State University (2005) 132 Cal.App.4th 359, 374 [where police lieutenant
was removed from a “position near the top of the department’s chain of command,” and
then from all “law enforcement duties, the objective terms and conditions of employment
18
have been adversely affected” and constituted “actionable adverse employment
action.”].)
The trial court instructed the jury on the element of an adverse employment action
from BAJI No. 12.10 as follows:
“The term ‘adverse employment action’ means action by the employer
and/or by the supervising employee that causes a substantial and material adverse
effect on the terms, conditions or privileges of the plaintiff’s employment. In
determining whether a plaintiff has been subjected to an adverse employment
action, you should consider the totality of the circumstances, including, but not
limited to, the unique circumstances of the affected plaintiff as well as the
workplace context of the claim. In addition, when there is more than one alleged
act of retaliation, you should consider the proven acts of retaliation collectively in
determining whether there has been an adverse employment action or actions.
“The significance of particular types of adverse actions must be evaluated
by taking into account the legitimate interests of both the employer and the
employee. Minor or relatively trivial adverse actions or conduct by employers or
fellow employees that, from an objective perspective, are reasonably likely to do
no more than anger or upset an employee cannot properly be viewed as materially
affecting the terms, conditions, or privileges of employment. However, adverse
treatment that is reasonably likely to impair a reasonable employee’s job
performance or prospects for advancement [does] materially affect the terms,
conditions or privileges of employment.
“A plaintiff’s refusal to follow a supervisor’s order that he or she
reasonably and in good faith believes to be discriminatory constitutes protected
activity under the FEHA. An employer may not retaliate against a plaintiff on that
basis when the employer, in light of all the circumstances, knows that the plaintiff
believes the order to be discriminatory, even when the plaintiff does not explicitly
state to his or her supervisor or employer that he or she believes the order to be
discriminatory.”
19
Contrary to the City’s argument, this instruction, which closely follows the
language of Yanowitz, accurately states the law regarding adverse employment action and
adequately explains what kinds of treatment may and may not constitute adverse
employment action. The instruction correctly states that an adverse employment action
must cause “a substantial and material adverse effect on the terms, conditions or
privileges of the plaintiff’s employment,” and must be “reasonably likely to impair a
reasonable employee’s job performance or prospects for advancement.” It also explains,
consistent with the City’s theory, that “[m]inor or relatively trivial adverse actions or
conduct” that is “reasonably likely to do no more than anger or upset an employee” is not
adverse employment action.
The City complains that the trial court erred by refusing to give the City’s
proposed instructions on adverse employment action, the City’s special instruction Nos. 1
and 3. The City’s proposed special instruction No. 1 stated:
“In order to establish discrimination or retaliation, plaintiff must prove that
he was subjected to an ‘adverse employment action.’ To qualify as an adverse
employment action, an employment action by the employer must materially affect
the terms, conditions, or privileges of employment. That is, the action must be
reasonably likely to impair a reasonable employee’s job performance or prospects
for advancement or promotion. Although ‘adverse employment action’ is not
limited to ultimate actions such as termination or demotion, minor or trivial
actions or conduct that are reasonably likely to do no more than anger or upset an
employee cannot constitute adverse employment action. For example, mere
offensive utterance or even a pattern of social slights by either the employer or co-
employees cannot properly be viewed as materially affecting the terms, conditions,
or privileges of employment.”
This proposed instruction was very similar to the instruction that the trial court
gave. With the exceptions of the references to offensive utterances and social slights, it is
virtually identical. The trial court did not err in refusing to give this duplicative
instruction. (See Harris v. Oaks Shopping Center (1999) 70 Cal.App.4th 206, 209 [“trial
20
court is not required to give every instruction offered”]; Linden Partners v. Wilshire
Linden Associates (1998) 62 Cal.App.4th 508, 528 [trial court does not err by refusing to
give duplicative proposed special instructions]; Anaheim Bldrs. Supply, Inc. v. Lincoln
Nat. Life Ins. Co. (1965) 233 Cal.App.2d 400, 413 [“[t]here is no requirement that a trial
court must duplicate instructions”].)
Both sides had prepared special instructions on the issue of whether a lateral
transfer of an employee is an adverse employment action. Counsel for Bakotich,
Fanning, and Guerrero stated at a hearing on the jury instructions that if the court gave
BAJI No. 12.10, then there was no need for the court to give either side’s special
instruction on lateral transfer. Counsel for the detectives stated that even the special
instruction he submitted on the issue of lateral transfer was unnecessary because the
language of BAJI No. 12.10 covered “trivial” adverse actions. The court refused both
sides’ lateral transfer instructions, plaintiffs’ proposed instruction No. 7 and the City’s
proposed instruction No. 3, stating that they were not needed.
The City’s proposed special instruction No. 3 stated:
“A transfer does not constitute an adverse employment action where the transfer is
into a lateral position with comparable pay, benefits, and opportunities for promotion.
An employee’s personal feelings about an assignment, preferences for one assignment
over another, or even personal feeling of humiliation as the result of a lateral transfer is
insufficient to make the transfer constitute an adverse employment action.”
We agree with the trial court that BAJI No. 12.10 adequately covered the issue of
adverse employment action, and that the City’s proposed special instruction No. 3 (and,
for that matter, the plaintiffs’ proposed special instruction No. 7) was unnecessary. (See
Arato v. Avedon, supra, 5 Cal.4th at p. 1189, fn. 11; Alamo v. Practice Management
Information Corp., supra, 219 Cal.App.4th at p. 475; Bell v. H.F. Cox, Inc., supra, 209
Cal.App.4th at p. 80.) Both sides were free to argue that under BAJI No. 12.10 and the
court’s other instructions that the transfers of Bakotich, Fanning, and Guerrero were not
adverse employment actions because they were minor or trivial actions or conduct that
were reasonably likely to do no more than anger or upset them.
21
Moreover, it is not necessarily true, as the City’s proposed special instruction
No. 3 stated, that “[a] transfer does not constitute an adverse employment action where
the transfer is into a lateral position with comparable pay, benefits, and opportunities for
promotion.” The cases cited by the City, McRae v. Department of Corrections &
Rehabilitation (2006) 142 Cal.App.4th 377 and Malais v. Los Angeles City Fire Dept.
(2007) 150 Cal.App.4th 350, do not hold that this is the rule in California. “A transfer
can be an adverse employment action when it results in substantial and tangible harm.”
(McRae, supra, at p. 393; see Patten v. Grant Joint Union High School Dist. (2005) 134
Cal.App.4th 1378, 1389 [transfer of principal from one school to another was an adverse
employment action where the transfer “could be viewed unfavorably” and “in reality was
a demotion,” and the new school did “not present the kinds of administrative challenges
an up-and-coming principal wanting to make her mark would relish” and “presented [a]
different world[] for a principal”]; Abboub v. International Business Machines Corp.
(N.D.Cal. 2006) 2006 WL 905319 at p. 6 [lateral transfer with same title, salary, and
responsibilities was adverse employment action where the plaintiff’s duties were
“‘substantially different’”].) The transfer in McRae was not an adverse employment
action because the transfer “did not entail a demotion, reduction in pay or a loss of
benefits,” and “did not involve a change in status or less distinguished title,” and there
was “no evidence that it involved any significant change in responsibilities.” (McRae,
supra, at p. 393.)15 The City did not ask for an instruction that included these factors.
Indeed, “the determination of what type of adverse treatment properly should be
considered discrimination in the terms, conditions, or privileges of employment is not, by
its nature, susceptible to a mathematically precise test, and the significance of particular
types of adverse actions must be evaluated by taking into account the legitimate interests
15 Similarly, Malais did not involve a loss of promotional or overtime opportunity.
(Malais v. Los Angeles City Fire Dept., supra, 150 Cal.App.4th at p. 358.) The plaintiff’s
only claim in Malais was that he preferred to work as a firefighter in the field rather than
in the office. (Id. at pp. 355, 358.)
22
of both the employer and the employee.” (Yanowitz v. L’Oreal USA, Inc., supra, 36
Cal.4th at p. 1054.) The instruction the trial court gave was a correct and
nonargumentative statement of the law that allowed each side to argue whether, in light
of the “realities of the workplace” in the Department (ibid.), the facts at trial supported or
did not support a finding of adverse employment action. The trial court did not err in
refusing the City’s proposed instructions.
C. Substantial Evidence Supports the Verdict for Past and Future
Lost Earnings
As noted above, the jury awarded Bakotich $502,523, which consisted of $2,523
in past economic damages for lost overtime, $50,000 in future economic damages,
$225,000 in past non-economic damages, and $225,000 in future non-economic damages.
The jury awarded Fanning $880,000, which consisted of $20,000 in past economic
damages for lost overtime, $360,000 in future economic damages, $250,000 in past non-
economic damages, and $250,000 in future non-economic damages. And the jury
awarded Guerrero $1,085,800, which consisted of $5,800 in past economic damages for
lost overtime, $580,000 in future economic damages, $250,000 in past non-economic
damages, and $250,000 in future non-economic damages. On appeal, the City does not
challenge the awards for past economic damages for lost overtime,16 past non-economic
damages, or future non-economic damages. Nor does the City challenge the amounts of
16 The City mentions for the first time in its reply brief “[t]o the extent Bakotich’s
past damages were awarded for overtime, the assumption that Bakotich would have
earned overtime is too speculative to reach the ‘reasonably certain’ standard necessary to
award damages.” The City in its reply brief makes a similar belated, three-sentence
argument about Fanning’s lost overtime damages. We decline to address these issues,
raised for the first time on reply. (See Varjabedian v. City of Madera (1977) 20 Cal.3d
285, 295, fn. 11 [“[o]bvious reasons of fairness militate against consideration of an issue
raised initially in the reply brief of an appellant”]; Estate of Bonzi (2013) 216
Cal.App.4th 1085, 1106, fn. 6 [“we do not consider arguments raised for the first time in
a reply brief”].)
23
the awards for future economic damages to Bakotich, Fanning, and Guerrero, or any of
the calculations by their forensic economist, Karen Smith. The City’s only argument is
that there is no substantial evidence to support the awards of future economic damages to
the three detectives in any amount.
The City argues that the Department’s discriminatory actions did not have any
effect on Fanning and Guerrero’s “pay, work benefits, and retirement benefits,” that they
“sought and obtained an equivalent Detective position” (RACER and then Hollenbeck for
Fanning, Hollenbeck for Guerrero), and that no one at the Department “in any way
interfered with [their] ability to promote, obtain a transfer, or to remain an LAPD
Detective III in good standing for as long as [they] wished.” Without challenging Karen
Smith’s economics or mathematics, the City argues that her calculations were based on
the assumptions that Fanning and Guerrero would have retired later than they did, and
that these assumptions were false because the decisions by Fanning and Guerrero to
entire the DROP retirement program early were theirs and theirs “alone.”
The evidence showed that Fanning and Guerrero did indeed decide to enter the
DROP retirement program early, but to say that they made these decisions “alone”
ignores the circumstances that led to their decisions and their explanations of why they
made their decisions. Fanning explained that the officers involved in the events that led
to his benching destroyed his reputation, his ability to return to a specialized unit like the
Fugitive Warrants Section, and his desire to work longer at the Department. Fanning
stated that the officers who orchestrated and approved the discrimination are now
commanders and are the same “people who decide the promotions.” He explained that
because he was disciplined and “ripped out of a division” and a specialized unit for
something he did not do, his prospects in the Department were ruined. He stated, “My
reputation is gone and they’re questioning my integrity, my professionalism and on this
job without integrity, you’re nothing.”
Guerrero explained that the incidents in the Fugitive Warrants Section with Cortez
damaged her reputation and raised a question about her integrity, causing her to change
her retirement plans. Guerrero went “from positions of prestige” and “great [and]
24
coveted assignments,” to a position back at “the starting block for a detective.” Guerrero
also explained that the people making promotion decisions in the Department look at an
officer’s past work history and whether it has been consistent, and that going back to “the
starting block for a detective” as Guerrero had done hurt her opportunity for promotion.
Moreover, Guerrero could not apply for a Detective III position doing narcotics work
because McCarthy, now a Commander, supervises those detectives, and “that obviously
is not going to be an option for [her].” It was for these reasons that she decided to enter
the DROP program earlier than she had planned.
Whether Fanning and Guerrero decided to retire early because they experienced
discrimination at the hands of Cortez and McCarthy, or whether they did so for other
reasons, was a factual question for the jury. (See Smith v. Alum Rock Union Elementary
School Dist. (1992) 6 Cal.App.4th 1651, 1657, fn. 2 [“[w]hether plaintiff was
involuntarily retired is a question of fact”]; Blevins v. Cessna Aircraft Co. (10th Cir.
1984) 728 F.2d 1576, 1582 [“the issue of lost wages and voluntary retirement was
properly one for the jury”]; Seisser v. Platz Flowers & Supply, Inc. (N.D.Ill. 2000) 129
F.Supp.2d 1130, 1135 [whether employee retired voluntarily is an issue of fact].)
Similarly, whether the assumptions by Karen Smith on which her unchallenged damages
calculation rested were reasonable was also a question for the jury. (See Arntz
Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 489-490.)
The jury believed Fanning and Guerrero and found that they decided to retire (or, more
specifically, enter the DROP program) early because of the Department’s discrimination
and retaliation against them, and the jury credited Karen Smith’s unrebutted damages
testimony. The jury’s findings are supported by substantial evidence.
Unlike Fanning and Guerrero, Bakotich’s claim for future economic damages did
not involve early retirement or calculations by the forensic economist. Instead,
Bakotich’s claim for future economic damages was based on his failure to obtain the
teaching position at Rio Hondo College, which he said would have paid $50,000 to
$77,000. The City argues that there was no evidence that Bakotich was reasonably likely
to “obtain any desired employment after retirement from [the Department],” that there
25
was “no evidence that anyone from [the Department] interfered in any way with the
prospective Rio Hondo position,” and that there was “no evidence that Bakotich was even
close to being hired for that position anyway.”
We agree with the City that there is no substantial evidence to support the jury’s
$50,000 award for Bakotich’s loss of this future employment opportunity. Bakotich’s
claim for the lost teaching position consisted of little more than speculation and surmise
that (1) he lost a job he could have had, and (2) the Department had something to do with
it. According to Bakotich, the retired police captain who interviewed Bakotich for the
teaching position “may have been told of [Bakotich’s benching] and perhaps he has a
negative opinion of what has occurred. Maybe he wasn’t told even accurate information
and as a result, my phone is not ringing. My calls aren’t being returned.” Bakotich,
however, never received any information from this potential employer that it had
received any negative comments from the Department about him. Nor was Bakotich
aware that any prospective employer from whom he sought employment ever received
any negative information about him from the Department. At trial, Bakotich still did not
know what his status was with respect to the Rio Hondo teaching job, and he did not
know if the school was still interviewing. Bakotich did not know whether the school
even hired anyone to teach the classes that he had wanted to teach. The absence of return
phone calls is not substantial evidence that Bakotich lost the job because of anything the
Department did or did not do. Because there was no evidence that Bakotich was
reasonably likely to get the job, or that anyone at the Department knew that Bakotich was
applying for the job and took some kind of step to interfere with Bakotich’s efforts to get
it, there was no substantial evidence to support this damages claim. (Cf. Sanchez v.
County of San Bernardino (2009) 176 Cal.App.4th 516, 530 [former employee entitled to
sue former employer for loss of employment opportunity where potential employer stated
it was aware of the situation with her former employer and that it was “‘definitely a
factor’” in its decision not to hire her].)
26
DISPOSITION
The judgment is modified to reflect an award of $1,085,800 in damages to
Guerrero. The award of $50,000 in future economic damages to Bakotich is reversed. In
all other respects, the judgment as modified is affirmed. Bakotich, Fanning, and
Guerrero are to recover their costs.
SEGAL, J.*
We concur:
WOODS, Acting P. J.
ZELON, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
27