KITCHING, J.
Defendant City of Los Angeles (the City) appeals a judgment in favor of plaintiffs Mario Patrick, David Bomer and Dennis Wildy. The essential issue on appeal is whether there is substantial evidence supporting the trial court's determination that race was a motivating reason contributing to the decision by the City to not promote Patrick, Bomer and Wildy to certain positions in the Office of Public Safety of the Department of General Services (DGS). We hold that substantial evidence supports the trial court's factual findings, and thus affirm the judgment.
This is an employment discrimination case. There were eight plaintiffs: Patrick, Bomer, Wildy, Harold Phillips, Victor Dial, Charlotte A. Hagos, Joseph E. Barrett, and Donald A. Taylor. The latter five plaintiffs are not parties to this appeal. All of the plaintiffs worked for the Office of Public Safety, a division of the DGS. The division provides security and law enforcement for City municipal facilities, including parks, the convention center, libraries and the zoo.
In their complaint, plaintiffs set forth two causes of action. The first was for race and sex discrimination in violation of the Fair Employment and Housing Act, Government Code section 12900 et seq. (the FEHA). All eight plaintiffs, who are African-American, alleged race discrimination. Plaintiff Hagos, a woman, also alleged gender discrimination.
The second cause of action was for retaliation in violation of the FEHA. This cause of action was asserted by Bomer, Dial, Barrett and Wildy.
The complaint named the City, DGS and the DGS Chief Gary Newton as defendants. Prior to trial, however, Newton and DGS were dismissed, and the case proceeded against the City alone.
The matter came on for a bench trial on April 21, 2009. Approximately 26 witnesses testified over a period of 18 days. The court also received into evidence numerous exhibits, consisting of hundreds of pages. The testimony and written evidence supported the following facts.
In 1990, at the age of 19, Patrick was hired by the Los Angeles Airport Police Department as a civilian traffic security officer. Over the next 12 years he received a series of promotions and underwent extensive training in law enforcement. In August 2002, he was hired as a lieutenant in the DGS.
Newton became Chief of DGS in about November 2002. Shortly after arriving at DGS, Newton asked Patrick to give him his resume. After Patrick did so, Newton told Patrick that he had "quite a bit of experience" and that he would "go far."
Initially, Patrick did not believe that Newton was a racist or that he had negative views of African-Americans. Over time, however, Patrick changed his mind. According to Patrick, Newton did not feel "comfortable" around African-Americans, and was "uneasy" and "nervous" around them. By contrast, Newton seemed "generally at ease" and "comfortable" around non-black employees. Newton regularly went to lunch with non-African-American DGS officers, but did not go to lunch with Patrick and very rarely went to lunch with African-American employees. Further, Patrick was concerned that during the first three years that he was a lieutenant at DGS, there were no African-Americans promoted to the administration part of DGS, which was essentially the command staff.
In the Spring of 2005, the DGS announced openings for two captain positions. Patrick applied for the job and went through the civil service process. This process involves each candidate taking a written test and being interviewed by a panel consisting of law enforcement officials not associated with the DGS. A certified list is then produced of all the candidates who passed the test and interview, along with a score for each candidate.
Patrick received a score of 86, which was the second highest score on the list. The highest score was obtained by Lieutenant Gerry Perez, who received a 93. The lowest score was obtained by senior lead officer (SLO) Richard Musquiz, who received a 72. A score of 70 was needed to pass.
The next step in the process was an interview by Chief Newton and his superior Tony Royster. At Patrick's interview, Newton was "very cold" and "distant" and took very few notes. Both Perez and Musquiz received an average rating of "good" by Newton and Royster, while Patrick only received a "satisfactory" rating. Perez and Musquiz were hired as captains; Patrick was not. Perez and Musquiz are not African-Americans.
When Lieutenant Patrick asked Newton why Musquiz was offered the captain position over Patrick, Newton had a "deer in the headlights" look, and replied that Musquiz was more "experienced." Prior to his appointment as captain, Musquiz was a SLO in the DGS, which is a position below lieutenant and sergeant, and three levels below captain.
In 1995, Bomer was hired as a patrol officer for the DGS. Bomer was promoted to field training officer and then to temporary sergeant. In December 2002, shortly after Newton became chief, Bomer was promoted to a permanent sergeant position. At approximately the same time, plaintiff Wildy and Raymond Ingal were promoted to sergeant. Ingal is Filipino.
Shortly after Bomer, Wildy and Ingal became sergeants Newton called the three men to a meeting. This was the first time Newton had a meeting with Bomer and Wildy. At the meeting Newton and Ingal were sitting side by side at one end of a desk, and Bomer and Wildy were sitting next to each other at the other end. After Newton introduced himself, he told Bomer and Wildy that he had "no problem" firing them while they were on probation. When he said this Newton was looking at Bomer and Wildy but was not looking at Ingal.
Like Patrick, at first Bomer did not believe Newton had negative views toward African-Americans. But Bomer changed his mind over time. According to Bomer, Newton was "uneasy" and "uncomfortable" around him. Further, Bomer was concerned about African-Americans not getting promotions and not being appointed to administrative positions.
In 2005, Bomer sent an email to Newton asking for training in the area of administration. Up until this point, Newton had not promoted any African-Americans into any of the administrative departments. Bomer, however, was not given the training he requested.
In 2005, Bomer asked Captain Gerry Perez why there were no African-Americans in the administration. Perez said that he would "look into it." Later, Perez advised Bomer that an administrative sergeant's position would be announced shortly. When the position of Officer in Charge (OIC) of Administration was announced, Bomer applied. In 2006, he obtained the job.
The same week Bomer was promoted to the OIC position, the division was consolidated with another division, which increased the number of personnel from approximately 100 to over 300. In light of the increased workload, Bomer requested one or two assistants, but he was not provided with any. He also requested administrative training. The only training he received, however, was on budgeting. He did not receive training on internal affairs and background investigations. In about June 2006, Bomer was fired from the OIC position and returned to being a field sergeant.
In approximately July 2006, Ingal took Bomer's place in administration. Ingal had received training in internal affairs and background investigations. At Ingal's request, an additional background investigator was assigned to assist him.
Subsequently, the DGS announced that two permanent lieutenant positions were opened. Only Bomer and Sergeant Alice Jackson interviewed for the position. Both Bomer and Jackson, who are African-American, were placed on a certified list after taking a written exam and being interviewed by non-DGS interviewers. Bonner received a score of 86; Jackson received a score of 79.
Chief Newton, Captain Musquiz and a third person then interviewed Bomer and Jackson. According to Bomer, during the interview Newton seemed distracted and uninterested, and was rolling his eyes at the ceiling. Jackson, too, testified that Newton displayed the same uninterested demeanor in her two interviews with him. Bomer received an average rating of satisfactory and Jackson received an average rating of unsatisfactory.
Neither Bomer nor Jackson was hired as a permanent lieutenant. Instead, Newton created a temporary "acting" lieutenant position, and then hired Yin Wong, a non-African-American, to serve at that post. Wong was a SLO who was not eligible to take the exam for a permanent lieutenant position. When Bomer asked Newton why he was not promoted to lieutenant, Newton stated that Bomer did not interview well enough for a $100,000-a-year job.
In 1996, Wildy was hired as a security officer by the DGS. He was then promoted several times and, in December 2002, he became a sergeant.
As described ante, shortly after Wildy, Bomer and Ingal were promoted to sergeant, they were called to a meeting by Newton. While looking at Wildy and Bomer but not at Ingal, Newton said that he had no problem firing them while they were on probation.
At one point Wildy learned that Newton jogged with a group of DGS employees, including Lieutenant Perez, on a daily basis in the area of Elysian Park. In order to get to know Newton better, Wildy asked if he could join the group. According to Wildy, Newton was very "stand offish." Wildy did not join the group.
Subsequently, in 2005, Wildy and others applied for a lieutenant position. Wildy went through the initial civil service process and was placed on a certified list. Wildy's score was 81. Raymond Ingal's score was 78, which was the lowest on the list of seven applicants.
Wildy and the other people on the list were then interviewed by Newton and Royster. During the interview Newton appeared to be uninterested in what Wildy was saying, and had difficulty making eye contact with him. Wildy received a "satisfactory" score for his interview. Ingal received a "good" score. Ingal got the job.
After Ingal's promotion to lieutenant, Wildy told Newton that he and others were unhappy that African-Americans appeared to be passed over for promotions within the DGS. When Newton heard this he was "uncomfortable" and "jittery." Newton then responded curtly that he promoted based on merit. He did not ask Wildy any questions or ask for any clarification of Wildy's complaint.
In the Summer of 2005, Patrick sent an anonymous complaint regarding race discrimination at the DGS to the members of the City Council. This document, known as the "blue book," consisted of 16 pages, single-spaced, and 17 exhibits. It provided detailed allegations of race discrimination in the DGS. Although Patrick was the primary author of the document, several African-American DGS employees contributed to its creation.
In July 2006, Newton circulated an email to DGS employees. The email purportedly was meant as a joke. It consisted of an obviously fabricated high school math exam. Many of the questions included names commonly associated with African-Americans. These individuals were portrayed in a negative and stereotypical manner. For example, one question stated: "Tyrone knocked up 3 girls in the gang. There are 27 girls in his gang. [¶] What is the exact percentage of girls Tyrone knocked up?" Another question stated: "LaSheena is a lookout for the gang. LaSheena also has a Boa Constrictor that eats 3 small rats per week at a cost of $5 per rat. [¶] If [¶] LaSheena makes $700 [per] week as a lookout, how many weeks can she feed the Boa on one week's income." A third question stated: "Rufus pimps 3 ho's. If the price is $85 per trick, how many tricks per day must each ho turn to support Ruffus's $800 per day crack habit?"
In late 2004, plaintiff Victor Dial filed a complaint against the City with the Equal Opportunity Employment Commission (EEOC) alleging race discrimination by the DGS.
In about September 2005—shortly after the blue book was circulated and the EEOC responded to Dial's complaint—Kevin Montgomery, an African-American, was promoted to the position of lieutenant at DGS. Newton decided to promote Montgomery despite giving him an "unsatisfactory" rating for his July 2005 interview.
The City's main witness was Chief Gary Newton. Newton repeatedly testified that race played no role in his personnel decisions.
Newton claimed that he never heard of any concerns by Bomer, Dial, or Wildy about race discrimination, and that he never received Dial's EEOC complaint. He also denied that Perez advised him of Bomer's complaint about discrimination.
Newton admitted that he received a copy of the blue book, and claimed that it came as a "complete surprise" to him. Although Newton read the document from cover to cover, he did not take the matter to the highest ranking African-American officer, Lieutenant Montgomery, or interview other black officers regarding the matter. When asked by the court why he did not do so, Newton answered: "I suppose I didn't feel it necessary."
Newton was also asked questions regarding the July 2006 email he sent to DGS staff about a fictitious high school math exam. He stated that he now realizes that the email was "inappropriate" because it was sent via the City computer. Newton did not testify that the he believed the email was racially insensitive.
On June 23, 2009, the trial court issued a 17-page statement of decision. The trial court found in favor of the City and against Phillips, Dial, Hagos, Barrett and Taylor on all causes of action. It also found against Bomer on his retaliation cause of action. The court, however, ruled in favor of Patrick, Bomer and Wildy on their race discrimination claims. Patrick was awarded $607,148 in damages. Bomer was awarded $290,326 in damages. Wildy was awarded $391,118 in damages.
On July 9, 2009, the trial court entered judgment in accordance with its statement of decision. This appeal followed.
The City's sole contention on appeal is that the judgment is not supported by substantial evidence. Specifically, the City argues that there is no substantial evidence to support the trial court's finding that race was a motivating reason for the City's decision to not promote Patrick, Bomer and Wildy.
It is the City's burden to show that the trial court committed reversible error. "`A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).) " `When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.'" (Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138, 143.)
"We may not reweigh the evidence and are bound by the trial court's credibility determinations. [Citations.] Moreover, findings of fact are liberally construed to support the judgment." (Estate of Young (2008) 160 Cal.App.4th 62, 76.)
"FEHA makes it unlawful to take adverse action toward an employee `because of' his or her membership in a protected classification." (McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 979 (McCaskey); Gov. Code, § 12940, subd. (a).) "A claim asserting a violation of this provision is a `disparate treatment' claim." (McCaskey, at p. 979.) The elements of a disparate treatment claim are "`(1) the employee's membership in a classification protected by the statute; (2) discriminatory animus on the part of the employer toward members of that classification; (3) an action by the employer adverse to the employee's interests; (4) a causal link between the discriminatory animus and the adverse action; (5) damage to the employee; and (6) a causal link between the adverse action and the damage.'" (Ibid.)
The City does not make any arguments with respect to elements one, three, five or six. It only contends that there was insufficient evidence to support elements two and four. To satisfy these elements, respondents Patrick, Bomer and Wildy were required to prove that race was a motivating reason for the City's decision to not promote them. (CACI No. 2500 (2011).)
At the trial, the plaintiff has the initial burden to establish a prima facie case of discrimination. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) To establish a prima facie case, the plaintiff must provide evidence that "(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action such, as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive." (Id. at p. 355.) If the plaintiff establishes a prima facie case, "a presumption of discrimination arises." (Ibid.). This presumption can be rebutted by producing sufficient evidence of a legitimate nondiscriminatory reason for the adverse employment action. (Id. at pp. 355-356.) "If the employer sustains this burden, the presumption of discrimination disappears. [Citations.] The plaintiff must then have the opportunity to attack the employer's proferred reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. . . . The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff." (Id. at p. 356.)
Here, the trial court found that Patrick, Bomer and Wildy met their burden of proof but did not expressly indicate whether the City produced sufficient evidence of legitimate, non-discriminatory reasons for its decisions to not promote these plaintiffs. We must infer that the trial court found either (1) that the City did not produce evidence of legitimate reasons for their denial of the promotions or (2) that the City produced such evidence but Patrick, Bomer and Wildy met their burden of showing that the City's proferred reasons were merely pretextual. (Denham, supra, 2 Cal.3d at p. 564.) In either case, on appeal the issue is whether there was substantial evidence supporting the trial court's finding that race was a motivating reason to not promote Patrick, Bomer and Wildy.
The trial court's statement of decision was detailed, organized and thorough. Its factual findings were supported by the record. Its analysis was sound and reasonable. We shall quote the statement of decision at length because it sets forth a detailed description of the substantial evidence that supports the court's ultimate finding that race was a motivating reason in the City's adverse employment actions towards Patrick, Bomer and Wildy.
In the beginning of its statement of decision, the trial court stated: "The Court has considered the evidence presented individually as to each plaintiff. Discrimination is a claim easily made, hard to prove, but profound in its consequences. The evaluation of the case turns not on any `smoking gun,' but upon an evaluation of the credibility of all witnesses and review of the hundreds of exhibit pages.
"The Court is also mindful that it does not sit as a personnel office judging management skills or management responsibilities of the Defendant. . . . The determination here is whether each plaintiff has met their burden of proof. Neither does the Court, in a case like this, sit in determination of who is the best qualified candidate or whether there were appropriate procedures followed. The Court's determination here is whether race was a motivating reason contributing to the decision to promote or not, even though other reasons may also have contributed to the decision."
The trial court further stated: "As the Court explained at the conclusion of closing arguments, what was most telling in this case was the testimony of Chief Newton. The Court, as indicated earlier, did have issues with his credibility. He did not comport himself well on a number of issues. One example was his testimony regarding Bomer's termination. Additionally, and most telling, was the way he handled the extensively discussed `email issue.' He was pretty much in denial that the email had anything to do with race. The email in comparison to emails of a similar nature was not completely damning. However, it was racially insensitive. In the end, it was not that he sent the email; it was his reaction when confronted both in court and when inquiries were made by the City, which were most meaningful to the Court in its determination.
"The Court also took into consideration the way that the City handled this entire affair. . . . As the Court noted during trial, the Court was dumbfounded by the fact that not one single African-American officer was contacted about the [blue book]."
The first issue the trial court addressed in its statement of decision was whether plaintiff Mario Patrick met his burden of proof that race was a motivating reason for the City's decision to not promote him to captain. The court found race was a motivating reason based on, inter alia, the following:
The City argues that the record includes no evidence that Newton harbored discriminatory animus toward African-Americans or that Patrick's race was a motivating reason to not promote him to captain. This argument is primarily based on the testimony of Newton himself. The trial court, however, found Newton was not credible in many respects. The court was free to reject some or all of Newton's testimony. It was also free to find that Newton was lying when he said that race was not a motivating factor in his personnel decisions. As stated ante, we cannot second guess the trial court's credibility determinations.
Moreover, there were facts in the record from which a reasonable trier of fact could infer showed Newton's racial bias. According to Patrick, Bomer and Wildy, Newton showed signs of physical uneasiness when in the presence of African-Americans. Bomer and Wildy also testified about how Newton treated them differently than a non-African-American sergeant in his initial meeting with them. Further, Newton was the author of a racially insensitive email and, as the trial court noted, did not seem to recognize his insensitivity at trial. Newton also failed to investigate the serious allegations of race discrimination in the blue book. All of these facts, together with other incidents described herein, support a reasonable inference that Newton harbored discriminatory animus toward African-Americans.
The City attempts to attack each item of evidence showing discriminatory animus separately, without considering the totality of evidence. For example, the City dismisses Newton's racially insensitive email as a "stray remark."
In Reid v. Google, Inc. (2010) 50 Cal.4th 512 (Reid ), our Supreme Court discussed the so-called stray remark doctrine at length. Under this doctrine, developed in the federal courts, discriminatory remarks made by co-workers and nondecisionmakers, or comments unrelated to the employment decision, are inadmissible for purposes of federal anti-discrimination statutes. (Id. at p. 537.) In Reid, the court rejected the stray remarks doctrine for purposes of a motion for summary judgment relating to a FEHA claim. (Id. at pp. 538-545). In so doing, the court stated: "Although stray remarks may not have strong probative value when viewed in isolation, they may corroborate direct evidence of discrimination or gain significance in conjunction with other circumstantial evidence. Certainly, who made the comments, when they were made in relation to the adverse employment decision, and in what context they were made are all factors that should be considered." (Id. at p. 541.)
Here, the offensive email was sent by Newton, the decision maker, in the same time frame as the adverse employment actions. While the email does not by itself have strong probative value when viewed in isolation, it has increased significance in light of the other circumstantial evidence of race discrimination.
Viewing the evidence in a light most favorable to the judgment, as we must, each of the trial court's 22 factual findings and determinations is supported by the record. From these findings a reasonable trier of fact could have determined that race indeed played a role in the City's decision to not promote Patrick to captain. This constitutes substantial evidence supporting the judgment in favor of Patrick.
With respect to Bomer, the trial court found that race was a motivating reason for the City's decision to not promote him to lieutenant based on, inter alia, the following:
These findings, if true, support the reasonable inference that race was a motivating reason not to promote Bomer to lieutenant. Two of the findings are of particular importance. The first is that Newton was a primary decision maker in determining whether Bomer was promoted. As stated, ante, substantial evidence supports a finding that Newton harbored racial animus towards African-Americans. Second, Newton decided to leave two permanent lieutenant positions vacant rather than hire Bomer or Jackson, qualified African-Americans officers and the only two candidates for the positions. The evidence supporting these findings and the other findings in the trial court's statement of decision constitute substantial evidence supporting the trial court's judgment in favor of Bomer.
In its statement of decision, the trial court opined that while Wildy's case was "closer" than Patrick and Bomer's cases, Wildy nonetheless met his burden of proof that race was a motivating factor not to promote Wildy to lieutenant. The court reached this decision based on, inter alia, the matters stated above, as well as the following:
We too find Wildy's case a closer call. Nonetheless, there is substantial evidence supporting the trial court's finding that race was a motivating reason to not promote Wildy.
The judgment is affirmed. Respondents are awarded costs on appeal.
We concur:
KLEIN, P. J.
CROSKEY, J.
