Chen v. County of Orange, G027307.

• Decision Date: 15 February 2002
• Docket Number: No. G027307.,G027307.
• Citation: 116 Cal.Rptr.2d 786,96 Cal.App.4th 926
• Court: California Court of Appeals Court of Appeals
• Parties: Victoria CHEN, Plaintiff and Appellant, v. COUNTY OF ORANGE et al., Defendants and Respondents.

116 Cal.Rptr.2d 786

96 Cal.App.4th 926

Victoria CHEN, Plaintiff and Appellant, v. COUNTY OF ORANGE et al., Defendants and Respondents.

No. G027307.

Court of Appeal, Fourth District, Division 3.

February 15, 2002.

As Modified on Denial of Rehearing March 14, 2002.

Review Denied May 15, 2002.

Oswald & Yap, Irvine, Law Offices of Robert B. Reeves, Santa Ana, and Niall Sweetnam, for Plaintiff and Appellant.

Lewis, D'Amato, Brisbois & Bisgaard, Nancy E. Zeltzer and Gary M. Lape, Costa Mesa, for Defendants and Respondents.

OPINION

SILLS, P.J.

I. INTRODUCTION

Victoria Chen was hired by the Orange County District Attorney's office as a Level I deputy district attorney in 1990, and by 1993 had been promoted to Level III. In July 1995 she went on leave because of complications with a pregnancy, but did not return to work until April 1997.

During her time on leave she earned, as she would later admit in court, in the "neighborhood" of $100,000 a year as a bond trader. She also tried a career in acting. She appeared "in an unpaid infomercial" and two commercials.

Then, after a short, and by all accounts unhappy, stint working in Orange County's North Court, she went on medical leave for stress in July 1997, and never came back to work. In the fall of that year, while still on stress leave, she decided to apply, along with about 40 or so other deputy district attorneys in the office, for some 10 openings for Level IV.

She contacted Vickie Hix, who was a management-level deputy district attorney (Level V rank) and asked Hix if she would nominate her for promotion to Level IV at the upcoming promotional meeting. Hix was rather reluctant to take up the task, since Chen had never worked for Hix and Hix had no personal knowledge of her background. Hix then mentioned that there was one question all of the people at the meeting would be interested in having answered: When would Chen come back to work, because "people we promote we need to have on the job."

Chen said that if she got the promotion, she'd be back. But "if not," she would "probably be stressed out for a while longer."

Chen did not get the promotion, and continued to be ostensibly "stressed out" for a great deal longer. Actually, indefinitely. She never returned to work. She filed this suit in March 1998, alleging marital status, race, and gender discrimination against her by the Orange County District Attorney's Office. She also asserted a cause of action for retaliation. (She had filed a complaint with the Department of Fair Employment and Housing in October 1997—before her 1997 promotion request was turned down).

In November 1998, still not having returned back to work, she applied again for promotion to Level IV. Again, she did not receive a promotion, and her lawsuit was subsequently amended to allege that the promotion denial was also taken in retaliation for her complaints.

Her marital status claim was based on allegations that she had received unfavorable assignments during her career because, beginning in late 1990, she began dating, and in May 1993 married, Devallis Rutledge, a high level management attorney in the office. Rutledge was supposedly not in the good graces of then-Orange County District Attorney Michael Capizzi, and Chen's unfavorable assignments were allegedly a manifestation of the Capizzi faction's lack of approval of her relationship with, and marriage to, Rutledge.

The race and gender discrimination causes of action went to a jury, who returned defense verdicts. The marital status and retaliation claims were dismissed on motions for non-suit after Chen rested her case. Chen has now appealed the verdicts. In sum, here is what we conclude:

(1) The trial court did not err in dismissing the marital status discrimination claim. The salient fact is that the origin of any animus was the political disfavor Rutledge was in at the time, not any antipathy toward Chen's status as a married or single person. There was not even any antipathy toward her being married to (or even romantically involved with) a co-worker. Any "adverse action" taken by her employer (which mostly consisted of not getting plum assignments) was at most only the result of antipathy toward a particular co-worker with whom she had, married or not, a relationship.

(2) The trial court did not err in dismissing the retaliation claim. As we explain, it is well established that a plaintiff in a retaliation suit must show, as part of his or her prima facie case, some causal connection between an adverse employment action and the original complaint of discrimination. Mere sequence is not enough—that would be the classic logical fallacy of "post hoc ergo propter hoc" (after the fact, therefore because of the fact). In this case, Chen showed nothing but sequence in a context where there were obviously good and legitimate reasons not to promote her, not the least of which was the fact that anybody who was promoted had to be available for work, not on indefinite stress leave.

(3) None of Chen's miscellaneous claims of evidentiary error have any merit.

II. THE FACTS: THE HISTORY OF CHEN'S CAREER IN THE ORANGE COUNTY DISTRICT ATTORNEY'S OFFICE¹

A. 1990-1993: Paying Dues and Eventual Promotion to the Felony Panel

Victoria Chen started with the DA's office in July 1990. Of 75 attorneys hired in the years 1989, 1990, and 1991, only 20 initially received trial assignments. Trial assignments, at least according to Chen's testimony, were generally more coveted by newly hired deputy district attorneys than assignments in juvenile delinquency or family support, and Chen was one of the 20 or so who received one. Within five months of her hiring, Chen began dating Devallis Rutledge, a high-level management attorney in Capizzi's administration.

Chen was transferred to juvenile court in April 1991. She thought the transfer might be a form of discrimination, and discussed the matter with her beau Rutledge, but did not complain about the assignment.² While at juvenile court she complained that another co-worker, Karen Whetmore, was "abusing taxpayer money by using county time to slander me, to say scurrilous things about me," specifically that Chen was "a troublemaker, . . . a backstabber, . . . a gossip."³ Her supervisor, Kathi Harper, replied that "she was not going to get involved in a catfight."

In July 1991, one year after her hiring, Chen was promoted to deputy Level II. She also didn't have to spend too much time in juvenile court. In September 1991 she was assigned to Central Municipal Court, where she did jury trials and preliminary hearings.

In July 1992, she was promoted again, to Level III. That summer she also applied for a felony panel assignment. Thirty-one attorneys applied; Chen was third from the bottom in terms of seniority. She didn't get the assignment, nor did any of the applicants with less seniority. All the applicants who did make it were women.

Disappointed with not having received the felony panel assignment, Chen had a talk with one of the senior management attorneys, Brent Romney. Romney gave her what was known in the office as the "butterfly speech."

Romney often gave the butterfly speech to new law clerks (both men and women) in the District Attorney's office, the substance of which was: "Don't be in such a hurry to get to point `A' when you come into the office that you lose sight of and lose enjoyment of what you're doing as you go along. And if you just go in and just do your job, things will come to you." The butterfly metaphor derived from the image of a butterfly landing on one's shoulder, presumably in the course of just doing one's job. As Chen would later describe the conversation, "I tried to talk to Brent [about her not being assigned to the felony panel], but all he was talking about was—all he wanted to talk about was some silly butterfly landing on my shoulder." For all the speech's supposed silliness, Chen did not complain, and later (in April 1997), before she sued him (he is one of the named defendants in this case), would encourage him to run for District Attorney when Michael Capizzi sought higher office.

In February 1993 Romney also told Chen about unhappiness by some of the other managers with her relationship with Rutledge. Chen's later testimony in that regard was this: "He [Romney] had said that some of the other managers resented my relationship with Devallis Rutledge and that because I chose to date him, that I had put myself—and the term he used was I had put myself behind the eightball." She elaborated: "He said that—um, Judge Rheinheimer was negative. He said that I had put myself behind the eightball by making the decision to date Devallis, and because I had done that, that I was held to a higher standard than the other deputies, and that in order to get promoted, I had to go an extra mile, [¶] I had to go an extra mile to prove myself because—because of my relationship with Devallis, and that peers and management thought that I was dating him just to get ahead in the office."

In March 1993, she was transferred to North Court, which was her second choice after the felony panel assignment. But by August 1993 Chen got her wish and was promoted to the felony panel. Only five of 28 applicants made it, and Chen had the least amount of seniority of those.

B. 1993-1995: Disappointed by Her Assignments (Mostly)

Being least senior, Chen was assigned to Department 5, which handled the probation violation calendar. About once every two weeks one of her co-workers would get a call from either the supervisor or one of the clerks in the department to cover the calendar because Chen was late; on some of those occasions Chen wouldn't even come in at all. And because probation violation hearings would occur in Department 5, as one management attorney would later put it, "it caused problems if the deputy didn't show up."

Judge Brenner, who presided over Department 5, complained to Chen's supervisor that Chen was late for court. (As...