HAMMOND v. COUNTY OF LOS ANGELES

Filed 1/18/08

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Alice E. Altoon, Judge. Affirmed in part and reversed in part.

Stephan A. Ebner and Kevin C. Boyle for Plaintiff and Appellant.

Office of the County Counsel, Raymond J. Fortner, Jr., County Counsel, Ralph L. Rosato, Assistant County Counsel, Doraine F. Meyer, Principal Deputy County Counsel, and Donna B. Koch, Principal Deputy County Counsel, for Defendants and Respondents.

[The following INTRODUCTION, FACTS, PROCEDURAL BACKGROUND, and DISCUSSION A-E1 are certified for publication]

INTRODUCTION

Plaintiff and appellant Yvonne Hammond (plaintiff), a nursing instructor employed by the Los Angeles County Sheriffs Department (Department) sued her employer, defendant and respondent County of Los Angeles (County), alleging five violations of the Fair Employment and Housing Act (the FEHA).^[1] Plaintiff also sued her supervisor, Betty Brennan (Brennan), alleging two causes of action for racial harassment and retaliation in violation of the FEHA. The County and Brennan successfully moved the trial court for an order granting summary judgment, and plaintiff appeals from the judgment entered based on that order.

In the published portion of this opinion, we hold that there is a triable issue of one or more material facts as to whether one year after the filing of plaintiffs administrative complaint with the Department of Fair Employment and Housing (the DFEH)the period of limitations she continued to experience an adverse employment activity so as to defeat the statute of limitations defense. We further hold that plaintiff has raised a triable issue of one or more material facts with respect to her claims for race discrimination, harassment based on race, age discrimination, and retaliation, all in violation of the FEHA.

As we discuss in the unpublished portion of the opinion, Brennan is not immune from individual liability under section 820.2, and the trial court properly granted the Countys motion for summary adjudication as to the third cause of action against the County for failing to take reasonable steps to prevent discrimination or harassment.

FACTS[2]

A. Plaintiffs Facts

From approximately October 1996, the Department employed plaintiff as a nursing instructor in the Medical Staff Development Unit (MSD Unit). She was a credentialed teacher with five years of service as a nursing instructor in the MSD Unit and 18 years of total service with the County.

In late 2001, Brennan was assigned to Twin Towers II as the new supervisor of the MSD Unit.[3] Before Brennan arrived, plaintiff taught seven to ten classes per month. Her teaching assignments amounted to 25 to 30 hours weekly. Shortly after Brennan was assigned to the MSD Unit, she asked plaintiff to demote. Plaintiff understood that request to mean that Brennan wanted her to accept a position as a staff nurse. A staff nurse earns less salary than a nursing instructor.

In February or March 2002, Brennan removed plaintiff from the classroom. Plaintiff was 62 years old at the time. Plaintiff testified, [I]t wasnt long before she told me I couldnt stay in the classroom because I was too old. Plaintiff described the conversation as follows: [S]he didnt want me in the classroom anymore because I was an old instructor and these were new people and young people and they needed experience. I was an old experienced instructor and I needed to get out of the classroom and let them have a chance. Plaintiff further testified that, [Brennan] told me she didnt want me to teach anymore, she wanted me out of the classroom because I was too old, [Brennan] wanted young people in the classroom, and from there I just sat all day in the office doing nothing. Brennan hired younger staff nurses to teach classes that had been previously assigned to plaintiff. According to plaintiff, once she was no longer teaching in the classroom, she was doing [n]othing, just sitting. It was not that plaintiff was being prevented from teaching the number of classes she thought she deservedshe didnt get any classes to teach. She said, they didnt let me teach anymore. Ultimately, she couldnt take sitting there doing nothing. Plaintiffs repeated testimony about doing nothing supports a reasonable inference that she was subjected to more than the mere redistribution of the workload among plaintiff and the new employees. Thus, plaintiff disputed Brennans assertion that the work was divided equally among the staff.

Plaintiffs testimony about the reduction in her teaching assignments was corroborated by a fellow nursing instructor, Joel Reta (Reta). According to Reta, he witnessed [Brennan] treating [plaintiff] in an inappropriate manner. [Brennan] had a condescending attitude towards her and also began taking classes away from her, while giving [him] and other instructors more responsibility.

In addition to plaintiffs testimony that her teaching assignments were reduced shortly after Brennan took over supervision of the MSD Unit, the Departments own records, which are not controverted, show that plaintiff taught no classes from February 14 to November 6, 2002, when she taught a spinal injury class. Those records reflect that after the November 6, 2002, class, she taught classes on December 10, 2002, January 23, March 21, April 8 and 17, May 22, July 28, and December 11, 2003. After February 2002, plaintiff was never given a teaching assignment schedule comparable to her pre-February 2002 teaching schedule. Thus, after July 1, 2003the date from which defendants claim the period of limitations beganplaintiff taught classes only on July 28 and December 11, 2003. In the middle of 2004, however, a new nursing director, Helen Johnson, directed that plaintiff be given additional teaching assignments. Plaintiff then began to teach 12 to 20 hours per weekstill not as many hours per week as she had taught before the arrival of Brennanseven to ten classes per week or about 25-30 hours weekly. When plaintiff was allowed to teach, Brennan monitored her classroom performance, but not the performance of the other three nursing instructors.

Plaintiff was the only African-American among the four instructors in the MSD Unit. Brennan made derogatory remarks to plaintiff and in plaintiffs presence about certain African-American employees. Examples of those remarks include, They dont know anything―They[re] dumb. . . . They didnt have any sense, they were dumb. According to plaintiff, Brennan made such remarks about Dr. Hart, Dr. Clark, and Stella Jackson, a nurse manager. Moreover, while observing plaintiff in the classroom, Brennan stated to Reta, that she didnt understand [plaintiff] because [plaintiff] was probably speaking Ebonics.

In mid-2002, plaintiff met with Captain Richard Barrantes, Brennans direct supervisor. Plaintiff told him that Brennan was a racist, and was taking away her teaching assignments.

In apparent response to plaintiffs complaint to Captain Barrantes, Brennan met with plaintiff on August 27, 2002, and proceeded to tell plaintiff in an agitated manner, Nobody screws me!―I will screw you back!―I [wont] forget you and Captain Barrantes can kiss my ass! Brennan then took plaintiff to meet with Thomas Flaherty, another nursing director. During that meeting, Brennan complained to Flaherty about plaintiffs teaching methods. Flaherty replied that Brennan should have told [plaintiff] what [Brennan] wanted. Plaintiff told Flaherty that Brennan couldnt tell me what she wanted because she didnt communicate with me, she didnt even talk to me, she didnt even speak to me and she treated me very cold.

On October 23, 2003, plaintiff complained to Captain Rodney Penner, another supervisor, regarding the treatment she was enduring. Captain Penner admitted that Brennan told him that [s]he [plaintiff] was concerned that she had had teaching responsibilities taken away from her. She expressed her concern and opinion that she felt that her supervisor or manager was racially prejudiced against African-American employees. She felt she was being unjustly treated because she was one of the few non-Filipino employees assigned to the [MSD] Unit. Captain Penner prepared a form regarding plaintiffs complaint. In the form, Captain Penner recorded the following: Upon Ms. Brennan assuming managerial responsibility of the unit in 2001, Brennan told [plaintiff] that she was going to have to leave the unit and demote. . . . Upon her [plaintiffs] refusal to demote and leave the unit, [plaintiff] said she became subjected to ongoing harassment and discrimination by Brennan. [Plaintiff] said that virtually all her duties and responsibilities have been stripped from her, and that she is excluded from meetings with other staff members. . . . [Plaintiff] believes that Brennan is racially prejudiced against African-American employees, as she has openly described specific (African-American) employees by name, as dumb.

Plaintiffs complaint to Captain Penner was investigated by the Intake Specialist Unit (ISU), the unit within the Department that had the responsibility for investigating claims of discrimination. The ISU was created pursuant to the Departments Policy of Equity to receive and process complaints related to that policy.

On June 8, 2004, the Department issued a letter to plaintiff that stated, This is a final acknowledgement of your complaint of October 22, 2003, wherein you complained about the actions of Ms. Betty Brennan. [] In summary you alleged that from approximately October 22, 2001 through October 2003, your supervisor, Ms. Betty Brennan, acted inappropriately toward you and treated you differently than other employees. [] An investigation and subsequent review by the Departments Equity Oversight Panel has established that your allegations are founded. Please be advised that appropriate administrative action has been taken.[4] (Italics added.) Plaintiff filed a complaint with the DFEH on July 1, 2004. She received a right to sue letter from the DFEH on July 13, 2004. ( 12960; 12965, subd. (b).)

B. Defendants Facts

Defendant submitted evidence that plaintiff never applied for any promotions; she never received a reduction in pay after additional nurse instructors were hired; Brennan divided the teaching assignments among all the instructors, including plaintiff, equally; all the instructors were monitored on a random basis; and no consideration was given to age, race, seniority, or sex.

Brennan stated in her declaration: Based upon my recollection and my review of an assignment plan sheet I wrote for the nursing instructors for the 2002/2003 time frame, I assigned approximately an equal amount of work to the four nursing instructors in my unit. [ ] . . . [] I am familiar with plaintiffs allegation that she had nothing to do but stare at the computer, at the walls, and at the phone all day. This statement is not supported by her annual performance evaluations, by my recollection, or by various other documents . . . . That testimony suggests that, contrary to plaintiffs assertion, Brennan did not take away the majority of plaintiffs teaching assignments and give them to the three other instructors who were not African-American―a denial rather than an explanation of plaintiffs claim of a reduction in assignments.

Brennan also stated in her declaration: It was my practice throughout my tenure as [supervisor of the MSD Unit] to monitor the classes taught by nursing instructors by sitting in on their classes on a random basis. I attended, at least in part, classes taught by each of the nursing instructors assigned to any unit in each of the subjects for which they were responsible. [] It was also the practice of my subordinate . . . to monitor the classes of each of the nursing instructors on a random basis. [] Neither my monitoring of the classes, nor that of [my subordinate], was done for the purpose of harassment of the instructors, but rather to improve the quality of the instruction our unit provided to nursing staff. (Italics added.) That testimony suggests that, contrary to plaintiffs assertion, Brennan did not constantly monitor plaintiffs performancea denial rather than an explanation of plaintiffs claim of excessive monitoring.

PROCEDURAL BACKGROUND

A. Complaint

Plaintiff filed a complaint in the trial court against the County asserting five causes of action under the FEHA for Race Discrimination, Harassment Based on Race, Violation of Government Code section 12940 (k), Age Discrimination, and Retaliation. The first cause of action for race discrimination, the third cause of action for violation of section 12940, subdivision (k), and the fourth cause of action for age discrimination were asserted only against the County. The second cause of action for harassment and the fifth cause of action for retaliation were asserted against both the County and Brennan.

In the complaint, plaintiff alleged, inter alia, that defendants took away virtually all her teaching assignments because of her age and race, and retaliated against her when she complained. Plaintiff also asserted other conduct by defendants in support of her FEHA claims, such as her relocation to Mens Central Jail.

B. Summary Judgment Motion

Defendants moved for summary judgment and summary adjudication as to each cause of action, raising specific contentions as to each. As to the race and age discrimination and racial harassment claims, defendants asserted that they were time-barred because they were based on acts that occurred prior to July 1, 2003. As to the claims based on race and age discrimination and retaliation, defendants asserted that plaintiff cannot establish a prima facie case. According to defendants, plaintiff did not show that she suffered an adverse employment action. As to the racial harassment claim, defendants argued that plaintiff had failed to establish that their conduct was severe and pervasive so as to be considered actionable. (See Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 465.)

As discussed above, Brennan denied she had reduced plaintiffs teaching assignments or had monitored only plaintiffs classroom performance. Defendants did not give any nondiscriminatory reason for plaintiffs reduction in teaching assignments or the alleged monitoring of plaintiff. Instead, defendants took the position there was no such reduction or monitoring of only plaintiff.

Plaintiff opposed the motions based on, inter alia, the evidence set forth above. After a hearing, the trial court issued an order granting defendants motion for summary judgment.

C. Reconsideration and Evidentiary Rulings

Plaintiff filed a motion for reconsideration based on the California Supreme Courts then-recent decision in Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028 (Yanowitz). On its own motion, the trial court determined that it should reconsider its order granting summary judgment in light of Yanowitz and set a hearing.

At the second hearing on defendants motions, the trial court sustained the Countys written objection to the admission in evidence of the June 8, 2004, letter from the Department to plaintiff informing her that her complaint to Captain Penner had been investigated and her allegations were deemed founded. That letter had been an exhibit to Captain Penners deposition. The trial court concluded that the letter was inadmissible, not as a matter of discretion, but under the legal premise that Penal Code section 832.7[5]applied. On appeal, plaintiff refers to and relies upon this June 8, 2004, letter.

We determine that the letter is part of the evidentiary record on appeal and that the trial court erred in excluding the letter from evidence. It was admissible, inter alia, as an admission by an authorized party representative (Evid. Code, 1222; see Evid. Code,  1280 [record by public employee]) and was not subject to Penal Code section 832.7. There are a number of reasons why, based on the evidence before the trial court, Penal Code section 832.7 was not applicable here. The letter was not part of or, information from, a personnel record, nor did it concern a peace officer or custodial officer. (See Pen. Code, 7, 830, 830.1, 831.5.) Penal Code section 832.7 does not appear to apply to a nurse or teacher. Moreover, it is not a record maintained pursuant to Penal Code section 832.5, as that section applies to complaints by members of the public. The reference to complaining party in Penal Code section 832.7 is governed by the term complaints by members of the public in Penal Code section 832.5.

The County also orally objected to the declaration of Reta, another nursing instructor. [County Counsel]: I do have an objection as I had filed previously with the motion for summary judgment. Before reconsideration was granted, its the same objection to the declaration of Reta because there is no personal knowledge under oath so the same―Id like to renew the objection. The Court: As to Joel Reta, anything that is hearsay, of course, the court will not consider hearsay but his own personal knowledge and observations, whatever he stated, the court does consider. The trial court did not rule on a specific objection to that portion of Retas declaration dealing with Brennans Ebonics comment, and therefore we consider that portion of the declaration to be part of the record. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1; Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 566; Laird v. Capital Cities/ABC, Inc. (1998) 68 Cal.App.4th 727, 736.)

After hearing oral argument, the trial court issued an order again granting the defendants motions for summary judgment as to all causes of action. The trial court entered judgment on its order granting summary judgment.

This appeal followed.

DISCUSSION

A. Standard of Review

We review the grant of summary judgment de novo. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19 [17 Cal.Rptr.2d 356].) We make an independent assessment of the correctness of the trial courts ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222 [38 Cal.Rptr.2d 35].) A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., 437c, subd. (p)(2).) Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 853 [107 Cal.Rptr.2d 841, 24 P.3d 493].) (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1216-1217.)

In performing our de novo review, we view the evidence in the light most favorable to plaintiffs as the losing parties. [Citation.] In this case, we liberally construe plaintiffs evidentiary submissions and strictly scrutinize defendants own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiffs favor. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) As stated in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz), an employment discrimination case, Under Californias traditional rules, we determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiffs case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law. Summary judgment is a severe remedy which is to be granted with caution. (Paper Savers, Inc. v. Nacsa (1996) 51 Cal.App.4th 1090, 1094.)

B. THE FEHA

1. Prohibited Practices

Section 12940, subdivision (a) provides in pertinent part that it is an unlawful employment practice for an employer, because of the race . . . [or] . . . age . . . of any person . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment. [T]he determination of what type of adverse treatment properly should be considered discrimination in the terms, conditions, or privileges of employment is not, by its nature, susceptible to a mathematically precise test, and the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee. Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employees job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of [Government Code] section 12940(a) . . . . (Yanowitz, supra, 36 Cal.4th at pp. 1054-1055.)

In addition, the FEHA prohibits an employer from harassing an employ on the basis of race or other factors. ( 12940, subd. (j)(1); see Cal. Code Regs., tit. 2, 7287.6, subd. (b)(1).) The FEHA alsoprovides that it can be an unlawful employment practice for any employer . . . or person to . . . discriminate against any person because the person has opposed any practices forbidden under this part or has filed a complaint, testified, or assisted in any proceeding under this part. ( 12940, subd. (h); see Cal. Code Regs., tit. 2,  7287.8, subd. (a).) Employees may establish a prima facie case of unlawful retaliation by showing that (1) they engaged in activities protected by the FEHA, (2) their employers subsequently took adverse employment action against them, and (3) there was a causal connection between the protected activity and the adverse employment action. (Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 472, 472 (Miller).)

In Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1231-1233 (Taylor), the court explained that Yanowitz, supra, 36 Cal.4th 1028, had adopted a materiality test for determining whether an employment action is adverse for purposes of the FEHA. [T]he proper standard for defining an adverse employment action is the materiality test, a standard that requires an employers adverse action to materially affect the terms and conditions of employment. (Yanowitz, supra, 36 Cal.4th at pp. 1036, 1050; see Akers v. County of San Diego [(2002)] 95 Cal.App.4th [1441,] 1454-1457.) (Ibid.) In Jones v. Lodge at Torrey Pines Partnership (2007) 147 Cal.App.4th 475, the court further explained that in determining whether a plaintiff has suffered an adverse employment action under Yanowitz, it was appropriate to consider the alleged retaliatory acts against the plaintiff collectively under a totality-of-the circumstances approach. (Id. at p. 499.)

2.Burden Shifting

California has adopted the three-stage burden shifting test established by the United States Supreme Court for trying claims of discrimination . . . based on a theory of disparate treatment. [Citations.] [] This so-called McDonnell Douglas^[[6]] test reflects the principle that direct evidence of intentional discrimination is rare and that such claims must usually be proved circumstantially. (Guz, supra, 24 Cal.4th at p. 354.) The McDonnell Douglas test is therefore used when there is not direct evidence of discrimination. (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1144.) Under the McDonnell Douglas test, the initial burden of coming forward and proving a prima facie case of discrimination is on the plaintiff. (Ibid.) Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position sought or was performing competently in the position he held, (3) he suffered an adverse employment action, and (4) some other circumstance suggests a discriminatory motive. (Id. at p. 355.) If the plaintiff establishes a prima facie case, a rebuttable presumption of discrimination arises. (Ibid.)

Upon a showing of a prima facie case by the plaintiff, the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to raise [ ] a genuine issue of fact and to justify a judgment for the [employer], that its action was taken for a legitimate, nondiscriminatory reason. [] If the employer sustains this burden, the presumption of discrimination disappears. [Citations.] The plaintiff must then have the opportunity to attack the employers proffered reasons as pretexts for discrimination, or offer other evidence of a discriminatory motive. (Guz, supra, 24 Cal.4th at pp. 355-356.) The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff. (Id. at p. 356.)

C. Statute of Limitations

Defendants contend plaintiffs claims under the FEHA for acts of discrimination, harassment, and retaliation that occurred prior to July 1, 2003more than one year prior to the July 1, 2004,[7]filing of plaintiffs administrative complaint with the DFEHare barred under the one-year limitations period in section 12960, subdivision (d).[8] Plaintiff asserts that the continuing violation doctrine[9]applies and entitles her to rely on discriminatory conduct that occurred prior to July 1, 2003, regardless of the statute of limitations. Plaintiff also argues that even if the continuing violation doctrine does not apply, actionable conduct took place within the limitations period in section 12960, subdivision (d).

We do not need to determine whether the continuing violation doctrine applies because plaintiff has submitted evidence that within the one-year limitations period actionable conduct occurred. That evidence shows, inter alia, that the alleged actionable conductreduction in plaintiffs classroom teaching assignmentsbegan in early 2002 and continued after July 1, 2003.

Story continues as Part II

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* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of DISCUSSION, parts E2 and F.

[1] Government Code section 12900 et seq. All further statutory references are to the Government Code unless otherwise stated.

[2] We state the facts in accordance with the standard of review applicable to summary judgments discussed post. Plaintiff alleges facts concerning other grievances that are not necessary to recite in light of our holding that the following facts create triable issues.

[3] See footnote 7 post. At the time Brennan was assigned as supervisor of the MSD Unit, the Departments Medical Services personnel included, in addition to physicians and mental health clinicians, approximately 600 registered nurses, licensed vocational nurses, certified nurse attendants, and registered nurse practitioners.

[4] As to the admissibility of this letter, see post.

[5] Penal Code section 832.7, subdivision (e) provides as follows: (1) The department or agency shall provide written notification to the complaining party of the disposition of the complaint within 30 days of the disposition. (2) The notification described in this subdivision shall not be conclusive or binding or admissible as evidence in any separate or subsequent action or proceeding brought before an arbitrator, court, or judge of this state or the United States.

[6]McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.

[7] There was a discrepancy in the evidence as to whether Brennan became the supervisor of the MSD Unit in 2000 or 2001, and therefore when her adverse actions against plaintiff began. But it does not matter for statute of limitations purpose because defendants contend all acts prior to July 1, 2003, are time-barred.

[8] Section 12960, subdivision (d) provides, No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred [with certain exceptions not asserted in this case]. The timely filing of an administrative complaint, and exhaustion of that remedy, is a prerequisite to maintenance of a civil action for damages under the FEHA.(Balloon v. Superior Court (1995) 39 Cal.App.4th 1116, 1120.)

[9]Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 812 [an employer is liable for actions that take place outside the limitations period if these actions are sufficiently linked to unlawful conduct within the limitations period].