Filed 10/16/13 Velasquez v. County of Ventura CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts a nd parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

ROBERT VELASQUEZ,
Plaintiff and Respondent,

v.
COUNTY OF VENTURA,
Defendant and Appellant. 2d Civil No. B238939 (Case No. VEN00335343)

(Santa Barbara County)

Plaintiff Robert Velasquez (Velas quez) sued the County of Ventura (County) for wrongful constructive termin ation and for retaliating against him for reporting alleged discrimination within the County's Bureau of Investigation (Bureau) where he worked. The jury found fo r Velasquez, and awarded him $1.356 million in damages. The County challenges the sufficiency of the evidence supporting these verdicts. We affirm.
FACTS
Because this is a substantial evid ence appeal, we summarize the facts in the light most favorable to the judgment below. ( McCoy v. Pacific Maritime
Assn. (2013) 216 Cal.A pp.4th 283, 299 ( McCoy ).) Velasquez worked as a sworn peace officer and investigator in the2 Bureau, a branch of the County's distri ct attorney's office, from 1987 until he resigned in December 2009. He began as an investigator, was promoted to senior investigator in 1992, and by 2004 was sole ly managing different investigatory units
within the Bureau. In his performance evaluations between 2000 and 2006, Velasquez consistently received high marks as an investigator; lower marks as an administrator, due to late reports a nd inadequate communication with his supervisors; and an overall rating of "gen erally exceeds the standard" (a "4" on a scale of "1" to "5"). In April 2008, Velasquez testif ied in a deposition for a gender discrimination lawsuit brought against the County by one of hi s coworkers, Tammy Schweitzer (Schweitzer). His testimony re counted incidents of discrimination by Bureau supervisors against himself and ot hers, and was generally critical of the
Bureau. In the summer of 2008, Velasquez received his performance evaluation for 2006 through 2008. For the first time, his overall rating dropped to "meets the standard" ("3" on the scale). In September 2008, the Bureau op ened an internal investigation on Velasquez. Velasquez was at the time s upervising the High Tech Task Force (Task Force). The Task Force used personnel from the Bureau and the Ventura County Sheriff's Department, as well as civilians, to conduct forensic analyses of computers seized by various law enforcement agen cies. When Velasquez's immediate supervisor, Vince Gilliam (Gilliam), asked to see a forensic report for computers seized from the Hells Angels by the Sher iff's department, Velasquez thought the request to be "unethical or improper." Ra ther than clarify the reason for the request with Gilliam or Gilliam's supervisor in the Bureau, Velasque z told one of the Sheriff's department commanders about Gillia m's request. This caused interagency friction, and Velasquez was ultimately gi ven a written reprimand for handling the situation poorly. In October 2008, Velasquez was tr ansferred from the Task Force to3 the government fraud unit as part of a Bu reau-wide reorganization that moved more than half of the Bureau's investigator s. The government fraud unit was usually supervised by newly promoted senior investigators. Velasquez's supervisors gave him inconsistent explanations as to w hy he, a seasoned senior investigator, was reassigned to manage that unit. In December 2008, Velasquez ga ve another coworker, Leslie Robertson (Robertson), a copy of his handwritten notes from a December 2007 personnel meeting among Bur eau supervisors. At that meeting, Robertson was being considered for promotion. The notes identified Michael McKendry (McKendry) as commenting that she was a "loner." Given that Robertson had declined to date McKendry seven years before, Velasquez viewed McKendry's comment as reflecting gender discrimi nation. Roberts on filed a gender discrimination lawsuit against the County soon thereafter. In January 2009, Velasquez su ed the County under the Fair Employment and Housing Act (FEHA) fo r discrimination and harassment on the basis of national origin and ancestry, a nd for not preventing th at discrimination. In July 2009, one of the Bureau's two depu ty chief positions was
about to be vacated. Velas quez had applied, and not been selected, for that position
in 2003 and 2006. Before posting the opening, Bureau management added a new question asking applicants to comment on their "current professional relationship with Bureau management." Because the County had i ssued its written reprimand just two months earlier, Velasquez viewed the new question as signaling that he need not apply for the position. Velasquez did not apply, partly because of that question. In September 2009, the Bureau open ed a second internal investigation of Velasquez for breaching the confiden tiality of the December 2007 personnel meeting by disclosing his notes to Robertson. Before he was interviewed as part of this investigation, his s upervisor—who was the lead investigator—reported in Velasquez's 2009 performance evaluation that Velasquez had improperly disclosed4 that confidential information. During his December 2, 2009, interview for the internal investigation, th e lead investigator refu sed to recuse himself. Feeling that the outcome of the se cond internal investigation was a foregone conclusion and that he would be fired, Velasqu ez informed his supervisors in a December 2, 2009, letter that the investigation was "causing [him] grievous distress and interfering with his ability to do his job." Nine days later, he resigned.
PROCEDURAL HISTORY Three months after he resigned, Velasquez amended his complaint to add claims for (1) retaliation for oppo sing practices forbidden by the FEHA and for filing a FEHA complaint hims elf (Gov. Code, § 12940, subd. (h)) 1 ; and (2) wrongful constructive termination. The County successfully moved for summary adjudication on the national origin and ancestry claims in th e original complain t. Its motion for summary judgment on the retaliation and wr ongful constructive termination claims
was denied. The case proceeded to trial. Th e trial court denied the County's nonsuit motion at the close of Velasqu ez's case-in-chief, and its motion for a
directed verdict at the close of evidence. The ju ry returned verdicts for Velasquez, and awarded $1.356 million in damages. The court further awarded costs of $21,326; expert fees of $8, 800; and attorney's fees of $325,000. The court denied the County's motions for judgment notwithst anding the verdict and for a new trial.
DISCUSSION In evaluating the County 's sufficiency of the evidence challenge, we
review the entire record in the light most favorable to the judgment below, resolving
all conflicts in the evidence and drawing all reasonable inferences to support the verdict. We may not reweigh the ev idence or substitu te our credibility determinations for those made by the jury. ( Steele v. Youthful Offender Parole Bd.

1 Unless otherwise indicated, all statutory references are to the Government Code.5 (2008) 162 Cal.App.4t h 1241, 1251-1252 ( Steele ).) We cannot affirm unless "'. . . there is no substantial evidence to suppor t the verdict and the evidence compels a judgment for [the County] as a matter of law.'" ( McCoy , supra , 216 Cal.App.4th at p. 299, quoting Paykar Constr., Inc. v. Spilat Const. Corp. (2001) 92 Cal.App.4th 488, 493.) "Substantial evidence" is more than a "'mere scintilla.'" ( Pinero v. Specialty Restaurants Corp. (2005) 130 Cal.App.4th 635, 639.)
Retaliation To prove retaliation under FEHA, Velasquez was required to prove that "(1) he . . . engaged in a 'protected activity,'" (2) the County subjected [him] to an adverse employment action, and (3) a ca usal link existed between the protected activity and the [County's] action.' [Citations]" ( Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4t h 1028, 1042 ( Yanowitz ).)
A. Protected Activity The County contends Velasquez's disclosure of confidential information to Robertson was not a "pro tected activity" because Velasquez never informed the County that his reason for disclosing his notes was to oppose discrimination. We disagree. Substantial evidence supports the finding that the County knew Valesquez disclosed his notes to support Robertson's pending gender discrimination
lawsuit because she first mentioned the note s during her deposition in that lawsuit. For these purposes, it does not matter wh ether McKendry's "loner" comment was actionable as long as Vela squez reasonably and in go od faith believed it was. ( Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 474.) Substantial evidence supports that finding here. Additiona lly, Velasquez's deposition testimony in the Schweitzer case and in his own lawsuit are "pro tected activities" that independently satisfy this element.
B. Adverse Employment Action The County asserts that Velasque z was not subjected to "adverse employment action" within the meaning of FEHA. (§ 12940, subd. (h); Yanowitz ,6 supra , 36 Cal.4th at pp. 1050-1051.) The Coun ty argues that none of its actions
were "adverse" on their own or affected Ve lasquez's salary, benefits, rank, level of supervision, pension, peace officer stat us, office space, vacati on or work hours. (See Grube v. Lau Industries, Inc. (7th Cir. 2001) 257 F.3d 723, 729 ["unfair reprimands or negative performance eval uations, unaccompanied by some tangible job consequence, do not constitu te adverse employment actions"]; Malais v. Los Angeles City Fire Dept. (2007) 150 Cal.A pp.4th 350, 358 ["assignment to a less preference position alone [does not] constitute[] an adverse employmen t action"].)
But we do not view individual acts in isolation, and instead assess their "collective impact." ( Wysinger v. Automobile Club of So. Calif. (2007) 157 Cal.App.4th 413, 423.) Moreover, "adverse" actions are not limited to those with immediate impact; it is enough that an employer's actions, in their totality, "are reasonably likely to adversely and materially affect an empl oyee's job performance or opportunity for advancement in his or her career." ( Yanowitz , supra , at p. 1054.) Applying the proper standards, the jury could rationally conclude that the County's course of conduct hurt Vela squez's chances for advancement and thus constituted adverse employme nt action. The finding of misconduct in the first internal investigation was placed in Velasque z's personnel file for at least two years. The jury could reasonably in fer that matters in Velasque z's personnel file would be relevant to future employment decisions; indeed, the question added to the 2009 deputy chief application was specifically designed to root out an applicant's problems with management. Velasque z was also given a lower performance evaluation and he was transferred to a job usually reserved for rookie supervisors. The County contends that two fu rther considerations nevertheless preclude the jury's finding. It argues that the jury should not have considered the lower performance evaluation, the transfer or the new application question because the trial court, when ruling on its summa ry adjudication motion, commented that
these actions were not "adverse." Beca use summary adjudication motions do not adjudicate facts and do not partially adjudicate causes of action (Civ. Proc. Code,7 § 437c, subd. (n); Raghavan v. Boeing Co. (2005) 133 Cal.Ap p.4th 1120, 1125, 1134-1139; Hindin v. Rust (2004) 118 Cal.App.4th 1247 , 1259), the trial court's
comments are not conclusive. The County also asserts that McRae v. Department of
Corrections & Rehabilitation (2006) 142 Cal. App.4th 377, and Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 13 67, dictate dismissal of Velasquez's retaliation claims. They do no t. Comparing different cases is rarely helpful because "[r]etaliation claims are inhe rently fact specific, and the impact of an employer's action in a particular cas e must be evaluated in context." ( Yanowitz , supra , 36 Cal.4th at p. 1052.) McRae and Jones are distinguishable in any event because the plaintiffs in those cases do not prove their employe r's actions had an adverse effect on their employment conditions or opportunities; as described above, Velasquez carried his burden.
C. Causation The County further contends that there is no substantial evidence that
its actions were undertaken with a re taliatory motive because every testifying County decision maker disclaimed any such motive and because the County had legitimate, nonretaliatory r easons for its conduct toward Velasquez. But the jury necessarily found the County's evidence on these issues not to be credible. We cannot gainsay those credibility determinations. ( McCoy , supra , 216 Cal.App.4th at p. 299 ["it is the jury, not the court, that is charged with determining the facts"].) Moreover, substantial evidence supp orts the jury's finding that the County acted with a retalia tory motive. The adverse employment actions started shortly after Velasquez's testimony in the Schweitzer case and the decision makers were aware of his protected activities when they acted. This constitutes a prima facie case of retaliatory motive. ( Yartzoff v. Thomas (9th Cir. 1987) 809 F.2d 1371, 1376.) To satisfy his ultimate burden of proof, Velasquez adduced additional evidence. ( Loggins v. Kaiser Permanente Intern. (2007) 151 Cal.App.4th 1102, 1112.) His supervisors gave multiple and differing reasons for his transfer to the government fraud unit. There was also ev idence that other Bureau employees had8 disclosed information from prior personnel meetings without being investigated or disciplined. Many of the adverse acti ons occurred while upper management considered Velasquez to be a "malcontent. " Differing managerial explanations for an employment action and disparate treatm ent of similarly situated employees both
constitute circumstantial evidence of an employer's intent to retaliate. ( Rudin v. Lincoln Land Community College (7th Cir. 2005) 420 F.3d 712, 723-724; Colarossi v. Coty US, Inc. (2002) 97 Cal.App.4th 1142, 1153; cf. King v. United Parcel Service, Inc. (2007) 152 Cal.App. 4th 426, 433 [plaintiff's personal belief of retaliatory motive not enough to prove retaliatory motive]; Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1226- 1229 [employer's termination of plaintiff for falsely filing sexual hara ssment claim not sufficient proof of retaliation].) Wrongful Constructive Termination A wrongful constructive termination claim requires proof that (1) the employer retaliated against the plaintiff-emp loyee for "exercising a statutory right or privilege," (2) the retaliation created "wor king conditions that were so intolerable or aggravated" that a reasonable pers on in the employee' s position would be compelled to resign (and that compelle d the plaintiff-employee to resign), and (3) the employer deliberately created the "intolerable or aggravated" working conditions or knowingly perm itted them to persist. ( Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 12 49, 1251-1252, 1256; Gibson v. ARO Corp. (1995) 32 Cal.App.4th 1628, 1638, 1640 .) Beyond disputing that it did not retaliate, the County contends there was insufficient evidence of the last two elements. The County contends that the tota lity of its actions would not have compelled a reasonable person to resign. It notes that Velasquez himself waited nearly 18 months after the first perform ance evaluation before resigning. Because Velasquez had previously announced his intent to retire in January 2010, the County argues that his resignation in D ecember 2009 was strategic. The County further asserts that it did not deliberately create any intolerable working conditions9 or know that Velasquez found his wo rking conditions to be intolerable. We reject these arguments. Proc edurally, the County requested and obtained a general verdict on damages. Becau se we are affirming the jury's verdict on the retaliation claim and the County do es not argue that there are different damages for each claim, the retaliation clai m independently supports the damages in this case. (See Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1157.) Additionally, a rational jury could have accepted Velasquez's argument that the timing and es calation of the County's acts reasonably lead him to
believe he was about to be fired. In the months immediately prior to his resignation, the Bureau opened its second in ternal investigation for conduct that other employees had committed without investigation or sanction. In the weeks immediately prior to his resignation, Ve lasquez received his 2009 performance evaluation from the same supervisor who wa s overseeing that investigation. The evaluation reported that Velasquez ha d engaged in the very misconduct the supervisor was still investigating. Just days before Velasquez resigned, the investigator refused to recuse himself. In light of the prior written reprimand and the likelihood he would receive a greater sanction for a second vi olation of Bureau policy, the jury could reasonably conclude , as Velasquez put it, that the hammer
could come down on the la st "nail in the coffin" any day. That Velasquez previously discussed a possible retiremen t date does not negate these working conditions; it also does not provide an alte rnative reason for his departure because Velasquez did not start contempla ting a fixed retirement date until after he received the 2008 performance evaluation and the se ries of adverse employment actions had begun. Velasquez also presented evidence that he had alerted the County that he found his working conditio ns to be intolerable: He mentioned a possible retaliatory motive for his 2 008 overall rating in his appeal of that performance review; he told his supervisor he felt "ost racized" in November 2009; and he sent a letter indicating he was in "grievous distress" right after his December 2009 internal10 investigation interview. In sum, substantial evidence supports the wrongful constructive
termination verdict.
DISPOSITION The judgment is affirmed. Costs on appeal are awarded to Velasquez.
NOT TO BE PUBLISHED.

HOFFSTADT, J. *

We concur:

GILBERT, P. J.

YEGAN, J.

* (Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice pursuant to art. 6, § 6 of the Cal. Const.)Denise de Bellefeuille, Judge
Superior Court County of Santa Barbara

________________ ______________

Office of County Counsel, Michael D. Schwartz, Special Assistant County Counsel, Wisotsky, Procter & Shyer, Alan E. Wisotsky for Defe ndant and Appellant. Pine & Pine, Norman Pine, Beverl y Tillett Pine, Janet R. Gusdorff, Law Offices of Mark Pachowicz, Mark R. Pachow icz, Law Offices of Maury Mills and Maury Mills for Plaintiff and Respondent.