Joaquin 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, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation of any person, … to discharge the person from employment … , or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Joaquin, supra, 202 Cal.App.4th at p. 1219.) The companion retaliation provision, section 12940, subdivision (h), “prohibits employers from retaliating against employees for engaging in protected activity—i.e., for ‘discharg[ing], expel[ling], or otherwise discriminat[ing] against any person because the person has opposed any practices forbidden under this part … .’” (Ibid.)

The end-of-watch incident. Richard Joaquin was a motor officer in the LAPD’s central traffic division; James Sands was a sergeant who occasionally served as watch commander with supervisory authority over Joaquin. (Joaquin, supra, 202 Cal.App.4th at p. 1210.) On January 7, 2005, with Sands as watch commander, Joaquin told Sands his shift was over and left; Sands said the shift had not ended and ordered him to return. Whether Joaquin actually returned was disputed. (Ibid.) That evening a coworker told Joaquin there had been “an incident” between him and Sands, and Joaquin testified he believed Sands was retaliating for an earlier rebuffed advance — that Sands “‘was sexually … harassing me, … stalking me, … exercising his power,’” and would “‘start escalating the situation … and it was going to get worse and worse.’” (Ibid.)

The harassment report. Joaquin first called an 800 number anonymously, declined to file a formal complaint, then spoke to Lieutenant Corso. (Joaquin, supra, 202 Cal.App.4th at p. 1211.) On January 14, 2005 — the same day Sands started, then withdrew, a negative “comment card” over the end-of-watch incident — Joaquin told Sergeant Ruby Malachi that Sands “had asked him out on a date and then had retaliated against him and sexually harassed him because he had declined Sands’s advances.” (Ibid.) Malachi reported the allegations to Captain Ann Young that evening, and Young turned the matter over to internal affairs. (Ibid.) In his internal-affairs interview, Joaquin recounted a series of incidents from 2003–2004 — Sands asking him out on a drive to the shooting range, a gym comment about his “‘nice arms,’” repeated phone calls, an Olympic-diving remark, and unexplained appearances at his “Code 6” traffic-stop locations. (Id. at pp. 1212–1213.) Internal affairs “investigated Joaquin’s allegations against Sands and determined they were unfounded.” (Id. at p. 1213.)

Sands’s counter-complaint. After reviewing the closed investigation file, Sands made an official complaint against Joaquin, which internal affairs charged in two counts: “(1) retaliating against Sands by filing a false complaint and (2) while on duty, providing false statements during an official investigation.” (Joaquin, supra, 202 Cal.App.4th at p. 1213.) Detective Hector Sanchez and Lieutenant Mario Munoz investigated, interviewing roughly 13 officers; Captain Young recommended that the allegations be sustained and that the matter proceed to a board of rights — “a formal adjudication by two sworn officers and one civilian” at which the accused may be represented by counsel and call witnesses. (Ibid.) Joaquin’s anticipated promotion to sergeant was put on hold and he was temporarily relieved of duty. (Ibid.)

The board of rights and termination. After a seven-day hearing, the board on March 13, 2007 found Joaquin guilty of count 1 (retaliation by filing a false complaint) and not guilty of count 2. (Joaquin, supra, 202 Cal.App.4th at p. 1213.) Its “Rationale on Findings” recited that the board “unanimously believed that Sergeant Sands’ testimony was credible,” that it “had doubts as [to] the plausibility of Officer Joaquin’s version,” and that one “true motive” for Joaquin’s action was a phone call warning him he might be “‘the subject of “paperwork,”’” after which the board believed he “made a conscious decision to potentially use the department’s discipline system to relieve him from his own inaction.” (Id. at pp. 1214–1215.) The board found him guilty by a preponderance of the evidence and recommended removal; the chief of police adopted the recommendation, and Joaquin was terminated. (Id. at pp. 1215–1216.)

The writ and reinstatement. Joaquin obtained writ relief: on September 23, 2008 the superior court found the board’s findings “were not supported by the weight of the evidence” and ordered him reinstated. (Joaquin, supra, 202 Cal.App.4th at p. 1216.) In its independent-judgment review the writ court concluded that aspects of Sands’s testimony “do not make sense or are inconsistent,” that “[t]he uncontradicted evidence is that some or all of the events reported by Joaquin actually occurred,” and that even a motive to “avoid punishment for the January 2005 incident does not control.” (Id. at pp. 1216–1217, fn. 3.) Joaquin was reinstated in January 2009, transferred to the Valley Traffic Division, and had not been promoted to sergeant. (Id. at p. 1217.)

Procedural history

Joaquin filed the present FEHA action on December 18, 2006, and the operative first amended complaint on February 11, 2009, alleging that his termination was “in retaliation for filing a sexual harassment complaint against Sands.” (Joaquin, supra, 202 Cal.App.4th at p. 1217.) He abandoned causes of action for sexual harassment and failure to prevent retaliation before trial. (Id. at p. 1217, fn. 4.) On May 20, 2010, the jury returned a special verdict for Joaquin, finding that he reported sexual harassment, that the City terminated him or denied him promotion, that his reporting “‘was a motivating reason’” for that decision, and that the City’s conduct was a substantial factor in causing his harm. (Id. at pp. 1217–1218.) The jury awarded $128,722 in past lost wages, $706,040 in future lost wages, and $1.3 million for past and future emotional distress — more than $2 million in all. (Id. at p. 1218.)

The City timely appealed, contending principally that the verdict was not supported by substantial evidence. (Joaquin, supra, 202 Cal.App.4th at p. 1218.) The Court of Appeal, in a unanimous opinion by Justice Suzukawa, reversed the judgment outright, with Presiding Justice Epstein and Justice Manella concurring. (Id. at p. 1231.) The Supreme Court denied review on April 25, 2012, S200469. (Id. at p. 1231.)

Issue

The dispositive question was framed by the unusual procedural posture: not whether Joaquin’s harassment report caused his termination — that causal link was conceded — but “whether an employee may be disciplined if his or her employer concludes that the employee has fabricated a claim of sexual harassment, or whether such a complaint is insulated from discipline even where … the employer determines that it was fabricated.” (Joaquin, supra, 202 Cal.App.4th at pp. 1221–1222.) The court noted that “[n]either Joaquin nor the City has cited any case addressing this issue, and we are not aware of any California case that has discussed it.” (Id. at p. 1222.) Embedded in that question was the substantial-evidence inquiry: whether Joaquin produced evidence sufficient to support a reasoned inference that his termination was the product of retaliatory animus, or that the fabrication rationale was pretextual.

Holding

Reasoning

The substantial-evidence posture set the ceiling. The court began by stressing that retaliation actions “‘are inherently fact-driven,’” that the jury, not the appellate court, finds the facts, but that “‘the jury’s verdict stands only if it is supported by substantial evidence.’” (Joaquin, supra, 202 Cal.App.4th at p. 1218.) It marked the outer boundary of that deference: substantial evidence “‘cannot be deemed synonymous with “any” evidence,’” must be “‘of ponderable legal significance,’” and an inference “‘cannot stand if it is unreasonable when viewed in light of the whole record’” or where it “‘is rebutted by clear, positive and uncontradicted evidence of such a nature that it is not subject to doubt in the minds of reasonable men.’” (Id. at pp. 1218–1219.) That last principle — the “‘common sense limited exception … aimed at preventing the trier of the facts from running away with the case’” — did the analytical work. (Ibid.)

The burden-shifting framework and the prima facie concession. The court recited the familiar Guz/Yanowitz structure: a plaintiff raises a presumption by a prima facie case; the employer rebuts by producing a “‘legitimate, nonretaliatory reason’”; the presumption then “‘drops out of the picture,’” and the burden shifts back to the employee to “‘prove intentional retaliation.’” (Joaquin, supra, 202 Cal.App.4th at pp. 1219–1220.) Joaquin “indisputably established a prima facie case of retaliation,” and the City “articulated a legitimate, nonretaliatory reason … i.e., that Joaquin fabricated a sexual harassment complaint against Sands.” (Id. at p. 1220.) The burden therefore returned to Joaquin to prove the elements of intentional retaliation — including “‘retaliatory animus on the part of the employer’” and “‘a causal link between the retaliatory animus and the adverse action.’” (Ibid.)

The competing framings of the intent element. The parties split on what Joaquin had to prove. The City argued he “had to prove that those involved in the decision to terminate him harbored unlawful retaliatory animus,” and that there was “no substantial evidence of animus by the board of rights.” (Joaquin, supra, 202 Cal.App.4th at p. 1221.) Joaquin countered that he need prove “only a causal link,” which the board “conceded” by memorializing in its charges that he was being terminated for filing the complaint — “‘protected conduct.’” (Ibid.) The court accepted the causal link but rejected its legal significance: “the board of rights did not recommend termination merely because Joaquin had reported sexual harassment, but rather because it concluded that he had fabricated the accounts of sexual harassment.” (Ibid.) The distinction between reporting harassment and reporting it “falsely” was the hinge of the case. (Ibid.)

The honest-belief / good-faith principle, drawn from federal Title VII law. Confronting a question of first impression in California, the court turned to federal authority, which it found “persuasive in determining the meaning of analogous provisions of FEHA.” (Joaquin, supra, 202 Cal.App.4th at p. 1222.) From Richey v. City of Independence (8th Cir. 2008) 540 F.3d 779 it adopted the core rule: “‘An employee who engages in protected activity is not insulated from adverse action for violating workplace rules,’” and “‘[i]f the employer takes an adverse action based on a good faith belief that an employee engaged in misconduct, then the employer has acted because of perceived misconduct, not because of protected status or activity.’” (Id. at p. 1223.) The decisive inquiry is “‘whether the [employer] believed [the employee] was guilty of the conduct justifying discharge,’” so a plaintiff must show “‘a genuine issue of fact about whether the employer acted based on an intent to retaliate rather than on a good faith belief that the employee violated a workplace rule.’” (Ibid.)

The employer’s right to make an honest choice between conflicting accounts. The court reinforced the point with E.E.O.C. v. Total System Services, Inc. (11th Cir. 2000) 221 F.3d 1171, which held that “‘that the employer has a good faith belief that the employee lied is’” enough — the employer need not “‘prove … that [the employee], in fact, lied.’” (Joaquin, supra, 202 Cal.App.4th at p. 1224.) When an internal investigation “‘produces contradictory accounts of significant historical events, the employer can lawfully make a choice between the conflicting versions … at least, as long as the choice is an honest choice.’” (Ibid.) The employer “‘can lawfully act on a level of certainty that might not be enough in a court of law,’” because “‘not every personnel decision involving a false statement … has to be treated as something like a trial for perjury.’” (Id. at pp. 1224–1225.) The court added the Hatmaker caution that protected participation “‘doesn’t insulate an employee from being discharged’” for “‘making frivolous accusations, or accusations grounded in prejudice,’” lest the antidiscrimination laws become “‘a tactical coercive weapon.’” (Id. at pp. 1225–1226.)

The synthesis — fabrication is a legitimate basis, tested for pretext. Adopting this reasoning, the court held that discipline for false charges “is subject to the burden-shifting analysis articulated … in McDonnell Douglas … and adopted by our Supreme Court in Yanowitz.” (Joaquin, supra, 202 Cal.App.4th at p. 1225.) Following Mamou, it located the ultimate question not in “pretext” as a talisman but in “‘whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus,’” noting that an employer’s articulation of a legitimate reason “‘can only dispel the presumption.’” (Id. at pp. 1225–1226 & fn. 5.)

Why the animus evidence failed — Sands’s role. Joaquin argued Sands’s hostility “‘imbued [the internal affairs investigation] with improper retaliatory motive from the start.’” (Joaquin, supra, 202 Cal.App.4th at p. 1226.) The court found no evidence Sands “played a role in the internal affairs investigation … or had the power to direct its result,” and significant evidence to the contrary: Detective Sanchez testified he had never met Sands before the investigation, that Sands “did not in any way direct how internal affairs conducted the investigation,” and that Sands’s role “‘was just bringing those allegations to our attention.’” (Id. at pp. 1226–1227.) Joaquin offered nothing to contradict this. (Id. at p. 1227.)

Why the animus evidence failed — the de novo board insulated the decision. The court’s structural move was decisive: “the ultimate recommendation to terminate Joaquin was made by the board of rights, not internal affairs.” (Joaquin, supra, 202 Cal.App.4th at p. 1227.) A board of rights hearing is “‘a de novo hearing,’” whose “‘decision is based solely upon the evidence presented to it,’” so “in the absence of direct evidence to the contrary, the jury could not reasonably have inferred that any animus that allegedly infected the internal affairs investigation also infected the board of rights proceeding.” (Id. at pp. 1227–1228.) Joaquin “did not identify the members of the board of rights,” offered no evidence any member “knew him or had a desire to retaliate,” and “introduced virtually no evidence concerning the board of rights proceeding itself.” (Id. at p. 1228.) Sands’s threat to complain to the inspector general failed for the same reason — no evidence it “‘had any effect on the results.’” (Ibid.)

Why the animus evidence failed — overlooked evidence and the limits of credibility review. Joaquin’s strongest theory was that investigators and the board “consciously overlooked compelling evidence in favor of Joaquin,” pointing to McCallum’s denial of a statement Sands attributed to him and Sands’s overstatement that he had been “administratively transferred” and his “‘career had been ruined.’” (Joaquin, supra, 202 Cal.App.4th at pp. 1228–1229.) The court held this insufficient because Joaquin had to show such evidence “was before the board, not merely before internal affairs,” and “[h]e failed to do so.” (Id. at p. 1229.) Critically, even crediting the impeachment, “although the evidence … could perhaps have supported a conclusion that Sands was not credible, it did not compel that conclusion,” and on the “scant evidence presented to the jury about the board of rights proceeding,” the jury “was not in a position to determine whether … the board of rights’s credibility determinations were reasonable.” (Ibid.) Notably, the court reached this result despite the writ court’s contrary independent-judgment credibility finding — the writ court’s view did not establish retaliatory animus before the board.

The instructional flaw — flagged but not decided. Although the City “‘has not raised the issue of instructional error,’” the court observed that the inquiry into intent “‘highlights a significant flaw’” in CACI No. 2505, which “‘does not identify’” retaliatory intent as an element. (Joaquin, supra, 202 Cal.App.4th at pp. 1229–1230.) Under the unique facts, the instruction “‘may have made a plaintiff’s verdict inevitable’” because the City did not dispute any element on which the jury was instructed — reporting, termination, motivating reason, harm, causation. (Id. at pp. 1230–1231.) The panel “urge[d] the Judicial Council to redraft the retaliation instruction and the corresponding special verdict form so as to clearly state that retaliatory intent is a necessary element.” (Id. at p. 1231.) The panel was unanimous; there was no concurrence or dissent.

Significance

It is California’s leading statement of the honest-belief defense to a fabricated-complaint discipline. Confronting an undecided question, Joaquin imported the federal honest-belief rule into FEHA: an employer that disciplines an employee on a genuine, good-faith belief that the employee filed a false harassment complaint “‘has acted because of perceived misconduct, not because of protected status or activity.’” (Joaquin, supra, 202 Cal.App.4th at p. 1223.) The employer need not prove the complaint was in fact false; it need only make “‘an honest choice’” between conflicting accounts. (Id. at p. 1224.) This squarely answers a recurring problem: how to reconcile FEHA’s broad protection of those who oppose harassment with an employer’s legitimate need to police fabrication.

It is a powerful illustration of the de novo-tribunal cut-off in cat’s-paw analysis. The opinion’s structural holding — that an independent de novo adjudication insulates the ultimate decision from animus said to taint a subordinate investigation — is a practical limit on “cat’s paw” theories. (Joaquin, supra, 202 Cal.App.4th at pp. 1227–1228.) Where the terminating body decides solely on the evidence presented to it, a plaintiff must locate animus in that body, not merely upstream. The case also underscores that reversal of the discipline on independent-judgment writ review — as happened here — does not, standing alone, supply substantial evidence of retaliatory animus.

It is a rare appellate critique of a CACI instruction. The court’s observation that CACI No. 2505 omits retaliatory intent, and its express call for the Judicial Council to redraft both the instruction and the special verdict form, is significant beyond this case. (Joaquin, supra, 202 Cal.App.4th at pp. 1229–1231.) It situates Joaquin in the line — alongside Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686 — insisting that the ultimate FEHA question is whether the record as a whole supports a reasoned inference of retaliatory animus, not merely whether the employer’s reason was “pretextual.” Its limits are real: the holding is a sufficiency ruling on a record where the plaintiff offered “‘virtually no evidence’” about the very tribunal that decided his fate. (Id. at p. 1228.)

Key quotes

“[I]n appropriate circumstances, an employer may discipline or terminate an employee for making false charges, even where the subject matter of those charges is an allegation of sexual harassment.” (Joaquin, supra, 202 Cal.App.4th at p. 1225.)

“If the employer takes an adverse action based on a good faith belief that an employee engaged in misconduct, then the employer has acted because of perceived misconduct, not because of protected status or activity. ‘The relevant inquiry is whether the [employer] believed [the employee] was guilty of the conduct justifying discharge.’” (Id. at p. 1223.)

“[T]he ultimate recommendation to terminate Joaquin was made by the board of rights, not internal affairs. … [I]n the absence of direct evidence to the contrary, the jury could not reasonably have inferred that any animus that allegedly infected the internal affairs investigation also infected the board of rights proceeding.” (Id. at pp. 1227–1228.)

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Practice pointer

Open questions

The “appropriate circumstances” boundary. The court held only that “in appropriate circumstances” an employer may discipline for a fabricated harassment complaint, without delineating those circumstances — leaving open how courts will police the line between a genuine good-faith fabrication finding and a pretextual one. (Joaquin, supra, 202 Cal.App.4th at p. 1225.)

Instructional error. Because the City did not raise it and the court resolved the case on sufficiency, the court “need not decide whether the jury was correctly instructed,” leaving unresolved how a properly instructed jury — one told that retaliatory intent is a required element — would treat such a record. (Joaquin, supra, 202 Cal.App.4th at pp. 1229–1230.)

The effect of an independent-judgment writ reversal. The opinion does not squarely address what evidentiary weight, if any, a prior writ court’s independent-judgment finding that the discipline was unsupported should carry on the later question of retaliatory animus — it simply held that, on this record, no substantial evidence of animus before the board existed. (Joaquin, supra, 202 Cal.App.4th at pp. 1228–1229.)