McRAE v. DEPARTMENT OF CORRECTIONS AND REHABILITATION
Filed 8/29/06
Opinion following remand
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
| MARGIE McRAE, Plaintiff and Respondent, v. DEPARTMENT OF CORRECTIONS AND REHABILITATION Defendant and Appellant. | A098073, A100745, A104701 (Alameda County Super. Ct. No. 8107136) |
| MARGIE McRAE, Plaintiff and Appellant, v. BRUCE WILTSE et al., Defendants and Respondents. | A098330, A098910 (Alameda County Super. Ct. No. 8107136) |
Dr. Margie McRae filed suit against her employer, the California Department of Corrections and Rehabilitation (the Department) and four individual defendants, seeking damages for discrimination and retaliation in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).
The trial court granted summary judgment to the four individual defendants, and Dr. McRae appeals from an order awarding these defendants their costs. (Case Nos. A098330 & A098910.) The case proceeded to trial against the Department. The jury returned a verdict against Dr. McRae on her claim of discrimination, but awarded her $75,000 on her claim of retaliation. The Department appeals from the judgment entered on the jury's verdict, and from postjudgment orders awarding attorney fees to Dr. McRae. (Case Nos. A098073, A100745, & A104701.)[1]
We reverse, finding that the evidence does not support the jury's verdict that Dr. McRae was the subject of actionable retaliation. We also reverse the orders awarding Dr. McRae her attorney fees. Finally, we affirm the order awarding costs to the individual defendants and remand the matter to the trial court to award costs to the Department to the extent those costs are not duplicative of those awarded to the individual defendants.[2]
Background
In 1992, Dr. McRae, an African-American woman and a board certified surgeon, began working for the California Medical Facility in Vacaville (CMF), a hospital administered by the Department, where prisoners are treated. For several years there were no complaints about the quality of Dr. McRae's work. To the contrary, she regularly and uniformly received excellent performance evaluations. In 1995, Dr. McRae applied for a position as Chief Medical Officer (CMO) at the California State Prison in Solano (Solano Prison), a separate facility, with its own administration, located close to CMF. In May 1996, Dr. Jessica Clarke, a Caucasian woman, was selected for that position, and Dr. McRae continued to work at CMF. Approximately one year later, on April 25, 1997, Dr. McRae filed a complaint with the Department of Fair Employment and Housing (DFEH), claiming that she was denied the appointment at Solano Prison because of her race. In Dr. McRae's view, her filing of this complaint triggered a number of retaliatory actions by the Department that culminated in her involuntary transfer to a position at Solano Prison.
Dr. Raymond Andreasen, the CMO at CMF, was Dr. McRae's supervisor. Dr. Andreasen was not on the hiring committee for Solano Prison, and there is no evidence that he was involved in the decision to hire Dr. Clarke. Dr. McRae nonetheless theorized that Dr. Andreasen engaged in or engineered a number of retaliatory actions taken against her in response to her complaints about hiring at Solano Prison. According to Dr. McRae, these actions began in May 1997, when Dr. Andreasen wrote two memoranda to his files. Dr. Andreasen referred to reports that Dr. McRae, who was then on duty as the emergency room physician, had left her post unattended. The memoranda were written shortly after notice of Dr. McRae's DFEH complaint was sent to Dr. Andreasen, and, under Dr. McRae's theory, were written not because Dr. McRae left her post, but to begin a process of discipline as a means of retaliating against Dr. McRae for filing the DFEH complaint.
Dr. Andreasen testified that by June, he had received reports that Dr. McRae had been coming in late and had, on one occasion, left after approximately one hour of work without notifying the CMO's office that she was going to take time off. Dr. Andreasen scheduled a meeting with Dr. McRae on June 9, but Dr. McRae called in sick. Dr. Andreasen rescheduled the meeting for the following day, but Dr. McRae did not appear. She was paged and stated that she would not be able to attend the meeting because she was taking a training session. The meeting was rescheduled again, for the next day. Dr. McRae again called in sick. A few days later, Dr. Andreasen's administrative assistant reported that Dr. McRae had left her post in the emergency room without notice and without securing proper physician coverage. Dr. Andreasen then issued a â€
