The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER: RULING ON PLAINTIFF'S TITLE VII DISPARATE IMPACT CLAIM; DENYING PLAINTIFF'S MOTION FOR PERMANENT INJUNCTION [Doc. No. 286]
This matter is before the Court on Plaintiff Alison Terry's post-trial motion for a permanent injunction against Defendant the City of San Diego. [Doc. No. 286.] Additionally, the Court shall issue its ruling on Plaintiff's Title VII disparate impact claim, which was tried to the Court as Plaintiff's other claims were tried to a jury. Having considered the parties' submissions and the oral arguments of counsel, for the reasons set forth below, the Court rules in favor of Plaintiff on her Title VII disparate impact claim and DENIES Plaintiff's motion for a permanent injunction as MOOT.
Plaintiff Alison Terry worked for the City of San Diego's lifeguard service as a seasonal Lifeguard I from 1992 until she resigned on April 9, 2009. On June 20, 2006, Plaintiff filed this employment discrimination action against Defendant the City of San Diego alleging that the City's lifeguard service discriminates against women, including Plaintiff, by denying them the opportunity for promotion and other employment opportunities. [Compl. Doc. No., ¶¶ 13-14.] Plaintiff alleged the City's employment practices constitute gender discrimination in violation of 42 U.S.C. section 2000e-2 ("Title VII") and California Government Code section 12940, ("FEHA") subdivision (a). [Doc. No. 1.] On April 24, 2008, Plaintiff amended her complaint to add claims of unlawful retaliation in violation of 42 U.S.C. section 2000e-3(a) and California Government Code section 12940, subdivision (h). [First Amended Complaint ("FAC"), Doc. No. 69, ¶ 25-56.]
Prior to trial, Defendant sought an in limine ruling precluding Plaintiff from presenting evidence of her state and federal disparate impact claims at trial. Defendant argued that Plaintiff lacked standing to bring these claims because she was not disadvantaged by the alleged discrimination. [Doc. No. 133.] Citing Plaintiff's resignation from the lifeguard service on April 9, 2009, Defendant further argued that she could not establish redressibility. [Id.] Defendant also sought to bifurcate the trial of Plaintiff's disparate impact claims from her retaliation and disparate treatment claims. Defendants postulated that trying the claims together would result in jury confusion, but also argued that Plaintiff had no right to a jury trial on her disparate impact claims. [Doc. No. 130.] The Court heard argument on these issues at the pre-trial conference, and later the parties submitted supplemental briefing on whether Plaintiff's disparate impact claims were moot. [Doc. Nos. 184 and 187.] In her mootness brief, Plaintiff clarified that her disparate impact claims specifically challenged two of the City's practices: (1) the City's use of employee performance reviews ("EPRs") in the promotional process and (2) the subjective Lifeguard II promotional process. [Doc. No. 184, pp. 3-6.] Plaintiff argued that her disparate impact claims were not moot because if she prevailed, she could recover back pay, front pay, and injunctive relief. [Id., p. 3.]
The Court ultimately denied Defendant's motion in limine to preclude Plaintiff from presenting evidence of her disparate impact claims. [Doc. No. 193, p. 4-6.] The Court ruled that Plaintiff sufficiently established injury and redressibility to satisfy the constitutional standing requirements with respect to her FEHA and Title VII disparate impact claims. [Id. at 3-4.]
Although the Court denied Defendant's request to bifurcate the trial, the Court determined that a jury would decide the FEHA and Title VII disparate treatment claims and the FEHA disparate impact claim, and the Court would decide the Title VII disparate impact claim. [Id. at 5.] The Court further ruled that it would not make any factual findings on the Title VII disparate impact claim until the jury made its findings, and it would be bound by the jury's factual findings on overlapping issues. [Id. at 5-6.]
Additionally, Defendant moved in limine to preclude Plaintiff from claiming constructive discharge, arguing that Plaintiff failed to exhaust the claim and failed to amend her operative pleading to allege a constructive discharge claim. [Def's Trial Brief, Doc. No. 222, p. 3-5.] In response, Plaintiff argued that she was not required to exhaust or separately allege a constructive discharge claim -- according to Plaintiff, the issue of constructive discharge directly impacted the amount of recoverable damages. [Doc. No. 235] After considering the parties' oral arguments and supplemental briefing on the issue, the Court ruled that constructive discharge is treated as a stand-alone claim in the Ninth Circuit, and thus is a claim that must be specifically alleged and properly exhausted. [Doc. No 241; Doc. No. 299 at p. 10; and Doc. No. 300 at p. 3.] The Court further ruled that since Plaintiff was precluded from alleging constructive discharge, she was not entitled to seek back pay on her Title VII claim after the date of her resignation. [Doc. No. 299, p. 10.] Nevertheless, the Court ruled that California law permits an award of post-resignation damages for violations of FEHA irrespective of whether a plaintiff claims constructive discharge. [Doc. No. 300 at p. 3.] As such, the Court did not preclude Plaintiff from presenting evidence to the jury of her post-resignation damages.
The issues of fact at trial were limited to: (1) whether the City discriminated against Terry in violation of 42 U.S.C. § 2000e-2; (2) whether the City retaliated against Terry in violation of 42 U.S.C. § 2000e-3(a) and Cal. Government Code § 12940, subdivision (h); (3) whether the City discriminated against Terry in violation of Cal. Government Code § 12940, subdivision (a); and (4) if so, what damages should be awarded to Terry. [Pre-Trial Order, Doc. No. 194, p. 3.]
A lengthy jury trial was held from October 26 to November 18, 2011. During the trial, Plaintiff presented extensive evidence in support of her state and federal disparate impact clams. At the conclusion of the trial the jury was instructed that to establish her state law disparate impact claim, Plaintiff must prove "Defendant had an employment practice of utilizing employee performance reviews that had a disproportionate adverse effect on women, or Defendant's Lifeguard II promotional process in general had a disproportionate adverse effect on women." [Jury Instructions, Doc No. 278, p. 24.] The jury was also instructed "in determining economic damages on Plaintiff's state law claims, you should consider the reasonable value of past lost earnings [back pay] and future lost earnings [front pay]." [Id. at 29.]
On November 18, 2011, the jury returned a verdict for Plaintiff on her federal disparate treatment claim and her FEHA disparate treatment and disparate impact claims. [Jury Verdict, Doc. No. 282.] The jury awarded Plaintiff $0 in economic damages and $100,000 in non-economic damages with respect to those claims. [Id.] The jury found in favor of Defendant on the state and federal retaliation claims. [Id.]
After the jury returned its verdict, Plaintiff filed the pending motion for a permanent injunction. [Doc. No. 286.] Additionally, Plaintiff's Title VII disparate impact claim is now ripe for resolution by the Court. To assist the Court with this endeavor, the parties filed proposed findings of fact and conclusions of law. [Doc. Nos. 290, 291.]
1) Plaintiff's Federal Disparate ...