Frank v. County of Los Angeles

• Decision Date: 12 April 2007
• Docket Number: No. B169427.,No. B172347.,B169427.,B172347.
• Court: California Court of Appeals Court of Appeals
• Parties: George FRANK et al., Plaintiffs, Respondents and Appellants, v. COUNTY OF LOS ANGELES et al., Defendants, Appellants and Respondents.

57 Cal.Rptr.3d 430

149 Cal.App.4th 805

George FRANK et al., Plaintiffs, Respondents and Appellants, v. COUNTY OF LOS ANGELES et al., Defendants, Appellants and Respondents.

No. B169427.

No. B172347.

Court of Appeal, Second District, Division 4.

April 12, 2007.

Jones Day, Elwood Lui, Scott D. Bertzyk, Jeffrey B. Kirzner, Irvine; Gutierrez, Preciado & House and Calvin House, Pasadena, for Defendants, Appellants and Respondents.

Law Office of Patricia Bellasalma, Patricia Bellasalma, Los Angeles; O'Donnell & Kramer, J.L. O'Donnell, Jr.; Kramer & Jacob, Jennifer Kramer, Los Angeles; Benedon & Serlin, Gerald M. Serlin and Douglas G. Benedon, Los Angeles, for Plaintiffs, Respondents and Appellants.

Lackie & Dammeier and Dieter C. Dammeier, Upland, for Peace Officers' Research Association of California, Legal Defense Fund and Los Angeles County Police Officers Association as Amici Curiae on behalf of Plaintiffs, Respondents and Appellants.

Reich, Adell, Crost & Cvitan and Laurence S. Zakson, Los Angeles, for POPA, Inc., as Amicus Curiae on behalf of Plaintiffs, Respondents and Appellants.

Isabelle Gunning for The Feminist Majority Foundation as Amicus Curiae on behalf of Plaintiffs, Respondents and Appellants.

Shelly M. Mandell for National Organization for Women, Los Angeles as Amicus Curiae on behalf of Plaintiffs, Respondents and Appellants.

EPSTEIN, P.J.

This is a race discrimination class action brought by a class of minority officers of the Los Angeles County Police against the County of Los Angeles, the Los Angeles County Sheriffs Department, and the Los Angeles County Department of Health Services (collectively County). The County appeals from a judgment finding it liable for back pay and other relief to all County police officers, including nonminority officers, who were employed when the class was certified, with the exception of supervisory officers and trainees. We conclude that the jury's liability verdict on the theories of disparate impact and disparate treatment racial discrimination must be reversed. Plaintiffs failed to establish a basis for a disparate impact claim as a matter of law, and the jury's verdict on disparate treatment is not supported by the evidence. In light of these conclusions, with a single exception which we shall note, we do not reach other issues raised by the County in its appeal, or the arguments raised by plaintiffs in their cross-appeal.

In summary, plaintiffs established that some 70 percent of officers in the County police classification are minority members and 30 percent are Caucasian, while in the sheriffs department, where officers are better paid, the percentages are reversed. That differentiation, by itself, does not establish racial discrimination, and plaintiffs failed to present evidence that the pay disparity is the product of racial discrimination.

FACTUAL AND PROCEDURAL SUMMARY

The duties and responsibilities, as well as the organization and command structure, of the class have evolved over the past 80 years. The County had employed watchmen and then security guards to protect facilities, employees, and the public long before the Los Angeles County safety police was created as a specialized police department in 1970. "As of 1972, County safety police officers, who were then called security guards, were not given peace officer status under [Penal Code] section 836, and were considered peace officers only as to offenses committed with respect to persons or property which the officer had an official duty to protect. (Former [Pen. Code,] § 830.4; Stats.1971, ch. 637, § 1, p. 1255.) This limitation remained when section 830.4 was substantially revised in 1977. (Stats.1977, ch. 1073, § 1, p. 3266.) However, in a 1980 revision, the authority of County security officers (as well as others) was expanded to specifically include the power to effect arrests pursuant to section 836. (Stats.1980, ch. 1340, § 12, p. 4724.) The language of the 1980 revision of section 830.4 parallels present section 830.31." (Inouye v. County of Los Angeles (1994) 30 Cal.App.4th 278, 284, 35 Cal. Rptr.2d 367, fn. omitted.)

Penal Code section 830.31 currently provides in pertinent part: "The following persons are peace officers whose authority extends to any place in the state for the purpose of performing their primary duty or when making an arrest pursuant to Section 836 as to any public offense with respect to which there is immediate danger to person or property, or of the escape of the perpetrator of that offense, or pursuant to Section 8597 or 8598 of the Government Code. These peace officers may carry firearms only if authorized, and under the terms and conditions specified, by their employing agency. [¶] (a) A police officer of the County of Los Angeles if the primary duty of the officer is the enforcement of the law in or about properties owned, operated, or administered by his or her employing agency or when performing necessary duties with respect to patrons, employees, and properties of his or her employing agency."

The County police and its predecessor agencies underwent a number of administrative reorganizations between 1992 and 1998. In 1993, they were consolidated from five departments into two, and Parks and Recreation officers were placed in a different division. The Board of Supervisors ordered a study of the feasibility and cost-effectiveness of consolidating the Safety Police into the Los Angeles Sheriffs Department (LASD). In 1994, the LASD was given a management contract over the Department of Health Services safety police. The County was studying consolidation of all safety police programs into one department. Consolidation with LASD was rejected in 1995 and 1996. In 1998, the County established the Office of County Security in which all safety police were consolidated. The officers are now titled County police officers.

Deputies with LASD are classified as generalized law enforcement officers under Penal Code sections 830 and 830.1. The County Employees Retirement Law provides safety member retirement benefits to eligible employees enumerated by statute. Government Code section 31470.2 enumerates the classes of peace officers eligible for safety retirement benefits, which are more generous than those for persons not eligible under that statute. Deputy sheriffs are included, but County police are not.

The County police and LASD deputy sheriffs are separately classified under the County civil service rules. Plaintiffs' expert, Dr. James Ginger, testified that hiring requirements for County police and LASD, while not identical, are functionally equivalent. Both require, a high school diploma or equivalent; a class C driver's license; and height and weight proportionality. LASD has a hearing and vision requirement while the County police does not. The County police requires either POST¹ certification or former experience as a law enforcement officer, while LASD does not.

The parties contest whether the duties of the County police and the LASD are functionally equivalent. Deputy sheriffs, but not County police officers, generally must work in the County jails for up to six years before moving to other assignments. During that initial period they transport and supervise inmates. County police have no responsibilities with respect to jail prisoners. According to Bayan Lewis, chief of the County police at the time of trial, County police are not part of the general 911 emergency telephone system, except there is a cell phone system in six county parks which rings directly to the County police communications center. Separate unions represent the County police officers and LASD deputies in collective bargaining.

The class action in this case was filed in October 1998, alleging causes of action for violations of the California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12940 et seq.) and federal law, including title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.). Plaintiffs sought back pay, front pay, equal pay, pension and workers' compensation benefits equal to those received by LASD employees and equal promotional and assignment opportunities. They also sought extensive injunctive relief.

The court certified the class in July 2000, but only with respect to plaintiffs' claims of systemic racial discrimination: "Plaintiffs have presented sufficient evidence to raise an inference that there is an ascertainable class of safety police officers who have allegedly been denied the same terms and conditions accorded to sheriffs deputies because of their race. The parties have stipulated that a majority of safety police officers are minorities, and that safety police officers do not share the same terms and conditions of employment accorded to sheriffs deputies." The trial court further restricted the class to those who satisfied the typicality and commonality requirements, again, only as to claims of systemic racial discrimination.

The resulting class was defined as: "The 'Los Angeles County Safety Police Officer Class': includes all past, present, and future sworn Los Angeles County Safety Police Officers, in Health Services, Park Services, and Facilities Bureaus employed between June 1995 and the present, who were denied equal employment opportunity in equal pay, pension benefits, and workers compensation benefits by discrimination based on race, ethnicity or violation of equal protection." (Italics added.) The only causes of action certified with respect to the class action are the state law claims under FEHA in the first cause of action (racial discrimination), the sixth cause of action for violation of California Constitution, article 1, section 7, the seventh cause of action under FEHA (failure to prevent discrimination), and the thirteenth cause of action for injunctive and declaratory relief.² The period of liability at issue was resolved by stipulation of the parties to be the period between June 1995 and "the present." (We u...