Franklin v. Union Pacific Railroad Co.

Filed 10/2/06 Franklin v. Union Pacific Railroad Co. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Union Pacific Railroad Company (Union Pacific) appeals from a judgment after a jury trial in an action for damages for race discrimination in employment under the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.)^[1] The jury found Union Pacific liable on a special verdict and awarded $500,000 damages on two rubrics: (1) disparate treatment amounting to an adverse employment action and (2) harassment amounting to a hostile work environment. Union Pacific contends there is no substantial evidence supporting the first aspect of the special verdict because there is no substantial evidence of an adverse employment action. We disagree and shall affirm the judgment.

FACTUAL BACKGROUND^[2]

On June 1, 1998, plaintiff Thomas Franklin, an African-American, began work as an assistant signalman for Union Pacific, in the signal construction department at the Roseville rail yard. He worked there until December 2000 when he left work on a medical disability leave. When he returned to work in June 2001 no work was available at Roseville and he was required to change his place of work to Stockton.

Union Pacific signalmen install, service and repair signal systems, devices and appliances used to operate the railroad. This involves, inter alia, the work of an electrician (e.g., wiring switches) and the work of a construction laborer (e.g., digging ditches).

Assistant signalman is an entry-level job; no prior electrical background is required. Training required for competency and promotion as a signalman is provided via formal schooling and also by field training, learning tasks through observation and practice on the job. Bidding successfully on more desirable work assignments within the Union Pacific workforce requires competency at higher level electrician tasks. Franklin testified that while working at the Roseville yard he received substantially less on-the-job field training in the electrician tasks of a signalman, compared to a white man who was hired at the same time. Both men were assigned to the same crew, but when the white employee went out on assignments he returned bragging about the electrical work he had been taught.

When Franklin asked Roseville coworkers questions about electrical work he was ignored or received denigrating commentary on his intellect. This was a sharp contrast to his experience when he later went to work at the Stockton yard. While in Stockton he has been able to apply his formal electrical training. He was able to learn to wire switches, circuit controllers and signals, and to troubleshoot them.

Franklin testified that at Roseville he was assigned an unusual amount of the menial labor compared to white workers. He was the digger and always assigned the janitorial clean-up tasks.

On one occasion he alone had to shovel gravel at the bottom of a ravine for 10 hours, notwithstanding the presence of a backhoe that could have made short work of the job. The next day he was assigned the same task and when he asked why the backhoe could not be used his supervisor got angry. Franklin explained he had hurt his back digging the day before. He was accused of insubordination and received a formal conference warning, in lieu of discipline, to report injuries immediately.

The signal construction department at the Roseville yard was virtually all white. Many of the men were related. Some were self-described “rednecks.” Some sported confederate flag decals on their vehicles.

While at work Franklin overheard many remarks and “jokes” denigrating minorities. He was subjected to racial remarks from white coworkers. Some of these were double-entendres playing on the term “spade.” One of his coworkers described a driver who cut them off in traffic as a “nigger.” A supervisor called him a “big boy.” Once, when Franklin said he was thinking about going to a publicly announced birthday party, another coworker told him that if he did, “they” would “hang up a noose for [him].”

At a lunch meeting in the summer of 2000, the crew lead man told him he should be glad it was not the old days when “we” used to put Visine in the drinking water to give African-Americans diarrhea. On the last day in August that year, during lunch at a Taco Bell, the same lead man angrily told him “shut up bitch.” That hot afternoon Franklin was given the heaviest labor, pulling cable. When he complained that his coworkers had used all the readily available drinking water, the lead man broke out a new six-pack of water and contemptuously poured water out over his hands.

The next day Franklin confronted the lead man about the “bitch” remark and a chest bumping altercation ensued. Franklin made written complaint to Union Pacific about the lead man’s behavior and the commonplace racial insults in the Roseville yard. He asked Union Pacific’s Equal Employment Opportunity director for an outside investigation of the ubiquitous racial slurs and the harassment he had experienced. The result was that Franklin was charged by Union Pacific with misconduct for being quarrelsome and responsible for an altercation--his white coworker, a man with a reputation as a feisty troublemaker, was not charged. Union Pacific conducted no outside investigation of the broader claim of racism at the Roseville yard.

A hearing was held on the disciplinary charge against Franklin and on his claim he had been treated unfairly by his lead man and another coworker. The later claim was limited to the allegation that the lead man had referred to Franklin as a “bitch.” Franklin was subject to discipline, up to termination, if the charge against him was sustained. The hearing officer found the evidence insufficient to sustain either claim.

On September 6, 2000, Franklin was removed from the crew and assigned to work in the tool compound. After about a month he was temporarily assigned to another crew. He was talking on the radio while he was working with the new crew when someone, he was almost certain it was the former lead man, came on the air and said, “You are dead.”

In December 2000 he was told he would be reassigned to a crew with his former lead man and that the crew would be working in the mountains, in the remote Feather River Canyon. Franklin was concerned for his physical safety. He was “really stressed out and nervous about it.” He suffered a nervous breakdown.

Dr. Marietta Almazan, a psychiatrist, treated Franklin 13 times from December 18, 2000 until June 12, 2001. He was in a great deal of emotional distress, suffering from a depressive disorder and posttraumatic stress syndrome. She attributed this to the discrimination and harassment he complained of at work. She prescribed an antidepressant, antianxiety medication, a mood stabilizer and sleeping pills. She placed him on medical disability leave.

Franklin returned to work in June 2001 when he had no more savings to make up the shortfall between his disability income and his expenses. He was told there were no jobs available at Roseville. He was able to bump a worker with lower seniority in Stockton. This has required a 104-mile-per-day round-trip commute.

Franklin’s testimony that racial epithets were frequently used at the Roseville yard and that whites received less menial work and more informal on-the-job training than African-Americans was corroborated by testimony of two other African-Americans and one Hispanic man. All three had brief and unhappy employment experiences in the signal construction department at Roseville.

In November 2001, Franklin filed his complaint for damages for racial discrimination, harassment and retaliation. The jury returned its special verdict in Franklin’s favor on November 20, 2003.

DISCUSSION

Union Pacific contends that the judgment is infirm because there is no substantial evidence to support the finding of an adverse employment action. Union Pacific argues that the matters Franklin relied upon to show adverse employment action “were founded on speculative and worthless inferences, consisted of Union Pacific’s legitimate exercise of its prerogatives as an employer, or were very minor and had no impact on [his] salary, benefits, and career path.” Union Pacific does not contend that the judgment is infirm with respect to the claim of racial harassment resulting in a hostile work environment. Union Pacific submits only that the entire judgment should be reversed because “it is reasonable and logical to assume that the award would have been smaller” if it were based only on that claim. Union Pacific’s contention has no merit.

There is no logical compulsion to conclude the jury award is higher because it was made under two legal rubrics rather than one. Franklin’s closing argument included disproportionate menial work and lack of on-the-job training, for example, within his hostile work environment claim.

The burden is on appellant--Union Pacific--to show an error and injury from that error. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 409, p. 461.) It is not evident that Franklin’s damages would have varied if the adverse employment action rubric of disparate treatment had been absent.

Franklin was awarded $30,000 in economic damages and $470,000 for noneconomic damages. The $30,000 is evidently based on his counsel’s argument that that amount would compensate him for the wages he lost during his leave of absence. The remainder of the damages was to compensate for “the emotional destruction of Mr. Franklin, the mental destruction of Mr. Franklin.” There is nothing in this to suggest that any different amount of money would have been awarded if harassment amounting to a hostile work environment had been the sole rubric before the jury.

In any event, even if we assume for the sake of argument that a showing of no substantial evidence of an adverse employment action would render the judgment infirm, Union Pacific’s argument that there is no substantial evidence of an adverse employment action is unpersuasive.

Adverse employment action is a nonstatutory term of art, “a familiar shorthand expression referring to the kind, nature, or degree of adverse action against an employee that will support a cause of action under a relevant provision of an employment discrimination statute.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1049 (Yanowitz).)

California’s employment discrimination statute, section 12940, provides, in relevant part: “It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (a) For an employer, because of the race . . . of any person, . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”

The California Supreme Court illuminated the meaning of this provision in Yanowitz: “’[I]n compensation or in the terms, conditions, and privileges of employment’ properly must be interpreted broadly to further the fundamental antidiscrimination purposes of the FEHA. Appropriately viewed, this provision protects an employee against unlawful discrimination with respect not only to so-called ultimate employment actions such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career. Although a mere offensive utterance or even a pattern of social slights by either the employer or coemployees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment for purposes of section 12940[, subdivision] (a) (or give rise to a claim under section 12940[, subdivision] (h)), the phrase ‘terms, conditions, or privileges’ of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection against employment discrimination that the FEHA was intended to provide.” (Yanowitz, supra, 36 Cal.4th at pp. 1053-1054, fns. omitted.)

In some cases an employment discrimination charge is premised on a claim that the employer has taken specific adverse employment actions, e.g., refusal to promote or imposition of discipline, with discriminatory intent. In others, the claim is that the employer has knowledge of racial intimidation or insults in the work environment and fails to take active and effective steps to remedy the problem. A hybrid of both kinds of claim may also be presented, as here. Evidence of harassment or failure to act against harassment can support a claim that other adverse employment actions were taken with discriminatory intent. (See 3 Larson, Employment Discrimination (2d ed. 2006) §§ 52.03 to 52.04, pp. 52-7 to 52-22.)

As related, Union Pacific submits that except for the claim of adverse inaction in failing to quell racial harassment, there is no substantial evidence for a claim of discrimination in any specific adverse employment action. Union Pacific argues that the evidence Franklin offered^[3] was either unsupported or insubstantial. That is to say, his claims did not amount to adverse “’terms, conditions, or privileges of employment’” or “actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” (Yanowitz, supra, 36 Cal.4th at p. 1054.)

Although the adverse action claims are to be considered by the trier of fact in the aggregate (see Yanowitz, supra, 36 Cal.4th at pp. 1055-1056), it also suffices to uphold the judgment if any lesser combination amounts to a material adverse affect on an employee’s job performance or opportunity for advancement. Franklin’s paramount adverse action claims were that he was required to spend a disparate amount of his time as a laborer and that the lack of electrician work and hostility he faced amounted to a denial of on-the-job training necessary to perform the job of signalman and to advance in his career as a signalman. If the evidence on those claims supports a finding of adverse conduct materially affecting the job performance or opportunity for advancement, we need go no further. Indeed, Union Pacific concedes that material differences in training would be an adverse employment action. However, Union Pacific argues that Franklin failed to show he was denied training.

At trial, Franklin adduced evidence that he and other African-American signalmen received significantly less time performing electrician tasks and significantly more time doing menial work than similarly situated white workers. He adduced evidence that differential treatment was specific to the racially oppressive Roseville yard. He adduced evidence that when he asked questions about electrical tasks he was rebuffed. He adduced evidence that proficiency in electrician tasks was helpful for selection to more desirable billets as a signalman.

Union Pacific replies that this showing is insufficient because Franklin’s “passionate but unsubstantiated complaints about having to do an unfair share of [menial] work are again speculation, not competent evidence”; and that his claim he was denied training is vacuous to Union Pacific because he neither proved Union Pacific had a policy regarding on-the-job training that was disregarded nor presented evidence to “make a meaningful comparison of his training experiences” to those of white assistant signalmen.

“André Gide once observed: ‘Everything has been said already; but as no one listens, we must always begin again.’ With rhythmic regularity it is necessary for us to say that where the findings are attacked for insufficiency of the evidence, our power begins and ends with a determination as to whether there is any substantial evidence to support them; that we have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom. No one seems to listen.” (Overton v. Vita-Food Corp. (1949) 94 Cal.App.2d 367, 370.)

Union Pacific offers no persuasive reason why the jury should not have been able to make the critical inference. Franklin’s evidence sufficed to show that, compared to white assistant signalmen, he had significantly less time and informal training in performing electrician tasks and significantly more time doing menial chores. This permits the inference the disparate treatment adversely and materially affected his job performance and his opportunity for advancement in his career.

Union Pacific suggests that Franklin was not subjected to disparate treatment because “he . . . admitted that every time he asked someone to show him how to perform a task, that person did so.” The reference is to testimony on cross examination about how Franklin was treated on one occasion at the outset of his employment. He had testified that the new white worker was affirmatively invited to learn how to work the boom on the boom truck, but he was not, until he “said something.” He accepted defense counsel’s statement that when he expressed an interest in learning the same thing as the new white employee, he was “granted that request.”

This is far from a generic admission that every time Franklin asked someone to show him how to perform a task, that person did so. In context, Franklin’s testimony on the point supports his claim that, with respect to learning opportunities, he and the white employee were not treated the same.

Union Pacific calls Franklin’s testimony about doing significantly more menial labor unsubstantiated and incompetent. However, that testimony was both corroborated and competent. “Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.” (Evid. Code, § 411.)

In support of the argument that Franklin was required to prove Union Pacific had a policy regarding on-the-job training that was disregarded, Union Pacific cites Lopez v. Metropolitan Life Ins. Co. (2d Cir. 1991) 930 F.2d 157 (Lopez II): “The district court found that [Lopez] had not met his initial burden in that he had not shown that other sales representatives received training opportunities that [he] was denied. . . . . . . The district court found, based on the testimony at trial, including that of a white probationary sales representative hired after [Lopez] was terminated, that the training or assistance afforded probationary sales representatives was very informal: [U]nless the employee asked for help, the employee did not receive it. ([Lopez v. Metropolitan Life Ins. Co. (N.D.N.Y., Sept. 21, 1989, No. 88 Civ. 577) 1989 U.S. Dist. Lexis 11363, at p. *23 (mem.).]) This description of Met-Life’s training policy, which is based on credible evidence, aptly fits the training afforded [Lopez] according to his own testimony. Absent evidence which creates an inference of discriminatory treatment, we cannot fault the trial judge’s finding that [Lopez] failed to establish a prima facie case of individualized disparate treatment.” (Lopez II, supra, 930 F.2d at p. 161, italics omitted.)

Lopez II, which affirmed the district court’s ruling, is inapposite. The holding addresses a finding of fact by the court after a trial, hence the opinion grants “considerable deference to the trial court’s ability to assess the credibility of the witnesses.” (Lopez II, supra, 930 F.2d at p. 160.) More importantly, assuming the posture of the case were analogous, here Franklin adduced evidence that he did ask for help and was rebuffed and that his opportunity for informal training was foreshortened by assignment to a disproportionate amount of menial work. The fact that the training in issue is informal field training has no bearing on whether a disparate denial amounts to adverse employment action.

For the argument that Franklin was required to show “a meaningful comparison” of his training experiences with those of white men, Union Pacific cites Robinson v. Detroit News, Inc. (D.D.C. 2002) 211 F.Supp.2d 101. In Robinson the plaintiff argued that she was fired while two male account executives were retained, “despite their similar lack of production and their superior training.” (Id. at p. 112.) However, the district court concluded that the plaintiff was not similarly situated to the two male employees because: “Differences between the male account executives and the plaintiff are evident in their principal job responsibilities and backgrounds, which logically led to differences in their job training.” (Ibid.)

Here, there is no indication that the assistant signalman position varies in job responsibilities or by employee background. Accordingly, the showing that Franklin and other minority workers, in a racially charged work environment, were given significantly more menial labor and significantly less field training in electrical tasks is substantial evidence to support a finding of an adverse employment action.

DISPOSITION

The judgment is affirmed. Franklin shall recover his costs and attorney fees on appeal. (See § 12965, subd. (b).) The trial court on remand shall determine the amount of reasonable attorney fees on appeal.

BUTZ , J.

We concur:

SCOTLAND , P. J.

BLEASE , J.

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^[1] Undesignated statutory references are to the Government Code.

^[2] “We state the facts in accordance with the general rule that an appellate court will view the evidence in the light most favorable to the respondent and will indulge in all intendments and reasonable inferences to sustain the findings and the judgment.” (Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488, 492, fn. 1.)

^[3] Union Pacific lists the following as Franklin’s principal candidates: lack of on-the-job training, disproportionate menial work, a disciplinary counseling memo for failing to timely report his back strain injury, a discipline proceeding for his altercation with the coworker who told him to “shut up bitch,” and his temporary assignment to the tool compound when he declared he could no longer work with members of his crew who harassed him. Franklin’s counsel listed only the first four claims in his closing argument.