Hammond v. County of Los Angeles

• Decision Date: 20 March 2008
• Docket Number: No. B189262.,B189262.
• Citation: 160 Cal.App.4th 1579,73 Cal.Rptr.3d 690
• Court: California Court of Appeals Court of Appeals
• Parties: Yvonne HAMMOND, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents.

73 Cal.Rptr.3d 690

160 Cal.App.4th 1579

Yvonne HAMMOND, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents.

No. B189262.

Court of Appeal, Second District, Division 5.

March 20, 2008.

Certified for Partial Publication.^*

Stephan A. Ebner and Kevin C. Boyle, Calabasas, for Plaintiff and Appellant.

Office of the County Counsel, Raymond J. Fortner, Jr., County Counsel, Ralph L. Rosato, Assistant County Counsel, Doraine F. Meyer, Principal Deputy County Counsel, and Donna B. Koch, Principal Deputy County Counsel, for Defendants and Respondents.

MOSK, J.

INTRODUCTION

Plaintiff and appellant Yvonne Hammond (plaintiff), a nursing instructor employed by the Los Angeles County Sheriffs Department (Department) sued her employer, defendant and respondent County of Los Angeles (County), alleging five violations of the Fair Employment and Housing Act (the FEHA).¹ Plaintiff also sued her supervisor, Betty Brennan (Brennan), alleging two causes of action for racial harassment and retaliation in violation of the FEHA. The County and Brennan successfully moved the trial court for an order granting summary judgment, and plaintiff appeals from the judgment entered based on that order.

In the published portion of this opinion, we hold that there is a triable issue of one or more material facts as to whether one year after the filing of plaintiffs administrative complaint with the Department of Fair Employment and Housing (the DFEH)—the period of limitations—she continued to experience an adverse employment activity so as to defeat the statute of limitations defense. We further hold that plaintiff has raised a triable issue of one or more material facts with respect to her claims against the County for race discrimination, age discrimination, and retaliation, all in violation of the FEHA. Brennan, however, is entitled to summary adjudication in her favor as to plaintiffs claim for retaliation under FEHA because such claims cannot be asserted against nonemployer individuals.

As we discuss in the unpublished portion of the opinion, we hold that plaintiff has raised a triable issue of one or more material facts with respect to her claims for harassment based on race, Brennan is not immune from individual liability under section 820.2, and the trial court properly granted the County's motion for summary adjudication as to the third cause of action against the County for failing to take reasonable steps to prevent discrimination or harassment.

FACTS²

A. Plaintiffs Facts

From approximately October 1996, the Department employed plaintiff as a nursing instructor in the Medical Staff Development Unit (MSD Unit). She was a credentialed teacher with five years of service as a nursing instructor in the MSD Unit and 18 years of total service with the County.

In late 2001, Brennan was assigned to "Twin Towers II" as the new supervisor of the MSD Unit.³ Before Brennan arrived, plaintiff taught seven to ten classes per month. Her teaching assignments amounted to 25 to 30 hours weekly. Shortly after Brennan was assigned to the MSD Unit, she asked plaintiff to "demote." Plaintiff understood that request to mean that Brennan wanted her to accept a position as a staff nurse. A staff nurse earns less salary than a nursing instructor.

In February or March 2002, Brennan removed plaintiff from the classroom. Plaintiff was 62 years old at the time. Plaintiff testified, "[I]t wasn't long before she told me I couldn't stay in the classroom because I was too old." Plaintiff described the conversation as follows: "[S]he didn't want me in the classroom anymore because I was an old instructor and these were new people and young people and they needed experience. I was an old experienced instructor and I needed to get out of the classroom and let them have a chance." Plaintiff further testified that, "[Brennan] told me she didn't want me to teach anymore, she wanted me out of the classroom because I was too old, [Brennan] wanted young people in the classroom, and from there I just sat all day in the office doing nothing." Brennan hired younger staff nurses to teach classes that had been previously assigned to plaintiff. According to plaintiff, once she was no longer teaching in the classroom, she was doing "[n]othing, just sitting." It was not that plaintiff was being prevented from teaching the number of classes she thought she deserved—she "didn't get any" classes to teach. She said, "they didn't let me teach anymore." Ultimately, she "couldn't take sitting there doing nothing." Plaintiffs repeated testimony about "doing nothing" supports a reasonable inference that she was subjected to more than the mere redistribution of the workload among plaintiff and the new employees. Thus, plaintiff disputed Brennan's assertion that the work was divided equally among the staff.

Plaintiffs testimony about the reduction in her teaching assignments was corroborated by a fellow nursing instructor, Joel Reta (Reta). According to Reta, he "witnessed [Brennan] treating [plaintiff] in an inappropriate manner. [Brennan] had a condescending attitude towards her and also began taking classes away from her, while giving [him] and other instructors more responsibility."

In addition to plaintiffs testimony that her teaching assignments were reduced shortly after Brennan took over supervision of the MSD Unit, the Department's own records, which are not controverted, show that plaintiff taught no classes from February 14 to November 6, 2002, when she taught a spinal injury class. Those records reflect that after the November 6, 2002, class, she taught classes on December 10, 2002, January 23, March 21, April 8 and 17, May 22, July 28, and December 11, 2003. After February 2002, plaintiff was never given a teaching assignment schedule comparable to her pre-February 2002 teaching schedule. Thus, after July 1, 2003—the date from which defendants claim the period of limitations began— plaintiff taught classes only on July 28 and December 11, 2003. In the middle of 2004, however, a new nursing director, Helen Johnson, directed that plaintiff be given additional teaching assignments. Plaintiff then began to teach 12 to 20 hours per week—still not as many hours per week as she had taught before the arrival of Brennan—seven to ten classes per week or about 25-30 hours weekly. When plaintiff was allowed to teach, Brennan monitored her classroom performance, but not the performance of the other three nursing instructors.

Plaintiff was the only African-American among the four instructors in the MSD Unit. Brennan made derogatory remarks to plaintiff and in plaintiffs presence about certain African-American employees. Examples of those remarks include, "They don't know anything—They[`re] dumb.... They didn't have any sense, they were dumb." According to plaintiff, Brennan made such remarks about Dr. Hart, Dr. Clark, and Stella Jackson, a nurse manager. Moreover, while observing plaintiff in the classroom, Brennan stated to Reta, "that she didn't understand [plaintiff] because [plaintiff] was probably speaking 'Ebonics.'"

In mid-2002, plaintiff met with Captain Richard Barrantes, Brennan's direct supervisor. Plaintiff told him that Brennan was a "racist," and was taking away her teaching assignments.

In apparent response to plaintiffs complaint to Captain Barrantes, Brennan met with plaintiff on August 27, 2002, and proceeded to tell plaintiff in an agitated manner, "Nobody screws me!—I will screw you back!—I [won't] forget you and Captain Barrantes can kiss my ass!" Brennan then took plaintiff to meet with Thomas Flaherty, another nursing director. During that meeting, Brennan complained to Flaherty about plaintiffs teaching methods. Flaherty replied that Brennan "should have told [plaintiff] what [Brennan] wanted." Plaintiff told Flaherty that Brennan "couldn't tell me what she wanted because she didn't communicate with me, she didn't even talk to me, she didn't even speak to me and she treated me very cold."

On October 23, 2003, plaintiff complained to Captain Rodney Penner, another supervisor, regarding the treatment she was enduring. Captain Penner admitted that Brennan told him that "[s]he [plaintiff] was concerned that she had had teaching responsibilities taken away from her. She expressed her concern and opinion that she felt that her supervisor or manager was racially prejudiced against African-American employees. She felt she was being unjustly treated because she was one of the few non-Filipino employees assigned to the [MSD] Unit." Captain Penner prepared a form regarding plaintiffs complaint. In the form, Captain Penner recorded the following: "Upon Ms. Brennan assuming managerial responsibility of the unit in 2001, Brennan told [plaintiff] that she was going to have to leave the unit and demote.... Upon her [plaintiffs] refusal to demote and leave the unit, [plaintiff] said she became subjected to ongoing harassment and discrimination by Brennan. [Plaintiff] said that virtually all her duties and responsibilities have been stripped from her, and that she is excluded from meetings with other staff members .... [Plaintiff] believes that Brennan is racially prejudiced against African-American employees, as she has openly described specific (African-American) employees by name, as `dumb.'"

Plaintiffs complaint to Captain Penner was investigated by the .Intake Specialist Unit (ISU), the unit within the Department that had the responsibility for investigating claims of discrimination. The ISU was created pursuant to the Department's "Policy of Equity" to receive and process complaints related to that policy.

On June 8, 2004, the Department issued a letter to plaintiff that stated, "This is a final acknowledgement of your complaint of October 22, 2003, wherein you complained about the actions of Ms. Betty Brennan. [¶] In summary you alleged that from approximately October 22, 2001 through October 2003, your supervisor, Ms. Betty...