The opinion
Filed 7/17/19
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
WENDELL BROWN, C082826
Plaintiff and Respondent, (Super. Ct. No.
34201300148356CUOEGDS)
v.
CITY OF SACRAMENTO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Sacramento County, James P.
Arguelles, Judge. Affirmed.
Liebert Cassidy Whitmore, Jesse J. Maddox, and Michael D. Youril for Defendant
and Appellant.
Law Offices of Richard A. Lewis and Richard A. Lewis for Plaintiff and
Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of parts A.2 and B of the Discussion section.
1
Plaintiff Wendell Brown sued his employer, the City of Sacramento (City), for
racial discrimination and retaliation in violation of the California Fair Employment and
Housing Act (FEHA). (Gov. Code, § 12900 et seq.) A jury returned a verdict in
Brown’s favor. The City moved for judgment notwithstanding the verdict and a new
trial. The trial court granted the motion for judgment notwithstanding the verdict in part,
finding that Brown failed to exhaust administrative remedies with respect to some of the
acts found to be retaliatory. The trial court denied the motion with respect to other acts
and effectively denied the motion for a new trial.1
The City appeals from the order partially denying the motion for judgment
notwithstanding the verdict, arguing the remaining retaliation and discrimination claims
are time-barred and barred for failure to exhaust administrative remedies. The City also
appeals from the order partially denying the motion for a new trial, arguing that juror
misconduct deprived the City of a fair trial, and the trial court prejudicially erred in
admitting evidence of the purportedly unexhausted and time-barred claims. Finding no
error, we affirm.
I. BACKGROUND
Brown, an African-American, began working for the Solid Waste and Recycling
Division (Division) of the City’s Utilities Department (and later, the General Services
Department) in August of 1986, and was eventually promoted to Solid Waste Supervisor.
Brown is a member of the International Union of Operating Engineers, Stationary
Engineers, Local 39 (Union). The City has a collective bargaining agreement with the
Union.
1 As we shall discuss, the trial court conditionally granted the motion for a new trial with
respect to a single act found to have been retaliatory, as to which the motion for judgment
notwithstanding the verdict had been granted.
2
Brown filed an administrative complaint with the Department of Fair Employment
and Housing (DFEH) and immediately received a right to sue letter.2 On July 22, 2013,
Brown filed a complaint against the City, alleging causes of action for racial
discrimination and retaliation under FEHA.3 The matter was tried before a jury over the
course of several weeks in mid-May and early June 2016.
A. Jury Trial
The jury heard evidence that Brown complained about conduct he believed to be
discriminatory and suffered the following adverse employment actions: (1) a suspension
for altering a jury duty form; (2) a suspension for illegal dumping; (3) a transfer from one
operational facility to another; (4) a shift change; (5) a denial of promotion in 2013; and
(6) a denial of promotion in 2014. We summarize these actions briefly below, including
only those facts necessary to understand and resolve the limited issues before us.
1. The Altered Jury Service Form Incident
Brown was working on a garbage collection truck on July 6, 2010. He received a
telephone call from Rashid El Amin, an employee under his supervision. El Amin, who
had been summoned for jury duty that day, explained that he had just been released and
wanted to know if he should report to work. Brown determined that El Amin was not in
uniform and would need several hours to go home, change, and then travel to work.
Even then, Brown reasoned, there would be no work for El Amin to do, as all of the
garbage collection trucks had already been dispatched for the day. Accordingly, Brown
told El Amin he could stay off the rest of the day, if he used his “bank time.” The next
2 The allegations of the DFEH complaint are discussed post.
3 Other parties and causes of action were dismissed before and during the trial.
3
day, El Amin reported to work with a jury service form, which Brown altered to reflect a
full day of jury service.4 Sometime thereafter, a fact-finding investigation ensued.
On January 6, 2011, Brown received a letter indicating the City intended to take
disciplinary action against him pursuant to the Rules and Regulations of the Civil Service
Board (Rules). Specifically, the letter indicated the City intended to suspend Brown for
four days, unless Brown responded by January 7, 2011, either orally or in writing.
Brown thought the contemplated discipline was unfair and unreasonable, as there were no
guidelines on how to record an absence for jury duty for less than a full day, and Brown
had been candid about the fact that he had altered the jury form. Nevertheless, Brown
kept these views to himself, and the City subsequently issued another letter, stating, “you
are hereby suspended without pay for four (4) working days from your position as Solid
Waste Supervisor and from City service, effective February 7, 2011.” Although the
suspension was slated to become effective on February 7, 2011, Brown’s salary was
never reduced, and he never served the suspension. The February 2011 suspension was
the first time that Brown was subjected to discipline in almost 25 years of service, but it
was not the last.
2. The Illegal Dumping Incident
In August 2011, Brown received a call from a supervisor asking him to collect
some burned out garbage cans from a Sacramento street.5 Brown instructed two
subordinate employees, both veterans of the Division, to retrieve the cans and take them
to an isolated area near Western Avenue, where they would not pose a fire hazard to
4 During the trial, Brown testified that he submitted the altered jury service form with
another form, indicating that El Amin was requesting vacation for the time that he was
not occupied with jury service. The City has not been able to locate the vacation request
form.
5This request was unusual, as the Division was not ordinarily responsible for handling
such matters.
4
nearby homes or structures. Brown knew that Western Avenue was home to an illegal
dumping site and anticipated that the cans would be collected later, after the fire risk had
abated. Approximately one month later, Brown learned that the employees responsible
for taking the cans to Western Avenue were being disciplined for illegal dumping.
Brown discussed the matter with Steve Harriman, an integrated waste general
manager and Brown’s indirect supervisor. Brown told Harriman that he did not believe
the employees should be disciplined, as they had only been following Brown’s orders.
Brown’s message was not well received. After the meeting, Brown had the impression
that Harriman “was dead set on [he] did the worse thing possible in the world by handling
it the way that [he] did it.”
Around the same time, Brown received a letter indicating that the City intended to
take disciplinary action against him as well. The letter opined that Brown’s conduct
constituted cause for discipline within the meaning of the Rules, and indicated that the
City intended to reduce Brown’s pay for 40 bi-weekly pay periods, equivalent to 16 days.
The letter, which was signed by Harriman and others, advised Brown that he had a right
to respond within 15 days. Brown viewed the contemplated discipline as out of
proportion to the offense, and began to suspect a discriminatory motive.
Brown responded to the letter by requesting a Skelly hearing.6 The Skelly officer
found that Brown had been trying to do the right thing under difficult circumstances and
recommended that he receive a written reprimand. Brown’s supervisors considered the
Skelly officer’s recommendation and decided to reduce the contemplated discipline.
6 “A Skelly hearing is an opportunity for the employee to respond to the charges in the
notice of adverse action.” (Benefield v. Department of Corrections and Rehabilitation
(2009) 171 Cal.App.4th 469, 472, fn. 6; see Skelly v. State Personnel Bd. (1975) 15
Cal.3d 194, 206 (Skelly).)
5
On February 27, 2012, Brown received a second letter stating: “This letter is to
inform you that your salary as a Solid Waste Supervisor is hereby reduced . . . for twenty
(20) bi-weekly pay periods [equivalent to eight days] effective with the pay period
beginning March 10, 2012.” The second letter characterized the dumping incident as a
cause for disciplinary action within the meaning of the Rules, and concluded: “Pursuant
to Rule 12.7 of [the Rules], you have the right to appeal this disciplinary action to the
Civil Service Board within fifteen (15) calendar days from the date you receive this
letter.”
Brown appealed the suspension (which was to have been served by means of the
pay reduction described above). While the appeal was pending, Brown’s union
representatives attempted to negotiate a further reduction of the suspension. These
negotiations continued through October 2012. On October 29, 2012, the City offered to
reduce the suspension from eight to five days in exchange for Brown’s agreement to
waive his right to post-disciplinary arbitration. The Union, believing the City’s offer to
be reasonable, informed Brown by letter dated November 13, 2012, that it would no
longer represent him in connection with the appeal. The Union provided Brown with a
copy of the Rules, and informed him that the appeal would be dismissed if he did not
pursue the matter independently. Brown did not pursue the matter, and the appeal was
eventually dismissed.
Shelley Banks-Robinson, a labor relations manager for the City, explained that the
disciplinary process typically begins with a notice of intent specifying the causes for
potential discipline, and ends with a final notice announcing the City’s final decision as
to what discipline should be imposed. Although the employee has the right to appeal that
decision, Banks-Robinson opined that the discipline becomes “final” with the issuance of
the final notice.
Banks-Robinson could not say with certainty whether Brown served the
suspension set forth in the City’s second letter (which all parties characterized as a “final
6
notice”). Nevertheless, she theorized that Brown had likely already served the
suspension by the fall of 2012, notwithstanding the pendency of his appeal. When asked
how Brown could have served the suspension when the period of suspension was the
subject of ongoing negotiations between the City and Brown’s union representatives,
Banks-Robinson responded that, had a settlement been reached, Brown would have been
entitled to a refund of money previously withheld from his bi-weekly paychecks. As we
shall discuss, the Rules do not support Banks-Robinson’s theory—which the City renews
on appeal—that disciplinary action becomes final on the date of the final notice.
3. The Transfer to Meadowview
On February 13, 2013, Brown received a memorandum from Harriman
announcing that he would soon be transferred from the Division’s operational facility in
North Sacramento (the North Area Corporation Yard or NACY) to an operational facility
in South Sacramento (Meadowview Yard). The memorandum instructed Brown and
another solid waste supervisor to report to their “new Permanent Dispatch Area” on April
15, 2013. Brown was “irritated” and “felt very strongly that [the move] didn’t make any
sense.”
During the trial, Brown explained that he had started his career at Meadowview
and worked hard to make a place for himself at NACY, which was closer to his home.
Brown suspected the transfer was retaliatory, as he had recently complained about the
way Harriman handled disciplining African-American and Hispanic employees at
NACY. Although Harriman offered a business reason for the move, Brown viewed the
stated reason as flimsy and pretextual. And, though the City characterized the move as a
temporary “rotation,” the evidence showed that Brown had been stuck at Meadowview
for three years at the time of trial.
4. The Shift Change
On June 17, 2013, Brown received a memorandum from another supervisor,
William Skinner, stating that he would be changing from the early morning shift to the
7
late morning shift. Brown was unhappy about the change, as the later start time meant
that he would be spending more time commuting and less time with his family. During
the trial, Brown testified that he viewed the shift change as part of a pattern of retaliation,
which he believed to be a response to his having voiced concerns about discriminatory
behaviors within the Division. Brown worked the late shift for three months, after which,
another supervisor started working the shift.
5. Denial of Promotion in 2013
Brown applied for a promotion within the Division in August 2013. Brown was
among the finalists for the position but was not selected. Instead, the City hired another
applicant.
6. Denial of Promotion in 2014
Brown applied for another promotion in February 2014. As before, Brown was
among the finalists for the position. Again, he was not selected. This time, the
successful candidate was African American. Unlike Brown, who was by then a 27-year
veteran of the Division, the successful candidate had no experience with solid waste
management.
B. Verdict
The jury rendered a special verdict in Brown’s favor on June 6, 2016. With
respect to the discrimination claim, the jury found that race was a substantial motivating
reason for the City’s decision to transfer Brown to Meadowview in April 2013. With
respect to the retaliation claim, the jury found the City retaliated against Brown in
connection with the illegal dumping suspension, the transfer to Meadowview, the shift
change, and the denial of promotion in 2014. The jury found no liability for the jury duty
suspension or the denial of promotion in 2013. The jury awarded total damages in the
amount of $558,450, an amount that included $22,050 in past lost earnings and $75,000
in future lost earnings.
8
The trial court polled jurors about their votes. With respect to the discrimination
claim, the polling revealed a 12-0 vote in favor of a finding that the transfer to
Meadowview constituted an adverse employment action, and a 10-2 vote in favor of the
finding that race was a substantial motivating reason for the transfer. The jury rejected
the affirmative defense that the City had a non-discriminatory reason for transferring
Brown to Meadowview by a vote of 10-2.
With respect to the retaliation claim, the polling revealed a 12-0 vote in favor of a
finding that the transfer to Meadowview constituted an adverse employment action, an
11-1 vote in favor of findings that the suspension arising from the dumping incident and
shift change constituted adverse employment actions, and a 9-3 vote in favor of a finding
that the 2014 denial of promotion constituted an adverse employment action. The jury
voted 11-1 in favor of a finding that retaliation was a substantial motivating reason for all
of the alleged retaliatory acts, and a 10-2 vote in favor of a finding that retaliation was a
substantial motivating reason for the suspension, the transfer, the shift change, and the
denial of promotion. The jury rejected the affirmative defense that the City had non-
retaliatory reasons for all of the alleged retaliatory acts by a vote of 11-1, and for the
suspension, transfer, shift change, and denial of promotion by a vote of 10-2.
C. Juror Misconduct
After the verdict, the City’s trial counsel learned that one of the jurors—Juror No.
2—failed to disclose pertinent information during voir dire. Specifically, Juror No. 2
failed to disclose she had served as lead plaintiff in a putative wage and hour class action
against an employer. As we shall discuss, Juror No. 2’s misconduct raised a rebuttable
presumption of prejudice (In re Hamilton (1999) 20 Cal.4th 273, 295) and served as the
basis for the City’s new trial motion.
D. Post-Trial Motions
On June 22, 2016, the City filed a motion for judgment notwithstanding the
verdict, arguing that Brown’s claims were time-barred or barred for failure to exhaust
9
administrative remedies. As relevant here, the motion argued that the jury should not
have been allowed to hear about either of the suspensions (despite the fact that the jury
rejected Brown’s claims regarding the suspension for his alteration of the employee’s
jury service form), as both suspensions occurred outside the one-year statute of
limitations for violations of FEHA (Gov. Code, § 12965, subd. (d)). The motion also
argued that Brown failed to exhaust his administrative remedies with respect to the
transfer to Meadowview, the shift change, and the denials of promotion (despite the fact
that the jury rejected Brown’s claims based on the 2013 denial of promotion).
On July 8, 2016, the City filed a motion for a new trial on grounds of irregularity
in the proceedings and juror misconduct. (Code Civ. Proc., § 657, subds. (1)-(2).) The
new trial motion was supported by a declaration from the City’s trial counsel, Jesse
Maddox. Although voir dire proceedings had not been transcribed, Maddox averred that
he specifically asked prospective jurors whether they had “ ‘ever brought a lawsuit
against someone,’ ” whether they “ ‘ever felt they were treated unfairly in the
workplace,’ ” and whether they “ ‘ever witnessed unfair treatment at work.’ ” Maddox
further averred that Juror No. 2 failed to affirmatively respond to any of these questions.
Had she done so, Maddox continued, he would have challenged Juror No. 2 for cause or
used a peremptory challenge to strike her from the jury. The new trial motion also
argued the trial court prejudicially erred in allowing the jury to consider evidence of time-
barred and unexhausted acts.
The trial court addressed both motions in an order dated August 8, 2016. The trial
court began with the motion for judgment notwithstanding the verdict, which was granted
in part and denied in part. The trial court agreed with the City that Brown failed to
exhaust his administrative remedies with respect to the shift change and denial of
promotion in 2014. Accordingly, the trial court granted the motion for judgment
notwithstanding the verdict with respect to those issues and amended the judgment to
10
strike the past and future lost earnings awards, both of which were based on the 2014
denial of promotion.
The trial court rejected the City’s argument—also advanced on appeal—that the
suspensions were barred by the applicable statute of limitations (Gov. Code, § 12960,
subd. (d)), finding that “there was conflicting evidence as to whether the incidents
involving the jury-slip discipline and dumping discipline were time-barred and/or fell
within the continuing violations theory.” The trial court also rejected the City’s argument
that the transfer to Meadowview was barred for failure to exhaust administrative
remedies, noting that the DFEH complaint recited “ ‘denied or forced to transfer’ ” as a
ground for the alleged discrimination and harassment, and finding that “any DFEH
investigation would have likely encompassed this incident.” As we shall discuss, we find
no reversible error in the partial denial of the motion for judgment notwithstanding the
verdict.
The trial court then turned to the City’s new trial motion. The trial court
independently recalled that Juror No. 2 was “overly enthusiastic . . . (in terms of body
language, head-nods, etc.) in favor of [Brown’s] case right from the opening statement.”
The trial court admitted the Maddox declaration, finding that the averments contained
therein, combined with the court’s independent recollections of the voir dire proceedings,
established juror misconduct and raised a rebuttable presumption of prejudice. (See In re
Hamilton, supra, 20 Cal.4th at p. 295; see also Wiley v. Southern Pacific Transportation
Co. (1990) 220 Cal.App.3d 177, 189 [“a juror’s intentional concealment of relevant facts
or giving false answers during the voir dire examination constitutes misconduct and
raises a presumption of prejudice”].)
The trial court then shifted the burden to Brown to rebut the presumption of
prejudice. Brown attempted to rebut the presumption with declarations from Juror No. 2,
Juror No. 6, and Juror No. 12. The trial court refused to consider Juror No. 2’s
declaration, finding that she lacked credibility. The trial court also struck substantial
11
portions of the declarations from Juror No. 6 and Juror No. 12, but admitted portions
from both averring that, “ ‘[a]t no time did juror #2 speak of a prior lawsuit.’ ”
The trial court then considered whether the admissible portions of the declarations
from Juror No. 6 and Juror No. 12 were sufficient to rebut the presumption that the City
suffered prejudice as a result of Juror No. 2’s misconduct. To answer this question, the
trial court examined the numerical vote for each of the jury’s findings (set forth above).
The trial court found that Brown rebutted the presumption of prejudice with respect to the
discrimination and retaliation claims based on the transfer to Meadowview, suspension
for illegal dumping, and shift change, which were decided by 12-0, 11-1, and 10-2 votes.7
The trial court found that Brown failed to rebut the presumption with respect to the
retaliation claim based on the 2014 denial of promotion, which was decided by a 9-3
vote. Accordingly, the trial court conditionally granted the motion for a new trial with
respect to the 2014 denial of promotion. Because the trial court had previously granted
the City’s motion for judgment notwithstanding the verdict on that issue, the trial court
made clear that the order granting a partial new trial would only be effective in the event
that the former order were reversed on appeal, and no appeal was taken from the latter
order, or the latter order was affirmed on appeal.
The City filed a timely notice of appeal.
7The City observes that the trial court appears to have miscounted some of the votes. As
we shall discuss, any error was harmless.
12
II. DISCUSSION
A. Motion for Judgment Notwithstanding the Verdict8
“A trial court must render judgment notwithstanding the verdict whenever a
motion for a directed verdict for the aggrieved party should have been granted.
[Citation.] A motion for judgment notwithstanding the verdict may be granted only if it
appears from the evidence, viewed in the light most favorable to the party securing the
verdict, that there is no substantial evidence in support. [Citation.] [¶] The moving party
may appeal from the judgment or from the order denying the motion for judgment
notwithstanding the verdict, or both. [Citation.] As in the trial court, the standard of
review is whether any substantial evidence—contradicted or uncontradicted—supports
the jury’s conclusion.” (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th
62, 68.) However, to the extent a motion for judgment notwithstanding the verdict raises
legal issues such as the application of law to undisputed facts or the interpretation of a
statute or contract, we review the trial court’s ruling on the motion de novo. (See Mason
v. Lake Dolores Group (2004) 117 Cal.App.4th 822, 829-830; Gunnell v. Metrocolor
Laboratories, Inc. (2001) 92 Cal.App.4th 7170, 718-719.)
1. Statute of Limitations
The City argues the trial court erred in denying its motion for judgment
notwithstanding the verdict with respect to both suspensions, as the City claims they
occurred outside the one-year statute of limitations for violations of FEHA (Gov. Code, §
12965, subd. (d)). We need not decide whether the trial court erred in denying the
8 Brown urges us to dismiss the City’s appeal on the grounds that the trial court’s order is
non-appealable. According to Brown, an earlier notice of appeal, which has not been
made part of the record, stayed proceedings and divested the trial court of subject matter
jurisdiction to enter the order granting in part and denying in part the motions for
judgment notwithstanding the verdict and for a new trial. We decline to consider this
argument, as it is not adequately supported by the record.
13
motion with respect to the suspension for alteration of the jury service form, as the jury
found that act was not a basis for liability. Having secured a favorable verdict with
respect to the jury form suspension, the City was not “aggrieved” by the denial of the
motion and cannot complain on appeal.9 (Holt v. Booth (1991) 1 Cal.App.4th 1074,
1079-1080.) We therefore confine our discussion to the February 2012 suspension.
A plaintiff asserting a cause of action arising under FEHA must first file a timely
complaint with the DFEH and obtain the agency’s permission to file a civil action in
court. (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492.) To be timely,
the administrative complaint must generally be filed within “one year from the date upon
which the alleged unlawful practice or refusal to cooperate occurred.” (Gov. Code,
§ 12960, subd. (d).) An “unlawful practice” may occur as a discrete act, such as a
discriminatory termination of employment or failure to hire. (See, e.g., Romano v.
Rockwell Internat., Inc., supra, at p. 495.) It may also consist of a course of conduct over
a period of time. (See, e.g., Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028,
1059.)
The FEHA statute of limitations ordinarily bars recovery for acts occurring more
than one year before the filing of the DFEH complaint. (Jumaane v. City of Los Angeles
(2015) 241 Cal.App.4th 1390, 1402.) When, however, an unlawful course of conduct
begins outside the limitations period and continues to a date within the limitations period,
“the continuing violation doctrine comes into play.” (Richards v. CH2M Hill, Inc. (2001)
26 Cal.4th 798, 812.) Under this doctrine, an employer can be liable for conduct outside
the limitations period “if the employer’s unlawful actions are (1) sufficiently similar in
kind . . . ; (2) have occurred with reasonable frequency; (3) and have not acquired a
9The City elsewhere argues the trial court’s denial of a pretrial motion to exclude the
suspensions was an evidentiary error requiring a new trial. We address this argument
post.
14
degree of permanence.” (Id. at p. 823.) The “plaintiff has the burden of proof to show
his or her claims are timely under the continuing violation doctrine.” (Jumaane v. City of
Los Angeles, supra, at p. 1402.)
The City argues the dumping suspension was a discrete act that was completed on
February 27, 2012, more than a year before the DFEH complaint was filed on March 5,
2013. Brown responds that the appeal process was “underway and ongoing as late as
November 1, 2012.” We assume without deciding that the suspension was a discrete act,
rather than a continuing violation. (See Morgan v. Regents of University of California
(2000) 88 Cal.App.4th 52, 65-66 [the continuing violation doctrine does not apply to
unrelated discrete acts, such as a series of rejected job applications]; see also National
Railroad Passenger Corporation v. Morgan (2002) 536 U.S. 101, 114 [“Discrete acts
such as termination, failure to promote, denial of transfer, or refusal to hire are easy to
identify. Each incident of discrimination and each retaliatory adverse employment
decision constitutes a separate actionable ‘unlawful employment practice’ ”]; and see
O’Connor v. City of Newark (2016) 440 F.3d 125, 127 [wrongful suspension and
wrongful discipline are discrete acts]; Bass v. Joliet Public School District No. 86 (7th
Cir. 2014) 746 F.3d 835, 839-840 [reassignment of duties and suspensions are discrete
acts].) Even so assuming, we conclude that Brown’s claim based on the dumping
suspension was timely.
As noted, Brown is a member of the Union, which has a collective bargaining
agreement with the City. The collective bargaining agreement gives the City the right to
discipline employees in accordance with the Rules. The Rules govern the disciplinary
process for union members employed by the City and serve as the express basis for the
dumping suspension.
The Rules define the term “disciplinary action” to include letters of reprimand,
suspensions, and in-grade salary reductions. The Rules further provide, under the
heading, “Date Discipline Final,” that: “Disciplinary action shall be final: [¶] (a) When
15
the time for appeal to the Board has run, and no appeal has been timely filed; or [¶] (b)
After the Board’s determination of the matter at the hearing pursuant to Rule 12.10(d).”10
Applying the Rules, we conclude the dumping suspension became final sometime in late
2012, when Brown’s appeal was dismissed. Accepting the premise that the dumping
suspension was a discrete act, the act became final in late 2012, within the one-year
limitations period. The claim based on the dumping suspension was therefore timely.11
10 Rule 12.10(d), titled “Time for seeking judicial review,” provides: “Judicial action to
review any decision of the Board pursuant to this Rule shall be filed within the time
limits prescribed in Code of Civil Procedure Section 1094.6. Notice of such time limit
shall be given to the appellant in writing at the time the Director serves the findings and
decision on appellant pursuant to subsection (d) [sic] above.”
11 The City’s arguments and authorities do not convince us otherwise. Relying on
Morgan v. Regents of University of California, the City argues that the mere continuing
impact from past violations is not actionable. (Morgan v. Regents of University of
California, supra, 88 Cal.App.4th at p. 64.) That argument might have had relevance had
the discipline become final on February 27, 2012, as the City contends. In that
circumstance, the fact that Brown suffered the effects of the discipline in late 2012 and
2013 (by means of bi-weekly salary reductions) might not have been enough to bring the
claim within the one-year limitations period. But that is not the situation before us.
Here, the discipline did not become final—and the violation could not be considered
complete—until sometime in late 2012. We need not concern ourselves with the
“continuing impact from past violations” because the violation itself occurred within the
one-year limitations period.
The City’s reliance on Delaware State College v. Ricks (1980) 449 U.S. 250 for the
proposition that “the pendency of a grievance . . . does not toll the running of the
limitations periods,” misses the mark for similar reasons. (Id. at p. 261.) We need not
decide whether the statute of limitations was tolled because we conclude that, under the
Rules, the limitations period did not begin to run until sometime in late 2012, after the
appeals process had run its course.
16
2. Exhaustion of Administrative Remedies
Next, the City argues the trial court erred in denying the motion for judgment
notwithstanding the verdict with respect to the discrimination and retaliation claims based
on the transfer to Meadowview. We are not persuaded.
Before filing an action for damages under FEHA, an employee must exhaust his or
her administrative remedies by filing a verified complaint with the DFEH and obtaining a
right-to-sue notice from the agency. (Wills v. Superior Court (2011) 195 Cal.App.4th
143, 153 (Wills).) The DFEH complaint must be filed within one year of the alleged
unlawful acts, state the names of the perpetrators, and set forth the particulars of the
alleged acts. (Gov. Code, § 12960, subds. (b), (d).) Thus, a plaintiff cannot sue for an act
violating FEHA unless the plaintiff “specif[ied] that act in the administrative complaint.”
(Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.)
Exhaustion of administrative remedies is “ ‘a jurisdictional prerequisite to resort to the
courts.’ ” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70.)
The administrative exhaustion requirement is satisfied if FEHA claims in the
judicial complaint are “ ‘like and reasonably related to’ ” those in the DFEH complaint
(Wills, supra, 195 Cal.App.4th at p. 154) or “likely to be uncovered in the course of a
DFEH investigation” (Okoli v. Lockheed Technical Operations Co. (1995) 36
Cal.App.4th 1607, 1617 (Okoli)). In determining whether Brown timely exhausted his
administrative remedies on the transfer to Meadowview claims, we must construe the
DFEH complaint “liberally” and “in light of what might be uncovered by a reasonable
investigation.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 268.)
As noted, Brown filed a DFEH complaint on March 5, 2013. At the time of the
filing, the transfer to Meadowview had been announced (on February 13, 2013), but was
not scheduled to take effect for another eight weeks (on April 15, 2013). The DFEH
complaint alleges that Brown experienced discrimination, harassment, and retaliation on
the basis of race and age. The DFEH complaint further alleges that, as a result of the
17
alleged discrimination, harassment, and retaliation, Brown was, “Denied a good faith
interactive process, Denied a work environment free of discrimination and/or retaliation,
Denied equal pay, Denied or forced to transfer, Denied promotion, Other.” The DFEH
complaint describes the dumping suspension at length, and discusses other matters not
relevant here, but does not say anything else about the transfer to Meadowview.
Relying on Okoli, the City argues that Brown failed to exhaust his administrative
remedies with respect to the transfer to Meadowview, which was completed after the
filing of the DFEH complaint. Okoli is distinguishable. There, the plaintiff, Charles
Okoli, filed a DFEH complaint alleging that he was denied a promotion on the basis of
his race and national origin. (Okoli, supra, 36 Cal.App.4th at pp. 1609-1610.) Okoli
obtained a right-to-sue-notice and then filed a civil action alleging racial and national
origin discrimination, racial harassment, and retaliation against his employer, Lockheed
Technical Operations Company. (Id. at p. 1610.) The retaliation claim was based on
adverse employment actions that he claimed were the result of his filing the DFEH
charge. (Id. at pp. 1613, 1617) The jury returned defense verdicts on the causes of action
for discrimination and harassment, but found for Okoli on the retaliation claim. (Id. at p.
1612.) Lockheed appealed, arguing Okoli never mentioned retaliation in his DFEH
complaint, and thus the trial court lacked jurisdiction to hear the claim under the
exhaustion of remedies doctrine. (Id. at p. 1609.) The appellate court agreed and
reversed. (Id. at p. 1612.) The court concluded that “the unlawful retaliation, which
occurred after the filing of the DFEH charge, would not reasonably have been uncovered
in an investigation of the charges that were made, i.e., why Okoli had not been promoted”
and whether his supervisor had made derogatory comments about his national origin. (Id.
at p. 1617.) Nor was the retaliation claim like or reasonably related to Okoli’s DFEH
claim. (Ibid.)
Here, by contrast, the allegations in the DFEH complaint clearly foreshadow the
discrimination and retaliation claims based on the transfer to Meadowview. Although the
18
transfer was completed after the filing of the DFEH complaint, the process for
effectuating the transfer was well underway at the time of the filing and the DFEH
complaint obviously refers to that process in alleging that Brown was “Denied or forced
to transfer.” (Italics added.) The allegations in the DFEH complaint are “ ‘like and
reasonably related to’ ” (Wills, supra, 195 Cal.App.4th at p. 154) the discrimination and
retaliation claims based on the transfer to Meadowview, and we would expect an
investigation into the former to uncover the facts giving rise to the latter. (Okoli, supra,
36 Cal.App.4th at p. 1617.)
Although the allegations regarding the not-yet-implemented transfer were
understandably thin, the purpose of a DFEH complaint is to trigger the investigatory and
conciliatory procedures of the DFEH, not to limit a person’s access to the courts.
(Saavedra v. Orange County Consolidated Transportation Agency (1992) 11 Cal.App.4th
824, 827.) The words of a DFEH complaint “ ‘ “need not presage with literary exactitude
the judicial pleadings which may follow.” ’ ” (Nazir v. United Airlines, Inc., supra, 178
Cal.App.4th at p. 267.) Brown’s DFEH complaint clearly alleged that he suffered
discrimination and retaliation in connection with an unwelcome transfer, and was
sufficient, without further elaboration, to exhaust administrative remedies as to that issue.
The trial court properly denied the City’s motion for judgment notwithstanding the
verdict with respect to the transfer to Meadowview.
B. Motion for a New Trial
Finally, the City argues the trial court should have ordered a new trial on the basis
of irregularities in the proceedings. Specifically, the City argues a new trial was
warranted on the ground of juror misconduct, and on the ground that the jury should not
have been allowed to hear evidence of the suspensions and transfer to Meadowview.
We have already considered and rejected the second asserted ground for a new trial,
which rests on the contentions that the claims based on the suspensions are time-barred
19
and the claims based on the transfer to Meadowview are unexhausted.12 We therefore
turn our attention to the City’s contention that a new trial was warranted on the ground of
juror misconduct.
Juror misconduct is a ground for granting a new trial. (Code Civ. Proc., § 657,
subd. 2.) “One form of juror misconduct is a juror’s concealment of relevant facts or
giving of false answers during a voir dire examination.” (Ovando v. County of Los
Angeles (2008) 159 Cal.App.4th 42, 57; see In re Manriquez (2018) 5 Cal.5th 785, 797
[“ ‘A juror who conceals relevant facts or gives false answers during the voir dire
examination . . . undermines the jury selection process and commits misconduct’ ”].)
When evaluating a motion for a new trial based on juror misconduct, the trial court
must undertake a three-step process. First, the court must determine whether the
affidavits in support of the motion are admissible. (Evid. Code, § 1150; Barboni v.
Tuomi (2012) 210 Cal.App.4th 340, 345.) Second, if the evidence is admissible, the court
must then determine whether the facts establish misconduct. (Barboni, supra, at p. 345.)
Finally, assuming misconduct occurred, the trial court must determine whether the
misconduct was prejudicial. (Ibid.; Whitlock v. Foster Wheeler, LLC (2008) 160
Cal.App.4th 149, 160 (Whitlock).)
Juror misconduct raises a rebuttable presumption of prejudice. (Whitlock, supra,
160 Cal.App.4th at p. 162.) The presumption may be rebutted by “ ‘an affirmative
12 We have rejected the City’s contention that Brown’s claims arising from the
suspension for the dumping incident and the transfer to Meadowview are time-barred and
barred for failure to exhaust administrative remedies. It follows that evidence concerning
these incidents was properly admitted. We have not considered whether Brown’s claim
arising from the suspension for alteration of the jury service form was time-barred, as the
jury rejected that claim. The City does not appear to argue that evidence concerning the
suspension for alteration of the jury service form was independently prejudicial, in spite
of the jury’s verdict. To the extent the City intends to make such an argument, we reject
it.
20
evidentiary showing that prejudice does not exist’ ” based on such factors as “ ‘the
strength of the evidence that misconduct occurred, the nature and seriousness of the
misconduct, and the probability that actual prejudice may have ensued.’ ” (McDonald v.
Southern Pacific Transportation Co. (1999) 71 Cal.App.4th 256, 265.) It may also be
rebutted by a reviewing court’s examination of the entire record to determine whether
there is a reasonable probability of actual harm to the complaining party. (Hasson v.
Ford Motor Co. (1982) 32 Cal.3d 388, 417.)
In determining whether juror misconduct occurred, we accept the trial court’s
credibility findings and findings of historical facts if supported by substantial evidence.
(People v. Majors (1998) 18 Cal.4th 385, 417.) The determination of whether “those
facts constitute [juror] misconduct [is] a legal question we review independently.”
(People v. Collins (2010) 49 Cal.4th 175, 242; see People v. Vallejo (2013) 214
Cal.App.4th 1033, 1043.) “ ‘Whether prejudice arose from juror misconduct . . . is a
mixed question of law and fact subject to an appellate court’s independent
determination.’ ” (People v. Danks (2004) 32 Cal.4th 269, 303.)
The City’s motion for a new trial was supported by the declaration of its trial
counsel, Maddox. Maddox averred that he asked a number of questions during voir dire
which should have prompted Juror No. 2 to disclose the fact that she had previously
served as lead plaintiff in a putative class action against an employer. Brown’s trial
counsel responded with a declaration averring that he had no recollection of the specific
questions posed by Maddox, but many of them were “compound” and “confusing.” The
trial court specifically remembered the questioning on voir dire and agreed that Maddox
asked questions that should have elicited an affirmative response from Juror No. 2. The
trial court also remembered that Juror No. 2 had been notably enthusiastic towards
Brown, responding to the opening argument of Brown’s trial counsel with vigorous head
nods and other body language indicating that she was favorably disposed towards Brown
from the outset. We accept the trial court’s resolution of the facts, which establishes
21
juror misconduct and raises a rebuttable presumption of prejudice.13 (See Whitlock,
supra, 160 Cal.App.4th at p. 160 [“it is the trial court that must assess the credibility of
affiants or declarants, and the trial court is entitled to believe one over the other”].)
“Once juror misconduct is established, a presumption of prejudice arises.
[Citation.] This presumption may be rebutted only by ‘an affirmative evidentiary
showing that prejudice does not exist or by a reviewing court’s examination of the entire
record to determine whether there is a reasonable probability of actual harm to the
complaining party resulting from the misconduct.’ ” (Glage v. Hawes Firearms Co.
(1990) 226 Cal.App.3d 314, 321 (Glage).) “Prejudice exists if it is reasonably probable
that a result more favorable to the complaining party would have been achieved in the
absence of the misconduct.” (Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 415.)
The trial court considered two factors in concluding that the presumption of
prejudice was overcome. First, the trial court considered the declarations of Juror No. 6
and Juror No. 12, both of whom averred that Juror No. 2 did not speak about her prior
litigation experience. Second, the trial court considered the jury’s voting tallies for each
of the surviving claims. The trial court concluded that the presumption of prejudice was
overcome with respect to all but the 9-3 vote (on the claim for retaliation based on the
denial of promotion in 2014), as to which a new trial was conditionally ordered.
13 We reject Brown’s contention that the lack of a reporter’s transcript of the voir dire
proceedings prevents us from reviewing the juror misconduct issue. The parties
stipulated that the court reporter need not transcribe the voir dire proceedings.
Consequently, we do not have a transcript of the precise questions asked during voir dire.
Nevertheless, we are satisfied that we have an adequate record to review the City’s claim
of error, which is directed solely to the trial court’s determination that the presumption of
prejudice was overcome. Although Brown questions the trial court’s finding that Juror
No. 2 committed juror misconduct, he has taken no cross-appeal on the issue, and we
decline to review it.
22
The City argues the trial court’s analysis was flawed in several respects. First, the
City argues the trial court focused on the wrong voting tallies. Specifically, the City
observes that the trial court focused on the voting tallies for the question of whether the
challenged acts constituted adverse employment acts, rather than the voting tallies for the
separate question whether the adverse employment acts were substantially motivated by
race or retaliation. Second, and related, the City argues that the trial court appears to
have miscounted the jury’s votes.
Although some of the trial court’s voting tallies may have been incorrect, the
correct voting tallies do little to advance the City’s cause. Even when the votes are
adjusted and analyzed in the manner the City suggests, the jury still found for Brown on
the liability questions relevant to the remaining discrimination and retaliation claims by
votes of 12-0, 11-1, and 10-2. The only issue that was not decided by a 12-0, 11-1, or 10-
2 vote was the claim for retaliation based on the denial of promotion in 2014, as to which
the motion for judgment notwithstanding the verdict was granted. On this record, we
conclude that any errors in calculating the voting tallies were harmless.
The City acknowledges that California courts have endorsed the practice of
examining voting tallies in evaluating prejudice arising from juror misconduct. (See,
e.g., Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 110 [where “the
verdict was nine to three, the disqualification for bias of any one of the majority jurors
could have resulted in a different verdict”]; see also Glage, supra, 226 Cal.App.3d at pp.
321-322 [in civil cases, the presumption of prejudice resulting from juror misconduct
may be rebutted where remaining jurors were sufficiently numerous to render a proper
and fair verdict].) Despite these authorities, the City argues the trial court erroneously
applied a “bright line rule,” whereby the presumption of prejudice was deemed to have
been rebutted based solely on the voting tallies, without regard to the seriousness of Juror
No. 2’s misconduct. Nothing in the record indicates that the trial court applied any such
rule or ignored the magnitude of Juror No. 2’s misconduct. Rather, the record indicates
23
the trial court considered the voting tallies in combination with the evidence concerning
the nature and extent of Juror No. 2’s misconduct, which included undisputed evidence
that Juror No. 2 never discussed her prior litigation activity with other jurors. Based on
our independent review of the record, we agree with the trial court’s conclusion that the
presumption of prejudice was rebutted.
Relying on Dyer v. Calderon (9th Cir. 1998) 151 F.3d 970, the City argues the
trial court failed to appreciate the “destructive uncertainties” that even a single biased
juror can introduce into the fact-finding process. Dyer is nonbinding and readily
distinguishable. There, a juror in a capital murder case failed to respond to voir dire
questions that would have revealed the fact that her brother had been murdered and her
estranged husband was in jail on a rape charge. (Id. at pp. 972-973.) The federal
appellate court was unable to find actual bias on the juror’s part, but nevertheless
presumed bias, inferring from the juror’s dishonesty a desire to “preserve her status as a
juror and to secure the right to pass on [the defendant’s] sentence.” (Id. at p. 982.) The
court explained: “A juror . . . who lies materially and repeatedly in response to legitimate
inquiries about her background introduces destructive uncertainties into the process.
There is, of course, the possibility that she did so because of some personal bias against
the defendant which she managed to hide from the court. But a perjured juror is unfit to
serve even in the absence of such vindictive bias.” (Id. at p. 983.) The federal appellate
court concluded that the juror’s presumed bias violated the defendant’s right to a fair
trial. (Id. at p. 973.)
Our Supreme Court has similarly held that the presence of one or more jurors who
are actually biased against the defense amounts to structural error and compels reversal in
criminal cases, regardless of prejudice. (People v. Carter (2005) 36 Cal.4th 1114, 1176;
see also People v. Pierce (1979) 24 Cal.3d 199, 208 [“[b]ecause a defendant charged with
crime has a right to the unanimous verdict of 12 impartial jurors [citation], it is settled
that a conviction cannot stand if even a single juror has been improperly influenced”].)
24
“A strict rule that one tainted juror compels reversal is necessary in criminal cases
because under the California Constitution, the jury must unanimously agree that a
defendant is guilty. [Citations.] The vote of one tainted juror obviously renders the
required unanimous verdict unreliable. [¶] In civil cases, however, juror unanimity is not
required. [Citation.] Rather, ‘three-fourths of the jury may render a verdict.’ [Citation.]
Thus, the strict . . . rule regarding one tainted juror is neither necessary nor appropriate.”
(Glage, supra, 226 Cal.App.3d at p. 322, fn. omitted.)
Here, the City was entitled to a fair trial, but not a unanimous verdict. (Glage,
supra, 226 Cal.App.3d at p. 322.) Although Juror No. 2’s misconduct was undeniably
serious, we cannot say that the City suffered prejudice. As we have suggested, the only
aspect of the jury’s verdict that could have been affected by Juror No. 2’s vote was the
retaliation claim based on the denial of promotion in 2014, as to which the motion for
judgment notwithstanding the verdict was granted, and no appeal has been taken. On the
record before us, where Juror No. 2 does not appear to have advocated for Brown and did
not discuss the circumstances giving rise to her apparent bias with others, we are satisfied
that the presumption of prejudice has been rebutted.
25
III. DISPOSITION
The judgment is affirmed. Brown is awarded his costs on appeal. (Cal. Rules of
Court, rule 8.278(a)(1) & (2).)
/S/
RENNER, J.
We concur:
/S/
BLEASE, Acting P. J.
/S/
MAURO, J.
26