Harman v. City and County of San Francisco

• Decision Date: 22 February 2006
• Docket Number: No. A108246.,No. A109226.,A108246.,A109226.
• Citation: 136 Cal.App.4th 1279,39 Cal.Rptr.3d 589
• Court: California Court of Appeals Court of Appeals
• Parties: Allen HARMAN, Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Appellants.

39 Cal.Rptr.3d 589

136 Cal.App.4th 1279

Allen HARMAN, Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Appellants.

No. A108246.

No. A109226.

Court of Appeal, First District, Division 1.

February 22, 2006.

Dennis J. Herrera, City Attorney, Wayne K. Snodgrass, Esq., Sherri Sokeland Kaiser, Esq., Vince Chhabria, Esq., Deputy City Attorney, G. Scott Emblidge, Esq., Rachel J. Sater, Esq., Lina R. Guillen, Esq., San Francisco, Moscone, Emblidge & Quadra LLP, for Defendants and Appellants.

Nageley, Meredith & Miller, Inc., Andrea M. Miller, Esq., Sacramento, Pacific Legal Foundation, Sharon L. Browne, Esq., Paul J. Beard II, Esq., Sacramento, for Plaintiff and Respondent.

SWAGER, J.

In an earlier appeal in this employment discrimination case, we reversed a summary judgment in favor of the defendants, City and County of San Francisco, individual members of the San Francisco Airport Commission, and the director of the San Francisco Airport (hereafter City) with respect to one cause of action of one plaintiff, Allen Harman (hereafter Harman), who claimed to have suffered an approximate one-year delay in promotion as the result of racial discrimination in violation of the federal Civil Rights Act of 1871 (42 U.S.C. § 1983). Following a seven-day trial, the jury awarded Harman compensatory damages of $30,300 based on a special verdict finding discrimination against White males in promotional opportunities, and the trial court subsequently awarded Harman's counsel $1.1 million in attorney fees. We affirm the judgment for damages but remand the award of attorney fees for further consideration.

FACTUAL AND PROCEDURAL BACKGROUND

In September 1999, three White males, including Harman, who were employed as airfield safety officers at the San Francisco International Airport, filed a complaint in federal court alleging employment discrimination. After lengthy federal court proceedings involving inter alia an appeal to the Ninth Circuit Court of Appeals, the parties stipulated to filing a new complaint in state court. The complaint initially sought only equitable relief but was later amended to include a cause of action for damages. The first three causes of action of the first amended complaint alleged discrimination on the basis of race and sex in violation of Proposition 209 (Cal. Const., art. I, § 31) and the equal protection clause of the Fourteenth Amendment to the United States Constitution and sought prospective equitable relief through an injunction, declaratory judgment, and writ of mandate commanding City "to implement race- and sex-neutral recruitment, hiring, and promotional policies." The fourth cause of action sought damages under Proposition 209 and the federal Civil Rights Act as codified in title 42 United States Code section 1983 (hereafter section 1983).

The trial court sustained the City's demurrer to the fourth cause of action, as it stated a claim of damages under Proposition 209, on the ground that it did not allege compliance with the Government Claims Act. (Gov.Code, § 905 et seq.) After completion of discovery, the court granted the City's motion for summary judgment on the remaining causes of action and the plaintiffs appealed.

We affirmed the summary judgment with respect to the claim of prospective equitable relief in the first three causes of action, finding that the City adopted an equal employment opportunity plan in July 2000 that stated policies consistent with evolving legal standards of employment discrimination under equal protection jurisprudence and Proposition 209.¹ We found "no basis in the record to question the Airport's commitment to conform to changing legal standards in the area of employment policy." We also affirmed the summary judgment with respect to the claims of damages of two of the three defendants. In the case of Harman, we affirmed the demurrer to the claim for damages under Proposition 209, but we found a triable issue of fact relating to his claim of damages under section 1983 arising from a delay in receiving a promotion to the job classification of 9220 Airport Operations Supervisor.

The complaint originally attacked three personnel decisions: the termination of a pool of eligible candidates for a provisional appointment, the appointment of an acting supervisor for a 90-day period in April 1999, and the permanent appointment of airport operating supervisors through the normal civil service procedure. Since Harman received a permanent promotion as airport operations supervisor in May 2000, his claim for damages was necessarily restricted to the other two personnel decisions.

The summary judgment dismissing the claim for damages in the earlier appeal was based on the City's contention that plaintiffs failed to show evidence of a discriminatory purpose in the challenged personnel actions. In reversing the dismissal of Harman's section 1983 claim, we found a triable issue of fact as to a racially discriminatory purpose in the termination of the provisional pool and the acting appointment. The parties did not raise, and we did not consider another element of the plaintiffs' case required by Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658, 56 L.Ed.2d 611, 98 S.Ct. 2018—evidence that the personnel decision arose from the execution of official policy or custom of the City.

In the trial following remand, the City moved for nonsuit on the ground that Harman's case in chief failed to produce evidence satisfying Monell requirements. After the motion was denied, the City requested an instruction that identified the Civil Service Commission of San Francisco as the City's policymaker in personnel administration. The trial court declined to identify the commission or any other official or municipal body as the source of official policy.

Responding to a special verdict form, the jury found that the City had "an official policy or custom to intentionally discriminate against [W]hite males in promotional opportunities at the San Francisco International Airport." The jury then awarded Harman $15,300 as damages for economic harm and another $15,000 as damages for emotional distress. The City moved for judgment notwithstanding the verdict and for new trial relying chiefly on a claim of Monell error. The trial court denied the motions and entered judgment for Harman.

Harman then filed two motions for attorney fees under 42 United States Code section 1988 in the total amount of $1,095,202. He sought $713,152.75 on behalf of the Pacific Legal Foundation, which filed the original action, and $382,050.23 for trial counsel, Andrea Miller. The trial court awarded the entire sum finding that it was "reasonable, after due consideration of the success obtained relative to the relief sought and other circumstances of this case." The City filed a timely notice of appeal.

DISCUSSION

In its opening brief, City states that it does not challenge the sufficiency of the evidence on discriminatory purpose in deference to our ruling reversing the summary judgment of Harman's section 1983 claim and confines its arguments to the claim of Monell error. But the factual connection between issues of discriminatory purpose and Monell error is so close that it is impossible to meaningfully consider one without the other. We will therefore review the evidence of discriminatory purpose before addressing Monell issues.

A. Evidence of Discriminatory Purpose

1. Applicable Law

As explained in more detail in our earlier decision, "[s]ection 1983 provides a remedy for state action that purposefully discriminates on the basis of race in violation of the equal protection clause of the Fourteenth Amendment. [Citation.] The protection afforded by section 1983 includes relief from discriminatory employment practices of public employers." (Poolaw v. City of Anadarko (10th Cir. 1981) 660 F.2d 459, 462.) To recover damages for an equal protection violation under section 1983, a plaintiff must show that the municipality's action was motivated by a "discriminatory intent or purpose." (Arlington Heights v. Metropolitan Housing Corp. (1977) 429 U.S. 252, 265, 50 L.Ed.2d 450, 97 S.Ct. 555.) "[T]he invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose." (Washington v. Davis (1976) 426 U.S. 229, 240, 48 L.Ed.2d 597, 96 S.Ct. 2040.)

It is not necessary to prove that the municipality's action "rested solely on racially discriminatory purposes." (Arlington Heights v. Metropolitan Housing Corp., supra, 429 U.S. 252, 265, 97 S.Ct. 555, 50 L.Ed.2d 450.) In Arlington Heights, the Supreme Court explains, "[I]t is because legislators and administrators are properly concerned with balancing numerous competing considerations that courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality. But racial discrimination is not just another competing consideration. When there is a proof that a discriminatory purpose has been a motivating factor in the decision, this judicial deference is no longer justified." (Id. at pp. 265-266, 97 S.Ct. 555, fn. omitted.)

Beginning with University of California Regents v. Bakke (1978) 438 U.S. 265, 57 L.Ed.2d 750, 98 S.Ct. 2733, the Supreme Court has interpreted the equal protection clause of the Fourteenth Amendment as extending protection against racial discrimination that may be asserted by a person of any race, without regard to membership in a group suffering from a history of racial discrimination. As stated in Richmond v. J.A. Croson Co. (1989) 488 U.S. 469, 494, 102 L.Ed.2d 854, 109 S.Ct. 706, "the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification."

A plaintiff is not entitled to relief, however, unless he can show that he was injured by the challenged action. In Texas v. Lesage (1999) 528 U.S. 18, 145 L.Ed.2d 347, ...