Brown v. City of Sacramento

• Decision Date: 17 July 2019
• Docket Number: C082826
• Court: California Court of Appeals Court of Appeals
• Parties: Wendell BROWN, Plaintiff and Respondent, v. CITY OF SACRAMENTO, Defendant and Appellant.

37 Cal.App.5th 587

249 Cal.Rptr.3d 801

Wendell BROWN, Plaintiff and Respondent,

v.CITY OF SACRAMENTO, Defendant and Appellant.

C082826

Court of Appeal, Third District, California.

Filed July 17, 2019

Certified for Partial Publication.^*

Liebert Cassidy Whitmore, Jesse J. Maddox, Sacramento, and Michael D. Youril, Fresno, for Defendant and Appellant.

Law Offices of Richard A. Lewis and Richard A. Lewis, Sacramento, for Plaintiff and Respondent.

RENNER, J.

Plaintiff Wendell Brown sued his employer, the City of Sacramento (City), for racial discrimination and retaliation in violation of the California Fair Employment and Housing Act (FEHA). ( Gov. Code, § 12900 et seq. ) A jury returned a verdict in Brown's favor. The City moved for judgment notwithstanding the verdict and a new trial. The trial court granted the motion for judgment notwithstanding the verdict in part, finding that Brown failed to exhaust administrative remedies with respect to some of the acts found to be retaliatory. The trial court denied the motion with respect to other acts and effectively denied the motion for a new trial.¹

The City appeals from the order partially denying the motion for judgment notwithstanding the verdict, arguing the remaining retaliation and discrimination claims are time-barred and barred for failure to exhaust administrative remedies. The City also appeals from the order partially denying the motion for a new trial, arguing that juror misconduct deprived the City of a fair trial, and the trial court prejudicially erred in admitting evidence of the purportedly unexhausted and time-barred claims. Finding no error, we affirm.

I. BACKGROUND

Brown, an African-American, began working for the Solid Waste and Recycling Division (Division) of the City's Utilities Department (and later, the General Services Department) in August of 1986, and was eventually promoted to Solid Waste Supervisor. Brown is a member of the International Union of Operating Engineers, Stationary Engineers, Local 39 (Union). The City has a collective bargaining agreement with the Union.

Brown filed an administrative complaint with the Department of Fair Employment and Housing (DFEH) and immediately received a right to sue letter.² On July 22, 2013, Brown filed a complaint against the City, alleging causes of action for racial discrimination and retaliation under FEHA.³ The matter was tried before a jury over the course of several weeks in mid-May and early June 2016.

A. Jury Trial

The jury heard evidence that Brown complained about conduct he believed to be discriminatory and suffered the following adverse employment actions: (1) a suspension for altering a jury duty form; (2) a suspension for illegal dumping; (3) a transfer from one operational facility to another; (4) a shift change; (5) a denial of promotion in 2013; and (6) a denial of promotion in 2014. We summarize these actions briefly below, including only those facts necessary to understand and resolve the limited issues before us.

1. The Altered Jury Service Form Incident

Brown was working on a garbage collection truck on July 6, 2010. He received a telephone call from Rashid El Amin, an employee under his supervision. El Amin, who had been summoned for jury duty that day, explained that he had just been released and wanted to know if he should report to work. Brown determined that El Amin was not in uniform and would need several hours to go home, change, and then travel to work. Even then, Brown reasoned, there would be no work for El Amin to do, as all of the garbage collection trucks had already been dispatched for the day. Accordingly, Brown told El Amin he could stay off the rest of the day, if he used his "bank time." The next day, El Amin reported to work with a jury service form, which Brown altered to reflect a full day of jury service.⁴ Sometime thereafter, a fact-finding investigation ensued.

On January 6, 2011, Brown received a letter indicating the City intended to take disciplinary action against him pursuant to the Rules and Regulations of the Civil Service Board (Rules). Specifically, the letter indicated the City intended to suspend Brown for four days, unless Brown responded by January 7, 2011, either orally or in writing. Brown thought the contemplated discipline was unfair and unreasonable, as there were no guidelines on how to record an absence for jury duty for less than a full day, and Brown had been candid about the fact that he had altered the jury form. Nevertheless, Brown kept these views to himself, and the City subsequently issued another letter, stating, "you are hereby suspended without pay for four (4) working days from your position as Solid Waste Supervisor and from City service, effective February 7, 2011." Although the suspension was slated to become effective on February 7, 2011, Brown's salary was never reduced, and he never served the suspension. The February 2011 suspension was the first time that Brown was subjected to discipline in almost 25 years of service, but it was not the last.

2. The Illegal Dumping Incident^**

3. The Transfer to Meadowview

On February 13, 2013, Brown received a memorandum from Harriman announcing that he would soon be transferred from the Division's operational facility in North Sacramento (the North Area Corporation Yard or NACY) to an operational facility in South Sacramento (Meadowview Yard). The memorandum instructed Brown and another solid waste supervisor to report to their "new Permanent Dispatch Area" on April 15, 2013. Brown was "irritated" and "felt very strongly that [the move] didn't make any sense."

During the trial, Brown explained that he had started his career at Meadowview and worked hard to make a place for himself at NACY, which was closer to his home. Brown suspected the transfer was retaliatory, as he had recently complained about the way Harriman handled disciplining African-American and Hispanic employees at NACY. Although Harriman offered a business reason for the move, Brown viewed the stated reason as flimsy and pretextual. And, though the City characterized the move as a temporary "rotation," the evidence showed that Brown had been stuck at Meadowview for three years at the time of trial.

4. The Shift Change

On June 17, 2013, Brown received a memorandum from another supervisor, William Skinner, stating that he would be changing from the early morning shift to the late morning shift. Brown was unhappy about the change, as the later start time meant that he would be spending more time commuting and less time with his family. During the trial, Brown testified that he viewed the shift change as part of a pattern of retaliation, which he believed to be a response to his having voiced concerns about discriminatory behaviors within the Division. Brown worked the late shift for three months, after which, another supervisor started working the shift.

5. Denial of Promotion in 2013

Brown applied for a promotion within the Division in August 2013. Brown was among the finalists for the position but was not selected. Instead, the City hired another applicant.

6. Denial of Promotion in 2014

Brown applied for another promotion in February 2014. As before, Brown was among the finalists for the position. Again, he was not selected. This time, the successful candidate was African American. Unlike Brown, who was by then a 27-year veteran of the Division, the successful candidate had no experience with solid waste management.

B. Verdict^***

C. Juror Misconduct

After the verdict, the City's trial counsel learned that one of the jurors—Juror No. 2—failed to disclose pertinent information during voir dire. Specifically, Juror No. 2 failed to disclose she had served as lead plaintiff in a putative wage and hour class action against an employer. As we shall discuss, Juror No. 2's misconduct raised a rebuttable presumption of prejudice ( In re Hamilton (1999) 20 Cal.4th 273, 295, 84 Cal.Rptr.2d 403, 975 P.2d 600 ) and served as the basis for the City's new trial motion.

D. Post-Trial Motions

On June 22, 2016, the City filed a motion for judgment notwithstanding the verdict, arguing that Brown's claims were time-barred or barred for failure to exhaust administrative remedies. As relevant here, the motion argued that the jury should not have been allowed to hear about either of the suspensions (despite the fact that the jury rejected Brown's claims regarding the suspension for his alteration of the employee's jury service form), as both suspensions occurred outside the one-year statute of limitations for violations of FEHA ( Gov. Code, § 12965, subd. (d) ). The motion also argued that Brown failed to exhaust his administrative remedies with respect to the transfer to Meadowview, the shift change, and the denials of promotion (despite the fact that the jury rejected Brown's claims based on the 2013 denial of promotion).

On July 8, 2016, the City filed a motion for a new trial on grounds of irregularity in the proceedings and juror misconduct. ( Code Civ. Proc., § 657, subds. (1)-(2).) The new trial motion was supported by a declaration from the City's trial counsel, Jesse Maddox. Although voir dire proceedings had not been transcribed, Maddox averred that he specifically asked prospective jurors whether they had " ‘ever brought a lawsuit against someone,’ " whether they " ‘ever felt they were treated unfairly in the workplace,’ " and whether they " ‘ever witnessed unfair treatment at work.’ " Maddox further averred that Juror No. 2 failed to affirmatively respond to any of these questions. Had she done so, Maddox continued, he would have challenged Juror No. 2 for cause or used a peremptory challenge to strike her from the jury. The new trial motion also argued the trial court prejudicially erred in allowing the jury to consider evidence of time- barred and unexhausted acts.

The trial court addressed both motions in an order dated August 8, 2016. The trial court began with the motion for judgment notwithstanding the verdict, which was granted in...