Filed 12/27/19 Flores v. City of Carlsbad CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JESSE FLORES,

Plaintiff and Appellant,

v.

CITY OF CARLSBAD,

Defendant and Respondent.

D074496

(Super. Ct.

No. 37-2014-00015129-CU-OE-NC)

APPEAL from a judgment of the Superior Court of San Diego County, Ronald F. Frazier, Judge. Affirmed.

Gilleon Law Firm, James C. Mitchell and Charles Moore for Plaintiff and Appellant.

Daley & Heft, Lee H. Roistacher, Mitchell D. Dean, Garrett A. Smee, and Heather E. Paradis; Office of the City Attorney, Celia A. Brewer and Walter C. Chung for Defendant and Respondent.

Corporal Jesse Flores sued the City of Carlsbad (the City) under the Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) for retaliation and failing to prevent retaliation by Flores’s colleagues and superiors at the Carlsbad Police Department. There was no dispute that Flores experienced general workplace harassment; the question was whether he experienced retaliation under FEHA. The jury returned a special verdict for the City, finding Flores did not “engage in protected activity by opposing what he reasonably believed was discrimination against him because of his race or national origin.”

Flores raises a single challenge on appeal. He contends a special jury instruction provided at the City’s request misled jurors to believe they could not consider general workplace harassment as circumstantial evidence that Flores opposed what he reasonably believed was racial discrimination. We conclude there was no instructional error. The two-sentence special instruction merely provided clarification as to what the case was about. It was not incorrect, misleading, unnecessary, or argumentative, and given the parties’ presentations at trial there is no reasonable likelihood it misled jurors in the manner Flores suggests. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Flores joined the Carlsbad Police Department (the Department) as a patrol officer in 2006. Two years later, he became a detective on the North County Regional Gang Task Force (Task Force), a cooperative project across state and federal agencies designed to investigate gang-related felonies. Flores struggled early on at the Task Force. Lacking prior investigative experience, he was labeled by his supervisors as more of a helper or “spear carrier” than a “case maker.” Nevertheless, his 2009 and 2010 performance reviews stated he was “meet[ing]” or “exceed[ing]” expectations. Flores was commended for “exceptional performance” in his March 2012 review, which praised his role in a recent Task Force operation.

Flores faced workplace friction from the moment he joined the Task Force. Task Force officers were supposed to interface with the Crimes of Violence Unit (COV) in the Department whenever that division was investigating gang-related felonies. From the start, Flores felt undermined and left out of the loop by COV officers. COV Sergeant Mickey Williams and his subordinate, Detective Bryan Hargett, openly criticized Flores for being incompetent, performing below par, overstating his qualifications, being in over his head, and acting like a “know-it-all.” Williams and Hargett admitted openly critiquing Flores, but described their complaints as performance-based.

The Task Force was housed within the Department’s Vice Narcotics Intelligence Unit (VNIU). VNIU and COV were the Department’s two special investigations units. Flores complained to his VNIU Sergeant Matt Lowe, but never described Hargett’s or Williams’s treatment as race-based. Lowe also believed Flores was being unfairly targeted by COV officers and tried unsuccessfully to have another VNIU detective named Eric Hoppe bridge communication divides for Flores. But Lowe did not understand why Flores was being singled out and did not suspect the mistreatment was race-based.

As Flores would testify at trial, he had mentally eliminated all other possibilities and settled on race discrimination as the reason for Hargett’s and Williams’s harsh treatment of him. Yet the jury would learn that Hargett worked well with another Hispanic detective on the Task Force and viewed that person as a friend and mentor. Only Flores and one former colleague recalled hearing of Hargett making derogatory remarks about Mexicans or Hispanics. And that colleague admitted he reported these remarks only after Williams fired him and Hargett stopped being friendly.

The Department reorganized around 2011, with Sergeant Lowe reassigned from VNIU to patrol. Before Lowe departed, he informed Investigations Division head Captain William Rowland that Flores had been subjected to violations of Administrative Order No. 45 (Admin 45), which set forth the Department’s “Respectful Workplace and Non-discrimination Policy.” Rowland informed human resources of Flores’s complaint. Midway through April 2012, Flores decided not to move forward with an Admin 45 complaint, assuring the human resources manager it was “just a matter of his co-workers being immature.”

About a week later, on April 27, Williams and Hargett held a meeting to discuss a pending COV homicide investigation. Flores dropped by and revealed that a confidential informant had told him the whereabouts of a wanted suspect in Mexico six weeks prior. He apologized for not conveying the tip sooner, blaming a ” ‘brain fart.’ ” Upset at the delayed disclosure, Williams ordered Flores to prepare a report. Flores said his confidential informant file was under lock and key and could be accessed only by Task Force sergeants; later, those sergeants denied the existence of a confidential informant file. Given this discrepancy and ambiguities in Flores’s later-submitted report, Flores’s superiors suspected him of dishonesty. The Department placed him on paid administrative leave on May 3 pending an internal affairs investigation.

After the internal affairs investigation began, Flores informed human resources in June 2012 that he wanted to reopen his Admin 45 complaint. As he would admit at trial, this was the first time he asserted his belief that Hargett’s and Williams’s mistreatment was race-based. An outside investigator met with witnesses over the summer and submitted her report in October. That report found “absolutely no hint of race discrimination” but concluded that Hargett violated Admin 45 through his unprofessional conduct, while Williams violated Admin 45 by failing to adequately supervise Hargett.

Meanwhile, the internal affairs investigation into Flores’s alleged dishonesty concluded by sustaining the charge. After Captain Rowland issued a notice of intent to terminate Flores in September 2012, Flores submitted additional evidence at a Skelly hearing. In January 2013, nine months after his positive review and a few months after the outside investigator’s Admin 45 report, Flores was terminated. The internal affairs investigation did not consider the allegations in or results of the Admin 45 action.

Flores administratively appealed his termination. In February 2014, an arbitration hearing officer concluded the Department failed to show “just cause” for terminating Flores. The Department did not appeal that finding and reinstated Flores in March 2014.

Flores believed his mistreatment continued post-reinstatement. He was placed on administrative leave in late 2014, investigated, and ultimately cleared of wrongfully possessing a portion of the outside investigator’s Admin 45 report. Flores was not approved for certain trainings, though the police chief stated he received “as much, if not more, training” than other officers. Flores was denied a position as field training officer in 2016. However, he was promoted to corporal in March 2017 and automatically became a field training officer at that point. A year later he was selected to join the Narcotics Task Force within VNIU.

After receiving a right-to-sue letter from the U.S. Equal Opportunity Employment Commission, Flores filed this action against the City. His operative Fourth Amended Complaint alleged that from 2009 to 2012, and after his reinstatement in 2014, Williams, Hargett, and the lieutenant heading Special Investigations harassed him based on his race, national origin and ancestry. Flores asserted two causes of action under FEHA. The first was for retaliation (Gov. Code, § 12940, subd. (h)). Flores alleged the Department retaliated after he complained of racial discrimination by instituting an internal affairs investigation, placing him on administrative leave, removing him from the gang task force, placing him on the District Attorney’s list of dishonest officers, and firing him. He claimed this treatment continued after his reinstatement, with the Department issuing warnings and reprimanding him, placing him on administrative leave, and denying promotions, training, and special assignments. In his second cause of action, Flores alleged the Department violated FEHA by failing to take reasonable steps to prevent retaliation (Gov. Code, § 12940, subd. (k)).

The case proceeded to a three-week jury trial in March 2018. To establish a prima facie case of retaliation under FEHA, Flores bore the burden to show: (1) he engaged in protected activity; (2) the employer subjected him to an adverse employment action; and (3) a causal link. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) An employee engages in protected activity not only when he opposes conduct that is ultimately found to be discriminatory, but also when he opposes conduct that he reasonably and in good faith believes is discriminatory. (Id. at p. 1043.) In determining employer liability, the relevant question ” ‘is not whether a formal accusation of discrimination is made but whether the employee’s communications to the employer sufficiently convey the employee’s reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner.’ ” (Id. at p. 1047.)

Flores sought to show that his career was derailed in 2012 after he complained of racial discrimination. The City admitted that Hargett did not like Flores and that Williams had performance-related concerns. But it argued that no one had any inkling Flores was complaining of racial discrimination when these actions were taken.

At the City’s request, and over Flores’s objection, the court provided jurors with the special jury instruction central to this appeal (discussed post). The jury returned a special verdict in the City’s favor, with nine jurors answering “No” and three answering “Yes” to the following question:

“1. Did the plaintiff Jesse Flores engage in protected activity by opposing what he reasonably believed was discrimination against him because of his race and national origin, Hispanic/Mexican-American, by employees of defendant City of Carlsbad?”

The court entered judgment in favor of the City.

DISCUSSION

Flores seeks reversal on a single ground. He argues the court prejudicially erred by providing a special instruction clarifying that the case involved a specific kind of retaliation. According to Flores, the special instruction was unnecessary because the standard CACI instructions adequately described the elements of his claims. He also challenges the instruction as argumentative for telling jurors what the case was not about, and erroneous for implying the case was not about general workplace harassment. In Flores’s view, the special instruction misled jurors into thinking they could not consider hostile workplace evidence as circumstantial proof supporting Flores’s reasonable belief that he was opposing racial discrimination when he made his complaints. As we explain, no instructional error occurred.

A. Additional Background

Near the end of trial, the parties discussed jury instructions. The City requested a special instruction clarifying that the case was about “a specific kind of retaliation” and “not one for general claims about a hostile workplace or general workplace harassment.” Flores objected, arguing that other instructions adequately explained what the case was about, making the proposed special instruction unnecessary. The City replied that there was ample testimony about a hostile workplace and general harassment at trial that “lends itself to confusion,” and the special instruction would help focus the jury on the narrow claims asserted. The court decided to give the instruction to the jury.

After both sides rested, the court began its instructions with directions on evaluating trial evidence and Flores’s burden of proof. It explained that “the hearing officer’s decision [in the internal affairs investigation] is conclusive proof the City had no just cause to terminate Jesse Flores.” However, “the hearing officer did not determine whether the City retaliated against Jesse Flores.” That would be the jury’s job—”to decide . . . whether the City of Carlsbad’s termination of Jesse Flores was for a retaliatory reason, his opposition to race or national origin discrimination.” Immediately after, the court provided this special instruction:

“This case is not one for general claims about a hostile workplace or general workplace harassment. It is a more limited case alleging a specific kind of retaliation, as explained more fully in other instructions I will give or have given.”

It proceeded to instruct jurors on the essential elements the FEHA causes of action. As relevant here, CACI No. 2505 explained in part:

“Jesse Flores does not have to prove race or national origin discrimination against him in order to be protected from retaliation. If he reasonably believed that the conduct by employees of the City of Carlsbad was unlawful discrimination because of his race, or national origin, he may prevail on a retaliation claim even if he does not present, or prevail on a separate claim for race or national origin discrimination.”

Closing arguments followed. The City started its closing argument by quoting the special instruction and explaining: “this is not a case of, quote, a campaign of mistreatment. This is not a case of, quote, two men did wrong over a four-year period. . . . It’s a specific, specific, very specific case. It’s a very narrowly focused case.” “There are other cases [Flores] could have brought, but he brought this one. I was retaliated against for complaining of racial discrimination.”

During deliberations, the jury submitted a note asking: “what does ‘reasonably believed was descrimination [sic]’ mean? Is this based on evidence / testimony or just how Corporal Flores felt?” After the parties settled on the appropriate response based on CACI No. 2505, the court answered: ” ‘Reasonably believed was discrimination’ means based on all of the evidence which includes testimony.” In a second note the jury asked for a read-back from Sergeant Williams’s cross-examination testimony.

Thereafter the jury returned a special verdict in the City’s favor, with nine jurors finding Flores did not engage in protected activity under FEHA by opposing what he reasonably believed was race or national origin discrimination.

B. Legal Principles

“A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence. The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the party’s theory to the particular case.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).) However, a court may refuse to give a proposed instruction “that incorrectly states the law or is argumentative, misleading, or incomplete” or is adequately covered by the other instructions. (Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466, 475 (Alamo).)

We review de novo whether a trial court’s instructions were proper. (Cristler v. Express Messenger Systems, Inc. (2019) 171 Cal.App.4th 72, 82.) If a party challenges a particular jury instruction as incomplete or incorrect, we consider it not in isolation but rather in connection with the instructions given as a whole. (Ibid.) If an instruction is challenged as ambiguous, we evaluate whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction in the manner suggested. (Ibid.) “A reviewing court must adopt the construction of jury instructions which will support rather than defeat the judgment if they are reasonably susceptible to such interpretation.” (Little v. Stuyvesant Life Ins. Co. (1977) 67 Cal.App.3d 451, 465.)

If error is found, reversal is not required unless it resulted in a miscarriage of justice. (Soule, supra, 8 Cal.4th at p. 580; Cal. Const., art. VI, § 13.) It must be reasonably probable that a result more favorable to the appealing party would have been reached absent the instructional error. (Alamo, supra, 219 Cal.App.4th at p. 476.)

C. No instructional error occurred.

Contrary to Flores’s claim, there is no basis to conclude that jurors understood the special instruction to prevent them from considering evidence about Flores’s workplace harassment. Concededly, the instruction was not perfect—it told jurors the case was about a kind of retaliation “as explained more fully in other instructions I will give or have given.” Standing alone, it is ambiguous as to what kind of retaliation the case was about. But these concerns evaporate once we consider the instructions as a whole and the trial record.

The challenged instruction clarified that the case was about a specific kind of retaliation based on complaints of race and national origin discrimination; it did not concern retaliation for complaining in general about workplace harassment. The court sandwiched this instruction between: (1) its statement that Flores was terminated without “just cause,” and it would be the jury’s role to decide whether the termination was for retaliatory reasons, and (2) the elements of a FEHA retaliation claim (CACI No. 2505). After CACI No. 2505 the court proceeded to define concepts of “substantial motivating reason” (CACI No. 2507), “adverse employment action” (CACI No. 2509), and “cat’s paw” (CACI No. 2511) before defining elements for failure to prevent retaliation under FEHA (CACI No. 2527).

Flores suggests the special instruction was not an accurate statement of the law because it did not describe an element of a claim or defense. It did not need to. The special instruction was “similar in function and purpose to ‘pinpoint’ instructions” (Soule, supra, 8 Cal.4th at p. 581), which ” ‘relate particular facts to a legal issue in the case’ ” (People v. Gutierrez (2009) 45 Cal.4th 789, 824). Though it may not have added much, the special instruction did not misstate the law.

Flores argues his FEHA action was “all about a hostile workplace or general workplace harassment of him by Williams and Hargett.” Fair enough. As the closing arguments showed, hostile treatment was at the heart of both parties’ presentations of the case. They simply disagreed what to make of it.

Flores’s counsel argued “this dislike and this treatment of Flores is unnatural to the extreme,” supporting a reasonable belief it was race-based, not performance-based. As he does on appeal, his counsel underscored that the Admin 45 policy regulated both respectful workplace concerns and nondiscrimination; consistent with this policy, Flores’s Admin 45 complaint was labeled a “Respectful Workplace & Non-Discrimination Complaint.” Trial counsel urged the jury to infer from this evidence that Flores opposed what he reasonably believed was racial discrimination.

The City offered a different view. Flores admitted that he did not complain of race discrimination until reopening his Admin 45 complaint in June 2012. Several witnesses viewed Flores’s complaints as opposing a hostile workplace, not opposing racial discrimination. The City conceded there was hostility in the workplace, particularly between Flores on one hand and Hargett and Williams on the other. But it urged the jury to conclude that this workplace conflict did not amount to retaliation under FEHA because Flores could not reasonably believe that the harassment by Hargett and Williams was based on race or national origin.

A large portion of trial testimony focused on Hargett’s and Williams’s criticism of Flores and whether those critiques were reasonable. As the parties’ closing arguments reflect, both sides agreed Flores faced hostile treatment but urged jurors to draw different inferences from it. In this context, we see no reasonable likelihood that the jury construed the special instruction as preventing it from considering the workplace harassment evidence that amounted to the crux of the three-week trial.

That leaves us with Flores’s remaining contentions that the special instruction was unnecessary and argumentative. Flores argues it was unnecessary because other instructions correctly instructed the jury on all elements of his FEHA claims. We disagree. The subject matter of the special instruction—a clarification of what the case was and was not about—is not covered by the CACI instructions. Moreover, clarification may have been necessary given the sheer volume of hostile workplace evidence and one juror’s question early at trial whether Flores’s case was about race discrimination, retaliation, or both.

We further disagree that telling jurors what the case was “not” about made the special instruction argumentative. ” ‘Instructions should state rules of law in general terms and should not be calculated to amount to an argument to the jury in the guise of a statement of law. [Citations.] Moreover, it is error to give, and proper to refuse, instructions that unduly overemphasize issues, theories or defenses either by repetition or singling them out or making them unduly prominent although the instruction may be a legal proposition.’ ” (Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 359.)

The special instruction did not violate these principles. It merely directed the jury to focus its attention on whether the evidence showed retaliation under FEHA, that is, retaliation for complaints about harassing conduct that Flores reasonably believed reflected race or national origin discrimination. Language that the case was “not one for general claims about a hostile workplace or general workplace harassment” was not argumentative. Both sides agreed Flores faced hostile treatment but disagreed as to its import under FEHA. In this context, an instruction that the case was not about general hostile treatment—but about a specific kind of retaliation alleged by Flores—did not unduly emphasize either party’s theory of the case.

In sum, no instructional error occurred.

DISPOSITION

The judgment is affirmed. Respondent is entitled to costs on appeal.

DATO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

HALLER, J.