Diego v. City of Los Angeles

Facts

The statutory framework. The claim arose under the California Fair Employment and Housing Act. Government Code section 12940, subdivision (a) makes it an unlawful employment practice for an employer, “because of the race … of any person, to … discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Diego, supra, 15 Cal.App.5th at p. 349.) The companion retaliation provision, section 12940, subdivision (h), prohibits an employer from discriminating against any person “because the person has ‘opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.’” (Id. at p. 363.) The animating policy of the Act is “to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race.” (Id. at p. 352, quoting § 12920.)

The shooting. George Diego and Allan Corrales, both Hispanic, were members of the gang enforcement unit at LAPD’s Olympic Community Police Station and “had received excellent performance reviews.” (Diego, supra, 15 Cal.App.5th at p. 344.) Close to midnight on March 19, 2010, they encountered Steve Washington, a 27-year-old man in a hoodie. Corrales saw Washington “‘ruffling his waistband’” and believed he was arming himself; when Washington “turn[ed] rapidly and mak[e] some kind of throwing motion,” Corrales — believing he was about to be shot — fired. (Ibid.) “Corrales’s shot hit Washington in the head and killed him.” (Id. at p. 345.) Washington was unarmed — he had “a black cell phone case clipped to his waist” — and his mother later reported that he was autistic. (Ibid.)

The review process and the benching. The City follows a standard officer-involved-shooting review: a 72-hour executive summary to the chief, a Force Investigation Division (FID) inquiry, review by the Use of Force Review Board, the chief’s recommendation, oversight by the independent Office of the Inspector General, and a final “in policy” or “out of policy” determination by the civilian Police Commission. (Diego, supra, 15 Cal.App.5th at pp. 345–346.) Commanding officer Matthew Blake initially recommended the officers stay out of the field “for no more than a couple of weeks,” but flagged a concern “‘that it was a very sympathetic type of shooting.’” (Id. at p. 345.) Chief Charles Beck concurred in keeping them out, viewing it as a “‘perception shooting’” of an “‘unarmed innocent individual.’” (Id. at pp. 345–346.) The Board found the officers’ tactics warranted administrative disapproval but found their use of force “in policy”; the Commission ultimately deemed the use of force out of policy. (Id. at pp. 346–347.) Discipline was “among the lowest forms of punishment within the LAPD,” but “Chief Beck also decided not to send the Officers back into the field.” (Id. at p. 347.)

The consequences. The officers kept their full salary (less a 2 or 3 percent “patrol bonus”), but the lack of a field certification cost them: Diego applied unsuccessfully for six or seven P-III promotions in 2012, and both were denied off-duty Dodgers work that required carrying a gun. (Diego, supra, 15 Cal.App.5th at pp. 347–348.) A sergeant who kept a list of non-field-certified officers “testified that he had never known an officer who had not returned to the field for five years after an out of policy shooting.” (Id. at p. 348.)

The comparator and the “political” explanation. The officers leaned on a comparator: Officer Shane Bua, who is White and who fatally shot a Hispanic man in a separate out-of-policy shooting, “returned to the field after about six weeks.” (Diego, supra, 15 Cal.App.5th at pp. 348–349.) At a May 17, 2012 meeting, Deputy Chief Jacobs told the officers they remained benched because “‘it was political and we had shot an unarmed male Black,’” and, when asked why Bua had returned, said it was “‘because yours is political and you shot an unarmed male Black.’” (Id. at p. 348.) Diego understood “political” to mean “‘it was a race thing.’” (Ibid.)

Procedural history

The officers filed their complaint on November 30, 2012, and the case went to trial on March 3, 2015. (Diego, supra, 15 Cal.App.5th at pp. 349, 348–349.) The operative complaint alleged that “‘[t]he race of Plaintiffs, and the race of the African-American that was shot by Plaintiffs, while performing their duties as police officers, was a substantial motivating reason’” for their injuries. (Id. at p. 351, italics in original.) At the close of evidence on March 16, 2015, the City made an oral motion for a directed verdict; “[a]lthough the trial court did not formally deny the motion, the court permitted the case to go to the jury.” (Id. at p. 349.)

On March 19, 2015, the jury returned a special verdict for the officers. It found that their race “was a ‘substantial motivating reason’” for the City’s adverse employment actions, that the filing of the lawsuit was likewise a substantial motivating reason, and — notably — that the officers’ “‘poor tactics’” were not. (Diego, supra, 15 Cal.App.5th at p. 349.) The jury awarded $2,085,000 to Corrales and $1,914,500 to Diego — “cumulative damages of almost $4 million.” (Id. at pp. 349, 342.) The City appealed, arguing the evidence was insufficient and that its directed-verdict motion should have been granted. The Court of Appeal, in a unanimous opinion by Justice Lui, reversed. The Supreme Court denied review on November 29, 2017.

Issue

The precise question was whether substantial evidence supported the jury’s FEHA verdict — that is, whether the officers proved that their own race was a substantial motivating reason for the adverse employment actions, and whether their lawsuit caused the City to continue benching them. Because the trial court had let the case go to the jury over the City’s directed-verdict motion, appellate review was “‘functionally equivalent’ to reviewing whether there was substantial evidence to support the verdict.” (Diego, supra, 15 Cal.App.5th at p. 349.) Embedded in that question was a legal one the court treated as dispositive: whether a FEHA disparate-treatment claim can rest on the race of the victim of the plaintiff-officers’ conduct rather than the plaintiffs’ own protected status.

Holding

Reasoning

The standard of review framed the whole case. The court began with the demanding posture for upsetting a verdict: reversal of a denied directed-verdict motion “is proper only if there is no substantial evidence to support the plaintiff’s claim.” (Diego, supra, 15 Cal.App.5th at p. 349.) The court emphasized it must view the record “in the light most favorable to the Officers and drawing all reasonable inferences in their favor.” (Ibid.) But it took equal care to mark substantial evidence’s outer limits: “substantial evidence is not synonymous with any evidence,” an inference “may not be based on speculation or surmise,” and an inference cannot stand “if it is unreasonable in light of the whole record, or if it is rebutted by ‘“clear, positive and uncontradicted evidence”’ that is not subject to any reasonable doubt.” (Ibid.) That last clause did the work: the City’s justification was, in the court’s view, exactly that kind of uncontradicted evidence.

The burden-shifting framework and the role of pretext. The court recited the familiar Guz framework: the plaintiff’s prima facie case raises a rebuttable presumption; the employer rebuts by producing evidence of a “‘legitimate, nondiscriminatory reason’”; the presumption then “‘disappears,’” and the plaintiff “must provide evidence that the employer’s proffered reasons were pretextual or offer other evidence of a discriminatory motive,” with “[t]he ultimate burden of persuasion to prove actual discrimination remain[ing] with the plaintiff.” (Diego, supra, 15 Cal.App.5th at pp. 350–351, quoting Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317.) Critically, the court adopted the Reeves/Frank principle that pretext alone is not enough: “‘“[I]t is not enough … to disbelieve the employer; the factfinder must believe the plaintiff’s explanation of intentional discrimination.”’” (Id. at p. 351, quoting Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805, 824, in turn quoting Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 146–147.) This is the heart of CACI No. 2513’s business-judgment principle: disbelief of the employer does not affirmatively prove discriminatory intent.

The dispositive move — uncoupling the officers’ race from the victim’s race. The court conceded the officers had stated a prima facie case: they are Hispanic, kept their favorable reviews, suffered adverse consequences, and were benched for an “unusually long” time despite findings that their use of force was justified. (Diego, supra, 15 Cal.App.5th at p. 350.) But it found the case foundered on theory. As tried, the officers argued “they suffered discriminatory treatment because they are Hispanic and they shot an African-American man,” urging that the jury “could find discriminatory animus if the LAPD considered the race of the victim.” (Id. at p. 351.) That, the court held, is not what FEHA forbids: section 12940 “prohibit[s] employers from discriminating against an employee because of his or her race, not because of the race of some third person.” (Id. at p. 352.) The court hypothesized a department rule punishing shootings of African-Americans more harshly; even if unlawful, such a rule “would not concern employment discrimination, but would arise from the rights of the victims whose lives were valued differently in the department’s disciplinary process.” (Id. at p. 353.)

The change-of-theory problem, and why it did not save the verdict. On appeal the officers retreated, conceding the governing rule that “‘the plaintiff’s race [must be] a substantial factor in the adverse employment decision’” and embracing the instruction that their own race had to be the substantial motivating reason. (Diego, supra, 15 Cal.App.5th at pp. 351–352, quoting Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 375.) The City urged reversal under the rule that “‘“the theory upon which a case is tried must be adhered to on appeal.”’” (Id. at p. 353.) The court declined that route, finding the officers “have not so much changed their theory on appeal as truncated it.” (Ibid.) But truncation had a price: “Without considering alleged differences in the Officers’ treatment due to the victim’s race, the evidence is not sufficient to support the Officers’ employment discrimination claim.” (Id. at pp. 353–354.) Worse for the officers, uncoupling the two races meant “some evidence the Officers introduced helps support the City’s risk management justification.” (Id. at p. 354.)

The risk-management justification stood unrebutted — and politics is not race. Chief Beck testified that if the officers “‘were to get into a similar field situation … there’s not enough money in the city to cover that,’” and that risk management is “‘a big part of my job.’” (Diego, supra, 15 Cal.App.5th at p. 354.) Jacobs testified that another incident would shake “‘public confidence’” in the Department. (Ibid.) The officers’ own evidence that they were benched for “‘political’” reasons mapped onto the same concern. (Ibid.) The court invoked the rule that “[a]n employment decision based on political concerns, even if otherwise unfair, is not actionable under section 12940 so long as the employee’s race or other protected status is not a substantial factor in the decision,” citing Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147 and Chen v. County of Orange (2002) 96 Cal.App.4th 926. (Id. at pp. 354–355.) Thus “abundant evidence, including some introduced by the Officers, supported the City’s claim.” (Id. at p. 355.)

Each category of the officers’ animus evidence failed. The court worked through the proof item by item. The officers’ own testimony — “‘I really believe if I would have been an African American officer, that this wouldn’t have happened’” — was “simply speculation, or, at best, conclusions — not competent evidence.” (Diego, supra, 15 Cal.App.5th at pp. 355–356.) The Bua comparison collapsed on its own logic: the officers’ theory “is not based upon the fact that the Officers are Hispanic, but rather that they are not African-American,” and “Bua is also not African-American.” (Id. at p. 356.) The circumstances differed materially — Bua confronted a reportedly armed man attacking an occupied car, and his shooting “did not result in any public outcry.” (Id. at pp. 356–357.) The Commission “treated Bua and the Officers the same,” finding both shootings out of policy; the discipline difference flowed from Chief Beck, with “no evidence that anyone on the Commission … applied any pressure.” (Id. at pp. 356–357.) The five-year benching, the favorable promotion recommendations, the RMEC exclusion, and the gun-carrying assignments each failed to undercut the risk-management rationale, and the court noted that with Hispanic officers “at least 45 percent” of the force, “one certainly cannot assume” other shorter benchings involved only non-Hispanic officers. (Id. at pp. 358–359.)

The honest-belief / business-judgment overlay. The court rejected the notion that exposing some reasons as pretextual carried the day. Although the jury could rationally have found the “tactics” rationale pretextual, “the Officers could not prevail just by showing that some proffered justifications were untrue,” because “[e]ven a covert reason for an employment decision can show that the decision was not discriminatory if the evidence shows that it was the real reason.” (Diego, supra, 15 Cal.App.5th at pp. 360–361, citing Slatkin.) This is CACI No. 2513 in operation: a wrong, unfair, or even concealed reason does not equal a discriminatory one.

The instructional “gap.” Although the City had not assigned instructional error, the court observed that the jury was told the officers’ race had to be a “substantial motivating reason,” yet received no instruction “that the jury could not find discrimination based on the victim’s race.” (Diego, supra, 15 Cal.App.5th at pp. 361–362.) That gap “permitted the Officers to blur the distinction,” as when counsel argued “‘this was about race. Because two Hispanic officers had killed an unarmed African American.’” (Id. at p. 362.) The court could not say the verdict would have differed, but “agree[d] with the City that the trial court should not have permitted the case to go to the jury based upon the evidence that the Officers provided.” (Id. at pp. 362–363.)

Retaliation — the continuation problem. The retaliation claim foundered on causation. The officers’ proof beyond a handful of post-filing events “consisted of evidence that ‘Chief Beck continued to bench the officers,’” so they could not invoke temporal proximity. (Diego, supra, 15 Cal.App.5th at pp. 363–364.) Their own testimony showed causation ran the wrong way: after the May 2012 Jacobs meeting — six months before suit — Diego “‘definitely thought we’re done. We’re screwed,’” and sought legal help only as “a last resort.” (Id. at pp. 343, 364.) The court warned that allowing retaliation inferences “based solely upon the continuation of an already existing adverse employment status” would let employees “create claims that would not otherwise have any basis, simply by filing a complaint.” (Id. at pp. 364–365.) The post-filing events — a 2013 promotion denial tied to the lack of field certification, Nieto’s pre-suit “make up a reason” remark, the Bua comparison, and the Commission’s changed composition — each failed to show retaliatory causation. (Id. at pp. 365–366.)

The remedy. Because the trial court “erroneously denie[d] a defense motion for a directed verdict and permit[ted] the matter to proceed to a jury verdict,” “the remedy on appeal is to direct the court to enter judgment in favor of the defendant.” (Diego, supra, 15 Cal.App.5th at p. 366, quoting Quinn v. City of Los Angeles (2000) 84 Cal.App.4th 472, 484.) The panel was unanimous; there was no concurrence or dissent.

Significance

It draws a hard line around FEHA’s protected-class requirement. Diego is the clearest California appellate statement that a disparate-treatment plaintiff must tie the adverse action to the plaintiff’s own protected status — not the status of a third party affected by the plaintiff’s conduct. (Diego, supra, 15 Cal.App.5th at pp. 352–353.) The opinion is unusual because the “third person” was the person the plaintiffs shot, but its logic reaches any case where an employer’s decision turns on the characteristics of customers, clients, or victims rather than the employee. The court was careful to reserve, not foreclose, the possibility that someone might assert a victim-centered equal-protection claim; it simply held that such a claim sounds in the victim’s rights, not in employment law. (Id. at p. 353.)

It situates the substantial-motivating-reason standard in a sufficiency posture. Decided after Harris v. City of Santa Monica (2013) 56 Cal.4th 203 reset FEHA causation to “substantial motivating reason,” Diego shows that standard policing the line between actionable bias and legitimate, even cynical, institutional self-protection. The court repeatedly tied the inquiry to whether the officers’ race was a “substantial factor,” and held that political and reputational risk — however unfair — is not race. (Diego, supra, 15 Cal.App.5th at pp. 354–355.) It joins Slatkin and Chen in the line holding that workplace-politics motives defeat, rather than establish, a discrimination inference.

It reinforces the honest-belief/business-judgment overlay. By holding that proof of pretext as to some reasons cannot carry a verdict where an independent, legitimate reason is the real one, Diego operationalizes CACI No. 2513 and the Guz/Reeves teaching that disbelief of the employer is not belief in discrimination. (Diego, supra, 15 Cal.App.5th at pp. 351, 360–361.) Its limits are real, though: the holding is a sufficiency ruling on an unusual record where the plaintiffs’ own evidence corroborated the employer’s defense, and the City had conceded the shooting itself was justified. It is not license to direct verdicts whenever an employer offers a risk-management label.

Key quotes

“The plain intent is to prohibit employers from discriminating against an employee because of his or her race, not because of the race of some third person. … A claim that asserts disparate treatment based upon the race of the victim of police conduct is not an employment discrimination claim.” (Diego, supra, 15 Cal.App.5th at pp. 352–353.)

“Evidence that an employer’s proffered reasons were pretextual does not necessarily establish that the employer intentionally discriminated: ‘“[I]t is not enough … to disbelieve the employer; the factfinder must believe the plaintiff’s explanation of intentional discrimination.”’” (Id. at p. 351.)

“An employment decision based on political concerns, even if otherwise unfair, is not actionable under section 12940 so long as the employee’s race or other protected status is not a substantial factor in the decision.” (Id. at p. 354.)

Read the full opinion (free full text · Justia)→

Practice pointer

Open questions

Victim-centered claims. The court expressly declined to decide “[e]ven if an individual officer had standing to assert such a claim (which we need not consider)” — leaving open whether and how a victim’s unequal valuation in a disciplinary process might be litigated, and by whom. (Diego, supra, 15 Cal.App.5th at p. 353.)

The instructional gap. The court “cannot say whether the jury’s verdict would have been different if this concept had been fully and clearly explained in the instructions,” and rested on sufficiency rather than instructional error — leaving unresolved how a properly instructed jury (told it may not rely on the victim’s race) might treat such a record. (Diego, supra, 15 Cal.App.5th at pp. 362–363.)

Off-duty-permit legality. The court noted “[t]he parties disputed whether the Department could lawfully deny the Officers’ off-duty work permits because they were not field certified,” but found the question immaterial to discrimination and did not resolve it. (Diego, supra, 15 Cal.App.5th at pp. 359–360.)