Lima v. City of Los Angeles, B202029 (Cal. App. 3/26/2009)

• Decision Date: 26 March 2009
• Docket Number: B202029
• Court: California Court of Appeals Court of Appeals
• Parties: FRANK LIMA, Plaintiff and Respondent, v. CITY OF LOS ANGELES, Defendant and Appellant.

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FRANK LIMA, Plaintiff and Respondent, v. CITY OF LOS ANGELES, Defendant and Appellant.

B202029

Court of Appeals of California, Second Appellate District, Division Five

March 26, 2009

Not to be Published in the Official Reports

Appeal from a judgment of the Superior Court of Los Angeles County, No. BC353261, Tricia Ann Bigelow, Judge. Affirmed.

Rockard J. Delgadillo, City Attorney, and Paul L. Winnemore, Deputy City Attorney, for Defendant and Appellant.

Law Offices of Gregory W. Smith, Gregory W. Smith; Benedon & Serlin, Douglas G. Benedon and Gerald M. Serlin for Plaintiff and Respondent.

TURNER, P. J.

I. INTRODUCTION

Defendant, the City of Los Angeles, appeals from a judgment following a jury verdict in favor of plaintiff, Frank Lima. The judgment is premised on plaintiff's Department of Fair Employment and Housing Act retaliation claim. We affirm the judgment.

II. BACKGROUND

The Los Angeles City Fire Department (department) hierarchy includes, in descending order of rank: the fire chief; five deputy chiefs; assistant chiefs; battalion chiefs; captain IIs; captain Is; engineers; inspectors IIs; inspector Is; apparatus operators; firefighter IIIs; firefighter IIs; and firefighter Is. The chief officers (fire chief, deputy chief, assistant chief, battalion chief) are represented by the Chief Officer's Association bargaining unit. The remaining ranks are represented by the United Firefighters of Los Angeles City bargaining unit. Plaintiff is a captain II with the department. Plaintiff sued the department on May 31, 2006, for gender and sex discrimination (first cause of action) and retaliation (second cause of action) in violation of the Fair Employment and Housing Act. (Gov. Code, § 12940 et seq.) With plaintiff's consent, the trial court summarily adjudicated his discrimination claim. In his second cause of action for retaliation, plaintiff alleged he was retaliated against for opposing an unofficial department policy designed to solve a recruiting and retention problem by giving preferential treatment to firefighters who are women. The trial court denied summary adjudication as to that claim. The trial court noted, "[The Fair Employment and Housing Act] disallows the preferential—as well as detrimental—treatment of protected classes."

Plaintiff's retaliation cause of action went to trial before a jury on May 22, 2007. The jury specifically found: plaintiff "oppose[d] being told to give preferential treatment to female fire fighters"; defendant reprimanded plaintiff for his conduct in a July 19, 2004 training drill, denied him a position as captain of the urban search and rescue team, imposed a 30-day suspension for an incident of which plaintiff had no knowledge, "treat[ed] him differently regarding his time off," and "treat[ed] him differently during [a] tanker fire"; "[plaintiff's] opposition to being told to give preferential treatment to female fire fighters [was] a motivating reason for [the foregoing conduct by defendant]"; defendant's retaliatory conduct was "a substantial factor in causing [plaintiff] harm"; and plaintiff was damaged in the amount of $3.75 million dollars ($ 790,000 in future economic, $2 million in past noneconomic, and $960,000 in future noneconomic losses). The trial court denied defendant's judgment notwithstanding the verdict and new trial motions. This appeal followed.

III. DISCUSSION

A. The Retaliation Cause of Action

Government Code section 12940, subdivision (h) is the statutory basis for a Fair Employment and Housing Act retaliation cause of action. (Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1161-1162; Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1035.) Government Code section 12940, subdivision (h) states in part: "It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: [¶] . . . [¶] . . . For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part."

A Fair Employment and Housing Act retaliation claim is subject, at trial, to the three-stage burden-shifting test set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-805. (Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at p. 1042; Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 356.) First, the plaintiff must establish a prima facie case of retaliation: the employee engaged in a protected activity; the employer subjected the employee to an adverse employment action; and there was a causal link between the protected activity and the adverse action. (Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at p. 1042; Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1252.) Second, once the employee establishes a prima facie case, the burden shifts to the employer to rebut the presumption of retaliation. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355-356; Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 112.) If the employer meets this burden, if it offers a facially sufficient lawful reason for the challenged action, the presumption of retaliation disappears. (Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at p. 1042; Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 356; Reeves v. Safeway Stores, Inc., supra, 121 Cal.App.4th at p. 112.) Third, once the defendant shows a non-retaliatory reason for its action, the burden shifts back to the plaintiff to attack the employer's proffered reason as pretext for retaliation or to offer evidence of retaliatory motive. (Guz v. v, Bechtel National, Inc., supra, 24 Cal.4th at pp. 355-356; Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 67-68.) The plaintiff must show by a preponderance of the evidence that the adverse employment action was in fact the result of an illegal motive—in this case retaliation—rather than other causes. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 356; Reeves v. Safeway Stores, Inc., supra, 121 Cal.App.4th at p. 112.)

In the present case, plaintiff claimed he was retaliated against for engaging in protected activity in that he opposed an unofficial department policy to preferentially treat female firefighters. That unofficial policy violates the California Constitution. The California Constitution prohibits a public employer from giving preferential treatment to an individual on the basis of gender. (Cal. Const., art. I, § 31; Hi-Voltage Wire Works, Inc. v. City of San Jose (2000) 24 Cal.4th 537, 541-542; C&C Construction, Inc. v. Sacramento Mun. Utility Dist. (2004) 122 Cal.App.4th 284, 291.) The unofficial policy also violates the Fair Employment and Housing Act. Decisional authority demonstrates the Fair Employment and Housing Act prohibits preferential treatment of female employees on the basis of sex. (See Broderick v. Ruder (D.D.C. 1988) 685 F.Supp. 1269, 1278-1279; Miller v. Department of Corrections (2005) 36 Cal.4th 446, 459-460, 463-466; Department of Corrections v. State Personnel Bd. (Wallace) (1997) 59 Cal.App.4th 131, 143 & fn. 1; Proksel v. Gattis (1996) 41 Cal.App.4th 1626, 1629-1630; Nicolo v. Citibank New York State, N.A. (N.Y.Sup. 1990) 554 N.Y.S.2d 795, 799.) Further, as our Supreme Court has explained: "[A]n employee's conduct may constitute protected activity for purposes of the antiretaliation provision of the [Fair Employment and Housing Act] not only when the employee opposes conduct that ultimately is determined to be unlawfully discriminatory under the [Fair Employment and Housing Act], but also when the employee opposes conduct that the employee reasonably and in good faith believes to be discriminatory, whether or not the challenged conduct is ultimately found to violate the [Fair Employment and Housing Act]. It is well established that a retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited by the [Fair Employment and Housing Act]. (See, e.g., Miller v. Department of Corrections, supra, 36 Cal.4th at p. 473; Flait v. North American Watch Corp. [(1992)] 3 Cal.App.4th [467,] 477; Moyo v. Gomez (9th Cir. 1994) 40 F.3d 982, 985; Gifford v. Atchison, Topeka & Santa Fe Ry. Co. (9th Cir. 1982) 685 F.2d 1149, 1157.)" (Yanowitz v. L'Oreal USA Inc., supra, 36 Cal.4th at p. 1043, fn. omitted.) Defendant does not contend plaintiff did not reasonably believe it was discriminatory to give preferential treatment to firefighters who were women. Plaintiff engaged in activity protected under the Fair Employment and Housing Act when he expressed opposition to the department's preferential treatment policy.

Two points warrant emphasis. First, this is a case where the department's official policy is that women and men are treated equally. This is not a case where plaintiff disagreed with the department's official physical fitness and proficiency requirements and proceeded to treat women differently. Nor is this a case where plaintiff complained about the department's official physical fitness and proficiency policies. Rather, this is a case where there is evidence plaintiff disagreed with the department's practice of refusing to enforce its nondiscrimination policy. This is a case where there is evidence plaintiff received orders from superiors to treat women preferentially and, when he objected to the policy, he was the subject of retaliation. Second, defendant presented evidence it has no such unofficial policy. Because the jury believed plaintiff's version of the testimony, our discussion of the facts proceeds on the...