A court of appeal was faced recently with the question of whether an employer may discipline an employee after it concludes the employee’s sexual harassment charge was fabricated. The court concluded that, under appropriate circumstances, an employer may terminate or discipline an employee who made false charges even if those charges were the subject of a sexual harassment allegation. (Joaquin v. City of Los Angeles, (— Cal.Rptr.3d —-, Cal.App. 2 Dist., January 23, 2012)).
Facts
Richard Joaquin (“Joaquin”), a police officer employed by the Los Angeles Police Department (“LAPD”), worked as a motor officer in the Central Traffic Division (“CTD”). Sergeant James Sands (“Sands”) was also assigned to CTD. On January 7, 2005, Sands was the watch commander. At approximately 4:30 p.m., Joaquin told Sands he was leaving work because his shift had ended. Sands told Joaquin that his shift was not over and ordered him to return to work. Sands claims Joaquin did not return to work. Joaquin claims he returned to the station, used the restroom, and left for home when he saw other officers leaving because he thought his shift had been dismissed. Joaquin perceived Sand’s response to the situation as sexual harassment because Joaquin rebuffed a sexual advance by Sands. Although Joaquin called an 800 number that evening to anonymously report he was being sexually harassed, he chose not to make a complaint at that time.
Sands called Joaquin into his office and told him he was going to serve him with a negative “comment card,” which is a notation in a personnel file that the employee has been counseled regarding an improper action. Sands took the comment card back after Joaquin told him that the Lieutenant wanted to talk to both of them about the incident. Joaquin told another supervisor at CTD that Sands had asked him on a date and then retaliated against him for turning Sands down. The supervisor reported the allegations to Captain Young, who turned the complaint over to Internal Affairs.
Joaquin told Internal Affairs that Sands had asked him out, commented on his arms while he was working out at the gym, called several times to make small talk while Joaquin was on desk duty, made comments about other men looking good in front of Joaquin, showed up while Joaquin was working and watched him, told Joaquin he looked nice, and after a basketball game, asked him if he was going to take a shower. After Internal Affairs finished its investigation, it gave Sands a copy of the file to review. Sands then lodged a complaint against Joaquin. As a result of Sands’ complaint, Internal Affairs charged Joaquin with retaliating against Sands by filing a false complaint and providing false statements during an official investigation.
The Board of Rights (“Board”) found Joaquin guilty of retaliation by filing a false complaint but not guilty of providing misleading statements. The Board found Sands’ testimony credible but had doubts about the plausibility of Joaquin’s version of events. The Board found that the driving force behind Joaquin’s complaint against Sands was that he believed he was going to be subject to disciplinary action that would impact his promotion to sergeant. The Chief of Police adopted the Board’s recommendation and terminated Joaquin’s employment.
Joaquin sought writ review in superior court, which concluded the Board’s findings were not supported by the weight of the evidence and ordered Joaquin reinstated. After Joaquin was reinstated, he was transferred to another division. He claimed the transfer was a black mark on his record and that he was not promoted to sergeant because of the incident. Joaquin filed a lawsuit against the City of Los Angeles claiming he was disciplined in retaliation for filing a sexual harassment complaint in violation of the Fair Employment and Housing Act (“FEHA”). A jury returned a verdict in favor of Joaquin.
Decision
Pursuant to FEHA, an employer may not discharge or discriminate against a person in the terms, conditions, or privileges of employment due to physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation. The FEHA also prohibits employers from retaliating against employees for engaging in protected activity such as opposing practices prohibited by FEHA. In this case, Joaquin established a prima facie case of retaliation because he engaged in a protected activity when he reported sexual harassment and suffered an adverse employment action when the LAPD terminated him. Because he stated a prima facie case, the burden then shifted to the LAPD to articulate a nonretaliatory reason for terminating Joaquin. The LAPD met this burden by showing that it terminated Joaquin because he fabricated a sexual harassment claim against Sands. The burden then shifted back to Joaquin to show a retaliatory intent on the part of the LAPD and a causal link between the retaliatory intent and his termination.
The court of appeal concluded Joaquin failed to introduce substantial evidence of retaliatory animus/intent. There is a direct connection between Joaquin’s report of sexual harassment and the recommendation of the Board to terminate him. However the recommendation to terminate did not arise from the report of sexual harassment but the false report of sexual harassment. The question before the court was whether an employer may discipline an employee if the “employer concludes that the employee has fabricated a claim of sexual harassment, or whether such a complaint is insulated from discipline even where, as here, the employer determines it was fabricated.”
Although an employer may not discriminate against an employee who has participated in an employment discrimination investigation, participation in such an investigation does not protect the employee from being terminated for conduct that if it occurred outside an investigation, would warrant termination. Such conduct includes making frivolous accusations or accusations that are grounded in prejudice. An employee cannot file false charges, lie during an investigation, and defame co-workers without repercussions. Therefore, the court of appeal concluded that under “appropriate circumstances, an employer may discipline or terminate an employee for making false charges, even where the subject matter of those charges is an allegation of sexual harassment.” In such a case, the question for the jury or judge is whether the employer’s stated reason for discipline, such as untruthfulness during an investigation was pretextual, or whether there is other evidence that shows the challenged action was the product of retaliatory intent or discrimination.
Joaquin did not present substantial evidence that the LAPD acted with retaliatory animus. There was no evidence that the Board proceeding was motivated by retaliatory animus. There was no evidence Sands played a role in the Internal Affairs investigation or directed its result. Also, it was the Board and not Internal Affairs that recommended termination. Because Joaquin failed to show his termination was motivated by retaliatory animus, he could not state a claim for retaliation. Accordingly, the court of appeal reversed the judgment in favor of Joaquin.
Questions
If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.
Bruce A. Scheidt, Laura Izon Powell, David W. Tyra or Jeffrey L. Massey | 916.321.4500