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Shelton v. City of Manhattan Beach9/28/2004
nduct was a pretext for retaliation. However, the city and Chief Klevesahl have not pointed to any evidence of legitimate, nonretaliatory reasons for the alleged adverse employment actions discussed above. The city and Chief Klevesahl argue only that there was no adverse employment action because plaintiff was not terminated, suspended, or demoted, and was transferred to patrol at his own request. Because defendants have not contended on appeal that there was a legitimate non-discriminatory reason for the adverse employment actions, the issue has been waived. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Johnston v. Board of Supervisors (1947) 31 Cal.2d 66, 70, disapproved on another point in Bailey v. County of Los Angeles (1956) 46 Cal.2d 132, 139.) A triable issue of material fact remains as to whether the employment actions in question were retaliatory.
5. Failure to Prevent and Correct Sexual Orientation Discrimination and Retaliation
Plaintiff's cause of action for failure to prevent and correct sexual orientation discrimination and retaliation arises under Government Code section 12940, subdivision (i), which provides it is unlawful for an employer to fail to take all reasonable steps necessary to prevent discrimination and harassment. In enacting that provision, the Legislature established a cause of action in tort. (Truijillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 286; Bihun v. AT&T;Information Systems, Inc. (1993) 13 Cal.App.4th 976, 1002, disapproved on another point in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664.) As we observed in Northrop Grumman Corp. v. Workers' Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021, 1035-1036: "The employer's duty to prevent harassment and discrimination is affirmative and mandatory. (Gov. Code, ยง 12940, subds. (j)(1) & (k).) Prompt investigation of a discrimination claim is a necessary step by which an employer meets its obligation to ensure a discrimination-free work environment. [Citations.]" (Accord, Jones v. Los Angeles Community College Dist. (1988) 198 Cal.App.3d 794, 810-811; see also Adler v. Wal-Mart Stores, Inc. (10th Cir. 1998) 144 F.3d 664, 676; Ellison v. Brady (9th Cir. 1991) 924 F.2d 872, 881-882.) The Fair Employment and Housing Act mandates that the defendants, acting in good faith, conduct an investigation that is appropriate under the circumstances. (Cotran v. Rollins Hudig Hall Internat., Inc. (1998) 17 Cal.4th 93, 102; Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 275.)
Plaintiff alleges the city failed to prevent and correct the sexual orientation discrimination and retaliation. Defendants assert, as the trial court found, that the undisputed facts establish as a matter of law that the city's investigation of plaintiff's internal complaint was appropriate under the circumstances. They argue any delay in the i
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