California Court of Appeals, Third District, 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 ...