Filed 10/16/13 Velasquez v. County of Ventura CA2/6

               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                                DIVISION SIX


ROBERT VELASQUEZ,                                                             2d Civil No. B238939
                                                                            (Case No. VEN00335343)
     Plaintiff and Respondent,                                               (Santa Barbara County)

v.

COUNTY OF VENTURA,

     Defendant and Appellant.




                   Plaintiff Robert Velasquez (Velasquez) sued the County of Ventura
(County) for wrongful constructive termination and for retaliating against him for
reporting alleged discrimination within the County's Bureau of Investigation
(Bureau) where he worked. The jury found for Velasquez, and awarded him $1.356
million in damages. The County challenges the sufficiency of the evidence
supporting these verdicts. We affirm.
                                                      FACTS
                   Because this is a substantial evidence appeal, we summarize the facts
in the light most favorable to the judgment below. (McCoy v. Pacific Maritime
Assn. (2013) 216 Cal.App.4th 283, 299 (McCoy).)
                   Velasquez worked as a sworn peace officer and investigator in the
Bureau, a branch of the County's district attorney's office, from 1987 until he
resigned in December 2009. He began as an investigator, was promoted to senior
investigator in 1992, and by 2004 was solely managing different investigatory units
within the Bureau. In his performance evaluations between 2000 and 2006,
Velasquez consistently received high marks as an investigator; lower marks as an
administrator, due to late reports and inadequate communication with his
supervisors; and an overall rating of "generally exceeds the standard" (a "4" on a
scale of "1" to "5").
              In April 2008, Velasquez testified in a deposition for a gender
discrimination lawsuit brought against the County by one of his coworkers, Tammy
Schweitzer (Schweitzer). His testimony recounted incidents of discrimination by
Bureau supervisors against himself and others, and was generally critical of the
Bureau.
              In the summer of 2008, Velasquez received his performance
evaluation for 2006 through 2008. For the first time, his overall rating dropped to
"meets the standard" ("3" on the scale).
              In September 2008, the Bureau opened an internal investigation on
Velasquez. Velasquez was at the time supervising the High Tech Task Force (Task
Force). The Task Force used personnel from the Bureau and the Ventura County
Sheriff's Department, as well as civilians, to conduct forensic analyses of computers
seized by various law enforcement agencies. When Velasquez's immediate
supervisor, Vince Gilliam (Gilliam), asked to see a forensic report for computers
seized from the Hells Angels by the Sheriff's department, Velasquez thought the
request to be "unethical or improper." Rather than clarify the reason for the request
with Gilliam or Gilliam's supervisor in the Bureau, Velasquez told one of the
Sheriff's department commanders about Gilliam's request. This caused interagency
friction, and Velasquez was ultimately given a written reprimand for handling the
situation poorly.
              In October 2008, Velasquez was transferred from the Task Force to

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the government fraud unit as part of a Bureau-wide reorganization that moved more
than half of the Bureau's investigators. The government fraud unit was usually
supervised by newly promoted senior investigators. Velasquez's supervisors gave
him inconsistent explanations as to why he, a seasoned senior investigator, was
reassigned to manage that unit.
              In December 2008, Velasquez gave another coworker, Leslie
Robertson (Robertson), a copy of his handwritten notes from a December 2007
personnel meeting among Bureau supervisors. At that meeting, Robertson was
being considered for promotion. The notes identified Michael McKendry
(McKendry) as commenting that she was a "loner." Given that Robertson had
declined to date McKendry seven years before, Velasquez viewed McKendry's
comment as reflecting gender discrimination. Robertson filed a gender
discrimination lawsuit against the County soon thereafter.
              In January 2009, Velasquez sued the County under the Fair
Employment and Housing Act (FEHA) for discrimination and harassment on the
basis of national origin and ancestry, and for not preventing that discrimination.
              In July 2009, one of the Bureau's two deputy chief positions was
about to be vacated. Velasquez had applied, and not been selected, for that position
in 2003 and 2006. Before posting the opening, Bureau management added a new
question asking applicants to comment on their "current professional relationship
with Bureau management." Because the County had issued its written reprimand
just two months earlier, Velasquez viewed the new question as signaling that he
need not apply for the position. Velasquez did not apply, partly because of that
question.
              In September 2009, the Bureau opened a second internal investigation
of Velasquez for breaching the confidentiality of the December 2007 personnel
meeting by disclosing his notes to Robertson. Before he was interviewed as part of
this investigation, his supervisor—who was the lead investigator—reported in
Velasquez's 2009 performance evaluation that Velasquez had improperly disclosed

                                          3
that confidential information. During his December 2, 2009, interview for the
internal investigation, the lead investigator refused to recuse himself.
              Feeling that the outcome of the second internal investigation was a
foregone conclusion and that he would be fired, Velasquez informed his supervisors
in a December 2, 2009, letter that the investigation was "causing [him] grievous
distress and interfering with his ability to do his job." Nine days later, he resigned.
                              PROCEDURAL HISTORY
              Three months after he resigned, Velasquez amended his complaint
to add claims for (1) retaliation for opposing practices forbidden by the FEHA
and for filing a FEHA complaint himself (Gov. Code, § 12940, subd. (h))1; and
(2) wrongful constructive termination.
              The County successfully moved for summary adjudication on the
national origin and ancestry claims in the original complaint. Its motion for
summary judgment on the retaliation and wrongful constructive termination claims
was denied.
              The case proceeded to trial. The trial court denied the County's
nonsuit motion at the close of Velasquez's case-in-chief, and its motion for a
directed verdict at the close of evidence. The jury returned verdicts for Velasquez,
and awarded $1.356 million in damages. The court further awarded costs of
$21,326; expert fees of $8,800; and attorney's fees of $325,000. The court denied
the County's motions for judgment notwithstanding the verdict and for a new trial.
                                    DISCUSSION
              In evaluating the County's sufficiency of the evidence challenge, we
review the entire record in the light most favorable to the judgment below, resolving
all conflicts in the evidence and drawing all reasonable inferences to support the
verdict. We may not reweigh the evidence or substitute our credibility
determinations for those made by the jury. (Steele v. Youthful Offender Parole Bd.

              1
            Unless otherwise indicated, all statutory references are to the
Government Code.
                                           4
(2008) 162 Cal.App.4th 1241, 1251-1252 (Steele).) We cannot affirm unless "'. . .
there is no substantial evidence to support the verdict and the evidence compels a
judgment for [the County] as a matter of law.'" (McCoy, supra, 216 Cal.App.4th at
p. 299, quoting Paykar Constr., Inc. v. Spilat Const. Corp. (2001) 92 Cal.App.4th
488, 493.) "Substantial evidence" is more than a "'mere scintilla.'" (Pinero v.
Specialty Restaurants Corp. (2005) 130 Cal.App.4th 635, 639.)
                                      Retaliation
              To prove retaliation under FEHA, Velasquez was required to prove
that "(1) he . . . engaged in a 'protected activity,'" (2) the County subjected [him] to
an adverse employment action, and (3) a causal link existed between the protected
activity and the [County's] action.' [Citations]" (Yanowitz v. L'Oreal USA, Inc.
(2005) 36 Cal.4th 1028, 1042 (Yanowitz).)
A. Protected Activity
              The County contends Velasquez's disclosure of confidential
information to Robertson was not a "protected activity" because Velasquez never
informed the County that his reason for disclosing his notes was to oppose
discrimination. We disagree.
              Substantial evidence supports the finding that the County knew
Valesquez disclosed his notes to support Robertson's pending gender discrimination
lawsuit because she first mentioned the notes during her deposition in that lawsuit.
For these purposes, it does not matter whether McKendry's "loner" comment was
actionable as long as Velasquez reasonably and in good faith believed it was.
(Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 474.) Substantial evidence
supports that finding here. Additionally, Velasquez's deposition testimony in the
Schweitzer case and in his own lawsuit are "protected activities" that independently
satisfy this element.
B. Adverse Employment Action
              The County asserts that Velasquez was not subjected to "adverse
employment action" within the meaning of FEHA. (§ 12940, subd. (h); Yanowitz,

                                            5
supra, 36 Cal.4th at pp. 1050-1051.) The County argues that none of its actions
were "adverse" on their own or affected Velasquez's salary, benefits, rank, level of
supervision, pension, peace officer status, office space, vacation or work hours.
(See Grube v. Lau Industries, Inc. (7th Cir. 2001) 257 F.3d 723, 729 ["unfair
reprimands or negative performance evaluations, unaccompanied by some tangible
job consequence, do not constitute adverse employment actions"]; Malais v. Los
Angeles City Fire Dept. (2007) 150 Cal.App.4th 350, 358 ["assignment to a less
preference position alone [does not] constitute[] an adverse employment action"].)
But we do not view individual acts in isolation, and instead assess their "collective
impact." (Wysinger v. Automobile Club of So. Calif. (2007) 157 Cal.App.4th 413,
423.) Moreover, "adverse" actions are not limited to those with immediate impact;
it is enough that an employer's actions, in their totality, "are reasonably likely to
adversely and materially affect an employee's job performance or opportunity for
advancement in his or her career." (Yanowitz, supra, at p. 1054.)
              Applying the proper standards, the jury could rationally conclude that
the County's course of conduct hurt Velasquez's chances for advancement and thus
constituted adverse employment action. The finding of misconduct in the first
internal investigation was placed in Velasquez's personnel file for at least two years.
The jury could reasonably infer that matters in Velasquez's personnel file would be
relevant to future employment decisions; indeed, the question added to the 2009
deputy chief application was specifically designed to root out an applicant's
problems with management. Velasquez was also given a lower performance
evaluation and he was transferred to a job usually reserved for rookie supervisors.
              The County contends that two further considerations nevertheless
preclude the jury's finding. It argues that the jury should not have considered the
lower performance evaluation, the transfer or the new application question because
the trial court, when ruling on its summary adjudication motion, commented that
these actions were not "adverse." Because summary adjudication motions do not
adjudicate facts and do not partially adjudicate causes of action (Civ. Proc. Code,

                                            6
§ 437c, subd. (n); Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1125,
1134-1139; Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1259), the trial court's
comments are not conclusive. The County also asserts that McRae v. Department of
Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, and Jones v. Department
of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, dictate dismissal of
Velasquez's retaliation claims. They do not. Comparing different cases is rarely
helpful because "[r]etaliation 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.) McRae and Jones are distinguishable in any event
because the plaintiffs in those cases do not prove their employer's actions had an
adverse effect on their employment conditions or opportunities; as described above,
Velasquez carried his burden.
C. Causation
               The County further contends that there is no substantial evidence that
its actions were undertaken with a retaliatory motive because every testifying
County decision maker disclaimed any such motive and because the County had
legitimate, nonretaliatory reasons for its conduct toward Velasquez. But the jury
necessarily found the County's evidence on these issues not to be credible. We
cannot gainsay those credibility determinations. (McCoy, supra, 216 Cal.App.4th at
p. 299 ["it is the jury, not the court, that is charged with determining the facts"].)
               Moreover, substantial evidence supports the jury's finding that the
County acted with a retaliatory motive. The adverse employment actions started
shortly after Velasquez's testimony in the Schweitzer case and the decision makers
were aware of his protected activities when they acted. This constitutes a prima
facie case of retaliatory motive. (Yartzoff v. Thomas (9th Cir. 1987) 809 F.2d 1371,
1376.) To satisfy his ultimate burden of proof, Velasquez adduced additional
evidence. (Loggins v. Kaiser Permanente Intern. (2007) 151 Cal.App.4th 1102,
1112.) His supervisors gave multiple and differing reasons for his transfer to the
government fraud unit. There was also evidence that other Bureau employees had

                                            7
disclosed information from prior personnel meetings without being investigated or
disciplined. Many of the adverse actions occurred while upper management
considered Velasquez to be a "malcontent." Differing managerial explanations for
an employment action and disparate treatment of similarly situated employees both
constitute circumstantial evidence of an employer's intent to retaliate. (Rudin v.
Lincoln Land Community College (7th Cir. 2005) 420 F.3d 712, 723-724; Colarossi
v. Coty US, Inc. (2002) 97 Cal.App.4th 1142, 1153; cf. King v. United Parcel
Service, Inc. (2007) 152 Cal.App.4th 426, 433 [plaintiff's personal belief of
retaliatory motive not enough to prove retaliatory motive]; Joaquin v. City of Los
Angeles (2012) 202 Cal.App.4th 1207, 1226-1229 [employer's termination of
plaintiff for falsely filing sexual harassment claim not sufficient proof of
retaliation].)
                           Wrongful Constructive Termination
                 A wrongful constructive termination claim requires proof that (1) the
employer retaliated against the plaintiff-employee for "exercising a statutory right
or privilege," (2) the retaliation created "working conditions that were so intolerable
or aggravated" that a reasonable person in the employee's position would be
compelled to resign (and that compelled the plaintiff-employee to resign), and
(3) the employer deliberately created the "intolerable or aggravated" working
conditions or knowingly permitted them to persist. (Turner v. Anheuser-Busch, Inc.
(1994) 7 Cal.4th 1238, 1249, 1251-1252, 1256; Gibson v. ARO Corp. (1995) 32
Cal.App.4th 1628, 1638, 1640.) Beyond disputing that it did not retaliate, the
County contends there was insufficient evidence of the last two elements.
                 The County contends that the totality of its actions would not have
compelled a reasonable person to resign. It notes that Velasquez himself waited
nearly 18 months after the first performance evaluation before resigning. Because
Velasquez had previously announced his intent to retire in January 2010, the
County argues that his resignation in December 2009 was strategic. The County
further asserts that it did not deliberately create any intolerable working conditions

                                            8
or know that Velasquez found his working conditions to be intolerable.
              We reject these arguments. Procedurally, the County requested and
obtained a general verdict on damages. Because we are affirming the jury's verdict
on the retaliation claim and the County does not argue that there are different
damages for each claim, the retaliation claim independently supports the damages in
this case. (See Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1157.)
              Additionally, a rational jury could have accepted Velasquez's
argument that the timing and escalation of the County's acts reasonably lead him to
believe he was about to be fired. In the months immediately prior to his
resignation, the Bureau opened its second internal investigation for conduct that
other employees had committed without investigation or sanction. In the weeks
immediately prior to his resignation, Velasquez received his 2009 performance
evaluation from the same supervisor who was overseeing that investigation. The
evaluation reported that Velasquez had engaged in the very misconduct the
supervisor was still investigating. Just days before Velasquez resigned, the
investigator refused to recuse himself. In light of the prior written reprimand and
the likelihood he would receive a greater sanction for a second violation of Bureau
policy, the jury could reasonably conclude, as Velasquez put it, that the hammer
could come down on the last "nail in the coffin" any day. That Velasquez
previously discussed a possible retirement date does not negate these working
conditions; it also does not provide an alternative reason for his departure because
Velasquez did not start contemplating a fixed retirement date until after he received
the 2008 performance evaluation and the series of adverse employment actions had
begun.
              Velasquez also presented evidence that he had alerted the County that
he found his working conditions to be intolerable: He mentioned a possible
retaliatory motive for his 2008 overall rating in his appeal of that performance
review; he told his supervisor he felt "ostracized" in November 2009; and he sent a
letter indicating he was in "grievous distress" right after his December 2009 internal

                                          9
investigation interview.
              In sum, substantial evidence supports the wrongful constructive
termination verdict.
                                  DISPOSITION
              The judgment is affirmed. Costs on appeal are awarded to Velasquez.
              NOT TO BE PUBLISHED.




                                         HOFFSTADT, J.*


We concur:


              GILBERT, P. J.




              YEGAN, J.




              *
               (Judge of the Superior Court of Los Angeles County, assigned by the
Chief Justice pursuant to art. 6, § 6 of the Cal. Const.)
                                        10
                              Denise de Bellefeuille, Judge

                        Superior Court County of Santa Barbara
                         ______________________________


             Office of County Counsel, Michael D. Schwartz, Special Assistant County
Counsel, Wisotsky, Procter & Shyer, Alan E. Wisotsky for Defendant and Appellant.
             Pine & Pine, Norman Pine, Beverly Tillett Pine, Janet R. Gusdorff, Law
Offices of Mark Pachowicz, Mark R. Pachowicz, Law Offices of Maury Mills and Maury
Mills for Plaintiff and Respondent.
