Metropolitan News-Enterprise


Friday, September 15, 2017


Page 1


Court of Appeal Holds:

Adverse Employment Action May Be Based on ‘Political’ Factors

Reverses Judgment of Nearly $4 Million in Favor of Two LAPD Officers Who Were ‘Benched’ Based on the Fatal Shooting of an Unarmed Autistic African American Man


By a MetNews Staff Writer


The Court of Appeal for this district yesterday reversed a cumulative $3.98 million judgment in favor of two Hispanic Los Angeles Police Department officers who claimed they were discriminated against in their assignments after one of them fatally shot a 27-year-old African American man he thought was threatening them with a gun—but, it turned out, was unarmed and autistic.

The evidence showed that the officers were not penalized based on their ethnicity but, rather, because of their tactical errors and the “political implications” of returning them to the field in light of ire within the black community over the incident, Justice Elwood Lui Of Div. One declared. Los Angeles Superior Court Judge Gregory W. Alarcon, he said, should have directed a verdict in favor of the city.

“[T]he trial court should not have permitted the case to go to the jury based upon the evidence that the Officers provided,” Lui wrote.

On remand, Alarcon must scrap an award of $2.085 million in favor of Officer Allan Corrales, who on March 20, 2010 killed Steven Washington, and $1.9 million to Corrales’s partner, George Diego, and enter judgment for the city.

The officers claimed that based on their race and that of the victim, they were “benched”—denied field assignments—losing promotional opportunities and the chance of landing off-duty work. The fact that they were penalized was not in dispute; LAPD Chief Charlie Beck publicly stated:

“I do not have confidence in their ability to perform the duties of a field officer. I have no immediate intention of returning them to the field.”

The city has paid $950,000 to Washington’s mother in settlement of her wrongful death claim.

Lui’s Opinion

Lui noted that under Government Code §12940(a), it is an unlawful practice for an employer “because of the race...of any person, to...discriminate against the person in compensation or in terms, conditions, or privileges of employment.”

What the plaintiffs needed to show, he said, was that they were discriminated based on being Hispanic, with the race of the victim not being juxtaposed. On the other hand, Washington’s race could play a role in the city’s justification for confining the officers to desk duties, Lui wrote, explaining:

“In deciding whether to return the Officers to the field, the City could assess the political implications of doing so without violating employment discrimination laws. Those laws would not permit the City to treat the Officers differently because they are Hispanic, but they did not prohibit the City from assessing the risk management implications of returning officers of any race to the streets of Los Angeles who had been involved in a fatal shooting of an innocent, unarmed and autistic African-American man. The Officers claimed that African-American officers would have been treated differently, but they did not introduce any competent evidence to support that claim.”

The jurist went on to say:

“An employment decision based on political concerns, even if otherwise unfair, is not actionable under section 12940 so long as the employee’s race or other protected status is not a substantial factor in the decision….

“[A]bundant evidence, including some introduced by the Officers, supported the City’s claim that the Officers remained benched because of the possible consequences of returning them to the field, not because of their race.”

Washington’s Race Irrelevant

Lui said the jury should have been told it could not making a finding of discrimination by the LAPD against the officers  by taking into account that they are Hispanic and Washington was African American. He wrote:

“The lack of such an instruction permitted the Officers to blur the distinction between alleged differential treatment due to the race of the victim and the race of the Officers. For example, in closing argument the Officers suggested that any consideration of ‘race’ in how the Officers were treated was unlawful: ‘[W]hat we have shown you here is that both Diego and Corrales were essentially thrown under the bus because of race. And that is a big component in this case and I’ll show you why.’ The race of the victim was a prominent component of that theme. The Officers suggested that ‘the big elephant in the room, this was about race. Because two Hispanic officers had killed an unarmed African American.’ ”

Lui elaborated:

“Without considering alleged differences in the Officers’ treatment due to the victim’s race, the evidence is not sufficient to support the Officers’ employment discrimination claim.

“Uncoupling the Officers’ race from the race of victim Washington in analyzing the sufficiency of the evidence does not just preclude the Officers from relying on evidence that they were treated differently because their shooting involved an African-American man. Ironically, it also means that some evidence the Officers introduced helps support the City’s risk management justification.”

Beck testified that if the plaintiffs “were to get into a similar field situation and do something similar in the future, if they were involved in another, quote, unquote, ‘bad shooting,’ there’s not enough money in the city to cover that.” He said that risk management is “a big part of my job,” maintaining: “I have to look after my city.”

The officers also sued for retaliation, contending they remained benched—for an inordinately long period of time—based on having filed their lawsuit. Lui recited the original reasons for the benching, and said:

“The fact that the benching continued, even for the five-year period that the Officers identify as unusual, is fully consistent with that justification and cannot itself support a conclusion that the City’s motives changed after the lawsuit was filed.”

The case is Diego v. City of Los Angeles, 2017 S.O.S. 4644.

The attorneys on appeal were Deputy Los Angeles City Attorney Juliann Anderson, for the city, and Gregory W. Smith and Marla A. Brown, along with Douglas G. Benedon and Judith E. Posner of Benedon & Serlin for the officers.


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