Jumaane v. City of Los Angeles

Facts

FEHA forbids an employer from discriminating, harassing, or retaliating on the basis of race (Gov. Code, § 12940 et seq.), but it sets a short clock on enforcement. A plaintiff “ordinarily cannot recover for acts occurring more than one year before the filing of the” administrative complaint. (Gov. Code, § 12960, subd. (d); Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1400.) That one-year bar, and the continuing-violation doctrine offered to escape it, drive the entire opinion.

Plaintiff Jabari Jumaane, an African-American, was “employed with the City through his work with the Los Angeles Fire Department (Department) since 1986.” (Jumaane, supra, 241 Cal.App.4th at p. 1395.) He held the rank of firefighter and, “from 1990 through April 2001,” the position of inspector. (Id. at p. 1395.) He filed his DFEH complaint on April 16, 2002, “alleging the June 1999 and April 2001 suspensions were discriminatory, retaliatory and harassing.” (Id. at p. 1399.) Working backward, the limitations cutoff was April 16, 2001 — meaning only acts on or after that date were independently actionable. (Id. at p. 1400.)

Protected activity in the 1990’s. Plaintiff repeatedly “experienced and spoke out against racism in the Department throughout the 1990’s.” (Id. at p. 1402.) He wrote “a 1991 letter to the City Council,” gave “a 1994 interview with the city personnel department,” testified at “a 1994 City Council hearing,” filed “a 1996 … union grievance alleging racism in the weight room,” and gave “a 1997 deposition.” (Id. at pp. 1395–1396, 1402.) Sometime in 1999 or 2000, he filed two complaints over an assistant fire marshal’s remark that “‘turning a water hose on [protestors] wouldn’t be the thing to do right now’” and his calling plaintiff “‘the water boy.’” (Id. at p. 1396.)

The 1999 suspension. Following a 1998 dispute over plaintiff’s failure to report timely to a brush task force, an audit of his inspection records, an unsatisfactory interim evaluation, six written reprimands, and a transfer he believed “‘punitive and racially motivated,’” the Department sustained five counts of misconduct and the fire chief approved a 10-day suspension, served in June 1999. (Id. at pp. 1396–1398.) Plaintiff “‘absolutely’ believed the Department was discriminating against him and … after he finished serving his suspension, he no longer had any hope ‘that somebody would listen to reason and not be tainted.’” (Id. at p. 1398.)

The 2001 suspension. In March 2000, while assigned as on-call inspector, plaintiff “left [the on-call emergency vehicle] in the City Hall East parking structure, in an unauthorized area,” instead of home-garaging it. (Id. at p. 1398.) The Department charged insubordination, sustained two counts after a Skelly meeting, and the fire chief approved a 15-day suspension that plaintiff “served … from April 16 to April 30, 2001.” (Id. at pp. 1398–1399.) That suspension — and that date — became the sole timely anchor for the case.

The disparate-impact proof. Plaintiff’s theory “was that the Department’s disciplinary policy had a disproportionately adverse impact on African-Americans.” (Id. at p. 1404.) His evidence consisted of “affirmative action audits … conducted by the city personnel department for the period January 1, 1990, through June 30, 1992,” introduced through Jerry Thomas, “a firefighter who had retired in 2007,” who “testified as a percipient witness and offered no expert testimony.” (Id. at p. 1405.) The audits noted “a disproportionate amount of discipline against Blacks (30.8%), when they represent 10.5% of the workforce.” (Id. at p. 1405.)

Procedural history

Plaintiff “sued the City on April 18, 2003.” (Jumaane, supra, 241 Cal.App.4th at p. 1395.) At the first trial the jury found for the City on all causes of action, but the trial court granted a new trial for juror misconduct and the Court of Appeal affirmed in an unpublished opinion (Jumaane I, B204553). (Id. at p. 1395.) In Jumaane I, the court rejected the City’s argument that the action was time-barred, finding the DFEH complaint timely “because it was filed on April 16, 2002, and plaintiff suffered an adverse employment action when he was suspended … from April 16 through April 30, 2001.” (Id. at p. 1395.)

The case “was retried over the course of 34 court days between September 23 and November 25, 2013.” (Id. at p. 1396.) The jury found for plaintiff on disparate-impact race discrimination, race harassment, retaliation, and failure to prevent, and “awarded plaintiff over $1 million in compensatory damages.” (Id. at p. 1396.) Critically, the jury found for the City on disparate-treatment race discrimination, finding “that plaintiff’s race was not a substantial motivating reason for the City’s treatment of plaintiff.” (Id. at p. 1396.) The trial court denied the City’s motion for judgment notwithstanding the verdict, and the City appealed. (Id. at p. 1396.) The Court of Appeal reversed and remanded “for entry of judgment in favor of Appellant.” (Id. at p. 1410.) Rehearing was denied December 2, 2015, and the Supreme Court denied review on February 17, 2016. (Id. at p. 1410.)

Issue

The appeal presented two interlocking questions. First, did the trial court err in refusing the City’s requested continuing-violation instruction (CACI No. 2508) on the theory that the doctrine’s applicability had already been decided? Second, viewing the record de novo, was there “substantial evidence of events within the limitations period” — that is, on or after April 16, 2001 — sufficient to establish a prima facie case of disparate-impact discrimination, racial harassment, or retaliation? (Jumaane, supra, 241 Cal.App.4th at pp. 1394–1395.) The court framed its task under the nonsuit/JNOV standard: whether, “disregarding conflicting evidence, viewing the record in the light most favorable to the plaintiff and indulging in every legitimate inference … there is no substantial evidence to support a judgment in the plaintiff’s favor.” (Id. at pp. 1399–1400.)

Holding

Reasoning

The court began with the instructional error: a summary-judgment denial does not decide the continuing-violation question for the jury. The City had “consistently asserted the statute of limitations defense,” developed it at retrial, and “asked the court to give the CACI instruction on the continuing violation doctrine. (See CACI No. 2508.)” (Jumaane, supra, 241 Cal.App.4th at p. 1400.) The trial court refused, reasoning it “had already decided the continuing violation doctrine applied” at the 2005 summary-judgment stage and that the Court of Appeal “‘made the same finding about the DFEH complaint.’” (Id. at p. 1400.) The panel was emphatic: “This was manifest error.” (Id. at p. 1400.) The “denial of summary judgment means only there are triable issues of material facts. At a jury trial, the facts are presented and the jury must decide whether there was a continuing course of unlawful conduct based on the law as stated in CACI No. 2508.” (Id. at pp. 1400–1401.) Nor had the prior appeal helped plaintiff: the court “simply found ‘that since [plaintiff’s] suspension ended on April 30, 2001, he had until at least one year from that date to file a DFEH complaint,’” and “said nothing at all about any adverse employment action preceding the April 2001 suspension.” (Id. at p. 1401.) By treating the doctrine as “necessarily applied,” the court “remov[ed] the matter from the jury’s consideration” — a prejudicial error. (Id. at pp. 1401–1402.)

The court then supplied the controlling continuing-violation framework, anchoring it in Richards and Yanowitz. Borrowing the rule from Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, the court explained that where an employer engages in a continuing course of unlawful conduct short of constructive discharge, “the statute of limitations begins to run, not necessarily when the employee first believes that his or her rights may have been violated, but rather, either when the course of conduct is brought to an end … or when the employee is on notice that further efforts to end the unlawful conduct will be in vain.” (Id. at p. 1400.) Under Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, the doctrine “applies not only to FEHA harassment and discrimination claims but also to retaliation claims,” the clock running when an adverse action “acquires some degree of permanence or finality.” (Id. at p. 1400.) The doctrine has three elements: the out-of-period conduct must be “(1) similar or related to the conduct that occurred within the limitations period; (2) … reasonably frequent; and (3) … had not yet become permanent.” (Id. at p. 1402, citing Dominguez v. Washington Mutual Bank (2008) 168 Cal.App.4th 714.) And the burden is the plaintiff’s: “when the defendant has asserted the statute of limitation defense, the plaintiff has the burden of proof to show his or her claims are timely under the continuing violation doctrine.” (Id. at p. 1402.)

Applying that framework, the court held the conduct had achieved permanence by 1999 — using plaintiff’s own testimony against him. Indulging every inference for plaintiff, the court found “substantial evidence to support the first two elements”: the 1990’s harassment and retaliation, “at least some incidents” being “similar or related,” were “reasonably frequent at various times.” (Id. at pp. 1402–1403.) But permanence was fatal. “‘[P]ermanence’ … should properly be understood to mean … that an employer’s statements and actions make clear to a reasonable employee that any further efforts … will be futile.” (Id. at p. 1402.) Here, “the only reasonable inference is that by the time plaintiff served his 1999 suspension, he knew that further efforts to end the harassment and retaliation would be in vain.” (Id. at p. 1403.) Plaintiff testified he believed the “paper trail” being created showed discrimination, that his 1998 transfer was “racially motivated and retaliatory,” and that “after he served the suspension, he no longer had any hope that the racism would end, and he knew future efforts to make changes would be futile.” (Id. at pp. 1403–1404.) “Because the harassment and retaliation culminated in the 1999 suspension, and plaintiff knew future efforts to make changes would be futile, all of plaintiff’s claims related to conduct that occurred before June 1999 are barred by the statute of limitations.” (Id. at p. 1404.)

On disparate impact, the court demanded valid statistical proof — and found the audits both stale and incompetent. The court drew the disparate-treatment/disparate-impact line from Harris v. Civil Service Com. (1998) 65 Cal.App.4th 1356: in disparate-treatment cases the plaintiff “must prove a discriminatory intent or motive,” whereas in disparate-impact cases the plaintiff “alleges and proves, usually through statistical disparities, that facially neutral employment practices … nevertheless have such significant adverse effects … that they are ‘in operation … functionally equivalent to intentional discrimination.’” (Id. at pp. 1404–1405.) “Valid statistical evidence is required,” and “causation must be proved,” with disparities “sufficiently substantial that they raise such an inference of causation.” (Id. at p. 1405.) Plaintiff’s proof failed twice over. First, the “bare statistics cited in these memoranda, without more, are not substantial evidence the Department’s disciplinary policy had a disproportionately adverse impact on African-Americans during the period January 1, 1990, through June 30, 1992.” (Id. at p. 1406.) Second, even if competent, “they are irrelevant to the period of 1998 and after, during which plaintiff’s claims arose,” because “statistical evidence cannot serve as a basis for proving discrimination beyond the time period analyzed.” (Id. at p. 1406.) The court also stressed the structural mismatch: the jury had rejected plaintiff’s claim of racial discrimination against him, and “[e]vidence of racial discrimination against plaintiff cannot save his disparate impact claim,” which requires proof a facially neutral policy harmed the group. (Id. at pp. 1406–1407.)

On harassment, the court applied the bright-line rule that disciplinary suspensions are not harassment. Citing Reno v. Baird (1998) 18 Cal.4th 640 and Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, the court held that “[a] disciplinary suspension does not constitute harassment under FEHA as a matter of law.” (Id. at p. 1407.) Personnel-management actions “may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment.” (Id. at pp. 1407–1408.) The only within-period conduct plaintiff identified was “‘the unwarranted discipline’” — i.e., the 2001 suspension — which, as a matter of law, was not harassment. (Id. at p. 1407.) Plaintiff’s failure to cite the record compounded the problem: parties “are required to provide specific page citations,” and “[i]ssues … not raised or supported by argument or citation to authority” are “waived.” (Id. at pp. 1406–1407.)

On retaliation, the court assumed a prima facie case and resolved the appeal on pretext. The court recited the burden-shifting frame from Yanowitz: a prima facie case requires protected activity, an adverse action, and a causal link; once shown, the employer offers a legitimate reason, after which “the presumption of retaliation ‘“‘drops out of the picture,’”’ and the burden shifts back to the employee to prove intentional retaliation.” (Id. at p. 1408.) “Assuming without finding, for purposes of brevity only,” a prima facie case, the court found “no substantial evidence that undermines the City’s proof it had a legitimate, nonretaliatory reason for the 2001 suspension” — plaintiff’s insubordinate refusal to home-garage the on-call vehicle, which “compromised his ability to respond as quickly as possible to an emergency.” (Id. at pp. 1408–1409.) The pretext standard, drawn from McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, is demanding: a plaintiff “cannot ‘“simply show the employer’s decision was wrong, mistaken, or unwise,”’” but must show “‘“such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions … that a reasonable factfinder could rationally find them ‘unworthy of credence.’”’” (Id. at p. 1409.) Plaintiff did not even try: “In his reply brief, plaintiff says nothing whatever in response to the City’s argument that he failed to show the 2001 suspension was unjustified or pretextual.” (Id. at p. 1409.) The City’s explanation was “not facially implausible,” and the point was “waived.” (Id. at p. 1409.)

Finally, the derivative failure-to-prevent claim fell with the rest. Although the City “says nothing whatever about the jury’s verdict” on this count, the court declined to find waiver because “a predicate for the verdict is substantial evidence of discrimination, retaliation and harassment.” (Id. at p. 1410, citing Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280.) With most claims time-barred and the within-period evidence insufficient, there was no underlying violation to support the failure-to-prevent verdict, and the court “need not address the adequacy of the evidence to support the damages award.” (Id. at p. 1410.)

Significance

Jumaane is a cautionary decision on the procedural mechanics of the continuing-violation doctrine, and it sits in the doctrinal line running from Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798 through Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028 and Dominguez v. Washington Mutual Bank (2008) 168 Cal.App.4th 714. Its first contribution is procedural: a pretrial summary-judgment denial on limitations decides nothing for the jury. Where a defendant requests CACI No. 2508, the “permanence” question is a fact question the jury must resolve, and refusing the instruction on the ground that the issue was already “decided” is reversible error. (Jumaane, supra, 241 Cal.App.4th at pp. 1400–1402.) Practitioners on both sides should treat the continuing-violation instruction as live trial business, not a settled pretrial ruling.

The second contribution is the court’s willingness to find “permanence” as a matter of law from the plaintiff’s own testimony. Plaintiff’s candor — that after the 1999 suspension he had no hope “somebody would listen to reason” and “knew future efforts to make changes would be futile” — supplied “the only reasonable inference” that the clock had started. (Id. at pp. 1403–1404.) The decision is a reminder that the doctrine cuts both ways: testimony establishing that an employee gave up hope is testimony that the limitations clock began, foreclosing recovery for everything that preceded it.

Third, on disparate impact, Jumaane reinforces two strict evidentiary requirements: statistics must be competent (here, expert-grounded rather than introduced through a lay percipient witness) and temporally matched to the claim period, because “statistical evidence cannot serve as a basis for proving discrimination beyond the time period analyzed.” (Id. at p. 1406.) The court’s observation that a jury’s rejection of individualized disparate-treatment discrimination cannot be salvaged by repackaging the same individualized evidence as “disparate impact” is a useful structural point about CACI No. 2500’s (disparate-treatment) relationship to CACI No. 2502’s group-based, disparate-impact proof. (Id. at pp. 1406–1407.) Finally, the harassment holding restates the Janken/Reno bright line that disciplinary suspensions are personnel-management actions, not harassment.

Key quotes

“The denial of summary judgment means only there are triable issues of material facts. At a jury trial, the facts are presented and the jury must decide whether there was a continuing course of unlawful conduct based on the law as stated in CACI No. 2508.” (Jumaane, supra, 241 Cal.App.4th at pp. 1400–1401.)

“[T]he only reasonable inference is that by the time plaintiff served his 1999 suspension, he knew that further efforts to end the harassment and retaliation would be in vain.” (Id. at p. 1403.)

“The bare statistics cited in these memoranda, without more, are not substantial evidence the Department’s disciplinary policy had a disproportionately adverse impact on African-Americans … . Even if they were, they are irrelevant to the period of 1998 and after … .” (Id. at p. 1406.)

“In his reply brief, plaintiff says nothing whatever in response to the City’s argument that he failed to show the 2001 suspension was unjustified or pretextual.” (Id. at p. 1409.)

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Practice pointer

Open questions

Because the court found the case failed for want of liability, it expressly reserved the damages question: “Since we find the court should have granted the motion for judgment notwithstanding the verdict for failure of proof of liability, we need not address the adequacy of the evidence to support the damages award.” (Jumaane, supra, 241 Cal.App.4th at p. 1410.) Whether the $1 million award was independently supportable is therefore undecided.

The court likewise declined to resolve the admissibility dispute over the audit memoranda. It noted the City “had moved in limine to exclude the audits and testimony … on the grounds they were hearsay, inadmissible opinion and irrelevant,” and that the trial court “did not explain why it overruled these apparently valid objections,” but the panel ruled on substantial-evidence grounds rather than deciding the evidentiary objection. (Id. at p. 1405.) And on retaliation, the court “[a]ssum[ed] without finding … that plaintiff produced substantial evidence … to establish a prima facie case,” resolving the claim on pretext alone and leaving the prima facie causation question undecided. (Id. at pp. 1408–1409.)