Doyen v. City of Los Angeles CA2/4 ( 2021 )

Filed 11/22/21 Doyen v. City of Los Angeles CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
ANTHONY DOYEN, B299745
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC569363)
v.
CITY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court for Los Angeles
County, Rupert A. Byrdsong, Judge. Reversed.
McNicholas & McNicholas, Matthew S. McNicholas, Courtney C.
McNicholas; Esner, Chang & Boyer, Kevin K. Nguyen and Andrew N.
Chang for Plaintiff and Appellant.
Michael N. Feuer, City Attorney, Kathleen A. Kenealy, Chief
Deputy City Attorney, Scott Marcus, Senior Assistant City Attorney,
and Blithe S. Bock, Assistant City Attorney, for Defendant and
Respondent.
Plaintiff Anthony Doyen, a Sergeant in the Los Angeles Police
Department (LAPD), appeals from a summary judgment entered in
favor of defendant City of Los Angeles (City) on Doyen’s claims for
retaliation. Doyen alleged he was excluded from being considered for a
supervisor position in the LAPD’s Bomb Squad—a position for which he
met all of the mandatory criteria and was the most qualified of all
candidates—in retaliation for giving testimony in a discrimination and
retaliation lawsuit that had been filed by another officer. This case
presents two issues that are unique due to the circumstances present
here.
First, the position that Doyen sought is a downgrade in rank from
his current position (from Sergeant II to Sergeant I). City argues, and
the trial court found, that denial of a transfer from a Sergeant II
position to a Sergeant I position did not constitute an adverse
employment action. However, there is evidence that at the time Doyen
applied for and was turned down for the position, he was a Sergeant I,
and the position he sought was a Sergeant I position with an increased
paygrade. Moreover, even if he had been a Sergeant II at the time he
was denied the position, Doyen contends that because the downgrade in
rank came with an increased paygrade, as well as increased
opportunities for overtime, he suffered an adverse employment action
when he was excluded from consideration for the position.
Second, a significant period of time elapsed between the protected
conduct and the denial of Doyen’s application for the position, during
which Doyen was promoted twice and obtained a coveted position in the
Internal Affairs Group. Therefore, City argues, and the trial court
2
found, that Doyen could not establish a causal link between the
protected activity and any adverse employment action. Doyen contends,
however, that he suffered retaliation immediately after the protected
activity (during which he was assigned to the Bomb Squad as a bomb
technician), that the retaliatory conduct continued throughout his time
there, and that he was forced to transfer out of the Bomb Squad in
order to gain his promotions. He asserts that this retaliation continued
when, two years after his transfer, he applied for a supervisor position
in the Bomb Squad and two of the three people responsible for making
the decision regarding his application—the supervisors of the Bomb
Squad and of the division section of which it is a part—were the same
people who had engaged in, or had been aware of and did not stop, the
prior retaliation.
We conclude there were disputed issues of fact whether the Bomb
Squad supervisor position offered Doyen an opportunity for increased
compensation (regardless of whether there was a downgrade in rank),
such that the alleged refusal to consider him for the position constituted
an adverse employment action.
We also find the evidence of Doyen being shunned, excluded from
trainings, and treated differently than other members of the Bomb
Squad, which began immediately after his involvement in his fellow
officer’s lawsuit became known and continued throughout his time in
the Bomb Squad, could support an inference of retaliatory intent. And
even though there was a two-year period—while he was assigned to a
different division—during which he was not subject to retaliatory
conduct, a reasonable jury could infer retaliatory intent from the fact
3
that two of the same supervisors who were aware of or responsible for
the earlier alleged retaliation were involved in the decision not to
consider Doyen’s transfer application.
Accordingly, because we find there was sufficient evidence from
which a jury could conclude that Doyen suffered an adverse
employment action motivated by retaliation for his protected conduct,
we reverse the summary judgment.
BACKGROUND
A. Factual Background
We recite the factual background in accordance with the standard
of review for summary judgments. We “liberally constru[e] the evidence
in support of the party opposing summary judgment and resolv[e]
doubts concerning the evidence in favor of that party.” (Miller v.
Department of Corrections (2005) 36 Cal.4th 446, 460 (Miller).)
Doyen joined the LAPD in 1996 after being honorably discharged
from the United States Navy, where he served for 12 years, earning the
rank of E-6, the equivalent of Staff Sergeant. While in the Navy, he
served as military police and as a narcotics and explosives K-9 handler.
In 2003, Doyen was selected to join the LAPD’s Bomb K-9 Unit,
which is part of the Emergency Services Division.1 The Hazardous
Devices and Materials Section (HDMS)—which consists of the Bomb
1 While assigned to the Bomb K-9 Unit, Doyen held the rank of “Police
Officer III plus 1” (the “plus 1” indicated the level of hazardous duty pay to
which he was entitled as a member of that unit).
4
Squad, HazMat Unit, and Logistics Unit—also is a part of the
Emergency Services Division. The Bomb K-9 Unit and the Bomb Squad
work closely together, sharing patrol duties at LAX and participating in
joint training exercises.
While Doyen was assigned to the Bomb K-9 Unit, two of the
officers with whom he served in that unit, Officer Don Bender and
Officer Patty Fuller, filed lawsuits against the City for violations of the
Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).
Officer Fuller alleged she had been discriminated against and sexually
harassed while working in the Bomb K-9 Unit, and Officer Bender
alleged he was retaliated against for supporting Officer Fuller.
In 2008, Doyen applied for and was selected to join the Bomb
Squad as a bomb technician trainee. Although he remained at the same
rank (Police Officer III), the move from Bomb K-9 to Bomb Squad
increased his paygrade from “plus 1” to “plus 3”. Shortly after he
started on the Bomb Squad, Doyen was called to the City Attorney’s
office to be questioned about the lawsuits that had been filed by Officers
Fuller and Bender. Doyen also was deposed and called to testify at trial
in Bender’s lawsuit, which resulted in a multi-million dollar jury
verdict; the City then settled Fuller’s lawsuit for a similar amount.
Doyen’s supervisors—his immediate supervisor, Detective II Doug
Stice; the Officer in Charge (OIC) of the Bomb Squad, Sergeant II Mike
Salinaz; and the OIC of HDMS, Lieutenant Rick Smith—and other
members of the Bomb Squad were aware that Doyen had been
questioned by the City Attorney’s office and that he was deposed and
testified in Officer Bender’s lawsuit. Doyen presented evidence that
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from the time he was called to the City Attorney’s office he was shunned
and excluded from activities by other members of the Bomb Squad.
Although Sergeant Salinaz and Lieutenant Smith were made aware of
this conduct, they did nothing to try to stop it.
Detective Stice also began singling Doyen out, treating him
differently than other trainees, and making disparaging remarks about
him to other members of the Bomb Squad. Doyen reported Detective
Stice’s behavior to another supervisor in the Bomb Squad. After an
investigation, during which Detective Stice was “loaned” to another
entity within the Emergency Services Division, Detective Stice was
given a four-day suspension. Once he served the suspension, Detective
Stice returned to the Bomb Squad, over Lieutenant Smith’s objection,
and once again supervised Doyen.
Despite the disciplining of Detective Stice, the shunning and
disparaging comments by other members of the Bomb Squad continued.
In addition, Doyen was subjected to unequal treatment by the OIC of
the Bomb Squad, Sergeant Salinaz. For example, Doyen was not
allowed to attend training courses while he was on call, even though
other technicians were allowed to do so, and he was excluded from other
training and squad activities. During an important FBI training
session held at the Bomb Squad office, Sergeant Salinaz removed Doyen
from the classroom, telling Doyen he could not attend because he was
on call; Detective Ron Capra, a 15-year veteran of the Bomb Squad,
stated in a declaration that he had never witnessed a bomb technician,
other than Doyen, prohibited from attending a training class while on
call. In 2010 or 2011, Sergeant Salinaz ordered Doyen to attend roll call
6
at the Bomb Squad office on a day in which he was assigned to off-site
training. Yet the regular practice of the Bomb Squad for an officer so
assigned was to go directly to training and simply call in to let his
immediate supervisor know he or she was proceeding to training. When
Doyen arrived at roll call that day, Sergeant Salinaz berated him in
front of other Bomb Squad members.
Despite this treatment, Doyen never received any negative
written performance reviews, comments, or ratings and, in 2012 he
competed for and won a promotion to Sergeant I. Although he wanted
to stay with the Bomb Squad, he was told he could not promote from
within the squad and was required to transfer out to obtain field
supervisory experience, even though other members of the Bomb Squad
had not been required to do so. As a result, Doyen transferred to Pacific
Division, where he was assigned as supervisor in patrol. After several
months there, the Captain of Pacific Division assigned Doyen to the
position of Assistant Watch Commander, which typically is a Sergeant
II position.
Doyen spent a year in Pacific Division. In May 2013, he applied
for and was selected for a “coveted position” in the Internal Affairs
Group. He admitted that a position in Internal Affairs “is a great
stepping-stone for enhancing your career within the Department,” and
is seen as a springboard for becoming a lieutenant and captain. He said
his goal was to promote to lieutenant or captain and go back to the
Bomb Squad and replace the OIC of HDMS (Lieutenant Smith) or the
OIC of EDS. While at Internal Affairs, Doyen was selected as
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“Employee of the Quarter” by his supervisors and peers in January
2014, and was upgraded to Sergeant II in June 2014.
In the meantime, a Bomb Squad supervisor position (a Sergeant I
plus 3 position) opened up in the Bomb Squad when Detective Stice left
in late 2013. In February 2014, before his upgrade to Sergeant II,
Doyen applied for the position.2 The selection process for the position
involved both objective and subjective components. There were listed
objective criteria that each candidate was required to meet, one of
which was that the candidate must be willing and able to certify as a
bomb technician. Doyen met all the criteria for the position and,
because he was a certified bomb technician, he would have been an
operational supervisor upon hiring. None of the other candidates had
experience with explosives; all would have been required to become
certified bomb technicians and handle calls as lead technician for a year
before they could be operational supervisors.
In addition, as part of the selection process each qualified
candidate was required to appear before a panel of three supervisors for
2 There is some confusion in the record about whether Doyen was a
Sergeant I or Sergeant II at the time he applied for the Bomb Squad
supervisor position in February 2014. In his deposition, Doyen testified that
he was a Sergeant II at that time, but in an interview with Internal Affairs,
when he had before him the LAPD document setting forth his employment
history, he testified that he was upgraded to Sergeant II in June 2014.
Therefore, there is a disputed issue of fact regarding his rank at the time of
his application. Because we are reviewing a summary judgment, and must
view the evidence in the light most favorable to Doyen, we assume for
purposes of the motion that he was a Sergeant I when he applied for the
position.
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an oral interview. Each member of the panel would subjectively assign
a score for each candidate based upon his or her performance in the
interview. The scores of the three panelists would then be added
together and averaged out, and that average number would be one of
the factors used to place the candidate into one of four rankings:
outstanding, excellent, satisfactory, and unsatisfactory. The panelists
who interviewed Doyen and the other candidates for the position at
issue here consisted of Lieutenant Smith, Sergeant Salinaz, and
Lieutenant Anita McKuen.
At some point during the selection process, Lieutenant Smith
showed Detective Capra, who was Operations Coordinator Supervisor of
the Bomb Squad, a list of the candidates who had applied for the Bomb
Squad supervisor position. Lieutenant Smith asked Detective Capra
who he thought was the most qualified, best candidate for the position.
Detective Capra immediately said, “Hands down, Tony Doyen” was the
best candidate. Lieutenant Smith responded, “No, not Tony.”
Doyen was informed that he was not selected for the position on or
around February 28, 2014.
B. Doyen’s Lawsuit
Doyen filed a government claim against City, LAPD, and others
on July 17, 2014, alleging violations of Labor Code section 1102.5,
retaliation in violation of public policy, and other claims. He alleged
that he had engaged in protected activity during his time in the Bomb
Squad (including testifying in the Bender lawsuit, standing up for his
rights and the rights of others, and opposing improper conduct by
9
supervisors and command staff), that he had been subject to numerous
acts of retaliation on a continuing and ongoing basis, and that the
failure to select him for the Bomb Squad supervisor position was
retaliation for his prior protected activity. He subsequently filed an
employment discrimination complaint with the California Department
of Fair Employment and Housing based upon the same allegations, and
received a right to sue letter.
Doyen filed the instant complaint against City on January 14,
2015. The complaint alleges two causes of action for retaliation: one for
violation of Government Code section 12940, subdivision (h) (the FEHA
claim), and one for violation of Labor Code section 1102.5 (the
whistleblower claim). In the FEHA claim, the complaint alleges that
the protected activity in which Doyen engaged included refusing to
participate in race-based harassment and retaliation, participating in
the Bender lawsuit, and reporting Detective Stice’s retaliation against
him; it identifies the adverse employment actions he suffered in
retaliation as including denying Doyen the Bomb Squad supervisor
position, ostracizing Doyen within the unit, causing damage to his
reputation, being denied a work environment free from harassment and
retaliation, and interference with his ability to do his job. In the
whistleblower claim, the complaint alleges that Doyen made complaints
to LAPD that he had reasonable cause to believe disclosed violations of
state or federal statutes, rules, and regulations; it identifies the same
adverse employment actions as in the FEHA claim.
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C. Summary Judgment Motion
City moved for summary judgment on two grounds. First, City
argued that as a matter of law Doyen did not suffer an adverse
employment action because the transfer he requested to the position of
Bomb Squad supervisor was a downgrade from his Sergeant II position
in Internal Affairs, and his “other trivial gripes” did not constitute
adverse employment acts. Second, City argued that Doyen could not
establish a causal link between his protected activity and any adverse
employment action because there was a six year gap between the
protected activity and his failure to get the requested transfer, during
which time Doyen was promoted, advanced, and received a prestigious
award. In support of its motion, City relied upon the allegations of the
complaint, Doyen’s deposition testimony, and statements Doyen made
in his interview conducted by Internal Affairs during its investigation of
his government claim.
In opposition to City’s motion, Doyen submitted evidence
(including his own deposition testimony and declarations from Detective
Capra and another officer who worked with Doyen in the Bomb Squad)
setting forth how he was treated by other officers and supervisors while
he was assigned to the Bomb Squad. Detective Capra’s declaration also
described the encounter he had with Lieutenant Smith regarding
Doyen’s application for the Bomb Squad supervisor position. Finally,
Doyen submitted evidence that the “plus 3” paygrade provided to
officers and supervisors in the Bomb Squad amounted to a 16.5 percent
increase in pay, that the Bomb Squad offered more overtime
opportunities, and that positions in the Bomb Squad were considered to
11
be so desirable that several officers took downgrades in rank in order to
take (or keep) positions in that unit.
Doyen argued that he was subjected to numerous adverse
employment actions during his four years while assigned to the Bomb
Squad, including being required to transfer out of the Bomb Squad in
2012 in order to promote to Sergeant. He also argued that he suffered
an adverse employment action when Lieutenant Smith refused to
consider him for the position despite his qualifications for the job. 3
Finally, Doyen argued there was a causal link between his protected
activity and the adverse employment action because he presented
evidence that Lieutenant Smith and Sergeant Salinaz knew about his
protected conduct, and the retaliatory conduct was continuous.
The trial court granted City’s motion, finding that Doyen had not
suffered an adverse employment action and that he could not establish
a causal link between the protected activity and any adverse
employment action due to the amount of time that had passed and
intervening events that occurred between the protected activity and the
alleged adverse action. The court thereafter entered judgment in favor
of City.
Doyen timely appealed from the judgment.
3 Doyen also argued that he suffered a further adverse employment
action in 2015 when he applied for a supervisor position in the Bomb K-9
Unit but the OIC of that unit refused to consider his application, and again
later that year when he applied for a different position in Internal Affairs but
was not considered for it due to his filing of the instant lawsuit. However,
those alleged actions cannot form the basis for liability in the present
lawsuit, since they occurred after this lawsuit was filed.
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DISCUSSION
“[T]o establish a prima facie case of retaliation under the 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. [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.” (Yanowitz
v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) This
same standard applies to a whistleblower claim under Labor Code
section 1102.5. (Patten v. Grant Joint Union High School Dist. (2005)
134 Cal.App.4th 1378, 1384.)
In the present case, City challenges only Doyen’s prima facie case;
it did not below, and does not here, address the second step of the
retaliation analysis. Therefore, our review is limited to whether Doyen
established a prima facie case. And, because City does not dispute that
Doyen engaged in protected activity, our review is further limited to
whether Doyen produced evidence sufficient to establish that he was
subjected to an adverse employment action and that there was a causal
link between his protected activity and that adverse employment action.
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A. Standard of Review
“Under Code of Civil Procedure section 437c, subdivision (c),
summary judgment ‘shall be granted if all the papers submitted show
that there is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.’” (EHP
Glendale, LLC v. County of Los Angeles (2011) 193 Cal.App.4th 262,
270.) In ruling on a summary judgment motion, the trial court
determines only whether triable issues of fact exist; it does not resolve
those issues. (Id. at pp. 270–271.) The court must consider all of the
evidence and inferences to be drawn from it and determine “what any
evidence or inference could show or imply to a reasonable trier of fact.”
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.)
Therefore, “if any evidence or inference therefrom shows or implies the
existence of the required element(s) of a cause of action, the court must
deny a defendant’s motion for summary judgment or summary
adjudication because a reasonable trier of fact could find for the
plaintiff.” (Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th
1463, 1474.) On review, we apply the same standard as the trial court,
i.e., we review the record de novo to determine whether there are triable
issues of material fact, “liberally construing the evidence in support of
the party opposing summary judgment and resolving doubts concerning
the evidence in favor of that party.” (Miller, supra, 36 Cal.4th at p. 460;
see also Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.)
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B. Adverse Employment Action
In Yanowitz, supra, 36 Cal.4th 1028, one of the issues before the
Supreme Court was “the appropriate standard for determining whether
an employee has been subjected to an adverse employment action for
purposes of a retaliation claim under the FEHA.” (Id. at p. 1049.) To
make this determination, the court began with the language of the
retaliation statute, which makes it an unlawful employment practice for
an “employer . . . to 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.” (Gov. Code, § 12940, subd.
(h), italics added (hereafter section 12940(h)).) The court noted that the
FEHA does not expressly define “discriminate” or “otherwise
discriminate” as used in section 12940(h), but that the initial and basic
antidiscrimination provision of the FEHA applicable to employers—
Government Code section 12940, subdivision (a)—provided more
specificity as to what constituted discrimination under the act: “‘to
refuse to hire or employ the person or to refuse to select the person for a
training program leading to employment, or to bar or to discharge the
person from employment or from a training program leading to
employment, or to discriminate against the person in compensation or in
terms, conditions or privileges of employment.’” (Yanowitz, supra, 36
Cal.4th at p. 1049.)
Viewing those provisions together, the court concluded “that the
Legislature intended to extend a comparable degree of protection both
to employees who are subject to the types of basic forms of
15
discrimination at which the FEHA is directed—that is, for example,
discrimination on the basis of race or sex—and to employees who are
discriminated against in retaliation for opposing such discrimination.”
(Yanowitz, supra, 36 Cal.4th at p. 1050.) Therefore, the court held that
to prevail on a retaliation claim, the employee must demonstrate that
he or she has been subjected to an adverse action that materially affects
the terms, conditions, or privileges of employment. (Id. at p. 1051.)
The court rejected the argument made by the plaintiff in that case
that the court’s adoption of this standard (as opposed to the standard
urged by the plaintiff, i.e., that an adverse employment action includes
any action that is reasonably likely to deter employees from engaging in
protected activities) would leave employees “with an inadequate degree
of protection and vulnerable to a broad range of retaliatory measures.”
(Yanowitz, supra, 36 Cal.4th at p. 1052.) The court observed: “we
believe this argument rests, at least in part, on an unduly narrow view
of the type of adverse employment actions that are forbidden by section
12940[, subdivision] (a). Retaliation claims are inherently fact specific,
and the impact of an employer’s action in a particular case must be
evaluated in context. Accordingly, although an adverse employment
action must materially affect the terms, conditions, or privileges of
employment to be actionable, the determination of whether a particular
action or course of conduct rises to the level of actionable conduct should
take into account the unique circumstances of the affected employee as
well as the workplace context of the claim.” (Ibid.) The court cautioned
that “the determination of what type of adverse treatment properly
should be considered discrimination in the terms, conditions, or
16
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 of both the employer and the employee.” (Id. at p. 1054.)
With the Supreme Court’s discussion in mind, we turn to the facts
of this case.
As noted, City contends, and the trial court found, that Doyen did
not suffer an adverse employment action by not being selected for the
Bomb Squad supervisor position because that position (Sergeant I plus
3) would be a downgrade from the Sergeant II position he held in
Internal Affairs. We find that City’s and the trial court’s focus is too
narrow.
First, City’s contention and the trial court’s finding ignores the
conflicting evidence regarding Doyen’s rank at the time he applied for
the Bomb Squad supervisor position. Viewing the evidence in the light
most favorable to Doyen, as is required on a summary judgment motion,
the court must assume that Doyen was a Sergeant I, applying for a
Sergeant I plus 3 position.
Second, even if it were appropriate to credit the evidence that
Doyen was a Sergeant II at the time he applied for the Bomb Squad
supervisor position, the case the trial court relied upon in finding no
adverse employment action, Malais v. Los Angeles City Fire Dept. (2007)
150 Cal.App.4th 350 (Malais), is distinguishable.
In Malais, the employee was a Captain II in the Los Angeles City
Fire Department (LAFD). In the LAFD, a Captain II may be assigned
to different classes of positions, including special duty and platoon duty.
17
Captain II special duty assignments generally involve working a
regular 40-hour workweek in an environment resembling a business
office, although some positions, such as a training position, may
simulate actual firefighting. Captain II platoon duty assignments
generally involve working at fire stations on a schedule of consecutive
24-hour days on duty, alternating with 24-hour days off duty, followed
by consecutive days off duty, in an environment involving a team of
firefighters preparing for and fighting fires. (Malais, supra, 150
Cal.App.4th at p. 354.)
The plaintiff in Malais had been injured in a work-related
incident, and his right leg was amputated below the knee. (Malais,
supra, 150 Cal.App.4th at p. 354.) When he returned to full-time work,
he was assigned to In-Service Training, a special duty assignment.
(Ibid.) Believing he was rehabilitated and, with his prosthesis, could
fully perform all duties of a Captain II assigned to platoon duty, he
asked to be reassigned. The LAFD, believing that his working in such
an assignment with a prosthetic leg posed an unacceptable risk to him,
other firefighters, and the public, refused his request. He then filed a
lawsuit against the LAFD, alleging claims for disability discrimination.
(Id. at p. 355.) The trial court granted summary judgment to the LAFD,
and the appellate court affirmed, finding that the plaintiff did not suffer
an adverse employment action because, while the plaintiff may have
preferred a platoon duty assignment, special duty assignments and
platoon duty assignments provided equal pay, equal opportunities for
18
promotion, and equal opportunities for significant overtime. (Id. at pp.
354–355, 358.)
In the present case, Doyen presented evidence that the Bomb
Squad supervisor position and his Sergeant II position in Internal
Affairs did not offer entirely equal terms. He testified in his deposition
that despite the downgrade in rank, the increase in pay grade for the
Bomb Squad position would have resulted in either the same or a slight
increase in pay. Doyen also testified that there were far more
opportunities for overtime with the Bomb Squad position. Based on
this evidence, a reasonable trier of fact could find that not being
selected for the Bomb Squad supervisor position adversely affected the
terms, conditions, or privileges of Doyen’s employment, namely, the
opportunity to increase his income through overtime. Therefore, we
conclude that City was not entitled to summary judgment on the ground
that Doyen failed to establish the adverse employment action element
of his prima facie case.
C. Causal Link
As noted, as an additional ground for granting City’s summary
judgment motion, the trial court found that Doyen could not establish a
causal link between his protected activity and any adverse employment
action due to the amount of time and intervening events between the
protected activity and the alleged adverse action. City agrees, arguing
that the six years that elapsed between Doyen’s protected acts in
2008—his participation in the Bender lawsuit and his complaint
against Detective Stice—and his failure to get the Bomb Squad
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supervisor position in 2014 destroys any causal nexus. Once again, we
find this focus too narrow.
It is true that six years passed between Doyen’s protected activity
in 2008 and the alleged adverse employment action of failing to get the
Bomb Squad supervising position in 2014. But the mere lapse of time
does not defeat the causal link.
Doyen presented evidence of a consistent pattern of retaliation
beginning in 2008, after he was interviewed by the City Attorney’s office
in connection with the Bender and Fuller lawsuits in 2008, and 2012,
when he left the Bomb Squad. According to this evidence, immediately
after the 2008 City Attorney interview, Doyen was shunned, excluded
from training, and treated differently than other members of the Bomb
Squad. Such conduct continued throughout the next four years while
he was with the Bomb Squad. Further, Doyen’s supervisors—Bomb
Squad OIC Sergeant Salinaz and HMDS OIC Lieutenant Smith—were
aware of and/or participated in this conduct and did nothing to stop it.
In 2012, Doyen was forced to transfer out of the Bomb Squad in order to
promote to Sergeant I, even though other members (before and after
him) had been allowed to promote within the squad.
Obviously, this evidence raised a triable issue of retaliation
throughout the period from 2008, the year Doyen participated in the
Bender and Fuller lawsuits, to 2012, when he was forced to transfer
from the Bomb Squad in order to escape the retaliation and receive a
promotion. (Wysinger v. Automobile Club of Southern California (2007)
157 Cal.App.4th 413, 421 [“A long period between an employer’s
adverse employment action and the employee’s earlier protected activity
20
may lead to the inference that the two events are not causally
connected. [Citation.] But if between these events the employer
engages in a pattern of conduct consistent with a retaliatory intent,
there may be a causal connection”].)
It is true that in the two-year period from 2012, when Doyen left
the Bomb Squad, to 2014, when he sought to return and was denied the
Bomb Squad Supervisor position, he was not subjected to any
retaliatory conduct. But on the specific facts here, this two-year,
retaliation-free period does not break the causal link between the 2008
protected activity (for which Doyen suffered retaliation until he left the
Bomb Squad in 2012) and the 2014 adverse employment action (when
he sought to return to the Bomb Squad in the position of supervisor).
The reason: the evidence Doyen presented would allow a trier of fact to
infer that Doyen’s supervisors in the Bomb Squad, Sergeant Salinaz
and Lieutenant Smith, harbored retaliatory intent while he served in
the Bomb Squad, a part of the Emergency Services Division. That
Doyen was free from retaliatory conduct after he left the Bomb Squad
while he was assigned to different Divisions or Groups, with different
supervisors and commanding officers, does not wipe the slate clean with
regard to that inference. Rather, a trier of fact reasonably could
conclude that, when Doyen sought to return to the Bomb Squad in 2014,
two years after leaving in 2012, Sergeant Salinaz and Lieutenant Smith
continued to harbor a retaliatory intent. Indeed, that conclusion would
be bolstered by evidence that when Detective Capra, after being
solicited by Lieutenant Smith for his opinion about who was the best
candidate for the Bomb Squad supervisor position, identified Doyen as
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“[h]ands down” the best and most qualified candidate, Lieutenant
Smith, without rejecting that assessment, promptly responded, “No, not
Tony.” Thus, City was not entitled to summary judgment on the ground
that Doyen failed to establish the causal link element of his prima facie
case.
We note that although we conclude that the alleged retaliatory
conduct that took place between 2008 and 2012 is relevant to establish
retaliatory intent with respect to the alleged failure to consider Doyen
for the Bomb Squad supervisor position in 2014, we do not decide here
whether Doyen is barred from recovering damages based on that prior
conduct. City contended below and contends here that Doyen cannot
recover such damages because he failed to file a complaint with the
Department of Fair Employment and Housing within a year of that
conduct, and asserts that the continuing violation exception under
Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798 does not apply. But
City’s motion was for summary judgment, not summary adjudication.
As such, it challenged Doyen’s complaint in its entirety, and did not ask
the trial court to determine whether any portion of Doyen’s claims were
time-barred. We have found that there are triable issues with regard to
whether Doyen suffered an adverse employment action and whether
there was a causal link between his protected activity and that adverse
action—the only grounds on which City moved for summary judgment.
Therefore, the summary judgment must be reversed, and we have no
cause to consider the applicability of the continuing violation exception
at this time.
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DISPOSITION
The judgment is reversed. Doyen shall recover his costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
KIM, J.*
*Associate Justice of the Court of Appeal, Second Appellate District,
Division Five, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
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