Mcdonald v. Antelope Valley College Dist.
| Decision Date | 01 June 2007 |
| Docket Number | No. B188077.,B188077. |
| Citation | 61 Cal.Rptr.3d 62,151 Cal.App.4th 961 |
| Court | California Court of Appeals Court of Appeals |
| Parties | John McDONALD et al., Plaintiffs and Appellants, v. ANTELOPE VALLEY COMMUNITY COLLEGE DISTRICT, Defendant and Respondent. |
Law Offices of Gregory W. Smith and Gregory W. Smith, Beverly Hills; Christopher Brizzolara, Playa Del Rey; and Goldberg & Gage and Bradley C. Gage, Woodland Hills, for Plaintiffs and Appellants.
Carpenter, Rothans & Dumont, Steven J. Rothans and Justin Reade Sarno, Los Angeles, for Defendant and Respondent.
Plaintiffs, John McDonald, Sylvia Brown, and Sallie Stryker, appeal after the summary judgment motions of defendant, Antelope Valley College District, were granted. The summary judgment motions were granted on the sole ground the plaintiffs' administrative complaints were not filed with the Department of Fair Employment and Housing within the one-year time period specified in Government Code1 section 12960, subdivision (d), which provides in part, "No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred...." We reverse the order granting summary judgment against Mr. McDonald and Ms. Brown. However, we affirm the order granting summary judgment as to Ms. Stryker.
The original complaint was filed on October 24, 2003, and amended on December 17, 2003. The second amended complaint, which is the operative pleading, was filed on May 21, 2004, and contains causes of action for: racial harassment and discrimination (first); retaliation in violation of the Fair Employment and Housing Act (second); and failure to take all reasonable steps necessary to prevent discrimination and retaliation (third). The second amended complaint alleges that: plaintiffs are African-Americans; defendant has a 70-year history of discriminatory hiring practices against African-Americans in full time tenure track (teaching only) and faculty positions; the discriminatory practices include hiring only 5 female and 1 male African-Americans in full time tenure track (teaching only) positions; 3 of the African-American teaching faculty members resigned their positions because of defendant's racial discrimination and bias; in 2000, a survey was conducted of the prior 10 years of faculty hiring by defendant; a report of the survey established that defendant had consistently demonstrated racial and sexual discriminatory practices toward African-American employees; and defendant's actions constituted a systematic policy of discrimination in employment on account of race which is actionable under California Constitution, article 1, section 8.
The second amended complaint also alleged that defendant engaged in the following discriminatory practices: a pattern of changing hiring policies as well as past procedures when an African-American is qualified for and should be appointed to an interim position; a pattern of changing hiring policies and procedures when an African-American is being interviewed for a full time position; the systematic denial of interviews to qualified African-American applicants; employment of less than three percent of full time tenure track African-American faculty; and severe, pervasive, and systematic practices, policies, and procedures reflecting institutional bias and prejudice against African-Americans. According to the second amended complaint: plaintiffs were qualified for various promotions while employed by defendant; defendant failed to promote plaintiffs and engaged in other adverse employment actions against them because of their race; and plaintiffs utilized formal and informal remedies which continued until the spring of 2002.
The second cause of action for retaliation alleges: In the third cause of action, plaintiffs alleged that defendants: did not take reasonable steps necessary to prevent discrimination and retaliation from occurring; failed to conduct appropriate investigations; provided false and inaccurate, incomplete "and/or" misleading information; and neglected to provide plaintiffs with pertinent information needed to pursue administrative and other remedies. In addition to the general allegations concerning discrimination, the second amended complaint specifically alleged facts related to each plaintiff as follows.
Mr. McDonald began his employment with defendant in 1978 as an Extended Opportunity Program and Service school relations officer. He became a tenure tracked Extended Opportunity Program and Service counselor in 1986. From 1979 through the present, Mr. McDonald served as an adjunct professor of African-American History and Literature. Mr. McDonald has for many years been involved with organizations and issues pertaining to equal protection and equal opportunity for African-Americans. He has taken a long-time and active role in the development and activities of the Antelope Valley College Black Student Union. Mr. McDonald has attempted to motivate defendant to recruit African-American students to attend the college. Mr. McDonald also sought to encourage defendant to provide adequate funding and support in order to insure equal opportunity and protection for African-Americans at the college.
Mr. McDonald alleged the following discriminatory "and/or" retaliatory conduct was directed at him in response to his activism while employed by defendant: in 1984, he was summarily removed from his position as a school relations officer and charged with misappropriation and embezzlement of college funds; a jury found him not guilty of the false charges; in 1992, a "Transfer Counselor/Director" position opened at the college; the position required a credentialed counselor and familiarity with course articulation between community colleges and California universities; the position also required experience with the "matriculation/transfer" of historically underrepresented ethnic groups; Mr. McDonald met all the criteria for the position; after he applied and interviewed for the position, defendant refused to hire anybody to be a transfer counselor; defendant subsequently reopened the position; Mr. McDonald reapplied for the position; defendant did not select Mr. McDonald because of his race; defendant selected a non-African-American with less experience and qualifications in the field of counseling; and the person selected for the position had no experience with the matriculation or transfer of historically underrepresented ethnic groups.
Mr. McDonald also alleged that, in 2000, he applied for and was selected for a Social Services Division Screen Committee, which was empowered to make the selection of candidates for full time positions. The committee consisted of seven representatives including two advisory only positions and five voting members; three were African-American and two were Caucasian. The second amended complaint alleged that, in violation of its own policy, defendant subsequently removed all three of the African-American members. This occurred after one of the Caucasian members complained that the committee was weighted too heavily with African-Americans. In response to these complaints defendant subsequently reappointed one previously removed African-American, three Caucasians, and one Latino.
The second amended complaint further alleged that, in 2000, Mr. McDonald applied for the position of Dean of Counseling but was not selected because of his race. Defendant instead selected a retired Caucasian male with less experience and qualifications in the field of counseling. In 2000, Mr. McDonald applied for the position of Extended Opportunity Program and Service Director. Although Mr. McDonald was qualified with 22 years of experience with Extended Opportunity Program and Service as a counselor, he was not selected due to his race. Defendant instead placed the program under the "de facto" direction of a person who was on sabbatical.
Mr. McDonald alleged that he was retaliated against for complaining of discrimination in the following manner. In November 2001, he was given a written reprimand and disciplined for alleged "absenteeism" by defendant. Mr. McDonald had not been unduly absent from his job and any absences were the result of health conditions covered by accrued sick leave. The written reprimand is part of his permanent file and will preclude or hinder him from promotions, transfers, and other employment opportunities. As previously noted, Mr. McDonald further alleged that he was subjected to a retaliatory e-mail on December 17, 2002. On December 20, 2002, defendant filed an administrative complaint with the Department of Fair Employment and Housing. On January 7, 2003, defendant received a right to sue letter.
The second amended complaint alleged that Ms. Brown began her employment with defendant in 1998 as a Library Technician's Assistant. She remains in that position. In 1999, defendant opened a position for employment of a Database Administrator. Under a collective bargaining agreement, a "house applicant" who meets minimum qualifications is to be...
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