McMillian v. City of Los Angeles

Filed 4/24/07 McMillian v. City of Los Angeles CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Lee Smalley Edmon, Judge. Affirmed in part; reversed in part and remanded.

Rockard J. Delgadillo, City Attorney, Claudia McGee Henry, Assistant City Attorney, and Gerald M. Sato, Deputy City Attorney, for Defendants and Appellants.

Law Offices of David Peter Cwiklo and David Peter Cwiklo for Plaintiffs and Respondents.

______________________________________________

Plaintiffs, three African-American employees of the City of Los Angeles (City) took a competitive examination for promotion to supervisor. They passed the exam and were placed, with other successful candidates, on a register of eligibles from which supervisors were to be chosen for the next two years. An initial round of interviews was held and four people, not including plaintiffs, were promoted. Thereafter, although further supervisor positions had opened, the City did not conduct additional interviews from the register of eligibles. Instead, the City chose to lower the requirements to sit for the exam, and offered a second exam with the reduced requirements. The Citys decision to reduce the requirements and offer the second examination was apparently made with the intent of enabling one particular employee, Kent Carlson, to sit for the exam and qualify for promotion. Carlson was one of several employees who took the second exam, and whose scores on the second exam were higher than plaintiffs scores on the first exam.

Thereafter, when the City conducted interviews for further promotions, it took candidates from both registers of eligibles, based on the applicants scores. Although all three plaintiffs were eventually promoted, they were promoted after Carlson and others who had taken only the second test. Believing that the second exam was instituted to favor Carlson because he is White, plaintiffs brought suit claiming racial discrimination in the delay of their promotions. Subsequently, one of the three plaintiffs, Lloyd McMillian, was terminated from his supervisory position shortly before the end of his probationary period. Plaintiff McMillian amended his complaint to allege that his termination was in retaliation for his pursuit of the racial discrimination action. The case proceeded to trial and the jury returned a verdict in favor of all plaintiffs on all causes of action. On appeal, the City contends the evidence is insufficient to support the verdicts. We agree in part. While there is substantial evidence to support the conclusion that the second exam was instituted to favor Carlson, there is insufficient evidence to support the conclusion that the City favored Carlson because of his race. We therefore reverse the judgment insofar as it is based on plaintiffs cause of action for race discrimination. However, we conclude there is sufficient evidence to support the judgment in favor of plaintiff McMillian on his retaliation cause of action. As it cannot be determined which damages were awarded to plaintiff McMillian for race discrimination and which were awarded for retaliation, we remand for a new trial on damages to be awarded plaintiff McMillian on his cause of action for retaliation.

FACTUAL^[1]AND PROCEDURAL BACKGROUND

The duties of, and prerequisites for, City positions are set forth by the Civil Service Commissioners in class specifications. If a City bureau wants to change a class specification, it must submit a request to the Classification Division (Classification) of the Department of Personnel (Personnel). Classification must review the changes and then make a recommendation to the Civil Service Commissioners as to whether the changes should be adopted.

Promotions in the City are by competitive examination, conducted by Personnel, not the individual bureaus. When a bureau seeks an examination, it submits a request to Personnel. If approved, the exam is announced by means of a job bulletin, which informs prospective applicants of the duties of the job and the minimum requirements in order to qualify for the exam. While minor changes to the description and requirements set forth in the job bulletin can be made at the request of the bureau, any major changes that would implicate the actual class specification must be approved by the Civil Service Commissioners.

After the job bulletin is approved and issued, interested employees may submit applications. Personnel then screens the applications to make certain the candidates qualify. An applicant can appeal an adverse determination, but Personnel is the ultimate arbiter of eligibility.

Once the exam is conducted, those who have passed the exam are listed on a register of eligibles. Candidates are ranked on the register of eligibles by their exam score; candidates having the same score are listed randomly in the same score band. A register of eligibles is valid for two years. When, during those two years, the bureau wishes to interview candidates for open positions, it submits a certification request form to Personnel, indicating the number of positions it seeks to fill. The number of names that are to be certified by Personnel from the register of eligibles is determined by two rules. First, Personnel must certify all candidates from the top three available scores. Second, if the number of candidates from the top three score bands is not more than the number of available positions plus five, Personnel must certify candidates from the next-ranked scores until it has certified at least that many. Personnel then creates a certification list of those candidates, and transmits it to the bureau. The life of a certification list is only 60 days. Candidates from the certification list are then invited to interview for the open positions, and the bureau selects the candidates it wishes to promote.

The facts underlying this dispute began on March 20, 2001, when the Bureau of Sanitation (Sanitation) submitted a request to conduct an examination for Wastewater Collection Supervisor (WC Supervisor). In its request for examination, Sanitation explained that it had no current vacancies in the position, but anticipated five vacancies over the next two years. The most recent eligible list for the position had expired, so Sanitation requested a new exam. Sanitation requested minor changes to the language of the previous job bulletin,^[2]but specifically indicated, There are no changes to the Class Specifications.

On August 24, 2001, a job bulletin was issued for the position of WC Supervisor. As set forth in the bulletin, an applicant must have either two years of full-time experience as a Wastewater Collection Worker (WC Worker) or two years in a similar class plus line supervisory experience. WC Workers need not have line supervisory experience to apply, but that experience was required for applicants from any other classification. The examination for WC Supervisor consisted of a written exam, to be given October 20, 2001, and an oral exam to follow.^[3] Plaintiffs McMillian, Alan Bonner, and Dwayne Allen were all WC Workers employed by the City, with many years of experience. They all submitted applications for the WC Supervisor exam, and were permitted to take it.

Carlson, who is White,^[4]also submitted an application for the WC Supervisor exam. However, Carlson was not a WC Worker, but a machinist. As such, Carlson could not sit for the exam unless he had line supervisory experience. Personnel reviewed his application and determined that Carlson was not qualified due to his lack of line supervisory experience. Carlson was informed that he was not qualified, and told not to take the test, the night before the written exam.

Carlson had friends in high places. He had been a shop steward for the workers union since 1989, and, at one time, had been elected Chairman of the Board of Trustees of the union. He was also Labor Chair for the Wastewater Labor Management Committee. In these capacities, he had interacted frequently with Sanitation management. He had become friendly with James Langley, who was, at the time of the WC Supervisor exam, the Assistant Director of Sanitation. He also knew Barry Berggren, the Division Manager. Frustrated that he was not permitted to sit for the exam,^[5]he complained to his union, Assistant Director Langley, and Division Manager Berggren. Carlson testified that, when he was disqualified from the WC Supervisor exam, he made a lot of noise.

Carlsons noise was heard. Division Manager Berggren created a new position for Carlson, shop foreman, which would presumably provide him with the necessary line supervisory experience. Assistant Director Langley scheduled a meeting, on January 30, 2002, in response to Carlsons complaints, and the complaints of the union on his behalf.^[6] At the meeting, Assistant Director Langley and Division Manager Berggren were present, along with representatives from Personnel, and the unions general manager. At that meeting, the participants discussed the alleged unfair administration of the examination, and how to deal with the problem.^[7] The participants at the meeting decided that they needed to change the minimum requirements for WC Supervisor so as to generate a broader candidate pool. At this point, the written exam had taken place, but the oral portion had not yet occurred. The meeting participants concluded that two alternatives existed: (1) the City could halt the examination immediately, and start all over again with revised class specifications; or (2) the City could continue with the first exam, and determine later whether to conduct a second exam. Division Manager Berggren argued for the second course of action. He indicated, at the meeting, that stopping the first test would be unfair to the candidates who were in the middle of the process. Division Manager Berggren believed that stopping the process for a second examination would have been unfair, but that it would not be unfair to make changes and implement them on a second examination.^[8]Division Manager Berggren also added that he was concerned that a second examination would expose the City to a lawsuit for racial discrimination.^[9]The meetings participants agreed not to stop the first exam. Instead, they agreed to finish the exam, conduct interviews, and select candidates. Should Sanitation then determine that additional candidates were required or that there should be changes to the class specifications, Sanitation would request the changes and Personnel would seek approval from the Civil Service Commissioners. A representative from Personnel commented that Sanitation would have to deal with the fall-out, meaning whatever grievances or lawsuits would follow. Sanitation agreed that it would do so, because changing the class specifications was necessary in order to obtain the best possible supervisors.

The first examination continued with oral portion on February 11-13, 2002. On March 12, 2002, Personnel completed the register of eligibles, which indicated 27 individuals had successfully completed the exam. Their scores were separated into 14 different bands. Sanitation made a request for a certification list sufficient to fill four vacancies.^[10] In order to certify a list with at least nine employees, Personnel certified all names in the top seven ranks. Of the ten individuals considered for the four WC Supervisor positions, three were White and seven were African-American, including the three plaintiffs in this case.^[11]

Interviews were conducted by three Wastewater Collection Managers (WC Managers), the rank above WC Supervisor. WC Managers Randall Riley, Ameer Faquir, and Ernest Turner, Jr. conducted the interviews. The candidates were given numerical scores by the three interviewers; a score of 35 was considered passing. Plaintiff Allen passed; the other two plaintiffs did not pass the interview. The top four scores were earned by three African-American candidates and one White candidate. WC Managers Riley, Faquir and Turner unanimously selected those four for promotion. The next day, however, WC Manager Faquir was informed by WC Manager Turner that one of the African‑American candidates they had selected, Ollie Veasey, would not be promoted and that a White candidate, Robert McQuay, would be promoted in his place. It appears that after WC Manager Riley had a conversation with Division Manager Berggren and Assistant Director Langley, it was decided to promote McQuay over Veasey. Apparently, Veasey had suffered a prior suspension for attendance problems, and Veaseys score was changed because of it. McQuay had also suffered a prior suspension, for fighting on the job, and WC Manager Faquir questioned why the African-American candidates disciplinary history was considered but not the White candidates.

With the exception, however, of the replacement of Veasey with McQuay, plaintiffs raise no challenge to the results of the first interviews. In other words, they do not challenge their own scores on this interview.

Plaintiffs took the position, however, that after the first set of promotions occurred, they were next in line for promotion. This is a mischaracterization of the promotions process. While it is true that plaintiff McMillian was the candidate remaining with the next highest exam score, he was not guaranteed the next promotion. He did not have the next highest interview score; indeed, he did not even pass the interview. In any event, even assuming no second exam was conducted, Sanitations next promotion would require a new certification list and another round of interviews; no promotions were guaranteed.

Based on the decision made at the January 30, 2002 meeting, Personnel expected Sanitation to make a determination as to the necessity of a second test based on the quality of the candidates it had interviewed after the first test. Sanitation did not make such a determination. The WC Managers who had actually conducted the candidate interviews were not asked whether the remainder of the pool would satisfy Sanitations need for WC Supervisors. Instead, Sanitation requested a second examination based on its earlier determination that the first examination did not cast a wide enough net. On April 30, 2002, Sanitation requested a second exam from Personnel. In her written request, the Director of Sanitation explained, We discussed this exam on January 30, 2002, and in that meeting, we expressed concern that the recent administration of the [WC] Supervisor exam would not provide an appropriate candidate pool to meet our current and future employment needs. We noted that the minimum qualifications did not allow several classifications to qualify to take the exam. The [WC] Supervisor exam was promulgated on March 12, 2002, with a total applicant pool of 27 candidates. This list was certified and four appointments were made. [Sanitation] has five additional vacancies in this class, and intends to fill these vacancies from a new list subsequent to the additional administration of this exam. This time, Sanitation requested the job bulletin be amended to delete the line supervisory experience requirement, and to specifically include several other classifications of employee that had previously been ineligible to sit for the WC Supervisor exam.

On July 12, 2002, a job bulletin was issued for the second examination, to be held on September 7, 2002. The changes sought by Sanitation had been approved by the Civil Service Commissioners and were incorporated in the new job bulletin.

Rumors started to spread that the second examination was given solely for Carlson. WC Manager Faquir, who believed having a second test so soon after the first test was highly unusual, questioned Division Manager Berggren as to whether the second exam was indeed being given to benefit Carlson. Division Manager Berggren denied the claim, and instead told WC Manager Faquir that Personnel had for some reason decided to conduct a second exam to add additional candidates to the candidate pool. Division Manager Berggren specifically denied that the decision to have a second exam had anything to do with race. WC Manager Faquir brought the same questions to Assistant Director Langley, who also denied that the second test was given for Carlson or for any racially discriminatory reasons. Assistant Director Langley told WC Manager Faquir that Personnel had decided to give the second test. Assistant Director Langley conceded that perhaps they had not done a good job communicating to the WC Workers why a second examination was given, and promised to put something out that would explain as to why we gave the second examination. WC Manager Faquir agreed that this would help because we really hadnt done a good job of communicating a good need for a second examination, and if there is nothing to this, then it really should be communicated as such. Despite Assistant Director Langleys promise to issue an explanation, he never did so.

Before the second examination was given, Division Manager Berggren contacted plaintiff Bonner and suggested he take the second test. Berggren informed plaintiff Bonner that Carlson and others would be taking the second test, and that if they scored higher on the second test, they would move ahead of plaintiff Bonner on the register of eligibles. Division Manager Berggren also informed plaintiff Bonner that the second exam was going to be easier than the first, and told him to take the second test so that he would score higher. Plaintiff Bonner refused to take the second test; he believed it was a blatant attempt to enable Carlson to become a WC Supervisor. Division Manager Berggren had a similar conversation with plaintiff Allen, and successfully persuaded him to take the second test. Plaintiff McMillian chose not to take the second exam.

Of the 22 candidates who received passing scores on the second exam, 10 had taken the first exam and 12 were new. The test did appear to be easier than the first test; eight of the ten repeat test-takers improved their scores. Moreover, thirteen test-takers scored 86 or higher on the second test, while only eight achieved that score on the first test. The top scorer on the second test was Carlson.^[12] Anthony Winston, an African-American who had taken the first test, had the second-highest score on the second test.

When Sanitation then sought a certification list, Personnel provided a list of all candidates who had scored 86 or higher on either test. Of the 12 candidates on the certification list, three were White, two were Hispanic, and seven were African‑American. Plaintiffs Allen and McMillian were among the candidates interviewed; plaintiff Bonner was not; his score on the first test was no longer high enough to warrant an interview.^[13]

Interviews were held in March 2003. This time, the interview panel consisted of Assistant Director Langley, Division Manager Berggren, and WC Manager Faquir. This was the only set of interviews for WC Supervisor in which Assistant Director Langley and Division Manager Berggren participated. Carlson received the highest score on the interview, and was promoted to manager. Three more candidates were also promoted; two were African-American and one was Hispanic. Both plaintiff Allen and plaintiff McMillian failed the interview. WC Manager Faquir testified that the promotions in this round were based solely on the candidates scores. Plaintiffs do not dispute any of the scores given in this round of interviews; their dispute is not based on the selection of candidates, but the fact that a second test had been given.^[14]

After Carlson had been promoted ahead of them, the plaintiffs complained. On May 23, 2003, plaintiff McMillian wrote a letter to Division Manager Berggren. Plaintiff McMillian believed Sanitation had a history of overlooking qualified candidates for promotion and most of the time the candidates that are overlooked are African Americans. Plaintiff McMillians letter indicated his belief that the second exam was set up for Carlson, and that this was unjust and discriminatory. Plaintiff McMillian asked how Carlson can go from not being qualified to even take the test to being one of the new supervisors when plaintiff McMillian had spent years preparing to work his way up to WC Supervisor. Division Manager Berggren did not reply. By this time, McMillian had chosen to transfer out of Wastewater Collection into the Solid Waste Department. Plaintiffs Bonner and Allen also wrote letters to Division Manager Berggren; these, too, went unanswered.

Between May 23, 2003 and June 3, 2003, all three plaintiffs filed complaints with the Department of Fair Employment and Housing (DFEH). A third round of WC Supervisor interviews was conducted at the end of June 2003. Plaintiffs Bonner and Allen were successful and were appointed WC Supervisors.^[15] Plaintiff McMillian was not interviewed; he apparently failed to receive an invitation to do so. Plaintiffs Bonner and Allen successfully completed their probationary periods as supervisors.

On July 11, 2003, plaintiffs filed this action, asserting wrongful failure to promote based on race discrimination.^[16] The named defendants were the City and Division Manager Berggren.

A fourth round of interviews was conducted in October 2003. Plaintiff McMillian was successful and was appointed WC Supervisor on October 5, 2003. Plaintiff McMillian was assigned to work as a supervisor in a new night‑shift position. Plaintiff McMillian was working directly under WC Manager Turner. Plaintiff McMillian had some early difficulty with the position; and received an unfavorable evaluation after his first two months. Subsequently, he began to improve. In January 2004, WC Manager Turner confided in WC Manager Faquir that Division Manager Berggren had wanted him to get rid of plaintiff McMillian. After WC Manager Turner reviewed the data from plaintiff McMillians division, he concluded that plaintiff McMillian was starting to turn things around, and was not doing that poorly.

Another division needed a supervisor; plaintiff McMillian was asked if he wanted to transfer to the other division. Plaintiff McMillian declined; it was one of the most difficult divisions in which to work.^[17]WC Manager Turner wanted to leave plaintiff McMillian where he was and put someone more experienced in the difficult division. However, Division Manager Berggren met with WC Manager Turner and the decision was made to transfer plaintiff McMillian to the difficult division. The decision was made shortly after Division Manager Berggren had been deposed in this action. At this point, plaintiff McMillian had only six weeks left in his probation. Plaintiff McMillian was concerned that the difficult division needed someone with more experience; WC Manager Turner told him that the reason he was being transferred was because he was doing so well. At his deposition, WC Manager Turner testified that he had transferred plaintiff McMillian because he felt as though [McMillian] had made the transition from worker to supervisor and was able to handle it.

The division to which plaintiff McMillian had been transferred was in bad shape; it had a backlog of thousands of work orders. Plaintiff McMillian tried, but was unable to keep up with the work. About a month later, a few days before his probationary period was to be completed, WC Manager Turner terminated plaintiff McMillians probation. WC Manager Turners memorandum setting forth the basis for the termination of plaintiff McMillians probation stated that plaintiff McMillian has not responded in a manner that would show any improvement in his performance or that he was making the transition from worker to supervisor. He testified that plaintiff McMillian never totally stepped across the line to make the transition from worker to supervisor. In contrast, WC Manager Turner had told WC Manager Faquir that it had not been his decision to terminate plaintiff McMillians probation. He said, Its out of my hands. [Berggren] wants me to get rid of [McMillian]. You know how that man is.

After he was transferred to the difficult division, and again after his probation was terminated, plaintiff McMillian filed additional complaints with the DFEH. He requested, and received, right-to-sue letters. Plaintiff McMillian then filed an ex parte application for leave to file a first amended complaint, adding allegations of retaliation against the City, Division Manager Berggren, and Assistant Director Langley. Plaintiff McMillian did not personally serve the defendants with copies of his latest DFEH complaints or right-to-sue letters, but they were attached to his ex parte application, which was granted. Leave to amend was also granted, and the first amended complaint was served on the defendants.

The case proceeded to trial. As to their cause of action for failure to promote based on race discrimination, plaintiffs based their challenge on the fact that the second examination was given to benefit Carlson. However, they presented little evidence that the City had intended to benefit Carlson because of his race. Indeed, plaintiff Bonner initially testified that he believed Carlson had been given special treatment because he had been union president and was friends with the Mayor. Only after an overnight recess did plaintiff Bonner take the position that the second test was discriminatory because most of the people left in line for promotion from the first test were African‑American. Plaintiff Allen similarly testified that it was unfair that the rules were changed in order to promote Carlson. He summed up his understanding of the Citys reasons as follows, I believe the fact that [Carlson is] Caucasian, [Carlson] is friends with upper management, friends with the union and thats why I believe that the qualifications were changed to benefit [Carlson] and to hire a non-African-American supervisor.

The jury returned verdicts in favor of all plaintiffs and against all defendants. On plaintiff Bonners cause of action for failure to promote based on race discrimination, the jury awarded $153,413.60, consisting of $3413.60 in past economic damages and $150,000 in past non-economic damages. On plaintiff Allens cause of action for failure to promote based on race discrimination, the jury awarded $203,413.60, consisting of $3413.60 in past economic damages and $200,000 in past non-economic damages. The jury found in favor of plaintiff McMillian on both his failure to promote and his retaliation causes of action; the amount of damages was applicable to both causes of action. Plaintiff McMillian was awarded $1,011,774.40, consisting of $10,920 in past economic damages, $300,000 in past non-economic damages, $90,854.40 in future economic damages, and $610,000 in future non-economic damages. Judgment was entered accordingly. Plaintiffs were awarded costs and attorneys fees. Defendants motions for new trial and judgment notwithstanding the verdict were denied. Defendants filed a timely notice of appeal.

ISSUES ON APPEAL

Defendants contend: (1) the evidence is insufficient to support the verdict on plaintiffs cause of action for failure to promote for race discrimination; (2) the evidence is insufficient to support the verdict on plaintiff McMillians cause of action for retaliation; (3) plaintiff McMillians retaliation cause of action cannot proceed due to his failure to serve defendants with his DFEH complaints alleging retaliation.

1. Standard of Review

When considering a claim of insufficient evidence on appeal, we do not reweigh the evidence, but rather determine whether, after resolving all conflicts favorably to the prevailing party, and according the prevailing party the benefit of all reasonable inferences, there is substantial evidence to support the judgment. (Scottv. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465.) In reviewing the evidence on appeal, all conflicts must be resolved in favor of the judgment, and all legitimate and reasonable inferences indulged in to uphold the judgment if possible. When a judgment is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the judgment. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. (Western States Petroleum Assn.v. Superior Court (1995) 9 Cal.4th 559, 571; Crawfordv. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.)

2. Plaintiffs Presented Insufficient Evidence of Race Discrimination

The jury was instructed that it had to find that each plaintiffs race was a motivating reason for the refusal to promote them. (CACI No. 2500.) Defendants argue the evidence is insufficient to support the jurys implied finding that this was true. We agree.

It is important to recognize that plaintiffs did not introduce any evidence that Carlson was not, in fact, qualified to be a WC Supervisor and did not, in fact, score higher than they did on the examination and in the interviews.^[18] They do not, in short, challenge as discriminatory any part of the second examination and the interviews which followed except for the fact that the second examination occurred.

There was sufficient evidence to support the jurys implicit finding that the second WC Supervisor exam was given in order to enable Carlson to promote to that position. When he was prevented from taking the first test due to a lack of line supervisory experience, Carlson complained to his union, Division Manager Berggren and Assistant Director Langley. Assistant Director Langley then called a meeting where it was determined that the requirements for WC Supervisor would be changed in a manner that would qualify Carlson. In the meantime, a new position was created for Carlson so he could obtain supervisory experience. Personnel had expected Sanitation to review the candidates who had qualified from the first examination, and only request a second examination if there were insufficient candidates to satisfy Sanitations needs. Sanitation did not make that determination, and instead requested the second examination on the basis that the first examination could not have satisfied its needs because it had not been open to sufficient classifications. In other words, the evidence supports the conclusion that Sanitation decided that a second examination was immediately necessary because Carlson had not qualified for the first exam.

While this conduct on the part of Sanitation appears to violate the spirit, if not the letter, of the Civil Service rules providing for competitive promotion (particularly the requirement that a register of eligibles last for two years),^[19]it is not a sufficient basis for plaintiffs to recover in this action unless Sanitation conducted the second exam to favor Carlson because of his race, as opposed to his connections with the union, Division Manager Berggren and Assistant Director Langley. On this point, all evidence is speculation or conjecture. Indeed, all objective facts point to the conclusion that Sanitations decision was not race-based. Plaintiffs suggest that, after the first set of promotions, the remaining candidates were largely African-American, and that the second examination was conducted in order to prevent the hiring of another African‑American supervisor. It is impossible to conclude Sanitation chose to conduct a second examination because the remaining candidates on the register of eligibles from the first list were largely African-American in light of the undisputed facts that: (1) African‑American candidates who had taken the first examination were actively encouraged to take the second examination; (2) several African-American candidates who took both exams improved their scores; (3) a number of African-American candidates who had not taken the first examination were benefited by the giving of the second examination, as it enabled them to compete for the promotion; and (4) two of the four promotions made immediately following the second examination were awarded to African-American candidates.

Plaintiffs rely on two facts from which they suggest a discriminatory intent can be inferred. First, they note that the results of the first set of interviews were changed to favor a White candidate over an African-American candidate who had initially earned a higher score. While we agree that this change in results is suspicious, and may support a claim of discrimination brought by the passed-over African-American candidate, it is wholly speculative to conclude that this one act of possible racial discrimination establishes a discriminatory motive in the giving of the second examination. This is particularly true given that plaintiffs have presented no evidence that the second examination was not given and scored fairly. Second, plaintiffs rely on Division Manager Berggrens statements at the January 2002 meeting to the effect that stopping the first examination and giving a second one might expose the City to lawsuits for racial discrimination. Preliminarily, we note that the City did not stop the first examination, but instead completed the exam and hired four candidates directly from it. In any event, Division Manager Berggrens expressed concerns indicated only a fear that the Citys action might be perceived as discriminatory, not an admission that it was.

In short, there is substantial evidence that Sanitation chose to give the second exam in order to enable Carlson to promote. However, all of the evidence indicates that this decision was made for reasons other than Carlsons race or the race of the individuals remaining on the register of eligibles at the time the decision was made. As such, the judgment in favor of plaintiffs on their cause of action for failure to promote for race discrimination must be reversed.

3. Plaintiff McMillian Presented Sufficient Evidence of Retaliation

Defendants next argue that, as there was no discrimination, plaintiff McMillians cause of action alleging retaliation for his pursuit of his discrimination claim must also fall. To prevail on a cause of action for retaliation for complaining about discrimination, a plaintiff need not prove that the discrimination occurred; the plaintiff simply must have had a reasonable, good faith belief that discrimination had taken place. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 477.) Here, the evidence is more than sufficient. The second test was given to favor Carlson, a White employee. Plaintiff McMillian believed that Carlson was favored because he was White. This belief was reasonable. Indeed, Division Manager Berggren expressed concerns at the January 30, 2002 meeting that favoring Carlson might subject the City to race discrimination actions; obviously, Division Manager Berggren realized that the Citys action might reasonably be perceived as discriminatory. Moreover, the City did nothing to explain to employees that its decision was not discriminatory. When plaintiff McMillian wrote a letter to Division Manager Berggren alleging discrimination, Division Manager Berggren did not reply. When WC Manager Faquir told Assistant Director Langley that employees perceived the giving of the second test to be discriminatory, Assistant Director Langley conceded that perhaps they had not done a good job communicating to the WC Workers why a second examination was given. Assistant Director Langley promised to issue an explanation for the second examination, but failed to do so, leaving the allegations of race discrimination unanswered. We agree with defendants that, in light of all of the evidence presented at trial, there is insufficient evidence that the giving of the second examination was discriminatory. However, plaintiff McMillian was not aware of all of the evidence when he complained that the giving of the second examination was discriminatory; and, although the City was aware the examination was perceived that way, it did nothing to alter that perception. We therefore conclude the evidence was sufficient to support the conclusion plaintiff McMillian had a reasonable, good faith belief that he had been discriminated against.

Defendants briefly argue that there is no evidence plaintiff McMillian was terminated in retaliation for pursuing his discrimination case. We disagree. According to WC Manager Faquir, WC Manager Turner had been told by Division Manager Berggren to get rid of plaintiff McMillian, even though plaintiff McMillians work had improved. While WC Manager Turner testified at trial that he decided to terminate plaintiff McMillians probation because plaintiff McMillian had never made the transition from worker to supervisor, this conclusion that was belied by his deposition testimony that he had transferred plaintiff McMillian because plaintiff McMillian had made the transition from worker to supervisor and could handle the more difficult job. In short, plaintiff McMillian introduced sufficient evidence that the reason given for the termination of his probation was pretextual and that Division Manager Berggren had wanted him out of the position of WC Supervisor even though he could have handled the job if he had not been transferred. The fact that Division Manager Berggren arranged for plaintiff McMillians transfer shortly after Division Manager Berggren had been deposed in this action is a sufficient basis for the jury to infer that the transfer, and ultimate termination, were retaliatory.

Finally, defendants argue that the judgment on the retaliation cause of action must be reversed to the extent it is against Assistant Director Langley. We agree. Plaintiff McMillian states, with no citation to the record, that the decision to terminate his probation was approved by Langley. Assistant Director Langley did not sign the notice terminating plaintiff McMillians probation, and there is no evidence he was involved in the decision in any way. The judgment against Assistant Director Langley must therefore be reversed.

4. Plaintiff McMillians Failure to Serve His Retaliation DFEH Complaints
on Defendants is Not a Jurisdictional Bar to his Recovery.

Plaintiff McMillian did not personally or by certified mail serve the defendants with his retaliation DFEH complaints.^[20] Defendants argue this constitutes a failure to exhaust plaintiff McMillians administrative remedies which prevents him from recovering in court. We disagree.

Service requirements of DFEH complaints are set forth in Government Code section 12962. That section provides, in pertinent part, as follows: (a) The department shall cause any verified complaint filed for investigation under the provisions of this part to be served, either personally or by certified mail with return receipt requested, upon the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of. [] (b) Notwithstanding subdivision (a), where a person claiming to be aggrieved by an alleged unlawful practice hires or retains private counsel for purposes of representation of the claim, the private counsel, and not the department, shall cause the verified complaint filed under the provisions of this part to be served, either personally or by certified mail with return receipt requested, upon the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice.

This section was recently interpreted in Wasti v. Superior Court (2006) 140 Cal.App.4th 667. The court concluded that both subdivisions regarding service apply only when the DFEH complaint is filed for investigation, that is, not when the plaintiff seeks only a right-to-sue letter. The court explained, Of what possible jurisdictional value would be service of a form document which, on its face, asks the agency not to act? We will not distort the ordinary, everyday meaning of the statute to create an absurdity. (Id. at p. 673.) Concluding that, [a]dding an additional jurisdictional service requirement of a defunct administrative complaint would impose a trap for the unwary, the court held that a plaintiff whose DFEH complaint was not filed for DFEH investigation was not required to serve the defendant.^[21] (Ibid.)

In this case, plaintiff McMillian sought only right-to-sue letters, not a DFEH investigation. As such, he was not required to personally serve defendants with his DFEH retaliation complaints, and his failure to do so presents no bar to his recovery.

DISPOSITION

The judgment in favor of plaintiffs Bonner and Allen is reversed. The judgment against defendant Assistant Director Langley is reversed. The judgment in favor of plaintiff McMillian is reversed to the extent it is based on his cause of action for failure to promote due to race discrimination. As the record does not disclose which portion of the damages awarded to plaintiff McMillian was based on the failure to promote cause of action, on which he cannot recover, as opposed to the retaliation cause of action, on which he can, we remand for a new trial on damages on plaintiff McMillians retaliation cause of action. The parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

We Concur:

KLEIN, P. J.

KITCHING, J.

Publication Courtesy of California attorney referral.

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^[1] As the City appeals from a judgment after jury trial, the facts are stated in the light most favorable to the judgment. We note that the statements of facts in both parties briefs are, to some degree, improper. The City clearly sets forth the evidence favorable to its view of the case, ignoring the plaintiffs evidence to the contrary. For example, the City states that, at one point, McMillian did not appear for an interview for the position of supervisor, and that he did not acknowledge this fact, much less offer an explanation for not appearing. McMillian testified, however, that he had not been invited to interview at that time. Plaintiffs, for their part, rely on evidence that was not before the jury. For example, they note that Carlson told a City Clerk he knew who was going to be promoted from [the second exam] before the results were ever announced! Yet all of the testimony suggesting that Carlson had told the clerk this information was stricken.

^[2] For example, Sanitation indicated that the word manhole should be replaced with maintenance hole.

^[3] The oral examination is to be distinguished from the candidate interviews which would be conducted by Sanitation upon receipt of a certification list.

^[4] Carlson testified that his mother is Mexican and his father Swedish; he considers himself Hispanic. Plaintiffs relied on Carlsons birth certificate, which indicates both his parents are White.

^[5] Carlson actually sat for the written examination despite having been told he was ineligible. He was not permitted to take the oral portion of the exam.

^[6] Although Assistant Director Langley testified that his decision to call the meeting was not at all based on Carlsons complaint, Division Manager Berggren testified that the meeting was called because of Carlson.

^[7] The City also submitted evidence that Sanitation had, in fact, attempted to modify the job requirements before the WC Supervisor exam had been announced, but Personnel had somehow misplaced the requested changes and they had not been implemented. In particular, the City relied on an email from Division Manager Berggren which purported to request an expansion of the requirements for WC Supervisor to replace the line supervisory experience requirement with one of crew leader experience. (We note that Carlson had been a crew leader.) The email is somewhat suspect; it indicates that Division Manager Berggren requested this change on March 20, 2001, the exact same day the Director of Sanitation requested the exam stating, There are no changes to the Class Specifications.

^[8] Division Manager Berggren drew this distinction because, in his mind, once appointments were made from the first list, the process would be considered concluded. The two-year lifespan of a register of eligibles was apparently disregarded.

^[9] Division Manager Berggren testified to this at his deposition. Later in his deposition, he changed his testimony and indicated that he feared only some type of lawsuit without specifying racial discrimination. He did agree at trial, though, that the thought of a racial discrimination suit had entered his head. Indeed, Division Manager Berggren explained, One of my concerns in the second exam is Kent Carlson had been very vocal about not qualifying for the exam. If there was a second test given that people would look at this and say, Oh, there was favoritism toward [Carlson], and I expected that that could possibly lead to some type of discrimination allegations.

^[10] Sanitation had six vacancies at the time, but was only approved to fill four due to a hiring freeze. Plaintiffs did not introduce any evidence indicating Sanitation had approval to fill any more than four vacancies at this time.

^[11] The top three scorers were Robert McQuay, who is White; Samuel Dennis, who is African-American; and Nancy Loll, who is White. Beneath them, tied at the fourth band, were Kirk Marzett (African-American) and plaintiff McMillian. Beneath them, tied at the fifth band, were Wayne Winston (African-American) and plaintiff Allen. Beneath them, in the sixth band, was Philip Ott, who withdrew from consideration. Beneath them, tied in the seventh band, were Terry Dickinson (White), Kenneth Kolb (who also withdrew), Ollie Veasey (African-American) and plaintiff Bonner.

^[12] When Carlson sat for the written part of the first test, he had also earned a higher mark than any of the three plaintiffs.

^[13] On April 4, 2003, plaintiff Bonner wrote a letter asking why he was not granted an interview. He received a response explaining that his score was not reachable when considering the results for both tests.

^[14] When plaintiff Allen was questioned as to whether he disputed the promotions of the two African-American candidates at this time, he explained, They were promoted from that second made up test. . . . The list that we should have been promoting from was the list that I was number one on. [] I had a problem with those selections, first of all, because I was not one of those selections and that test should have never been given period. It should have never been given. Im watching people get jobs on a list that should never have been. We should have been promoted from the list that I was on. That was the list that we should have been promoting from.

^[15] Plaintiff Bonner initially testified that he had been offered the WC Supervisor position out of the blue, without an interview. He was adamant that he had been called in from the field and simply offered the promotion. When confronted with his deposition testimony, he admitted that he had been interviewed for the job earlier in the week, prior to receiving the offer.

^[16] Plaintiffs alleged additional causes of action which did not proceed to trial.

^[17] This was not just plaintiff McMillians opinion. WC Manager Faquir testified that it is far more complicated and the second-toughest division they had.

^[18] Plaintiffs repeatedly state that Carlson was not qualified to sit for the first examination. It is undisputed that Carlson could not sit for the first examination because he lacked line supervisory experience. Plaintiffs have introduced no evidence that line supervisory experience was, in fact, a necessary prerequisite for the position of WC Supervisor. That the Civil Service Commissioners approved the modification to the class specification eliminating that requirement suggests that it was not. Plaintiffs also suggest that Carlsons first-ranked finish on the exam was a predetermined result, brought about by the Sanitation managers who took part in formulating the questions for the second exam. Again, plaintiffs introduced no evidence that anything nefarious took place; all evidence indicates Carlson simply outscored everyone else.

^[19] We do not dispute the idea that circumstances exist in which a City bureau can request a second examination before the register of eligibles from the first examination has expired or been exhausted. However, it also appears that the process was not meant to allow requests for re-examination every time a bureau wants to promote a candidate who had not taken or been successful on the most recent examination.

^[20] It is clear, however, that defendants received notice of these administrative filings, as they were attached to plaintiff McMillians ex parte motion for leave to file a first amended complaint.

^[21] Defendants contend that the Wasti court allowed the plaintiff to proceed despite not having served her complaint because she had been unrepresented by counsel and that, therefore, any duty to serve the complaint would fall on the DFEH itself, not plaintiff. The Wasti court clearly stated that this was a separate, alternative basis for its conclusion. (Wasti v. Superior Court, supra, 140 Cal.App.4th at p. 674.)