Metropolitan News-Enterprise


Thursday, May 16, 2002


Page 1


S.C. Won’t Hear Prosecutor’s Claim of Bias in Promotion Denial


By KENNETH OFGANG, Staff Writer/Appellate Courts


A former Orange County deputy district attorney who failed to win a promotion was denied a state Supreme Court hearing yesterday on her claim to have been a victim of race, gender, or marital-status discrimination.

No justice voted to review the Feb. 15 Fourth District Court of Appeal, Div. Three ruling in Chen v. County of Orange, 96 Cal.App.4th 926. A request for depublication was also denied.

The lower court 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, Presiding Justice David Sills said.

‘Checkered’ Record

Chen’s difficulties within the office, he added, appeared to be more a product of her “checkered” work record than of the difficulties between her husband and the district attorney.

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, who joined the District Attorney’s Office in 1990, did not return there after taking stress leave in 1997 and took a stress-related disability retirement after filing suit.

She started her career there with a trial assignment, then 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.

Leave Extended

She extended her leave until April 1997, working during that time, Sills noted, as a bond trader—earning 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.

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.

After she left on stress leave, 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 does not violate FEHA, Sills reasoned, except perhaps when the animus itself is unlawful—such as when the employer objects to the employee entering into an interracial marriage.

The high court yesterday also turned down Los Angeles County’s request for review of a Feb. 1 appellate court ruling that bars the Department of Children and Family Services from issuing visitation waivers without prior approval by a dependency court bench officer. The case is Alliance for Children’s Rights v. Los Angeles County Dept. of Children and Family Services,  95 Cal.App.4th 1129.

The matter stems from a Los Angeles Superior Court lawsuit filed against the  county by the Alliance for Children’s Rights, which sought a blanket order prohibiting the

 DCFS from issuing visitation waivers—an order that exempts certain foster children without emotional or physical problems from required monthly visits.

Such children could have been seen once every three or six months, instead of monthly. Judge Terry Friedman, then presiding judge of the county’s Juvenile Court, issued an order Dec. 5, 2000 requiring visitation waivers to be approved by a dependency court bench officer.

The county appealed, asserting that the order violated strictures against the separation of powers, but Div. One of this district’s Court of Appeal upheld Friedman’s decision Feb. 1 in an opinion by Justice Reuben Ortega.

The Board of Supervisors voted 3-2 to seek high court review, with Supervisors Zev Yaroslavsky and Michael Antonovich voting against it. No justice voted for review, and the county’s request for depublication was denied.


Copyright 2002, Metropolitan News Company