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Shelton v. City of Manhattan Beach9/28/2004
investigation of police officer not adverse employment action under circumstances].) A reasonable jury could conclude: the investigations were unwarranted; they were motivated by illegal sexual orientation discrimination; the chief intended to substantially and materially obstruct plaintiff's career within the department; but for plaintiff's resignation, he would have faced discipline, and possible demotion or termination, based on the unwarranted investigations; and had plaintiff not submitted his August 22, 2001, internal complaint, his unblemished record would have remained intact and his career advanced. (See Akers, supra, 95 Cal.App.4th at p. 1456.) In addition, there is evidence: plaintiff was subjected to "hateful," ridiculing, and intimidating conduct by Chief Klevesahl; he was unnecessarily excluded from full participation in the team building workshop; and he was overburdened with assignments, causing him to become distraught. Taken together, all of the foregoing is evidence of adverse employment actions having a substantial and material adverse effect on the terms and conditions of plaintiff's employment. This is sufficient evidence to raise a triable issue of material fact as to whether plaintiff suffered an adverse employment action.
b. permanent disability
Defendants assert, and the trial court found, that plaintiff could not meet his prima facie burden because he was permanently disabled from performing his law enforcement duties. We disagree. Plaintiff was required to show only that, at the time of the defendants' discriminatory actions, he was performing competently in the position he held. There is no dispute as to that fact. Moreover, defendants' reliance on Quinn v. City of Los Angeles (2000) 84 Cal.App.4th 472, 480-483, and Drain v. Betz Laboratories, Inc. (1999) 69 Cal.App.4th 950, 954-959, is misplaced. In Quinn, the Court of Appeal held that a police officer who was not qualified to be hired as such in the first place, and whose employment as such was due solely to a clerical error, could not allege that he was wrongfully discharged. (Quinn v. City of Los Angeles, supra, 84 Cal.App.4th at pp. 480-483.) In Drain, the Court of Appeal held a plaintiff who had sworn he was permanently disabled from performing any of his job-related duties, or, indeed, any occupation at all, was judicially estopped to allege that his employer failed to accommodated his disability when it had done so for Caucasian employees. (Drain v. Betz Laboratories, Inc., supra, 69 Cal.App.4th at pp. 954-949.) Neither case is remotely similar to the present case.
c. lack of intentional discrimination
Defendants argue, as the trial court found, that there could not have been any intentional discrimination because no one knew plaintiff was gay. All of plaintiff's allegations involve conduct occurring after it was suspected or known he was gay.
3. Sexual orientation harassment
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