Hughes v. Cnty. of Humboldt

• Decision Date: 28 May 2019
• Docket Number: A150526,A148940
• Court: California Court of Appeals Court of Appeals
• Parties: LAURENCE S. HUGHES, Plaintiff and Appellant, v. COUNTY OF HUMBOLDT, Defendant and Appellant. LAURENCE S. HUGHES, Plaintiff and Respondent, v. COUNTY OF HUMBOLDT, Defendant and Appellant.

LAURENCE S. HUGHES, Plaintiff and Appellant, v. COUNTY OF HUMBOLDT, Defendant and Appellant.

LAURENCE S. HUGHES, Plaintiff and Respondent, v. COUNTY OF HUMBOLDT, Defendant and Appellant.

A148940

A150526

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

May 28, 2019

ORDER MODIFYING OPINION AND DENYING REHEARING[NO CHANGE IN JUDGMENT]

BY THE COURT:

It is ordered that the opinion filed herein on May 28, 2019, be modified as follows:

On page 3, in the last sentence of the first full paragraph, the phrase "—in this case, the Director of the DHHS, who was a man" should be deleted, so that the sentence reads:

They only provided a recommendation which "went up the chain of command" to the "appointing authority."

There is no change in the judgment.

Hughes's petition for rehearing is denied.

(Streeter, Acting P.J., Tucher, J., and Brown, J. participated in the decision.)

Dated: __________

/s/_________, P.J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Humboldt County Super. Ct. No. DR101000)

Laurence S. Hughes, who was then employed as an Employment Training Program Coordinator in the Social Services Branch of Humboldt County's Department of Health and Human Services, applied for a promotion to a position as Employment and Training Manager, but a woman was promoted instead of him. He filed an action under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) alleging sex discrimination (Gov. Code, § 12940, subd. (a)), age discrimination (ibid.), retaliation (id., subd. (h)), and requesting reinstatement (Gov. Code, § 12965, subd. (c)). He initially pursued only a disparate treatment theory, but after the County prevailed on a motion for summary adjudication of the sex discrimination cause of action under that theory, Hughes amended the complaint several times, eventually alleging both a disparate treatment and adisparate impact theory of sex discrimination.¹ The County unsuccessfully moved for summary adjudication of the disparate impact theory.

The case went to jury trial on the disparate impact theory and retaliation cause of action, and the jury found in favor of Hughes on the gender discrimination claim but rejected the retaliation claim. It awarded Hughes $185,000 in damages, and the judge later awarded him attorney fees of $308,582. (See Gov. Code, § 12965, subd. (b).) The County appeals both the judgment and the attorney fees award, contending among other things that its motion for judgment notwithstanding the verdict should have been granted because Hughes's statistical evidence of disparate impact was flawed in that it focused solely on promotions within the SSB rather than on countywide hiring and promotion statistics. The County also contests the attorney fees award both because Hughes should not have been the prevailing party and because the amount awarded was allegedly excessive. Hughes filed a cross-appeal alleging the trial court erroneously granted summary adjudication of the disparate treatment claim.

We conclude Hughes failed as a matter of law to establish a prima facie case of sex discrimination. Therefore, we reverse the judgment and remand with an order to enter a new judgment in favor of the County.

I. FACTUAL AND PROCEDURAL BACKGROUND

Hughes is a high school dropout who later earned his GED and a bachelor's degree, and at age 32 got a job with the County of Humboldt (County) as a vocational counselor in the Employment Training Department, which is now a division within the Social Services Branch (SSB) of the Department of Health and Human Services (DHHS). Within that division he moved up in rank over the course of 26 years, receiving eight progressively more responsible promotions, continuing his education all the while, until by 2009 he was a Program Coordinator in the Employment Training Division of the SSB. By that time, Hughes had earned a bachelor's degree in business management with anemphasis in personnel and two master's degrees, one in psychology with an emphasis in marriage and family therapy and the other in general psychology. He also had completed all course work for a Ph.D., but he did not finish his dissertation. In his work with the County, Hughes consistently received "above average" or "outstanding[]" performance evaluations.

In late 2009, Hughes applied for the position of Employment Training Manager (ETM), which Hughes characterized as the "next step in the career ladder I was on." The job description for this position indicated that a four-year college degree in fields including "business, public administration, psychology, social services, or a closely related field," and four years of professional-level experience in job development, employment training or similar social service delivery programs were "desirable" assets (there were no mandatory qualifications). The initial review of applications for that position was made by the County's Human Resources department, which narrowed down the field of 52 applicants to five individuals—three men (including Hughes) and two women—determined to be eligible for consideration. Three of these candidates—Hughes, Consuelo "Connie" Lorenzo and Bruce Alexander—worked for the County already, while two others—Tim Hoon and Sherry Williams—were outsiders. Three women, Marti Hufft (the supervisor for the position), Donna Wheeler (Hufft's supervisor), and Jaqueline Debets (a manager in economic development), interviewed the candidates. The three managers sitting on Hughes's interview panel did not have discretion to promote anyone. They only provided a recommendation which "went up the chain of command" to the "appointing authority"—in this case, the Director of the DHHS, who was a man.

Hughes believed his interview went extremely well, but the County hired Lorenzo instead. When Hufft informed Hughes in February 2010 that he would not be receiving the promotion to ETM, she encouraged him to apply for another position, as Employment Training Worker Supervisor in another unit of the SSB (the CalWORKS unit). Hughes successfully applied and moved to that position in August 2010, receiving a small bump in salary.

Before he left his position as Program Coordinator, Hughes was pulled aside by Lorenzo, and she asked him about a rumor that he might be planning to file a complaint with EEOC. Hughes alleges Lorenzo told him he "better not" file a discrimination complaint with the EEOC if he ever wanted another promotion. After having what (to him) was an uncomfortable interaction with Lorenzo at his new place of work a few days after he started there, Hughes consulted his physician, who placed him on temporary disability leave. After a few months of disability leave, Hughes retired permanently from the County.

In November 2010, Hughes filed a complaint alleging gender and age discrimination based on disparate treatment, as well as retaliation. The County moved for summary judgment, and in May 2012 (before there had been a ruling), Hughes filed a first amended complaint alleging disparate treatment and disparate impact, as well as age discrimination and a renewed claim for retaliation. In June 2012, the court granted summary adjudication on age discrimination and disparate treatment based on gender in the first cause of action but denied the motion as to retaliation. The court allowed the disparate impact claim to proceed.

In a second amended complaint filed in September 2012, Hughes re-alleged his cause of action for age and sex discrimination based on disparate treatment and disparate impact theories and for retaliation. After the County successfully demurred to the second amended complaint and to a third amended complaint, Hughes filed his "Amendment to Third Amended Complaint." The County moved for summary adjudication on the disparate impact theory once again, but the court denied the motion.

The case proceeded to a jury trial on the disparate impact and retaliation claims in March 2016, with the jury returning a verdict on May 2, 2016. The jury found the County's challenged employment selection policy—"the oral interview process after the receipt of an eligible candidate list under Merit System Rule IV"—had a "disproportionate adverse effect on males."

The jury found this policy accomplished a necessary business purpose, but there was an alternative selection policy that would have accomplished the business purposeequally well with less impact on males. Having found that the identified selection policy was a substantial factor in causing harm to Hughes, the jury found his damages for past economic loss were $60,000 and past noneconomic loss were $125,000. Hughes subsequently moved for attorney fees and costs, which were granted in the amount of $257,152 with a multiplier of 1.2, for a total award of $308,582. The County timely appealed from the judgment, while Hughes cross-appealed (No. A148940). The County later filed a notice of appeal from the order granting attorney fees (No. A150526). The two appeals were consolidated in this court.

II. DISCUSSION

After the verdict was returned, the County filed motions for judgment notwithstanding the verdict and for a new trial, both of which were denied. The County appeals on the basis that the motion for judgment notwithstanding the verdict should have been granted, or alternatively, that the case should be remanded for further proceedings. The County raises five issues on appeal: (1) judgment notwithstanding the verdict should have been granted as a matter of law because Hughes presented no evidence that Merit System Rule IV had an adverse impact on the total countywide group to which it was applied; (2) the judgment notwithstanding the verdict should have been granted because...