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Shelton v. City of Manhattan Beach9/28/2004
y could get rid of plaintiff's "butt boys." This evidence is sufficient to raise a triable issue whether there was an anti-gay atmosphere within the department evidenced by the repeated and regular use of crude and derogatory slurs over the seven-year period of plaintiff's employment, including the year preceding the date on which he filed his administrative complaint with the California Department of Fair Employment and Housing. If true, the use of such vulgar and derogatory terms by peace officers sworn to serve the public and enforce the law is severe conduct. A trier of fact could conclude that the regular, repeated, and routine use of anti-gay slurs over an extended period of time was pervasive. A trier of fact could find that a reasonable person in plaintiff's position would have perceived the work environment to be objectively hostile or abusive.
4. Retaliation
The Court of Appeal has identified the elements of a retaliation claim as follows: "To establish a prima facie case of retaliation, the plaintiff must show (1) he or she engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link between the protected activity and the employer's action. [Citations.]" (Akers, supra, 95 Cal.App.4th at p. 1453; Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1185; Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 367.) The McDonnell Douglas test applies. (Sada v. Robert F. Kennedy Medical Center, supra, 56 Cal.App.4th at p. 155; see Perez v. County of Santa Clara (2003) 111 Cal.App.4th 671, 676.) As the Court of Appeal held in Akers, supra, 95 Cal.App.4th at page 1453: "Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation [then] `drops out of the picture,' and the burden shifts back to the employee to prove intentional retaliation. [Citation.]" (See Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1152.)
Plaintiff alleges he was the subject of retaliation for complaining of sexual orientation discrimination. The city and Chief Klevesahl are named as defendants in the retaliation cause of action. The trial court found there was no adverse employment action in that plaintiff was not terminated, demoted, suspended, or disciplined and there was no evidence of pretext. On appeal, the city and Chief Klevesahl first contend there is no triable issue of material fact as to whether plaintiff suffered a material adverse employment action. For the reasons discussed above, we conclude a triable issue of material fact exists as to whether plaintiff suffered an adverse employment action. The city and Chief Klevesahl further argue that even if adverse employment actions occurred, there is no evidence this misco
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