Norwood v. City of Los Angeles, B208204 (Cal. App. 9/29/2009)
| Decision Date | 29 September 2009 |
| Docket Number | B208204 |
| Parties | KEVIN NORWOOD, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents. |
| Court | California Court of Appeals Court of Appeals |
Appeal from a judgment of the Superior Court of Los Angeles County, No. BC356737, Jane Johnson, Judge. Affirmed.
The Cochran Firm and Brian T. Dunn for Plaintiff and Appellant.
Rockard J. Delgadillo, City Attorney, Claudia McGee Henry, Senior Assistant City Attorney, and Gerald M. Sato, Deputy City Attorney, for Defendants and Respondents.
Appellant Kevin Norwood sued the City of Los Angeles ("City"), Tad Miller ("Miller"), and John Paxton ("Paxton") (all three parties collectively referred to as "Respondents") for violations of the California Fair Employment and Housing Act ("FEHA") after Appellant was terminated from his position as a firefighter recruit. The trial court granted Respondents' motion for summary judgment and entered judgment in favor of Respondents. Appellant appeals the trial court's order granting summary judgment as to his first cause of action. Appellant also challenges the trial court's refusal to allow the deposition of Laura Chick, the former Controller for the City. We affirm.
In June 2004, Appellant was hired by the City as a firefighter recruit; he entered the Frank Hotchkin Memorial Training Academy ("FHMTA" or "Academy"), along with 51 other recruits. Appellant was terminated from the Academy in October 2004 for "failure to meet the minimum standards of the Los Angeles Fire Department for the position of Firefighter I." In July 2005, Appellant filed a complaint of discrimination with the California Department of Fair Employment and Housing, alleging that he was fired and harassed because of his race or color. The case was closed "because an immediate right-to-sue notice was requested."
In August 2006, Appellant sued Respondents for violations of FEHA, alleging three causes of action. Appellant's first cause of action was for discrimination on the basis of race; the second cause of action was for harassment on the basis of race; the third cause of action was for failure to investigate and take remedial action.
Respondents filed a motion for summary judgment. Respondents set forth the details of the tests that Appellant had not successfully completed at the Academy and argued that those provided the basis for his termination. Respondents thus contended that Appellant had failed to establish a prima facie case of race discrimination because there was no evidence of a causal connection between his race and his termination. Respondents further argued that Appellant had presented no evidence of harassment, and that his third cause of action must fail because Appellant had failed to establish discrimination or harassment. Respondents also argued that Appellant had failed to exhaust his administrative remedies as to his third cause of action because it was not alleged in his complaint to the Department of Fair Employment and Housing. Finally, Respondents contended that the claims against the individual defendants must fail because there was no evidence of their involvement in Appellant's termination.
Respondents also filed a motion to quash a subpoena or, in the alternative, a protective order barring the deposition of Laura Chick, who had conducted a review of the management of the Los Angeles Fire Department in January 2006 (referred to by Appellant as the "Audit"). The following day, Appellant filed a motion to compel Chick to testify at a deposition. After the parties filed numerous cross-motions and memoranda on the issue, the trial court ruled that Appellant had failed to meet his burden of showing a compelling or extraordinary reason for deposing Chick. The court therefore granted Respondents' motion to quash and denied Appellant's motion to compel.
The trial court then granted Respondents' motion for summary judgment and entered judgment in their favor. The trial court applied the burden-shifting test established by McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas) and found that, as to Appellant's first cause of action, Appellant had failed to meet his initial burden of establishing that he was performing competently in his position prior to his termination. The court further found that, even if Appellant had established a prima facie case, he had failed to show that Respondents' stated reason for his termination was pretextual. The court accordingly granted summary adjudication of the first cause of action, for discrimination in violation of FEHA.
As to Appellant's second cause of action, for harassment in violation of FEHA, the trial court found that Appellant's complaint failed "to include any specific examples of harassment" and therefore granted summary adjudication. Finally, as to Appellant's third cause of action, for failure to take remedial action, the court granted summary adjudication because "The Court cannot find that a defendant is liable for failure to take remedial action when the Court finds that there is no discrimination or harassment as a matter of law." Appellant challenges the trial court's grant of summary judgment on his first cause of action and the court's refusal to allow the deposition of Chick.
(Westly v. Superior Court (2004) 125 Cal.App.4th 907, 910-911.) The burden is on the party who seeks to depose the official to "show[] good cause that the official has unique or superior personal knowledge of discoverable information." (Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1289.) "[A] trial court's discovery ruling is not to be disturbed unless the court has abused its discretion." (Id. at pp. 1286-1287.)
In January 2006, Chick wrote a letter, in her capacity as Controller, to Mayor Villaraigosa, City Attorney Delgadillo, and the members of the Los Angeles City Council. She stated that she had conducted an audit of the Los Angeles Fire Department because "disturbing information regarding discrimination and harassment in the Fire Department came to light through whistleblower information and reports in the press." The Audit, which she transmitted with the letter, found a "prevalent perception of a hostile workplace which has resulted in employees not reporting incidents of harassment and hazing due to fear of retaliation." She concluded the letter by stating,
The Audit was conducted by Sjoberg Evashenk Consulting, Inc., and a copy was sent the same day to Fire Chief William Bamattre. The City filed a motion to quash the subpoena or seeking a protective order to bar Appellant from deposing Chick. The motion included a declaration of Chick, stating that she had no personal knowledge of Appellant's circumstances or his experience with the Fire Department and was not involved in any employment decisions regarding Appellant.
The trial court held that Appellant had not met his burden of showing a compelling or extraordinary necessity to conduct Chick's deposition. The court described the Audit as "unscientific and inconclusive," citing the Audit's focus on "management structure, leadership and accountability, compliance with established policies and procedures, communication and interrelations among its sworn staff, and comparability with other large fire departments." The Audit did address issues of discrimination and harassment of women and minorities, as well as actions taken to address such issues, but only in a general fashion. The Audit also addressed the percentages of women and minorities who successfully completed the fire department's training programs, focusing on the Drill Tower Recruit Training Academy location. Nothing in the Audit, however, indicates that Chick would have "direct personal factual information pertaining to material issues" in Appellant's action. (Westly v. Superior Court, supra, 125 Cal.App.4th at p. 911.) The Audit was conducted by an outside consulting firm, and the statistics and findings contained in the Audit do not pertain to the reasons for Appellant's termination from the Academy. In addition, the record indicates that the trial court repeatedly suggested that Appellant would be better served by deposing members of the consulting firm that actually conducted the Audit and were more likely than Chick to have direct personal factual information. Nonetheless, Appellant delayed setting the deposition of the consulting firm until after several hearings on the issue were held. Appellant accordingly failed to meet his burden of showing compelling reasons to depose Chick.
The trial court did not abuse its discretion in denying Appellant's motion to compel Chick's deposition.
(Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 334 (Guz).) "Declarations of the moving party are strictly construed, those of the opposing party are liberally construed, and doubts as to whether a summary judgment should be...
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