In a case handled by Scott Tiedemann and Judith Islas, the California Court of Appeal upheld the trial court's granting of summary judgment in a retaliation and harassment lawsuit. A Caucasian police officer sued the Police Department based on the Department's alleged discriminatory comments and other discriminatory treatment towards his African-American coworker, who had also sued the department. The officer claimed he was retaliated against for reporting alleged discriminatory treatment of his African-American coworker to various officers in the Department and during two internal investigations. The officer also claimed he was retaliated against for testifying on his coworker's behalf in the separate lawsuit brought by the coworker.
The officer alleged that he was retaliated against in a variety of ways, including by receiving below expectations performance evaluations, being placed on successive performance improvement programs, his absence being designated FMLA leave, being ordered to undergo a fitness for duty examination, being required to participate in a baseless internal affairs investigation, and threatening comments by a superior officer. Also, the officer claimed that the Department failed to investigate the alleged harassment and retaliation.
The Court rejected all of the officer's arguments. Critical to the Court's analysis was the officer's long and well documented history of performance problems and that he had received negative performance ratings well before any alleged protected activity and as early as his probationary period. The Court found there were legitimate non-retaliatory business reasons for each alleged adverse action taken by the Department, and that the officer failed to show that those non-retaliatory business reasons were pre-text for retaliation.
On the harassment and hostile work environment claims, the Court noted that a Caucasian officer can premise these causes of action based on an association with or advocacy on behalf of another officer's protected classification (here, an African-American officer), but, to do so, must show he was personally subjected to unwanted racial comments as a result of the association or advocacy and that the conduct was severe and pervasive, which the officer failed to do in this case.
The failure to investigate the harassment and retaliation claim failed because it cannot stand alone where there is no underlying retaliation or harassment.