Filed 7/22/13 Mounts v. Cal. Dept. of .Corrections and Rehabilitation CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and 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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

PHILIP ANDREW MOUNTS,

Plaintiff and Appellant,

v.

CALIFORNIA DEPARTMENT OF 

CORRECTIONS AND REHABILITATION,

Defendant and Respondent.

F064225

(Super. Ct. No. 08CECG01820)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Alan M. 

Simpson, Judge.

Wild, Carter & Tipton, Russell G. VanRozeboom and Monrae L. English for 

Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Alicia M. B. Fowler, Assistant Attorney 

General, Scott H. Wyckoff and Connie A. Broussard, Deputy Attorneys General, for 

Defendant and Respondent.

-ooOoo-
2.

Appellant Philip Andrew Mounts, a Caucasian parole agent, filed a complaint 

against his employer, respondent California Department of Corrections and 

Rehabilitation (Department), claiming he was discriminated against because of his race 

when he was not selected for a promotion. Ronnie Sims, an African-American parole 

agent, was given the position. 

The jury decided the case on a special verdict. The jury found appellant’s race 

was a motivating reason for the Department’s decision not to promote appellant. 

However, the jury also found that there were legitimate reasons, unrelated to appellant’s 

race, for the Department’s decision and that the Department would have decided not to 

promote appellant based solely on the legitimate reasons. Accordingly, judgment was 

entered in the Department’s favor.

Appellant contends the judgment must be reversed because the jury was asked to 

decide whether the Department’s decision not to promote appellant was justified by 

legitimate reasons without being properly instructed on this “mixed motive” defense. 

As recently explained by the California Supreme Court in Harris v. City of Santa 

Monica (2013) 56 Cal.4th 203 (Harris), when a plaintiff has shown by a preponderance 

of the evidence that discrimination was a substantial factor motivating the adverse 

employment action, the plaintiff nevertheless cannot be awarded damages if the employer 

proves by a preponderance of the evidence that, in the absence of any discrimination, the 

employer “would have made the same decision at the time it made its actual decision.” 

(Id. at pp. 224, 241.) In other words, an employer cannot show it would have made the 

same decision “‘by offering a legitimate and sufficient reason for its decision if that 

reason did not motivate it at the time of the decision.’” (Id. at p. 224.) 

Here, the jury was instructed that appellant was required to prove that: his race 

was a motivating reason for the failure to promote; he was harmed; and the failure to 

promote was a substantial factor in causing his harm. However, the jury was not 

instructed that the Department had the burden to prove, by a preponderance of the 
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evidence, that any legitimate reason for not promoting appellant motivated that decision 

at the time it was actually made. Nevertheless, the special verdict form asked the jury 

whether there were legitimate reasons for the Department’s decision and whether the 

Department would have decided not to promote appellant based solely on the legitimate 

reasons. Negative evidence supporting the Department’s decision was admitted although 

the decisionmaker was not aware of that evidence when the promotion was awarded. In 

light of this evidence and the absence of the mixed motive defense instruction, it is 

reasonably probable that the jury was misled. Accordingly, the judgment will be 

reversed. 

BACKGROUND

Appellant, a “Parole Agent I,” applied for an open position in “Unit 1” of the 

Fresno Adult Parole Office (Unit 1), a division of the Department. The person given this 

position would be promoted to “Parole Agent II” (PA II). 

The interviews for this position were conducted by a panel consisting of Christine 

Diesslin, the Unit 1 supervisor, and Diesslin’s supervisor, Evelyn Lara-Lowe, the central 

district administrator. Diesslin and Lara-Lowe created a list of questions specific to the 

position. Each candidate interviewed was asked to verbally respond to these questions 

and their responses were scored. 

Thereafter, Diesslin and Lara-Lowe conferred and selected the top three 

candidates based on their responses to the questions, their applications, and the 

recommendations of the candidates’ current supervisors. Lara-Lowe and Diesslin agreed 

that their order of preference was John Hagler, a Caucasian parole agent, Sims and 

appellant. 

Lara-Lowe then prepared a memorandum listing the top three candidates in 

alphabetical order. This memorandum included information on each candidate’s 

experience and education. However, it did not rank the candidates or make any 

recommendations regarding the promotion. 
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This memorandum was routed to Judith Harris, a deputy regional administrator. 

After receiving the memorandum, Harris called Lara-Lowe to discuss the candidates. 

Harris testified that Lara-Lowe told her that she and Diesslin wanted either Hagler or 

Sims. Hagler was preferred because of his computer skills. According to Harris, LaraLowe did not want appellant. 

The hiring package, including the memorandum, was then sent to Richard 

Burrows, the acting regional parole administrator. Burrows, the only Department 

employee with the authority to promote a parole agent, selected Sims for the PA II 

position. 

In making his decision, Burrows reviewed the hiring package and then met with 

Harris to discuss the candidates. Based on the hiring package, it appeared to Burrows 

that all of the candidates were good workers and were highly thought of by their 

supervisors. Burrows recalled Harris telling him that the interview panel had 

recommended Sims first and Hagler second and that Harris agreed with the panel. 

Burrows then focused on comparing Sims and Hagler. Burrows preferred Sims because 

Sims had a Bachelor’s degree in criminology and Hagler had only a two-year degree. 

Appellant also had a Bachelor’s degree. However, appellant’s degree was in business 

and Burrows felt that criminology was a more “pertinent” degree for a parole agent’s job. 

Before he selected Sims for the promotion, Burrows learned that Sims was 

African-American. Burrows explained that the race of the applicant is considered in the 

decisionmaking process and that the Department attempts to have balance, including 

racial balance, in the workforce. 

Appellant filed the underlying complaint alleging that the Department violated the 

Fair Employment and Housing Act (FEHA) when it failed to promote him because of his 

race. (Gov. Code, § 12940, subd. (a).) The case was tried before a jury.

The jury was instructed according to California Civil Jury Instruction (CACI) No. 

2500 that appellant had to prove his “race was a motivating reason for the failure to 
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promote.” “Motivating reason” was defined as “a reason that contributed to the decision 

to take certain action, even though other reasons also may have contributed to the 

decision.” 

The Department requested that the jury be instructed with BAJI No. 12.26 

pertaining to a “mixed motive” defense as follows: 

“If you find that the employer’s action, which is the subject of 

plaintiff’s claim, was actually motivated by both discriminatory and nondiscriminatory reasons, the employer is not liable if it can establish by a 

preponderance of the evidence that its legitimate reason, standing alone, 

would have induced it to make the same decision.

“An employer may not, however, prevail in a mixed-motives case by 

offering a legitimate and sufficient reason for its decision if that reason did 

not motivate it at the time of the decision. Neither may an employer meet 

its burden by merely showing that at the time of the decision it was 

motivated only in part by a legitimate reason. The essential premise of this 

defense is that a legitimate reason was present, and standing alone, would 

have induced the employer to make the same decision.” 

The trial court refused to give this instruction.

Nevertheless, over appellant’s objection, the jury was given a special verdict form 

that included questions regarding a mixed motive defense. The special verdict form not 

only asked if appellant’s race was a motivating reason for the Department’s decision not 

to promote him to PA II, but also asked: “Were there any legitimate reasons, unrelated to 

[appellant’s] race for the [Department’s] decision not to promote [appellant] to Parole 

Agent II?” and “Would the [Department] have decided not to promote [appellant] ... 

based solely on the legitimate reason(s)?” 

The jury found appellant’s race was a motivating reason for the Department’s 

decision. However, the jury also found that there were legitimate reasons for the decision 

and that the Department would have decided not to promote appellant based solely on 

those legitimate reasons. Accordingly, judgment was entered in the Department’s favor.
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DISCUSSION

After this case was tried, the California Supreme Court clarified the law on the 

mixed motive defense to an employment discrimination claim. (Harris, supra, 56 Cal.4th 

203.) In Harris, a bus driver alleged she was fired by her employer because of her 

pregnancy in violation of FEHA. The employer claimed the employee had been fired for 

poor job performance. The employer requested the court to instruct the jury with BAJI 

No. 12.26, i.e., if the jury found a mix of discriminatory and legitimate motives, the 

employer could avoid liability by proving that a legitimate motive alone would have led it 

to make the same decision. The trial court refused and the jury returned a substantial 

verdict for the employee. (Id. at p. 211.)

The Harris court held that the refusal to give the mixed motive instruction was 

prejudicial error. The court explained that, when a plaintiff has shown by a 

preponderance of the evidence that discrimination was a substantial factor motivating the 

adverse employment action, the employer is entitled to demonstrate that legitimate, 

nondiscriminatory reasons would have led it to make the same decision at the time. 

(Harris, supra, 56 Cal.4th at p. 241.) 

To meet its burden, the employer must prove by a preponderance of the evidence 

that, in the absence of any discrimination, it “would have made the same decision at the 

time it made its actual decision.” (Harris, supra, 56 Cal.4th at pp. 224, 239.) Proof that 

the same decision would have been justified is not the same as proof that the same 

decision would have been made. In other words, the “employer cannot make a samedecision showing ‘by offering a legitimate and sufficient reason for its decision if that 

reason did not motivate it at the time of the decision.’” (Id. at p. 224.) 

However, even if the employer makes a same-decision showing, such showing is 

not a complete defense to liability if the plaintiff proves that unlawful discrimination was 

“a substantial factor motivating the adverse employment action.” (Harris, supra, 56 

Cal.4th at p. 225.) While the plaintiff is not entitled to damages, back pay or an order of 
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reinstatement for the discrimination in a same showing case, a court may grant 

declaratory or injunctive relief where appropriate to stop discriminatory practices. (Id. at 

p. 234.) Further, the court may award the plaintiff reasonable attorney fees and costs. 

This way, the plaintiff and his or her counsel are compensated for bringing a meritorious 

claim of unlawful discrimination. (Id. at p. 235.)

Here, the trial court erred when it refused to give the mixed motive jury instruction 

requested by the Department. If appellant, rather than the Department, had prevailed at 

trial, this error would have been prejudicial. 

The problem in this case is that, while the jury was not instructed on the mixed

motive defense, the special verdict form asked the jury to make mixed motive defense 

findings. The jury reached its verdict in favor of the Department by finding that there 

were legitimate reasons, unrelated to appellant’s race, for the Department’s decision and 

that the Department would have made this decision based solely on the legitimate 

reasons. However, the jury was not instructed on, and was not asked to make a finding 

regarding, whether the legitimate reasons actually motivated Burrows to make the 

decision at the time the decision was made. Thus, the verdict was based on incomplete 

findings. Additionally, the jury was not instructed that the Department had the burden of 

proving this defense. Accordingly, the trial court erred when it included the mixed 

motive questions in the special verdict form without the jury having been properly 

instructed on the mixed motive defense.

The next issue is whether this instructional error was prejudicial to appellant. In 

making this decision, the appellate court “‘must examine the evidence, the arguments, 

and other factors to determine whether it is reasonably probable that instructions 

allowing application of an erroneous theory actually misled the jury.’ [Citation.] A 

‘reasonable probability’ in this context ‘does not mean more likely than not, but merely a 

reasonable chance, more than an abstract possibility.’” (Kinsman v. Unocal Corp. 

(2005) 37 Cal.4th 659, 682.) 
8.

Here, the promotion decision was made by Burrows alone. At the time Burrows 

made this decision, the information available to him was limited. Burrows did not know 

any of the candidates personally. Burrows had the interview panel memorandum listing 

the candidates alphabetically, the candidates’ applications, and Harris’s verbal 

recommendation. Harris’s recommendation was based on her discussion with Lara-Lowe 

and was limited to the interview panel’s preference for Hagler and Sims. Burrows did 

not personally communicate with either one of the interview panel members.

However, negative evidence, unknown to Burrows, was admitted against appellant 

at trial. Diesslin, appellant’s supervisor, testified regarding several instances where 

appellant was rude and argumentative or lost his temper. None of these instances were 

officially recorded. Further, a citizen’s complaint filed against appellant in 2006 was 

admitted. In this complaint, two members of a parolee’s family alleged that appellant 

was disrespectful and rude. Again, all of this evidence was unknown to Burrows at the 

time he made his decision.

The jury found that race was a motivating reason for the Department’s decision 

not to promote appellant but that the same decision would have been made based solely 

on legitimate reasons. The negative evidence described above provides support for the 

jury’s same decision finding. However, the jury was not instructed that the legitimate 

and sufficient reasons offered by the employer had to motivate the employer at the time 

the decision was made, not simply provide later justification. Because Burrows was 

unaware of this negative evidence when he made the promotion decision, there is a 

reasonable chance that the jury was misled. Consequently, we reverse the judgment and 

remand for a new trial.1

 

1 Appellant has requested this court to direct the trial court on remand to instruct the 

jury that the Department discriminated against appellant based on race and that the 

remaining issues to be decided are limited to causation and damages. However, while the 

jury found that race was a “motivating reason” for the Department’s decision, under 
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DISPOSITION

The judgment is reversed. Costs on appeal are awarded to appellant.

_____________________

LEVY, J.

WE CONCUR:

_____________________

WISEMAN, Acting P.J.

_____________________

KANE, J.

 

Harris, the jury must determine “whether discrimination was ‘a substantial motivating 

factor/reason.’” (Harris, supra, 56 Cal.4th at p. 232.) Since the discrimination finding 

was incomplete, this is not an appropriate case for a limited remand.