APPEAL from a judgment of the Superior Court of Los Angeles County, William A. MacLaughlin, Judge. Reversed. (Los Angeles County Super. Ct. No. BC363608)
The opinion of the court was delivered by: Suzukawa, J.
CERTIFIED FOR PUBLICATION
This case has a somewhat tortuous procedural history. Plaintiff Richard Joaquin, a Los Angeles Police Department officer, complained of sexual harassment by Sergeant James Sands in 2005. The department investigated and found Joaquin's complaint unfounded. Sands then pursued a complaint against Joaquin for filing a spurious sexual harassment charge. Internal Affairs investigated Sands's complaint, agreed that Joaquin's charge was without foundation, and recommended that the matter be adjudicated by a Board of Rights. The Board of Rights found Joaquin's charge to have been fabricated and recommended termination. The Chief of Police adopted the recommendation, and Joaquin was terminated effective March 2006.
Joaquin filed a petition for writ of mandate. The superior court granted the petition and ordered Joaquin reinstated, concluding that the Board of Rights' findings were not supported by the weight of the evidence.
Following his reinstatement, Joaquin filed the present action against the City of Los Angeles (City),*fn1 alleging that his termination was in retaliation for filing a sexual harassment complaint in violation of the Fair Employment and Housing Act (FEHA). (Gov. Code, § 12940 et seq.) A jury agreed and awarded Joaquin more than $2 million for lost wages and emotional distress.
The City appeals, contending, among other things, that the jury's verdict was not supported by substantial evidence. Having reviewed the entire record, we agree that Joaquin did not present substantial evidence that his termination was motivated by retaliatory animus, a necessary element of his claim. We thus reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Joaquin's Sexual Harassment Complaint Against Sands
Joaquin is a police officer employed by the Los Angeles Police Department (LAPD or department). From 1999 until 2006, he was a motor officer assigned to the Central Traffic Division (CTD).
Sands is an LAPD sergeant who was assigned to the CTD as a collision investigation supervisor in 2001 or 2002. He occasionally served as CTD watch commander and in this capacity had supervisory authority over Joaquin.
On January 7, 2005, Joaquin was on duty and Sands was the watch commander. At about 4:30 that afternoon, Joaquin told Sands he was leaving because his shift was over. Sands said that the shift had not yet ended and ordered Joaquin to return. Whether Joaquin returned to the station is disputed by the parties: Sands contended that Joaquin did not return; Joaquin contended that he returned to the station, went to use the restroom, and then left for home when he saw other motor officers leaving because he believed his shift had been dismissed.
That evening, Joaquin received a phone call from a co-worker who said he had heard that there had been an incident between Joaquin and Sands at the end of the shift. Joaquin testified that he perceived Sands's response to be in retaliation for Joaquin having rebuffed a prior sexual advance by Sands (discussed in greater detail below) and was part of a pattern of conduct in which Sands "was sexually harassing me, . . . stalking me, . . . exercising his power." He feared that Sands "was going to start escalating the situation even more and start getting back at me even more, and it was going to get worse and worse."
That evening, Joaquin called an 800 number and anonymously reported that he was being sexually harassed. The person to whom Joaquin spoke said he could take a complaint or Joaquin could speak directly to his supervisor. Joaquin chose not to make a complaint at that time. The following day, Joaquin spoke about the end of watch incident to Lieutenant Corso. Corso said he wanted to talk with both Joaquin and Sands to determine what actually happened.
On January 14, 2005, Sands was again the watch commander. He called Joaquin into his office and said he was going to serve him with a negative "comment card," a notation in Joaquin's personnel file that he had been counseled regarding an improper action. Sands asked Joaquin what he believed had happened, and Joaquin told him that Lieutenant Corso wanted to discuss the incident with them. Sands then took the comment card back and did not officially serve Joaquin with it.
That evening, Joaquin called Sergeant Ruby Malachi, a supervisor at CTD with whom Joaquin had a friendly relationship. Joaquin told Malachi that Sands had asked him out on a date and then had retaliated against him and sexually harassed him because he declined Sands's advances. Malachi said she would report the allegations to her immediate supervisor, Captain Ann Young. However, because Joaquin was concerned about confidentiality, she told him she would not share the allegations with anyone else. Malachi reported Joaquin's allegations to Captain Young that same evening.
The next day, Captain Young called Joaquin and told him that she had learned of his report of sexual harassment from Sergeant Malachi and was going to talk to her supervisor about it. She then turned the complaint over to Internal Affairs, who assumed responsibility for investigating it. A few days later, Joaquin was told to report to Internal Affairs for an interview regarding the incident.
At about the same time, Captain Young met with Sands to advise him that he was being investigated for sexually harassing Joaquin and would be transferred to another department until the investigation was complete. According to Young, Sands "was stunned, completely devastated, kept saying over and over, I didn't do anything. He was very tearful, crying at times."
During his interview with Internal Affairs, Joaquin reported that Sands had engaged in the following acts of misconduct:
October 23, 2003: Sands ordered Joaquin to drive with him to an LAPD shooting range to "qualify" his service weapon (i.e., to demonstrate proficiency with his firearm). During the drive, Sands asked Joaquin personal questions, such as whether he had kids and if he was dating anyone. Then, he asked whether Joaquin would "like to go out some time." Joaquin said he is not gay and dates only women. Sands asked him not to tell anyone he is gay.
February or March 2004: Joaquin was working out at the gym at central facilities. Sands walked into the gym, approached Joaquin, and said, "You have nice arms."
Summer 2004: Joaquin was on "desk duty" at CTD. Sands called several times and made small talk with Joaquin. The third time Sands called, Joaquin asked if he wanted to talk to the watch commander and offered to give Sands the inside line. Sands responded, "What if I want to talk to you?"
Summer 2004: Joaquin and other officers were watching women's basketball on television. Sands changed the channel to the Olympic men's diving competition and said, "They look good."
Late 2004: "Code 6" is a term that motor officers use to inform dispatch that they have made a traffic stop and to identify their location in the field. Sands showed up at several of Joaquin's Code 6 locations, parked 50 to 100 feet away, watched Joaquin, and then drove away without speaking to him. As a result of these incidents, Joaquin stopped broadcasting his Code 6 locations to dispatch.
Unknown date: On his day off, Sands showed up in his own vehicle at Joaquin's Code 6 location and said, "You look nice standing there." Joaquin later found out that Sands lived nearby.
December 2004: Sands showed up at a CTD basketball game, where Joaquin regularly played. After the game, Sands approached Joaquin at the water cooler and asked whether he was going to take a shower.
Internal Affairs investigated Joaquin's allegations against Sands and determined they were unfounded.
II. Sands's Complaint Against Joaquin
Sands learned the details of Joaquin's allegations against him when Internal Affairs completed its investigation and gave Sands a copy of its file to review. Sands then made an official complaint against Joaquin. The complaint was turned over to Internal Affairs, which charged Joaquin with two counts of misconduct: (1) retaliating against Sands by filing a false complaint; and (2) while on duty, providing false statements during an official investigation.
While the investigation was pending, Joaquin was sent to supervisor's school in preparation for an anticipated promotion to sergeant.
Detective Hector Sanchez and Lieutenant Mario Munoz, both with Internal Affairs, investigated Sands's complaint. In the course of their investigation, Sanchez and Munoz interviewed approximately 13 officers of various ranks. They turned the results of their investigation over to Captain Young, who recommended that the allegations against Joaquin be sustained. Further, due to the serious nature of the allegations, Captain Young recommended that the matter proceed to a Board of Rights hearing, a formal adjudication by two sworn officers and one civilian in which the accused officer has the right to be represented by counsel and to call witnesses. As a result of the commencement of the Board of Rights proceeding, Joaquin's promotion to sergeant was put on hold and he was temporarily relieved from duty.
The department was represented at the Board of Rights hearing by Sergeant William Sera of Internal Affairs and Joaquin was represented by an attorney. The hearing lasted about seven days. On March 13, 2007, the Board of Rights found that Joaquin was guilty of count 1 (retaliation by filing a false complaint), but was not guilty of count 2 (providing misleading statements during an official complaint investigation).*fn2 In its "Rationale on Findings," the Board of Rights stated as follows:
"For the record, the Board deliberated extensively on count 1 as it realized that the credibility of witnesses and the sequence of events would be critical to the adjudication of this court.
"In the Board's deliberation of count 1, we gave Officer Joaquin the benefit of every doubt in reviewing testimony in evidence presented before the Board. This was done to be completely fair and impartial in view of the complexity of this case.
"The Board considered every separate incident of alleged sexual harassment expressed by Officer Joaquin. This included the claim that Sergeant Sands asked Officer Joaquin for a date, the numerous phone calls to the front desk, the references in the gym about Officer Joaquin's arms, the Code 6 supervisory follow-ups, and the alleged comments associated around the basketball team.
"The Board began its deliberations by creating a timeline and reviewing all the circumstances associated with this count. There were several factors that led the Board to their findings.
"First, the Board unanimously believed that Sergeant Sands' testimony was credible. It appeared that his speech, body language, demeanor were consistent with being a victim of retaliation.
"The Board had doubts as [to] the plausibility of Officer Joaquin's version of what occurred. It was our belief, based upon the evidence and testimony presented[,] that if Officer Joaquin was truly sexually harassed that he would have reported this early on to the department. We heard many witnesses testify to Officer Joaquin's personality. He was described as assertive, aggressive, a peer leader. He certainly was not portrayed as being meek or someone that would allow himself to be victimized in the manner that he described. We find it hard to believe that his assertion of his embarrassment over the incident would keep him from bringing it to the department's attention. Even though we recognize he has the right to silence.
"The Board believed that one true motive for Officer Joaquin's action was the fact that he received a phone call from Officer McDonald and was told that he was potentially in trouble and possible the subject of 'paperwork' (which could be construed as future administrative discipline). It was at this point that the Board believed he made a conscious decision ...