Filed 7/22/13 Mounts v. Cal. Dept. of .Corrections and Rehabilitation CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

PHILIP ANDREW MOUNTS,
                                                                                           F064225
         Plaintiff and Appellant,
                                                                           (Super. Ct. No. 08CECG01820)
                   v.

CALIFORNIA DEPARTMENT OF                                                                 OPINION
CORRECTIONS AND REHABILITATION,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Fresno County. Alan M.
Simpson, Judge.
         Wild, Carter & Tipton, Russell G. VanRozeboom and Monrae L. English for
Plaintiff and Appellant.
         Kamala D. Harris, Attorney General, Alicia M. B. Fowler, Assistant Attorney
General, Scott H. Wyckoff and Connie A. Broussard, Deputy Attorneys General, for
Defendant and Respondent.
                                                        -ooOoo-
       Appellant Philip Andrew Mounts, a Caucasian parole agent, filed a complaint
against his employer, respondent California Department of Corrections and
Rehabilitation (Department), claiming he was discriminated against because of his race
when he was not selected for a promotion. Ronnie Sims, an African-American parole
agent, was given the position.
       The jury decided the case on a special verdict. The jury found appellant’s race
was a motivating reason for the Department’s decision not to promote appellant.
However, the jury also found that there were legitimate reasons, unrelated to appellant’s
race, for the Department’s decision and that the Department would have decided not to
promote appellant based solely on the legitimate reasons. Accordingly, judgment was
entered in the Department’s favor.
       Appellant contends the judgment must be reversed because the jury was asked to
decide whether the Department’s decision not to promote appellant was justified by
legitimate reasons without being properly instructed on this “mixed motive” defense.
       As recently explained by the California Supreme Court in Harris v. City of Santa
Monica (2013) 56 Cal.4th 203 (Harris), when a plaintiff has shown by a preponderance
of the evidence that discrimination was a substantial factor motivating the adverse
employment action, the plaintiff nevertheless cannot be awarded damages if the employer
proves by a preponderance of the evidence that, in the absence of any discrimination, the
employer “would have made the same decision at the time it made its actual decision.”
(Id. at pp. 224, 241.) In other words, an employer cannot show it would have made the
same decision “‘by offering a legitimate and sufficient reason for its decision if that
reason did not motivate it at the time of the decision.’” (Id. at p. 224.)
       Here, the jury was instructed that appellant was required to prove that: his race
was a motivating reason for the failure to promote; he was harmed; and the failure to
promote was a substantial factor in causing his harm. However, the jury was not
instructed that the Department had the burden to prove, by a preponderance of the

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evidence, that any legitimate reason for not promoting appellant motivated that decision
at the time it was actually made. Nevertheless, the special verdict form asked the jury
whether there were legitimate reasons for the Department’s decision and whether the
Department would have decided not to promote appellant based solely on the legitimate
reasons. Negative evidence supporting the Department’s decision was admitted although
the decisionmaker was not aware of that evidence when the promotion was awarded. In
light of this evidence and the absence of the mixed motive defense instruction, it is
reasonably probable that the jury was misled. Accordingly, the judgment will be
reversed.
                                    BACKGROUND
       Appellant, a “Parole Agent I,” applied for an open position in “Unit 1” of the
Fresno Adult Parole Office (Unit 1), a division of the Department. The person given this
position would be promoted to “Parole Agent II” (PA II).
       The interviews for this position were conducted by a panel consisting of Christine
Diesslin, the Unit 1 supervisor, and Diesslin’s supervisor, Evelyn Lara-Lowe, the central
district administrator. Diesslin and Lara-Lowe created a list of questions specific to the
position. Each candidate interviewed was asked to verbally respond to these questions
and their responses were scored.
       Thereafter, Diesslin and Lara-Lowe conferred and selected the top three
candidates based on their responses to the questions, their applications, and the
recommendations of the candidates’ current supervisors. Lara-Lowe and Diesslin agreed
that their order of preference was John Hagler, a Caucasian parole agent, Sims and
appellant.
       Lara-Lowe then prepared a memorandum listing the top three candidates in
alphabetical order. This memorandum included information on each candidate’s
experience and education. However, it did not rank the candidates or make any
recommendations regarding the promotion.

                                             3.
       This memorandum was routed to Judith Harris, a deputy regional administrator.
After receiving the memorandum, Harris called Lara-Lowe to discuss the candidates.
Harris testified that Lara-Lowe told her that she and Diesslin wanted either Hagler or
Sims. Hagler was preferred because of his computer skills. According to Harris, Lara-
Lowe did not want appellant.
       The hiring package, including the memorandum, was then sent to Richard
Burrows, the acting regional parole administrator. Burrows, the only Department
employee with the authority to promote a parole agent, selected Sims for the PA II
position.
       In making his decision, Burrows reviewed the hiring package and then met with
Harris to discuss the candidates. Based on the hiring package, it appeared to Burrows
that all of the candidates were good workers and were highly thought of by their
supervisors. Burrows recalled Harris telling him that the interview panel had
recommended Sims first and Hagler second and that Harris agreed with the panel.
Burrows then focused on comparing Sims and Hagler. Burrows preferred Sims because
Sims had a Bachelor’s degree in criminology and Hagler had only a two-year degree.
Appellant also had a Bachelor’s degree. However, appellant’s degree was in business
and Burrows felt that criminology was a more “pertinent” degree for a parole agent’s job.
       Before he selected Sims for the promotion, Burrows learned that Sims was
African-American. Burrows explained that the race of the applicant is considered in the
decisionmaking process and that the Department attempts to have balance, including
racial balance, in the workforce.
       Appellant filed the underlying complaint alleging that the Department violated the
Fair Employment and Housing Act (FEHA) when it failed to promote him because of his
race. (Gov. Code, § 12940, subd. (a).) The case was tried before a jury.
       The jury was instructed according to California Civil Jury Instruction (CACI) No.
2500 that appellant had to prove his “race was a motivating reason for the failure to

                                            4.
promote.” “Motivating reason” was defined as “a reason that contributed to the decision
to take certain action, even though other reasons also may have contributed to the
decision.”
       The Department requested that the jury be instructed with BAJI No. 12.26
pertaining to a “mixed motive” defense as follows:

               “If you find that the employer’s action, which is the subject of
       plaintiff’s claim, was actually motivated by both discriminatory and non-
       discriminatory reasons, the employer is not liable if it can establish by a
       preponderance of the evidence that its legitimate reason, standing alone,
       would have induced it to make the same decision.

               “An employer may not, however, prevail in a mixed-motives case by
       offering a legitimate and sufficient reason for its decision if that reason did
       not motivate it at the time of the decision. Neither may an employer meet
       its burden by merely showing that at the time of the decision it was
       motivated only in part by a legitimate reason. The essential premise of this
       defense is that a legitimate reason was present, and standing alone, would
       have induced the employer to make the same decision.”
The trial court refused to give this instruction.
       Nevertheless, over appellant’s objection, the jury was given a special verdict form
that included questions regarding a mixed motive defense. The special verdict form not
only asked if appellant’s race was a motivating reason for the Department’s decision not
to promote him to PA II, but also asked: “Were there any legitimate reasons, unrelated to
[appellant’s] race for the [Department’s] decision not to promote [appellant] to Parole
Agent II?” and “Would the [Department] have decided not to promote [appellant] …
based solely on the legitimate reason(s)?”
       The jury found appellant’s race was a motivating reason for the Department’s
decision. However, the jury also found that there were legitimate reasons for the decision
and that the Department would have decided not to promote appellant based solely on
those legitimate reasons. Accordingly, judgment was entered in the Department’s favor.




                                              5.
                                         DISCUSSION
       After this case was tried, the California Supreme Court clarified the law on the
mixed motive defense to an employment discrimination claim. (Harris, supra, 56 Cal.4th
203.) In Harris, a bus driver alleged she was fired by her employer because of her
pregnancy in violation of FEHA. The employer claimed the employee had been fired for
poor job performance. The employer requested the court to instruct the jury with BAJI
No. 12.26, i.e., if the jury found a mix of discriminatory and legitimate motives, the
employer could avoid liability by proving that a legitimate motive alone would have led it
to make the same decision. The trial court refused and the jury returned a substantial
verdict for the employee. (Id. at p. 211.)
       The Harris court held that the refusal to give the mixed motive instruction was
prejudicial error. The court explained that, when a plaintiff has shown by a
preponderance of the evidence that discrimination was a substantial factor motivating the
adverse employment action, the employer is entitled to demonstrate that legitimate,
nondiscriminatory reasons would have led it to make the same decision at the time.
(Harris, supra, 56 Cal.4th at p. 241.)
       To meet its burden, the employer must prove by a preponderance of the evidence
that, in the absence of any discrimination, it “would have made the same decision at the
time it made its actual decision.” (Harris, supra, 56 Cal.4th at pp. 224, 239.) Proof that
the same decision would have been justified is not the same as proof that the same
decision would have been made. In other words, the “employer cannot make a same-
decision showing ‘by offering a legitimate and sufficient reason for its decision if that
reason did not motivate it at the time of the decision.’” (Id. at p. 224.)
       However, even if the employer makes a same-decision showing, such showing is
not a complete defense to liability if the plaintiff proves that unlawful discrimination was
“a substantial factor motivating the adverse employment action.” (Harris, supra, 56
Cal.4th at p. 225.) While the plaintiff is not entitled to damages, back pay or an order of

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reinstatement for the discrimination in a same showing case, a court may grant
declaratory or injunctive relief where appropriate to stop discriminatory practices. (Id. at
p. 234.) Further, the court may award the plaintiff reasonable attorney fees and costs.
This way, the plaintiff and his or her counsel are compensated for bringing a meritorious
claim of unlawful discrimination. (Id. at p. 235.)
       Here, the trial court erred when it refused to give the mixed motive jury instruction
requested by the Department. If appellant, rather than the Department, had prevailed at
trial, this error would have been prejudicial.
       The problem in this case is that, while the jury was not instructed on the mixed
motive defense, the special verdict form asked the jury to make mixed motive defense
findings. The jury reached its verdict in favor of the Department by finding that there
were legitimate reasons, unrelated to appellant’s race, for the Department’s decision and
that the Department would have made this decision based solely on the legitimate
reasons. However, the jury was not instructed on, and was not asked to make a finding
regarding, whether the legitimate reasons actually motivated Burrows to make the
decision at the time the decision was made. Thus, the verdict was based on incomplete
findings. Additionally, the jury was not instructed that the Department had the burden of
proving this defense. Accordingly, the trial court erred when it included the mixed
motive questions in the special verdict form without the jury having been properly
instructed on the mixed motive defense.
       The next issue is whether this instructional error was prejudicial to appellant. In
making this decision, the appellate court “‘must examine the evidence, the arguments,
and other factors to determine whether it is reasonably probable that instructions
allowing application of an erroneous theory actually misled the jury.’ [Citation.] A
‘reasonable probability’ in this context ‘does not mean more likely than not, but merely a
reasonable chance, more than an abstract possibility.’” (Kinsman v. Unocal Corp.
(2005) 37 Cal.4th 659, 682.)

                                                 7.
       Here, the promotion decision was made by Burrows alone. At the time Burrows
made this decision, the information available to him was limited. Burrows did not know
any of the candidates personally. Burrows had the interview panel memorandum listing
the candidates alphabetically, the candidates’ applications, and Harris’s verbal
recommendation. Harris’s recommendation was based on her discussion with Lara-Lowe
and was limited to the interview panel’s preference for Hagler and Sims. Burrows did
not personally communicate with either one of the interview panel members.
       However, negative evidence, unknown to Burrows, was admitted against appellant
at trial. Diesslin, appellant’s supervisor, testified regarding several instances where
appellant was rude and argumentative or lost his temper. None of these instances were
officially recorded. Further, a citizen’s complaint filed against appellant in 2006 was
admitted. In this complaint, two members of a parolee’s family alleged that appellant
was disrespectful and rude. Again, all of this evidence was unknown to Burrows at the
time he made his decision.
       The jury found that race was a motivating reason for the Department’s decision
not to promote appellant but that the same decision would have been made based solely
on legitimate reasons. The negative evidence described above provides support for the
jury’s same decision finding. However, the jury was not instructed that the legitimate
and sufficient reasons offered by the employer had to motivate the employer at the time
the decision was made, not simply provide later justification. Because Burrows was
unaware of this negative evidence when he made the promotion decision, there is a
reasonable chance that the jury was misled. Consequently, we reverse the judgment and
remand for a new trial.1

1      Appellant has requested this court to direct the trial court on remand to instruct the
jury that the Department discriminated against appellant based on race and that the
remaining issues to be decided are limited to causation and damages. However, while the
jury found that race was a “motivating reason” for the Department’s decision, under


                                             8.
                                     DISPOSITION
       The judgment is reversed. Costs on appeal are awarded to appellant.

                                                                _____________________
                                                                              LEVY, J.
WE CONCUR:


_____________________
WISEMAN, Acting P.J.


 _____________________
KANE, J.




Harris, the jury must determine “whether discrimination was ‘a substantial motivating
factor/reason.’” (Harris, supra, 56 Cal.4th at p. 232.) Since the discrimination finding
was incomplete, this is not an appropriate case for a limited remand.


                                            9.
