Monday, March 8, 2004
C.A. Reinstates Retaliation Suit by D.A. Candidate Moehlman
By KENNETH OFGANG, Staff Writer/Appellate Courts
A suit charging that Deputy District Attorney Denise Moehlman, who finished third in Tuesday’s balloting for district attorney, was denied promotion in retaliation for complaints of sexual harassment and religious discrimination has been reinstated by this district’s Court of Appeal.
Justice Miriam Vogel, in an unpublished opinion for Div. One, said retired Los Angeles Superior Court Judge Robert Parkin, who heard the case on assignment, erred in granting the county’s motion for nonsuit.
The court released its opinion Thursday, two days after Moehlman polled nine percent of the vote in her bid to oust District Attorney Steve Cooley, who was not yet in office when the events leading to the lawsuit occurred. Moehlman trailed former Los Angeles Councilman Nick Pacheco, who received 15 percent, and Cooley, who was returned to office with 59 percent.
Moehlman alleged in her complaint that she was harassed for more than two years in the early 1990s by a colleague, who is no longer with the office. When she asked for reassignment in order to get away from the unpleasantness, she said, she was “punished” for “speaking out.”
Three of Moehlman’s former supervisors, including now-Superior Court Judge Norm Shapiro, testified her work was excellent. Moehlman also presented evidence that she had filed complaints, that she was told not to pursue them, and that a supervisor had written a false performance appraisal because she had complained about the harassment.
In 1995, she testified, her “appraisal of promotability” score was lowered in retaliation for her complaints; an appeal of that action was turned down. She was later twice passed over for promotion, by a committee chaired by Deputy District Attorney Sandra Buttitta, who was involved in the previous appeal.
In granting nonsuit, Parkin cited Government Code Sec. 815.2(b), which holds that absent a specific provision to the contrary, a public entity is immune from liability “for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”
Moehlman had originally sued several individuals, but those defendants were dismissed on summary judgment, based on findings of immunity, and the Court of Appeal affirmed two years ago in an unpublished opinion
Parkin not only granted the county’s motion for nonsuit, he said the suit was frivolous and ordered Moehlman to pay $111,462 in attorney fees and over $15,000 in costs. Parkin was quoted in a newspaper report as saying Moehlman had “made a sham of the proceedings” in the trial and had wasted the time of high officials, including the former district attorney, Gil Garcetti.
Moehlman said she was offered a settlement in which the county would have waived the fees and costs in exchange for her dropping her appeal and resigning from the office.
But Vogel, writing for the Court of Appeal, said the motion for nonsuit should have been denied, so the issue of costs and fees was moot.
The immunity statute, the justice explained, does not apply to cases, such as Moehlman’s, in which the plaintiff’s theory is one of direct, rather than vicarious, liability. California Supreme Court authority, she said, makes it clear that a public entity has direct liability for sexual harassment under the Fair Employment and Housing Act.
Vogel also rejected the county’s alternative theory that the nonsuit could have been properly granted on the ground of insufficient evidence. The justice noted that sufficiency of the evidence was raised but never argued, and said there was in any event sufficient evidence for a reasonable jury to conclude that Moehlman was the victim of retaliation.
“At a minimum, Moehlman’s evidence shows that she complained about sexual harassment, both orally and in writing, and that several supervisors were aware of her complaints,” the justice wrote. “Since she also presented evidence to show that her work was excellent and that she was trying cases above her grade level, reasonable jurors could infer that her complaints were the reason she was not promoted.”
The justice added that because the trial judge found the county immune, the plaintiff had no meaningful opportunity to move to reopen the proceedings to present additional evidence.
In a footnote, Vogel suggested that Parkin also erred in striking part of Moehlman’s testimony concerning her work, her positive evaluations, her complaints about harassment, and the relationship between her complaints and the denial of promotion.
Vogel was joined in her opinion by Presiding Justice Vaino Spencer and by Justice Reuben Ortega, who served as a top administrator under then-District Attorney Robert Philibosian in the early 1980s.
Attorneys on appeal were David C. Carr for Moehlman and Donna D. Melby and Cynthia J. Emry of Sonnenschein Nath & Rosenthal.
The case is Moehlman v. Los Angeles County, B156856.
Copyright 2004, Metropolitan News Company