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

Story continued from Part I

Our courts frequently turn to federal authorities interpreting Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) (Title VII) for assistance in interpreting the FEHA and its prohibition against sexual harassment. (See Aguilar v. Avis Rent A Car System, Inc. [(1999)] 21 Cal.4th [121,] 129130; Beyda v. City of Los Angeles [(1998)] 65 Cal.App.4th [511,] 517.) (Miller, supra, 36 Cal.4th at p. 463; see Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 812 (Richards).) In National Railroad Passenger Corporation v. Morgan (2002) 536 U.S. 101 (Morgan), which arose under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.  2000e et seq., the United States Supreme Court held that an act within the limitations period in furtherance of racial discrimination or retaliation is a discrete act that is not barred by the statute of limitations, and that evidence of conduct outside the limitations period is admissible as relevant background evidence to show, inter alia, a prohibited motivation for the discrete act. (Morgan, supra, 536 U.S. at p. 112.) According to the court in Morgan, discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred. The existence of past acts and the employees prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim. (Id. at p. 413, italics added.)

[F]ollowing the guidance of federal law (Miller, supra, 36 Cal.4th at p. 466), we apply the Morgan methodology here. Under this approach, Brennans decisions concerning the number and type of teaching assignments that plaintiff received from and after July 1, 2003alleged adverse employment actionscan be attributed to plaintiffs race and age based on the statements and acts that took place before July of 2003. Therefore, her FEHA claims based on acts that occurred within the limitations period are not barred by section 12960, subdivision (d).

The reasoning of the recent United States Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc. (2007) 550 U.S. __; 127 S.Ct. 2162 (Ledbetter), does not change our conclusion. Ledbetter distinguishes for statute of limitations purposes between discriminatory acts occurring within the limitations period and discriminatory acts occurring outside the period that may have residual adverse effects upon the employee within the period. In Ledbetter, the employee claimed that during the course of her employment, her supervisors gave her poor performance evaluations based on her sexa violation of Title VII[1]which evaluation resulted in her pay not increasing as it would have if she had been evaluated fairly. (Ledbetter, supra, 550 U.S. at p. __; 127 S.Ct. at pp. 2165-2166.) According to the plaintiff in Ledbetter, those past evaluations, each of which occurred outside the limitations period, decreased the level of her pay then and throughout her subsequent employment, so that by the time she retired, she was earning significantly less than her male colleagues. (Ibid.) The jury found for the plaintiff on her Title VII pay discrimination claim and awarded her backpay and damages. (Id. at p. 2166.)

On appeal, the employer contended that the plaintiffs pay discrimination claim was time-barred with respect to all pay decisions made outside the limitations period. The employer also argued that no discriminatory act relating to the plaintiffs pay occurred within the limitations period. (Ledbetter, supra, 550 U.S. at p. __, 127 S.Ct. at p. 2166.) The Court of Appeals reversed, holding that a Title VII pay discrimination claim cannot be based on any discriminatory pay decision that occurred outside the limitations period even though that decision affected nondiscriminatory pay decisions within the limitations periodthe EEOC charging period. (Ibid.) The Court of Appeal held that there was insufficient evidence to prove that the employer had acted with discriminatory intent in making the only two pay decisions that occurred within the limitations period. (Ibid.)

In affirming the decision of the Court of Appeals, the Supreme Court emphasized that [i]n addressing the issue whether an EEOC charge was filed on time, we have stressed the need to identify with care the specific employment practice that is at issue. Morgan, 536 U.S., at 110-111, 122 S. Ct. 2061, 153 L. Ed. 2d 106. (Ledbetter, supra, 550 U.S. at p. __, 127 S.Ct. at p. 2167.) In Morgan, we explained that the statutory term employment practice generally refers to a discrete act or single occurrence that takes place at a particular point in time. 536 U.S., at 110-111, 122 S. Ct. 2061, 153 L. Ed. 2d 106. We pointed to termination, failure to promote, denial of transfer, [and] refusal to hire as examples of such discrete acts, and we held that a Title VII plaintiff can only file a charge to cover discrete acts that occurred within the appropriate time period. Id., at 114, 122 S. Ct. 2061, 153 L. Ed. 2d 106. (Id. at 2169.) The Supreme Court stated, The EEOC charging period is triggered when a discrete unlawful practice takes place. A new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination. But of course, if an employer engages in a series of acts each of which is intentionally discriminatory, then a fresh violation takes place when each act is committed. See Morgan, supra, at 113, 122 S. Ct. 2061, 153 L. Ed. 2d 10. (Ibid., italics added.)

Thus, according to Ledbetter, supra, 550 U.S. __, 127 S.Ct. 2162, even though a prior discriminatory evaluation and pay adjustment continue to have negative effects on an employees pay throughout her employment, the cause of action accrues at the time the evaluation and pay adjustment are made, when the employer acted in a discriminatory manner with adverse consequences for the employee. Generally, a cause of action accrues for purposes of the statute of limitations, and the applicable limitations period begins to run, when the plaintiff has suffered damages from a wrongful act. (Lyles v. State of California(2007) 153 Cal.App.4th 281, 286.) Once the damage is such that the cause of action accrues, additional damage from the same wrong does not alter the accrual of the cause of action or otherwise extend the limitations period. (Id. at p. 290 [inverse condemnation action]; see also Davies v. Krasna (1975) 14 Cal.3d 502, 514 [neither uncertainty as to the amount of damages nor difficulty in proving damages tolls the period of limitations].)

In this case, unlike Ledbetter, supra, 550 U.S. __, 127 S.Ct. 2162, plaintiffs evidence supports a reasonable inference that Brennan engaged in actssome within the limitations periodeach of which was intentionally discriminatory. According to plaintiff, beginning around February 2002, Brennan made periodic decisions about the number and type of classes that plaintiff would be assigned to teach. The Departments records show that initially Brennan gave no assignments to plaintiff from approximately February through October 2002. Thereafter, Brennan gave assignments to plaintiff, but they were sporadic and rarely did plaintiff receive more than one teaching assignment a monthfar fewer classes than she had taught before Brennan reduced plaintiffs teaching schedule. After July 1, 2003, those records reflect that plaintiff taught a class on July 28, 2003, and again on December 11, 2003. It was not until the middle of 2004, after Brennan was replaced with a new nursing director, that plaintiff began to teach 12 to 20 hours weekly.

In Ledbetter, supra, 550 U.S. __, 127 S.Ct. 2162, intentional acts of sex discrimination―poor performance reviews―occurred outside the limitations period, but caused an adverse ripple effect on the plaintiffs pay throughout her tenure with the defendant company. The later payments within the limitations period were not based on any discriminatory evaluation or decision, even though affected by the earlier discriminatory acts outside the limitations period. Thus, Ledbetter, a pay discrimination case, was based on acts of discrimination by a supervisor outside the limitations period that adversely affected the employers nondiscriminatory pay decisions within the period. As a result, the rationale of Ledbetter has no application to a case such as this one in which plaintiffs evidence shows discrete acts of discrimination both inside and outside the limitations period. Here, plaintiffs evidence supports a separate cause of action accruing within the limitations period in connection with the discrete acts during that period.

Unlike the supervisors in Ledbetter, supra, 550 U.S. __, 127 S.Ct. 2162, Brennan did not just make a single decision based on age or race outside the limitations period that continued to affect plaintiff adversely during the limitations period―such as, for example, demoting plaintiff to a staff nurse or permanently removing her from the classroom. Instead, Brennan initially removed plaintiff from the classroom in early 2002, but then allowed her to teach classes on a sporadic basis beginning in late 2002 and continuing through July 1, 2003. Thus, if Brennans initial decision to remove plaintiff from the classroom was tainted by a prohibited motive under the FEHA, a reasonable fact-finder could infer that Brennans subsequent decisions concerning plaintiffs teaching assignments within the limitations period were similarly motivated.

Plaintiff has submitted evidence of statements and actions prior to July 2003 suggesting that the reduction in her classroom teaching assignments was based on age and race. These included statements by Brennan that plaintiffs teaching assignments were being eliminated because of age and other statements disparaging employees based on their race. But after July 2003, i.e., within the limitations period, there is evidence that Brennan continued to limit the number and types of teaching assignments that plaintiff would receive. In doing so, Brennan made discrete decisions concerning plaintiffs workload within the limitations period, each of which was arguably a fresh violation of the FEHA. Thus, even if the analysis of Ledbetter, supra, 550 U.S __, 127 S.Ct. 2162 applies to FEHA cases, plaintiff has raised a triable issue of fact concerning whether an actionable adverse employment action under the FEHA (Yanowitz, supra 36 Cal.4th at pp. 1054-1055) occurred within the limitations period.

D. There Is a Triable Issue of One or More Material Facts Concerning

Plaintiffs First Cause of Action for Race Discrimination

In connection with her prima facie case on her race discrimination claim, plaintiff provided evidence that she is African-American, she had been teaching a number of nursing classes in the MSD Unit for five years for the County, she was relieved of her assignments sometime after Brennan arrived, and she continued to have a substantially reduced teaching schedule thereafter. To show that the actions against her were a result, in part, of racial animus, plaintiff provided evidence of race-based comments by Brennan and differential treatment based on race by Brennan. The County did not assert that plaintiffs job performance was a justification for its actions, but rather contended there was no adverse employment action within the limitations period.[2]

1. Adverse Employment Action

The County contends that plaintiff cannot make the required prima facie showing of race discrimination because she has insufficient evidence that she suffered an adverse employment action. According to the County, plaintiffs testimony that Brennan took away virtually all of her former teaching assignments is insufficient.

As the court observed in Yanowitz, supra, 36 Cal.4th at page 1054, mere offensive utterances or even a pattern of social slights . . . cannot properly be viewed as materially affecting the terms, conditions, or privilege of employment for purposes of section 12940(a), but the phrase terms, conditions, or privileges of employment must be interpreted liberally . . . . When plaintiffs evidence is viewed under a totality-of-the circumstances approach and in the light most favorable to her, there are sufficient facts to raise a triable issue as to whether she suffered an adverse employment action within the limitations period, i.e., adverse treatment that is reasonably likely to impair a reasonable employees job performance or prospects for advancement or promotion . . . . (Yanowitz, supra, 36 Cal.4th at pp. 1054-1055.)

There is evidence showing that Brennan substantially reduced plaintiffs teaching assignments, which continued after July 1, 2003. The Departments records show that plaintiff taught no classes for most of 2002. In 2002 and 2003, she only taught classes on nine days. There is also evidence that this reduction in classes was attributable to race and age. This evidence is sufficient to raise a triable issue of fact concerning whether plaintiff suffered an adverse employment action. Substantially reducing or eliminating a teachers classroom teaching assignments impairs the teachers ability to perform the job for which she was hired and, in effect, relegates her to some undefined, but lesser, status other than that of a full time classroom instructor. Therefore, a trier of fact could infer that it was reasonably likely that plaintiffs job performance within the limitations period was impaired by that action against plaintiff.

2. Nondisciminatory Motive

In response to plaintiffs prima facie case, the County argues its evidence shows that Brennan did not dramatically curtail plaintiffs teaching assignments, and instead divided assignments equitably among nursing instructors, without regard to race or age. Nevertheless, the Departments own records show that plaintiffs teaching assignments were, and remained, substantially reduced. Accordingly, there is at least a triable issue of fact as to whether Brennans workload assignments within the limitations period constituted adverse employment actions against plaintiff. The County did not submit evidence of a neutral, nondiscriminatory reason for substantially reducing plaintiffs workload because it denies that any such substantial reduction took place. Therefore, it failed to satisfy its burden to show a neutral, nondiscriminatory reason under the McDonnell Douglas test. As a result, the presumption of discrimination that arose from plaintiffs prima facie showing was not rebutted. Accordingly, Guz, supra, 24 Cal.4th at page 370 is distinguishable because that age discrimination case hinged upon the defendants contention that its reason for the adverse employment action was justified and not related to age.

3. The Evidence of Pretext and Requisite Racial Animus

Based on the flawed assertion that it provided sufficient nondiscriminatory reasons for the reduction in plaintiffs teaching assignments, the County contends the ultimate burden of proving actual race discrimination shifted back to plaintiff, and she submitted no evidence sufficient to raise a triable issue of fact concerning pretext or the requisite racial animus. Even if the County had satisfied its burden under the McDonnell Douglas test, and rebutted the presumption of race discrimination, plaintiff contends that her evidence shows that the reduction in her teaching assignments was motivated by a racial animus.

Plaintiff supplied the requisite evidence of racial animus. Retas testimony about Brennans Ebonics comment and plaintiffs testimony that Brennan made derogatory remarks about other African-American coworkers constitute independent evidence of racial animus. Also raising a triable issue concerning racial animus is plaintiffs testimony that she was the only African-American among the four instructors in the MSD Unit and that Brennan asked plaintiff to demote, took away her teaching assignments, gave those assignments to the other instructors who were not African-American, and monitored plaintiffs classroom performance, but not the performance of instructors who were not African-American. Moreover, the Departments investigation of plaintiffs allegations about Brennans conduct toward her and other employees concluded that plaintiffs allegations were founded.

The entirety of plaintiffs evidence when viewed in the light most favorable to her, raised a triable issue of fact concerning whether the employment actions taken against her within the limitations period were racially motivated.

E. There Is a Triable Issue of One or More Material Facts Concerning

Plaintiffs Second Cause of Action for Racial Harassment

1. Triable Issues Concerning Hostile Work Environment

Defendants contend that plaintiffs evidence of racial harassment does not rise to the level of the severe or pervasive conduct required to state a claim under the FEHA based on a hostile work environment. Plaintiff, relying on much of the same evidence that supports her race discrimination claim, argues that it also serves to raise a triable issue of fact concerning whether she was subjected to a hostile work environment.

In California, [the FEHA] . . . differs from Title VII in that it explicitly prohibits an employer from harassing an employee on the basis of race, sex, or other specific grounds. ([former] Gov. Code, 12940, subd. (h) [currently subd. (j)(1)].) Harassment includes [v]erbal harassment, e.g., epithets, derogatory comments or slurs. . . . (Cal. Code Regs., tit. 2, 7287.6, subd. (b)(1)(A).) Yet, despite the differences in statutory language, in light of the parallel antidiscriminatory objectives, the California courts have been guided in their interpretation of FEHA by the federal court decisions interpreting Title VII. [Citations.] In particular, although no California cases have directly addressed racial harassment in the workplace, [fn. omitted] the California courts have applied the federal threshold standard to claims of sexual harassment and held that FEHA is violated when the harassment was sufficiently severe or pervasive as to alter the conditions of the victims employment. [Citations.] (Etter v. Veriflow Corp., supra, 67 Cal.App.4th at pp. 464-465.) [W]hether an environment is hostile or abusive can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employees work performance. (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 22-23.)

In Dee v. Vintage Petroleum, Inc. (2003)106 Cal.App.4th 30, 32-33 (Dee), the plaintiff employee, a Filipino, testified that her supervisor asked her to lie about company business, to take a document from the desk of another supervisor without that supervisors knowledge, insulted her, and used profanity in her presence. On one occasion, when discussing with plaintiff whether he had asked plaintiff to lie to another supervisor, plaintiffs supervisor asked, Well, what are you, a Filipino? When plaintiff replied in the affirmative, the supervisor stated, Well its your Filipino understanding versus mine. (Id. at p. 33.)

In reversing defendants summary judgment on the plaintiffs racial harassment claim under the FEHA, the court in Dee, supra, 106 Cal.App.4th 30 held that [a] reasonable trier of fact could infer that the racial slur was not an isolated event because it explained [the supervisors] motivation for creating an abusive working environment for [the plaintiff]. [The plaintiffs] evidence showed that [the supervisor] called her a bitch and constantly used the word asshole. He berated her, harassed her, ordered her to lie and blamed her for tasks he ordered her to perform. (Id. at p. 37.) Based on the evidence of a single racial slur, the Dee court held that the plaintiff had raised sufficient facts to overcome the defendants summary judgment motion on her racial harassment claim. In doing so, the court emphasized that when a supervisor makes a racially demeaning remark, rather than a coworker, the remark is attributed to the employer, and therefore even one such remark from a supervisor may be severe enough to alter the conditions of employment. (Id. at pp. 36-37.)

Here, plaintiffs evidence showed that Brennan made the Ebonics comment about plaintiff to Reta, and that Brennan also made derogatory racial comments to plaintiff concerning her African-American coworkers. Plaintiffs evidence also showed that Brennan substantially reduced her teaching assignments and excessively monitored plaintiffs classroom performance when plaintiff was allowed to teach. A reasonable trier of fact could infer from that evidence that plaintiffs race motivated Brennans conduct during the limitations period in taking away the majority of her teaching assignments and giving them to instructors who were not African-American, and in monitoring plaintiffs performance while not monitoring the nursing instructors who were not African-American. Looking at all the circumstances, plaintiff has raised a triable issue of fact as to whether Brennans conduct during the limitations period was severe and pervasive enough to alter the conditions of plaintiffs employment and thereby constituted actionable racial harassment.

[The following parts E2 and F are not certified for publication]

2. Brennan Is Not Immune Under Section 820.2

Brennan argues that under section 820.2,^[3] she is immune from individual liability for racial harassment. Relying exclusively on the Supreme Courts decision in Caldwell v. Montoya (1995) 10 Cal.4th 972 (Caldwell), Brennan contends that her actions in dividing teaching assignments among the nursing instructors and in monitoring their classroom performance were acts of discretion vested in her as the supervisor of the MSD Unit that were subject to section 820.2 immunity. Plaintiff counters that section 820.2 does not grant immunity for the type of conduct in issue, but rather is limited to public employees vested with responsibility to make policy decisions.

Caldwell, supra, 10 Cal.4th 972 involved a vote by three school board members not to renew the contract of the plaintiff, the superintendent of the school district. As a result of the school boards action, the plaintiff was terminated. (Id. at p. 976.) In addition to the school district, the plaintiff sued the three individual school board members who had voted not to renew his contract for, inter alia, FEHA violations based on race and age discrimination. (Id. at p. 977.) The individual defendants demurred, claiming discretionary act immunity under section 820.2, and the trial court sustained the demurrer. In a sharply divided decision, the Court of Appeal reversed the trial courts judgment, holding that section 820.2 did not provide immunity for the acts alleged in the complaint. (Caldwell, supra, 10 Cal.4th at pp. 977-78.)

The Supreme Court in Caldwell, supra, 10 Cal.4th 972, reversed, holding that as a matter of law, the decision of an elected school board whether to renew the contract of the districts superintendent is a basic policy decision, and thus a discretionary act of the kind for which public employees are entitled to personal immunity under section 820.2 of the Tort Claims Act. By the terms of section 820.2, such personal immunity applies even against liabilities imposed by prohibitory state statutes of general application such as FEHA, unless there is a clear indication of legislative intent that immunity be withdrawn in a particular case. (Id. at p. 989, italics added.)

The facts of the instant case bear no resemblance to those at issue in Caldwell, supra, 10 Cal.4th 972. There, the Supreme Court concluded that the [school] boards collective decision whether to hire or fire a person as the districts superintendent must be considered a basic policy decision, immune from civil damage actions that seek to hold individual board members liable for the motive behind their votes. (Id. at p. 983.) Here, Brennans acts related to teaching assignments are not basic policy decisions made by a member of a quasi-legislative body. They are individual decisions of an employees supervisor that, if made with an unlawful motive such as racial animus, are actionable under FEHA. Citing the Supreme Courts earlier observation in Johnson v. State of California (1968) 69 Cal.2d 782, 787-790 (Johnson), the Caldwell court observed that almost all acts involve some choice among alternatives, and the statutory immunity [under section 820.2] cannot depend upon literal or semantic parsing of the word discretion. [Citation.] [] [A] workable definition of immune discretionary acts draws the line between planning and operational functions of government. [Citation.] Immunity is reserved for those basic policy decisions [which have] . . . been [expressly] committed to coordinate branches of government, and as to which judicial interference would thus be unseemly. (Id. at p. 981, italics in original.) Brennans acts towards plaintiff fall clearly on the operational side of the line drawn in Johnson and affirmed in Caldwell. Therefore, because those acts are not related to basic policy decisions, Brennan is not immune from personal liability under section 820.2. (See Taylor, supra, 144 Cal.App.4th at pp. 1238-1239 [For immunity to apply, the defendants must show that the decisions in question are properly considered as basic policy decisions made at the planning stage of [the entitys] operation, rather than routine duties incident to the normal operations of the employees office or position].)

F. Plaintiff Failed to Exhaust Her Administrative Remedies as to Her Third Cause of Action Against the County for Failure to

Prevent Discrimination and Harassment Under FEHA

Appellants third cause of action against the County is based on section 12940, subdivision (k)^[4]for failing to take reasonable steps to prevent discrimination and harassment. The County argues that the administrative complaint plaintiff filed with FEHA did not assert that the County failed to take reasonable steps to prevent discrimination or harassment. Therefore, according to the County, plaintiff has failed to exhaust her administrative remedies.

Under California law, an employee must exhaust the . . . administrative remedy provided by [FEHA], by filing an administrative complaint with the California Department of Fair Employment and Housing (DFEH) . . . and obtaining the DFEHs notice of right to sue . . . , before bringing suit on a cause of action under the act or seeking the relief provided therein. . . . [Citations.] To exhaust his or her administrative remedies as to a particular act made unlawful by [FEHA], the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts. [Citation.] We have recognized, in the context of [FEHA], that [t]he failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect, and thus that failure to exhaust administrative remedies is a ground for a defense summary judgment. [Citation.] (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.)

The administrative complaint that plaintiff filed with the DFEH stated that on a continuing basis plaintiff was harassed, [r]etaliated [a]gainst, and subjected to [d]ifferential [t]reatment. It also states that [Brennan and the County] engaged in harassment and other acts of discrimination on account of [plaintiffs] race and age. Plaintiff argues that her claim under section 12940, subdivision (k) for failure to prevent discrimination, harassment, or retaliation is reasonably related to the claims against the County as stated in her administrative complaint. But the claims in plaintiffs administrative complaint seek to hold the County directly liable for differential treatment and harassment. As such, those claims implicate plaintiffs primary statutory right to be free from harassment, retaliation, and differential treatment in the workplace under FEHA. Plaintiffs claim against the County under section 12940, subdivision (k), however, appears to implicate a distinct primary right under FEHA―the right to have allegations of harassment and differential treatment timely investigated and, if appropriate, to have the employer take reasonable steps to prevent the alleged unlawful conduct.

Although plaintiffs administrative complaint put the County on notice that plaintiff was seeking to hold the County directly liable for the alleged unlawful acts of Brennan and other County employees, it gave no notice to the County that it had failed to investigate or prevent claims of harassment or differential treatment. Given that the basis for liability stated in administrative complaint appears to involve different primary rights and obligations than her section 12940, subdivision (k) claim, plaintiff has failed to exhaust her administrative remedies as to that latter claim against the County, and summary adjudication of that claim as a matter of law was appropriate.

[The remainder of the opinion is certified for publication]

G. There Is a Triable Issue of One or More Material Facts

Concerning Plaintiffs Fourth Cause of Action for

Age Discrimination

[T]he policy against age discrimination has been fully delineated by statute. The FEHA not only declares a general policy against age discrimination in employment, but also expressly prohibits discrimination against older workers by employers . . . . (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 895.) As noted above, because direct evidence of a discriminatory motive is rare, plaintiffs are usually required to prove such motive circumstantially, using the burden shifting mechanism laid out in McDonnell Douglas. (See Guz, supra, 24 Cal.4th at p. 354 [This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially]; Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1116 [Because direct evidence of such discriminatory motivation is rarely available, the courts have established a system of shifting burdens in an attempt to aid the presentation and resolution of employment discrimination claims that rely on circumstantial evidence to prove discriminatory intent].) In this case, however, there is direct evidence of discriminatory motivation based on plaintiffs age―Brennans statements about plaintiff being too old and wanting younger teachers in the classroom―so that any burden shifting analysis using the McDonnell Douglas test is unnecessary. (Trop v. Sony Pictures Entertainment, Inc., supra, 129 Cal.App.4th at p. 1144.)

Plaintiff testified that Brennan requested she demote, wanted younger instructors in the classroom, and hired younger instructors to teach classes formerly taught by plaintiff―testimony that raises a triable issue of fact as to whether there was an adverse employment action within the limitations period that was motivated, at least in part, by plaintiffs age. Plaintiff associated these comments directly with the reduction of her teaching assignments, which, as noted above, continued during the limitations period. The County did not defend the reduction in plaintiffs teaching assignments by showing an age-neutral motive for that action, such as, for example, poor performance. Instead, the County maintained that plaintiffs teaching assignments were not substantially reduced. But, as stated above, there is evidence from the Countys own records contradicting its assertion. Thus, plaintiff has established a triable issue of fact as to the fourth cause of action.

H. There Is a Triable Issue of One or More Material Facts

Concerning Plaintiffs Fifth Cause of Action for Retaliation

Plaintiff claims that she suffered adverse employment action because of her complaints to Brennans supervisors about discrimination. As with their contentions concerning plaintiffs race discrimination, racial harassment, and age discrimination claims, defendants contend that plaintiffs retaliation claim fails because there is insufficient evidence of an adverse job action, and plaintiff failed to raise a triable issue concerning a retaliatory motive.

Brennans reduction of plaintiffs teaching assignments occurred, in part, within the limitations period and, as noted, could reasonably be construed as an adverse employment action against plaintiff. Moreover, plaintiff had twice complained to Brennans supervisors about Brennans racially motivated mistreatment of plaintiff, once outside the limitations period and once within the period. These complaints constituted a protected activity under the FEHA for which the employee may not properly be subjected to retaliation. (Yanowitz, supra, 36 Cal.4th at p. 1035.)

Following plaintiffs first complaint to Captain Barrantes, Brennan confronted plaintiff stating, Nobody screws me!I will screw you back!I wont forget you and Captain Barrantes can kiss my ass! Although Brennan made no similar comment to plaintiff after her second complaint to Captain Penner in October 2003, the comment made after the first complaint to Captain Barrantes supports a reasonable inference that the adverse employment action against plaintiff within the limitations period was in retaliation for plaintiffs complaints about Brennan. Defendants provided no legitimate, nonretaliatory reason for the adverse employment action (Yanowitz, supra, 36 Cal.4th at p. 1042), but rather claim there was no adverse employment action. As we have held, there is a triable issue of fact as to whether there was such an adverse employment action. Therefore, plaintiffs evidence is sufficient to raise a triable issue of fact concerning whether Brennans acts within the statutory period were retaliatory.

Story continues as Part III

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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] Title 42 United States Code section 2000e-2(a)1 (unlawful to discriminate because of a persons sex).

[2] The County submitted evidence of nondiscriminatory reasons for alleged adverse employment actions other than the reduction in teaching assignments, such as, for example, plaintiffs relocation to Mens Central Jail. We do not address these other alleged adverse employment actions.

[3] Section 820.2 reads: Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of discretion vested in him, whether or not such discretion was abused.

[4] Section 12940, subdivision (k) provides that it shall be an unlawful employment practice for an employer . . . to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.