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Trulsson v. County of San Joaquin District Attorney's Office

United States District Court, E.D. California

September 23, 2014


Page 686

For Janis Trulsson, Plaintiff: Jill P. Telfer, LEAD ATTORNEY, Law Offices of Jill P. Telfer, Sacramento, CA.

For County of San Joaquin District Attorneys Office, Defendant: Velma K. Lim, LEAD ATTORNEY, Jamie M Bossuat, Kroloff, Belcher, Smart, Perry & Christopherson, Stockton, CA.

Page 687



This matter is before the court on the renewed motion by San Joaquin County (" defendant" or the " County" ) for Judgment as a Matter of Law (" JMOL" ) (ECF No. 157), or, in the alternative, for a New Trial (ECF No. 156). Plaintiff Janis Trulsson (" plaintiff" ) opposes both motions. (ECF Nos. 173 & 174.) Defendant has replied. (ECF Nos. 177 & 176.)

The court held a hearing on these matters on August 7, 2014, at which Jill Telfer appeared for plaintiff and Velma Lim appeared for defendant. As explained below, the court DENIES defendant's motions.


Plaintiff filed this employment discrimination case on November 9, 2011. (ECF No. 1.) Through various pre-trial motions and rulings, the action was eventually narrowed so that the case proceeded to trial on the following claims only: (1) gender discrimination in violation of Title VII of the Civil Rights Act of 1964 ; (2) gender discrimination in violation of California's Fair Employment and Housing Act (" FEHA" ); (3) retaliation in violation of the FEHA; and (4) failure to prevent retaliation and discrimination in violation of the FEHA. (ECF No. 82.)

The jury trial commenced on March 10, 2014. (ECF No. 109.) At the conclusion of the evidence, defendant's counsel made an oral motion for JMOL under Federal Rule of Civil Procedure 50(a). (ECF No. 119.) The court orally denied defendant's motion at that time. On the same day, after the court orally denied defendant's motion, defendant filed a written motion for JMOL, raising the same arguments. (ECF No. 123.) Subsequently, the court clarified that its oral denial of defendant's motion for JMOL extended to denial of the written motion as well. (ECF No. 146.)

The jury was instructed and began its deliberations on March 28, 2014. (ECF No. 127.) On March 31, 2014, the jury returned its verdict in favor of plaintiff, finding (1) defendant had retaliated against plaintiff for complaining about gender discrimination and (2) defendant had failed to take all reasonable steps to prevent retaliation. (ECF No. 145 at 6-8.) The jury awarded plaintiff damages in the amount of $2,059,708. ( Id. at 10.) At the same time, the jury found plaintiff did not prove by a preponderance of the evidence that defendant discriminated against plaintiff based on plaintiff's gender. ( Id. at 2-5.) In conformance with the jury verdict, the court entered a judgment in plaintiff's favor. (ECF No. 147.)


Rule 50(a)(1) of the Federal Rules of Civil Procedure provides as follows:

If a party has been fully heard on an issue during a jury trial and the court

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finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

Fed. R. Civ. P. 50(a)(1). Rule 50(b) governs renewed motions for judgment as a matter of law made under Rule 50(a) and provides that the court may: " (1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law." Fed.R.Civ.P. 50(b). A Rule 50(b) motion for JMOL is not treated as a separate motion; instead, it is a renewed Rule 50(a) motion. E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009). Before the court submits a case to the jury, a party must make a Rule 50(a) motion for JMOL. Id. If the court denies the motion, and if the jury returns a verdict against the movant, the movant may renew its motion under Rule 50(b). Id. As that motion is a renewed motion, it must be limited to the same grounds as asserted in the prior Rule 50(a) motion; " a party cannot properly raise arguments in its post-trial motion for [JMOL] under Rule 50(b) that it did not raise in its preverdict Rule 50(a) motion." Id. (internal quotation marks omitted).

In reaching the merits of a Rule 50 motion, the court must view the evidence in the light most favorable to the party in whose favor the jury returned a verdict and must draw all reasonable inferences in favor of the non-moving party. First Nat. Mortgage Co. v. Federal Realty Inv. Trust, 631 F.3d 1058, 1067 (9th Cir. 2011); Lakeside-Scott v. Multnomah County, 556 F.3d 797, 802 (9th Cir. 2009); Josephs v. P. Bell, 443 F.3d 1050, 1062 (9th Cir. 2006); City Solutions, Inc. v. Clear Channel Commc'ns, Inc., 365 F.3d 835, 839 (9th Cir. 2004); see also A.D. v. Cal. Highway Patrol, 712 F.3d 446, 453 (9th Cir. 2013) (when evaluating a Rule 50 motion the court should " give significant deference to the jury's verdict and to the nonmoving part[y] . . ." ).

" A district court can set aside a jury verdict and grant JMOL only if, under governing law, there can be but one reasonable conclusion as to the verdict and only if there is no legally sufficient basis for a reasonable jury to find for that party on that issue." Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 1155 (9th Cir. 2010) (internal quotation marks omitted); see also A.D., 712 F.3d at 453 (" Such a judgment is proper if the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, and that conclusion is contrary to the jury's verdict." (quoting Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002))); First Nat. Mortgage Co., 631 F.3d at 1067-68 (A verdict is to be upheld if supported by substantial evidence, " even if it is also possible to draw a contrary conclusion[,]" and the court " must disregard evidence favorable to the moving party that the jury is not required to believe, and may not substitute its view of the evidence for that of the jury[]" (quoting Pavao, 307 F.3d at 918)); Lakeside-Scott, 556 F.3d at 802 (" Judgment as a matter of law is proper when the evidence permits only one reasonable conclusion and the conclusion is contrary to that reached by the jury." (quoting Ostad v. Or. Health Scis. Univ., 327 F.3d 876, 881 (9th Cir. 2003))).

A. Discussion

In support of its motion for JMOL, defendant makes two principal arguments. First, defendant argues plaintiff did not

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produce sufficient evidence to establish her retaliation claim based on defendant's layoff of plaintiff and decision not to promote plaintiff to the Chief Investigator position. ( See ECF No. 157-1 at 2-8.) Second, defendant argues plaintiff did not produce sufficient evidence to establish her failure to prevent retaliation claim. ( See id. at 9.)

1. Plaintiff's Claim for Retaliation

The FEHA prohibits retaliation against " any person." Cal. Gov't Code § 12940(h). To establish a prima facie case of retaliation under the FEHA, plaintiff must show: (1) she engaged in a protected activity; (2) she was subject to an adverse employment action; and (3) there was a causal link between the protected activity and the adverse action. Yanowitz v. L'Oreal USA, Inc., 36 Cal.4th 1028, 1042, 32 Cal.Rptr.3d 436, 116 P.3d 1123 (2005).

a. Retaliatory Layoff

With respect to plaintiff's retaliatory layoff claim, the parties do not dispute that the first and second elements of the test for retaliation are met. Rather, defendant contends only there was no causal link between plaintiff's protected activity and the layoff. Defendant argues plaintiff did not produce sufficient evidence to establish a claim for retaliation because plaintiff did not present sufficient evidence showing " the individual who made the decision to lay her off, District Attorney [(" DA" )] Willett, had knowledge that she had engaged in protected activity" ; therefore, plaintiff did not prove that her layoff was in retaliation for plaintiff's complaints about gender discrimination. (ECF No. 157-1 at 2-3.) Plaintiff counters " [d]irect and circumstantial evidence was presented to the jury of the causal connection between the adverse acts and [plaintiff's] protected activity, including Willett's knowledge of Trulsson's complaints." (ECF No. 174 at 3.)

As noted above, to establish her retaliation claim, plaintiff must show a causal link between her protected activity and the adverse action. Morgan v. Regents of Univ. of Cal., 88 Cal.App.4th 52, 69, 105 Cal.Rptr.2d 652 (2000). Such a causal link may be established by an inference derived from circumstantial evidence, such as the employer's knowledge of the employee's engagement in a protected activity or the proximity in time between the protected action and the employment decision. See id. at 69-70. But " [e]ssential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity." Id. at 70.

Here, viewing the evidence in the light most favorable to plaintiff, the nonmoving party, there is sufficient evidence in the record for a reasonable jury to have found that defendant had knowledge of plaintiff's complaints about gender discrimination. Specifically, the Former Chief Investigator Larry Ferrari testified that on occasion plaintiff would complain about DA James Willett's decisions, including potential discriminatory treatment of Deputy District Attorney Mary Aguirre. ( See Ferrari Test. 1423:14-1427:6; 1429:22-30.[1], Ferrari also testified he would relay plaintiff's complaints to Willett. ( See id. 1393:17-1394:22.) In light of Ferrari's testimony, it cannot be said that " under the governing law, there can be but one reasonable conclusion" as to Willett's knowledge and that Willett was unaware of plaintiff's complaints. Settlegoode v. Portland Pub. Schs., 371 F.3d 503, 510 (9th Cir. 2004) (internal quotation marks omitted). A reasonable jury could have concluded

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that because plaintiff voiced her complaints to Ferrari, including her belief that Aguirre was subject to gender discrimination, and because Ferrari relayed plaintiff's complaints to Willett, Willett became aware of plaintiff's complaints about gender discrimination, and particularly plaintiff's complaints about Willett's treatment of Aguirre. Willett did not testify to the contrary. In any event, it was for the jury to resolve any differences between the parties' versions of events.

Accordingly, the court DENIES defendant's renewed motion for JMOL as to defendant's layoff of plaintiff.

b. Failure to Promote

As to failure to promote, defendant does not dispute the first " protected activity" element of a FEHA retaliation claim. Rather, it argues as a threshold matter that plaintiff did not establish an employer-employee relationship existed between plaintiff and defendant at the time of Kenneth Melgoza's appointment to the Chief Investigator position. (ECF No. 157-1 at 3-6.) Defendant also avers plaintiff did not suffer an adverse employment action. ( Id. at 6-8.) Finally, defendant contends plaintiff did not establish a causal connection between her complaint and defendant's decision not to appoint her to the Chief Investigator position. ( Id. at 8-9.)

The court addresses each argument in turn.

i. The Requirement of Employer and Employee Relationship

Defendant reasons plaintiff did not establish an employer and employee relationship because plaintiff was not defendant's employee at the time of Melgoza's appointment. Defendant says it had no obligation to " reach out to every potential candidate" expressing an interest in the position, and plaintiff " took no affirmative steps to make sure the County was aware that she was interested in unwinding her retirement and returning to County employment." ( Id. at 6 (emphasis omitted).) Plaintiff responds that former employees are protected against retaliatory actions by their employers to the same extent as current employees. (ECF No. 174 at 4-7.)

As noted above, the FEHA prohibits retaliation against " any person." Cal. Gov't Code § 12940(h). The Code defines a " person" as " one or more individuals . . . ." Id. § 12925(d). The Legislature has indicated that the provisions of the FEHA should be construed liberally for the accomplishment of its purposes. Id. § 12993(a) (" The provisions of this part shall be construed liberally for the accomplishment of the purposes of this part." ); accord Fitzsimons v. Cal. ...

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