Diego v. City of Los Angeles ( 2017 )

Filed 9/14/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
GEORGE DIEGO et al., B268266
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. BC496533)
v.
CITY OF LOS ANGELES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Gregory Wilson Alarcon, Judge. Reversed
with directions.
Michael N. Feuer, City Attorney, James P. Clark, Chief
Deputy City Attorney, Thomas H. Peters, Chief Assistant City
Attorney, Blithe S. Bock, Managing Assistant City Attorney, and
Juliann Anderson, Deputy City Attorney, for Defendant and
Appellant.
Law Offices of Gregory W. Smith, Gregory W. Smith; Law
Offices of Marla A. Brown, Marla A. Brown; Benedon & Serlin,
Douglas G. Benedon and Judith E. Posner for Plaintiffs and
Respondents.
The City of Los Angeles (the City) appeals from a judgment
against it following a jury trial in a discrimination action brought
by two officers of the Los Angeles Police Department (LAPD or
the Department). The two officers, George Diego and Allan
Corrales (the Officers), respondents in this appeal, are both
Hispanic. They claim that they suffered discrimination within
the Department following their involvement in a fatal shooting in
March 2010. In that incident, the Officers fired at a person they
believed was threatening them with a gun, but who turned out to
be a young, unarmed African-American man who was later
described by his family as autistic. The shot fired by Corrales
killed the man. The Officers claimed that they were unfairly
kept out of the field (colloquially described as “benched”) after the
incident, resulting in lost promotional opportunities and off-duty
work, because of their race. They also claimed that the City
retaliated against them because they filed this lawsuit.
The jury found in favor of the Officers and awarded
cumulative damages of almost $4 million. The City argues on
appeal that the evidence is not sufficient to support the verdict,
and that the trial court therefore should have granted its motion
for a directed verdict.
We agree and reverse. The fundamental problem with the
Officers’ claims is that they were based on an improper legal
theory. While the evidence that the Officers produced at trial
might have been sufficient to support the theory of discrimination
that they presented, that theory was legally flawed. The Officers
claimed that they suffered disparate treatment because they are
Hispanic and the victim was African-American. They relied on
evidence of another shooting incident involving a Caucasian
officer and a Hispanic victim, after which the officer involved was
2
returned to field duty. Thus, the Officers’ theory was that the
jury could and should consider whether the Officers were treated
differently, not simply because of their race, but because of the
race of their victim.
This theory does not support the discrimination claim that
the Officers brought. In deciding whether to return the Officers
to the field, the City could assess the political implications of
doing so without violating employment discrimination laws.
Those laws would not permit the City to treat the Officers
differently because they are Hispanic, but they did not prohibit
the City from assessing the risk management implications of
returning officers of any race to the streets of Los Angeles who
had been involved in a fatal shooting of an innocent, unarmed
and autistic African-American man. The Officers claimed that
African-American officers would have been treated differently,
but they did not introduce any competent evidence to support
that claim.
They also did not provide evidence sufficient to support
their claim that the City retaliated against them for filing this
lawsuit. Nothing about their status changed after they filed their
complaint. Nor did they provide any evidence that the lawsuit
was a motivating factor in the decision to continue withholding
their field certification. Indeed, both Officers testified that they
filed this suit as a last resort after concluding that they were
unlikely to be restored to the field.
We are reluctant to overturn a jury verdict and are of
course cognizant of the high standard the City must meet on
appeal to show that the evidence was insufficient to support that
verdict. However, as explained further below, the jury here did
not have a complete picture of the governing law. The jury was
3
correctly told that it must find that the Officers’ race was a
“substantial motivating reason” for the “adverse employment
actions” that they experienced. But the jurors were not given any
instruction about whether and how they should consider the race
of the victim in making this assessment. The absence of such an
instruction permitted the Officers to argue that any decision by
the City based on race—including the race of the victim—was
sufficient to support a verdict in their favor. That argument was
inconsistent with the law.
The record does not show that the parties requested any
specific instruction on this point, and the City has not raised
instructional error as a ground for appeal. However, the City did
argue in its motion for a directed verdict that a discrimination
claim could not be properly based upon the City’s consideration of
the race of the victim. We conclude that the City’s motion should
have been granted.
The Officers believe, and apparently the jury agreed, that
they were treated unfairly as a result of broader political
concerns. But alleged unfair treatment in the workplace does not
amount to an actionable discrimination claim unless the
treatment is based upon the employee’s race or other protected
status. The Officers failed to prove such disparate treatment and
failed to show unlawful retaliation. We therefore reverse and
remand with instructions to enter judgment in favor of the City.
BACKGROUND
1. The Shooting Incident
In 2010 the Officers were members of the Gang
Enforcement Unit in LAPD’s Olympic Station. They had received
excellent performance reviews.
4
Close to midnight on March 19, 2010, the Officers were
driving south on Vermont Avenue. While turning left on James
M. Wood Avenue to get a cup of coffee, the Officers heard a noise
like a “bang” from a direction north of them. The noise did not
sound like a gunshot, but like someone “slammed something.”
Diego, who was driving, turned back up Vermont, proceeding
north, when the Officers saw a man wearing a hoodie walking
north. The Officers drove up close to the man (later identified as
27-year-old Steve Washington). Corrales said something like,
“Hey, how you doing,” or, “Hey, are you ok.”
Washington turned and looked at the Officers with a “mad
look.” Corrales saw Washington “ruffling his waistband” and
thought he was arming himself. Corrales said, “Waistband,
waistband,” and drew his weapon.
Washington turned and spun toward the Officers.
Surveillance video from a nearby business showed Washington
turning rapidly and making some kind of throwing motion
toward the Officers. Corrales believed that he was going to be
shot, and therefore fired his weapon.
Diego jumped out of the car when he saw Washington turn
and was frightened to the point that he forgot to put the car in
park. As he was jumping out of the car he heard Corrales say,
“Gun, gun.” While spinning out of the car, he heard a gunshot
and thought that Corrales had been shot. He saw that the car
had moved forward and did not see Corrales, who was still in the
car. Diego fired at Washington and missed.
Corrales’s shot hit Washington in the head and killed him.
The Officers later found out that Washington was not armed.
Washington had a black cell phone case clipped to his waist.
5
Washington’s mother later told the area captain for the Olympic
Station, Matthew Blake, that Washington was autistic.
2. The Investigation Process
The City follows a standard procedure after an officer
involved shooting. Within 72 hours, the chief of police receives an
executive summary to get an initial assessment of the shooting
and to decide whether the officer(s) should be returned to the
field.
After the 72-hour review, the next step in the review
process is an exhaustive investigation by LAPD’s “Force
Investigation Division” (FID). The FID provides a report to the
LAPD “Use of Force Review Board” (Board) and to the chief.
Based upon that report and his own analysis, the chief provides a
recommendation to the “Police Commission” (Commission).
The “Office of the Inspector General” (OIG) oversees the
FID investigation and makes its own, independent
recommendations to the Commission. The OIG is not an LAPD
organization. It was originally formed as a result of
recommendations by the Christopher Commission in the wake of
the Los Angeles unrest following the Rodney King incident in
1991. The OIG reports directly to the Commission.
The Commission determines whether a shooting was “in
policy” or “out of policy.” In 2010, officer involved shootings were
evaluated in three separate, but related areas: (1) tactics;
(2) drawing and exhibiting the weapon; and (3) actual use of
force. The Commission makes the final determination as to
whether a shooting was in or out of policy, and that
determination is binding on the Department.1 However, the
1The Commission’s meetings to review officer involved
shootings are not public due to police officers’ confidentiality
6
Commission does not have the right to direct any punishment or
to decide whether an officer should be taken out of the field. The
police chief retains the final authority over discipline.
3. Investigation and Decisions Concerning the Officers’
Shooting
As Diego’s and Corrales’s commanding officer, Blake
presented the 72-hour summary to Police Chief Charles Beck
concerning the Officers’ shooting. Blake recommended that the
Officers remain out of the field for no more than a couple of
weeks. He wanted to be sure they would be safe when they
returned to the field. He also had a concern “that it was a very
sympathetic type of shooting, because the suspect at the time—
suspect/victim situation, he was autistic.”
Chief Beck concurred with the decision to keep the Officers
out of the field. Although in the majority of cases officers
involved in shootings return to the field after the 72-hour review,
this shooting concerned Chief Beck because it was a “perception
shooting” of an “unarmed innocent individual.”
Following the 72-hour briefing, the FID conducted an
investigation and prepared a report. The Board met on
January 10, 2011, to consider what recommendations to make
based upon the results of the investigation. Blake presented
recommendations to the Board, which was composed of four
command-level officers and a “peer” officer.
Blake recommended that the officers receive an
administrative disapproval for their tactics. Blake’s
recommendation was based on the conclusion that the Officers’
rights. After it makes a determination, the Commission presents
the results in an open session the same day.
7
tactics were “egregious” because “they put them in a position to
where they were so close next to that person who they believed to
be a suspect, that it wouldn’t give them any time to be able to
respond, to get cover, to get concealment or any of those things.”
However, Blake concluded that both Officers’ decisions to exhibit
their firearms and to use lethal force were “in policy” because,
“although the tactics were bad, which, in my mind, led up to the
shooting, they were in a position where it was life or death in
their minds.”2
The Board adopted Blake’s recommendations. The Board
recommended administrative disapproval for the Officers’ tactics,
but found their exhibiting of their weapons and their use of force
to be in policy.
Chief Beck agreed with the Board’s recommendations. He
sent a report to the Commission discussing his conclusions that
the Officers’ exhibiting of weapons and use of force were both in
policy. The report stated Chief Beck’s determination that the
Officers “had an objectively reasonable belief that they were in
imminent threat of serious bodily injury or death, and any officer
with similar training and experience under the same or similar
facts and circumstances would have the same belief.” With
respect to tactics, he found that “the tactics utilized by Officers
Diego and Corrales substantially and unjustifiably deviated from
2 During closing arguments, the City conceded that “[t]here
is no doubt that these officers feared for their life when Mr.
Washington turned and moved towards them. They had no
choice but to shoot, because Officer Corrales feared for his life.
There’s no doubt about that.” The City argued only that the
Officers’ tactics were poor and had put the Officers “in a position
where they had to kill an innocent man.”
8
approved Department tactical training, requiring a finding of
Administrative Disapproval.” The OIG agreed with Chief Beck’s
recommendations.
After confidential meetings on February 15 and March 1,
2011, the Commission issued findings that adopted Chief Beck’s
conclusions with respect to tactics but rejected his findings
concerning the exhibiting of weapons and use of force. The
Commission concluded that both Officers’ use of force was out of
policy, and that Corrales’s decision to draw his weapon was out of
policy.
Based upon the Commission’s determination, Blake
recommended an official reprimand for Diego and a conditional
reprimand for Corrales, which are among the lowest forms of
punishment within the LAPD. Chief Beck concurred. Chief Beck
also decided not to send the Officers back into the field.
4. The Officers’ Subsequent Employment
After the incident, the Officers were assigned to various
jobs that did not require a field certification. They continued to
receive their full salary, less a 2 or 3 percent “patrol bonus.”
They were both assigned for a time to the Community Relations
Office, where they worked with youth programs. They continued
to carry their weapons, including while monitoring LAPD
carnivals where gang members were present, but were not
returned to the field.
In about June or July of 2012 Diego obtained a position as
a “P-II” with the “Use of Force Review Division.”3 Diego applied
unsuccessfully for six or seven P-III positions in 2012. One of
3 P-II is the rank of a “regular” police officer. P-III is the
level above, classified as a “training officer.” The Officers were
both ranked P-II at the time of the incident.
9
those positions in the Use of Force Review Division did not
require field certification. He was told that his captain and
Assistant Chief Sandy Jo MacArthur had approved the position,
but that it had been denied by Deputy Chief Jacobs and Chief
Beck because “they didn’t want it to be perceived wrong,
according to them, that I was being rewarded a P-III position,
where—we deal with the Police Commission. So they didn’t want
it to look like I was being rewarded, I guess.”
Diego also applied for a position as a tactical flight officer.
However, one of the criteria was recent field experience, so he
was at a disadvantage. He did not get the position.
Corrales applied for only one P-III position, which he did
not obtain. He testified that he did not apply for more because,
“I saw my partner, Officer Diego, taking several spots and kept
getting denied and denied and denied.”
Diego and Corrales also applied unsuccessfully for
permission to work in an off-duty job for the Dodgers. The job
required officers to wear an LAPD uniform and carry a gun.
Corrales was told that permission was denied because he was not
field certified. Corrales also attempted to obtain permission for
other outside jobs, but they also required him to carry a gun.
The Officers continued to receive favorable performance
reviews after the shooting incident. Other officers, including
sergeants, asked Blake when the Officers would be back in the
field, leading Blake to observe that “there’s a lot of people who
wanted to see these two guys go back to the field.” A sergeant
who maintained a list of officers who were not field certified after
a use of force proceeding testified that he had never known an
officer who had not returned to the field for five years after an out
of policy shooting.
10
5. The Bua Shooting Incident
Officer Shane Bua was a P-III in the gang unit at the
Olympic Station in 2010. He is White. On August 28, 2010, he
was involved in the fatal shooting of a Hispanic person.
While he was on patrol with his partner, they heard a radio
broadcast about an assault with a deadly weapon in progress.
There was a report that someone with a bat was trying to pull a
family out of a car at an intersection. There had been a gang
shooting the night before nearby, and the officers had been
informed that there was a feud between a Hispanic gang and a
Black gang in the area.
The report was updated before the officers arrived at the
scene, informing them that the suspect was armed with a gun.
The officers arrived at the scene on Washington Boulevard and
saw the suspect about 60 or 65 feet away. They saw a man in the
driver’s seat in a car and the suspect was “hitting the window
with an object and pulling on the door, trying to break the
window and open the driver side door.” Bua ran up into the
intersection and was “pretty certain” he saw a gun in the
suspect’s hand. He shot at the suspect because he believed
persons in the car were about to be shot. The suspect actually
had a small bat in his hand rather than a gun.
The Commission found that Bua’s shooting was out of
policy, but he returned to the field after about six weeks.
6. The Jacobs Meeting
On May 17, 2012, Diego and Corrales met with Deputy
Chief Jacobs to discuss the reasons why they still had not been
returned to the field. According to Diego, Jacobs said that they
were still benched because “it was political and we had shot an
unarmed male Black.” He also mentioned that the person was
11
autistic. Diego’s understanding of the reference to “political” was
that “it was a race thing,” meaning it was “an African American
male.”
Diego asked Jacobs why Bua had returned to the field
when the Officers had not. Jacobs told them it was “because
yours is political and you shot an unarmed male Black.”
After the meeting, the Officers concluded that their
benching was not temporary and therefore decided to seek legal
help.
7. Proceedings Below
The Officers filed their complaint on November 30, 2012.
The case went to trial on March 3, 2015. At the conclusion of
evidence on March 16, 2015, the City made an oral motion for a
directed verdict. Although the trial court did not formally deny
the motion, the court permitted the case to go to the jury.
The jury returned a special verdict on March 19, 2015,
finding in favor of the Officers. The jury found that the Officers’
race was a “substantial motivating reason for the City . . . to
subject [them] to one or more adverse employment actions.” The
jury also found that the filing of the lawsuit was a substantial
motivating reason for the adverse employment actions, and that
the Officers’ “poor tactics” was not. The jury awarded damages in
the amount of $2,085,000 to Corrales and $1,914,500 to Diego.
DISCUSSION
1. Standard of Review
Reversal of the denial of a motion for directed verdict is
proper only if there is no substantial evidence to support the
plaintiff’s claim. (Adams v. City of Fremont (1998) 68
Cal.App.4th 243, 263 (Adams).) When the trial court denies a
directed verdict motion and the jury finds in the plaintiff’s favor,
12
an appellate court’s review is “functionally equivalent” to
reviewing whether there was substantial evidence to support the
verdict. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621,
630.)
In reviewing for substantial evidence, we must evaluate the
entire record, interpreting the evidence in the light most
favorable to the Officers and drawing all reasonable inferences in
their favor. (Adams, supra, 68 Cal.App.4th at p. 263; Frank v.
County of Los Angeles (2007) 149 Cal.App.4th 805, 816 (Frank).)
However, substantial evidence is not synonymous with any
evidence. (Frank, at p. 816.) An inference may not be based on
speculation or surmise. (Id. at pp. 816–817.) An inference also
may not stand if it is unreasonable in light of the whole record, or
if it is rebutted by “ ‘clear, positive and uncontradicted evidence’ ”
that is not subject to any reasonable doubt. (Id. at p. 817,
quoting McRae v. Department of Corrections and Rehabilitation
(2006) 142 Cal.App.4th 377, 389 (McRae).)
2. The Evidence Was Insufficient to Support a Verdict of
Discrimination
a. The law governing proof of discrimination
claims
Government Code section 12940, subdivision (a) provides
that it is an unlawful employment practice for an employer,
“because of the race . . . of any person, to . . . discriminate against
the person in compensation or in terms, conditions, or privileges
of employment.”4 Particular burden-shifting rules apply to proof
of a discrimination claim under this section, which “reflects the
4
Subsequent undesignated statutory references are to the
Government Code, in particular, the California Fair Employment
and Housing Act, section 12900 et seq.
13
principle that direct evidence of intentional discrimination is
rare, and that such claims must usually be proved
circumstantially.” (Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 354 (Guz).)
The plaintiff has the initial burden to establish a prima
facie case of discrimination. (Guz, supra, 24 Cal.4th at p. 354.)
This step is designed to “eliminate at the outset the most
patently meritless claims.” (Ibid.) The specific elements of a
prima facie case “may vary depending on the particular facts,”
but generally include evidence that the plaintiff: (1) was a
member of a protected class; (2) was qualified for the position he
or she sought or was performing competently in the position he or
she held; (3) suffered an adverse employment action; and (4) was
subject to some other circumstance suggesting discriminatory
motive. (Guz, supra, 24 Cal.4th at p. 355.)
If a plaintiff establishes a prima facie case at trial, a
rebuttable presumption of discrimination arises. (Guz, supra, 24
Cal.4th at p. 355.) The employer may rebut that presumption by
producing admissible evidence raising a genuine issue of fact
that, if resolved in the employer’s favor, would establish that the
employer’s action “was taken for a legitimate, nondiscriminatory
reason.” (Id. at pp. 355–356.) If the employer sustains this
burden, “the presumption of discrimination disappears,” and the
plaintiff must provide evidence that the employer’s proffered
reasons were pretextual or offer other evidence of a
discriminatory motive. (Id. at p. 356.) The ultimate burden of
persuasion to prove actual discrimination remains with the
plaintiff. (Ibid.)
Evidence that an employer’s proffered reasons were
pretextual does not necessarily establish that the employer
14
intentionally discriminated: “ ‘ “[i]t is not enough . . . to
disbelieve the employer; the factfinder must believe the plaintiff’s
explanation of intentional discrimination.” ’ ” (Frank, supra, 149
Cal.App.4th at p. 824, quoting Reeves v. Sanderson Plumbing
Products, Inc. (2000) 530 U.S. 133, 146–147.) However, evidence
of pretext is important: “ ‘a plaintiff’s prima facie case, combined
with sufficient evidence to find that the employer’s asserted
justification is false, may permit the trier of fact to conclude that
the employer unlawfully discriminated.’ ” (Frank, at p. 824.)
b. The Officers failed to introduce sufficient
evidence to show that they suffered adverse
employment treatment as a result of their race
The Officers presented a prima facie case of discrimination
with evidence that: (1) they are Hispanic; (2) they continued to
receive favorable employment reviews after the shooting incident;
(3) they suffered adverse consequences from the decision not to
return them to the field; and (4) other circumstances existed,
including an unusually long benching despite LAPD findings that
the Officers’ use of deadly force was justified and that the Officers
made only tactical mistakes.
In response, the City introduced evidence of various
claimed justifications for the Officers’ benching, including:
(1) the significance and consequences of the Officers’ tactical
mistakes, which led to the death of an innocent person; (2) the
Officers’ failure to recognize the seriousness of the shooting and
that they had made any mistakes; (3) concerns about the
consequences to the Officers if they were to be involved in
another incident; and (4) risk management concerns for the City
and the public if the Officers were to be involved in another
controversial incident.
15
After review of the record, and as discussed further below,
we conclude that the Officers failed to provide evidence sufficient
to rebut the City’s proffered justification that the Officers were
kept out of the field because of concerns about the possible
consequences to the Department and to the City if they were
involved in a future incident.
i. The Officers’ theory at trial
The Officers tried their case on the theory that they
suffered discriminatory treatment because they are Hispanic and
they shot an African-American man. As part of that theory, they
argued that the court and the jury could find discriminatory
animus if the LAPD considered the race of the victim in making
employment decisions about the Officers.
The Officers’ operative complaint alleged that “[t]he race of
Plaintiffs, and the race of the African-American that was shot by
Plaintiffs, while performing their duties as police officers, was a
substantial motivating reason for causing damages and injuries
to Plaintiffs.” (Italics added.)
The Officers made similar arguments to the trial court. In
opposing the City’s motion for a directed verdict, the Officers
argued that the LAPD could not properly make any employment
decision based on race: “It doesn’t matter whose race it is.” They
also emphasized the race of the victim in summarizing the
evidence that they argued was sufficient to go to the jury. They
cited Jacobs’s statement in the May 17, 2012 meeting that
“African American groups were angry about the shooting,” and
claimed that they were treated differently than Bua because the
evidence showed “Bua shooting a Hispanic person and not having
anything happen to him.”
16
The Officers adopt a different approach on appeal. They do
not argue that they could prove unlawful discrimination by
showing disparate treatment based upon the race of the shooting
victim. Rather, they affirmatively cite authority stating that, to
prove discriminatory animus, a plaintiff must show “that the
plaintiff’s race was a substantial factor in the adverse
employment decision.” (Horsford v. Board of Trustees of
California State University (2005) 132 Cal.App.4th 359, 375
(Horsford), italics added.) And they agree that “[i]n line with
governing authority, the trial court properly instructed the jury
that, to prove discrimination, Officers Diego and Corrales must
establish that ‘Allan Corrales and/or George Diego’s race was a
substantial motivating reason for the City of Los Angeles’s
conduct.’ ” They claim that they introduced sufficient evidence to
support the jury’s finding that their own race, Hispanic, was a
substantial motivating factor for the City’s conduct.
The Officers’ revised theory on appeal is consistent with the
governing law. Section 12940, subdivision (a) prohibits an
employer “because of the race . . . of any person, to . . .
discriminate against the person.” (Italics added.) The plain
intent is to prohibit employers from discriminating against an
employee because of his or her race, not because of the race of
some third person. As the Officers recognize, cases that explain
the elements of an employment discrimination claim under this
section assume this interpretation. (See Horsford, supra, 132
Cal.App.4th at p. 375; Mamou v. Trendwest Resorts, Inc. (2008)
165 Cal.App.4th 686, 713 [elements of a discrimination claim
include proof of the plaintiff’s “membership in a classification
protected by the statute” and “discriminatory animus on the part
17
of the employer toward members of that classification,” italics
added].)
The conclusion that the Officers were required to show
disparate treatment because of their race is also consistent with
the purpose of section 12940. That section addresses unlawful
employment practices. (See § 12940; see also § 12920 [“It is
hereby declared as the public policy of this state that it is
necessary to protect and safeguard the right and opportunity of
all persons to seek, obtain, and hold employment without
discrimination or abridgment on account of race”].) A claim that
asserts disparate treatment based upon the race of the victim of
police conduct is not an employment discrimination claim.
For example, if a police department were to adopt a formal
rule that unjustified shootings of African-Americans would be
punished more severely than shootings of persons of other races,
it might well raise constitutional or other legal issues. However,
assuming that the policy was applied equally to all police officers
regardless of race or other protected status, those issues would
not concern employment discrimination, but would arise from the
rights of the victims whose lives were valued differently in the
department’s disciplinary process. Even if an individual officer
had standing to assert such a claim (which we need not consider),
the claim would not assert the officer’s right to equal treatment
in the workplace but would be based on the victim’s right to equal
consideration in the disciplinary process.
The City argues that the Officers’ change of tack on appeal
warrants reversal. The City cites cases holding that “ ‘ “the
theory upon which a case is tried must be adhered to on
appeal.” ’ ” (Martin v. PacifiCare of California (2011) 198
Cal.App.4th 1390, 1409, quoting Richmond v. Dart Industries,
18
Inc. (1987) 196 Cal.App.3d 869, 874.) Those cases are based on
the principle that permitting a change of theory on appeal
“ ‘ “would not only be unfair to the trial court, but manifestly
unjust to the opposing litigant.” ’ ” (Martin, at p. 1409;
Richmond, at p. 874.)
Here, the Officers have not so much changed their theory
on appeal as truncated it. Colloquy during arguments on the
City’s motion for directed verdict suggests that the trial court
understood that the Officers’ claim was based at least in part on
alleged discrimination based upon their own Hispanic race. The
trial court responded to the City’s argument that an employment
discrimination claim could not be based on the race of the victim
by questioning whether that was the theory the Officers actually
presented in their opening statement: “The theme and even the
cross-examination of [the Officers], I thought it was because they
were Hispanic.” In response, the Officers’ counsel stated: “We do
have that theory. But I think it’s even broader. And I think the
[California Fair Employment and Housing Act] is broader.” He
identified the role of the victim’s race as an issue that he had
their “appellate guys” look at, and “that’s going to be decided up
there.”
Thus, the Officers’ change in theory does not itself warrant
reversal simply on grounds of fairness to the City and the trial
court. However, the change of theory does have consequences for
the Officers’ case. Without considering alleged differences in the
Officers’ treatment due to the victim’s race, the evidence is not
sufficient to support the Officers’ employment discrimination
claim.
Uncoupling the Officers’ race from the race of victim
Washington in analyzing the sufficiency of the evidence does not
19
just preclude the Officers from relying on evidence that they were
treated differently because their shooting involved an African-
American man. Ironically, it also means that some evidence the
Officers introduced helps support the City’s risk management
justification.
ii. Evidence supporting the City’s risk
management explanation
As discussed above, the City claimed that part of the reason
for benching the Officers was risk management. Chief Beck
testified that the Officers had opportunities for advancement and
meaningful work in the Department in non-field positions.
However, “if these young men were to get into a similar field
situation and do something similar in the future, if they were
involved in another, quote, unquote, ‘bad shooting,’ there’s not
enough money in the city to cover that.” He explained that risk
management is “a big part of my job.” He does not base his
decisions “solely on monetary reasons, but that’s one of the things
I have to look at. I have to not only look at the community and
my cops, but I have to look after my city.”
City witnesses also testified about the importance of
community reaction to the Washington incident and the
Department’s relationship with the Commission, which is
charged with public oversight of the Department. For example,
Jacobs explained that “these officers were involved in a very
significant event that took the life of an innocent man. They
were found to have administrative disapproval in that—by the
civilian Police [Commission] that oversees us, that we report to,
but in reality are our bosses. If they were to be involved in
another incident, especially a significant incident, but any
incident, I think the public would question what the Department
20
is doing and that public confidence would be shaken. When the
public confidence is shaken, it’s not just the effect on these two
officers, but it’s the effect on the public and the entire
Department.”
The Officers themselves introduced evidence that they were
benched for “political” reasons that were similar to the concerns
that the City labeled “risk management.” Those reasons included
the reaction of the community and the Commission to the fact
that the victim of the shooting was African-American. Diego
testified that, at the May 2012 meeting, Jacobs said that the
Officers were benched because “it was political and we had
shot an unarmed male Black.” When Diego asked why Officer
Bua had not been removed from the field, Jacobs said that it was
“because yours is political and you shot an unarmed male Black.”
Diego testified that he believed Jacobs used the term “nuclear
rock” or “nuclear time bomb” to refer to the Officers, which Diego
understood to mean that Jacobs was “pretty much letting us
know how the Commission, John Mack, had it out for us.”5 The
Officers’ counsel also elicited testimony from Jacobs that he told
the Officers, “Do you realize that you killed an unarmed, autistic
Black man,” and that “there was a great deal of community
concern about the incident.”
An employment decision based on political concerns, even if
otherwise unfair, is not actionable under section 12940 so long as
the employee’s race or other protected status is not a substantial
5 In his closing argument, the Officers’ counsel
characterized Jacobs’s statements as politically motivated:
“Jacobs said, ‘You killed an unarmed Black man. That is
political. That African American groups were angry about the
shooting. That the Police Commission was out to get you.”
21
factor in the decision. For example, in Slatkin v. University of
Redlands (2001) 88 Cal.App.4th 1147 (Slatkin), the court
affirmed summary judgment despite evidence that university
decision makers were prejudiced in deciding to deny the plaintiff
tenure because their prejudice arose from workplace politics
rather than the fact that the plaintiff was Jewish. (Id. at p. 1159;
see Chen v. County of Orange (2002) 96 Cal.App.4th 926, 930–931
[evidence showing that the plaintiff was denied a promotion
because her husband was in political disfavor did not show that
the employer discriminated on the basis of the plaintiff’s marital
status].)
Thus, abundant evidence, including some introduced by the
Officers, supported the City’s claim that the Officers remained
benched because of the possible consequences of returning them
to the field, not because of their race.
iii. The Officers’ evidence of discriminatory
intent
The Officers attempted to link the political reasons for their
benching with their race by claiming that they would have been
treated differently if they had been African-American.6 While
this claim would support a verdict of employment discrimination
if true, the Officers did not provide evidence sufficient to support
6 In opposing the City’s motion for a directed verdict, the
Officers’ counsel cited the Officers’ testimony that “[i]f I was a
Black officer, I know this would not have happened.” And in
closing he argued that “if they were Black, African American
officers, they would have been back in the field. . . . So the
question you have to ask, don’t the Officers’ race play a factor in
the decisions to keep them out of the field? And I submit to you it
does. If they were African American officers, they would be back
out in the field and that’s just a fact.”
22
it. None of the categories of evidence the Officers introduced in
support of their claim could support a reasonable inference that
their race was a substantial factor in the City’s decisions.
The Officers’ Testimony
Diego testified, “I really believe if I would have been an
African American officer, that this wouldn’t have happened.” He
also opined that “based on everything that Mr. Jacobs was telling
us about John Mack and the Police Commission . . . I personally
feel like if we had been Black or whatnot, if it was a race on race
thing, that we wouldn’t be in this situation.”
A plaintiffs’ subjective feelings or beliefs are not sufficient
to support a discrimination claim. They are simply speculation,
or, at best, conclusions—not competent evidence from which a
jury could find discrimination. (See McRae, supra, 142
Cal.App.4th at p. 398 [plaintiff’s “beliefs are not substantial
evidence of defendants’ motivation”].)
Disparate Treatment
The Officers relied heavily upon the Bua incident to show
that they were treated differently for reasons of race. That
incident could not rationally support the inference that they
suffered disparate treatment because of their race.
As discussed above, evidence suggesting that Bua was
treated more favorably because the shooting victim in that case
was Hispanic rather than African-American—which the Officers
repeatedly emphasized—cannot support an employment
discrimination claim by the Officers. And nothing about that
incident logically supports the Officers’ argument that they would
have been treated differently if they were African-American.
That argument is not based upon the fact that the Officers are
Hispanic, but rather that they are not African-American. Bua is
23
also not African-American. Thus, the Officers’ own theory
suggests that Bua would have been treated the same if he had
been involved in an incident similar to that of the Officers.7
Nor does the Bua incident support any inference that Bua
was treated differently because he is White, which the Officers
now appear to suggest on appeal. Such an inference cannot
logically be drawn because of the significant differences between
the Bua incident and the shooting in which the Officers were
involved. Those differences of course include what the Officers
repeatedly argued at trial was the key distinction—the race of the
victim. The Officers’ attempt to pivot on appeal and use the Bua
incident to support a more traditional, anti-Hispanic
discrimination claim is inconsistent with their own claim below
that the significant factor leading to Bua’s return to the field was
the race of the victim.8
The circumstances of the Bua shooting were also
significantly different. Whereas the Officers’ shooting involved
an innocent, unarmed, autistic man that the Officers initially did
not perceive to be a threat, the Bua shooting involved a person
who was reported to be armed and was engaged in violently
7 The Officers themselves made this point in closing
argument: “So here we have Bua shooting a Hispanic male and
he’s a White officer. Nothing happens. Back in the field. And I
think six weeks, nothing. Now, if you were to ask yourself what
would have happened if Bua had shot an unarmed Black male, I
think if you’re honest with yourselves, you would come to a
different conclusion.”
8 In addition to making this point during closing argument,
the Officers emphasized it in opposing the City’s directed verdict
motion. The Officers cited Bua as an example of “shooting a
Hispanic person and not having anything happen to him.”
24
attacking an occupied vehicle (albeit with a small bat rather than
what Bua perceived to be a gun).9 And, of significance to the
City’s risk management justification, the Bua incident did not
result in any public outcry.
Moreover, the Bua incident could not support the Officers’
argument that the Commission treated them more harshly
because of their race. The Commission treated Bua and the
Officers the same. In both cases the Commission concluded that
the involved officers acted “out of policy.” That was the only
decision the Commission made. The evidence was uncontradicted
that Chief Beck, not the Commission, has sole discretion to decide
the discipline and other consequences for officers based upon the
Commission’s conclusions. And there is no evidence that anyone
on the Commission—including John Mack—applied any pressure
on Chief Beck concerning the consequences that he should impose
on the Officers as a result of the Commission’s findings.10
9 The Officers question whether there was reliable evidence
apart from statements from the Washington family that
Washington was in fact autistic. For purposes of the Officers’
claim, this does not matter. That Washington was reported to be
autistic affected community perception of the incident and
heightened the sensitivity of the event, supporting the City’s risk
management justification for keeping the Officers out of the field.
Blake testified that, shortly after the shooting, “what we were
hearing more than anything else [was] that we had shot a young
man that was autistic.”
10 The Officers argued that Mack is African-American and
had recently received an award from Loyola Law School named
after the late Johnny Cochran, whose firm represented the
Washington family in their wrongful death lawsuit against the
City. In their opening statement, the Officers went so far as to
claim that the reason the Officers are not back in the field “is
25
Pretext
Much of the Officers’ evidence concerned their claim that
the City’s decision to keep them out of the field was not
warranted by the Department’s analysis of their conduct. That
evidence included the Department’s initial determination that
the Officers’ decisions to exhibit their weapons and to use force
were both in policy, as well as testimony by the Officers
themselves and by a use of force expert originally retained by the
City who criticized the Officers’ tactics but opined that their use
of force was reasonable.
This evidence was relevant to rebut the City’s proffered
justification that the Officers’ tactical mistakes were a reason for
keeping them out of the field, and supported the jury’s finding
that the Officers’ “poor tactics” were not a “substantial
motivating reason for the City . . . to subject [them] to one or
more adverse employment actions.” However, that evidence was
not relevant to rebutting the City’s proffered risk management
justification. The decision to keep the Officers out of the field
could be justified by the risk to the Department if they were to be
involved in another incident even if their tactical mistakes would
not otherwise warrant benching them.
The Officers’ reliance on evidence that they were benched
for an unusually long period of time falls in the same category.
The Officers cite the testimony of one witness, Sergeant
O’Donnell, who said that for several years he maintained a list of
because of John Mack. Not because they had violated any policy,
but because of John Mack.” The suggestion that Mack must
have unduly influenced the LAPD’s treatment of the Officers
because of his race and/or community involvement does not rise
above speculation.
26
officers who were not field certified following a use of force
proceeding. He testified that he had never known an officer that
had not been returned to the field after a five-year period for a
shooting that was out of policy.11 While the unusual length of
time the Officers were kept out of the field might cast doubt on
the City’s justification that their benching was because of their
tactical failures, it does not contradict a serious risk prevention
concern. In any event, this evidence does not suggest
discrimination. There was no evidence concerning the
circumstances surrounding the shootings that led to shorter
benchings or the race of the other officers involved. Given the
uncontradicted testimony that Hispanic officers constitute at
least 45 percent of the sworn officers in the LAPD (larger than
any other racial group), one certainly cannot assume that all the
other shootings that resulted in shorter periods of benching
involved only non-Hispanic officers.
For similar reasons, the Officers’ evidence that they were
recommended for job promotions by other officers does not
undermine the City’s risk prevention justification. The Officers
could be perceived internally as competent but still be a risk to
the Department if they were involved in another incident.
The Officers also cite evidence that they were not placed
within the purview of an LAPD department called the “Risk
Management Executive Committee” (RMEC). However,
unchallenged evidence from Jacobs and Chief Beck explained
11 The Officers argue that a five-year benching was
inconsistent with the City’s policy, but do not identify any such
policy. The Officers cite O’Donnell’s testimony, but that
testimony showed only that O’Donnell was not aware of a similar
benching, not that it violated LAPD policy.
27
that RMEC involves a structured system that focuses on officers
with ongoing disciplinary issues, which did not apply to the
Officers’ situation. That description was consistent with an
e-mail that the Officers introduced explaining to Corrales that
RMEC reviews the performance of officers and “can take
corrective steps to address any performance, behavioral, or
managerial concerns.” In light of this uncontroverted evidence,
the City’s decision not to include the Officers in RMEC could not
support the conclusion that the City’s risk management
justification was mere pretext.
The Officers also argue that the City’s risk management
justification was dubious because they were permitted to carry
guns and were assigned to work LAPD carnivals where gang
members were present. But the City’s decision not to impose
greater restrictions on the Officers does not logically undercut the
City’s risk management concern that they not represent the
Department as patrol officers.
Rejections of promotions and off-duty work
As discussed above, the Officers applied for various
promotions and for off-duty work permits, which were denied.
However, almost all the denials were for a single reason—the fact
that the Officers were not field certified. The Officers identify
only one position for which either Diego or Corrales applied
where the lack of field certification was not a disqualifying factor.
Diego was denied for that position in the Use of Force Review
Division in April 2012. There was conflicting evidence concerning
where Diego fell in the field of candidates and who recommended
him for the position. However, Diego testified that he was told he
was approved for the position up to the level of Assistant Chief
MacArthur, but he was denied by Deputy Chief Jacobs and/or
28
Chief Beck because they did not want the Commission to perceive
that he “was being rewarded.” Accepting this testimony, as we
must, the evidence nevertheless does not support an inference of
discrimination. A decision to deny Diego the position for political
reasons does not suggest an impermissible consideration of race.
There was no evidence concerning the race of the successful
candidate, and the evidence was undisputed that all three
finalists were qualified for the position.
The off-duty work that the Officers sought required them to
carry a gun. The parties disputed whether the Department could
lawfully deny the Officers’ off-duty work permits because they
were not field certified.12 But that conflict is also not material.
Even if the denial of their work permits violated Department
policy or regulations, it does not support an inference of
discrimination. The Officers did not provide any evidence
showing that non-Hispanic officers were granted work permits in
similar situations, or any other evidence suggesting that the real
12 Craig Heredia (the adjutant to Tina Nieto, who was the
area captain of the Olympic Station when Corrales applied for an
off-duty work permit to work for the Dodgers in late 2011), wrote
a memorandum concerning information he received from various
persons within the Department’s Personnel Group suggesting
that employees “have a legal right to outside employment,” and
that the lack of field certification cannot “arbitrarily affect” an
officer’s right to work off-duty. The head of the Personnel Group
at the time, Gloria Grube, testified that the lack of field
certification is a factor in deciding, on a case-by-case basis,
whether a work permit is appropriate and that officers who are
not field certified should not be armed and uniformed in an off-
duty job. After his off-duty work permit was denied, Corrales
filed an administrative complaint against Nieto, which was ruled
“unfounded.”
29
reason for the denial was race rather than risk management
concerns.
Statements by Nieto
The Officers cite testimony about a meeting in which Diego
asked about the possibility of promoting to various positions that
were available. At the meeting, Nieto said in a mocking manner
that Diego could apply, but he would not get any of the spots
because he was benched. When Diego alluded to a requirement
that officers be told monthly about the reasons for the restriction,
Nieto said something to the effect of “I’ll make up a reason.”
This evidence suggests that Nieto was annoyed and even
rude, but it does not show discrimination. Nieto did not make the
decision whether the Officers would remain benched; Chief Beck
did. There is no evidence suggesting that Nieto, who is Hispanic,
could or did influence Chief Beck in that decision.
Considered as a whole, the evidence does not provide any
rational basis to reject the City’s explanation that the LAPD
benched the Officers because of risk management concerns and
not because of their race. (See Frank, supra, 149 Cal.App.4th at
pp. 816–817 [an inference cannot support a verdict if it is
unreasonable in light of the whole record].) Indeed, key portions
of the Officers’ own evidence and argument tend to support that
justification.
While the jury could rationally have found that other
asserted reasons for the Officers’ benching were pretextual—such
as the tactics the Officers employed in encountering
Washington—the Officers could not prevail just by showing that
some proffered justifications were untrue. Even a covert reason
for an employment decision can show that the decision was not
discriminatory if the evidence shows that it was the real reason.
30
(See Slatkin, supra, 88 Cal.App.4th at p. 1158 [“all the evidence
that the [defendant’s] claimed reasons were dishonest pointed
equally to the conclusion that its true reasons were
nondiscriminatory”].) We therefore conclude that there was
insufficient evidence to support the Officers’ discrimination claim.
c. The jury’s verdict was not based on a complete
explanation of the law
The Officers argue that the jury was properly instructed
that it must find discrimination based upon the Officers’ race,
and the special verdict shows that it did so. The Officers cite
authority that an appellate court must presume that a jury has
followed a trial court’s direction based upon a proper instruction.
(See McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th
664, 674.)
This argument does not mandate affirmance here. As
discussed above, this court may reverse despite the jury’s verdict
if we find that, based upon all the evidence, the trial court should
have granted a directed verdict. For the reasons discussed above,
we conclude that the trial court should have done so.
Although not necessary for that conclusion, a gap in the
jury instructions is relevant to the Officers’ argument and merits
some discussion. That gap could have created confusion in the
jury’s understanding of the significance of the victim’s race in
determining whether there was unlawful employment
discrimination.
The trial court instructed the jury that the Officers must
prove that the City subjected them to an adverse employment
action, and that “Allan Corrales and/or George Diego’s race was a
substantial motivating reason” for the City’s conduct. (Italics
added.) In explaining the concept of adverse employment actions,
31
the court also instructed that the Officers claimed “that they
were denied employment opportunities, denied promotions,
denied off-duty work opportunities, denied overtime
opportunities and denied transfers because of their race.” (Italics
added.) The special verdict form also required the jury to find
that the Officers’ race was a “substantial motivating reason” for
the adverse employment actions.
Thus, the instructions and verdict form clearly explained
that the jury must find that the Officers’ race was a substantial
factor in the City’s employment decisions. However, neither
party requested, and the trial court did not provide, any
instruction specifically explaining that the jury could not find
discrimination based on the victim’s race.
The lack of such an instruction permitted the Officers to
blur the distinction between alleged differential treatment due to
the race of the victim and the race of the Officers. For example,
in closing argument the Officers suggested that any consideration
of “race” in how the Officers were treated was unlawful: “[W]hat
we have shown you here is that both Diego and Corrales were
essentially thrown under the bus because of race. And that is a
big component in this case and I’ll show you why.” The race of
the victim was a prominent component of that theme. The
Officers suggested that “the big elephant in the room, this was
about race. Because two Hispanic officers had killed an unarmed
African American.”
The Officers also suggested that any consideration of race
was sufficient to reject the City’s risk management justification
for its decision to bench the Officers. The Officers argued:
“Jacobs refers on the witness stand, he’s actually—when we’re
talking about why aren’t [the Officers] back now, he’s talking
32
about Ferguson and the Ford shooting as to why Diego and
Corrales can’t return to the field. Well, that’s race; isn’t it? I
mean, Ferguson is all about race and the Ford shooting is about
race also. So why are they being punished for something that
happened in Missouri or something that happened to Ezell Ford
by some officer in Newton Division?”13 The Officers suggested
that any political considerations stemming from the race of the
victim were out of bounds: “Jacobs said, ‘You killed an unarmed
Black man. That is political. That African American groups
were angry about the shooting. That the Police Commission was
out to get you.’ ”
The City did not object to this argument, and does not raise
either the Officers’ argument or any issue with the jury
instructions as a ground for appeal. But it did argue in moving
for a directed verdict that the evidence of discrimination based
upon the Officers’ race was insufficient and that the Officers
“cannot cure that defect by simply saying, ‘Well, it’s not our race
that’s employed here. It’s the race of the victim, Mr.
Washington.’ ” The City also pointed out that “there is no case,
that I’m aware of, that says that an employee can sue for race
discrimination based on someone else’s race.”
We cannot say whether the jury’s verdict would have been
different if this concept had been fully and clearly explained in
the instructions. However, we can and do agree with the City
that the trial court should not have permitted the case to go to
the jury based upon the evidence that the Officers provided. (See
13 As mentioned above, the Officers also focused on the race
of the victim in emphasizing the significance of the Bua incident,
arguing that Bua would have been treated differently if he had
“shot an unarmed Black male.”
33
Adams, supra, 68 Cal.App.4th at pp. 262, 288 [reversing jury
verdict on the legal ground of the absence of a duty of care, which
the appellants raised in their motion for directed verdict].)
3. The Evidence was Insufficient to Support a Verdict of
Retaliation
Section 12940, subdivision (h) prohibits an employer from
discriminating 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.” The Officers claim that their filing
of this lawsuit “sealed their fate within LAPD,” and that they
remained benched because they filed this case.
The Officers established a prima facie case of retaliation by
providing evidence that they had been benched for an unusually
long period of time after they filed this lawsuit given the LAPD’s
findings concerning their tactical mistakes, leading to adverse
employment consequences. (See Joaquin v. City of Los Angeles
(2012) 202 Cal.App.4th 1207, 1220 (Joaquin) [plaintiff LAPD
officer established a prima facie case of retaliation with evidence
that he reported sexual harassment, he was performing
competently, and he suffered an adverse employment action].)
The City proffered the nondiscriminatory justifications for the
Officers’ continued benching, discussed above. Having provided
evidence supporting those justifications, the presumption of
retaliation disappeared and the burden shifted to the Officers to
prove the elements of retaliation: (1) the employee’s engagement
in a protected activity (i.e., filing the lawsuit); (2) retaliatory
animus on the part of the employer; (3) an adverse action by the
employer; (4) a causal link between the retaliatory animus and
the adverse action; (5) damages; and (6) causation. (Ibid.)
34
The City disputes the elements of retaliatory animus and
causation. The City argued below in its motion for a directed
verdict and argues on appeal that the evidence of events
occurring after the Officers filed their lawsuit is not sufficient to
show that the City subjected them to any adverse employment
action because of the lawsuit. We agree.
Other than a few specific events that occurred after
November 30, 2012 (the date the Officers filed their complaint in
this case), which we discuss below, the Officers’ proof consisted of
evidence that “Chief Beck continued to bench the officers.” Thus,
the Officers cannot rely on the timing of the City’s employment
decisions to draw any inference of retaliation, as is typically done
in retaliation cases. (See, e.g., Fisher v. San Pedro Peninsula
Hospital (1989) 214 Cal.App.3d 590, 615 [causation may be
proved by circumstantial evidence such as “ ‘ “the employer’s
knowledge that the [employee] engaged in protected activities
and the proximity in time between the protected action and the
allegedly retaliatory employment decision” ’ ”], quoting Jordan v.
Clark (9th Cir. 1988) 847 F.2d 1368, 1376.)
As discussed above, the City provided evidence—which was
supported in important respects by the Officers’ own evidence and
argument—that the Officers were benched because of the
political sensitivity of the shooting in which they were involved
and the possible devastating consequences to the City if they
were to be involved in a future controversial incident. The fact
that the benching continued, even for the five-year period that
the Officers identify as unusual, is fully consistent with that
justification and cannot itself support a conclusion that the City’s
motives changed after the lawsuit was filed. (See McRae, supra,
142 Cal.App.4th at p. 397 [employee failed to sustain her burden
35
of demonstrating that her transfer to another facility was due to
retaliation for filing a grievance rather than for the employer’s
claimed desire “to remove her from an environment where she
could not function effectively”].)
The Officers’ own testimony suggests that their lengthy
benching was due to factors that were already present before
they filed their lawsuit. Diego testified that, after the Officers’
meeting with Jacobs in May 2012 (six months before the lawsuit),
he “definitely thought we’re done. We’re screwed.” As a result of
the meeting, he changed his mind that their situation was
temporary. “We felt that there was no other option,” and Diego
therefore sought legal help, even though that was “the route I
definitely didn’t want to go.” Corrales also testified that he filed
the lawsuit because he believed the Department was not going to
do anything further in terms of putting him back in the field.
Thus, the Officers did not decide to pursue legal action until they
had already concluded that they would not be returned to the
field.
The particular significance of causation evidence in
retaliation claims is another reason to conclude that the
continuation of a preexisting employment status is not in itself
sufficient to support such a claim. Absent sufficient evidence of a
causal link, employees can, in essence, create a claim by making
a complaint or filing a lawsuit before an anticipated adverse
employment action occurs. (See, e.g., Joaquin, supra, 202
Cal.App.4th at pp. 1225–1226 [permitting a retaliation claim
based on a false complaint about a coworker would allow an
employee to “ ‘immunize his unreasonable and malicious internal
complaints simply by filing a discrimination complaint with a
government agency’ ”], quoting Hatmaker v. Memorial Medical
36
Center (7th Cir. 2010) 619 F.3d 741, 745–746; Chen, supra, 96
Cal.App.4th at p. 948 [“the possibility of a retaliation claim
creates the problem of conferring a de facto immunity on the
complainant despite poor job performance or the meritlessness of
any complaint”].) Permitting an inference of retaliation based
solely upon the continuation of an already existing adverse
employment status creates the same danger that employees
might create claims that would not otherwise have any basis,
simply by filing a complaint.14
Other than evidence that their benching continued after
they filed their lawsuit, the Officers identify several other
postlitigation events that they claim show a retaliatory motive.
None of those events is sufficient to support an inference of such
a motive.
Denial of Diego’s application for a promotion in 2013
The Officers argue that the City retaliated for the lawsuit
by denying Diego’s application for a promotion to the Olympic
Station gang unit in 2013. The evidence showed that Diego was
denied that position because he was not field certified. Thus, this
event was simply a consequence of Diego’s continuing
employment status, which, as discussed above, is not sufficient to
show retaliation.
Nieto’s Statements
The Officers argue that the conversation with Nieto,
discussed above, in which she said she would “make up a reason”
14 We do not mean to suggest that the Officers acted with
such a motive here. Our discussion of the significance of the
causation requirement is simply to emphasize the policy
problems posed by the inference of retaliation that the Officers
suggest.
37
for their benching shows a retaliatory motive. But Diego testified
that this conversation occurred in October or November 2011, a
year before the Officers’ filed their lawsuit. This event therefore
cannot support any inference of a causal link between the lawsuit
and the Officers’ benching.15
The Bua shooting incident
The Officers argue that the City’s different treatment of the
Officers and Bua demonstrated a retaliatory motive as well as
disparate impact. For the reasons discussed above, the Bua
incident does not contradict the City’s stated risk management
reasons for the Officers’ benching. The differences between that
incident and the shooting in which the Officers were involved—
including the race of the victims—precludes any valid
comparison.
Change in the composition of the Commission
The Officers cite evidence of a conversation concerning the
Officers between Chief Beck and Heredia at the end of November
2012. The occasion for the conversation was Chief Beck’s visit to
the Olympic Station as part of a visitation program. After roll
call, in a private conversation Heredia asked why the Officers
were still benched. The chief said in “an around about way” that
he was protecting the Officers from being involved in any future
15 The Officers cite testimony from Officer Susan Garcia,
who was also present during this conversation. Garcia testified
that Nieto later talked with her alone about that conversation
and told her that she had better “watch what I say” about the
conversation and if she didn’t “I’m going to find myself in
trouble.” Garcia recalled that her conversation with Nieto
occurred on March 11, 2013. But she was careful to state that it
“wasn’t the same day” as the conversation involving Diego.
38
“use of force” proceedings that would “ultimately be adjudicated
by the same Police Commission who, in fact, overturned the
Chief’s recommendations on the shooting.” Chief Beck also said
that “we are due for a new mayor,” and “oftentimes, the makeup
of the Police Commission is changed by the mayor who appoints
those positions." The Officers argue that the Officers’ continued
benching after the composition of the Commission changed under
the new mayor shows a retaliatory motive.
The evidence concerning this conversation is not sufficient
to support a conclusion that the City retaliated against the
Officers by keeping them benched. Chief Beck testified that he
did not tell Heredia that the Officers would go back to the field if
the composition of the Commission changed. He said that his
explanation of possible changes to the Commission after the
mayoral election was in response to a question by Heredia about
how long the Commission was there. Heredia’s description of
their conversation does not contradict that testimony. This
evidence is fully consistent with the City’s claim that the Officers’
benching was due to concerns about the possible consequences of
another incident involving the Officers if they were returned to
the field.
The Officers failed to introduce evidence sufficient to show
that retaliation for the lawsuit was a substantial factor in the
City’s employment decisions. The trial court therefore should
have granted the City’s motion for a directed verdict on the
Officers’ claims for both unlawful retaliation and discrimination.
“When the trial court erroneously denies a defense motion
for a directed verdict and permits the matter to proceed to a jury
verdict in favor of the plaintiff, the remedy on appeal is to direct
the court to enter judgment in favor of the defendant.” (Quinn v.
39
City of Los Angeles (2000) 84 Cal.App.4th 472, 484, citing Adams,
supra, 68 Cal.App.4th at pp. 263, 288.)
DISPOSITION
The judgment is reversed with directions that judgment be
entered in favor of the City of Los Angeles. The City is entitled to
its costs on appeal.
CERTIFIED FOR PUBLICATION.
LUI, J.
We concur:
CHANEY, Acting P. J.
JOHNSON, J.
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