Brown v. City of Sacramento

         CERTIFIED FOR PARTIAL PUBLICATION ^[*]

          APPEAL from a judgment of the Superior Court of Sacramento County No. 34201300148356CUOEGDS, James P. Arguelles, Judge. Affirmed.

          Liebert Cassidy Whitmore, Jesse J. Maddox, and Michael D. Youril for Defendant and Appellant.

          Law Offices of Richard A. Lewis and Richard A. Lewis for Plaintiff and Respondent.

          RENNER, J.

         Plaintiff Wendell Brown sued his employer, the City of Sacramento (City), for racial discrimination and retaliation in violation of the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.) A jury returned a verdict in Brown's favor. The City moved for judgment notwithstanding the verdict and a new trial. The trial court granted the motion for judgment notwithstanding the verdict in part, finding that Brown failed to exhaust administrative remedies with respect to some of the acts found to be retaliatory. The trial court denied the motion with respect to other acts and effectively denied the motion for a new trial.^[1]

         The City appeals from the order partially denying the motion for judgment notwithstanding the verdict, arguing the remaining retaliation and discrimination claims are time-barred and barred for failure to exhaust administrative remedies. The City also appeals from the order partially denying the motion for a new trial, arguing that juror misconduct deprived the City of a fair trial, and the trial court prejudicially erred in admitting evidence of the purportedly unexhausted and time-barred claims. Finding no error, we affirm.

         I. BACKGROUND

         Brown, an African-American, began working for the Solid Waste and Recycling Division (Division) of the City's Utilities Department (and later, the General Services Department) in August of 1986, and was eventually promoted to Solid Waste Supervisor. Brown is a member of the International Union of Operating Engineers, Stationary Engineers, Local 39 (Union). The City has a collective bargaining agreement with the Union.

         Brown filed an administrative complaint with the Department of Fair Employment and Housing (DFEH) and immediately received a right to sue letter.^[2] On July 22, 2013, Brown filed a complaint against the City, alleging causes of action for racial discrimination and retaliation under FEHA.^[3] The matter was tried before a jury over the course of several weeks in mid-May and early June 2016.

         A. Jury Trial

         The jury heard evidence that Brown complained about conduct he believed to be discriminatory and suffered the following adverse employment actions: (1) a suspension for altering a jury duty form; (2) a suspension for illegal dumping; (3) a transfer from one operational facility to another; (4) a shift change; (5) a denial of promotion in 2013; and (6) a denial of promotion in 2014. We summarize these actions briefly below, including only those facts necessary to understand and resolve the limited issues before us.

         1. The Altered Jury Service Form Incident

         Brown was working on a garbage collection truck on July 6, 2010. He received a telephone call from Rashid El Amin, an employee under his supervision. El Amin, who had been summoned for jury duty that day, explained that he had just been released and wanted to know if he should report to work. Brown determined that El Amin was not in uniform and would need several hours to go home, change, and then travel to work. Even then, Brown reasoned, there would be no work for El Amin to do, as all of the garbage collection trucks had already been dispatched for the day. Accordingly, Brown told El Amin he could stay off the rest of the day, if he used his “bank time.” The next day, El Amin reported to work with a jury service form, which Brown altered to reflect a full day of jury service.^[4] Sometime thereafter, a fact-finding investigation ensued.

         On January 6, 2011, Brown received a letter indicating the City intended to take disciplinary action against him pursuant to the Rules and Regulations of the Civil Service Board (Rules). Specifically, the letter indicated the City intended to suspend Brown for four days, unless Brown responded by January 7, 2011, either orally or in writing. Brown thought the contemplated discipline was unfair and unreasonable, as there were no guidelines on how to record an absence for jury duty for less than a full day, and Brown had been candid about the fact that he had altered the jury form. Nevertheless, Brown kept these views to himself, and the City subsequently issued another letter, stating, “you are hereby suspended without pay for four (4) working days from your position as Solid Waste Supervisor and from City service, effective February 7, 2011.” Although the suspension was slated to become effective on February 7, 2011, Brown's salary was never reduced, and he never served the suspension. The February 2011 suspension was the first time that Brown was subjected to discipline in almost 25 years of service, but it was not the last.

         2. The Illegal Dumping Incident

         In August 2011, Brown received a call from a supervisor asking him to collect some burned out garbage cans from a Sacramento street.^[5] Brown instructed two subordinate employees, both veterans of the Division, to retrieve the cans and take them to an isolated area near Western Avenue, where they would not pose a fire hazard to nearby homes or structures. Brown knew that Western Avenue was home to an illegal dumping site and anticipated that the cans would be collected later, after the fire risk had abated. Approximately one month later, Brown learned that the employees responsible for taking the cans to Western Avenue were being disciplined for illegal dumping.

         Brown discussed the matter with Steve Harriman, an integrated waste general manager and Brown's indirect supervisor. Brown told Harriman that he did not believe the employees should be disciplined, as they had only been following Brown's orders. Brown's message was not well received. After the meeting, Brown had the impression that Harriman “was dead set on [he] did the worse thing possible in the world by handling it the way that [he] did it.”

         Around the same time, Brown received a letter indicating that the City intended to take disciplinary action against him as well. The letter opined that Brown's conduct constituted cause for discipline within the meaning of the Rules, and indicated that the City intended to reduce Brown's pay for 40 bi-weekly pay periods, equivalent to 16 days. The letter, which was signed by Harriman and others, advised Brown that he had a right to respond within 15 days. Brown viewed the contemplated discipline as out of proportion to the offense, and began to suspect a discriminatory motive.

         Brown responded to the letter by requesting a Skelly hearing.^[6] The Skelly officer found that Brown had been trying to do the right thing under difficult circumstances and recommended that he receive a written reprimand. Brown's supervisors considered the Skelly officer's recommendation and decided to reduce the contemplated discipline.

         On February 27, 2012, Brown received a second letter stating: “This letter is to inform you that your salary as a Solid Waste Supervisor is hereby reduced... for twenty (20) bi-weekly pay periods [equivalent to eight days] effective with the pay period beginning March 10, 2012.” The second letter characterized the dumping incident as a cause for disciplinary action within the meaning of the Rules, and concluded: “Pursuant to Rule 12.7 of [the Rules], you have the right to appeal this disciplinary action to the Civil Service Board within fifteen (15) calendar days from the date you receive this letter.”

         Brown appealed the suspension (which was to have been served by means of the pay reduction described above). While the appeal was pending, Brown's union representatives attempted to negotiate a further reduction of the suspension. These negotiations continued through October 2012. On October 29, 2012, the City offered to reduce the suspension from eight to five days in exchange for Brown's agreement to waive his right to post-disciplinary arbitration. The Union, believing the City's offer to be reasonable, informed Brown by letter dated November 13, 2012, that it would no longer represent him in connection with the appeal. The Union provided Brown with a copy of the Rules, and informed him that the appeal would be dismissed if he did not pursue the matter independently. Brown did not pursue the matter, and the appeal was eventually dismissed.

         Shelley Banks-Robinson, a labor relations manager for the City, explained that the disciplinary process typically begins with a notice of intent specifying the causes for potential discipline, and ends with a final notice announcing the City's final decision as to what discipline should be imposed. Although the employee has the right to appeal that decision, Banks-Robinson opined that the discipline becomes “final” with the issuance of the final notice.

         Banks-Robinson could not say with certainty whether Brown served the suspension set forth in the City's second letter (which all parties characterized as a “final notice”). Nevertheless, she theorized that Brown had likely already served the suspension by the fall of 2012, notwithstanding the pendency of his appeal. When asked how Brown could have served the suspension when the period of suspension was the subject of ongoing negotiations between the City and Brown's union representatives, Banks-Robinson responded that, had a settlement been reached, Brown would have been entitled to a refund of money previously withheld from his bi-weekly paychecks. As we shall discuss, the Rules do not support Banks-Robinson's theory-which the City renews on appeal-that disciplinary action becomes final on the date of the final notice.

         3. The Transfer to Meadowview

         On February 13, 2013, Brown received a memorandum from Harriman announcing that he would soon be transferred from the Division's operational facility in North Sacramento (the North Area Corporation Yard or NACY) to an operational facility in South Sacramento (Meadowview Yard). The memorandum instructed Brown and another solid waste supervisor to report to their “new Permanent Dispatch Area” on April 15, 2013. Brown was “irritated” and “felt very strongly that [the move] didn't make any sense.”

         During the trial, Brown explained that he had started his career at Meadowview and worked hard to make a place for himself at NACY, which was closer to his home. Brown suspected the transfer was retaliatory, as he had recently complained about the way Harriman handled disciplining African-American and Hispanic employees at NACY. Although Harriman offered a business reason for the move, Brown viewed the stated reason as flimsy and pretextual. And, though the City characterized the move as a temporary “rotation, ” the evidence showed that Brown had been stuck at Meadowview for three years at the time of trial.

         4. The Shift Change

         On June 17, 2013, Brown received a memorandum from another supervisor, William Skinner, stating that he would be changing from the early morning shift to the late morning shift. Brown was unhappy about the change, as the later start time meant that he would be spending more time commuting and less time with his family. During the trial, Brown testified that he viewed the shift change as part of a pattern of retaliation, which he believed to be a response to his having voiced concerns about discriminatory behaviors within the Division. Brown worked the late shift for three months, after which, another supervisor started working the shift.

         5. Denial of ...