Hughes v. Cal. Dept. of Corrections and Rehabilitation
Filed 1/23/14 Hughes v. Cal. Dept. of Corrections and Rehabilitation
CA2/5
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
CHARLES
HUGHES,
Plaintiff and Respondent,
v.
CALIFORNIA
DEPARTMENT OF CORRECTIONS & REHABILITATION,
Defendant and Appellant.
B238134
(Los Angeles County
Super. Ct. No.
BC355143)
APPEAL
from a judgment of the Superior Court of
the County of Los Angeles, Terry A. Green, Judge. Affirmed.
Kamala
D. Harris, Attorney General, Alicia B.
Fowler, Senior Assistant Attorney General, Jerald Mosley, Supervising Deputy
Attorney General, Gabrielle H. Brumbach and Bruce W. Reynolds, Deputy Attorneys
General, for Defendant and Appellant.
Law
Offices of Stephen J. Horvath, Stephen J. Horvath, Marcus J. Berger; Benedon
& Serlin, Douglas G. Benedon, and Gerald M. Serlin for Plaintiff and
Respondent.
>
INTRODUCTION
A
jury found in favor of plaintiff and appellant Charles Hughes (plaintiff) on
his cause of action for retaliation under the Fair Employment and Housing Act
(FEHA)
and awarded him damages in the amount of $1,670,393.37. On appeal, defendant and respondent State of
Corrections and Rehabilitation (the Department) contends that there was
insufficient evidence to support the jury’s finding of retaliation, the trial
court failed to instruct the jury properly on plaintiff’s burden to prove
back pay and overtime were improper, and there was insufficient evidence to
support the noneconomic damage award.
We
hold that there was substantial evidence to support the jury’s finding of
retaliation under FEHA, the trial court properly instructed the jury on
plaintiff’s burden to prove retaliatory intent, the jury properly awarded
damages for back pay and overtime, and there was sufficient evidence to support
the noneconomic damage award. Therefore,
we affirm the judgment in favor of plaintiff.
FACTUAL BACKGROUND
A. Plaintiff’s
Employment With the Department
Plaintiff
began his employment with the Department
as a correctional officer in 1994.
In 2000, plaintiff was promoted to the rank of correctional lieutenant. In 2004 and 2005, at the time of the incidents
that gave rise to this action, plaintiff was assigned as a correctional
lieutenant to California State Prison Los Angeles County (Los Angeles County state
prison) located in Lancaster.
While
employed at the Department, plaintiff was a member of the correctional police
officer’s union. In 1995, he became a
job steward. In that capacity, he
represented union members in “lower-level grievances . . . [and] small internal
affairs interviews.†In 1998, plaintiff
was elected chapter president of the union, a position he held at the time of
the incidents in question. In that position,
he “interface[d] with the warden [and] high-level managers . . . .†He also handled “high-level internal affairs
interviews†and “high-level disciplinary cases, such as terminations.â€
B. Protected
Activity
Segregation of Inmates
In
November 2004, plaintiff read a Los Angeles Times newspaper article about oral
arguments before the United States Supreme Court in the Garrison Johnson case.
name="_ftnref3" title="">[3] Based on the content of the article, plaintiff
had discussions with other union representatives because he knew, based on his
experience, that the Department’s representation to the Supreme Court—that it only
segregated inmates for the first 60 days from reception—was not true. Plaintiff then spoke to a news reporter at
the Press Enterprise and told her that “what [the Department’s attorneys] were
saying [to the Supreme Court was] absolutely not true and that [the Department]
use[d] race all the time . . . past the 60 days from reception.†He told the reporter that he believed “the
Department was lying†about racial segregation in the California prison
system.
After
speaking to the reporters, plaintiff met with Warden Charles Harrison and
requested any written policies that the Department followed concerning the
racial segregation of inmates. He also
told the warden about his conversation with the newspaper reporter. Plaintiff then had a similar conversation
with Chief Deputy Warden Montero and Lieutenant Frank. He was informed that the Department did not
have any written policies concerning the racial segregation of inmates.
Following
plaintiff’s interview with the reporter, a newspaper article was published that
accurately stated plaintiff’s experience regarding the racial segregation of
inmates in the California state prison system.
Plaintiff was quoted in the article as saying, “There’s no way I put a
black and a white together [in the same cell].â€
Sometime
after the newspaper article was published, plaintiff was notified that State
Senator Gloria Romero was convening a Senate hearing and he was asked to
testify. According to plaintiff, he
agreed to testify because “[w]ith this issue, [he] really had a very serious
concern with [his] Department because [correctional officers did segregate],
and [the Department was] lying about [the segregation policy] to
. . . the United States Supreme Court. [¶] And [he] thought, ‘wait a minute. If [the Department’s lawyers] have to lie
about what [correctional officers] do, maybe [the officers] shouldn’t be doing
this.’ [¶] And [he] had a big concern that because there
weren’t written policies, because [correctional officers did] this every day
and [the Department’s lawyers were] lying to the United States Supreme Court
and trying to cover this up—[correctional officers were] the guys that [were]
doing this. [He did] it every day so, .
. . [he] had deep concerns [that] ‘[correctional officers] shouldn’t be doing
this. And if [the Department had] to lie
about it, then there [was] a big problem.’
[¶] And that came from [his]
experience . . . as a correctional counselor and as a
lieutenant, so some other guys had big concerns about the code of silence, and [he]
had that concern as well. That was a
major concern. [¶] But [he] looked at it a little bit different,
too, because of [his] experience—because most of those guys are just
officers. [¶] [He] had the counselor experience and
lieutenant experience. [He] was the guy
who [was] actually [racially segregating inmates], and [he] had a big concern
about doing that because [the Department was] lying about it.â€
At
the state Senate hearing, plaintiff told the truth about the Department’s racial
segregation of inmates. Specifically, he
testified about “how at Lancaster [correctional officers] racially segregate past
the 60-day mark. [¶] [The Los Angeles County state
prison was] not a reception center. [It
was] a general population housing unit, and [correctional officers at the
facility did] intake people from reception and transfers, and [did] . . . what
[the Department] said [they] didn’t do.â€
A Department Director, Jeanne Woodford, attended the Senate hearing, as
did Bruce Slavin from the Department’s office of legal affairs.
2. Plaintiff’s Activities Concerning the
Comedy Show
In
May 2005, representatives of HBO approached the public information officer for
the Los Angeles County state prison about performing a comedy show at that facility. The public information officer informed Warden
Harrison that comedy shows had been performed twice before at a different
facility. The warden approved the
performance without reviewing the content in advance. Warden Harrison attended the performance,
which included the use of inappropriate language. According to the warden, the comedians “hit
upon all ethnic groups and all genders, poking fun at everybody.†He did recall that sexual props were used
during the show, including a “dildo†and
“fake breasts.â€
Warden Harrison
attended the entire show and laughed at times during the performance. But, during the course of the performance, the
warden recognized that “there were terms said or things said that [he] wish[ed
they] had known in advance . . . [so he] could have cautioned
against them.†He considered shutting
down the performance, but “elected to finish the comedy show.†He recalled thinking that the content could
be offensive to some people, and specifically recalled a comment that could
have been offensive to female staff.
Sergeant
Alfred Salazar was on duty and present during the comedy show. Three to five minutes into the performance,
Salazar “felt a hostile work environment.â€
During the show he witnessed “a lot of sexual harassment and racial
discrimination slurs/language . . . .†Warden Harrison was present, as was Captain
Wofford, but nothing was done to stop the performance. Salazar “was really bothered†by the show,
and he spoke to other staff members who “were [bothered] as well.â€
Because
Salazar feared retaliation if he complained about the show, he initially did
nothing in response to it. Seven or
eight days after the show, however, he contacted plaintiff, who was his union
representative, and plaintiff advised him to write a report detailing his
concerns about the show. Plaintiff, who
had not heard about the comedy show until he spoke to Salazar, was “absolutely
shocked†when he read Salazar’s report, and he reported the incident to his
superiors as required. He wanted his
entire chain of command to be aware of the incident at the prison.
On
May 16, 2005, during a management meeting, Associate Warden Downs referenced
certain adverse employment actions then pending against plaintiff. According to several persons who attended
that meeting, Downs made comments about plaintiff, such as “We got
him . . . they will string him up,†“We have him up against the
wall,†“[Plaintiff’s] ass would be nailed against the wall,†and “I think the
reason [plaintiff] is attacking this administration is due to the fact that he
has sustained adverse action with another one coming that will nail his ass to
the wall . . . .â€
No
one in the chain of command contacted plaintiff in response to his reports
about the comedy show, but he was contacted by the Department’s office of civil
rights. Kathy Salas from that office
conducted an intake interview with plaintiff in August 2005. Following that interview, the office of civil rights
began an investigation of the comedy show. In October 2005, Salas interviewed plaintiff
again. He told Salas what Salazar had
told him about the comedy show and discussed his concerns about retaliation. Although Salas concluded “that the comedy show
violated equal employment opportunity rules and regulations, as well as the
[Department’s] rules and regulations regarding sexual harassment and
discrimination,†and that discrimination and sexual harassment definitely
occurred during the comedy show. She did
not investigate plaintiff’s complaint about retaliation. She also determined that plaintiff’s
complaint about the comedy show constituted protected activity. The office of civil rights found that Warden
Harrison was responsible for allowing the comedy show to take place, and he
received disciplinary action for that decision. Warden Harrison left the Los Angeles County state prison
in November 2005 and accepted a position as associate warden at the state
prison facility in Norco.
C. Terminations
1. First Termination
According
to plaintiff, on September 10, 2004, he was
working as the watch commander. While he
was in the warden’s office with Lieutenant Henderson, plaintiff heard a radio
call about a serious incident. Plaintiff
and Henderson left the warden’s office and proceeded to the area of cell 149,
where he observed a group of correctional officers. Inside the cell, he saw an inmate lying face
down in a pool of blood. It appeared to
plaintiff that an inmate had been murdered.
Medical staff were in the cell with the inmate.
Plaintiff
began to take control of the crime scene.
Two investigative officers were at the scene taking photographs and
“telling people to clear the area.†Plaintiff assisted the investigators as they “isolate[d],
contain[ed], and control[led] the area.†He cleared “people from the area outside the
cell.†To help gain control of the crime
scene, plaintiff directed a squad officer to “place crime scene tape to
delineate the area of the crime scene.â€
About 10 minutes
after plaintiff arrived at the crime scene, medical technical assistant Brenda
Wimbish arrived in civilian clothing. As
she approached the tape, plaintiff directed her to stop. Two other medical assistants were already
performing CPR on the victim. According
to plaintiff, he and Wimbish “went back and forth a couple of times. [But o]nce [he] figured out that she wanted
the inmate transferred or moved, [he] immediately turned to . . . Officer
Ellis . . . and instructed him to go in there and help transport
the body.†Ellis assisted the two
medical assistants in removing the inmate from the cell and transporting him
out of the building.
Based on
plaintiff’s experience, he believed the inmate was dead.
He told his custody staff, “slow down,
chill out. He’s dead.†Plaintiff later told investigators that he
did not remember if Associate Warden Fakhoury ordered him to allow Wimbish
access to the scene. Plaintiff recalled
interacting with the associate warden at the scene, but did not remember what
had been said.
In September
2004, Brenda Wimbish was a senior medical technical assistant at the Los Angeles County state prison in Lancaster. On September 10, she was in her office in the
central infirmary when she was informed that there was a nonresponsive inmate
in the administrative segregation area who was en route to the triage treatment
area or emergency room. She went to the
emergency room and waited for the inmate patient to arrive. Doctors were present, and she was asked
numerous times, “What’s taking them so long, why isn’t the patient here?†Wimbish was informed that the inmate patient
was nonresponsive and medical staff at the scene were not being allowed to
transport him.
Wimbish, along
with other medical and custody staff, proceeded to the scene where she saw
plaintiff and a security squad that was taking photographs. When Wimbish went “underneath the taped-off
area,†plaintiff informed her that she “was impeding a crime scene and directed
[her] to leave.†She told plaintiff they
were waiting in the emergency room for the patient. Plaintiff told her, “Chill out, Wimbish, the
patient is dead.†Wimbish told plaintiff
he was placing the inmate patient’s life in jeopardy and exposing the
Department to possible litigation.
Plaintiff again directed Wimbish to leave the crime scene.
Lieutenant
Walton told Wimbish to speak with Associate Warden Fakhoury who was also on
scene. Wimbish explained to the
associate warden that there were no medical staff in the building who were
qualified to pronounce the inmate dead and that qualified medical staff were
waiting for the inmate in the emergency room.
The associate warden immediately directed the custody staff to allow the
medical staff to transport the inmate to the emergency room, which they did.
As a result
of the incident, Wimbish wrote a memorandum detailing the incident with
plaintiff. She wrote the memorandum
because custody staff had impeded medical staff in rendering medical services,
which she considered a serious issue that needed to be addressed by “a higher
administration.â€
Based on
Wimbish’s memorandum, Warden Harrison made a written request for an internal
affairs investigation on January 13, 2005, i.e., four
months after the incident. According to
the request, plaintiff violated the “Emergency Medical Response Protocol†by
denying Wimbish access to the inmate patient and making an unauthorized
determination that the inmate was dead.
On January 31, 2005, internal affairs special
agent Richard Cortez was assigned to conduct the investigation requested by
Warden Harrison. Cortez began witness
interviews in July 2005. According to
plaintiff’s wife, on the evening of July
19, 2005, Cortez called plaintiff at home concerning service of a
notice of hearing. Plaintiff told Cortez
not to come to his home and instead to serve the notice on him at work. Shortly thereafter, at around 9:00 p.m., Cortez knocked on
plaintiff’s door and “just ended up coming in.†Plaintiff’s wife was angry, and her children
were scared. Plaintiff’s wife called the
prison the next day and complained. She
also filed a written complaint about the incident. Two of plaintiff’s experts opined that Cortez
should have recused himself from the investigation based on the complaint. Cortez received a written admonition, but was
not removed from the investigation.
During the course of his
investigation, Cortez interviewed 34 witnesses and attached 50 exhibits to his
final investigation report. The report
listed four allegations of misconduct by plaintiff: (1) he violated the “Emergency Medical
Response Operational Procedure†when he ordered Wimbish out of the crime scene
after she had responded to the scene to arrange the transfer of the inmate to
the infirmary; (2) he made an unauthorized medical assessment of the inmate
when he told Wimbish to “Chill out he is already dead†and “‘He’s dead, there
is nothing we can do;’†(3) he ordered two other responding medical technical
assistants out of the crime scene, thereby preventing them from assisting the
medical assistants already on scene; and (4) he was dishonest when he stated in
his internal affairs interview that the associate warden did not order him to
allow Wimbish access to the inmate. The
report concluded by referring the matter to the hiring authority.
Although
Cortez’s final report reflected that plaintiff allegedly violated the
Department’s medical emergency response policy, the report failed to disclose that
plaintiff had not been trained in that policy.
Moreover, the report did not disclose that Cortez had interviewed
Gerardo Cardenas, an in-service training officer, who confirmed that plaintiff
had not been trained in that policy. Cardenas also confirmed
that, if plaintiff had been trained in that policy, it would have been
reflected in plaintiff’s training log, which documentation was available for
review by internal affairs investigators.
As to the
allegation of dishonesty, Cortez’s report, which was required to identify the evidence
in support of each allegation, did not cite as evidence the statement plaintiff
made to investigators concerning whether Associate Warden Fakhoury had
instructed plaintiff to allow Wimbish access to the inmate patient. Specifically, the report did not disclose
that during an internal affairs interview of plaintiff he was asked, “Why would
[Associate Warden Fakhoury] say he told [you] to back off so [medical staff]
can move the inmate out [of the cell]?â€
Plaintiff responded by explaining “I don’t’ know why [Associate Warden
Fakhoury] would say it. You have to ask
[him]. I could tell you that I never
heard that.â€
Cortez’s
report was forwarded to Deputy Director Michael Knowles to make the final
decision concerning plaintiff’s termination.
One of plaintiff’s experts explained
that, as the hiring authority, Knowles was required to review the investigative
report and determine if “there is sufficient evidence to support a possible
adverse action.†That expert also stated
that each allegation of misconduct set forth in the report was to be followed
by bullet points detailing the evidence in support of the allegation. Knowles recognized that the allegation of
dishonesty in the report was not supported by a bullet point specifying the
statement or statements plaintiff made to the investigator that were dishonest,
but he nevertheless sustained the dishonesty allegation on the assumption that
the allegation was true.
Based on
Knowles’s decision to terminate plaintiff, the Department sent him a notice of
adverse action dated October 19, 2005, advising
plaintiff that he was dismissed from his position of correctional lieutenant
effective November 1, 2005.
That notice included the allegation of
dishonesty based on plaintiff’s alleged denial to the internal affairs
investigator that Associate Warden Fakhoury ordered him to allow Wimbish access
to the inmate patient.
On November 24, 2005, Knowles issued a modified
notice of adverse action setting the effective date of plaintiff’s termination
as December 13, 2005. That notice again set forth the allegation of
dishonesty contained in the initial notice, but included two additional
allegations of dishonesty: (1) plaintiff
denied in his internal affairs interview that he gave medical staff any
directions on the date of the incident in question; and (2) plaintiff asserted
in that same interview that he would never impede medical staff from entering a
crime scene to treat an injured inmate.
Those allegations were not in the internal affairs report and were not
the subject of plaintiff’s Skelly hearing.
2. Second Termination
When
Hughes was elected chapter president of the union in 2004, correctional officer
Eric Stanback was elected vice-president.
Soon after the election, in January 2005, Stanback started a recall
election against plaintiff. Stanback
accused plaintiff of stealing money from a nonprofit organization that
plaintiff ran
title="">[9]
and asked officers to sign a petition to have plaintiff recalled. In March 2005, plaintiff called Stanback and
said, “Do you remember Reno, do you remember where we went in Reno?†According to plaintiff, he was referring to
an incident that occurred at a union convention in Reno. During that convention, Stanback asked
plaintiff to accompany him to a brothel where plaintiff, who was married, “had
a drink and . . . Stanback partaked [sic]
in the activities . . . .â€
Plaintiff was off duty when he called Stanback, and the call related to
union activities, not his job as a correctional lieutenant. Three other union members were in the car
when plaintiff called Stanback.
Two
days after the telephone call, Stanback submitted a memorandum to Warden
Harrison complaining about the call.
According to Stanback, in addition to referencing the brothel in Reno, plaintiff
also stated, “I’m Charles Hughes, and I’ll get you.â€
The
following month, after Stanback had been absent from union meetings, plaintiff,
while off duty, telephoned Stanback’s supervisor, Sergeant Eltzroth, and
informed him that because Stanback had been removed as a union job steward, he should
not be given permission to leave his post to attend a union meeting scheduled
for that day, unless he took time off and made arrangements to cover his post.
Based on that
telephone call, Stanback was denied permission to leave his post and, at the
union meeting later that day, he was temporarily removed as vice-president for
failing to attend union meetings. In
response, Stanback immediately sent Warden Harrison a memorandum complaining
that plaintiff misused his position as lieutenant to prevent Stanback from
attending the union meeting.
Based
on Stanback’s complaints about plaintiff, Warden Harrison submitted a request
for investigation to internal affairs senior special agent Linda Hidy on May 10, 2005. But Hidy rejected the
Warden’s request because she determined that the alleged misconduct involved supervisory
issues that did not warrant an internal affairs investigation of misconduct. Warden Harrison then contacted his supervisor,
regional administrator Wendy Still, who decided to resubmit the request for
investigation to internal affairs.
request. Internal affairs rejected the
requests because the allegations against plaintiff were based on his off-duty
union activity.
By
a memorandum to the Department’s internal affairs assistant secretary, Still requested
that the allegations against plaintiff be reconsidered. Thereafter, the Department’s Sacramento
headquarters ordered Hidy to accept the investigation requests concerning
plaintiff. Hidy therefore approved the
investigation requests and assigned internal affairs investigator Gene Pettit
to conduct the investigation.
During
Pettit’s internal affairs interview of him, plaintiff denied that he said “I’ll
get you†to Stanback during the telephone call about the Reno incident. Plaintiff also identified three witnesses who
would corroborate that plaintiff did not say “I’ll get you†to Stanback in the
telephone call. Pettit, however, did not
interview those three witnesses.
To
support his complaint about being removed as union vice-president, Stanback
provided Pettit with one page from the union minutes showing that Stanback had
been removed from his position on the union’s board of directors. But Pettit did not obtain a complete copy of
the minutes which reflected that during the same meeting, plaintiff restored
Stanback to the union’s board.
On
November 4,
2005, Pettit forwarded his investigation
report to the hiring authority Knowles.
misconduct against plaintiff, including the two incidents discussed above
involving Stanback, i.e., the telephone call to Stanback about the Reno incident and
the telephone call to Eltzroth advising him to deny Stanback permission to
attend a union meeting. Pettit included
summaries of his interviews of 10 witnesses, including a summary of his
interview of plaintiff, and attached 20 exhibits to his report.
When
Knowles reviewed Pettit’s report, it did not contain any specific allegation of
dishonesty against plaintiff.
Nevertheless, based on that report, Knowles issued a notice of adverse
action
allegations of misconduct, including a new allegation asserting dishonesty
against plaintiff. The first allegation
was based on plaintiff’s telephone call to Stanback about the Reno incident. The second allegation was based on
plaintiff’s conversation with Eltzroth during which he advised Eltzroth not to
grant Stanback time off to attend the union meeting. But that second allegation further alleged
that plaintiff had been dishonest when he told Eltzroth that Stanback had been
removed from his position with the union because the union did not remove
Stanback as vice-president until after the conversation between plaintiff and
Eltzroth.
In
making his decision to terminate plaintiff based on, inter alia, the newly
added dishonesty allegation, Knowles was aware that plaintiff had told Pettit
during the internal affairs interview that when plaintiff spoke to Eltzroth, he
advised him that he had removed Stanback from his job steward position, not his
position as vice-president.
Nevertheless, Knowles found by a preponderance of the evidence that
plaintiff falsely represented to Eltzroth that Stanback had been removed as
vice-president.
On
November 14,
2005, Knowles sent a letter notifying
plaintiff of Knowles’s decision to terminate him. Although the letter stated that “formal
Adverse Action papers†would be served within 30 days, the formal notice of
adverse action attaching Pettit’s report and exhibits, i.e., the Skelly
package, was not sent to plaintiff until March 1, 2006. That notice stated that plaintiff had been
terminated effective January 2, 2006, notwithstanding
that plaintiff’s first termination was effective December 13, 2005. Plaintiff’s expert opined
that he was unaware of any authority that would allow the Department to
terminate an employee who had already been terminated.
Plaintiff
was not given a Skelly hearing on the second termination until April 11, 2006. The hearing officer, Chief
Deputy Warden Linda Schulties, recommended to Knowles that the second
termination be upheld, despite her admission that she had never recommended
firing a former employee who had already been fired. Schulties believed that the second termination
was necessary in the event the first termination was overturned. The Department notified plaintiff of its
final decision to impose the second termination on May 30, 2006. Although Knowles acknowledged
that he was the hiring authority and decisionmaker for the second termination,
the Department’s letter asserted that Deputy Director Scott Kernan had made the
final decision.
D. State
Personnel Board Appeals
Plaintiff
appealed both of his terminations to the state personnel board (board). Following a hearing before an administrative
law judge on the first termination, the board adopted the judge’s findings and
decision that reversed plaintiff’s termination.
According to the adopted decision, “[the Department] failed to prove by
a preponderance of the evidence any of the causes for discipline alleged
against [plaintiff].†The adopted
decision ordered as follows: “The action
of the appointing power dismissing [plaintiff] from his position as a
Correctional Lieutenant is revoked.
Jurisdiction is reserved in the event the parties are unable to agree to
back salary, benefits, and interest due [plaintiff] under the provisions of
Government Code section 19584.â€
Following
a hearing before an administrative law judge on the second termination, the
board adopted a resolution ruling that the appeal from the second termination
was dismissed on the grounds that the board had no jurisdiction to hear an
appeal from a dismissal that was “void and of no effect.†According to the board’s adopted resolution,
“a dismissal is a permanent separation from state service, and . . .
appellant was not a state employee at the time of the [second
termination] . . . .†Accordingly, the board concluded that the
second termination “imposed upon [plaintiff] with the effective date of January 2, 2006 [was] deemed null and void
and the appeal therefrom [was] dismissed.â€
E. Damages
Plaintiff’s
economic expert calculated that plaintiff suffered economic damages in the form
of lost wages and overtime in the amount of $448,856.98. According to plaintiff, the two terminations
caused him to suffer emotional distress and physical injury. “Q.
Did the stress affect your health in any way? A.
Yeah. After I was fired, I went
to the doctor and it was a while after I was fired, and it was just building
up, and I was—I had to get put on diabetes medicine, high blood pressure,
cholesterol meds. I couldn’t sleep, so I
got some sleeping meds, medications, and I just jumped right into trying to
defend myself and trying to get my job back, which at the end it was
successful, but it was a long road and a lot of hearings and, you know, it took
a lot of work to undue what they did in the sense of my job and getting it
back, and I did.â€
Plaintiff
also believed that the two terminations damaged his reputation. “Q.
What about your reputation? Do
you feel that it affected your reputation?
A. Yeah, I was publicly fired and
really where that I think really—I think it affected my family more. My daughter Ashley, she would get teased and
they’d say, you know, you’re poor now and your daddy got fired and they
actually did—I was the current events.
My news articles about being fired was their current event in their
class and the teachers assigned those out.
It’s pretty amazing.â€
And
plaintiff believed that the two terminations damaged his career. “Q.
And do you believe that you suffered harm to your career? A.
I’ve done really well taking tests and promoting and I—as I testified, I
went [up] on both sides, the union side, and I’ve went up the Department side,
number one ranked lieutenant in the state, but I think that side is pretty much
done. In fact, I don’t—I actually don’t
even think I’m going to be a lieutenant much longer because—I mean, a
lieutenant is a very responsible job, and you’ve got a lot of responsibilities,
and I believe they’re going to do this to me again, it’s just a matter of time,
but I’m going to go back to work and do what I can do.†[¶] . . . [¶] Q. And do you have any feelings about your
ability to promote in the future?
A. I don’t believe there’s going
to be any possibility of promoting.â€
Plaintiff’s
wife also believed that the two terminations had caused plaintiff to suffer
emotional distress and physical injury.
“How [the two terminations] affected my husband, he has always been a
busy—he’s always been very busy. But he
was—the stress was not there. He was
able to work overtime, come home and sleep very well [at] night. [¶]
After the terminations, he became a different person. He—it was just extremely stressful. He no longer was able to leave his work
outside of our home, because before he was able to work 6:00 to 2:00, or even a double, come home, and he would leave everything right
at work. [¶] Now, with the terminations, he, obviously,
brought them home. He was extremely
stressed. He was not sleeping at
night. He went to the doctor and got
sleeping pills. They didn’t work. He had to get more. He had high blood pressure that he didn’t
have before. He started eating a lot
more, because he was just stressed.
[¶] And, as a wife, I was, honey,
but then he just was so stressed. He
just would eat. He’d go to the
doctors. He ended up with diabetes—he
ended up with high blood pressure, diabetes, high cholesterol, after this
started. [¶] So the long hours, I know that a lot of
people work long hours and, maybe, commute, but it was very separate. It wasn’t the same kind of stress that he
constantly was in. He would come home,
he would constantly be reading documents like this, in our home. So that’s what my kids saw. My kids didn’t just see a dad who just went
to work and came back. They saw him
obsessing over documents. [¶] And when my kids would approach him, he would
be very grumpy, and he would say, not now, not now, now is not a good
time. Or he would—they would try to talk
to him and he would be—because he would be home, obsessing over this, and he
would say, now is not a good time, or, come back later, or—so he just became a
different—a different person.â€
Plaintiff’s
medical expert opined that the stress from the two terminations caused
plaintiff to develop medical conditions and also aggravated existing
conditions. “Q. Okay, well, can you explain to the jury these
ailments that you identified and how stress—how they’re related to stress. A. There
were four different ailments that [plaintiff] suffers from. The first were digestive problems. These predated his stressors with the
[Department]. And he had been on
over-the-counter Tums for some years, which began in or about 2003. So he has reflux, or heartburn; a condition,
again, that preexisted the stress.
[¶] Through and after the stress,
this condition worsened, per [plaintiff], and now actually requires, or did
require in or about 2005, treatment with prescription medication, including
something called Nexium. [¶] So the symptom was there before and then was
aggravated after these stresses. And the
relationship there is that with stress comes increased adrenaline, comes
increased acid production, hydrochloric acid to the stomach. [¶] If
someone has reflux where acid comes back up, as most of us have felt, increased
stress both subjectively and objectively increases the acidity that one would
perceive. And that would be the injury
with regard to the digestive system. [¶] The second would be with regard to
[plaintiff’s] diabetes. Although diabetes
is a process that takes years to develop, it was first diagnosed in or about
2007. So there was no evidence of
diabetes documented in the medical records until and after he was evaluated by
another physician. And that was also
documented in the Kaiser records. So the
first documentation there was in 2007, about August of that year. And, therefore, there was no preexisting
diabetes, although there can be a preexisting tendency towards diabetes. [¶]
There again, stress is well-documented in the medical literature to be
associated with the development over aberration of diabetes, just as other risk
factors can be, such as weight, such as cigarette smoking, etc. [¶] So
we went from somebody with no diabetes to being diagnosed with diabetes. And the medical literature substantiates the
fact that these are not just coincidental findings, but in a given case can be
actually causally related. [¶] Number [three] was sleep disorder. [Plaintiff] had a history of what is called
sleep apnea, dating back to approximately the early 2000’s. [¶] And
sleep apnea is a process by which there is haphazard disordered breathing or
even stoppage of breathing during sleep.
It can be related to a number of things, some of which can be traumatic;
some of which are related to weight.
[¶] In [plaintiff’s] case, this
was, again, documented several years prior.
So this is a preexisting condition in terms of a sleep disorder. [¶]
However, [plaintiff] also had a surgery, which was a repair of his
tonsils and the pharynx area, which, according to him, gave a significant
improvement. And that surgery was done
about May of 2004. And his sleep[less]ness
improved at that time. [¶] Subsequently, [plaintiff] developed further
sleep disturbances based on his psychologic stress related to the processes
that were going on as a result of his employment. And that progressed to the point that he was
placed at Kaiser on Ambien, which is a sleep medication, absent which he had
extreme difficulty sleeping. And no
sleep study has been performed in the recent past. [¶]
Therefore, he had a preexisting sleep disorder, with improvement after
surgery, which has now deteriorated again after these stresses, which have
caused him to develop again irregular sleep.
[¶] And the last was hypertension. Again, first diagnosed in about 2007, several
years after his stressors began, was diagnosed by several industrial
physicians, and has been treated with medication since that time.†Plaintiff’s expert further concluded that
plaintiff’s medical conditions would require future care and treatment.
PROCEDURAL BACKGROUND
Plaintiff
filed a first amended complaint against the Department and several of its
individual employees asserting causes of action for: (1) discrimination, harassment, retaliation
under FEHA; (2) wrongful termination in violation of public policy; and (3)
intentional infliction of emotional distress.
Following two defense summary judgment motions, the case proceeded to
jury trial against the Department only on the FEHA retaliation claim. In a special verdict, the jury found in favor
of plaintiff on his retaliation claims based on his protected activities of
testifying before the state Senate on racial segregation and complaining about
the talent show. The jury concluded that
the Department was aware of those protected activities before imposing the
first and second terminations, plaintiff’s protected activities were a
motivating reason for those adverse employment actions, and the Department’s
retaliation was a substantial factor in causing injury to plaintiff. The jury awarded plaintiff damages in the
total amount of $1,670,393.37 comprised of $233,172.06 in lost earnings, 187,221.31
in lost overtime earnings, $1,000,000 for past noneconomic loss, and $250,000
for future noneconomic loss.
DISCUSSION
A. Substantial
Evidence
of Review
The
Department’s challenge to the sufficiency of the evidence in support of the
jury’s finding of retaliation is governed by the substantial evidence standard
of review. “‘Where findings of fact are
challenged on a civil appeal, we are bound by the “elementary, but often
overlooked principle of law, that . . . the power of an appellate court begins
and ends with a determination as to whether there is any substantial evidence, contradicted
or uncontradicted,†to support the findings below. [Citation.] We must therefore view the evidence in the
light most favorable to the prevailing party, giving it the benefit of every
reasonable inference and resolving all conflicts in its favor in accordance
with the standard of review so long adhered to by this court.’ [Citation.]†(Bickel v. City of Piedmont, supra, 16
Cal.4th at p. 1053.)
Principles
“Past
California cases hold that in order to establish a prima facie case of
retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected
activity,’ (2) the employer subjected the employee to an adverse employment
action, and (3) a causal link existed between the protected activity and the
employer’s action. (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th
803, 814-815 [89 Cal.Rptr.2d 505]; Flait v. North American Watch Corp.
(1992) 3 Cal.App.4th 467, 476 [4 Cal.Rptr.2d 522] [adopting the title VII
(Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.) burden-shifting analysis
of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-805 [36
L.Ed.2d 668, 93 S.Ct. 1817]].) Once an
employee establishes a prima facie case, the employer is required to offer a
legitimate, nonretaliatory reason for the adverse employment action. (Morgan v. Regents of University of California
(2000) 88 Cal.App.4th 52, 68 [105 Cal.Rptr.2d 652].) If the employer produces a legitimate 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 retaliation. (Ibid.)†(Yanowitz
v. L’Oreal USA, Inc. (2005) 36
Cal.4th 1028, 1042.)
3. Protected Activity
Although
the Department concedes that plaintiff’s complaints about the comedy show
constituted protected activity under FEHA, it contends that his testimony
before the state Senate did not constitute protected activity. According to the Department, in his testimony
before the state Senate, plaintiff was complaining that the Department’s
lawyers were lying to the Supreme Court about its segregation policies, and
complaints about lying do not constitute protected activity.
In
the special verdict, the jury found that plaintiff’s state Senate testimony
constituted protected activity, and substantial evidence supported that
finding. Plaintiff’s trial testimony,
when read in light of the substantial evidence standard of review, supported a
reasonable inference that he was not just concerned about the Department lying
about its racial segregation policy, but also about the legality of that policy
and the ramifications of his participation in the enforcement of that policy,
as well as the participation of other correctional officers. Specifically, plaintiff testified at trial
that the fact the Department was lying about the policy concerned him and other
officers because they were segregating inmates based on race “every day†and he
“was the guy who [was] actually [racially segregating inmates], and [he] had a
big concern about doing that because [the Department was] lying about it.†Plaintiff further testified that “[i]f [the
Department’s lawyers] have to lie about what [correctional officers] do, maybe
[the officers] shouldn’t be doing this.â€
Under
FEHA, an employer’s policy requiring an employee to racially discriminate as a
term or condition of employment is an unlawful employment practice. (See Moyo
v. Gomez (9th Cir. 1994) 40 F.3d 982, 985 [if employee can show that he was
discharged for refusing to carry out or otherwise protesting the defendant’s
policy of racial discrimination against inmates, the employee states a claim
based upon an unlawful employment practice].)
Based on plaintiff’s trial testimony concerning his reasons for
testifying before the state Senate, a reasonable juror could have concluded
that his state Senate testimony was protected activity under FEHA because it
could fairly be construed as a complaint about or protest against being
required, as a condition of employment, to engage in illegal activity. Therefore, substantial evidence supported the
jury’s finding that plaintiff’s state Senate testimony was protected activity
under FEHA.
The
Department contends that plaintiff’s belief that the Department’s segregation
policy was illegal was not objectively reasonable because inmates are not
employees of the Department and, thus, its policy of segregating them could not
be an employment practice under FEHA.
But, as explained above, plaintiff’s testimony, although not perfectly
clear, supported a reasonable inference that the employment practice about
which plaintiff was complaining was the Department, as a term or condition of
his employment, requiring him and other correctional officers to, in effect,
segregate inmates based on race. Under
FEHA, that is an unlawful employment practice.
(Gov. Code, § 12940, subd. (i) [“It is an unlawful employment
practice . . . [F]or any person to . . . compel . . . the doing of any of the
acts forbidden under this part, or to attempt to do soâ€].)
The
Department further contends that plaintiff did not make it aware that he was
complaining about being required to participate in unlawful
discrimination. This contention is not
supported by the record. Plaintiff’s
trial testimony on the issue—when read in a light most favorable to the jury’s
finding, giving it the benefit of every reasonable inference and resolving all
conflicts in favor of the finding—supported a reasonable inference that he
testified before the Senate based on his concern about being required to segregate
inmates by race, and the Department representatives who were present at the
hearing were therefore aware of his concern.
4. Retaliatory Intent
The
Department contends that there was insufficient evidence to support the jury’s
finding that the Department terminated plaintiff because it knew of his
protected activities. According to the
Department, the various employees involved in the two terminations had little
or no knowledge about plaintiff’s state Senate testimony or the comedy
show. The Department further contends
that the investigations leading up to the two terminations were initiated prior
to plaintiff’s protected activities and the evidence, “as a whole,†shows that
the Department had a good faith belief that plaintiff had engaged in misconduct.
a. First
Termination
Substantial
evidence supported the jury’s conclusion that plaintiff’s protected activities
were a motivating reason for the first termination. Plaintiff’s expert testified that internal
affairs investigator Cortez had a conflict of interest and should have been
removed from the investigation based on the complaint by plaintiff’s wife. Nevertheless, the Department allowed Cortez
to conduct the investigation. That
evidence supported a reasonable inference of a retaliatory motive behind the
investigation that led up to the first termination. That the Department would allow an
investigator, who had the appearance of bias against plaintiff, to continue to
investigate him suggested that the Department was intent on terminating plaintiff,
even if his alleged misconduct did not warrant such action.
That
inference of bias at the outset of the first investigation was bolstered by the
fact that although Cortez knew or should have known from his interview of
in-service training officer Cardenas that plaintiff had not been trained in the
medical policy, he was accused of violating, Cortez did not include that
mitigating information in his final report as required. A reasonable juror could properly infer from
that omission a retaliatory motive, i.e., the investigation was unfairly biased
against plaintiff and in favor of termination.
Similarly, the evidence of comments made by Associate Warden Downs at
the May 2005 management meeting concerning management’s desire to “nailâ€
plaintiff in the pending adverse employment actions against him, supported an
inference that certain managers or supervisors in the Department were intent on
terminating plaintiff. And there was
evidence that one of Downs’s comments at that meeting alluded to a connection between the
pending adverse employment actions and plaintiff’s “attacks†on Warden
Harrison.
Knowles’s
actions in making the final decision to terminate plaintiff the first time also
supported a reasonable inference of retaliatory intent. First, Knowles knew about plaintiff’s
complaints about the comedy show, and there was circumstantial evidence from
which the jury could have reasonably inferred that Knowles knew about
plaintiff’s Senate testimony, including evidence that Knowles regularly attended
weekly meetings at which the Johnson
case and the Department’s racial segregation of inmates was discussed.
decided to terminate plaintiff the first time based on the dishonesty
allegation, Knowles was aware that the investigator’s report did not specify
the evidence in support of that allegation as required. Nevertheless, he terminated plaintiff on the
assumption that evidence supported that allegation. In addition, there was evidence that Knowles
modified the notice of adverse action to include two additional allegations of
dishonesty, neither of which had been the subject of the first investigation or
the first Skelly hearing. This evidence supported
a reasonable inference of bias or animus against defendant, i.e., Knowles—as the
decisionmaker for the first termination and with knowledge of plaintiff’s
protected activities—deviated from standard disciplinary procedures to ensure
that plaintiff would be terminated.
b. Second
Termination
There
was also substantial evidence to support the jury’s finding that plaintiff’s
protected activities were a motivating factor in the Department’s second
termination of defendant. Plaintiff’s
expert testified that because the allegations underlying the second termination
were based on his off-duty union activities, they were not the proper subject
of an internal affairs investigation.
That evidence, when combined with the evidence that internal affairs
twice rejected the request to investigate on that basis, supported an inference
that from the start of the second investigation, the termination was improperly
motivated. That inference was also
supported by the failure of internal affairs investigator Pettit to interview
the three witnesses that plaintiff claimed would substantiate his denial of
Stanback’s allegation that plaintiff said, “I’ll get you†during the telephone
call about the Reno incident. Pettit
also failed to obtain a complete copy of the minutes of the union meeting at
which Stanback claimed plaintiff removed him from the board. Those complete minutes showed that, at the
same meeting at which Stanback alleged he was removed from his union position,
plaintiff reinstated him to that position.
Pettit’s failures in this regard supported a reasonable inference that
the second investigation was biased and unfair and, therefore, designed to
ensure that defendant would be terminated a second time.
In addition, as
was the case with the first termination, Knowles—as the decisionmaker on the
second termination and with knowledge of plaintiff’s protected activities—added
an allegation of dishonesty to the notice of adverse action that had not been
included in the investigation report.
Again, the addition of that allegation, when it had not been
investigated by internal affairs, supported a reasonable inference that Knowles
was attempting to ensure that plaintiff would be terminated a second time.
Finally, that
the Department pursued the second termination after defendant had already been terminated, strongly suggested that the Department wanted to ensure
plaintiff’s termination. In light of the
foregoing evidence concerning the second investigation and the Department’s
continued pursuit of the second termination even after the first termination,
it was reasonable for the jury to conclude that the second termination was
retaliatory.
As
to both terminations, the Department raises several fact-based arguments, each
of which, in effect, urges us to reweigh and reevaluate the evidence and make
independent credibility determinations. But,
under the applicable standard of review, we cannot retry the case on
appeal. We therefore reject the
Department’s arguments concerning the evidence in support of the jury’s finding
of retaliation, as those arguments are grounded on the faulty premise that an
appellate court can second-guess the trier of fact on appeal and substitute its
judgment for that of the trier of fact.
As explained above, under the substantial evidence standard of review,
we are limited to a determination of whether there is any substantial evidence, contradicted or uncontradicted, that
supports the verdict. As explained
above, substantial evidence supported the jury’s finding of retaliation.
B. Instructional
Error
1.
Standard of Review
The
Department’s contention that the instructions on retaliation under FEHA were
inadequate or erroneous is reviewed de novo and its contention that such
erroneous instruction of the jury prejudiced its defense is reviewed to
determine whether the improper instructions misled the jury and affected the
outcome of the trial. “‘“‘The propriety
of jury instructions is a
question of law that we review de novo.
[Citation.]†(Cristler v. Express Messenger Systems,
Inc. (2009) 171 Cal.App.4th 72, 82 [89 Cal.Rptr.3d 34].)
If an instruction is found to be
erroneous, reversal is required only when “it appears probable that the
improper instruction misled the jury and affected [its] verdict. [Citation.]†(Lundquist v. Reusser (1994) 7 Cal.4th
1193, 1213 [31 Cal.Rptr.2d 776, 875 P.2d 1279].)’ (SCC Acquisitions, Inc. v. Central Pacific
Bank (2012) 207 Cal.App.4th 859, 863 [143 Cal.Rptr.3d 711].) In determining whether a jury was likely
misled, the court must also evaluate ‘“(1) the state of the evidence, (2) the
effect of other instructions, (3) the effect of counsel’s arguments, and (4)
any indications by the jury itself that it was misled.†([Soule v. General Motors Corp. (1994)
8 Cal.4th 548,] 580-581 [34 Cal.Rptr.2d 607, 882 P.2d 298].)’ (Heard v. Lockheed Missiles & Space Co.
(1996) 44 Cal.App.4th 1735, 1757 [52 Cal.Rptr.2d 620].)†(Spriesterbach
v. Holland (2013)
215 Cal.App.4th 255, 263.)
The
Department contends that the trial court erred when it refused to instruct the
jury with the Department’s proposed instruction nos. 7 (plaintiff must offer
substantial evidence that intentional retaliation based on plaintiff’s
protected activities was “the motivating reason for the terminationsâ€), 8 (employer
can terminate if it honestly believed reasons and acted in good faith), 12 (definition
of pretext), and 13 (employer can terminate if not discriminatory). According to the Department, the requested
instructions “followed the law†and would have provided the jury with the
essential elements of plaintiff’s retaliation claim.
Although
the Department summarily concludes that its four proposed instructions followed
the law, it makes no effort on appeal to substantiate that conclusion. As to each proposed instruction, the
Department fails to identify the case or statute that the instruction
purportedly follows. Absent a reasoned
discussion of the specific language of each instruction and the case law or
statute that supports it, the Department fails at the outset to carry its
burden on appeal to demonstrate instructional error. (See Bullock
v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685 [“An appellant
must affirmatively demonstrate error through reasoned argument, citation to the
appellate record, and discussion of legal authority. [Citations.]
Accordingly, we cannot conclude that the refusal to give an instruction
was error absent an adequate showing that the proposed instruction was proper. [Citation.] . . .
By failing to discuss the entire instruction and failing to explain why
it was proper, [appellant] fails to carry its burden to demonstrate errorâ€].)
In any event,
the proposed instructions were argumentative (People v. Battle (2011) 198 Cal.App.4th 50, 85) and in some
respects were not consistent with the law.
For example, plaintiff’s proposed special instruction no. 7 stated that
plaintiff had the burden of showing that defendant’s retaliation based on
plaintiff’s protected activity was “the motivating reason†for the
terminations, i.e., plaintiff must prove causation under a “but forâ€
standard. That is a misstatement of the
law. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 219 (
for causation and endorsing an “a substantial factor†standard in a FEHA
discrimination case].) Moreover, the
instructions were not necessary, as the instructions given adequately covered
the necessary points. (See
Cal.App.4th at p. 685.) And the
Department does not specify why its proposed instructions were essential to
clarify the claimed deficiencies in CACI No. 2505.
3.
CACI No. 2505
In a related
argument, the Department maintains that the instruction on retaliation given by
the trial court—CACI No. 2505—was improper and misled the jury because it did
not specify that plaintiff had the burden of showing causation under “a
substantial factor†standard.
name="_ftnref14" title="">[14] Plaintiff counters that, under the doctrine
of invited error, the Department is prohib
| Description | A jury found in favor of plaintiff and appellant Charles Hughes (plaintiff) on his cause of action for retaliation under the Fair Employment and Housing Act (FEHA)[1] and awarded him damages in the amount of $1,670,393.37. On appeal, defendant and respondent State of California Department of Corrections and Rehabilitation (the Department) contends that there was insufficient evidence to support the jury’s finding of retaliation, the trial court failed to instruct the jury properly on plaintiff’s burden to prove retaliatory intent, the damage awards for back pay and overtime were improper, and there was insufficient evidence to support the noneconomic damage award. We hold that there was substantial evidence to support the jury’s finding of retaliation under FEHA, the trial court properly instructed the jury on plaintiff’s burden to prove retaliatory intent, the jury properly awarded damages for back pay and overtime, and there was sufficient evidence to support the noneconomic damage award. Therefore, we affirm the judgment in favor of plaintiff. |
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