Thursday, October 30, 2008
Court Tosses Out Retaliation Award to Ex-Deputy City Attorney
By SHERRI M. OKAMOTO, Staff Writer
This district’s Court of Appeal yesterday reversed a $1.5 million verdict returned in favor of a former Los Angeles deputy city attorney who was discharged after angrily suggesting to a clerk that then-Los Angeles Superior Court Commissioner (now Judge) Joseph Biderman “would have to answer to the Creator” for a judicial ruling which she opposed.
Div. Five ruled that the uncontroverted evidence of this hostile language directed at Biderman was a legitimate nondiscriminatory reason to discharge Lynn Magnandonovan, and that her pretext evidence was insufficient as a matter of law to support a reasonable inference of intentional retaliation.
Magnandonovan admitted to making the offending comment to Biderman’s court clerk after Biderman took Magnandonovan’s motion to revoke a convicted child molester’s probation off calendar when Magnandonovan failed to timely appear for the hearing.
Biderman testified that he understood Magnandonovan’s remarks as a “veiled reference” to his homosexuality, and that he “felt very personally insulted”; “was very upset about it”; and “was in shock about the whole thing.”
He reported the incident to Judge Stephanie Sautner, who is also gay, and Sautner reported the incident to Magnandonovan’s supervisor. About one month later, Magnandonovan was placed on administrative leave, and she was eventually terminated.
After filing an administrative complaint and receiving a right to sue letter, Magnandonovan filed suit against the city. The matter went to trial before assigned Orange Superior Court Judge W. Michael Hayes on two retaliation causes of action.
In an unpublished opinion for the appellate court, Presiding Justice Paul Turner, joined by Justice Sandy R. Kriegler, explained that Hayes had erred in submitting the common law retaliation-in-violation-of-public-policy cause of action to the jury because public entities are immune from such claims.
But the jury’s verdict could still stand if sufficient evidence supported Magnandonovan’s cause of action based on retaliation in violation of the Fair Employment and Housing Act, Turner wrote.
He reasoned that the city had waived its argument that Magnandonovan failed to exhaust her administrative remedies by failing to raise and litigate the argument during trial, and that Magnandonovan had established a prima facie case of retaliation.
Turner noted that Magnandonovan had engaged in a protected activity by filing an administrative complaint with the Department of Fair Employment and Housing, and was subject to an adverse employment action by being placed on administrative leave less than eight months after her prior Department of Fair Employment and Housing administrative complaint was settled, giving rise to a presumption of retaliation.
But the city rebutted the presumption with evidence of Magnandonovan’s history of unprofessional conduct before several Los Angeles Superior Court judges, Turner concluded. Several jurists testified that Magnandonovan was antagonistic and rude, and did not want her Magnandonovan in their courtrooms.
Based on the extensive, largely uncontroverted evidence that Magnandonovan had repeatedly conducted herself in a “wholly unacceptable manner,” culminating in the incident involving Biderman, Turner reasoned that the city had had a legitimate, non-retaliatory reason for terminating Magnandonovan’s employment.
Although Magnandonovan presented evidence she was a conscientious, determined, hardworking, honest, and courteous deputy city attorney who had never been disciplined, threatened with an adverse employment action, or given a notice to correct deficiencies, Turner reasoned such evidence was insufficient as a matter of law to support a reasonable inference the city acted with an illegal, retaliatory motive in dismissing her.
Dissenting Justice Richard M. Mosk argued that Magnandonovan’s evidence was sufficient to allow the jury to infer that the misconduct was not as severe or outrageous as the city portrayed.
Mosk emphasized that Magnandonovan was not progressively disciplined for the incident with Biderman’s clerk, nor had she received any formal notices to correct deficient performance prior to being placed on administrative leave following the incident with Biderman’s clerk.
He also maintained that Magnandonovan provided plausible explanations to counter the city’s evidence, including testimony that she did not intend to refer to Biderman’s homosexuality and denying she was aware of Biderman’s sexual orientation, and gave credence to her claim that the city’s investigation into her misconduct was not neutral and deficient in several material aspects, in part because the investigator never interviewed Magnandonovan.
Coupled with evidence presented that the city was purportedly violating the settlement agreement resolving Magnandonovan’s prior FEHA complaint, Mosk concluded Magnandonovan had at least presented circumstantial evidence of pretext and retaliatory motive.
Magnandonovan joined the city attorney’s office in 1987 as a law clerk, and became a deputy city attorney in 1990. She became the supervising deputy of the Los Angeles City Attorney’s Hate Crimes Unit in 2001. She was discharged in 2003.
Senior Assistant City Attorney Claudia McGee Henry, who represented the city on appeal, said the discharge of Magnandonovan was “perfectly appropriate.”
Jon B. Eisenberg and William N. Hancock of Eisenberg and Hancock, Samuel J. Wells, and Michael P. King represented Magnandonovan.
Eisenberg said it is “very, very unusual” for an appellate court to “reweigh the evidence that was put before the jury” and reverse for insufficient evidence.
“I’m surprised to see it here,” he said, adding that he has prepared a petition for Supreme Court review of the decision.
He also predicted that the City Attorney’s Office “is likely to feel free in the future to play fast and loose with due process…which is a shame.”
The case Magnandonovan v. City of Los Angeles, B192892.
Copyright 2008, Metropolitan News Company