In Jabari Jumaane v. City of Los Angeles (Ct. of Appeal B255763), published November 10, 2015, the Court of Appeal for the Second Appellate District ended 12 years of see-saw litigation, ruling that the racial discrimination claims of plaintiff, an African-American firefighter, were either barred by the statute of limitations or unsubstantiated. The Court in its ruling reversed the trial jury’s more than $1,000,000 award to plaintiff.
Plaintiff Jabari Jumaane began working for the City of Los Angeles in 1986. He was reprimanded or disciplined more than a dozen times and suspended twice in a 17 year period. Plaintiff filed a grievance each time. He claimed the discipline was part of the City’s pattern of racial harassment and was retaliation for his speaking out in public forums. The City denied each grievance finding plaintiff was legitimately disciplined for missing work, being tardy, or refusing to follow department protocol.
Following his second suspension in April 2002, Plaintiff filed a complaint with the Department of Fair Employment and Housing (“DFEH”) alleging the City violated the Fair Employment and Housing Act (“FEHA”). Plaintiff argued the discipline he received was not for legitimate reasons, but rather to punish him “as a result of [his] exercising [his] right to fight racism and discrimination within” the fire department.
A year later, plaintiff sued the City in Los Angeles Superior Court, alleging racial discrimination, racial harassment, and retaliation. The jury rejected plaintiff’s claims at the first trial and found in favor of the City on all causes. The trial court granted plaintiff a new trial based on jury misconduct. The trial court’s decision was upheld on appeal.
Plaintiff’s second trial was held ten years after he initially filed his lawsuit. After a 34 day trial, the jury found for plaintiff on his causes of action for racial discrimination, harassment and retaliation. The jury awarded plaintiff over $1,000,000 in compensatory damages.
The City appealed contending the majority of plaintiff’s claims were barred by the statute of limitations, and for those claims not barred by the statute of limitations, plaintiff’s evidence “was insufficient to prove disparate impact discrimination, harassment or retaliation.”
The Court of Appeal sided with the City finding FEHA’s one year statute of limitations barred the vast majority of plaintiff’s claims. The Court rejected plaintiff’s contention that the claims were viable under the “continuing violation doctrine” which tolls the statute of limitation when an employee shows the discriminatory conduct occurring outside the statute of limitations period was “(1) similar or related to the conduct that occurred earlier; (2) the conduct was reasonably frequent; and (3) the conduct had not yet become permanent.” Here, the Court concluded plaintiff satisfied the first two prongs by showing he “suffered harassment and retaliation in the 1990’s, that at least some of the incidents were similar, or related, and that the similar or related events were reasonably frequent at various times.” However, because plaintiff knew “he no longer had any hope that the racism would end, and he knew future efforts to make changes would be futile” he could not meet the third prong of the test, and was barred from making claims for the City’s conduct that occurred more than a year before he filed his lawsuit.
The Court also rejected plaintiff’s claims which allegedly occurred during the statute of limitations period.
First, the Court rejected plaintiff’s claim for “disparate impact race discrimination” in which he contended the City’s disciplinary policy had a disproportionately adverse impact on African Americans. To prove his claim, plaintiff had to prove the “city’s facially neutral discipline policy had a significant adverse impact on African-Americans.” The Court found that plaintiff’s audit evidence was insufficient to prove his claim.
Secondly, the Court rejected plaintiff’s claim that his suspension for failing to follow company protocol was racially motivated. The Court concluded that the City had legitimate reasons for suspending plaintiff, and importantly, that “a disciplinary suspension does not constitute harassment under FEHA as a matter of law.”
Finally, the Court rejected plaintiff’s claim that his suspension was retaliation for his complaints about alleged race discrimination. The Court held for plaintiff to prove actionable “retaliation” he must show he engaged in a protected activity which subjected him to an “adverse employment action” and that there was a “causal link between the protected activity and the employer’s action.” Here, the Court found plaintiff’s discipline was related to his insubordination and failure to follow orders, rather than to his complaints about racism.
As a result of its findings, the Court overturned the trial jury’s verdict in plaintiff’s favor, including the jury’s award of more than $1,000,000 in compensatory damages.
The Jumaane decision is remarkable because of its long history of litigation and for its in-depth discussion of the most prevalent issues raised in racial and other discrimination cases. It illustrates a plaintiff’s difficult burden in finding an exception to reach back beyond the one year statute of limitations bar. The one year statute of limitations defense in conjunction with an employer’s thorough discipline process is an important shield for an employer as it can limit its exposure. Yet, the decision also reconfirms that a fair discipline policy will not fully protect an employer from discrimination claims if the policy has a disproportionate impact on a protected group, even without a finding of an intentional discriminatory motive. Finally, the decision is a reminder of the importance of documenting every incident of discipline and keeping accurate, and thorough written records. Because of its records, the City was able to show it had legitimate non-discriminatory reasons for its actions, which in part, resulted in the reversal of the jury verdict.
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