Chaney v. Dept. of Corrrections
Filed 1/21/14 Chaney v.
Dept. of Corrrections CA2/7
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
ROY CHANEY,
Plaintiff and Appellant,
v.
DEPARTMENT OF
CORRECTIONS AND REHABILITATION,
Defendant and Respondent.
B242440
(Los
Angeles County
Super. Ct. No. BC442101)
APPEAL
from a judgment of the Superior Court of
Los Angeles County, Yvette Palazuelos, Judge. Affirmed.
Wilson
Trial Group, Dennis P. Wilson; The Luti Law Firm and Anthony N. Luti for
Plaintiff and Appellant.
Kamala
D. Harris, Attorney General, Alicia M.
B. Fowler, Senior Assistant Attorney General, Michael E. Whitaker, and Leah C.
Gershon, Deputy Attorneys General, for Plaintiff and Respondent.
_____________________
Roy Chaney, a parole administrator
with the California Department of
(Department), appeals from the judgment entered after the trial court granted
summary judgment in favor of the Department on Chaney’s claims for
discrimination, failure to prevent discrimination and retaliation in violation
of the Fair Employment and
Housing Act (FEHA) (Gov. Code, § 12900 et seq.).
relate to his administrative transfer following disagreements regarding his
handling of housing restrictions on paroled sex offenders with
disabilities. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The
Events Precipitating Chaney’s Transfer
a. The placement
of James Maciel in non-compliant housing
In
July 2008 Chaney, who is African-American, was employed by the Department as a
parole administrator for Los
Angeles County. Chaney supervised parole agents, parole agent
supervisors, personnel working at parole outpatient clinics and clerical
staff. His superiors included Alfred
Martinez, Jr., the regional director for Los Angeles County; Robert
Ambroselli, the deputy director of parole; and Thomas Hoffman, the director of
parole.
Proposition
83, the Sexual Predator Punishment and Control Act: Jessica’s
Law, approved
at the November 2006 general election, prohibits sex offenders, after they are
released from prison, from living within 2,000 feet of schools or parks where
children regularly gather. The
Department is responsible for enforcing the residency restriction and monitors
parolees with a global positioning system (GPS) for life. (See Pen. Code, §§ 3003.5, subd. (b),
3004.) As the Department began
implementing Jessica’s Law, it was confronted with determining which parolees
required housing suitable for persons with disabilities under the Americans
with Disabilities Act (ADA) (42 U.S.C. § 12101 et seq.). At his deposition Hoffman testified there was
pressure from the Governor and legislators that even disabled parolees be housed
in strict accordance with Jessica’s Law.
Consequently, medical waivers to accommodate disabled parolees were
limited to individuals who were so incapacitated they “could not pose a threat
to the public at all,†such as quadriplegics or parolees strapped to a hospital
bed receiving intravenous drugs. To
obtain a medical waiver, a parole agent must notify his or her supervisor. The parole administrator prepares a request
for waiver, which must then be authorized by the regional director and Hoffman. Hoffman testified he evaluates each case
individually.
In
July 2008 Chaney was advised he was being investigated by the Department’s
office of internal affairs (OIA). Martinez testified
he initiated the investigation of Chaney, as well as three other African-American
employees and one Hispanic employee,
the Department was using to house parolees was not in compliance with Jessica’s
Law.
In
August 2008 parole agents supervised by Chaney asked for his assistance in finding
housing for 60-year-old James Maciel, who was confined to a wheelchair.
compliant with Jessica’s Law. Chaney
signed a request for a medical waiver stating, “The subject is disable[d] and
is in a wheel chair. He will be
monitored 24-hours a day by extended nursing care and by the GPS device he
currently wears on his left ankle.†On
August 22, 2008 Claudia Chavez, who was Martinez’s secretary and tasked
with fixing grammatical and spelling errors on the waiver requests, asked
Chaney to send her an email version of his request so she could correct it “prior
to forwarding to the Regional for his review.†Although the request had correctly identified
the parolee as Maciel in two locations, in a third it referred to “Parolee
Pearl.†On August 26, 2008 Chaney signed a revised request for waiver, but it too required
corrections. Although Martinez
acknowledged he had reviewed the August 26, 2008 request and knew
Maciel had been placed in non-compliant housing, he did not instruct that Maciel
be relocated. Finally, on September 9, 2008 a corrected request was forward to Martinez for review.
On
September 10, 2008 Rebecca Hernandez, a unit supervisor, sent Chaney a
memorandum stating she had reviewed Maciel’s case file and “observed that
several [Department] policies and law violations have occurred on this case.†Hernandez stated the medical waiver did not
contain signatures by Martinez or Hoffman and facility staff reported Maciel had been leaving the
facility without a chaperone and without signing in and out as required. A few days later Hernandez forwarded a copy of
the memorandum to deputy director Ambroselli.
Martinez testified Ambroselli called him after receiving the document. After several conversations between them, as
well as between Martinez and Chaney, Ambroselli concluded Maciel was not sufficiently incapacitated
to warrant a waiver. Because the
Department could not immediately find housing compliant with Jessica’s Law that
could also accommodate a wheelchair, Maciel was placed into custody until
suitable housing could be found.
complained to Martinez that “what [Martinez] was doing was inappropriate, possibly illegal and was against ADA law†because
Maciel had legitimate disabilities.
b. The
employee counseling letter and Chaney’s administrative transfer
On
September 26,
2008 Martinez sent
Chaney an “employee counseling letter†stating Chaney had failed to timely
submit the request for a waiver for Maciel resulting in his erroneous placement
in non-complaint housing. The letter
stated, “Based on the medical documentation that you provided prepared by
Doctor Martin, the parolee did not have medical needs that required the care of
a 24-hour licensed care facility; therefore making him ineligible to reside in
non-compliant housing. Your failure to
comply with Policy No. 07-36 created a liability for the Division which is
unacceptable. [¶] As a District Administrator, you need to
familiarize yourself with Policy No. 07-36, Implementation of Proposition
83, AKA Jessica’s Law. You need to
provide training to your staff as well.
You need to ensure that in the future you comply with the policy when
requesting waivers for Jessica’s Law Residency Restrictions.â€
Chaney
responded to the Department’s counseling letter with a nine-page “rebuttalâ€
dated November
19, 2008.
Chaney explained he and his agents acted pursuant to Department training
and their understanding of their responsibilities under the ADA but that there
were “grey areas†the Department had acknowledged. Chaney contended, “When staff[] come to you
and ask for clarification on how to proceed on a matter and ways to better
manage this entire issue in view of the grey areas, and you respond for us to
use our discretion but then write staff up when they do, reflects a lack of
fundamental fairness for the Department as a whole.†Chaney asked that the counseling letter be
removed from his personnel file.
In
a memorandum also dated November 19, 2008 Chaney was
advised he was being “administratively transferred to the Decentralized
Revocation Unit (DRU) as a Parole Administrator.†Although Chaney’s job title did not change,
his responsibilities did. According to
Chaney, all he did in his new position was read parole violation reports and
input them into a computer, a job he described as unchallenging, boring and
tedious with no chance of promotion.
On
November 28,
2008 Chaney sent Hoffman a letter stating
he was “disappointed and disturbed†he had been relegated “to a position of lesser
authority and responsibility because of the Maciel case†and complained he and
staff were being penalized for using their discretion after being told to do so
to resolve ambiguities in Department policy.
In
a letter dated January 29, 2009 the
counseling letter had been placed in Chaney’s supervisory file, not the
personnel file, and denied Chaney’s request to remove it. The Department explained, “In your case,
corrective action was appropriate due to your failure to comply with departmental
policy and was not considered adverse in nature. As stated in DOM Section 33030.8, ‘The
purpose of corrective action is to help an employee change problem behavior of
performance before discipline is necessary and may be imposed for any employee
conduct or performance that is correctable by means of counseling and/or
training. Corrective actions may also be
used to rebut the employee’s claim that he/she did not know about a statute,
regulation, or procedure and/or expectation.’â€
In
2009 the OIA completed its investigation into the allegations Chaney and the other
employees had committed misconduct by failing to report a facility being used
by the Department was not in compliance with the residency requirements of
Jessica’s Law. In a March 24, 2009 memorandum Martinez advised Chaney the investigation was closed and there had been no
finding of wrongdoing. Chaney contends
he never received the letter and was never told the investigation was
completed.
2. The
First Amended Complaint
In
December 2011 Chaney filed the operative first amended complaint asserting
causes of action for racial discrimination under FEHA (§ 12940, subd. (a)),
failure to prevent discrimination (§ 12940, subd. (k)), retaliation (§ 12940,
subd. (h)), and failure to prevent harassment (§ 12940, subd. (k)).
alleged the Department retaliated against Chaney because he had tried to
accommodate Maciel’s disabilities, had complained the Department’s failure to
do so was discriminatory and had complained about receiving the employee
counseling letter and his transfer.
Although the amended complaint alleged Chaney had been subject to racial
discrimination, it failed to include any supporting allegations.
3.
Motion for Summary Judgment
In
February 2012 the Department moved for summary judgment or, in the alternative,
summary adjudication, contending in part Chaney had not been subjected to any
adverse employment action; even if he had been, he could not establish a causal
connection between his race and the adverse employment action; and, in any
event, the Department had legitimate nondiscriminatory reasons for initiating
the OIA investigation, issuing the employee counseling letter and transferring
Chaney. With respect to the cause of
action for retaliation, the Department further argued Chaney had not engaged in
protected activity under FEHA.
In
opposition Chaney argued he had established a prima facie case of
discrimination or at least presented evidence of discriminatory motive raising
a triable issue of fact: He had received
nothing but positive performance reviews and promotions for 37 years until
the July 2008 OIA investigation; the OIA investigation targeted only
African-American employees inasmuch as the Hispanic employee initially included
in the investigation had died; the OIA determined the accusations were “utterly
baseless and, thus came back as unfoundedâ€; Chaney was aware of at least three
other parole administrators who had almost 300 placement problems in their
districts, but none was treated the way he was; the eight or nine people who had
succeeded to Chaney’s position were not African-American except one person, who
held the position for less than a year; Martinez could not identify a single
Caucasian, Hispanic or Asian employee who had received a counseling letter that
was not purged after a year; and the department where Chaney was transferred had
a long standing problem with promoting minorities.
With
respect to his retaliation claim, Chaney argued the fact he received a
counseling letter and was transferred contemporaneously with complaining the
Department had engaged in improper and potentially illegal activity by failing
to accommodate Maciel’s disabilities under the ADA and placing Maciel
into custody was sufficient to demonstrate Chaney was a victim of retaliation.
The
trial court granted the Department’s motion for summary judgment. The court found Chaney had failed to present
any evidence that suggested discrimination was a motive for the Department’s
actions, thus negating his cause of action for failure to prevent
discrimination as well. The court further
found Chaney’s retaliation claim was without merit because he failed to provide
sufficient evidence to demonstrate he had engaged in protected activity under
FEHA, a necessary predicate for a retaliation claim.
DISCUSSSION
1. Standard
of Review
A motion
for summary judgment is properly
is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law.†(Code Civ. Proc., § 437c, subd. (c).)
A defendant seeking summary judgment
bears the initial burden of proving a cause of action has no merit by
demonstrating that one or more of its elements cannot be established or there
is a complete defense to it. (See Code
Civ. Proc., § 473c, subds. (a), (p)(2); Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.)
We review a grant of summary judgment de novo and decide independently
whether the facts not subject to triable dispute warrant judgment for the
moving party as a matter of law. (
Corp. v. Hamidi (2003)
30 Cal.4th 1342, 1348.) We view the
evidence in the light most favorable to the opposing party, liberally
construing the opposing party’s evidence and strictly scrutinizing the moving
party’s. (O'Riordan v. Federal Kemper
Life Assurance Co. (2005) 36
Cal.4th 281, 284.)
2.
Fact on His Discrimination Claims
FEHA
prohibits an employer from, among other things, discriminating against a person
on the basis of race in compensation, terms, conditions or privileges of
employment. (§ 12940, subd. (a); see Clark
v. Claremont University Center (1992) 6 Cal.App.4th 639, 662.) Discriminatory intent is a necessary element
of a racial discrimination claim. (§
12940, subds. (a), (h); see Clark, at p.
662; Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d
1306, 1316 (Mixon).) Because direct evidence of discriminatory
intent is rare, California has adopted the three-stage burden-shifting test
established by the United States Supreme Court in McDonnell Douglas Corp. v.
Green (1973) 411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668] for trying
discrimination claims based on a theory of intentional discrimination
(disparate treatment). (Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 356-357 (Guz ).) “At trial, the McDonnell Douglas test
places on the plaintiff the initial burden to establish a prima facie case of
discrimination. . . . [¶]
The specific elements of a prima facie
case may vary depending on the particular facts. [Citations.] Generally, the plaintiff must provide evidence
that (1) he [or she] was a member of a protected class, (2) he [or she] was
qualified for the position he [or she] sought or was performing competently in
the position he [or she] held, (3) he [or she] suffered an adverse employment
action, such as termination, demotion, or denial of an available job, and (4)
some circumstance suggests discriminatory motive. [Citations, fn. omitted.] [¶] If,
at trial, the plaintiff establishes a prima facie case, a presumption of
discrimination arises. . . .
[¶] Accordingly, at this trial
stage, the burden shifts to the employer to rebut the presumption by producing
admissible evidence, sufficient to ‘raise[] a genuine issue of fact’ and to
‘justify a judgment for the [employer],’ that its action was taken for a
legitimate, nondiscriminatory reason. [Citations.] [¶] If
the employer sustains this burden, the presumption of discrimination
disappears. [Citations.] The plaintiff must then have the opportunity
to attack the employer’s proffered reasons as pretexts for discrimination, or
to offer any other evidence of discriminatory motive. [Citations.] . . . [Citations.]
The ultimate burden of persuasion on the issue of actual discrimination
remains with the plaintiff.†(Id.
at pp. 354-356.)
An employer moving for summary
judgment on a FEHA cause of action for discrimination may satisfy its initial
burden of proving a cause of action has no merit by showing either that one or
more elements of the prima facie case “is lacking, or that the adverse
employment action was based on legitimate nondiscriminatory factors.†(Cucuzza
v. City of Santa Clara, supra,
104 Cal.App.4th at p. 1038; see Guz, supra, 24 Cal.4th at pp. 356-357; Sada v.
Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150.) The plaintiff must then set forth specific
facts sufficient to allow a trier of fact reasonably to conclude the employer had
engaged in intentional discrimination. (Guz,
at p. 357; Sada, at p. 150.) “[A]n
employer is entitled to summary judgment if, considering the employer’s
innocent explanation for its actions, the evidence as a whole is insufficient
to permit a rational inference that the employer’s actual motive was
discriminatory.†(Guz, at p.
361.)
Chaney
argues he met his minimal burden of establishing a prima facie case of
discrimination because there is no dispute the individuals who succeeded to his
position were not African-American except one employee who lasted less than a
year. Chaney’s argument is
misplaced. Whether or not Chaney’s
evidence was sufficient for a prima facie case of discrimination, once the
Department demonstrated it had one or more legitimate reasons for taking the
challenged administrative actions, Chaney was required to present “‘substantial
responsive evidence’ that the employer’s proffered reasons were untrue or
pretextual†or other evidence the Department had acted with a discriminatory
animus from which a reasonable trier of fact could conclude the Department had engaged
in intentional discrimination. (
(2007) 151 Cal.App.4th 1102, 1109; see Batarse
v. Service Employees Internat. Union Local 1000 (2012) 209 Cal.App.4th
820, 834; see also Kelly v. Stamps.com Inc.
(2005) 135 Cal.App.4th 1088,
1097-1098 [if a defendant employer’s motion for summary judgment “relies in
whole or in part on a showing of nondiscriminatory reasons for the [adverse
employment action], the employer satisfies its burden as moving party if it
presents evidence of such nondiscriminatory reasons that would permit a trier
of fact to find, more likely than not, that they were the basis for the [adverse
action]. [Citations.] To defeat the motion, the employee then must
adduce or point to evidence raising a triable issue, that would permit a trier
of fact to find by a preponderance that intentional discrimination occurredâ€].)
“At
least three types of
of retaliation, such as statements or admissions, (2) comparative
evidence, and (3) statistics.†(Iwekaogwu
v. City of Los Angeles (1999) 75 Cal.App.4th 803, 816; see
Cal.App.4th 1412, 1428 [“[s]tatistical proof is indispensable in a disparate
impact caseâ€].) To be probative, however,
comparative data must be directed at showing disparate treatment between
employees that are “similarly situated†to the plaintiff in all relevant respects. (Iwekaogwu,
that [plaintiff] was treated differently from others who were similarly situatedâ€]; Guz, supra, 24
Cal.4th at p. 369 [plaintiff in discrimination case failed to show
through statistical data on employees that were not “similar or comparableâ€].) Circumstantial evidence may also be used to
raise a triable issue of material fact that an employer’s action was more
likely than not motivated by a discriminatory reason, but the circumstantial
evidence must be both “‘“specificâ€â€™â€ and “‘“substantial.â€â€™â€ (Morgan
v. Regents of University
Chaney
does not purport to offer any direct or statistical evidence establishing
intentional discrimination occurred. As
the trial court ruled, the mix of comparative and circumstantial evidence
offered in his opposition papers failed to raise a triable issue suggesting the
Department had acted with discriminatory animus.
evidence indicated he had received only positive reviews and promotions until
the OIA investigation was launched and the Maciel placement was made. But a history of exemplary performance in no
way refutes the Department’s position he failed to follow Department protocol
implementing Jessica’s Law, thus warranting investigation and counseling. Chaney’s self-assessment that his performance
was appropriate under the circumstances does not create a triable issue on
discriminatory animus. (See
Inc. (1999) 72 Cal.App.4th 798, 816 [“an employee’s subjective personal
judgments of his or her competence alone do not raise a genuine issue of
material factâ€].) Indeed, even if the
Department’s own failures resulted in an implementation policy with grey areas
that made Chaney’s errors inevitable, as long as the Department’s decisions to counsel
Chaney or transfer him were not motivated by discrimination, Chaney’s claims
fail. (See Guz, supra, 24 Cal.4th at
p. 357 [“if nondiscriminatory, [the employer’s] true reasons need not
necessarily have been wise or correctâ€].)
As for the OIA investigation, the initial inclusion of an Hispanic
employee in the group being reviewed dispels the assertion the Department
targeted only African-American employees.
The death of that individual during the investigation did not transform
a nondiscriminatory procedure into an improper one targeting only African-Americans.
Chaney’s
claim of discriminatory animus is further undermined by the fact there was an
African-American parole administrator who held what was apparently a high-turnover
position for a comparatively significant period of time. Moreover, Chaney offers no evidence from
Department records as to who succeeded him.
Instead, his argument is supported only by his own imprecise testimony: “The [African-American] person that took over
was one my senior supervisors, Mr. Breedlove.
And since that time Mr. Breedlove left the [D]epartment, and from my
understanding from the people who call . . . still stay in contact,
there’s been about eight to nine different parole administrators there in the
last year.†Finally, Chaney’s general contentions,
after extensive discovery had taken place, that other administrators had
placement problems in their districts but were not subjected to adverse
administrative actions, as he was, and that Martinez could not identify any
non-African-American employees who had a received a counseling letter that was
not purged after a year are insufficient to defeat the Department’s motion.
demonstrate disparate treatment between employees similarly situated to Chaney
in all relevant aspects and lacks the specificity required for circumstantial
evidence to create a genuine issue of material fact.
2. Chaney
Failed To Raise a Triable Issue of Material Fact on His Retaliation Claim
To establish a prima facie case of retaliation under FEHA, a
plaintiff must show he or she engaged in protected activity, the employer
subjected the employee to an adverse employment action and a causal link
existed between the protected activity and the employer’s action. (Yanowitz
v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042; see Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,
287-288.) Once an employee establishes a
prima facie case, the burden shifts to the employer to offer a legitimate,
nonretaliatory reason for the adverse employment action. (Yanowitz,
at p. 1042 [adopting the burden-shifting analysis of McDonnell Douglas Corp. v. Green, supra, 411 U.S. at pp.
802-805].) If the employer produces a
legitimate business reason for the adverse employment action, “the presumption
of retaliation ‘“‘drops out of the picture,’â€â€™
and the burden shifts back to the employee to prove intentional
v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004.)
Chaney
contends he suffered retaliation for complaining Maciel’s placement into
custody pending identification of housing compliant with Jessica’s Law was
“inappropriate, possibly illegal and was against ADA law.†Although protected activity under section
12940, subdivision (h), encompasses “a broad range†of activity, it must
nevertheless be related to proceedings or hearings under FEHA or acts made
unlawful by the statutory scheme. (See
[§12940, subd. (h), “makes it an unlawful employment practice ‘[f]or any
employer . . . to discharge, expel, or otherwise discriminate against
any person because the person has opposed any practices forbidden under this
part or because the person has filed a complaint, testified, or assisted in any
proceeding under this part’â€]; accord, Rope
v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 650.) Chaney’s complaint that a parolee’s placement
in custody may violate the ADA is wholly outside the scope of FEHA’s prohibitions. (See City
of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1156-1157 [“FEHA
broadly announces ‘the public policy of this state that it is necessary to
protect and safeguard the right and opportunity of all persons to seek, obtain,
and hold employment without discrimination or abridgment on account of . . .
physical disability [or] mental disability . . . .’â€].) To the extent Chaney contends—and it is
certainly not clear from his briefs in this court or before the trial court—he
was subject to retaliation for writing the November 19, 2008 rebuttal
letter and making other written complaints about the treatment he had received,
none of Chaney’s letters or complaints even remotely suggests he was complaining
about discrimination because of his race.
DISPOSITION
The judgment is affirmed. The
Department is to recover its costs on appeal.
PERLUSS,
P. J.
We
concur:
WOODS,
J.
SEGAL,
J.
title="">*
factual and procedural statement in an appellate brief to be supported by a
citation to the appellate record. (Cal.
Rules of Court, rule 14(a)(1)(C).) Chaney, however, largely cites to his own
statement of undisputed facts, the bulk of which the Department disputes, not
the underlying evidence scattered throughout the seven-volume record. “It is not the task of the reviewing court to
search the record for evidence that supports the party’s statement; it is for
the party to cite the court to those references. Upon the party’s failure to do so, the
appellate court need not consider or may disregard the matter.†(Regents of University of California v. Sheily (2004) 122 Cal.App.4th
824, 826, fn. 1; see also Byars v. SCME Mortgage Bankers, Inc. (2003)
109 Cal.App.4th 1134, 1140-1141; Gotschall v. Daley (2002) 96 Cal.App.4th
479, 481, fn. 1.) Nevertheless, we
exercise our discretion to consider Chaney’s arguments, but admonish counsel to
heed the rules of appellate procedure or risk jeopardizing client claims in the
future.
