Briley v. City of W. Covina

• Decision Date: 01 July 2021
• Docket Number: B295666
• Citation: 66 Cal.App.5th 119,281 Cal.Rptr.3d 59
• Court: California Court of Appeals Court of Appeals
• Parties: Jason BRILEY, Plaintiff and Respondent, v. CITY OF WEST COVINA, Defendant and Appellant.

66 Cal.App.5th 119

281 Cal.Rptr.3d 59

Jason BRILEY, Plaintiff and Respondent,

v.CITY OF WEST COVINA, Defendant and Appellant.

B295666

Court of Appeal, Second District, Division 4, California.

Filed July 1, 2021

As Modified July 14, 2021

Jones & Mayer and Krista Macnevin Jee, Fullerton, for Defendant and Appellant.

Liebert Cassidy Whitmore, J. Scott Tiedemann, David A. Urban and Alex Y. Wong, Los Angeles, for League of California Cities and California Special Districts Association as Amici Curiae on behalf of Defendant and Appellant.

Public Employees Legal and Oshea V. Orchid, Culver City; Benedon & Serlin, Douglas G. Benedon, Woodland Hills, and Wendy S. Albers for Plaintiff and Respondent.

INTRODUCTION

MANELLA, P. J.

Respondent Jason Briley worked for appellant, the City of West Covina (the City), as a deputy fire marshal. During his employment, Briley complained that various City officials, including his then-direct superior Larry Whithorn, had ignored his reports of safety issues and engaged in misconduct. He later complained that Whithorn and others had retaliated against him in various ways. The City commissioned an investigation of Briley's claims but ultimately concluded they were unfounded. While this investigation was still pending, the City commissioned an investigation of allegations that Briley had repeatedly engaged in misconduct and unprofessional behavior. At the conclusion of this second investigation, Whithorn initiated Briley's termination, and another City official upheld the decision.

Briley contended his termination was the result of retaliation for his prior complaints and initiated an appeal to the City's Human Resources Commission (HR Commission). The commission was to hold an evidentiary hearing and deliver its findings and recommendations to Whithorn and City Manager Chris Freeland, who were the ultimate decisionmakers in the appeal. However, Briley later abandoned the appeal, asserting, among other things, that the commission had no jurisdiction to consider his retaliation claims, and that the appeal procedure was futile and violated due process because Whithorn and Freeland were biased against him and had prejudged his claims. He then filed this action against the City, alleging retaliation under Labor Code section 1102.5.

The City asked the trial court to dismiss Briley's action for failure to exhaust available administrative remedies, but the court concluded that an appeal to the HR Commission was unnecessary. It found that the commission had no authority to consider Briley's retaliation claim, and that an appeal would have been futile because Whithorn and Freeland had been personally embroiled in appellant's matter. The case proceeded to trial, and the jury found for Briley and awarded him about $4 million, including $2 million in past noneconomic damages and $1.5 million in future noneconomic damages. The trial court later denied the City's motion for a new trial. On appeal, the City claims the trial court: (1) erred in concluding Briley was not required to exhaust his administrative remedies; (2) committed various evidentiary errors at trial; and (3) abused its discretion in failing to reduce the jury's excessive awards for noneconomic damages.

We conclude that Whithorn's involvement in the underlying dispute, on one hand, and his expected role in deciding Briley's appeal, on the other, violated the requirements of due process and therefore excused Briley from proceeding with his administrative appeal. We also find no reversible evidentiary error by the trial court. However, we agree with the City that the $3.5 million noneconomic damages award -- comprising $2 million in past and $1.5 million in future noneconomic damages -- was so excessive as to suggest it resulted from passion or prejudice. We therefore vacate the awards for past and future noneconomic damages and remand for a new trial on these issues, unless Briley accepts a reduction of the awards to $1 million and $100,000, respectively. In all other respects, the judgment is affirmed.

BACKGROUND

A. Briley's Employment with the City and His Subsequent Complaints Against Whithorn and Others

In 2007, the City hired Briley as a fire-protection specialist and later promoted him to deputy fire marshal. As deputy fire marshal, Briley oversaw the operations of the Fire Prevention Bureau, which included checking building code plans for Fire Code compliance, inspecting existing buildings for compliance, and conducting fire investigations. Briley was initially supervised by Whithorn, then the fire marshal and assistant fire chief.

In June 2014, Briley complained to the City's HR director, Nita McKay, that several City officials, including Whithorn and then-City Manager Chris Chung, had failed to address his reports of Fire Code violations and had allowed a building permit to issue for a development before the building plans had passed fire inspection. McKay hired a private firm to investigate Briley's allegations and notified Chung and Whithorn. After making his initial complaints, Briley additionally complained that Whithorn and others had retaliated against him. Among other things, he alleged that Whithorn had canceled his scheduled overtime, moved him to a smaller office, and changed his take-home vehicle. These new allegations were included in the pending investigation. Briley also filed grievances against the City with the City's HR Commission, raising the same claims of retaliation and alleging that Whithorn had engaged in additional retaliation by giving him a poor performance review.¹ McKay resigned from her position in October 2014, before the investigation concluded. In January 2015, the investigating firm delivered its findings to then-Assistant City Manager Freeland, who also served as the acting HR director at the time. The firm concluded that Briley's allegations were largely unfounded, and Freeland adopted these findings. Whithorn later testified at his deposition that his working relationship with Briley had become "strained," that Briley had undermined his authority by bringing "trumped up charges," and that Briley had tried to intimidate him.

B. Complaints Against Briley and the Larson Investigation

While the investigation of Briley's allegations against City officials was still pending, Whithorn, Chung, and others informed Freeland of multiple complaints against Briley involving allegations of misconduct and unprofessional behavior. Among other things, Briley was alleged to have: (1) addressed a fire captain in an unprofessional manner and used profanity in addressing a local worker when responding to a fire alarm at a Victoria's Secret store; (2) improperly obtained a prospective City employee's personnel form; and (3) used profanity in addressing individuals at a CrossFit gym. Freeland then retained another firm to investigate the allegations against Briley. Carolin Larson, a private investigator and retired police officer, conducted the investigation.

During her investigation, Larson interviewed many witnesses, including Briley. Briley denied most of the allegations against him. In May 2015, Larson completed her investigation and delivered her 157-page report to the City. She concluded Briley had exhibited a pattern of unbecoming conduct, unprofessional behavior, and incompetence, and that he had been untruthful in denying the allegations against him. By this time, Chung had left the City, and Whithorn had been elevated to fire chief.

C. Briley's Termination and His Withdrawn Appeal to the HR Commission

After reading Larson's report, Whithorn issued Briley a notice of intent to terminate. The City's finance director, Christa Bughagiar, conducted a pre-termination hearing, and in September 2015, decided to uphold Briley's termination and issued him a notice of termination. Around the same time, Freeland was elevated to city manager. Through his counsel, Briley protested his termination and asserted it was "clearly further retaliation against [him] for his reporting of safety concerns and filing of grievances." In December 2015, Briley initiated an administrative appeal to the City's HR Commission.

Under the City's municipal code, eligible employees who have suffered certain adverse employment actions may appeal to the commission. (West Covina Mun. Code, § 2-254.) The City's personnel rules provide that the HR Commission must grant the employee an evidentiary hearing "to determine the accuracy and sufficiency of the facts attendant to the disciplinary action imposed." After the hearing, the HR Commission must deliver its findings and recommendations to relevant City officials and to the employee. (West Covina Mun. Code, § 2-257.) "The official from whose action the appeal was made shall then review such findings and recommendations with the city manager[,] and upon approval of the city manager, shall then affirm, revoke or modify the original action taken." (Ibid. ) The parties agree that in the case of Briley's administrative appeal, the ultimate decisionmakers following the HR Commission's review would have been Whithorn, as the original decisionmaker, and Freeland, as the city manager.

The HR Commission scheduled hearings on Briley's appeal for May 2016. However, in April 2016, Briley's counsel notified the commission that Briley would not be proceeding with his appeal because doing so would be futile.² Among other complaints, counsel asserted there had been inordinate delays in the process and claimed the commission had no jurisdiction over Briley's claims of retaliation. Counsel also claimed it would be futile to proceed because Freeland, the ultimate decisionmaker in the appeal, had already found Briley's retaliation allegations unfounded, and because one attorney from the firm that served as West Covina's city attorney had advised Freeland in making that determination, while another served as the commission's counsel.

D. Briley's Complaint and the Trial Court's Ruling on the City's Lack of Exhaustion Defense

In ...