Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. BC336783. Michael L. Stern, Judge. Affirmed.
Rockard Delgadillo, City Attorney and Paul L. Winnemore, Deputy City Attorney for Defendant and Appellant.
Litt, Estuar, Harrison & Kitson, Robert Kitson and Genie Harrison; Pine & Pine, Norman Pine and Janet Gusdorff for Plaintiff and Respondent.
CHAVEZ, J.
The City of Los Angeles (the city) appeals from a judgment in favor of respondent Lewis S. Bressler (Bressler) entered following a jury trial on Bressler’s claims against the city for retaliation and failure to prevent retaliation.
Bressler was an employee of the Los Angeles Fire Department (LAFD). Bressler’s claims against the city were based on Bressler’s allegations that the city and several of its employees retaliated against Bressler after he (1) reported a sexually inappropriate comment made by Captain II Wesley Elder (Elder); and (2) made verbal and written reports about discrimination and harassment directed at Firefighter Brenda Lee (Lee), an African-American, lesbian.
The city contends that the trial court erred in denying its motion for nonsuit on Bressler’s retaliation claim because (1) Bressler was not subjected to an adverse employment action concerning his reporting of Elder’s sexually inappropriate comment; and (2) no substantial evidence exists from which a reasonable jury could infer unlawful retaliatory motivation on the part of the relevant decisionmakers. The city further contends that the competent evidence is insufficient to support a finding of unlawful retaliation because the city proffered a legitimate, nonretaliatory reason for every employment action taken against Bressler. Finally, the city contends that because Bressler failed to present sufficient evidence on the underlying retaliation claim, the trial court erred in denying the city’s motion for nonsuit on the failure to prevent retaliation claim.
FACTUAL BACKGROUND
Bressler served as Fire Captain I with the LAFD for 26 years. Prior to his employment with the LAFD, he had been a firefighter and a fire captain with another city for 10 years. From 1983 through July 2004, Bressler was assigned to LAFD Fire Station 96 in Chatsworth. With the exception of his first performance evaluation, and his last performance evaluation, Bressler always received a “satisfactory” or “satisfactory plus” rating from his supervisors at the LAFD.
1. Bressler reports Elder’s sexually inappropriate remark
In 2001, Bressler received a report from a subordinate, Firefighter Carl Debono (Debono), that Elder had made an inappropriate sexual comment about another firefighter’s wife. Bressler reported the comment to his immediate superior, Captain II Alvin Jacobsen (Jacobsen). As Bressler was reporting the incident to Jacobsen, the Battalion Chief who oversaw Fire Station 96 entered the station. Jacobsen told Bressler to repeat his description of the incident to the Battalion Chief, and Bressler did so.
The trial court determined that the precise comment was “inflammatory,” therefore it was excluded from evidence at trial and instead, the parties agreed to refer to the statement as “sexually inappropriate.”
Elder was disciplined with a three-day suspension and a one-month transfer to another fire station. Bressler testified that shortly before Elder was disciplined, Elder confronted Bressler for failing to warn him that Bressler intended to report the remark. After Elder was disciplined, Bressler worried that Elder held a grudge against him. Bressler testified that Elder brought up the incident numerous times with him over the course of the next three years. Lee testified that she had heard Elder indicate that he was going to “get” Bressler, and that Elder explained to her that Bressler “didn’t have any right to turn him in” and that “it should have stayed . . . at the station level.” In addition, Firefighter Gary Mellinger (Mellinger) testified that it was “common knowledge” at the station that Elder “blamed” Bressler for reporting the incident.
Jacobsen testified that Elder expressed to Jacobsen on “a couple of occasions” that he would have preferred if Bressler “brought it to him before it was reported.” Jacobsen testified that Elder “obviously was upset with his situation and what happened . . . this is when I seem[ed] to pick up quite a bit of negative comments about [Bressler].” Jacobsen further testified that before Elder was disciplined, Jacobsen could not recall Elder bringing negative information about Bressler to his attention. And, while Elder never directly indicated to Jacobsen that he was trying to “get back” at Bressler, he would often repeat negative information about Bressler, referring to incidents that occurred six months or a year earlier. In addition, Debono testified that a few days after Bressler reported the incident, Elder telephoned him at home, “trying to get to the bottom of who basically ratted him out.” Elder expressed to Debono that he would have preferred that Bressler had come to him first “before it got to the higher ups.” Bressler testified that he discussed Elder’s “vendetta” against him with Jacobsen, who commented: “Elder just cannot get over it. He has a vendetta against you, and he’s not going to rest until he gets you.”
2. The Londelius fire
In August 2003, there was a fire on Londelius Street in Chatsworth during which a house sustained significant damage. Battalion Chief Robert Rose (Rose), who was the commanding officer at the scene of the fire for a time, undertook an investigation of the fire. Rose testified that one of the problems with the fire was “poor interior fire attack.” Rose concluded that there were problems with the operations of several fire companies, including Bressler’s. In addition, Rose faulted himself for not positioning himself on the other side of a large hedge in front of the house. While Rose spoke with Bressler about his conclusions regarding the fire, he did not impose any kind of corrective or disciplinary action with respect to Bressler’s involvement in the fire. After the investigation, Rose closed the matter and did not forward his results to any superiors.
Bressler presented evidence suggesting that although Elder was not present at the Londelius fire, Elder used the facts surrounding the fire to tarnish Bressler’s reputation. Specifically, Lee, Debono, and Mellinger testified that Elder referred to the Londelius fire as “the Bressler fire.” Debono explained that this label was attached to the Londelius fire by Captains Elder, Hare, and Ruddick, “and then it spread from there.” In addition, Debono testified that he heard Elder making remarks about Bressler’s firefighting abilities by stating that “[Bressler] was afraid to go inside of a burning building, and that’s probably why he delayed so long getting into the fire.” Mellinger testified that Elder spoke about Bressler’s performance at the fire in a derogatory manner. In addition, Rose asked Mellinger to write up an account of what happened at the Londelius fire. When Elder saw Mellinger’s write up, Elder said to Mellinger in an angry tone: “you don’t have anything in here about what [Bressler] did at the fire.” Mellinger stated that he had never heard Elder criticize the other fire captain or fire chief present at the Londelius fire.
Captain I Christopher Hare (Hare) and Captain II Roger Ruddick (Ruddick).
3. Draft 2003-2004 performance evaluation
Elder was not Bressler’s supervisor, because Elder was assigned to the “C” Platoon and Bressler was assigned to the “B” Platoon. Jacobsen, who was the same rank as Elder, was responsible for Bressler’s evaluation. Shortly before Jacobsen administered Bressler’s 2003-2004 evaluation, he indicated to Bressler that “there were going to be some negative entries on it, and that he was under a lot of pressure to do this.” In sum, Bressler testified that Elder negatively influenced Jacobsen to give Bressler a bad evaluation.
The first draft of the 2003-2004 performance evaluation rated him “satisfactory-minus” overall, and “improvement needed” or “improvement needed-plus” in four critical performance areas: initiative, leadership, disciplinary control, and firefighting tactics. Bressler testified that he was shocked. He went through the evaluation, asking Jacobsen where the negative information came from. Jacobsen replied, “Captain Elder.”
Bressler complained to Battalion Chiefs Cramer and Barry about the draft evaluation, informing them of his report about Elder and Elder’s influence on the draft evaluation. Cramer e-mailed Division Chief Roderick Garcia (Garcia) and stated his concern that the bad ratings lacked “sufficient objective justification.”
Battalion Chiefs Robert Cramer (Cramer) and Douglas Barry (Barry).
As a result of Cramer’s comments, Bressler’s overall rating was raised to “satisfactory,” and two categories were raised from “improvement needed” to “satisfactory-minus.” Two key ratings, however, “firefighting tactics” and “leadership,” were lowered from “improvement needed-plus” to “improvement needed.” Bressler testified that despite the overall change in rating to “satisfactory,” he did not feel that the evaluation was satisfactory. While the “satisfactory” box was checked, the grader’s comments indicated that the person receiving the evaluation “doesn’t know how to fight a fire and doesn’t know how to lead a company. And if you don’t know how to do that, you just can’t hold a job of a captain.”
Jacobsen testified that, although Elder was not Bressler’s direct supervisor, “Captain Elder’s opinion, . . . including anything that related to [Bressler’s] performance, yes, those are items that I would take into consideration in an evaluation.” Jacobsen admitted that a source of the negative marks on Bressler’s evaluation was information “repeated . . . by Captain Elder on several occasions.” Jacobsen admitted that the evaluation “may have not been necessary if the environment wasn’t filled with as much flack as it was” including the “things by Captain Elder that were repeated several times over and over again.” As a result, Jacobsen felt he had to “do something formal . . . to address” these negative comments.
Bressler presented evidence that he was a competent firefighter who had always been rated satisfactory or better throughout his career. He had been rated “satisfactory-plus” from 1999-2003. In particular, his rating for “firefighting tactics” had consistently been “satisfactory-plus” throughout the 1999-2003 time frame. In addition, just three months before the 2003-2004 performance evaluation, he was rated “excellent” and singled out for praise after his work fighting the Simi wildfires. Bressler’s commanding officer at the wildfires wrote: “[Bressler] and his crew did an outstanding job. They saved numerous homes where others would have given up. . . . EXCELLENT JOB LEWIS! THANKS!”
Bressler filed a grievance with the LAFD regarding the 2003-2004 evaluation, claiming that another firefighter overheard Elder talking with Jacobsen and trying to “torpedo” Bressler’s evaluation. Jacobsen was aware that Bressler was unhappy with the evaluation, but he stated that Bressler was “in agreement that we can work together.” It was Jacobsen’s intention that he and Bressler “would probably go on for years together at Fire Station 96.”
4. Reports concerning Lee
In September 2001, Lee was assigned to the C Platoon at Fire Station 96. Her superiors were Elder and Hare. Lee’s sexual orientation was commonly known at the station.
Shortly after being assigned to Fire Station 96, Lee began experiencing incidents of racial, sexual and sexual orientation discrimination from Elder and Hare. Lee could not report the discrimination and harassment to her own superiors, since they were the perpetrators.
Lee had worked with Bressler and felt that he was “professional,” therefore she began to talk with him about the offensive behavior she was experiencing from the captains on her shift. Among other things, Lee reported to Bressler that Hare referred to women as “whores” and “sluts,” bragged about being disciplined for calling a paramedic a “nigger,” used other derogatory terms for African-Americans, and referred to gay men as “faggots.” Lee reported that shortly before she was transferred to Fire Station 96, Elder told her that he did not want her there. On her first day at the station, Elder stated, “I don’t like your lifestyle” and informed her that another firefighter “can’t bring his daughters here because of you.” Elder also made sexual remarks about Lee’s living partner. Bressler reported that Elder had commented: “[I]f [Lee would] spend the night with one of the firefighters, she will be straight.”
Jacobsen testified to Bressler’s “ability to garner the respect of the people, enough that they would come and talk to him about various issues.” This was an important personal quality “because it helped with the morale of the fire station.”
In early 2004, Bressler verbally reported Lee’s complaints to Jacobsen and Battalion Chiefs Barry and Gary Bowie (Bowie). Bowie and Barry indicated that the reports were serious, and that “advocates” should be assigned to investigate the matter.
One day in March 2004, Lee found a male firefighter, Doug McCleery (McCleery), inside the women’s locker room at Fire Station 96. Lee had just come in from a “run” and had limited time to use the restroom. She had already begun undressing, after having passed through the first set of doors to the locker room, when she saw McCleery. She was startled and upset, and reported McCleery to the captain on duty, Captain II Michael McMaster (McMaster). In response to her report, McMaster called a “line up” of the firefighters, and stated, “Hey Doug. Lee doesn’t like the fact that you [were] in the women’s locker room.” Following this public reprimand, McCleery approached Lee aggressively.
After this incident, Lee informed Bressler that she wanted to make a formal report about the hostile work environment and discrimination she had been suffering. She told Bressler, “I think I want to make a report because I fear for my life and I fear for my safety . . . if something happens to me, I want someone else to have the information.”
After Lee informed him that she wanted to make a formal report, Bressler indicated that he would review the discrimination and harassment manual. Following this review, he again spoke with Lee, and she confirmed that she wanted to file a formal report. Together they drafted a memo requesting investigation into “ongoing discrimination and constant ongoing harassment” at Fire Station 96. Lee signed the memo, and Bressler gave it to Bowie. Bowie told Bressler, “We don’t want a letter from her, we want a letter from you.” Bressler then drafted a similar memo from himself, entitled “Formal Complaint,” which he gave to Bowie.
When Bressler handed Bowie the complaint, Bowie said to him: “Now I’ll need your evaluation.” Bressler complied and went to get the evaluation that he had been given a month earlier. Bowie told Bressler to sign it. Bressler checked the box indicating that he did not concur with the evaluation, signed it, and handed it to Bowie.
5. Garcia’s threat
After receiving the complaint from Bressler, Bowie called his superior officer, Garcia, to tell him about it. He informed Garcia that he would be requesting additional information from Bressler regarding the charges that he had raised.
On March 23, 2004, Bowie sent a memorandum to Bressler regarding the complaint. Bowie’s memorandum directed Bressler to submit another complaint memorandum by March 25, 2004, containing the following information:
“1. Describe each specific act of discrimination and harassment.
“2. How you were affected by each specific act.
“3. Why you believe the acts were a result of discrimination.
“4. The date of each occurrence.
“5. The names of any witnesses to the alleged acts of discrimination and harassment.
“6. Include any additional information that would be beneficial to support your claims.”
In addition, Bowie referred to an incident Bressler reported which took place on March 18, 2004. Lee had called Bressler at home to inform him that her locker had been opened and McCleery was looking at it. Bressler was directed to provide details of this phone contact. Bressler spoke with Bowie on March 23, 2004, and informed him that his response was due on the same day as the division evaluation.
On March 25, 2004, Bressler submitted a memorandum to Bowie in response to his inquiries. He stated that “due to the time limit . . . on this report,” he could not include all of the incidents of harassment at that time, but asked that “With your permission I will send additional information later.” However, Bressler did describe six incidents he felt constituted discrimination or harassment. Bressler explained that he could not “stand by and allow another member to be attacked, ridiculed and singled out like this,” and that he was “required to report this type of activity.” Bressler further explained that he believed the acts were a result of discrimination because “[t]hey all pertain to getting one member, who happens to be an African American, Female and a Lesbian.”
A “division evaluation,” in which fire companies are tested on various emergency response skills, took place on the same date. When the exercise was complete, Bressler received a radio call to report to Garcia’s car, which was parked nearby. He walked to the car, where he found Bowie and Garcia. Garcia began the conversation by stating “you better sign your performance evaluation and concur with it, or I’ll send somebody over there that will prove that you’re not satisfactory.” Garcia then asked Bressler about his reports of discrimination and harassment. Garcia asked specifically if Bressler had ever been the subject of discrimination, to which Bressler replied, “No, I never have.” Garcia then asked Bressler if he had ever been the subject of a hostile work environment, to which Bressler replied, “No, I never have.” Bressler explained that he was trying to report something affecting another firefighter. Garcia then stated that Bressler “better not report anything about racism or hostile work environment or [Bressler would] have one year of misery.” Garcia then told Bressler to return to his fire engine.
At some point during this conversation, Garcia also informed Bressler that “your hose lay didn’t go well” during the division evaluation.
Bressler testified that Garcia’s words hit him like a “sludge hammer (sic).” He returned to the engine feeling numb. Mellinger testified that he observed the meeting, and that it appeared that Garcia and Bressler were having a “heated exchange.” When Bressler returned to the fire engine, he was “visibly shaken,” “very red in the face,” and “he was shaking.”
6. The investigation
After his receipt of Bressler’s initial report, Garcia sent an e-mail to Chief Mario Rueda (Rueda) -- third in charge at the LAFD -- informing him of the allegations and his intention to seek “specific examples of hostile treatment to insure that [Bressler] is not trying to divert attention away from his own questionable performance.” In the event that Bressler was able to provide specific examples, Garcia suggested “a coordinated inquiry into the specific allegations,” insuring “that the majority of work is done by the captains.” When questioned at trial, Garcia indicated that the captains carrying out the inquiry would include Hare and Elder.
The investigation consisted, in part, of the Battalion Chiefs sending memoranda to Fire Station 96 directing the firefighters to answer certain questions in writing. When Lee’s platoon received the request to answer the inquiries regarding their own captains, Elder and Hare, they were reluctant to do so. Elder informed the crew, “I’ll make a format, and you guys can just sign your name to it.” Lee testified that she drafted a letter in response to the Battalion Chief’s inquiries, but did not turn it in. When she went to put it in the department mail to Rose, Elder stopped her and said “it has to go through me first.” Lee’s letter, which she testified was three pages long, was complete and included all the information requested regarding the harassment and discrimination at Fire Station 96. However, upon realizing that Elder would be reading the letter, she “told him this was a rough draft, and . . . turned around and headed back to the back of the station.” She then tore the letter into small pieces, and put the pieces in her pocket. Lee testified that she knew that “if I told the truth, I was gonna be in trouble.” Lee eventually turned in a different letter. Elder read the letter before Lee turned it in, and stated, “thanks for coming over to the good side.”
Evidence at trial showed that many of the firefighter’s responses to the Battalion Chiefs’ inquiries were remarkably similar, and two were identical. Debono testified that he told Elder that he would lie in response to the Battalion Chiefs’ inquiries. He later told Hare, “I lied through my teeth for you.” Debono testified that he told the truth at trial, admitting that “the racial slurs, the slurs about gays, lesbians . . . [were] pretty common at that point.” When asked why he was telling the truth at trial, Debono stated: “I was afraid of retaliation back then.” In addition, he “saw what happened to [Bressler], and I couldn’t just sit back and watch it continue. I felt obligated at that point to correct a mistake that I had made at the time and try to do my best to make things right.”
However, a memorandum from Mellinger confirmed that he had transferred from Platoon C -- the Platoon headed by Elder and Hare -- to Platoon B, “to escape the racism, harassment and constant criticism of members of other Platoons at F.S. 96. I . . . was concerned with the possibility that I might be caught in a situation that would make it appear that I was either condoning this behavior or participating in it.” Mellinger’s memo described in detail incidents of harassment and discrimination that he had witnessed, and by which he was victimized. In addition, it described in detail Elder’s “slander” of Bressler following the Londelius fire. In a section entitled “searching for reasons to attack [Bressler],” Mellinger described Elder as “fishing for information that he could use to further his mission to promote the rumor that [Bressler] is incompetent as an officer and firefighter,” and further explained that he felt “Captain Elder was disappointed” that Mellinger did not provide “information that he could use to attack [Bressler’s] fire-fighting skills.”
Garcia reviewed the Battalion Chiefs’ report following the investigation. Their report concluded that Bressler’s allegations were unfounded and recommended that no disciplinary action be taken.
7. Events following the arrival of Ruddick
Jacobsen went on leave in March 2004 and was replaced by a series of interim supervisors. In mid-April, Captain II Steve Ruda (Ruda) was placed at Fire Station 96 for a 60-day assignment. Ruda and Bressler got along well, and Ruda gave Bressler no indication that there was any problem with Bressler’s performance. Ruda’s assignment at Fire Station 96 was inexplicably cut short after only two weeks, and his replacement, who was personally invited by Garcia, was Ruddick.
Ruddick testified that Garcia personally invited him to Fire Station 96. The city points out that this testimony was contradicted by Garcia, who testified that Ruddick was initially assigned to Fire Station 96 by Garcia’s boss, without Garcia’s knowledge, but was permanently assigned there by Garcia.
Bressler’s theory was that Garcia placed Ruddick in charge of Bressler in order to make good on his “year of misery” threat, issued in March 2004, after Bressler reported racism and a hostile work environment at Fire Station 96. Garcia testified that Ruddick was assigned to Fire Station 96 in order to provide training to the company and to “help an officer who needed some training.” That officer was Bressler, who Garcia was “certain” would receive administrative training, operational and tactical training, and command training from Ruddick.
Debono and Lee testified that upon his arrival, Ruddick began treating Bressler, a 29-year veteran, like a “rookie.” Debono testified that Ruddick was very focused on Bressler, “like he was grading him.” Debono further testified that this type of scrutiny is a form of retaliation in the LAFD. Ruddick admitted at trial that a month after his placement at Fire Station 96, “at their request,” he began e-mailing Garcia and Bowie “on a daily basis” about Bressler. Ruddick began referring to the Londelius fire as “the Bressler fire,” and referred to Bressler as “incompetent.” Upon hearing this, Debono asked Ruddick where he was getting his information, since Debono knew that Ruddick was new to the station and had never been to a fire with Bressler.
Bressler presented evidence that Ruddick’s behavior towards him during Ruddick’s tenure at Fire Station 96 was bizarre, hostile, and threatening. On May 30, 2004, Bressler sent a memo to Bowie describing Ruddick’s behavior during a conversation between Bressler and Ruddick regarding Mellinger’s evaluation. During the conversation, Ruddick began yelling at Bressler, calling him inferior and a liar. The yelling continued for several minutes, and when Bressler tried to calm him down, Ruddick stated that “Chief[s] Garcia and Bowie sent him to straiten (sic) this place out and that he was given cart-blanch (sic) to do anything he wanted.” Bressler described this as “the most bizarre and hostile behavior I have ever witnessed.” Bressler testified that the following day Ruddick “went off” again, and appeared to be “on the brink of violence.” When Bressler attempted to re-word Mellinger’s evaluation to satisfy Ruddick, Ruddick ripped it up. Bressler explained: “He was standing over me, I was sitting in the chair, and the veins were out in his neck. And it was a real unusual expression. And then he just started tearing it up in real long, thin strips. And I thought that was really unusual since [there] was a shredder machine right beside him.” When asked to be more specific about Ruddick’s facial expression, Bressler stated: “Violent.”
In addition to drafting the memo, Bressler called Bowie. Bressler initially called Bowie at his office, and was informed that he had gone home. Bressler was given Bowie’s home phone number, so Bressler called him at home. Bressler informed Bowie about Ruddick’s bizarre behavior and stated that he “didn’t think it was safe physically to work with Ruddick.” Bowie’s response was: “Don’t ever call me at home.”
Bressler also described an incident following a brush fire drill in a vacant lot. Ruddick asked Bressler to demonstrate a “progressive hose lay.” Ruddick explained to Bressler that new equipment was recently placed on the engine. Upon attempting to carry out the hose lay, Bressler realized “the hose was old. It was not authorized L.A. Fire Department hose or fittings. And the fittings were corroded onto the threads of the nozzle, so the members had trouble.” The crew had to keep “breaking the fittings off the hose, and then reattaching the other sections.” While they were finally successful, it was not smooth. During the operation, Ruddick began yelling at Bressler, “And he just yelled this loud about seven times which was, I thought, embarrassing for him to act that way in front of a group of people.” Lee described the same incident in her testimony, stating that Ruddick got in Bressler’s face and stated: “You don’t know what you are doing.” She explained that she’d “never seen a captain talk to another captain like that. He was red from his neck to the top of his head yelling. And all of us were standing there . . . in shock.”
Mellinger also testified to Ruddick’s general demeanor towards Bressler. On several occasions, Mellinger heard Ruddick’s voice over the public address system asking Bressler to come to the front office. Mellinger testified that after Bressler attended these meetings, he would appear “completely flustered” and “scared.” Mellinger stated that a change came over Bressler during that time. He explained that “prior to a lot of this happening he was very up-beat, jovial. He was like a station cheerleader.” However, “as these meetings continued on, he just got more and more depressed and kind of withdrew inside himself.”
8. Corrective actions taken against Bressler
In addition to his general hostile behavior towards Bressler, Ruddick initiated formal action against him. On May 29, 2004, Ruddick issued a “notice to improve performance” to Bressler. Ruddick had recommended to Bowie that Bressler be given a reprimand, but Bowie reduced it to a “notice to improve.” Bressler admitted that he lied to Ruddick when Ruddick asked Bressler if Bressler had talked about Ruddick when he called Bowie at home. Ruddick testified that he issued the “notice to improve” to Bressler not because Bressler had called Bowie to complain about Ruddick’s behavior, but because Bressler had lied to him.
On June 5, 2004, Ruddick issued a second “notice to improve” to Bressler for failing the progressive hose lay drill, described above. Ruddick conferred with Bowie before issuing the “notice to improve,” and Bowie agreed it was appropriate.
Also, on June 5, 2004, Ruddick issued a “professional development prescription” to Bressler. Bressler did not think that the “professional development prescription” was appropriate, and he refused to sign it.
On June 6, 2004, Bressler formally responded to Ruddick’s corrective actions by sending a memorandum to Bowie. In it, Bressler stated that Ruddick’s “notices to improve” and “professional development prescription” were illegal because of his right “to a workplace free from discrimination, harassment and retaliation.” Bressler stated that “since I requested a Formal Investigation into complaints of discrimination, harassment, and hostile work environment at Fire Station 96, directed at an African American Female Firefighter and others, the Retaliation against me has been relentless causing me health problems, requiring medication loss of sleep (sic), loss of weight and the loss of a feeling of well being. I think that Chief Garcia Div 3 B is making good on his threats to me, about what would happen if I did not concur on the evaluation I received on 2/25/04.” Bressler claimed that “Captain Ruddick stated that he was sent by Chief Garcia to straighten me out,” and that “Capt. Elders (sic) attacks are due to a suspension he received 3 years ago, which he blames on me and they have conspired to Destroy my reputation in the Dept., and that Capt. Ruddick has been directed to build a negative file against me.” Bressler requested that the corrective actions against him be rescinded.
On June 10, 2004, Bowie issued a memorandum regarding department policy on use of the siren to Bressler, based on Elder’s complaints that Bressler was not using the siren properly. Bressler testified that “there was an ongoing situation where Captain Elder was complaining that I didn’t use the siren enough.” Bressler had been using the siren for 30 years and had never had a complaint before.
On June 14, 2004, Ruddick issued a “reprimand” to Bressler. Bressler testified that a “reprimand” is more serious than a “notice to improve.” It stays in the employee’s file for the rest of his career. Ruddick issued the reprimand following Mellinger’s performance evaluation. When Bressler and Ruddick presented Mellinger with the performance evaluation, Mellinger had some questions about it. When he asked Bressler if this was Bressler’s evaluation of him, Bressler replied that “I had rated [you] higher.” Ruddick became very angry at Bressler following this incident, calling Bressler a liar several times. The reprimand stated:
“[O]n June 12, 2004 during the presentation portion of an Annual Performance Evaluation you made statements calculated to shift responsibility for your actions to Captain Ruddick, having the affect (sic) of undermining Captain Ruddick’s effectiveness as part of the management team at Fire Station 96 ‘B’ Platoon. Specifically, when you were asked by the member receiving the evaluation if this was your assessment of him, you stated that you had initially rated him overall Excellent but that Captain Ruddick had directed to you change the overall rating by lowering it from Excellent to Satisfactory.”
On June 16, 2004, Ruddick re-issued Bressler’s “professional development prescription.” Ruddick testified that Bressler’s noncompliance was the reason that he re-issued the prescription, after discussing the issue with Bowie and the employee relations office.
On June 21, 2004, Ruddick issued a “direct order” to Bressler, ordering him to “comply with the previously issued Prescription for Improvement.” The direct order indicated that Bressler “failed to perform” by “ignoring the established deadlines” set forth in the prescriptions for improvement. It stated: “Failure by you to perform satisfactorily to this third direction by Captain Ruddick in the form of a direct order will be considered insubordination on your part. Insubordination is a violation of the Rules and Regulations and your failure to perform satisfactorily to this direct order may result in disciplinary action.”
On June 23, 2004, Bowie requested that Bressler be transferred out of Fire Station 96. At trial, Bowie denied that he requested the transfer because of Bressler’s allegations of a hostile work environment. Bowie stated that “[Bressler] appeared to be very unhappy at the assignment that he was at at that time; was resisting our -- our attempts to get him to improve his performance.” Bowie felt that a new assignment would “improve his situation and enable him to bring his performance level up to the department standards.” In Bowie’s memo to Rueda, Bowie stated that in his opinion, Bressler’s hostile work environment allegations suggested mental illness.
On June 25, 2004, Ruddick issued a memorandum restricting time off requests to Bressler. Bressler testified that “my rights and privileges were just cancelled with this.” He explained that it affected his ability to take time off, to trade duty shifts with other members, and to work overtime. The ability to trade shifts is a very important part of the firefighting job. Bressler took vacation days on June 30, 2004, July 1, 2004 and July 2, 2004, which he described in his testimony as “mandatory” vacation days.
On July 9, 2004, Ruddick issued a performance evaluation to Bressler rating him “unsatisfactory” overall. It was the first “unsatisfactory” evaluation that Bressler had received since his very first evaluation in 1979. Bressler was placed on “interim evaluations,” meaning that he would be evaluated every 30 days thereafter. Ruddick had another episode of “red face” yelling at Bressler that day. The paramedic on duty became concerned about Bressler and insisted that Bressler “sit down” and allow him to take Bressler’s blood pressure. Bressler’s blood pressure was elevated, and the paramedic said, “We need to either transport you to the hospital or you need to go home.” July 9, 2004 was the last day that Bressler ever worked for the LAFD.
9. Bressler seeks reassignment and is transferred to a less desirable pool position
Bressler sought a permanent assignment at Fire Station 108. His request was denied. Instead, Bressler was transferred to a pool position, which he described as “no position.” Bressler explained, “you are considered just a suitcase employee,” because “you just get a phone call every day, and they tell you where to go.” An individual assigned to a pool position can be required to go “anywhere in the city” on any given day, and therefore it is a position that can require a lot of travel. Bressler never reported to the pool position. Instead, he remained off work due to his symptoms of high blood pressure, inability to sleep, and panic attacks. Bressler testified that he had never experienced these symptoms prior to late 2003, early 2004, and that the symptoms resulted from his experiences at Fire Station 96.
Bressler testified that reassignments to positions involving significant travel are sometimes imposed as a form of discipline, commonly known as “freeway therapy.”
Bressler retired from the LAFD in January 2005. Bressler testified that he would have stayed on the job “if [the LAFD] would have just done a truthful investigation and told the captains that were acting inappropriately to stop it.”
PROCEDURAL HISTORY
Bressler filed this action against the city and several superior officers on July 19, 2005. Bressler alleged four causes of action: (1) discrimination; (2) harassment; (3) retaliation; and (4) failure to prevent retaliation. The matter proceeded to a jury trial against the city and Garcia, which began on March 28, 2007.
After presentation of the case to the jury, both Garcia and the city filed a motion for nonsuit. The motion was filed on April 11, 2007, seeking a nonsuit as to each cause of action against each defendant. Bressler’s opposition was filed on April 12, 2007, and the motion was heard on that date. The trial court granted the motion as to Garcia but denied it as to the city. The trial court found that there was insufficient proof of a nexus between Garcia’s personnel actions and Bressler’s allegations of discrimination, harassment, and retaliation.
Thereafter, the jury returned a special verdict, finding in favor of Bressler on his causes of action for retaliation and failure to prevent retaliation against the city. The jury awarded Bressler total damages of $1,730,848. Judgment on the special verdict was entered on April 13, 2007. On May 22, 2007, the city filed its notice of appeal.
DISCUSSION
Bressler’s first argument in opposition to the city’s opening brief is that the city waived its substantial evidence objections by submitting a grossly misleading statement of facts. Bressler correctly points out that the city is required “‘to set forth . . . all the material evidence . . . and not merely [its] own evidence,’” or else a claim of insufficient evidence is deemed waived. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) We agree that the opening brief omitted significant evidence. However, we decline to find that such omissions require a finding of waiver. While we do not condone the city’s failure to present all of the relevant evidence, we find that sufficient information was presented to show the significant conflicts in evidence. Therefore, we address the merits of the city’s claim.
A motion for nonsuit may be granted “‘“only when, disregarding conflicting evidence and giving to plaintiff’s evidence all the value to which it is legally entitled, [and] indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff . . . .”’” (CC-California Plaza Associates v. Paller & Goldstein (1996) 51 Cal.App.4th 1042, 1051 (CC-California), original italics.) In other words, a motion for nonsuit may only be granted where there is “no substantial conflict in the evidence.” In ruling on the motion, the trial court “does not consider credibility of witnesses but gives to the evidence of the party against whom [the motion for nonsuit] is directed all its legal value.” (Id. at p. 1050, original italics.)
“‘[T]he function of the trial court . . . is analogous to and practically the same as that of a reviewing court in determining, on appeal, whether there is evidence in the record of sufficient substance to support a verdict.’ [Citation.]” (CC-California, supra, 51 Cal.App.4th at p. 1051.) In determining whether substantial evidence supported the verdict, “‘we may not confine our consideration to isolated bits of evidence, but must view the whole record in a light most favorable to the judgment, resolving all evidentiary conflicts and drawing all reasonable inferences in favor of the decision of the trial court [or jury]. [Citation.] . . . [W]e must accept any reasonable interpretation of the evidence which supports the [factfinder’s] decision.’” (McRae v. Department of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377, 389 (McRae).) However, the evidence “‘must be of ponderable legal significance. . . . It must be reasonable in nature, credible, and of solid value; it must actually be “substantial” proof of the essentials which the law requires in a particular case.’ [Citations].” (Ibid.)
II. Standards applicable to Bressler’s retaliation and failure to prevent retaliation claims
Under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) it is unlawful for an employer to “discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceedings under this part.” (Gov. Code, § 12940, subd. (h).) It is also unlawful for an employer to “fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940, subd. (k).) A cause of action for failure to prevent retaliation may be stated under section 12940, subdivision (k). (Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1239-1240, disapproved on another ground by Jones v. The Lodge at Torrey Pines Partnership (2008)42 Cal.4th 1158, 1174.)
The California Supreme Court has set forth a three-stage burden-shifting test for trying retaliation claims brought under FEHA. The test requires an employee to meet the initial burden of establishing a prima facie case of retaliation. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) The burden then shifts to the employer to set forth a legitimate, nonretaliatory reason for the adverse employment action. (Ibid.) If the employer meets this burden, the burden shifts back to the employee to prove intentional retaliation. (Ibid.)
A prima facie case of retaliation is established by showing that the plaintiff: (1) engaged in “protected activity” by opposing conduct reasonably believed to violate FEHA; (2) a subsequent adverse employment action by the employer; and (3) a showing that a causal link exists between the employee’s protected activity and the employer’s action. (Yanowitz, supra,36 Cal.4th at p. 1042.)
III. Protected activity
The city does not dispute that Bressler established the first element of a prima facie case of retaliation. The “protected activity” requirement was satisfied by showing that Bressler opposed conduct that is unlawfully discriminatory under FEHA. (Yanowitz, supra,36 Cal.4th at p. 1043.) Among other things, Bressler established that he reported: (1) a sexually inappropriate remark made by Elder regarding another firefighter’s wife; and (2) the racial, sexual, and sexual orientation discrimination and harassment to which Lee was subjected.
IV. Adverse employment action
In discussing the adverse employment action element of Bressler’s retaliation claim, the city has separated its arguments regarding (1) the events following Bressler’s reporting of Elder’s sexually inappropriate remark; and (2) the events following Bressler’s reporting of the racial, sexual, and sexual orientation discrimination and harassment suffered by Lee. As to the first category, the city further breaks down the subsequent actions taken against Bressler, explaining why each action cannot independently be considered an adverse employment action.
We begin by noting that we need not analyze the actions taken against Bressler separately. Instead, we follow the Supreme Court’s mandate to “consider [the employee’s] allegations collectively.” (Yanowitz, supra,36 Cal.4th at p. 1056.) As the high court explained: “[W]e need not and do not decide whether each allegedly retaliatory act constitutes an adverse employment action in and of itself.” (Id. at p. 1055.) “[T]here is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging injuries [citation]” because “[e]nforcing a requirement that each act separately constitute an adverse employment action would subvert the purpose and intent of the statute.” (Id. at pp. 1055-1056, fn. omitted.) As the city admits, Bressler’s theory at trial was that Bressler’s reporting of Elder’s sexually inappropriate remark in 2001 set off a “chain of events” that eventually ended his career. Thus, we do not “‘confine our consideration to isolated bits of evidence, but . . . view the whole record in a light most favorable to the judgment.’” (McRae, supra,142 Cal.App.4th at p. 389.) “Retaliation claims are inherently fact-specific, and the impact of an employer’s action in a particular case must be evaluated in context.” (Yanowitz, supra, 36 Cal.4th at p. 1052.) The ultimate question is whether Bressler presented substantial evidence that he was “subjected to an adverse employment action that materially affect[ed] the terms, conditions, or privileges of [his] employment.” (Id. at p. 1051.)
The facts presented by Bressler show that any number of the actions taken by the city -- giving unjustifiably low marks on a performance evaluation; issuing two notices to improve and a reprimand; issuing a development prescription; restricting time off; requesting a transfer on allegations of mental illness; and ultimately giving an unsatisfactory performance evaluation -- are acts which are “reasonably likely to impair [Bressler’s] job performance or prospects for advancement or promotion.” (Yanowitz, supra,36 Cal.4th at pp. 1054-1055.) Under the analytical framework set forth by the Supreme Court, these actions collectively fall within the provisions of the FEHA, and are actionable.
In an argument that is incongruous with the analytical framework set forth by the Supreme Court, the city asks us to consider isolated evidence -- specifically, the 2003 draft and final performance evaluation, as well as the siren policy memorandum issued in June 2004 -- which Bressler showed were specifically influenced by Elder as part of his vendetta against Bressler. The city claims that neither document may be considered an adverse employment action, therefore no adverse employment action resulted from Bressler’s reporting of Elder’s sexually inappropriate remark. However, even if these two documents were not individually actionable, each came as one of at least nine other corrective actions taken against Bressler in a period of approximately five months. Thus, while the 2003-2004 performance evaluation and the siren memorandum may not have been discrete acts of retaliation, they may properly be considered in our review of the evidence as a whole. In addition, in its reply brief, the city devotes six pages to a discussion of why the transfer memo and its suggestion of “mental illness” did not constitute an adverse employment action; and three pages to a discussion of why the time-off restriction did not constitute an adverse employment action. We reiterate that, pursuant to the Supreme Court’s mandate, these individual actions should not be analyzed independently but only as part of “a series of” professional “injuries” which materially affected Bressler’s employment. (Yanowitz, supra, 36 Cal.4th at pp. 1051, 1056.)
In its discussion of the events following Bressler’s reporting of discrimination and harassment directed at Lee, the city acknowledges that “[a]t least one of those actions, the overall ‘unsatisfactory’ performance evaluation given by Captain Ruddick on July 9, 2004, is arguably an adverse employment action because a Captain needs to maintain at least a ‘satisfactory’ annual performance level.” Thus, the city concedes that the course of conduct attested to by Bressler and his supporting witnesses culminated in an adverse action which undoubtedly affected the terms, conditions, and privileges of Bressler’s employment.
Evidence of the barrage of corrective actions taken against Bressler in the spring of 2004, culminating with the unsatisfactory performance review, allegations of mental illness, and undesirable transfer, sufficiently established this element of Bressler’s prima facie case.
V. Causal link between the adverse employment action and the protected activity
In its discussion of the causal link element of Bressler’s retaliation claim, the city has again divided its arguments regarding (1) the causal link between Bressler’s reporting of Elder’s sexually inappropriate remark and the adverse employment actions that followed; and (2) the causal link between Bressler’s reporting of the racial, sexual, and sexual orientation discrimination and harassment suffered by Lee and the adverse employment actions that followed. As set forth below, we find that Bressler provided sufficient evidence linking each protected activity to the adverse events that followed.
A. Elder’s sexually inappropriate comment
The city argues that there was no causal link between Bressler’s protected activity and the employment actions specifically linked to Elder -- i.e., the 2003 draft and final performance evaluations and the siren memorandum. The city points out that the sexually inappropriate remark was reported in 2001, and the 2003 draft and final performance evaluations were given three years later, in February 2004. Moreover, the city argues, Bressler admitted that Elder did not negatively influence the 2001 and 2002 evaluations, and the siren policy memorandum was not issued until June 2004. Therefore, due to insufficient proximity in time between Bressler’s reporting of the comment and the adverse employment actions, Bressler cannot establish a prima facie assumption of retaliatory motive.
In support of its argument that proximity in time is a factor that may properly be considered in determining retaliatory motive, the city cites McRae, supra,142 Cal.App.4th at page 388. The McRae court confirmed that the employee “must show that the [adverse employment] decision is linked to the employee’s protected activity.” (Ibid.) However, this element may be established by circumstantial evidence. As an example, the McRae court explained: “A plaintiff can satisfy his or her initial burden under the test by producing nothing more than the employer’s knowledge that the employee engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision. [Citation.]” (Ibid.) While knowledge and proximity in time is one way of showing a causal link, nothing in the case suggests that proximity in time is a requirement for proving a causal link. Here, instead of showing proximity in time, Bressler showed the required causal link with more direct evidence.
Bressler testified that Elder spoke frequently to others about Bressler’s reporting of the inappropriate comment over the following years, and Bressler worried that Elder held a grudge against him. Lee testified that she had heard Elder say that he was going to “get” Bressler, and Mellinger testified that it was “common knowledge” at the station that Elder “blamed” Bressler for reporting the incident. Bressler testified that he discussed Elder’s “vendetta” against him with Jacobsen, who commented: “Elder just cannot get over it. He has a vendetta against you, and he’s not going to rest until he gets you.” Despite the passage of time, this evidence was sufficient to establish a causal link between the adverse employment actions linked to Elder and Bressler’s reporting of Elder’s sexually inappropriate remark.
The city further argues that Elder was not in a supervisory position to Bressler, and that Elder never evaluated or disciplined Bressler. However, the city presents no authority that the individual about whom the employee complains must be the same individual who takes the retaliatory action. Here, the employment actions were taken by individuals in a position of authority over Bressler. The evidence showed that they knew of Bressler’s protected activity and were influenced by Elder in making their decisions. In fact, Jacobsen admitted that there was a link between Elder’s negative comments about Bressler and the negative ratings on Bressler’s 2003-2004 performance evaluations. And there was evidence that the siren memorandum, issued several months later, was issued in response to Elder’s complaints about Bressler. This evidence was more than sufficient to show that Elder’s retaliatory animus provoked negative employment actions which were part of the “course of conduct” that ultimately ended Bressler’s career.
B. Harassment and discrimination against Lee
In discussing the adverse employment actions allegedly linked to Bressler’s reporting of discrimination against Lee, the city argues that there is no causal link because there was no evidence of retaliatory motive on the part of the relevant decisionmakers. The city discusses the individual decisionmakers separately, concluding that Bressler failed to show a retaliatory motive on the part of each one.
We reiterate that established law directs that “‘we may not confine our consideration to isolated bits of evidence, but must view the whole record in a light most favorable to the judgment, resolving all evidentiary conflicts and drawing all reasonable inferences in favor of the decision of the trial court [or jury]. [Citation.] . . . [W]e must accept any reasonable interpretation of the evidence which supports the [factfinder’s] decision.’” (McRae, supra, 142 Cal.App.4th at p. 389.)
In this case, the retaliatory acts presented to the jury were not committed by a single person. Instead, they were committed by several different individual decisionmakers. Adverse employment acts committed by each of these individuals contributed to the “course of conduct” which ultimately led to the end of Bressler’s career. In analyzing the evidence, we must view their actions collectively.
As discussed above, “the causal link element may be established by an inference derived from circumstantial evidence.” (McRae, supra, 142 Cal.App.4th at p. 388.) Such a causal link may be inferred through “nothing more than the employer’s knowledge that the employee engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision. [Citation.]” (Ibid.)
The evidence suggested that Garcia, Bowie, and Ruddick knew of Bressler’s protected activities. Garcia was a recipient of Bressler’s “Formal Complaint” concerning the discrimination and harassment against Lee, and was also the individual who personally threatened Bressler with “one year of misery” if he reported any more of such conduct at Fire Station 96. Bowie was also a recipient of Bressler’s “Formal Complaint,” and directly corresponded with Bressler regarding his request that Bressler provide further details. When he received the complaint, Bowie insisted that Bressler sign his 2003-2004 evaluation, with which Bressler refused to concur. In addition, Bowie was the instigator of the request to transfer Bressler out of Fire Station 96, which contained a suggestion that Bressler’s allegations of discrimination and harassment had to do with mental illness.
The evidence regarding Ruddick’s knowledge, while more indirect, also suggests that Ruddick was aware of Bressler’s protected activities. Bressler’s theory was that Garcia and Bowie had placed Ruddick at Fire Station 96 in order to make good on Garcia’s promise of “one year of misery.” Ruddick admitted at trial that a month after his placement at Fire Station 96, “at their request,” he began e-mailing Garcia and Bowie “on a daily basis” about Bressler. Ruddick began referring to the Londelius fire as “the Bressler fire,” and referred to Bressler as “incompetent” even though he had never been to a fire with Bressler. The jury was permitted to infer from this evidence that Ruddick had knowledge of Bressler’s protected activities -- and, indeed, was placed at Fire Station 96 with the specific purpose of retaliation.
Bressler’s formal complaint was presented to his superiors in March 2004, and the majority of the concrete retaliatory acts took place during May through July 2004. The individual decisionmakers’ knowledge of Bressler’s protected activities, coupled with the proximity in time to the adverse employment actions taken against Bressler, was sufficient for Bressler to meet the “causal link” element of his prima facie case of retaliation. (McRae, supra, 142 Cal.App.4th at p. 389.)
VI. The city’s evidence of legitimate, nonretaliatory motive
The city next argues that the city proffered a legitimate, nonretaliatory reason for every employment action taken against Bressler, and that Bressler failed to dispute these reasons. In essence, the city argues that the trial court’s decision to deny the motion for nonsuit was based on nothing more than Bressler’s belief that he was retaliated against.
If an employer shows a legitimate, nonretaliatory reason for its adverse employment action, the burden shifts back to the employee to prove intentional retaliation. (Yanowitz, supra, 36 Cal.4th at p. 1042.) However, on a motion for nonsuit, the court must disregard all conflicting evidence and indulge every legitimate inference in favor of the party against whom the motion is directed. (CC-California, supra, 51 Cal.App.4th at p. 1051.) Thus, we may justifiably give little weight to the city’s evidence of the legitimate, nondiscriminatory reasons for its employment actions, provided that Bressler has presented conflicting evidence of ponderable legal significance. (McRae, supra, 142 Cal.App.4th at p. 389.)
Bressler has provided such evidence. He presented evidence that Elder engaged in a personal vendetta against him, slandering him to his superiors and ultimately affecting his performance reviews. He further presented evidence that upon filing a formal complaint on behalf of Lee, he was threatened with “one year of misery” by Garcia. The evidence permitted the jury to infer that the adverse employment actions taken by Garcia, Bowie and Ruddick resulted from their intention to make good on that threat. Bressler offered evidence that the poor performance reviews, the development prescription, and the notice to improve, were unjustified based on his actual performance and his history of satisfactory service. In sum, Bressler presented evidence which was more than sufficient to satisfy his burden of showing that the legitimate, nonretaliatory reasons proffered by the city were mere pretext for their true, retaliatory motivation. The trial court did not err in permitting the jury to weigh that evidence and reach a reasoned conclusion as to the true motives behind the series of events which ended Bressler’s career as a fire captain.
VII. Failure to prevent retaliation
The city disputes the trial court’s denial of its motion for nonsuit on the failure to prevent retaliation claim on the sole ground that Bressler failed to provide sufficient evidence regarding the underlying retaliation claim. We have determined that Bressler presented sufficient evidence to support the jury’s verdict on Bressler’s retaliation claim. Therefore, the city’s argument regarding failure to prevent retaliation fails.
DISPOSITION
The judgment is affirmed. Appellant is to bear the costs of appeal.
We concur: DOI TODD, Acting P. J., ASHMANN-GERST, J.