Iwekaogwu v. City of Los Angeles

Facts

Because the appeal followed a plaintiff’s verdict, the court recited the facts “in the light most favorable to Iwekaogwu.” (Iwekaogwu, supra, 75 Cal.App.4th at p. 807.) Francis Egbule Iwekaogwu, an African-American man of Nigerian national origin with two master’s degrees in civil engineering, was hired by the City’s Department of Public Works in July 1988 and joined the harbor department’s structural design section — a unit of roughly six engineers — in December 1989 as a civil engineering assistant II, “the first African-American to join the structural design section.” (Id. at p. 807.) The tone was set at his interview, where an interviewer asked whether he had ever been harassed on the job and told him to “get prepared because there [are] a lot of them in the Harbor Department.” (Id. at pp. 807–808.)

His supervisor, Max Weismair, gave him the highest possible rating in every category at the end of 1990, and again in October 1992 and May 1993. (Iwekaogwu, supra, 75 Cal.App.4th at p. 808.) Yet when Iwekaogwu passed the civil engineer associate examination in 1991 and sought promotion, Weismair relayed word from his own supervisor, Larry Anderson — with whom Iwekaogwu had never had professional contact — “that the harbor department was not a place for Iwekaogwu to continue his professional career and that if he needed any promotional opportunity he should seek it elsewhere.” (Ibid.) Iwekaogwu responded in a 1991 conversation with Doug Thiessen by threatening to file a race discrimination action against the harbor department, and Thiessen took the matter to Adam Birkenbach and Vernon Hall — Anderson’s supervisor and that supervisor’s supervisor. (Ibid.) Iwekaogwu was promoted to civil engineer associate in August 1991, but his was the promotion left unannounced at the department’s general meeting in early 1992. (Ibid.)

In 1993 Iwekaogwu earned the highest score of any harbor-department candidate on the structural engineering associate I examination (eighth citywide) and passed the civil engineer examination, but was never notified he was eligible for a civil engineer position — while the department promoted a White male to civil engineer in another division “even though that person had failed the civil engineer examination that Iwekaogwu had passed.” (Iwekaogwu, supra, 75 Cal.App.4th at p. 808.) Raymond Aliviado, who became his supervisor in late 1993, had kept a diary of comments about Iwekaogwu’s work since 1991, when the two were still coworkers; “Iwekaogwu was the only employee about whom Aliviado kept notes.” (Id. at p. 809.) In April 1994, days after Iwekaogwu inquired about promotion to structural engineering associate, Aliviado rated him unsatisfactory overall — though Bob Zmuda, the section’s second in command, told Iwekaogwu he “found him very competent.” (Ibid.)

Iwekaogwu then hand-delivered a letter to the harbor department’s executive director captioned “Discrimination Complaint in Engineering Division of the Harbor Department of the City of Los Angeles,” recounting the unsatisfactory evaluation, Aliviado’s hostility, and the unannounced promotion, and stating: “I honestly feel that I have suffered more than enough reprisals for humbly requesting for a promotion, just as others did, in 1991.” (Iwekaogwu, supra, 75 Cal.App.4th at p. 809.) The letter was referred to Hall, who assigned it to Anderson — the very manager it implicated — for follow-up. (Ibid.) At their May 16, 1994 meeting, Anderson “asserted that there was no discrimination in the harbor department and that it was not possible for Aliviado to discriminate against Iwekaogwu,” asked whether Iwekaogwu “had heard about the Ku Klux Klan, Neo Nazis and Skinheads rising up all over the United States and Europe,” said “that is racial discrimination” and there was none in the harbor department — and “told Iwekaogwu that as long as he remained in the harbor department he should not expect any promotions.” (Id. at p. 810.) Anderson never followed up.

The adverse actions accumulated after Zmuda — appointed supervisor immediately following that meeting — took over. In October 1994 Zmuda filled the structural engineering associate position with Angel Lim, transferred from another section, who had scored lower than Iwekaogwu on the examination; Zmuda hired him without reviewing any prior performance evaluations, after five or ten minutes of conversation on a couple of occasions. (Iwekaogwu, supra, 75 Cal.App.4th at p. 810.) When Iwekaogwu submitted an overtime request, Zmuda approved similar requests from two colleagues but “tore up Iwekaogwu’s overtime sheet” and told him “he did not want him coming in and asking for overtime”; while Zmuda supervised the section, “everyone in the section was approved to do some overtime work except Iwekaogwu.” (Ibid.) In April 1995 Iwekaogwu complained to the City’s equal employment opportunities section, and in July 1995 he filed a complaint with the Department of Fair Employment and Housing (DFEH). Zmuda learned of the DFEH complaint when it was filed — and, at a personnel-department employee’s suggestion, began keeping a log on Iwekaogwu. (Id. at p. 811.) Iwekaogwu’s evaluations under Zmuda turned to “needs improvement” (May 1995) and “improvement needed” (July 1996), followed by a documented oral warning for “insubordinate behavior and performance problems.” (Ibid.)

Two pieces of evidence became central. Zmuda told Iwekaogwu on several occasions that he had to leave the structural design section “because [Zmuda] considered [Iwekaogwu] a litigant and a filer of discrimination complaints.” (Iwekaogwu, supra, 75 Cal.App.4th at p. 811.) And on October 8, 1996, Zmuda drew “an outline of a dead man with fake blood, like a crime scene drawing,” three to four feet from the entrance to Iwekaogwu’s office; Zmuda called it a Halloween joke drawn outside his own office, but Iwekaogwu testified Zmuda told a witness the drawing “shows that one of us would be leaving the structural section very soon and that individual knows that this is directed at him.” (Ibid.) On damages, Iwekaogwu testified to nightmares of his supervisors “going after [him] at night,” stress, medication for high blood pressure, strained family relationships, and sleep and appetite disturbance; he was referred for psychological counseling but there was no testimony he received treatment, and no medical practitioner testified. (Id. at p. 812.)

Procedural history

Iwekaogwu sued the City under the FEHA for race and national-origin discrimination, hostile work environment, and retaliation. (Iwekaogwu, supra, 75 Cal.App.4th at p. 807.) The jury returned a special verdict for Iwekaogwu on retaliation, was unable to reach a verdict on the discrimination and hostile-environment theories, and awarded $775,000; no punitive damages question was submitted. (Id. at pp. 807, 813.) During deliberations, a juror reported that Ms. Hirtle had sought her husband’s opinion of the case (he said “yes, that’s retaliation”); the trial court questioned each juror, denied the City’s mistrial motion, excused Hirtle for cause, seated an alternate, and instructed the jury to disregard her statements. (Id. at pp. 812–813.)

The City moved for judgment notwithstanding the verdict and for a new trial, arguing insufficiency of the evidence, juror misconduct (supported by three juror declarations describing an aggressive juror, a proposed pact of silence about Hirtle, damages “averaging,” and a send-a-message remark), and excessive damages. (Iwekaogwu, supra, 75 Cal.App.4th at p. 813.) The trial court denied JNOV, found that “in general, the jurors did not commit misconduct” and that the Hirtle taint had been cured, but conditioned denial of a new trial on Iwekaogwu’s accepting a remittitur to $500,000, explaining it “was persuaded by the moving papers that the verdict was excessive due to the facts of the case and some possible questionable activity by some jurors during deliberations.” (Id. at pp. 813–814.) Iwekaogwu accepted, judgment was entered for $500,000, and the City appealed, reasserting each posttrial argument. (Id. at pp. 807, 814.) The Court of Appeal affirmed. (Id. at p. 822.) (Part III of the opinion refers once to “the jury’s $750,000 verdict” (id. at p. 820); the verdict is elsewhere twice stated as $775,000 (id. at pp. 807, 813).)

Issue

Three questions. First, was there substantial evidence of each element of FEHA retaliation — protected activity, adverse employment action, and causal link — and, under the three-stage approach of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802–804, substantial evidence that the City’s nonretaliatory explanation (poor performance) was pretextual, where the plaintiff did not directly disprove the performance criticisms? (Iwekaogwu, supra, 75 Cal.App.4th at pp. 814–816.) Second, did juror misconduct — the Hirtle episode and the deliberation conduct described in the City’s own juror declarations — deprive the City of a fair trial? (Id. at pp. 817–818.) Third, was the remitted award of $500,000, of which over $450,000 was necessarily emotional-distress damages, excessive as a matter of law? (Id. at pp. 820–821.)

Holding

Reasoning

The statutory frame and the elements. The court quoted the FEHA’s retaliation clause — it is unlawful “[f]or any employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint . . . under this [Act]” — then codified at Government Code section 12940, former subdivision (f), and today at subdivision (h). (Iwekaogwu, supra, 75 Cal.App.4th at p. 814.) The prima facie elements came from Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476: “the plaintiff must show that he engaged in a protected activity, his employer subjected him to adverse employment action, and there is a causal link between the protected activity and the employer’s action.” (Ibid.) The City conceded the deferential standard: the appellate court must read the record most favorably to the plaintiff, resolve all conflicts in his favor, and give him the benefit of all reasonable inferences. (Ibid., citing Stubblefield Construction Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687, 703.)

Protected activity reaches back to the 1991 threat. The City argued that only actions after May 1994 — the month of the Burts letter — could count. The court disagreed: there was evidence that before August 1991 Iwekaogwu had threatened to file a race discrimination action, and that the threat was communicated to two of Anderson’s supervisors; and “[t]he City concedes that an employee engages in protected activity under the FEHA when he threatens to file a charge of employment discrimination.” (Iwekaogwu, supra, 75 Cal.App.4th at pp. 814–815, citing Gifford v. Atchison, Topeka and Santa Fe Ry. Co. (9th Cir. 1982) 685 F.2d 1149, 1156, fn. 3.) That timing mattered, because it swept the 1994 Lim promotion, the civil engineer nonpromotion, and the overtime denials into the class of post-complaint adverse actions. (Id. at p. 815.)

The adverse actions were real, not formalities. To the City’s argument that the structural engineering associate position “never was posted for promotion,” the court answered with substance over form: the section “found a way to fill the position” by transfer, and “[t]he point is that the job was filled and Iwekaogwu did not fill it.” (Iwekaogwu, supra, 75 Cal.App.4th at p. 815.) To the argument that his eligibility-list rank was too low for civil engineer, the court noted the City had filled such a position with someone who had failed the examination Iwekaogwu passed: “If the person who failed the examination was eligible for a civil engineer position, then the jury could have concluded that Iwekaogwu should have been eligible for the position as well, regardless of his place on the eligibility list.” (Ibid.)

The taxonomy of pretext proof. The doctrinal core of the opinion is its rejection of the City’s premise that a plaintiff must disprove the employer’s performance criticisms to show pretext. “The City takes too narrow a view of the type of evidence that may be offered to show that an employer’s nonretaliatory explanation for its actions is pretextual. A plaintiff is not limited to a direct attack on the employer’s explanation. At least three types of evidence can be used to show pretext: (1) direct evidence of retaliation, such as statements or admissions, (2) comparative evidence, and (3) statistics.” (Iwekaogwu, supra, 75 Cal.App.4th at p. 816, citing Penk v. Oregon State Bd. of Higher Educ. (9th Cir. 1987) 816 F.2d 458, 462.) Iwekaogwu offered the first two.

Direct evidence: decisionmakers’ own words. “Direct evidence of retaliation may consist of remarks made by decisionmakers displaying a retaliatory motive.” (Iwekaogwu, supra, 75 Cal.App.4th at p. 816, citing Lindahl v. Air France (9th Cir. 1991) 930 F.2d 1434, 1439.) Most directly, Zmuda — the man who selected Lim and refused the overtime requests — repeatedly said Iwekaogwu had to leave the section because Zmuda considered him “a litigant and a filer of discrimination complaints”; “[p]oignantly demonstrating this attitude was Zmuda’s statement that the ‘crime scene’ outline drawn outside Iwekaogwu’s office was intended to show that ‘someone’ will be leaving the structural design section soon.” (Ibid.) The court then built the inferential bridge to Zmuda’s knowledge: Anderson met with Iwekaogwu about his discrimination complaint, then “appointed Zmuda to be Iwekaogwu’s supervisor immediately following” that meeting, before the promotion and overtime decisions — so “[t]he jury could have inferred that when Anderson appointed Zmuda to be Iwekaogwu’s supervisor, he told Zmuda of Iwekaogwu’s discrimination charge, even though Zmuda denied that he knew of Iwekaogwu’s complaints before July 1995.” (Ibid.)

A supervisor’s hostile response to a complaint is itself direct evidence. Anderson’s conduct supplied a second, independent stream of direct proof: his “exceedingly defensive reaction” — categorical denial “apparently without conducting an investigation,” the statement that only the Ku Klux Klan, Neo-Nazis, and Skinheads count as “racial discrimination,” and the warning not to expect promotions — “plainly allow[ed] an inference that he did not take Iwekaogwu’s complaints seriously and that he harbored a deep resentment about the complaints.” (Iwekaogwu, supra, 75 Cal.App.4th at pp. 816–817.) Because Anderson was the second-level supervisor for every adverse decision, the court invoked the principle that an individual employment decision should not be treated as a “ ‘ “watertight compartment, with discriminatory statements in the course of one decision somehow sealed off from (that is, irrelevant to) every other decision.” ’ ” (Id. at p. 817, quoting Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 667.) The jury could infer Anderson “ensured that Iwekaogwu was not given further promotions or opportunities for overtime.” (Ibid.)

Comparative evidence sealed the inference. Although the City criticized Iwekaogwu’s performance, Zmuda hired Lim without even reviewing his evaluations; a civil engineer position went to a man who failed the examination Iwekaogwu passed; and Iwekaogwu “was the only engineer in the structural design section who was not approved to perform at least some overtime work after 1994” — all after his complaints reached Anderson’s supervisors in 1991, and the Lim and overtime decisions after the Anderson meeting. (Iwekaogwu, supra, 75 Cal.App.4th at p. 817.) “From this evidence of disparate treatment, a jury could have inferred that Iwekaogwu experienced adverse employment actions in retaliation for his complaints of discrimination.” (Ibid.) The verdict was therefore supported by substantial evidence. (Ibid.)

Juror misconduct: presumption of prejudice rebutted. Reviewing the entire record independently, the court held that any presumption of prejudice from Hirtle’s consultation with her husband was rebutted: she relayed only his conclusion, not his reasons; every juror affirmed the comments would not bear on deliberations; and the court instructed accordingly. (Iwekaogwu, supra, 75 Cal.App.4th at pp. 818–819.) The remaining claims failed on settled principles: “cutting and sarcastic words do not ipso facto constitute jury misconduct” (id. at p. 819, quoting Tillery v. Richland (1984) 158 Cal.App.3d 957, 977); a juror’s description of personal experiences of discrimination is not misconduct (ibid., citing Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 741); using proposed figures and averages “as a basis for further consideration and deliberation” is not a quotient verdict (id. at p. 819); and one juror’s send-a-message remark, without an express agreement or extensive discussion, does not establish inclusion of punitive damages (id. at pp. 819–820, citing Krouse v. Graham (1977) 19 Cal.3d 59, 81). Notably, the court decided the issue “considering only the record that was created during juror deliberations and the declarations submitted by the City,” making it unnecessary to resolve whether Iwekaogwu’s late-filed counterdeclarations were admissible under Code of Civil Procedure section 659a. (Id. at p. 818 & fn. 4.)

Damages: deference squared. The trial court was entitled to cite “questionable activity by the jury” as a reason damages were excessive and to remit; on appeal, the award stands unless “so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.” (Iwekaogwu, supra, 75 Cal.App.4th at pp. 820–821, quoting Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506–507.) Economic damages were modest on any theory — less than $10,000 for the associate position and overtime, at most $37,500 if the jury found he would have made civil engineer — so the question was whether the evidence supported over $450,000 in emotional distress. (Id. at p. 821.) Comparing Watson v. Department of Rehabilitation (1989) 212 Cal.App.3d 1271, 1293–1294 (over $1 million affirmed) and Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 997 ($662,000 “well within the range of awards in similar cases”), the court acknowledged Iwekaogwu’s symptoms were less severe than Watson’s and that he never received psychological treatment — but “the jury could have concluded that Iwekaogwu should receive such treatment,” that his distress “significantly altered his ability to enjoy life,” interfered with his family life, “and that included fear of physical harm from coworkers.” (Ibid.) Given the trial court’s discretion, the remitted amount was not excessive as a matter of law. (Ibid.)

Significance

Iwekaogwu is the employee’s-side counterweight in the FEHA retaliation canon: where Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102 and McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377 illustrate records that cannot survive the third step of McDonnell Douglas, Iwekaogwu shows precisely what a record that wins — and holds up on substantial-evidence review — looks like. Its enduring doctrinal contribution is the three-part taxonomy of pretext proof (direct evidence, comparative evidence, statistics) imported from Ninth Circuit law, coupled with the emphatic rejection of the notion that a plaintiff must rebut each performance criticism head-on. (Iwekaogwu, supra, 75 Cal.App.4th at p. 816.) That framing gives plaintiffs a structure for organizing circumstantial motive evidence that California courts have applied ever since.

Three features repay close study. First, the decision treats a threat to file a discrimination charge — years before any written complaint — as protected activity, dramatically extending the retaliation timeline and converting later personnel decisions into “subsequent” adverse actions. (Iwekaogwu, supra, 75 Cal.App.4th at pp. 814–815.) Second, the “watertight compartment” principle authorizes juries to carry a manager’s hostile statements across multiple, formally separate decisions where that manager sits in the decisional chain — an early California articulation of the idea that bias at one level can infect actions nominally taken by another. (Id. at pp. 816–817.) Third, the court sustained a very substantial emotional-distress award on lay testimony alone — no treating professional, no expert — reasoning that the jury could credit the plaintiff’s and his wife’s accounts of a transformed life. (Id. at pp. 812, 821.)

The opinion predates Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, which later fixed the “materially affects the terms, conditions, or privileges of employment” standard for adverse action and endorsed aggregate consideration of a course of retaliatory conduct; Iwekaogwu’s adverse actions — denied promotions and categorically denied overtime — would qualify under any formulation, so the decision’s substantial-evidence analysis translates cleanly into the modern framework. Its statutory citation, by contrast, has aged: the retaliation clause the court quoted as Government Code section 12940, former subdivision (f), is the provision now designated subdivision (h), as later decisions such as McRae and Loggins cite it.

Key quotes

“The City takes too narrow a view of the type of evidence that may be offered to show that an employer’s nonretaliatory explanation for its actions is pretextual. A plaintiff is not limited to a direct attack on the employer’s explanation. At least three types of evidence can be used to show pretext: (1) direct evidence of retaliation, such as statements or admissions, (2) comparative evidence, and (3) statistics.” (Iwekaogwu, supra, 75 Cal.App.4th at p. 816.)

An individual employment decision should not be treated as a “ ‘ “watertight compartment, with discriminatory statements in the course of one decision somehow sealed off from (that is, irrelevant to) every other decision.” ’ ” (Iwekaogwu, supra, 75 Cal.App.4th at p. 817, quoting Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 667.)

“Iwekaogwu offered sufficient evidence to create an inference that the City’s reasons for its employment actions with respect to Iwekaogwu were pretextual. The jury’s verdict on the retaliation charge is supported by substantial evidence.” (Iwekaogwu, supra, 75 Cal.App.4th at p. 817.)

Read the full opinion (Justia) →

Practice pointer

Open questions

The court expressly declined to decide whether the time limits of Code of Civil Procedure section 659a for a party opposing a new trial motion “may be extended by the court,” because the City’s own declarations sufficed to affirm — leaving the admissibility of late-filed opposing juror declarations unresolved. (Iwekaogwu, supra, 75 Cal.App.4th at p. 818, fn. 4.) The opinion also does not fix the boundaries of protected activity for informal, unwritten complaints: it relied on the City’s concession that a threat to file a charge is protected, so the decision offers persuasive but not contested authority on that point. (Id. at pp. 814–815.) Because the jury hung on the discrimination and hostile-environment counts, the court had no occasion to address the substantive discrimination standards, and its adverse-action analysis — written six years before Yanowitz supplied the materiality test — proceeds without any threshold discussion of how small a deprivation may be and still count; the denied overtime here was concrete and quantifiable, so the opinion does not test the margins. Finally, the decision leaves undefined how far the “watertight compartment” inference can travel — here the hostile second-level supervisor personally attended the complaint meeting and appointed the deciding supervisor immediately afterward, a tight causal weave that later cases with looser chains cannot assume. (Id. at pp. 816–817.)