Brome v. Cal. Highway Patrol

• Decision Date: 28 January 2020
• Docket Number: A154612
• Citation: 258 Cal.Rptr.3d 83,44 Cal.App.5th 786
• Court: California Court of Appeals Court of Appeals
• Parties: Jay BROME, Plaintiff and Appellant, v. CALIFORNIA HIGHWAY PATROL, Defendant and Respondent.

44 Cal.App.5th 786

258 Cal.Rptr.3d 83

Jay BROME, Plaintiff and Appellant,

v.CALIFORNIA HIGHWAY PATROL, Defendant and Respondent.

A154612

Court of Appeal, First District, Division 5, California.

Filed January 28, 2020

Rosen Bien Galvan & Grunfeld LLP, Gay Crosthwait Grunfeld, Lisa Ells, and Benjamin Joseph Bien-Kahn, San Francisco, for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Chris A. Knudsen, Senior Assistant Attorney General, Peter D. Halloran, Supervising Deputy Attorney General, and Jennifer G. Stoecklein, Deputy Attorney General, for Defendant and Respondent.

National Center for Lesbian Rights, Amy Elizabeth Whelan, and Asaf Orr, San Francisco, for GLBTQ Advocates & Defenders, Lambda Legal Defense and Education Fund, Inc., National Center for Transgender Equality, and San Francisco LGBT Center as Amici Curiae on behalf of Plaintiff and Appellant.

BURNS, J.

Jay Brome sued the California Highway Patrol (the Patrol) asserting that, during his career as a law enforcement officer, he suffered harassment and discrimination because of his sexual orientation in violation of the California Fair Employment and Housing Act ( Gov. Code, § 12900 et seq. ).¹ The trial court granted summary judgment to the Patrol, holding that Brome’s claims were filed after the statute of limitations expired and a reasonable jury could not have concluded they were timely based on an exception to the deadline. The court also rejected Brome’s claim that he was constructively discharged. Brome now appeals the grant of summary judgment. We hold that the record does not preclude, as a matter of law, a conclusion that his claims were timely and that he was constructively discharged. Accordingly, we reverse.

BACKGROUND

A.

Brome began his employment at the Patrol in 1996. During his nearly 20-year career, other officers subjected Brome, who was openly gay, to derogatory, homophobic comments; singled him out for pranks; repeatedly defaced his mailbox; and refused to provide him with backup assistance during enforcement stops in the field.

Brome started in the Patrol’s San Francisco office before transferring to the Contra Costa office in 2002. While he worked at those offices, he filed administrative complaints about the unlawful harassment and discrimination he suffered, including a discrimination complaint with the Department of Fair Employment and Housing (the Department) in 2003. The Department ruled that the evidence was insufficient, dismissed Brome’s complaints, and issued a right to sue letter. Brome did not file a lawsuit then, hoping the Patrol would take his complaints seriously and remedy the situation.

Seeking a better work environment, Brome ultimately transferred to the Patrol’s Solano County office in 2008. At that office, his fellow officers presumed he was gay. Homophobic "locker room" talk using words like "gay or fag" "was ongoing" and "very common" amongst the officers there. Officers "would use gay in a negative connotation," saying things like "[o]h, I hated that movie, it was so gay," or "[q]uit looking at me, [f]aggot." An officer made up a poem about Brome’s sexual orientation. In another incident, officers used the word "faggots" to describe the potential victims of a hate crime that a recently arrested individual had planned to commit against homosexuals. This type of locker room talk "lessened" over time at the Solano office because officers "didn’t want to say things around [Brome]."

Officers at the Solano office frequently refused to provide Brome with backup assistance during enforcement stops, which led him to fear for his life. Brome was "the only one who did not receive backup on a daily basis," and "every time [he] went to work within [his] 12-hour day this would typically happen." These denials of assistance happened so often that it was "impossible to list them all." Brome was left to handle high-risk situations that generally should be handled by at least two officers, such as high-speed vehicle pursuits, impounding vehicles, or hit-and-run accidents, on his own.

When asked if "it would be appropriate for at least two officers to respond" to situations similar to those in which Brome was denied backup, his captain testified, "[a]t a minimum." An officer without backup assistance would be in a "very precarious" situation. Some officers who refused to back Brome up were known to be homophobic or had cut off contact with other officers known to be gay. Brome’s captain testified that "not responding to other officers’ calls is a serious allegation" and "[i]t is a ... corrosive thing to have officers not responding to other officers’ calls because of some perceived bias."

When Brome won the Solano Area Officer of the Year Award in October 2013, the Patrol never displayed his photograph, in a break from office practice. A photograph of the previous year’s winner remained displayed throughout 2014.

Through 2014, Brome complained to his superiors at the Solano office, raising concerns including the denials of backup assistance as well as the failure to display his Officer of the Year photo. His superiors understood Brome believed he was treated differently based on his sexual orientation. His supervisors told him "they would look into [the issues] and take care of it." His captain testified that they did look into the denials of backup assistance, determined that at least one officer had acted inappropriately, and disciplined that officer. However, the problems continued and Brome believed that "management refused to do anything about it."

As a result, Brome feared for his life during enforcement stops, experienced headaches, muscle pain, stomach issues, anxiety and stress, and became suicidal by early 2015. In January 2015, he went on medical leave and filed a workers’ compensation claim based on work-related stress. When a sergeant texted him about his compensation claim, Brome said he preferred that the Solano office not contact him and explained: "I have been in counseling my entire career due to the harassment and hostile work environment at the [Patrol]."

Shortly after Brome took leave, his captain sent him a letter expressing concern regarding his allegations of harassment and a hostile work environment. His captain stated that the Patrol "remain[s] committed to provide a safe and healthy work environment that is free of discrimination and harassment for all employees and want[s] to work with you to that end." He wrote: "I genuinely hope you allow us the opportunity to work together to resolve your work-related issues." The captain understood that Brome was alleging workplace harassment and that he had not only a workers’ compensation claim but also a potential discrimination complaint.

Brome’s workers’ compensation claim was resolved in his favor on October 27, 2015. He took industrial disability retirement on February 29, 2016, ending his employment with the Patrol.

B.

On September 15, 2016, Brome filed an administrative complaint with the Department of Fair Employment and Housing. He filed a lawsuit the next day, asserting four claims under the Fair Employment and Housing Act (the Act): discrimination based on sexual orientation (§ 12940, subd. (a)); harassment based on sexual orientation (§ 12940, subd. (j)); failure to prevent harassment (§ 12940, subd. (k)); and retaliation (§ 12940, subd. (h)). He also asserted a claim for intentional infliction of emotional distress that is not at issue in this appeal.

The Patrol sought summary judgment, contending Brome’s claims were untimely because he did not file his administrative complaint within one year of the challenged actions, as required under former section 12960, subdivision (d).² Given the date of Brome’s administrative complaint, he would ordinarily be able to sue based on acts occurring during the one-year period immediately prior, or on or after September 15, 2015. However, because the crux of his case concerns circumstances that occurred before his medical leave began in January 2015, he asserted that exceptions to the one-year deadline were applicable.

Brome relied on a doctrine known as equitable tolling, which allows the suspension or extension of a limitations period under certain circumstances. (See McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99-100, 84 Cal.Rptr.3d 734, 194 P.3d 1026 ( McDonald ).) He argued that the filing of his workers’ compensation claim should stop the clock on his one-year filing deadline during the pendency of his compensation claim. Brome also relied on the continuing violation doctrine, under which an employer may be liable for acts occurring before the limitations period if they are sufficiently linked to unlawful conduct that occurred within the period. (See Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 802, 111 Cal.Rptr.2d 87, 29 P.3d 175 ( Richards ).) In addition, he asserted that his complaint was timely based on a constructive discharge theory because his working conditions were so intolerable that they effectively forced him to take disability retirement in February 2016. (See Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1246-51, 32 Cal.Rptr.2d 223, 876 P.2d 1022 ( Turner ).)

The trial court assumed the deadline could be tolled during the 285 days Brome’s compensation claim was pending, which allowed him to rely on acts occurring on or after December 5, 2014. However, the court rejected Brome’s continuing violation argument, concluding he failed to present evidence of actionable conduct within the limitations period. The court rejected Brome’s constructive discharge argument on the merits, holding that he failed to establish intolerable working conditions.³

DISCUSSION

A.

We construe the facts in the light most favorable to Brome, the losing party on summary judgment. ( McDonald , supra , 45 Cal.4th at pp. 96-97, 84 Cal.Rptr.3d 734, 194 P.3d 1026.) The existence of a triable issue of fact is a legal question that we review de novo. ( Limited Stores, Inc. v....