Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Philip H. Hickok, Judge. Reversed and remanded with directions. Los Angeles County Super. Ct. No. VC045822
Law Offices of Dale M. Fiola and Dale M. Fiola for Plaintiff and Appellant.
Ivie, McNeill & Wyatt, Rupert A. Byrdsong and Diana Taing for Defendants and Respondents.
BIGELOW, P. J.
The appeal arises from an employment action brought by Walter Hines, an African-American deputy probation officer (DPO), against his former employer, the Los Angeles County Probation Department, and four supervisorial employees. A jury returned a special verdict which included findings that the Department had unlawfully retaliated against Hines in violation of the Fair Employment and Housing Act (FEHA; Govt. Code, § 12940) and that the individual defendants had violated his civil rights (42 U.S.C. § 1983 (section 1983)). More specifically, the jury found that the Department terminated Hines for protesting safety and security concerns and opposing race discrimination in the workplace, and for filing a grievance alleging race discrimination. The jury awarded $564,542 to Hines as damages for his lost pay, lost benefits and emotional distress. In other parts of its verdict, the jury found the Department was not liable on Hines’s claims for race discrimination in violation of the FEHA, not liable for violating the federal Family and Medical Leave Act (FMLA; 29 U.S.C. § 2601 et seq.), and not liable for violating California’s Moore-Brown-Roberti Family Rights Act (CFRA; Govt. Code, § 12945.1 et seq.).
Our references to the Department include the County of Los Angeles.
The trial court entered judgment in favor of Hines on the special verdict, but later granted a motion for judgment notwithstanding the verdict (JNOV), vacated the original judgment on the special verdict, and entered judgment in favor of the Department and the four individual defendants. Hines appeals. We reverse the judgment and remand the cause to the trial court with directions to vacate its order granting the defendants’ motion for JNOV, and to enter a new and different order denying their motion.
The defendants coupled their motion for JNOV with a motion for new trial. At a hearing on March 6, 2009, when the trial court granted the motion for JNOV, the trial court stated that the motion for new trial was “moot.” At a hearing on April 22, 2009, in response to a comment from Hines’s counsel that the court “has to make some sort of statement, or finding, or findings of fact..., ” the trial court stated: “I see. [¶] Well, I will deny the motion for a new trial explicitly.” The parties’ briefs on appeal have not asked us to consider, and we express no view on, where the motion for new trial will stand on remand.
FACTS
The Employment History
The Department has about 6, 000 employees who provide a variety of services, spread throughout the entire County of Los Angeles. The organizational scheme of the Department is topped by the chief probation officer. The chief probation officer’s duties include, among others, making decisions on who is hired and fired, and overseeing seven bureau chiefs who manage the day-to-day activities of their respective bureau’s area of operations. The Department operates 18 juvenile camps, three juvenile halls, and a treatment center, all of which fall under the management of its Residential Treatment Services Bureau or RTSB. At any given moment, the Department has custody of about 3, 500 to 3, 600 minors in its various detention facilities.
The Department hired Hines as a detention services officer in November 2000. In March 2002, the Department promoted Hines to a position as a DPO I and assigned him to Camp Fred Miller in Malibu, where he worked a full-time shift.
In April 2004, the Department transferred Kathy Holmes, a named defendant, to Camp Miller to work as a supervising DPO (SDPO). Over the course of the next several months, Hines and Holmes worked the same shift, and Hines observed Holmes engage in various activities which he understood to constitute violations of the RTSB Manual and camp rules. Hines discussed Holmes’s activities with other DPOs and with his shift supervisor, Eduardo Cordero, but neither Hines nor Cordero took any action at that time to bring Hines’s concerns to the camp director, Gil Valeriano.
In December 2004, Hines and several of his fellow DPOs attended a meeting at which Shift Supervisor Cordero informed them that he would be going on an indefinite medical leave and that SDPO Holmes would be taking over as their shift supervisor. Immediately after the meeting, Hines talked to his fellow DPOs regarding his concerns that Holmes was violating the RTSB Manual and suggested that the group speak to Camp Director Valeriano about Holmes being assigned as a shift supervisor.
On January 5, 2005, Hines telephoned Camp Director Valeriano and told him that a group of DPOs had concerns about SDPO Holmes being assigned as a shift supervisor. Hines informed Valeriano that Holmes was taking minors away from camp alone and she would be gone for hours. He said the minors were unrestrained in her car and her actions were causing the camp to be understaffed. Hines asked Valeriano if some other supervisor could be assigned as shift supervisor. Valeriano responded that there was “nothing he could do about it” because Holmes was an SDPO.
The next day, Thursday, January 6, 2005, Hines received a call to meet with Camp Director Valeriano and SDPO Holmes. When Hines arrived for the meeting, Valeriano accused him of planning a boycott of Holmes’s shift. Hines denied he was planning a boycott and expressed his concern that Holmes’s field trips with the minors were causing racial tension in the camp between African-American and Hispanic minors because it appeared she was favoring the latter. Hines stated that African-American minors had asked him why they were not allowed to go on the field trips.
SDPO Holmes accused Hines of making minors take cold showers and making them sit on the floor in the “bobsled” position. She finished by threatening, “[I]f he says anything else to me, I’m gonna file sexual harassment charges.” Camp Director Valeriano did not look into Hines’s concerns at that time because he “didn’t feel that it was necessary to investigate until I felt there was something really necessary that needed to be investigated.”
The evidence at trial showed that Camp Miller was an old facility, the showers got colder as each wing showered, and the DPOs did not have the ability to control temperature settings on the showers. The evidence showed that the “bobsled” position is a control measure in which a minor sits on the floor, crosses his legs and folds his arms over his knees. The bobsled position is used by camp staff when there is a disturbance, such as a fight. The evidence showed that, although the Department had circulated a memo advising employees not to use the word “bobsled, ” the actual control measure itself continued to be used at the camp up to and through the time of trial in Hines’s current case. Insofar as we are able to ascertain from the evidence, camp employees have never been subjected to discipline for using the control measure.
On Monday, January 10, 2005, SDPO Holmes filed a Department grievance form in which she alleged that Hines had made a statement at the meeting on January 6th inferring she was having sexual relations with a minor on her caseload. Holmes also alleged that Hines had “basically accused [her] of being a racist because he [did] not agree with [her] choice of selected minors... chosen to attend the ‘cultural enrichment’ activities that [she] supervise[d].” The next day, the Department responded to Holmes’s internal grievance form with a letter requesting that she complete a County-standardized “Discrimination Complaint Form.” On January 16, 2005, Holmes filed a formal sexual harassment complaint with the Department’s Affirmative Action Compliance Programs Office (AACPO).
In September 2005, an official in the Department’s AACPO advised Hines by letter that the investigation of SDPO Holmes’s sexual harassment claims “did not substantiate [her] allegations....”
On the same day Holmes filed her grievance, Camp Director Valeriano reassigned Hines to work a different shift, explaining that it was Department procedure to switch a person’s shift when there was an accusation of sexual harassment. After being reassigned, Hines began noticing some problems from the minors he supervised. One minor confided in him that Valeriano and SDPO Holmes had started asking minors to write up grievances against Hines “on anything.”
On January 13, 2005, Hines sent a typed memorandum to “Carol Sanchez, Bureau Chief” a named defendant. Hines’s memo advised Sanchez that he felt he was being harassed by SDPO Holmes and Camp Director Valeriano, and that he had discussed his concerns with his union representative and his attorney. Hines further asserted that Holmes’s pending sexual harassment claims were “absurd.” Four days later, on January 17, 2005, Hines sent another typed memorandum to Sanchez, this one entitled “Professional Grievance.” In it, Hines stated his concerns that he was subjected to retaliation by Holmes and Valeriano. On January 26, 2005, Hines submitted a Department grievance form which alleged that Valeriano and Holmes were wrongly accusing him of wrongdoing because he had voiced concerns about Holmes’s job performance, and that they were otherwise creating a hostile work environment by soliciting minors in the camp to write complaints against Hines and by requesting staff members to do the same. All of these documents submitted by Hines eventually made their way to the desk of Audrey Teate, a grievance hearing officer in the County’s Human Resource Office.
Sanchez became the RTSB’s acting chief at the beginning of 2005. During the time she acted as chief, employee grievances ordinarily involved multistep reviews. An employee first brought a grievance to the camp director. In the event the camp director denied the grievance, it was up to the employee to report the problem to the bureau chief.
On February 24, 2005, Hines and other DPOs encountered problems while trying to count the minors in the camp dorm because some of the minors would not stop talking or playing, and others were falsely claiming to be kitchen personnel. On that particular occasion, Hines had been assigned to act as the “control center” (CC) person, meaning he had the overall responsibility for controlling the dorm. There were at least 100 minors in the dorm at the time, and they were refusing to follow Hines’s instructions, creating a safety hazard by their actions. During the course of the incident, Hines slammed a microphone down on the CC desk, accidentally knocked over a wooden stool, and yelled at the minors to “shut up.” One of the minors involved in the incident was wearing a baseball cap, in violation of the rules. Hines took the hat from the minor’s head. When the incident was over, Hines wrote up a Facility Incident Report. At some point shortly after the events in the dorm on February 24, 2005, Camp Director Valeriano began investigating Hines’s part in those events.
On March 8, 2005, DPO Carlos Peregrina was talking to a group of minors when one of them told him that SDPO Holmes had “approached several minors to write a grievance form on DPO Hines... on whatever they wanted.” Peregrina reported the minor’s comment to his shift supervisor, SDPO Sam Stevens, and to Hines. On March 10, 2005, Hines filed another Department grievance form and delivered it to Stevens. Hines’s grievance specifically referred to Peregrina’s report about the minor’s comment on March 8th and requested that Holmes be stopped. Stevens referred Hines’s grievance to Camp Director Valeriano, who denied it with a notation stating that the matter could not be handled at his camp director level. The grievance was transferred to RTSB headquarters. On the same day, Valeriano reassigned Hines once again, this time placing him to a staff position in the camp office. At the same time, Valeriano ordered Hines not to be alone with any minors during the investigation of his grievances.
At trial, Camp Director Valeriano testified that it would be inappropriate, and that it would violate policy, for SDPO Holmes to approach minors to write a grievance against Hines on anything they wanted.
On March 17, 2005, after consulting with his doctor, Hines decided to request a stress leave. He believed that the ongoing retaliation and discrimination on the part of Camp Director Valeriano and SDPO Holmes was causing him to suffer from emotional problems, with related physical problems. On the same day, Hines completed and signed a County-standardized “Employee’s Report of Accident, ” and delivered the form to his shift supervisor, SDPO Sam Stevens. Hines remained off from work at the camp for next six weeks; his doctor provided regular medical certifications.
Meanwhile, Camp Director Valeriano started an investigation of Hines in connection with the events in the camp’s dorm on February 24, 2005. Although Hines’s grievances against Valeriano and SDPO Holmes were still pending at this time, Valeriano personally interviewed minors and camp personnel regarding Hines’s conduct. On April 12, 2005, Valeriano forwarded a report entitled “Completed Investigation of Inappropriate Behavior [of] Walter Hines” to RTSB Acting Chief Carol Sanchez. The report included a part entitled “Conclusion” which set forth the following factual findings: Hines “did throw a microphone and a chair from the control center;” Hines had been “heard by minors using profanity;” Hines had “grabbed minor [V.] and flipped his [hat] off his head.” With regard to departmental policies and rules, the Conclusion stated: “It appears that... Hines was in violation of RTSB manual [section] 400, ” and explained that RTSB Manual section 400 required “professionalism, ... staff courtesy, [and no] use of profanity.” In a cover memorandum to the report, Valeriano recommended that Hines be referred to the Discipline Unit for further review.
At trial, Camp Director Valeriano denied that he had prepared the investigation report, but did acknowledge that he had compiled the minors’ statements included in the report, and that he had forwarded the report to RTSB Acting Chief Sanchez under his own cover memorandum. When asked who had completed the report, Valeriano answered, “Don’t know, sir.” When asked a question about the report’s reference to RTSB Manual section 400, Valeriano answered, “There’s no such animal as RTSB 400, sir.”
Sometime in the spring 2005, Hines met with Grievance Hearing Officer Audrey Teate and told her about Camp Director Valeriano’s retaliation and SDPO Holmes’s activities of taking minors in her car and soliciting complaints from minors. Teate responded that she could not act on Hines’s grievances until after the investigation into Holmes’s pending sexual harassment charge against Hines had been finished.
On May 3, 2005, Hines returned to Camp Miller. When he arrived at work, Hines found his assigned locker had been ransacked in his absence, and that money had been taken. About eight hours after Hines starting working, his shift supervisor, SDPO Sam Stevens, met with Hines and said that he was being transferred to Camp Headquarters in San Fernando, effective immediately. During his meeting with Stevens, Hines called Camp Director Valeriano who informed Hines that he was being transferred as a disciplinary measure. When asked to sign the administrative reassignment document, Hines refused because he believed that Valeriano did not have the authority to transfer him to another camp. Hines nonetheless reported to Camp Headquarters as he was directed. He was assigned tasks such as data entry and filing, but no job duties normally assigned to a DPO.
A coworker told Hines that someone had opened up his the locker the day after he left on stress leave.
On May 18, 2005, Hines faxed and personally delivered a complaint of racial discrimination and harassment to Francine Jimenez, the Director of the Department’s AACPO, who was located in the Department’s headquarters building in Downey. Hines’s complaint asserted he had been transferred to Camp Headquarters by Camp Director Valeriano in spite, because he filed a grievance. Hines’s complaint renewed his claims about retaliation following his initial expressions of concerns regarding SDPO Holmes.
At roughly the same time, Hines filed another typed memorandum, this one addressed to Yolanda Villanueva, and entitled “Grievance of Re-assignment.” The record is unclear about Villanueva’s role; this grievance was directed to Grievance Hearing Officer Audrey Tate.
On May 23, 2005, Hines presented a standardized form charging discrimination to the Equal Employment Opportunity Commission (EEOC), alleging the Department had engaged in discrimination against him based on race, retaliation and sex. Two days later, the EEOC advised the Department –– addressed to its then-serving chief probation officer, Paul Higa (since deceased) –– that Hines had filed a charge of discrimination and that the EEOC would be investigating the matter.
On June 23, 2005, Hines received a notice of intent to discharge letter signed by RTSB Acting Chief Sanchez, ostensibly on behalf of Chief Probation Officer Higa. Sanchez decided to send the notice of intent to discharge based on her review of the April 2005 report submitted to her by Camp Director Valeriano. The notice of intent listed six allegations of workplace misconduct supporting Hines’s discharge. It identified two specific policies violated by his conduct –– RTSB Manual No. 32 and the Probation Department Policy Manual No. 15. The notice of intent concerned Hines’s alleged conduct during the events in the Camp Miller dorm on February 24, 2005. It alleged that Hines threw a microphone and a chair, and physically accosted a camp ward by taking a hat off his head and throwing it to the floor. It also stated that Hines had used profane and derogatory comments toward the wards. Sanchez did not interview Hines nor did she interview any witnesses about the incident before she issued the notice of intent. Sanchez accepted the information contained in the report submitted by Valeriano, even though she knew Hines had filed grievances, which remained pending, against Valeriano and SDPO Holmes.
For his part, Camp Director Valeriano had ended his employment at Camp Miller in May 2005.
RTSB Manual No. 32 provides: “All staff shall conduct themselves in a professional, courteous and businesslike manner while on duty so as not to discredit themselves or the Department.” Probation Department Policy Manual No. 15 provides: “It is the policy of the Probation Department that staff conduct themselves in an exemplary manner consistent with the standards governing County employment and stated expectations of the Chief Probation Officer....”
Although not entirely definitive, there is material in the record which suggests that the Department may have afforded Hines a “Skelly hearing” in July 2005, on the charges alleged in the notice of intent to discharge letter dated June 23, 2005. (See Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 [a public employee is entitled to an opportunity to answer charges upon which his or her employer’s proposed discipline is based].) Regardless of the outcome of such a hearing, if any, what is certain from the record is that the Department did not terminate Hines based upon the allegations in the notice of intent to discharge letter.
On August 4, 2005, Audrey Teate, the grievance hearing officer who had been assigned to consider the series of grievances filed by Hines in January 2005, denied his grievances. On September 26, 2005, Francine Jimenez from the Department’s AACPO, advised Hines by letter that the investigation of SDPO Holmes’s sexual harassment complaint did not substantiate her allegations.
On December 13, 2005, Hines filed a standardized complaint of discrimination with the Department of Fair Employment and Housing (DFEH). The next day, DFEH issued a letter advising Hines that it was closing his case based on his request for a right to sue letter.
On December 19, 2005, Audrey Teate denied Hines’s grievance concerning his transfer to Camp Headquarters.
On December 30, 2005, the Department issued a second notice of intent to discharge letter to Hines. It was signed by Bill Fenton, the director at Camp Miller. Again, the notice of intent was signed ostensibly on behalf of the Department’s chief probation officer, Paul Higa. The second notice of intent to discharge letter issued to Hines did not involve the events in the Camp Miller dorm on February 24, 2005. Instead, the notice set forth the general allegation that Hines had conducted himself inappropriately and unprofessionally. It said he was verbally abusive, and that he used profane, derogatory and racially charged words. The notice set forth specific examples of Hines’s language justifying his discharge, including his use of such terms as “nigga” or “nigger, ” “faggot, ” and “mother fucker.”
Robert Taylor succeeded Higa as the Department’s chief probation officer. At the trial of Hines’s case, Taylor testified that a notice of intent to discharge letter could not be issued at the camp director level, but had to come from at least the bureau chief level. Camp Director Bill Fenton, who ostensibly signed the December 2005 notice of intent to discharge letter, did not testify. Prior to Taylor’s appointment as chief probation Officer, he served as the chief deputy probation officer under then-Chief Probation Officer Paul Higa. Higa suffered a stroke sometime around April 1, 2006, after which Taylor served as the acting chief probation officer, then as chief probation officer. Taylor was not officially appointed as chief probation officer until mid-May 2006, a month after Hines had already been terminated. According to Taylor, he did not have any discussions with any of his staff at any time regarding Hines prior to assuming his role as chief probation officer in May 2006. He first saw the December 2005 notice of intent to discharge letter after Hines had filed his current lawsuit.
On April 13, 2006, Hines received a notice of discharge letter which was signed under the name, “Robert Taylor, Acting Chief Probation Officer.” The notice of discharge largely tracked the allegations set forth in the notice of intent to discharge issued on December 30, 2005. When the decision to terminate Hines was made, Taylor did not know about the allegations in the December 2005 notice of intent to discharge or the findings in the April 2006 notice of discharge. Taylor never talked with Hines or made any investigation. The first time that Taylor had any discussions about Hines was after Taylor learned about Hines’s current lawsuit.
See footnote 11, ante. At trial of Hines’s current case, Taylor testified that he did not recognize the signature on the April 2006 notice of discharge letter. The record suggests the notice of discharge letter was signed by Shirley Alexander, who was, at the time the RTSB Chief. According to Taylor, he did not recall having any conversations with Alexander about the issuance of the letter, but he did authorize her to send it because “[s]he had that delegated authority.”
The Litigation
In December 2005, Hines filed a complaint for damages against the Department, Kathy Holmes, Gil Valeriano, Carol Sanchez and Robert Taylor. For purposes of this appeal, the material causes of action alleged in Hines’s complaint were as follows:
(2d) violation of civil rights (§ 1983) against the individual defendants;
(3d) violation of the federal FMLA (29 U.S.C. § 2601 et seq.);
(4th) violation of the CFRA (Govt. Code, § 12945.1 et seq.); and
(8th) retaliation in violation of the FEHA (Govt. Code, § 12940).
On April 28, 2006, the EEOC issued its letter of determination on Hines’s charge of discrimination. The EEOC’s determination stated in part: “Examination of the evidence reveals reasonable cause to believe that Charging Party [HINES] was reassigned to Camp Headquarters and has not been allowed to return to a Camp location because of his race (Black) and in retaliation for participating in protected activities.” (Italics added.)
At a trial by jury in late 2008, Hines presented evidence establishing the facts summarized above. Hines also presented evidence establishing that the concerns which he had expressed regarding SDPO Holmes, and regarding perceived race discrimination in the workplace, were well-founded. For example, Holmes’s own deposition testimony included admissions that she used the phrase “Black Crippin asses” to describe minors at Camp Miller during an incident in August 2005. In addition, she admitted that she took Hispanic minors out of the camp on trips for food and clothes using her own car and not the Department’s van. She said she never took “Afro-American minors” on such trips. Apart from Holmes’s own admissions, three DPOs provided testimony which was consistent with Hines’s observations regarding Holmes’s activities.
Hines also presented evidence showing that Camp Director Valeriano and RTSB Acting Chief Sanchez appeared to favor employees who were Hispanic when assigning jobs, imposing discipline and responding to employee grievances, whereas the African-American staff were not accorded similar treatment. With regard to the Department’s employment practices, Hines’s evidence showed that he was essentially terminated for using profanity, notwithstanding the common use of profanity by employees, including Hispanic employees. Additional evidence showed the Department employed an express policy of progressive discipline, which was not followed in Hines’s case, and that the Department supervisors who had received Hines’s internal grievances had not responded to those grievances in a manner consistent with standard human resources practices. Hines’s evidence showed that county departments, including the Probation Department, normally understood that a neutral person should investigate employee misconduct but did not follow that practice in Hines’s case.
As explained by Virginia Snapp, the deputy director of the Department’s Juvenile Institutions Bureau, which has oversight responsibility of the RTSB, it is “unethical to investigate yourself.”
On December 23, 2008, the jury returned a special verdict which, as noted above, included a finding that the Department had terminated Hines for voicing concerns over possible race discrimination in the workplace and/or for filing a grievance alleging race discrimination. The jury’s special verdict also included a finding that Kathy Holmes, Gil Valeriano, Carol Sanchez and/or Robert Taylor had, while they were acting in the performance of their official duties, violated Hines’s right of expression and speech, his right to petition his government, his property right to public employment and his right to oppose race discrimination in the workplace.
On February 5, 2009, the trial court entered judgment on the special verdict.
On February 11, 2009, the Department, Holmes, Valeriano, Sanchez and Taylor filed a joint motion for new trial and a joint motion for JNOV.
On March 6, 2009, the trial court granted the joint motion for JNOV, and, having granted JNOV, did not address the motion for new trial on the ground it was moot.
On April 3, 2009, the trial court entered judgment in favor of the Department, Holmes, Valeriano, Sanchez and Taylor.
Hines filed a timely appeal.
DISCUSSION
I. The Federal Civil Rights Claim
Hines contends the trial court’s decision to grant JNOV in favor of individual defendants Kathy Holmes, Gil Valeriano and Carol Sanchez must be reversed on the ground the court relied on inapposite legal authority from the Ninth Circuit Court of Appeals in rendering its decision. We agree.
The trial court granted the motion for JNOV in favor of the individual defendants who were lower on the Department’s organizational scheme than the chief probation officer for the following stated reason: “I think that Robert Taylor’s decision to fire Mr. Hines was a wholly independent, legitimate decision. It was based upon the content of the notice of discharge letter [issued on] April 13th, 2006. [¶] Therefore, pursuant to Lakeside-Scott [v. Multnomah County (9th Cir. 2009) 556 F.3d 797 (Lakeside-Scott)], the lower level supervisors such as Holmes, Valeriano... and Sanchez are shielded from liability. [¶] So the court is going to grant [JNOV] as far as those individuals are concerned.”
In Lakeside-Scott, the plaintiff, Scott, filed a complaint alleging that she had been fired by her county employer in retaliation for engaging in speech which was protected under the First Amendment and under Oregon’s whistleblower protection statute. Scott’s complaint included a claim against a supervisor, Brown, under section 1983 based on an allegation that Brown had violated Scott’s First Amendment rights. At trial, a jury returned a verdict in Scott’s favor on her section 1983 claim against Brown. On appeal, Brown, argued the district court should have granted her motion for “judgment as a matter of law.” The Ninth Circuit agreed with Brown, concluding “there was insufficient evidence to support the verdict against Brown, given the evidence that [Fuller, the department director, made an] independent decision to terminate Scott.” (Lakeside-Scott, supra, 556 F.3d at p. 800, italics added.)
Scott’s claims against her government employer were not an issue on appeal.
Expanding on its conclusion, the Ninth Circuit explained that Brown’s appeal implicated “the question of causation.” (Lakeside-Scott, supra, 556 F.3d at p. 804.) The court then identified two issues presented by Brown’s appeal: (1) whether a final decision maker’s independent investigation and termination decision, responding to a biased subordinate’s initial report of misconduct, can negate any causal link between the subordinate’s initial report and the employee’s termination; and, if so, (2) whether the trial record in Scott’s case compelled the conclusion that Director Fuller had, in fact, conducted an independent investigation and made a wholly independent decision to terminate Scott such that Brown could not be held liable for causing Scott to be fired. (Ibid.)
The Ninth Circuit answered the first question yes, ruling that a truly independent termination decision at the top cuts the “causal link” between the subordinate’s acts and the termination decision. In reaching this decision, the court emphasized that a superior’s employment decision “does not automatically immunize a subordinate against liability for [his or] her retaliatory acts, ” and that the subordinate’s liability turns on the “ ‘intensely factual’ determination whether the superior never would have made this decision ‘but for the subordinate’s retaliatory conduct.’ ” (Lakeside-Scott, supra, 556 F.3d at p. 805, quoting Gilbrook v. City of Westminster (9th Cir. 1999) 177 F.3d 839, 854-855 (Gilbrook).)
The Ninth Circuit then examined the trial record in Scott’s case, and concluded that the evidence “negate[d] any inference that Fuller would not have taken any action against Scott but for Brown’s retaliatory motivations.... [¶]... [¶] On the facts of this case, where the evidence shows ‘that the final decision-maker made a wholly independent, legitimate decision to discharge the plaintiff, uninfluenced by the retaliatory motives of’ Brown, we hold that the neutrality of the decisionmaking process eliminated any ‘causal’ link to Brown’s bias.” (Lakeside-Scott, supra, 556 F.3d at pp. 805-806, quoting Gilbrook, supra, 177 F.3d at p. 855.)
The Ninth Circuit’s specific discussion of the causation evidence at Scott’s trial is relevant for purposes of comparison to Hines’s current case, and, for that reason, we track a significant part of that discussion: “The jury could have reasonably found that Brown was involved in initiating the investigation of Scott.... But... the record of Fuller’s independent actions and judgments compels the conclusion that she was not influenced by any retaliatory motive on Brown’s part. [¶]... [¶]
“There is no evidence that Brown outlined possible reasons for Scott’s discharge or recommended her termination.... To the contrary, [an employee on Fuller’s staff] was to investigate, and [then] recommended at the conclusion of [the] investigation which charges should be sustained.... [¶]... [T]he record shows that Brown played a very limited role in the investigation. She did not provide a witness list or any documentary evidence during the investigation, and there is no evidence that Brown [said] anything inappropriate during [an] interview.... Brown’s minimal participation was too limited and constrained to have tainted the investigative process....
“Fuller’s substantial role in the process that resulted in Scott’s termination is as important as Brown’s minimal participation. Fuller authorized the thorough investigation of the charges against Scott. Once she received [the investigator]’s report, she critically examined its contents, meeting with Scott to allow her to present any mitigating evidence and ultimately rejecting two of [the investigator]’s recommendations.... As outlined in the termination letter composed and signed by Fuller, ... she fired Scott for violations of formal work rules, executive orders and contractual agreements.... Under these circum-stances, no reasonable juror could have concluded that the investigative process was a ‘sham or conduit’ for Brown’s animosity, or that Fuller was ‘duped’ into terminating Scott. [Citation.] To the contrary, the record shows that Fuller’s decision was based on her own analysis that ‘was not jaded by anyone else’s... evaluation.’ [Citation.]” (Lakeside-Scott, supra, 556 F.3d at pp. 807-809.)
We agree with Hines that Lakeside-Scott is inapposite to the circumstances in his current case. Lakeside-Scott does not support the proposition that, where an independent upper level manager makes a termination decision, a lower level manager is disconnected from any causal link to that termination decision by virtue of the evidence showing the upper level manager made the final decision. On the contrary, Lakeside-Scott stands for the proposition that, where an independent upper level manager makes a final termination decision, and his or her decision was truly independent, that is, not tainted by a lower level manager’s actions, then the lower level manager is causally cut off from any link to that termination decision.
The state of the causation evidence in Hines’s current case is markedly different from the evidence in Lakeside-Scott. Chief Probation Officer Robert Taylor was the upper level manager who authorized the notice of discharge letter terminating Hines. Taylor’s testimony, which is found at pages 3066 to 3119 of the reporter’s transcript, shows that his decision to terminate Hines did not result from Taylor’s independent investigation and independent assessment of Hines’s alleged misconduct at Camp Miller. On the contrary, the record here shows that Taylor, to the extent he did anything, did little more than approve a termination process delegated to others. The evidence and conclusions upon which Hines’s termination rested were compiled by the subordinate supervisors, Sanchez, Valeriano, and Holmes, and simply handed to Taylor, whose name was then lent to the notice of discharge letter. The testimony provided by Taylor shows that he did not know any facts about Hines at all, let alone know facts from his own independent actions. Under these circumstances, a reasonable juror could have concluded that the termination process at Taylor’s level was a “sham” or “conduit” for Valeriano’s, Holmes’s and Sanchez’s retaliatory animosity toward Hines. (Lakeside-Scott, supra, 556 F.3d at p. 809.)
The JNOV in favor of the subordinate supervisors, Sanchez, Valeriano, and Holmes cannot be sustained based on Lakeside-Scott because the evidence does not show, as a matter of law, that Taylor’s decision to terminate Hines was independent.
II. Retaliation
Hines contends the trial court’s decision to grant JNOV in favor of the Department and its Chief Probation Officer Robert Taylor must be reversed because the jury’s verdict on his retaliation claim is supported by substantial evidence. We agree.
The trial court stated the following reasons for granting the motion for JNOV in favor of Taylor and the Department: “Taylor and the [Department] are... entitled to [JNOV] because, even if it’s found that [Hines] was engaged in protected activity, the defendant[s] showed that by a preponderance of the evidence that the decision to fire Hines would have been made regardless of [his] whistle-blowing... against Holmes. There is... not a [pre]textual firing. [¶] I’m citing... Gilbrook[, supra, 177 F.3d at page 854]....”
A defendant’s motion for JNOV challenges the legal sufficiency of the evidence in support of a verdict in favor of the plaintiff. (See, e.g., Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 258-259.) For this reason, a motion for JNOV must be denied where there is any substantial evidence, including reasonable inferences drawn from the evidence, in support of the verdict. (Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1510.) On appeal, the standard is the same: We will affirm JNOV in favor of a defendant only where there is no substantial evidence in support of the jury’s verdict. (Reynolds v. Wilson (1958) 51 Cal.2d 94, 99.) In undertaking our examination of the trial record, we disregard the evidence in favor of the defendant, give the plaintiff’s evidence all the value to which it is legally entitled, and indulge all legitimate inferences from the evidence in favor of the plaintiff. (Ibid.)
As an initial matter, it appears to us that the trial court may have misdirected its focus when examining the trial evidence in the context of a motion for JNOV. The court’s statement that Taylor and the Department (hereafter collectively the Department) had shown –– by a “preponderance of the evidence” –– that the decision to terminate Hines would have been made regardless of his expressions of concerns about SDPO Holmes and perceived race discrimination in the workplace, and despite the grievances which he filed suggests a possible application of an incorrect standard. In other words, it appears the trial court may have looked at the evidence with an eye toward determining whether the trial evidence presented would have supported a verdict in favor of the Department. In the context of a motion for JNOV, however, it should have been immaterial in the trial court, as it is on appeal, whether the jury reasonably could have decided Hines’s case in favor of the Department. Because the jury decided Hines’s case in favor of Hines, the issue presented by the Department’s JNOV was whether there was substantial evidence in support of the jury’s verdict in favor of Hines, ignoring all of the evidence which tended to support the Department’s defense of the action. On appeal, we must look at the JNOV with the same focus. With this standard of review in proper focus, we turn to the record on appeal to determine whether it discloses substantial evidence to support the jury’s verdict in favor of Hines.
The fundamental task for the jury at trial was to determine whether the Department terminated Hines because (a) its officials wanted to retaliate against him for speaking out about problems he saw in the workplace, and/or for filing his grievances, or (b) because its officials decided, based on legitimate grounds, that his conduct in the workplace justified his termination. California resolves such claims at trial by applying a burden-shifting test. Under this test, the plaintiff bears the initial burden of making a prima facie case by proving that he or she was engaged in a protected activity, that he or she was subjected to an adverse employment decision, and that there is a causal connection between the adverse employment action and his or her protected activity. (Cf. Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354-355 (Guz) [discrimination claim under the FEHA].) When the plaintiff establishes a prima facie case, a rebuttable presumption of retaliation arises, and the burden shifts to the employer to present admissible evidence that it had a legitimate, nonretaliatory reason for the adverse employment action. (Id. at pp. 355-356.) If the employer sustains its burden, the presumption of retaliation disappears, and the plaintiff must then have the opportunity to attack the employer’s proffered reason as a pretext for retaliation or to otherwise show retaliatory motive. (Id. at p. 356.) In the end, the burden of persuasion on the issue of actual retaliation is on the plaintiff. (Ibid.)
The burden-shifting test summarized above is a reflection of the recognized reality that “direct evidence of intentional [retaliation] is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows [retaliation] to be inferred from facts that [1] create a reasonable likelihood of [retaliatory motive] and [2] are not satisfactorily explained.” (Guz, supra, 24 Cal.4th at p. 354.) In other words, the jury sitting in judgment of Hines’s current case had the task of determining what motivated the Department’s officials when they decided to end his employment. Because motivation is rarely susceptible of direct proof, a trier of fact may infer a particular mental state from the facts and circumstances shown by the evidence. (Ibid.) After reviewing the trial record, we are satisfied that there is substantial evidence to support the jury’s verdict in favor of Hines.
In January 2005, Hines voiced his concerns over the appointment of an SDPO whom he considered to be violating rules and to be showing favoritism to minors who belonged to one ethnic group over minors of another ethnic group. The very next day, Hines was called into the camp director’s office, was accused of planning a boycott, and threatened with a sexual harassment claim. Less than a week later, Hines was the target of a sexual harassment claim which, in the end, was determined to be “not substantiated.” He filed grievances which were not taken under consideration. When the dorm disturbance event occurred in February 2005, any possibility of a valid investigation was lost by his superiors’ non-neutral solicitations for write-ups from camp minors on “whatever they wanted.” He was transferred more than once, given a notice of intent to discharge in June 2005 with specific charges related to the February 2005 dorm incident, followed by a second notice of intent to discharge in December 2005 with more general allegations of the use of profanity. This, notwithstanding the use of profanity appears not to have been a genuine concern to Department officials other than in Hines’s case. In April 2006, Hines was terminated despite the Department’s failure to adhere to normal progressive discipline practices. The trial record contains sufficient evidence upon which the jury could have reasonably inferred, and did infer, that Hines’s superiors acted with a retaliatory motive in an unlawful response to his complaints about SDPO Holmes, race problems in the workplace, and/or his series of grievances.
We reject the Department’s suggestion that there is no proof in the record showing a protected activity in the first instance because Hines did not offer into evidence any copies of the policies which he believed SDPO Holmes had been violating. Hines and at least one other DPO testified that SDPO Holmes violated Department policies by taking minors out of camp, on one-on-one field trips, unrestrained, in her personal vehicle, leaving the camp short of needed supervision. We find this evidence of such expressions of concern is sufficient to show a protected activity. The Department offers no legal authority in support of its proposition that a violation of a workplace rule must be exclusively proven by the introduction into evidence of a hard copy of the rule. Further, this does not even address Hines’s concerns that SDPO Holmes was fomenting racial tensions in the camp. We simply do not accept that an employee’s expressions of concern about safety, and about the possibility of discrimination problems, are not protected.
We reject the Department’s suggestion that Hines’s evidence did not overcome the Department’s evidence showing it had legitimate reasons for terminating him. The jury’s conclusion that profanity was a pretextual reason for the Department’s decision to end Hines’s employment is a reasonable inference from the record. The Department’s assertion that it was not required to prove the “objective fairness of [its] employment termination procedures” is correct as an abstract statement of law (see Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1111), but not helpful for purposes of examining the element of “pretext.” The issue is not whether the Department employed objectively fair termination procedures, bur rather, whether it disguised its true reasons for firing Hines.
III. The Federal Civil Rights Claim
Hines contends the trial court’s decision to grant JNOV in favor of the individual defendants Holmes, Valeriano, and Sanchez must be reversed because the jury’s verdict in his favor on his civil rights claim is supported by substantial evidence. We agree.
Section 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State..., subjects, or causes to be subjected, any... person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law....” To prove an action for damages under section 1983, the plaintiff must establish that the defendant acted “under color of state law, ” and that the defendant’s acts resulted in the deprivation of a constitutional right or a federal statutory right. (Dawson v. City of Seattle (9th Cir. 2006) 435 F.3d 1054, 1061.) A liability-creating action taken “under color of state law means” a misuse of power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law. (Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 333, fn. 1, citing United States v. Classic (1941) 313 U.S. 299, 326.)
Hines’s claims against the individual defendants for the alleged deprivation of his constitutional rights involve slightly different contexts based upon the respective roles of the individual defendants. SDPO Holmes directly interacted with Hines in her role as his shift supervisor; Camp Director Valeriano directly interacted with Hines and also supervised Holmes; RTSB Acting Chief Sanchez supervised Valeriano. A supervisor may be held liable for constitutional injuries inflicted by a subordinate based upon the principle that “ ‘ “supervisory indifference or tacit authorization of subordinates’ misconduct may be a causative factor in the constitutional injuries they inflict.” ’ ” (Weaver v. State of California (1998) 63 Cal.App.4th 188, 209, fn. 6, quoting Shaw v. Stroud (4th Cir. 1994) 13 F.3d. 791, 798.) To establish a supervisor’s liability under section 1983, a plaintiff must establish that the supervisor had actual or constructive knowledge of a subordinate’s wrongful conduct. Further, plaintiff must establish that the supervisor’s response to the wrongdoing was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices;” and that there is an “affirmative causal link” between the supervisor’s inaction and the plaintiff’s injury. (Grassilli v. Barr (2006) 142 Cal.App.4th 1260, 1279-1280.)
There is no dispute disclosed in the trial record or the briefs on appeal regarding whether the three individual defendants were acting under the “color of state law” with respect to Hines’s claims. The issue, therefore, again predominantly involves causation. For this reason, our analysis of the individual defendant’s liability under section 1983 is similar to our analysis of Hines’s claim for retaliation against the Department, and, as we explained above, we consider the evidence in the trial record to be sufficient sustain the jury’s conclusion, by reasonable inference, that the individual defendants punished Hines for exercising his constitutional rights of free speech and to petition the government.
DISPOSITION
The judgment is reversed. The cause is remanded to the trial court with directions to vacate its post-verdict order granting the defendants’ motion for JNOV, and to enter a new and different order denying the motion for JNOV. We express no view on the status of the defendants’ motion for new trial, which was not addressed when the motion for JNOV was granted. Hines is awarded costs on appeal.
We concur: RUBIN, J., GRIMES, J.
In a different vein, the RTSB operated –– as did all county departments –– in accord with “progressive discipline” procedures to address employee shortcomings. In her role as the RTSB’s acting chief, Sanchez had the authority to make recommendations to the chief probation officer to terminate an employee. At both, the bureau chief level and the chief probation officer level, decisions were made in conjunction with input from a Discipline Unit. On a date uncertain, Sanchez appears to have stopped working in the RTSB; at the time of trial in Hines’s current case, Sanchez worked in a section of the Department known as Placement Services. The evidence in the record shows Sanchez acted in the role of RTSB chief up to and through at least June 2005, when she issued, in her role as the RTSB’s chief, a notice of intent to discharge letter to Hines.