Metropolitan News-Enterprise


Tuesday, February 19, 2002


Page 1


C.A. Rejects Prosecutor’s Claim of Bias in Promotion Denial


By KENNETH OFGANG, Staff Writer/Appellate Courts


An Orange County deputy district attorney who failed to win a promotion was not a victim of race, gender, or marital-status discrimination, the Fourth District Court of Appeal has ruled.

Div. Three Friday affirmed a judgment rejecting Victoria Chen’s claims against the county, former District Attorney Michael Capizzi, and other past and present officials of the District Attorney’s Office.

The court rejected, as a matter of law, Chen’s claim that one of the causes of her inability to advance within the office was her relationship with, and subsequent marriage to, then-Deputy District Attorney Devallis Rutledge.

Discrimination based on an animus against an employee’s spouse, as opposed to bias resulting from the fact that an employee happens to be married or happens to be single, is not a violation of California’s Fair Employment and Housing Act, Sills said.

Rutledge was a senior deputy who was considered to be on the “outs” with Capizzi, who left office after unsuccessfully seeking the Republican nomination for attorney general in 1998. Rutledge retired from the office in 2000 and now defends law enforcement officers in civil cases as a lawyer in the Irvine office of Manning & Marder, Kass, Ellrod, Ramirez.

Chen did not return to the office after taking stress leave in 1997 and took a stress-related disability retirement after filing suit.

Decision Criticized

Chen was not available for comment yesterday, but Rutledge criticized the decision and said his wife may seek review in the state Supreme Court.

The opinion, he said, “grants employers carte blanche to discriminate against employees based on who their spouse is” and “blatantly disregards marital rights guaranteed by the U.S. Constitution.”

Chen joined the District Attorney’s Office in 1990. After starting with a trial assignment, she was transferred to juvenile court in 1991—after she began dating her future husband.

She eventually moved up from Level I to Level III deputy, doing misdemeanor jury trials and preliminary hearings and then moving to a felony assignment before taking a pregnancy leave in June 1995. She extended her leave until April 1997, working during that time, Sills noted, as a bond trader—earning a nearly $100,000 a year—and actress.

Chen returned to work in April 1997, and was assigned to North Court in Fullerton, a substantial distance from her home in the southern part of the county. She complained about her initial assignment there—to the probation violation calendar—and there was evidence that she was often late to work and did not get along with her supervisor.

Least Senior

Chen claimed she was being “punished” for her husband’s opposition to Capizzi. The office’s response was that the probation-violation assignment was based on her being the least senior of the felony deputies, and other complaints about her treatment were rejected as unfounded.

Chen took a stress leave in the summer of 1997. That fall, she filed a complaint with the Department of Fair Employment and Housing, alleging discrimination based on race, gender, and marital status, and later applied for promotion to Level IV deputy. The defense presented testimony that when asked whether the application meant that she was coming back to work, Chen responded that she would be back if promoted, otherwise she would be “stressed out for a while longer.”

Chen didn’t get the promotion, didn’t return to work, and filed suit. While the suit was pending, Chen again applied for promotion, didn’t get it, and amended her complaint to allege that the denial of her second application was in retaliation for her complaint to DFEH.

The case went to trial before Orange Superior Court Judge Derek W. Hunt, who granted a directed verdict on the marital-status and retaliation claims. The jury found for the defendants on the race and gender claims.

Sills, writing for the Court of Appeal, said the trial judge had correctly construed FEHA’s marital-status proscription. Citing cases from other jurisdictions, the presiding justice explains that an employer discriminates based on marital status when it refuses to hire someone because she is an unwed mother or because she is single, or when it grants maternity leave to married employees but not to those who are unmarried.

Chen, on the other hand, was presenting a “conduit” case—one in which “the plaintiff is the object of adverse action because of something about his or her spouse, independent of whether the spouse works for the same employer, as such”—Sills reasoned.

Mistreating an employee as a conduit for expressing animus toward the employee’s spouse might violate FEHA when the animus itself is unlawful—such as when the employer objects to the employee entering into an interracial marriage—Sills said.

When the animus is “political,” rather than based on race or the like, courts have held that state laws against marital status are not violated, the presiding justice noted.

Thus, he explained, courts have upheld the firing of a mayor’s secretary whose husband was the local tax assessor and had raised assessments; of a store employee whose husband was a police officer and had arrested her employer’s wife, and of an employee whose wife was a former employee of the same company and had sued it for sex discrimination.

Chen’s suit falls in the same category, Sills said.

“There is no hint that she was the object of any adverse action because the office didn’t like the fact she was married to a white man (or black man, or Asian man or anybody else),” the presiding justice wrote. “Any arguable adverse action was the result of having a relationship (whether married or not) with a particular man, and not just because he was a fellow employee, but because he was allegedly on the “outs” with the then-regnant management of the District Attorney’s Office.”

Sills also concluded that the trial judge was correct in tossing out the retaliation claim.

“If anything, given Chen’s checkered work record, her willingness to subordinate her deputy district attorney’s job to her bond trading and nascent acting career, and the malleability of her purported ‘stress’ (on when convenient, possibly off when convenient), the only rational conclusion is that a promotion over more senior and available attorneys would have been undeservedly favored treatment.”

The case is Chen v. County of Orange, 02 S.O.S. 889


Copyright 2002, Metropolitan News Company