Joaquin v. City of Los Angeles: Court of Appeal Issues Retaliation Decision

Joaquin v. City of Los Angeles (1/23/12) --- Cal.App.4th ----, 2012 WL 171723, concerns a difficult area of discrimination, harassment, and retaliation law: Balancing the rights of employees who have suffered harassment, discrimination, or other unlawful conduct, against the rights of those who are subjected to false allegations of such conduct, and the rights of employers who may have to decide who's telling the truth.

Richard Joaquin was a police officer who complained of sexual harassment by a superior officer, Sands. The Department investigated and found Joaquin's complaint unfounded. After a seven day hearing, a Board of Rights found Joaquin guilty of retaliating against Sands by filing a false complaint of harassment. The Board recommended Joaquin be terminated, and the Department accepted the recommendation.

Joaquin filed a petition for writ of mandate. The Superior Court concluded that the Board of Rights' findings were not supported by the weight of the evidence, granted the petition, and ordered Joaquin reinstated. Interestingly, the court found:

The uncontradicted evidence is that some or all of the events reported by Joaquin actually occurred. Joaquin provided a detailed and consistent account of conduct which made him feel uncomfortable or offended. In the face of these allegations, Sands did not completely deny the shooting range [fn. omitted] or weight room incidents, or calling the front desk. He had a different explanation for the field impound location and Olympics incidents, but again did not deny that they occurred. He was contradicted on the basketball game incident, for he contended he was a member of the team long before Joaquin when Joaquin started the team and had always been one of the two coaches.

Slip op. at 5.

Joaquin then sued the City of Los Angeles, alleging that the City terminated him in retaliation for filing his sexual harassment complaint in violation of the Fair Employment and Housing Act (FEHA). The jury found that Joaquin's complaint of sexual harassment was a motivating reason for the termination and awarded him more than $2 million for lost wages and emotional distress. The City appealed, and the Court reversed, holding that Joaquin "did not present substantial evidence that his termination was motivated by retaliatory animus, a necessary element of his claim." Slip op. at 1.

After a lengthy recitation of the facts, the Court found that Joaquin had established a prima facie case of retaliation, and that the City had articulated a legitimate, nonretaliatory reason for the termination.  Slip op. at 8.  Relying on cases interpreting Title VII and another state's laws, the Court held:  

[I]n 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 disciplinary action is subject to the burden-shifting analysis articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, supra, 411 U.S. 729, and adopted by our Supreme Court in Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th 1028, 1042, and other cases. Under that analysis, the ultimate question for the fact finder is whether the employer's stated reason for discipline (i.e., that the employee was untruthful during an investigation) was pretextual or whether there is other evidence that, “as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus.”  

Slip op. at 12.  Perhaps more importantly, the Court held that an employer in such a situation need not prove "more than its good faith belief that a false statement was knowingly made..."  Slip op. at 11.  

[The] employer can lawfully act on a level of certainty that might not be enough in a court of law. In the workaday world, not every personnel decision involving a false statement (or a cover-up) has to be treated as something like a trial for perjury. Therefore, an employer, in these situations, is entitled to rely on its good faith belief about falsity, concealment, and so forth.

Ibid.  The Court then held that Joaquin failed to introduce substantial evidence of retaliatory animus.  Slip op. at 12.  Although Joaquin alleged that Sands wanted Joaquin disciplined for having made a sexual harassment complaint, he apparently did not argue the cat's paw theory of liability (see Staub v. Proctor Hospital, 562 U.S. ___, 131 S.Ct. 1186 (2011)), and the Court found that Sands' animus, if any, was irrelevant to the Board's recommendation and the Department's decision.  Slip op. at 12-13.  The Court dealt similarly with the other evidence relied on by Joaquin.  Slip op. at 13-14.  

Finally, the Court held that CACI 2505 fails to set forth the retaliatory animus factor and urged the Judicial Council to revise the instruction and verdict form "to clearly state that retaliatory intent is a necessary element of a retaliation claim under FEHA."  Slip op. at 15.  

Some have expressed concern that Joaquin would allow unscrupulous employers to conduct sham investigations, find that the complaints are false, and fire the complaining employees. Yet California law still protects employees who may good faith, but mistaken complaints of illegal conduct. See, e.g., Barbosa v. IMPCO Technologies, Inc. (2009) 179 Cal.App.4th 1116 (blogged here). Some have suggested that the key distinction between Joaquin and the typical retaliation case is the Board of Rights’ finding that Joaquin intentionally fabricated his complaints, but I do not know that trial courts will apply such a distinction. I assume that Joaquin will petition for review, and others will petition for depublication, but I have little doubt that we will see more cases dealing with these issues.  

The opinion is available here.