Valdez v. City of Los Angeles

• Decision Date: 27 June 1991
• Docket Number: No. B048372,B048372
• Citation: 231 Cal.App.3d 1043,282 Cal.Rptr. 726
• Court: California Court of Appeals Court of Appeals
• Parties: , 63 Fair Empl.Prac.Cas. (BNA) 592 Ernest F. VALDEZ, Plaintiff and Appellant, v. CITY OF LOS ANGELES, et al., Defendants and Respondents.

Page 726

282 Cal.Rptr. 726

231 Cal.App.3d 1043, 63 Fair Empl.Prac.Cas. (BNA) 592

Ernest F. VALDEZ, Plaintiff and Appellant, v. CITY OF LOS ANGELES, et al., Defendants and Respondents.

No. B048372.

Court of Appeal, Second District, Division 7, California.

June 27, 1991.

[231 Cal.App.3d 1047] George Kezios, Van Nuys, for plaintiff and appellant.

James K. Hahn, City Atty., Frederick N. Merkin, Senior Asst. City Atty., Robert Cramer, Asst. City Atty., for defendants and respondents.

FRED WOODS, Associate Justice.

This is an employment discrimination action brought by a former police officer against the Los Angeles Police Department, The City of Los Angeles and other defendants. The trial court granted defendants' motion for summary judgment, and plaintiff appealed. For the reasons set forth below, we affirm as to all defendants except the City of Los Angeles and reverse as to the City.

FACTS AND PROCEEDINGS BELOW

Plaintiff Ernest Valdez joined the Los Angeles Police Department in December 1980 at the entry-level pay grade, Police Officer I. He advanced to Police Officer II in April 1982. Valdez made four unsuccessful attempts to advance to Police Officer III. These unsuccessful attempts form the gravamen of Valdez's complaint of discrimination based on his Hispanic ancestry.

Advancement to Police Officer III is a three step process. First, applicants are given a written examination. Those who pass the written examination are given an oral examination. Candidates who complete the oral examination are rated in one of four categories: outstanding, excellent, very good or satisfactory. The list of candidates eligible for promotion remains in effect for two years. Ordinarily a candidate in a higher category will be selected for promotion ahead of a candidate in a lower category. However, an "excellent" candidate may be selected ahead of an "outstanding" candidate if no "outstanding" candidate applies for a particular opening or if the "excellent" candidate possesses specialized skills required by the particular opening.

According to the defendants, for the past several years, going back to before 1985, the police department has exhausted the pool of "outstanding" candidates well before the expiration of the eligibility list and has promoted many candidates rated "excellent" to Police Officer III.

Plaintiff Vandez took the written test for Police Officer III in 1982, 1983 and 1984. He failed each time. Finally, in March 1985 he passed the written examination and was allowed to take the oral examination in May 1985. Following the oral examination, Valdez was rated "excellent," the second category. The eligibility list derived from this examination was effective for a two year period--May 1985 to May 1987.

Valdez resigned from the police department effective December 15, 1985. On December 4, 1986, Valdez filed a charge with the California Department of Fair Employment and Housing claiming his resignation was a constructive discharge. He based this claim on the grounds that the advancement system in the police department discriminated against him as a Hispanic and "[t]he many denials of advancement opportunities were so distressing that I was forced to resign." The Department of Fair Employment and Housing found "insufficient evidence to prove [a] violation" and notified Valdez on May 7, 1987, of his right to file a civil action within one year of the notice. Valdez filed a civil action for employment discrimination on May 4, 1988.

Valdez's complaint alleged that the written and oral examinations for promotion to Police Officer III discriminate against Hispanics, such as himself. He further alleged that because of his Hispanic ancestory he was denied training opportunities and work assignments which would have increased his opportunity for advancement. Finally, he alleged the foregoing acts of discrimination resulted in his constructive discharge from the police department.

Defendants answered Valdez's complaint denying its material allegations. Defendants then moved for summary judgment.

Defendants' motion for summary judgment rested on four grounds: (1) Valdez's claims of discrimination arising from the police department's promotion practice were not timely filed with the Department of Fair Employment and Housing; (2) Valdez's complaint fails to state a cause of action for constructive discharge; (3) the claims against the individual defendants are barred because none of them were named in the charges filed with the Department of Fair Employment and Housing; and (4) the Los Angeles Police Department cannot be sued for damages.

Defendants made no attempt to produce evidence refuting Valdez's allegations of discrimination in the police department's promotion practices. Nor did defendants produce any evidence bearing on Valdez's working conditions. The sole declaration in support of defendants' motion for summary judgment was filed by an officer in charge of the police department's employee relations division. The declaration reviews Valdez's employment history as described above and states the declarant is not aware of any intent to discriminate against Valdez or any discriminating effect in the department's promotion practice for the grade of Police Officer III.

Valdez's declaration in opposition to the motion for summary judgment also recites his employment history. The declaration mentions a new fact not alleged in the complaint. Valdez states he was not "provided the necessary backup on emergencies when other patrol vehicles were in the vicinity [and] such requests were made."

In his deposition, Valdez was asked why he resigned. He responded, "I felt it was hazardous to my health while I was working Northeast Division." Asked to elaborate on this statement, Valdez testified, "I did not have backup when I was supposed to have backup in a situation when clearly there were officers there ... that happened several times." Valdez was asked why, in his opinion, he did not receive backup. He answered, "the nonminority officers in that division felt that I was stirring the pot, so to speak, and that maybe minorities are coddled too much already." Valdez further stated non-minority officers in the department felt unqualified minority officers were being promoted and one (unidentified) lieutenant told him in effect to "keep my mouth shut." The references to "stirring the pot" and "keeping his mouth shut" appear to refer to grievances Valdez had previously filed with the department over the Police Officer III promotion system. Valdez challenged the department's refusal to allow candidates who failed the written examination to review their test results and challenged his "excellent" rating from the oral examination.

As previously noted, the trial court granted summary judgment to all defendants and Valdez appealed.

I. TRIABLE ISSUES OF FACT EXIST AS TO THE CONTINUING NATURE OF THE DEFENDANTS' ALLEGED DISCRIMINATION IN PROMOTION OF HISPANIC POLICE OFFICERS.

A. Basis For Summary Judgment.

It is well-settled summary judgment is proper only if the documents in support of the moving party would be sufficient to sustain a judgment in its favor. Where, as here, the moving party is the defendant, it must either negate a necessary element of the plaintiff's case or state a complete defense. (Estate of Fisher (1988) 198 Cal.App.3d 418, 423, 244 Cal.Rptr. 5.) The declarations of the moving party are strictly construed; those of the responding party are construed liberally. (Empire West v. Southern California Gas Co. (1974) 12 Cal.3d 805, 808, 117 Cal.Rptr. 423, 528 P.2d 31.) Regardless of where the burden of proof would lie at trial, the burden is on the party moving for summary judgment to negate its opponent's claims. (Security Pac. Nat. Bank v. Associated Motor Sales (1980) 106 Cal.App.3d 171, 179, 165 Cal.Rptr. 38.)

These well-settled rules bear repeating here because defendants argue throughout their brief on appeal summary judgment was proper because plaintiff offered no evidence tending to show defendants' continuing violation of laws prohibiting employment discrimination. Defendants misconstrue the summary judgment procedure. As we stated in Estate of Fisher, supra, 198 Cal.App.3d at page 425, 244 Cal.Rptr. 5:

"In order to obtain a summary judgment, the moving party must submit declarations or other evidence sufficient to establish each element necessary to sustain a judgment in [its] favor. Unless [it] does, summary judgment should be denied, even if the opposing party files no declarations whatsoever." (Emphasis added.)

The foregoing rules are applicable to employment discrimination cases. In University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 272 Cal.Rptr. 264, plaintiff Miller claimed the university discriminated against her because she was a woman by refusing to promote her from the rank of associate professor to full professor. The trial court denied the university's motion for summary judgment, and the university petitioned for a writ of mandate directing the trial court to grant the motion. The appellate court granted the writ, finding the university's declarations established as a matter of law a legitimate, nondiscriminating basis for not promoting Dr. Miller. For our purposes the pertinent part of the court's opinion was its analysis of the burdens borne by the respective parties on the motion for summary judgment.

In the trial of an employment discrimination case, the court held, the plaintiff has the burden of proving a prima facie case of discrimination. If the plaintiff succeeds in proving a prima facie case, the burden shifts to the defendant to " ' "articulate some legitimate, nondiscriminatory reason for the employee's rejection." ' " (Id., at p. 1035, 272 Cal.Rptr. 264.) If the defendant carries this burden, the plaintiff bears the burden of proving the legitimate reasons offered by the defendant were not its true reasons but a pretext for discrimination....