Jumaane v. City of Los Angeles , 194 Cal. Rptr. 3d 689 ( 2015 )

Filed 11/10/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JABARI JUMAANE, B255763
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC294248)
v.
CITY OF LOS ANGELES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Mel Red Recana, Judge. Reversed and remanded.
Michael N. Feuer, City Attorney, Vivienne A. Swanigan, Assistant City Attorney,
and Jennifer Handzlik, Deputy City Attorney, for Defendant and Appellant.
Nana Gyamfi for Plaintiff and Respondent.
******
Defendant, the City of Los Angeles (City), appeals from the trial court’s order
denying the City’s motion for judgment notwithstanding the verdict following the second
trial of plaintiff Jabari Jumaane’s employment claims. We conclude most of plaintiff’s
claims are barred by the statute of limitations, and the evidence of events within the
limitations period was insufficient to establish a prima facie case of disparate impact
discrimination, harassment or retaliation. The City’s motion should have been granted in
its entirety. Thus, we reverse the judgment and remand for entry of judgment in favor of
the City.
FACTUAL AND PROCEDURAL BACKGROUND
1. The First Trial and Appeal
Plaintiff, an African-American, has been employed with the City through his work
with the Los Angeles Fire Department (Department) since 1986. He sued the City on
April 18, 2003, alleging racial discrimination, racial harassment, and retaliation. At the
first trial, the jury rendered a verdict in favor of the City on all causes of action. The trial
court granted plaintiff’s motion for new trial based on juror misconduct, and we affirmed
in an unpublished opinion filed August 5, 2010. (Jumaane v. City of Los Angeles
(B204553) (Jumaane I).)
In that opinion, we rejected the City’s argument that even if there was jury
misconduct, plaintiff was not harmed because the City was entitled to judgment as a
matter of law. The City contended plaintiff failed to file a complaint with the Department
of Fair Employment and Housing (DFEH) within one year of any adverse employment
action (Gov. Code, § 12960, subd. (d)), and thus, he could not bring his lawsuit. We
found plaintiff’s DFEH complaint was timely, because it was filed on April 16, 2002, and
plaintiff suffered an adverse employment action when he was suspended for 15 days from
April 16 through April 30, 2001.
2. The Retrial From Which this Appeal Is Taken
At the time of his second trial in 2013, plaintiff was a Firefighter Level III with the
Department, having been continuously employed with the Department since February 3,
2
1986. In addition to being a Firefighter, plaintiff held the position of Inspector from 1990
through April 2001.
The case was retried over the course of 34 court days between September 23 and
November 25, 2013. At the end of the second trial, the jury found for plaintiff on the
causes of action for race discrimination based on a disparate impact theory, race
harassment, retaliation for complaining about discrimination and harassment, and failure
to prevent discrimination, harassment or retaliation. The jury found for the City on the
cause of action for disparate treatment race discrimination. The jury found that plaintiff’s
race was not a substantial motivating reason for the City’s treatment of plaintiff. The jury
awarded plaintiff over $1 million in compensatory damages. The City moved for
judgment notwithstanding the verdict, which the trial court denied.
The motion for judgment notwithstanding the verdict was based in part on the
City’s statute of limitations defense. The City argued that the evidence of events that
occurred before April 16, 2001, was not part of a continuing violation of the Fair
Employment and Housing Act (FEHA; Gov. Code, § 12940 et seq.), and the evidence of
events on and after April 16, 2001, was insufficient to prove disparate impact
discrimination, harassment or retaliation.
We now summarize the evidence that was before the jury.
A. Plaintiff’s protected activities preceding the adverse employment
actions
In 1991, plaintiff wrote a letter to the City Council on behalf of a professional
organization of African-American firefighters protesting racism. In 1994, plaintiff gave
an interview as part of a survey conducted by the City Personnel Department regarding
racial issues in the Department. Also in 1994, plaintiff testified to racism in the
Department at a hearing of the City Council. In 1996, plaintiff filed a union grievance
alleging racism in the requirements to use the weight room in the basement at City Hall
East. As a result of his grievance, plaintiff testified that “funding was provided, the size
of the weight room was tripled, brand new equipment was provided and it was more
3
separate but equal then.” In 1997, plaintiff gave deposition testimony about race
discrimination in the Department in a lawsuit brought by another Department employee.
Sometime in 1999 or 2000, plaintiff filed two complaints with the Department
alleging that Assistant Fire Marshal Michael Fulmis, who was in plaintiff’s line of
command, made two “inappropriate” and “culturally insensitive” comments in his
presence. The first comment was made while Assistant Fire Marshal Fulmis was
watching protestors outside the window. He said, “I guess turning a water hose on them
wouldn’t be the thing to do right now.” The second comment was made after plaintiff
brought a water bottle to replenish the water cooler in his unit. Assistant Fire Marshal
Fulmis said, “Oh, so you are the water boy.”
B. The adverse employment actions taken against plaintiff in 1999 and
2001
Plaintiff was suspended for 10 days in 1999. He was suspended for 15 days in
2001. There is no dispute the suspensions were adverse employment actions. The City
provides record citations to the following evidence concerning the two suspensions.
(Plaintiff provided almost no record citations in his respondent’s brief, as discussed
further below.)
i. The 1999 suspension
The first suspension related to events in 1998. Plaintiff had been assigned to the
Central Industrial Unit (CIU) but was temporarily reassigned starting on May 18, 1998,
to assist the 1998 Brush Task Force. However, plaintiff continued to report for duty at
the CIU; he did not report for duty at the Brush Task Force until June 2, 1998. Plaintiff
was asked to document his activities between May 18 and June 2, 1998. The Department
was not satisfied with his report and requested more information. Plaintiff provided a
second report but the Department still considered it incomplete. When the captain in
charge of the Brush Task Force met with plaintiff to discuss what specific information
should be included in a third report, plaintiff tried to tape-record their conversation and
refused to turn off the tape recorder when told to do so. Plaintiff did not appear for
4
subsequently scheduled meetings with Department supervisors. He submitted a third
report which the Department still considered to be incomplete.
The Department then conducted an audit of plaintiff’s inspection records. The
audit found documentation supporting an inadequate number of inspections. Plaintiff
was asked to produce documents to refute the audit findings. He was unable to do so.
In September 1998, plaintiff was placed on a six-month interim evaluation during
which his performance was subject to monthly evaluations by his unit commander. On
September 24, 1998, plaintiff received an unsatisfactory interim evaluation. Plaintiff
filed a grievance, which was denied.
In September and October 1998, plaintiff received six written reprimands for
missing work or being tardy. He filed grievances with respect to each reprimand, and
each grievance was denied.
Plaintiff was also asked to provide more written reports of his activities. He told
his supervisors that, from his perspective, “it was clear a paper trail was being created for
purposes of justifying some sort of discipline.” He did not state in his reports that he
believed the Department was discriminating and retaliating against him. However, he did
tell his union representative, Mike McOsker, that the frequent requests for reports of his
activities were “racial discrimination and result of retaliation.”
On October 25, 1998, plaintiff was transferred to the Hydrants and Access Unit
(HAU). Plaintiff formally grieved his transfer to a new unit on December 17, 1998. He
testified that when he was transferred, he felt the transfer was “punitive and racially
motivated.” The grievance was denied.
In November 1998, one of plaintiff’s supervisors requested that the Department
conduct a personnel investigation of plaintiff’s work activities. The March 31, 1999
report on the investigation recommended a pre-disciplinary hearing be conducted and that
a suspension be imposed.
Plaintiff was served with formal notice of the proposed disciplinary action on
April 13, 1999. (As a tenured employee, plaintiff had rights to notice and an opportunity
to respond to a proposal to impose disciplinary action under Skelly v. Personnel Board
5
(1975) 15 Cal.3d 194, 215 (Skelly).) A formal Skelly meeting was held on April 27,
1999, followed by issuance of a complaint charging five counts of misconduct by
plaintiff had been sustained. The misconduct included failing to report for duty at the
Brush Task Force, failing to maintain records of his inspection activities, failing to
provide his supervisors with requested documents on two separate occasions, and
insubordination for refusing to turn off the tape recorder.
The Fire Chief approved a 10-day suspension. Plaintiff did not request a Board of
Rights hearing to challenge the suspension. He served the suspension in June 1999.
Plaintiff testified he “absolutely” believed the Department was discriminating against him
and that, after he finished serving his suspension, he no longer had any hope “that
somebody would listen to reason and not be tainted.”
ii. The 2001 suspension
At his request, plaintiff was added to the on-call inspector assignment at the HAU
on February 29, 2000. The on-call assignment requires the inspector to take the HAU’s
on-call emergency vehicle home (home-garage) so that he can respond quickly in case of
an emergency. The vehicle is equipped with a special Department of Water and Power
(DWP) radio to enable the inspector to communicate with DWP personnel about water
delivery while en route to the scene.
Plaintiff was assigned as on-call Inspector on March 8, 2000. Instead of home
garaging the on-call vehicle, plaintiff left it in the City Hall East parking structure, in an
unauthorized area, because of his obligations to attend a series of community meetings
during “off-duty” hours. At trial, plaintiff denied his supervisor told him to take the
vehicle home on March 8, 2000. At the time, however, plaintiff’s supervisor gave
plaintiff a written reprimand for insubordination for intentionally violating a directive to
take home the on-call vehicle.
Plaintiff was served with a formal Skelly notice of a proposed 15-day suspension
on April 7, 2000. A Skelly meeting was initially scheduled for May 3, 2000. However,
plaintiff was off work due to an on-duty injury from May 2000 through March 25, 2001.
The meeting was rescheduled several times at plaintiff’s request. On January 31, 2001,
6
the Department sent plaintiff a letter telling him the meeting had been scheduled for
February 15, 2001, and that if he could not attend in person, he could submit his response
in writing, allow his union representative to speak on his behalf, or submit an audiotape
or videotape. Later, the Department offered “to take the Skelly Hearing to [plaintiff] at
his home.” Plaintiff testified he did not remember being offered the options in the letter,
but he did recall his union representative presented the option of meeting at his home.
The Skelly meeting was held on February 15, 2001. Plaintiff did not attend but his
union representative was present. Two counts of misconduct were sustained, and the Fire
Chief approved a 15-day suspension, to be served from March 5 to 19, 2001. Plaintiff
requested a Board of Rights hearing on March 5, 2001, but he then withdrew his request
on April 2, 2001. On March 26, 2001, plaintiff had returned to duty following his time
off for the on-duty injury. He served the suspension from April 16 to April 30, 2001.
After plaintiff had withdrawn his request for a Board of Rights hearing, he wrote a
letter to the Fire Commission on April 5, 2001, reporting that the Department denied his
request for a Department vehicle on April 3, 2001, based on his race and in retaliation for
previous complaints of discrimination. The Department submitted a response, denying
the allegations. A few days later, on April 11, 2001, plaintiff wrote another letter to the
Fire Commission, asking to revert to the position of firefighter due to “the climate of
racial harassment and discrimination” in the rank of inspector.
Plaintiff filed his DFEH complaint on April 16, 2002, alleging the June 1999 and
April 2001 suspensions were discriminatory, retaliatory and harassing “as a result of my
exercising my right to fight racism and discrimination with the . . . Department.”
Plaintiff’s request for reassignment was approved and in ensuing years, plaintiff
was promoted to Firefighter Level III.
DISCUSSION
A. Standard of Review
“A motion for nonsuit or demurrer to the evidence concedes the truth of the facts
proved, but denies as a matter of law that they sustain the plaintiff’s case. A trial court
may grant a nonsuit only when, disregarding conflicting evidence, viewing the record in
7
the light most favorable to the plaintiff and indulging in every legitimate inference which
may be drawn from the evidence, it determines there is no substantial evidence to support
a judgment in the plaintiff’s favor.” (Edwards v. Centex Real Estate Corp. (1997) 53
Cal.App.4th 15, 27-28 (Edwards).) Our review is de novo. (Baker v. American
Horticulture Supply, Inc. (2010) 185 Cal.App.4th 1295, 1308 (Baker).)
B. The City Had a Viable Statute of Limitations Defense
A plaintiff suing for violations of FEHA ordinarily cannot recover for acts
occurring more than one year before the filing of the DFEH complaint. (Gov. Code,
§ 12960, subd. (d); Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 822-823
(Richards) [“[P]ermitting an employee indefinitely to delay the filing of a lawsuit . . .
would be contrary to the FEHA’s statute of limitations and potentially prejudicial to the
employer.”].) Plaintiff filed a DFEH complaint on April 16, 2002. Thus, plaintiff could
not recover for acts occurring before April 16, 2001, unless the continuing violation
doctrine applies.
“[W]hen an employer engages in a continuing course of unlawful conduct under
the FEHA by refusing reasonable accommodation of a disabled employee or engaging in
disability harassment, and this course of conduct does not constitute a constructive
discharge, the statute of limitations begins to run, not necessarily when the employee first
believes that his or her rights may have been violated, but rather, either when the course
of conduct is brought to an end, as by the employer’s cessation of such conduct or by the
employee’s resignation, or when the employee is on notice that further efforts to end the
unlawful conduct will be in vain.” (Richards, supra, 26 Cal.4th at p. 824.)
In Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, the Supreme Court
clarified that the continuing violation doctrine applies not only to FEHA harassment and
discrimination claims but also to retaliation claims. (Yanowitz, at p. 1142 [“We believe
the better rule is to allow application of the continuing violation doctrine in retaliation
cases if the requisite showing of a continuing course of conduct has been made. Thus, we
reiterate that in a retaliation case, as in a disability accommodation or harassment case,
8
the FEHA statute of limitations begins to run when an alleged adverse employment
action acquires some degree of permanence or finality.”].)
The City has consistently asserted the statute of limitations defense to plaintiff’s
claims, most of which rest on events that took place in the 1990’s. The City moved for
summary judgment on this basis in 2004. The court denied the motion by order dated
March 11, 2005, but then granted the motion as to all the individually named defendants
after the City sought a writ, and this court issued notice of our intention to issue a
peremptory writ directing the trial court to grant summary judgment in favor of the
individual defendants (but not the City).
The City asserted the statute of limitations defense at the first trial and on appeal
from the grant of plaintiff’s motion for new trial after the first trial. The City again
developed the statute of limitations defense at the retrial and asked the court to give the
CACI instruction on the continuing violation doctrine. (See CACI No. 2508.)
The trial court refused to give the requested instruction. The court incorrectly
reasoned that it had already decided the continuing violation doctrine applied when the
court denied the City’s motion for summary judgment in 2005. The court also incorrectly
reasoned that this court “made the same finding about the DFEH complaint,” apparently
referring to our opinion of August 5, 2010, discussed ante. This was manifest error.
The denial of summary judgment only means there are triable issues of material
facts. At a jury trial, the facts are presented and the jury must decide whether there was a
continuing course of unlawful conduct based on the law as stated in CACI No. 2508.
(Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 1006
[reversing summary judgment on statute of limitations in sex harassment case, explaining
that “plaintiff presented sufficient evidence to survive defendant’s motion for summary
judgment; whether a properly instructed jury would conclude plaintiff’s evidence was
sufficient as a matter of fact to establish a continuing violation and support an award of
damages outside the limitations period remains an open question”].)
And this court has never made a finding that the continuing violation doctrine
applies to plaintiff’s claims. In our previous opinion, we simply found “that since
9
[plaintiff’s] suspension ended on April 30, 2001, he had until at least one year from that
date to file a DFEH complaint. Therefore, the DFEH complaint filed April 16, 2002, was
timely.” (Jumaane I, supra, B204553.) We said nothing at all about any adverse
employment action preceding the April 2001 suspension.
The trial court prejudicially erred in finding that the continuing violation doctrine
necessarily applied to the case, removing the matter from the jury’s consideration.
C. Accepting as True that the Events in the 1990’s Show Race Harassment and
Retaliation for Complaining About Discrimination and Harassment, These
Events Are Insufficient as a Matter of Law to Show a Continuing Course of
Conduct
Plaintiff contends he may recover damages for every act of race harassment and
retaliation for complaining about discrimination and harassment that he has suffered
throughout his employment with the City. That is not the law. As we have said,
ordinarily, a plaintiff cannot recover for acts occurring more than one year before the
filing of the DFEH complaint, in this case, for acts occurring before April 16, 2001.
(Gov. Code, § 12960, subd. (d); Richards, supra, 26 Cal.4th at pp. 811-812.) However,
the continuing violation doctrine permits a plaintiff to recover for unlawful practices
occurring outside the limitations period if the practices continued into that period.
(Dominguez v. Washington Mutual Bank (2008) 168 Cal.App.4th 714, 720-721
(Dominguez).)
It is plaintiff’s burden to plead and prove the timely filing of the DFEH complaint.
(Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1345-1346; see Chin
et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2014) ¶ 16:253,
p. 16-36 [“[P]laintiff bears the burden of pleading and proving timely filing of a
sufficient complaint with the DFEH and obtaining a right-to-sue notice.” (Italics
omitted.)].) Therefore, when defendant has asserted the statute of limitation defense,
plaintiff has the burden of proof to show his or her claims are timely under the continuing
violation doctrine.
10
The continuing violation doctrine requires proof that the conduct occurring outside
the limitations period was (1) similar or related to the conduct that occurred earlier;
(2) the conduct was reasonably frequent; and (3) the conduct had not yet become
permanent. (Dominguez, supra, 168 Cal.App.4th at pp. 720-721.) “ ‘[P]ermanence’ in
the context of an ongoing process of accommodation of disability, or ongoing disability
harassment, should properly be understood to mean the following: that an employer’s
statements and actions make clear to a reasonable employee that any further efforts at
informal conciliation to obtain reasonable accommodation or end harassment will be
futile. . . . [¶] [T]he statute of limitations begins to run . . . either when the course of
conduct is brought to an end, as by the employer’s cessation of such conduct or by the
employee’s resignation, or when the employee is on notice that further efforts to end the
unlawful conduct will be in vain.” (Richards, supra, 26 Cal.4th at p. 823.)
Viewing the record in the light most favorable to plaintiff and indulging in every
legitimate inference which may be drawn from the evidence, there is substantial evidence
to support the first two elements of the continuing violation doctrine. There was
substantial evidence that plaintiff suffered harassment and retaliation in the 1990’s, that
at least some incidents were similar or related, and that the similar or related events were
reasonably frequent at various times. However, there is no evidence in the record from
which we may infer that the harassment and retaliation occurring in the 1990’s had not
become permanent by the time plaintiff served his 1999 suspension. To the contrary, the
only reasonable inference is that by the time plaintiff served his 1999 suspension, he
knew that further efforts to end the harassment and retaliation would be in vain.
Plaintiff experienced and spoke out against racism in the Department throughout
the 1990’s. Plaintiff protested racism in the Department in a 1991 letter to the City
Council, in a 1994 interview with the City Personnel Department, in a 1994 City Council
hearing, and in a 1997 deposition. In 1996, plaintiff filed a union grievance alleging
racism in the weight room.
On September 24, 1998, plaintiff received an unsatisfactory interim evaluation.
Plaintiff filed a grievance, which was denied. In September and October 1998, plaintiff
11
received six written reprimands for missing work or being tardy. He grieved each
reprimand, and each grievance was denied.
Plaintiff was required to submit numerous reports explaining his absence from the
Brush Task Force between May 18, 1998, and June 2, 1998. Plaintiff told his supervisors
that, from his perspective, “it was clear a paper trail was being created for purposes of
justifying some sort of discipline.” He told his union representative that the frequent
requests for reports of his activities were racial discrimination and retaliation.
On October 26, 1998, plaintiff was transferred to the HAU. He testified that he
believed the transfer was “punitive and racially motivated.” He grieved the transfer, but
the grievance was denied.
On March 31, 1999, he was charged with 14 counts of misconduct for which
disciplinary action was proposed. Five counts of misconduct were sustained, including
failing to report for duty at the Brush Task Force, failing to maintain records of his
inspection activities, failing to provide his supervisors with requested documents on two
separate occasions, and insubordination for refusing to turn off the tape recorder. The
Fire Chief approved a 10-day suspension. Plaintiff did not request a Board of Rights
hearing to challenge the suspension, though he testified he “absolutely” believed the
Department was discriminating against him and that, after he finished serving his
suspension, he no longer had any hope “that somebody would listen to reason and not be
tainted.” He served the suspension in June 1999.
Plaintiff’s own testimony establishes that he knew in 1998 the Department was
engaged in discrimination and retaliation against him by creating a paper trail to justify
some sort of discipline; that his 1998 transfer to the HAU was racially motivated and
retaliatory; and that the 10-day suspension was racially motivated. He also testified that
after he served the suspension, he no longer had any hope that the racism would end, and
he knew future efforts to make changes would be futile.
Because the harassment and retaliation culminated in the 1999 suspension, and
plaintiff knew future efforts to make changes would be futile, all of plaintiff’s claims
related to conduct that occurred before June 1999 are barred by the statute of limitations.
12
(Richards, supra, 26 Cal.4th at p. 823 [statute of limitations begins to run “either when
the course of conduct is brought to an end . . . , or when the employee is on notice that
further efforts to end the unlawful conduct will be in vain.”]; Cucuzza v. City of Santa
Clara (2002) 104 Cal.App.4th 1031, 1042-1043 [claim achieved permanence when
City’s only response to plaintiff’s grievance was “to give her the opportunity to transfer
out of the department”]; Bass v. Joliet Public School District No. 86 (7th Cir. 2014)
746 F.3d 835, 839-840 [reassignment of duties and suspensions are discrete acts in
contrast to a continuing violation, for which plaintiff must file a charge of discrimination
within one year].)
D. There Is No Substantial Evidence to Support a Claim of Disparate Impact
Race Discrimination Within the Limitations Period
Plaintiff’s theory of disparate impact race discrimination was that the
Department’s disciplinary policy had a disproportionately adverse impact on African-
Americans. Thus, plaintiff had to prove the Department’s facially neutral discipline
policy had a significant adverse impact on African-Americans.
Significantly, the jury returned its verdict in favor of the City, and against plaintiff,
on his theory of disparate treatment race discrimination. The jury found the City
subjected plaintiff to an adverse employment action but that plaintiff’s race was not a
substantial motivating reason for the City’s treatment of plaintiff.
“ In ‘ “disparate treatment’ ” cases, the plaintiff alleges that an employer has
treated him or her less favorably than others due to race, color, religion, sex or national
origin, and the plaintiff must prove a discriminatory intent or motive. . . . In ‘ “disparate
impact” ’ cases, by contrast, the plaintiff alleges and proves, usually through statistical
disparities, that facially neutral employment practices adopted without a deliberately
discriminatory motive nevertheless have such significant adverse effects on
protected groups that they are ‘in operation . . . functionally equivalent to intentional
discrimination.’ ” (Harris v. Civil Service Com. (1998) 65 Cal.App.4th 1356, 1365,
citations omitted.)
13
The City contends plaintiff was required to provide statistical evidence to prove
the disciplinary policy had a disproportionate impact on African-Americans, and that
plaintiff did not offer adequate statistical evidence to support this claim. It is well settled
that valid statistical evidence is required to prove disparate impact discrimination, that is,
that a facially neutral policy has caused a protected group to suffer adverse effects.
“ ‘Once the employment practice at issue has been identified, causation must be proved;
that is, the plaintiff must offer statistical evidence of a kind and degree sufficient to show
that the practice in question has caused the exclusion of applicants for jobs or promotions
because of their membership in a protected group. . . . [S]tatistical disparities must be
sufficiently substantial that they raise such an inference of causation.’ ” (Carter v. CB
Richards Ellis, Inc. (2004) 122 Cal.App.4th 1313, 1323-1324, quoting Watson v. Fort
Worth Bank & Trust (1988) 487 U.S. 977, 994-995.)1
We agree plaintiff did not offer substantial statistical evidence to support a prima
facie case of disparate impact discrimination. Over the objections of the City, plaintiff
offered memoranda describing affirmative action audits of the Department’s disciplinary
actions which were conducted by the City Personnel Department for the period January 1,
1990, through June 30, 1992. Plaintiff introduced these audits into evidence through the
testimony of Jerry Thomas, a firefighter who had retired in 2007. Mr. Thomas testified
as a percipient witness and offered no expert testimony concerning the audits. The City
had moved in limine to exclude the audits and testimony about the audits on the grounds
they were hearsay, inadmissible opinion and irrelevant. The court did not explain why it
overruled these apparently valid objections when Mr. Thomas was asked about the audits.
The audit for the period of January 1 through June 30, 1990, includes this
statement contained in a memorandum dated October 18, 1991, from the chief of the
Human Resources and Benefits Division to the general manager of the Personnel
Department: “While there appears to be a disproportionate amount of discipline against
1 “Because of the similarity between state and federal employment discrimination
laws, California courts look to pertinent federal precedent when applying our own
statutes.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.)
14
Blacks (30.8%), when they represent 10.5% of the workforce, the Department has
indicated that each disciplinary case is reviewed on an individual case by case basis and
that the Department has not noticed any trends or problem areas for a particular ethnic
group.” The audit for the period of July 1, 1990, through June 30, 1991, showed
32 percent of African-Americans received disciplinary actions, and 37.8 percent of
African-American “sworn personnel” received disciplinary actions. The audit for the
period of July 1, 1991, through June 30, 1992, showed 28 percent of African-Americans
received disciplinary actions. A March 9, 1994 memorandum from the chief of the
Human Resources and Benefits Division to the general manager of the City Personnel
Department in reference to the audits for the period of July 1, 1990, to June 30, 1992,
recommended the Department should continue to investigate the reasons for “the
disproportionate amounts of discipline administered to Blacks.”
The bare statistics cited in these memoranda, without more, are not substantial
evidence the Department’s disciplinary policy had a disproportionately adverse impact on
African-Americans during the period January 1, 1990, through June 30, 1992. Even if
they were, they are irrelevant to the period of 1998 and after, during which plaintiff’s
claims arose. The parties cite nothing in the record to suggest the audit results for
January 1, 1990, through June 30, 1992, prove disparate impact race discrimination in the
years 1998 and later. (See, e.g., King v. General Electric Co. (7th Cir. 1992) 960 F.2d
617, 626 [“[S]tatistical evidence cannot serve as a basis for proving discrimination
beyond the time period analyzed.”]; EEOC v. Sears, Roebuck & Co. (7th Cir. 1988)
839 F.2d 302, 329 [refusing to allow plaintiffs to use data from a two-year hiring period
to show discrimination over a seven-year period].)
Plaintiff contends in his respondent’s brief that “[t]he testimony supporting
[plaintiff’s] claim came from many witnesses, including, but not limited to, [plaintiff],
McOsker, Thomas, and Hernandez.” However, plaintiff provides no citations to the
record in support of this argument. Parties are required to provide specific page citations
to the record to support their factual recitations in their briefs. (Cal. Rules of Court,
rule 8.204(a)(1)(C); Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849,
15
856.) The court is not required to make an independent search of the record and may
disregard any claims when no reference is furnished. (Nwosu v. Uba (2004) 122
Cal.App.4th 1229, 1246.) Certainly, we cannot undertake an independent search of this
record, which includes 17 volumes of the reporter’s transcript and five volumes of the
clerk’s transcript, including the motion to augment the record.
In any event, the argument appears to rest on evidence of racial discrimination
against plaintiff which is irrelevant to a disparate impact claim. As discussed above, a
disparate impact claim requires proof that a facially neutral policy has caused a protected
group to suffer adverse effects. The jury rejected plaintiff’s claim the City engaged in
racial discrimination against him. Evidence of racial discrimination against plaintiff
cannot save his disparate impact claim.
E. There Is No Substantial Evidence to Support a Claim of Racial Harassment
Within the Limitations Period
“[H]arassment consists of a type of conduct not necessary for performance of a
supervisory job. Instead, harassment consists of conduct outside the scope of necessary
job performance, conduct presumably engaged in for personal gratification, because of
meanness or bigotry, or for other personal motives. Harassment is not conduct of a type
necessary for management of the employer’s business or performance of the supervisory
employee’s job.” (Reno v. Baird (1998) 18 Cal.4th 640, 645-646.)
The City contends the only incidents of harassment took place before April 16,
2001, outside the limitations period. The City recites evidence of racial comments made
in 1980’s and the hostile work environment while plaintiff served as an Inspector in the
1990’s in the CIU, the 1998 Brush Task Force, and the HAU. The City tells us
“However, Plaintiff presented no evidence that any acts of ‘harassment’ under FEHA
occurred during the one-year period preceding his filing of his DFEH complaint on April
16, 2002.”
In response, plaintiff refers to evidence of racially offensive comments made “in
the early part of his career” and tells us the harassing conduct continued into 2001, but he
does not tell us when any of the events to which he refers occurred, nor does he provide
16
any citations to the record to enable us to find out for ourselves. “Issues do not have a
life of their own: if they are not raised or supported by argument or citation to authority,
we consider the issues waived. [Citations.]” (Jones v. Superior Court (1994) 26
Cal.App.4th 92, 99.) Plaintiff’s burden of proof to show his claims are timely includes
the requirement to provide citations to the record of evidence of harassment occurring on
or after April 16, 2001.
It appears that almost all the events that plaintiff describes as harassment took
place before 2000. The only evidence to which plaintiff refers within the limitations
period is one reference to “the unwarranted discipline.” As we have seen, plaintiff served
a 10-day suspension in 1999, which is outside the limitations period. On February 15,
2001, the Department imposed a 15-day suspension which plaintiff served April 16
through April 30, 2001.
A disciplinary suspension does not constitute harassment under FEHA as a matter
of law. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63-65, quoted
extensively with approval in Reno v. Baird, supra, 18 Cal.4th at pp. 645-650.) Janken
explained that “commonly necessary personnel management actions such as hiring and
firing, job or project assignments, office or work station assignments, promotion or
demotion, performance evaluations, the provision of support, the assignment or
nonassignment of supervisory functions, deciding who will and who will not attend
meetings, deciding who will be laid off, and the like, do not come within the meaning of
harassment. These are actions of a type necessary to carry out the duties of business and
personnel management. These actions may retrospectively be found discriminatory if
based on improper motives, but in that event the remedies provided by the FEHA are
those for discrimination, not harassment. Harassment, by contrast, consists of actions
outside the scope of job duties which are not of a type necessary to business and
personnel management. This significant distinction underlies the differential treatment of
harassment and discrimination in the FEHA.” (Janken, at pp. 64-65.)
In sum, there is no substantial evidence of harassment within the one-year
limitations period.
17
F. There Is No Substantial Evidence to Support a Claim of Retaliation for
Plaintiff’s Complaints About Race Discrimination or Harassment Within the
Limitations Period
The City contends the only adverse employment action taken against plaintiff on
or after April 16, 2001, was the 15-day suspension that plaintiff served from April 16
through April 30, 2001, and that there is no evidence from which the jury could
reasonably find that suspension was racially motivated.
“[I]n order to 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. . . . Once an employee establishes a prima
facie case, the employer is required to offer a legitimate, nonretaliatory reason for the
adverse employment action. . . . 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, supra, 36 Cal.4th at p. 1042, citations omitted.)
Assuming without finding, for purposes of brevity only, that plaintiff produced
substantial evidence of events within the limitations period to establish a prima facie case
that his 2001 suspension was retaliatory, we nonetheless find there is no substantial
evidence that undermines the City’s proof it had a legitimate, nonretaliatory reason for
the 2001 suspension. The suspension was based on plaintiff’s insubordination and failure
to take home a Department on-call emergency vehicle assigned to him in March 2000.
The vehicle was equipped with a special radio to enable the Inspector to communicate
with DWP personnel about water delivery while en route to the scene. Instead of home
garaging the on-call vehicle, plaintiff left it in the City Hall East parking structure, in an
unauthorized area, because of his obligations to attend a series of community meetings
during “off-duty” hours. The City contended that, by not having the vehicle at his
residence, plaintiff compromised his ability to respond as quickly as possible to an
emergency.
18
The City tells us that plaintiff offered no evidence that the suspension was
unjustified or that the stated reasons for the action were a pretext for retaliation. “The
plaintiff’s burden is to prove, by competent evidence, that the employer’s proffered
justification is mere pretext; i.e., that the presumptively valid reason for the employer’s
action was in fact a coverup. . . . In responding to the employer’s showing of a legitimate
reason for the complained-of action, the plaintiff cannot ‘ “simply show the employer’s
decision was wrong, mistaken, or unwise. Rather, the employee ‘ “must demonstrate
such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them ‘unworthy of credence,’ and hence . . . infer ‘that the
employer did not act for the [asserted] non-discriminatory reasons.’ ” ’ ” ’” (McRae v.
Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388-389,
citations omitted (McRae).)
In his reply brief, plaintiff says nothing whatever in response to the City’s
argument that he failed to show the 2001 suspension was unjustified or pretextual.
Plaintiff’s only argument is a summary, again without any record citations, of his
protected activities in the 1980’s, 1990’s and the two complaints made sometime in 1999
or 2000 alleging that Assistant Fire Marshal Fulmis made two “inappropriate” and
“culturally insensitive” comments in plaintiff’s presence. Plaintiff also makes a fleeting
reference to “unwarranted discipline . . . that lasted through 2001” but, again, he nowhere
articulates any reason why the Department’s stated reasons for the April 2001 suspension
were unjustified or pretextual, i.e., “unworthy of credence” as explained in McRae, supra.
The City’s explanation of the reasons for the suspension are not facially implausible.
Again, issues that are not supported by argument or citation to authority are considered
waived. (Jones v. Superior Court, supra, 26 Cal.App.4th at p. 99.)
G. The Claim of Failure to Prevent Race Discrimination, Retaliation and
Harassment Also Fails
The City says nothing whatever about the jury’s verdict in favor of plaintiff on his
cause of action for failure to prevent discrimination, retaliation or harassment. On the
19
other hand, plaintiff does nothing more than rehash his recitation of events in the 1980’s
and 1990’s without any record citations. It would serve no purpose for us to find the City
waived its right to appeal the verdict on this cause of action, because a predicate for the
verdict is substantial evidence of discrimination, retaliation and harassment. (Trujillo v.
North County Transit Dist. (1998) 63 Cal.App.4th 280, 289 [no liability for failure to
prevent conduct in violation of FEHA “except where the actions took place and were not
prevented”].) As we have seen, most of plaintiff’s claims are barred by the statute of
limitations, and the evidence of events within the limitations period was insufficient to
establish a prima facie case of discrimination, harassment or retaliation.
Since we find the court should have granted the motion for judgment
notwithstanding the verdict for failure of proof of liability, we need not address the
adequacy of the evidence to support the damages award.
DISPOSITION
The judgment is reversed and remanded for entry of judgment in favor of
Appellant. Appellant City of Los Angeles is to recover its costs of appeal.
GRIMES, J.
WE CONCUR:
FLIER, Acting P. J.
OHTA, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
20