California Court of Appeals Reverses Retaliation Verdict using a Tortuous Analysis of What a Plaintiff Needs to Prove in a Retaliatory Termination Case

March 6, 2012


The California Court of Appeal overturned a $2 million dollar award to a Los Angeles police officer who it was admitted was fired solely because he complained of sexual harassment. Sounds like a good case? Too good for this court panel, which turned logic on its head in finding that it was legal to fire Officer Joaquin in retaliation for his filing a sexual harassment complaint. The Court found that, even though the jury found the plaintiff to be fired because he filed this complaint, that it wasn't illegal because an internal panel (known as the Board of "Rights") found that his complaint was false.

In this case, Officer Joaquin filed an internal charge of sexual harassment. His statement as to what happened certainly contains evidence that would permit any jury to find that he was sexually harassed. He recited how a Sergeant sexually harassed him, asked him on a date, and after Officer Joaquin told him he was not interested, continued to pursue him by, inter alia, following him around and making inappropriate comments, such as "you look nice standing there." Joaquin v City of Los Angles (Jan. 23, 2012) 202 Cal.App.4th 1207.

As stated above, Joaquin filed an internal complaint of sexual harassment. The Sergeant filed an internal complaint against Joaquin, and it took off from there with an Internal Affairs investigation, and a finding by a panel somewhat inappropriately labeled the "Board of Rights" (which consisted of two management level officer, who very well may have been biased and certainly weren't outside neutrals, and one community member). The Board of Rights determined that Joaquin had fabricated his claims. Joaquin disagreed with the Board's finding and filed a writ of mandate. The Superior Court, which heard the writ, agreed with Joaquin and ordered him reinstated. After that, Joaquin filed this action in court alleging retaliation. The jury not only found in his favor, but really found in his favor, awarding him $2 million.

Enter the Court of Appeals...The California Court of Appeals opened its discussion of the facts of this case by noting that, "This case has a somewhat tortuous procedural history." It is absolutely true that the case has a tortured history, but, as indicated below, it is the Court of Appeals reasoning that most truly is tortuous.

This case obviously involves issues of credibility. Joaquin claims sexual harassment and retaliation; his Sergeant claims that Joaquin made these claims up to avoid disciplinary action. One of them is lying. The jury is supposed to decide, after hearing the evidence and seeing the witness, who is lying and who is telling the truth, right? The Court of Appeals admits: "Actions for unlawful discrimination and retaliation are inherently fact driven, and we recognize that it is the jury, and not the appellate court, that is charged with the obligation of determining the facts." Nonetheless, the Court of Appeals turned this statement of the law - and logic- on its head by managing to reverse the verdict, usurping the jury's power, and pronouncing its own fact finding that Joaquin's claims were fabricated, even though obviously the jury believed the opposite!

The Court of Appeals laid the fault at the feet of the standard jury instructions on retaliation. These jury instructions require that a jury find "...that Richard Joaquin's reporting that he had been sexually harassed was a motivating reason for the City of Los Angeles' decision to terminate Richard Joaquin's employment or deny Richard Joaquin promotion to the rank of sergeant." The Court declared that these jury instructions were inadequate and furthermore that there was not enough evidence that Joaquin's termination was retaliatory. The Court went through a tortured analysis of what it considered to be the retaliatory intend necessary to find for a plaintiff, and in doing so ignored much of the law which clearly establishes that an employer may be responsible for retaliation when the decision maker or the decision making is tainted by others who harbor a retaliatory intent. See, Reeves v. Safeway Stores (2004) 121 Cal.App.4th 95; Yanowitz v. L'Oreal (2005) 36 Cal.4th 1028. The Court of Appeals appears result driven; that is, driven to reverse this verdict.

The only solace that can be taken from the Court's overreaching and interference with the jury's determination is that, as said by the Court itself, this case was one involving "unique facts."

Jody LeWitter
March 6, 2012