Tuesday, January 24, 2012
C.A. Throws Out $2 Million Retaliation Award to LAPD Officer
By KENNETH OFGANG, Staff Writer
An award of more than $2 million to a Los Angeles Police Department officer who claimed he was retaliated against for accusing a superior of sexual harassment was tossed out yesterday by this district’s Court of Appeal.
Justice Steven Suzukawa, writing for Div. Four, said there was insufficient evidence to find that the LAPD Board of Rights had retaliatory animus or intent in finding that the sexual harassment complaint was fabricated and that Joaquin’s falsification of the complaint warranted termination.
Then-Police Chief William Bratton accepted the board’s findings and fired Joaquin in March 2006. He was reinstated after Los Angeles Superior Court judge found on independent review of the evidence that his testimony before the board was credible and that his filing of the complaint was justified, and then filed his Fair Employment and Housing Act retaliation suit.
Joaquin, a motor officer at Central Traffic Division from 1999 to 2006, claimed that he rebuffed a sexual advance by Sgt. James Sands and that Sands had been “stalking” him and falsely accused him of not complying with an order to return to the station at the end of a shift.
A captain at Central Traffic who had looked into Joaquin’s claim testified that the sergeant was “stunned” to hear of the accusation and “kept saying over and over, I didn’t do anything.”
When interviewed by an Internal Affairs investigator, Joaquin said Sands had asked him on a date in 2003, to which Joaquin responded that he was not gay and only dated women. Sands, he claimed, subsequently made a number of comments which he took to be sexually oriented and which he said he found disturbing.
Investigators found all of the allegations unfounded. At the completion of the investigation, Sands filed a complaint accusing Joaquin of falsifying the accusations.
Two IA investigators, after talking to 13 officers of various ranks, turned their findings over to the captain, who recommended that the claim of falsification be sustained and that the matter be heard by the Board of Rights.
The board, following a seven-day hearing, said it found Sands credible, that it doubted Joaquin’s version of events because it believed he would have made the accusations earlier if they were true, and that the accusations appeared to have been created as a defense against potential discipline over an incident in which he went “end of watch” without checking out with Sands.
In granting a writ of mandate, however, the judge found that “some or all of the events reported by Joaquin actually occurred,” that his account was “detailed and consistent,” and that while some or all of the incidents “may have been innocent or trivial,” the officer had a legal right to report them, even if he had a questionable motive for doing so.
The retaliation suit was tried before Judge William MacLaughlin. The jury returned a special verdict finding that Joaquin reported sexual harassment, that the report was a motivating reason for his termination, and that he suffered more than $2.134 million in damages, including $1.3 million for past and future mental and emotional suffering.
Suzukawa, however, said there was no substantial evidence that the Board of Rights had an improper motive for recommending that Joaquin be terminated.
“Joaquin is correct that there was a direct causal connection between his report of sexual harassment and the Board of Rights’ recommendation to terminate him,” Suzukawa wrote. “However, the Board of Rights did not recommend termination merely because Joaquin had reported sexual harassment, but rather because it concluded that he had fabricated the accounts of sexual harassment. In other words, the Board of Rights recommended termination not because Joaquin reported sexual harassment, but because it concluded that he had done so falsely.”
Title VII Analogy
The issue of whether an employer may be found liable for retaliation under FEHA in a case where it finds the employee’s otherwise-protected claims to be fabricated has apparently not been decided in a previously published case, Suzukawa explained. But federal courts hearing analogous claims under Title VII of the Civil Rights Act of 1964 have held that the employer does not act unlawfully when it acts without retaliatory intent and on the basis of a good faith belief that the employee committed misconduct, the justice noted.
“We believe the reasoning of these cases is sound, and we adopt it,” the jurist said.
The evidence presented by the plaintiff, the justice went on to say, did not support a claim that either the Internal Affairs investigation or the Board of Rights proceeding was tainted by any animus against Joaquin.
Suzukawa went on to suggest that the standard instruction on retaliation in violation of FEHA, CACI No. 2505, is flawed in that it fails to identify retaliatory intent as an element of the claim, and that “under the unique facts of the present case,” the omission “may have made a plaintiff’s verdict inevitable.”
The case is Joaquin v. City of Los Angeles, B226685.
Copyright 2012, Metropolitan News Company