Horsford v. Board of Trustees of California State University (132 Cal. App. 4th 359, 2005)

Opinion

VARTABEDIAN, Acting P. J.

This case involves an appeal and cross-appeal from judgment for the plaintiffs in an employment discrimination action. Defendant and appellant Board of Trustees of California State University (the Trustees) primarily contends insufficient evidence establishes an entitlement to the relief awarded to plaintiffs Daniel Horsford, Richard Snow, and Steven King. Plaintiffs, as cross-appellants, primarily contend the trial judge had an undisclosed conflict of interest that should have disqualified him from presiding in this matter, that the court abused its discretion in granting the Trustees’ new trial motion upon condition of a remittitur of damages, and that the court erred in denying plaintiffs’ request for an injunction against implementation of the Trustees’ affirmative action plan. Because we conclude neither side has established reversible error, we affirm the judgment on the merits.

In a subsequent appeal, consolidated with the appeal on the merits by order of this court, plaintiffs contend the trial court abused its discretion in its award of statutory attorney fees. We agree and remand the matter for a new determination of the amount of attorney fees to be awarded to plaintiffs’ counsel.

FACTS AND PROCEDURAL HISTORY

A. The Plaintiffs

Plaintiff Steven King was a lieutenant with the campus police department of California State University, Fresno (CSUF) in 1993. As such, he was second in command of the department and served as acting chief when the chief of police, William Anderson, was unavailable. Anderson retired on December 31, 1993. King was appointed interim chief by CSUF’s vice-president of administration, Benjamin Quillian. King applied for the permanent position of chief. He was not selected, however, and—for a time— remained lieutenant and second in command under the new police chief, Willie Shell. After being transferred to a position as director of an auxiliary public safety entity, King retired from CSUF. When Shell resigned in 1997, King applied for the position of chief; he was not hired.

Plaintiff Richard Snow was one of the senior or administrative sergeants of the CSUF police department in 1993. Although Snow remained a sergeant throughout the events involved in this case, his duties were reduced at various times. When Shell resigned, Snow applied for the position of chief; he was not hired.

Plaintiff Daniel Horsford was an investigator for the CSUF police department. After an extended and involuntary administrative leave, Horsford was assigned in 1996 to a nonpolice public safety position. Eventually he received reinstatement as a police officer, but not as an investigator. He left the force in December of 1996 after a tenure of approximately 15 years.

Plaintiffs identify themselves in their first amended complaint as Caucasians.

B. The Defendants

The Board of Trustees of the California State University operates CSUF, as well as other campuses throughout the state. The complaint named additional defendants, including the CSUF president, a vice-president, former police chief Shell, and others. Ultimately, however, the court granted judgment in favor of all individual defendants. Accordingly, as noted above, we will refer to appellant board as the Trustees; we will refer to the university in Fresno as CSUF.

C. Issues on Appeal

The jury was provided special verdict forms concerning the Trustees’ liability to each of the three plaintiffs. As to all three, the jury found the Trustees liable for discrimination based on race under the Fair Employment and Housing Act, Government Code section 12900 et seq. (hereafter FEHA). As to King and Snow, the jury found the Trustees liable for retaliation in violation of Labor Code section 1102.5, subdivision (b) (whistleblower protection). As to King, the jury found the Trustees liable for constructive termination of employment in violation of public policy.

In the damages portion of the verdict, by contrast, the jury was simply asked, as to each plaintiff, whether the Trustees’ “unlawful conduct caused Plaintiff injury, damage, loss or harm.” After answering “yes” for each plaintiff, the jury was directed to assess economic and noneconomic damages for each plaintiff for the undifferentiated “injury, damage, loss or harm.”

The Trustees’ opening brief attacks the finding of liability on each cause of action. It begins by attacking the retaliation claim on the basis of the statute of limitations and the failure of plaintiffs to produce substantial evidence of retaliatory conduct occurring within the limitations period. The brief then attacks the sufficiency of the evidence to establish King’s constructive discharge claim. Finally, the brief attacks the finding of liability in favor of all three plaintiffs based on race discrimination, contending in various ways there was insufficient evidence to establish the Trustees’ liability.

Because of the nature of the damages verdict, which does not distinguish among the various theories of liability, we consider it more appropriate to begin with the Trustees’ final claim, that there is no substantial evidence of discrimination against the three plaintiffs. If substantial evidence supports each plaintiff’s discrimination cause of action, as we ultimately determine that it does, issues arising from the retaliation and wrongful discharge counts are moot: nothing we would do with respect to those counts would have any effect on the amount of the judgment awarded by what, in essence, was a general verdict when there is no reason to believe the jury apportioned the damages. (See Roberts v. Ford Aerospace & Communications Corp. (1990) 224 Cal.App.3d 793, 799 [274 Cal.Rptr. 139].) Accordingly, and pursuant to the relevant standard of review, we set forth the facts of the discrimination claim in the light most favorable to plaintiffs as the prevailing parties. (See Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660 [190 CaLRptr. 355, 660 P.2d 813].)

With respect to these discrimination-related facts, there is no issue concerning the statute of limitations and we need not consider the merits of the Trustees’ arguments concerning the inapplicability of the “continuing course of conduct” theory, under which an employer may be liable for actions occurring outside the limitations period if the actions are sufficiently linked to unlawful conduct within the limitations period. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1044 [32 Cal.Rptr.3d 436, 116 P.3d 1123].) Therefore, our summary of the evidence focuses on evidence relevant to the discrimination causes of action about which there is no statute of limitations issue.

D. Discrimination Against King

King, as mentioned, was the sole lieutenant in the CSUF Police Department; he was interim chief of police until Willie Shell was hired in August of 1994. Shortly after Shell arrived, he removed King from the chain of command by requiring the department’s sergeants to report directly to Shell, instead of the prior practice of reporting to King. At some point, Shell was redesignated director of public safety and King was the assistant director of public safety.

After about a year, Shell reassigned King to a position as interim head of environmental health and safety, a division of the department of public safety in charge of reducing and otherwise dealing with such hazards as asbestos, chemical waste and spills, and electrical current emergencies. King retained his title as assistant director of public safety, but his new position was not a law enforcement position and was physically located outside the police department.

At the time of this transfer, King was packing up belongings from his old office, which was next door to Shell’s. Shell, who is African-American, commented to an African-American police officer that he was “moving those white boys out of here.” This employee assumed this comment referred to King “because he was packing up and sort of moving out of the department” at the time of the comment.

King had little training for the task of running the environmental health department, and the assignment to the position was supposed to be on an interim basis. After about 18 months and substantial criticism by Shell about King’s performance in the job, however, there was no promise to bring King back to the police department. King decided he was being set up for termination of his employment; because he perceived that senior officers had difficulty obtaining comparable employment if their records contained even minor negative history, King decided to seek employment elsewhere before he was terminated. He obtained the position of chief of campus police at a private college in the San Francisco area. After Shell resigned as CSUF chief, King applied for that job; he was not interviewed for the position and a Caucasian female was selected as the new chief.

E. Discrimination Against Snow

Snow had hoped King would be promoted to chief but Shell was hired instead. Snow further hoped to be promoted to lieutenant if King vacated that position to become chief. When those events did not occur, Snow was overt in his disappointment. Shell apparently suspected that Snow’s attitude reflected not just this disappointment but, in addition, resentment that the new chief was African-American. Shell frequently asked an African-American officer whether she had seen Snow do anything that appeared racist. (The officer repeatedly said she had not seen any such conduct.)

Shell frequently called Snow into his office and criticized him for disappointing job performance. When Snow asked what Shell wanted him to do, Shell replied only that Snow “knew” and that Shell “wanted more.”

On one occasion, Snow stopped a car on campus and confiscated a six-pack of beer from students in the car. Snow wrote in his incident report that he had disposed of the beer, giving specific details of time, place, and method of disposal. When an officer inspected Snow’s cruiser before taking it out on a subsequent shift, the officer found the six-pack in the trunk of the cruiser. He took the beer into the police station and reported his discovery.

Shell told Snow he was going to fire him over the incident and threatened criminal prosecution for making a false official report. Shell’s superiors overrode these dispositions, but Snow still was suspended with pay for two weeks for falsifying the report. By contrast, an African-American officer had lost a small quantity of marijuana after seizing it from a suspect who was not arrested. That officer was not disciplined for the incident. Shell offered as an explanation of the different treatment of the two incidents that Snow had a leadership role that made his error more culpable than the African-American officer’s.

After King retired, Snow applied for the lieutenant position. After Shell retired, Snow applied for chief. In neither case was he hired, nor was he among the candidates who received an interview. At the time of trial, he was still employed as a sergeant with the CSUF police department.

F. Discrimination Against Horsford

Shortly after Shell arrived as chief of police, a female officer was flagged down in a dormitory parking lot by a 17-year-old girl. She said her boyfriend, Michael Pittman, had hit her and she asked the officer to intervene. The officer entered the dorm and spoke to Pittman, a CSUF football player and an African-American. He was belligerent and threatening, according to the officer. She “felt that if I would have tried to take some sort of action against him, based on his comments, that there could have been a physical altercation.” Instead of arresting Pittman, the officer filed a report recommending the case be referred to the district attorney for prosecution.

Horsford was certified as and held the position of investigator in the CSUF police department. Among his duties was to review police reports and, when he was satisfied they were sufficiently complete, take them to the district attorney’s office for consultation with the deputy district attorney in charge of intake. The morning after the foregoing incident, before Horsford left for the district attorney’s office, he was summoned to Shell’s office. Horsford was told not to take the report to the district attorney. Horsford explained to Shell he thought the incident involved rather serious charges, including domestic battery, unlawful intercourse with a minor, and resisting arrest. Shell reiterated his order, saying that they were not going to file a case just because an officer “got her feelings hurt.” Shell said the suspect should have been arrested at the scene but that, since that did not happen, he was not going to permit further action on the report.

Horsford then went next door to King’s office and began to discuss the matter. Shell called both men back to his office and reiterated that the case was not to be referred to the district attorney.

A few months later, Shell removed Horsford from his position as investigator and assigned him to duty as a dormitory officer. In the dorms, Horsford found himself answering both to the housing administration and the chief of police. He expressed frustration to a fellow officer and announced that he “didn’t know what [he] might do.” This was reported to Shell, who thought this reflected a danger that Horsford might become violent in the workplace. Shell consulted with other departmental supervisors. Without interviewing Horsford or getting further information, Shell suspended Horsford with pay pending psychological clearance to return to work.

Horsford submitted to a psychological evaluation and was cleared to return to work. The psychologist suggested, however, that Horsford might benefit from anger management counseling. Shell thought these were inconsistent dispositions of the matter and declined to reinstate Horsford to active duty until he was cleared by a second psychologist. After that clearance, Shell still refused to allow Horsford to return to work.

By this point, King had been transferred to the environmental health and safety department. He offered to allow Horsford to return to work in King’s department—that is, not as a peace officer—in the hope Shell would see Horsford display an appropriate demeanor at work so he would permit Horsford to return to active police duty. Horsford began working in the environmental health department.

Shell persisted in his refusal to reinstate Horsford as a police officer; Horsford sought work elsewhere. In October of 1996, Shell advised Horsford by memo he was being reassigned to the police department, as a patrol officer, effective October 31, 1996. (Shell testified it had taken this long for Horsford to complete an anger management program.) A few days after receipt of the memo, Horsford informed Shell he had been offered a job as an investigator for the Department of Motor Vehicles (DMV) and would be leaving CSUF employment soon. Horsford’s last day of work at CSUF was December 6, 1996.

G. Other Evidence of Racially Motivated Actions by Shell

There was extensive evidence of racial preference in hiring and promotion by Shell. There was evidence of race-conscious provision of police services at Shell’s direction. There was evidence of comments by Shell concerning the racist attitudes of law enforcement generally and the adjacent city police department in particular. There was evidence that Shell continued to question an African-American patrol officer about the racial attitudes of her colleagues, even though the officer repeatedly informed Shell the colleagues were not racist.

H. The Judgment and Postjudgment Proceedings

After many preliminary maneuverings by both sides, jury trial began on May 16, 2000, and continued through mid-August of that year. The following causes of action were submitted to the jury: race discrimination (Gov. Code, § 12940, all three plaintiffs); retaliation (Lab. Code, § 1102.5, King and Snow only); constructive discharge in violation of public policy against race discrimination (King only). By special verdict on issues of liability, the jury found in favor of plaintiffs on each submitted cause of action. On the issue of damages, the jury found as follows:

Steven King Economic damages — $300,000

Noneconomic damages — $1,000,000

Richard Snow Economic damages — $0

Noneconomic damages —• $1,200,000

Daniel Horsford Economic damages — $250,000

Noneconomic damages — $1,500,000

The trial court granted the Trustees’ motion for new trial, but ordered the new trial motion denied if plaintiffs consented to remittitur of excessive damages. Plaintiffs consented to the remittitur and judgment was entered, as follows:

King Economic damages — $194,140

Noneconomic damages — $275,000

Snow Noneconomic damages — $250,000

Horsford Economic damages — $98,386

Noneconomic damages — $300,000

The court denied plaintiffs’ request for an injunction against implementation of CSUF’s affirmative action plan. The parties filed timely appeals.

Subsequently, plaintiffs filed a motion for award of attorney fees in the amount of $3,331,338.25. The court awarded plaintiffs attorney fees in the amount of $1,222,764.50. Plaintiffs filed a timely appeal.

DISCUSSION

I. The Trustees’ Appeal on the Merits

The Trastees attack the sufficiency of the evidence to support the verdict on two fronts. First, they contend plaintiffs did not suffer “adverse employment action” sufficient to constitute a violation of FEHA. Second, they contend plaintiffs failed to “present substantial evidence that the reasons given for these employment decisions were pretextual, or that the real reason was plaintiffs’ race.” Neither contention has merit.

A. Adverse Action

FEHA, among other prohibitions on discrimination, makes it unlawful for an employer “because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person, ... to discriminate against the person ... in terms, conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a).) The prohibition is often restated in judicial opinions as a requirement that the discriminatory action result in “adverse employment action.” (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1042; see, e.g., Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 [100 Cal.Rptr.2d 352, 8 R3d 1089] (hereafter Guz).) In some cases, adverse action affecting “terms, conditions, or privileges of employment” (actionable) is contrasted with changes that merely displease the employee (not actionable). (See Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511 [91 Cal.Rptr.2d 770].) In other words, changes in terms and conditions of employment must be both substantial and detrimental to be actionable. (Id. at p. 512.) “Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of [Government Code] section[] 12940[, subdivision] (a).” (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1054.)

The Trustees assert that none of the actions taken against plaintiffs constitute anything more than minor or relatively trivial lateral transfers with which plaintiffs were simply unhappy.

We disagree. First, we note that the jury was not required to consider each individual mistreatment of a plaintiff in isolation. The jury was entitled to, and on substantial evidence review we are required to, “consider collectively the alleged [discriminatory] acts[. T]here is no requirement that an employer’s [discriminatory] acts constitute one swift blow, rather than a series of subtle, yet damaging injuries.” (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1055.)

Next, taken together, the actions taken against each plaintiff clearly were substantial and detrimental. When a police lieutenant (King) is removed from his former position near the top of the department’s chain of command, and then is removed entirely from law enforcement duties, the objective terms and conditions of employment have been adversely affected. When that same veteran police administrator is transferred to head a department in which he has no training or expertise (and in which position he was inferably expected to fail), the terms and conditions of employment have been adversely changed. These changes, in themselves, may have been consistent with the terms and conditions of King’s employment by CSUF. Nevertheless, the changes were substantial and detrimental; when motivated by racial animus (to which we turn in the next part of this opinion) the changes constituted actionable adverse employment action. (See generally Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1456-1457 [116 Cal.Rptr.2d 602].)

Similarly, in the particular factual context of employment as a peace officer, suspension from duty for lying on a police report (Snow), even if the leave is with pay, constitutes adverse employment action. As Shell himself testified, such a charge can destroy a police officer’s career. Reduction in authority and negative performance reviews also constitute adverse employment action. Again, the real issue is whether the actions were taken for legitimate managerial reasons or were, instead, significantly motivated by racial animus.

The actions taken against Horsford are even more clearly actionable, yet the Trustees claim they were not adverse because he remained on the payroll and eventually returned to active peace officer status at his original rank and salary. Horsford was, however, removed from a highly desirable position as the investigative officer for the department and was placed on administrative leave for a period of months as a result of Shell’s claim that Horsford was mentally unstable. In Horsford’s case—unlike the circumstances of King and Snow—the jury reasonably could have concluded the employment action violated Horsford’s rights under the collective bargaining agreement and that the administrative leave, as a matter of the underlying facts, was unjustified both initially and in its duration. We conclude, however, that even if the management actions were permissible in other contexts, those decisions still resulted in adverse employment action. As such, if the transfer and suspension resulted from racial animus, they are actionable under FEHA. (See Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2004)