Russell v. City of S.F.

JOSEY RUSSELL et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent.

A159579

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

March 24, 2021

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(City & County of San Francisco Super. Ct. No. CGC-17-562245)

Josey Russell and Nadia Mohamed (collectively, Plaintiffs) are employees of the Police Department (the Department) of the City and County of San Francisco (the City). They brought this action under the Fair Employment and Housing Act (Gov. Code, § 12940 et seq.; FEHA) alleging the City discriminated against them based on their gender and sexual orientation, unlawfully retaliated against them, and failed to maintain an environment free from harassment. The trial court granted summary judgment to the City on all causes of action, and Plaintiffs appeal the ensuing judgment. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs' Relationship and Work Assignments

Plaintiffs both work for the Department, Russell as a sergeant and Mohamed as a police officer. Both are women, and they have been in a romantic relationship since 2014.

Beginning in August 2015, Plaintiffs were assigned to the same police station, the Mission Station. They both worked the swing shift, and their shifts overlapped a few days a week. Although Russell was not Mohamed's direct supervisor, she sometimes signed off on Mohamed's police reports and directed her to handle calls for service.

Mohamed became a field training officer (FTO) in 2016 with responsibility to train recruits to perform as solo officers. This role provided an additional $450 or $500 per paycheck. Russell was the training coordinator for the FTO office and was responsible for scheduling and assigning recruits to officers.

Training of Officer Newman

In September 2016 a recruit, Officer Newman, was assigned to the Mission Station for field training. Newman's father was a lieutenant with the Department, which also employed three other members of Officer Newman's extended family.

In October 2016, Russell assigned Mohammed to train Officer Newman during "phase two" of his training. Another sergeant, Sergeant Petuya, was his phase two FTO sergeant. In phase three of his training, Newman was assigned to Officer Prieto, with Russell as his FTO sergeant. Both Mohamed and Russell documented problems with Newman's performance during his training, as did others with responsibility for training Newman.

After completing phase two of his training, on December 27, 2016, Officer Newman wrote a memorandum to the commanding officer of the training academy, raising concerns about the training he had received from Mohamed. He said Mohamed did not evaluate his work fairly or impartially, that she questioned his competence and his integrity, accused him of lying in a police report, told him he was sexist and abused his powers over detainees, and avoided speaking with him. He said he had felt compelled to sign "Daily Observation Reports" from Mohamed, although he did not agree with the reports, because of the romantic relationship between Mohamed and Russell. Now in phase three, he asked to be assigned to a new FTO sergeant or a new training station. In a second memorandum the same day, he reported that a lieutenant had told him he did not have to sign Daily Observation Reports if he disagreed with their contents. In a third memorandum, on January 8, 2017, Officer Newman reiterated these complaints and said that his current FTO officer was also unduly harsh on him, raising officer safety and civil rights issues and evaluating him unfairly.

Officer Newman spoke with his father, who told him Plaintiffs might be in a relationship and he should not "address anything" to Russell, although Newman had previously found Russell to be approachable, helpful, and an asset to all the recruits. Newman noticed that Russell and Mohamed drove into work together and spent time together, and he was told that they were a couple. Because of this, he testified, and because Sergeant Petuya and Russell were friends, he did not feel comfortable raising his concerns about the way he was being treated during phase two with his supervisors, but chose to submit the written complaint instead.

Plaintiffs' 2017 Complaints

Weeks later on February 17, 2017, Russell wrote a lengthy memorandum to Captain Peter Walsh alleging she was being retaliated against because Officer Newman, whom she described as a " 'Legacy kid,' " was not receiving passing scores in the FTO program. She complained that Newman's father, Lieutenant J. Newman, and other family members had made numerous phone calls to the field training office and the Mission Station to ensure Officer Newman passed the FTO program, and that Lieutenant Newman told her superiors that she and Mohamed were in a lesbian relationship and were conspiring to cause Officer Newman to fail the FTO program. According to Russell, she had been forced to have closed-door discussions with her superiors and forced to discuss her personal life and her relationship with Mohamed. She also said her supervisors had questioned officers with whom she was friendly, as well as other sergeants, as to whether the rumors of a romantic relationship between her and Mohamed were true. A lieutenant suggested that she change her schedule because of the alleged relationship with Mohamed and told her their relationship was common knowledge, to which she replied it was a rumor.

Another lieutenant, Lieutenant Caturay, spoke to Russell privately and told her that others had noticed her relationship with Mohamed and had seen Mohamed and her patrol partner hanging out in the sergeant's office, and that some believed Russell gave Mohamed preferential treatment. Russell's memorandum states Lieutenant Caturay could cite no specific instance where she had given Mohamed preferential treatment, that other officers involved in the FTO program had also given Officer Newman bad marks without being accused of improperly conspiring against him, that male officers had hung out with male sergeants in the Sergeants' room, and that there wereopposite-sex couples at Mission Station that had not been similarly "talked to" because nobody had "complained about them."

In her memorandum, Russell also raised complaints about inappropriate conduct at the station. She said Lieutenant Caturay had made inappropriate jokes during line-up; for example, when speaking with Russell and two other sergeants about how to deal with the increase in prostitution in the district, he said they should " 'just stick a finger in the dyke.' "¹ Another lieutenant, Lieutenant Burke, referred to a female-to-male transgender sergeant as "her" rather than "him," even after Russell corrected him. Russell also said she had seen a screen shot of Newman's Facebook page, at a time when it contained a homophobic slur.

Mohamed, too, made complaints about Lieutenant Caturay in February 2017, saying she felt he was harassing and retaliating against her. As examples, she pointed to two incidents, one in October 2015 and one in February 2016, when he raised concerns about her not wearing the correct jacket. After Mohamed gave failing grades to Officer Newman in November and December 2016 and Newman's father, Lieutenant Newman, contacted the lieutenants and captain of Mission Station, Caturay singled her out by asking Mohamed's current recruit if he felt Mohamed was neglecting him, and Caturay asked officers about her sexual orientation and personal relationships. Mohamed said she believed Lieutenant Caturay was targeting her for her race, sex, and sexual orientation, and she requested an investigation.

Others also began to treat Officer Mohamed unfairly, she thought. Her superiors had already reviewed the Daily Observation Reports she wroteregarding Newman's training and commended her for them, but in January 2017 they reversed course and summoned her for counseling. Sergeant O'Connor of the field training program raised with Mohamed several instances in which he thought she should have intervened more quickly while training Newman. This was in spite of the fact that failure to intervene had not been an issue previously brought up in training FTO's, according to Mohamed's patrol partner, who was also an FTO. After this reprimand, Mohamed testified, Sergeant Montoya began giving her assignments that required her to leave the district, and her recruits were assigned to take rape reports and domestic violence reports, all tasks that "nobody wants." Mohamed thought Montoya was retaliating against her and singling her out. She testified that Officer Prieto, who is male, took Officer Newman's gun in a misguided attempt to impress on the recruit a lesson about officer safety but was not disciplined for doing so. Another officer testified that she heard Sergeant Montoya comment, in a manner directed at Russell or Mohamed, " 'She may have won the battle, but I will win the war.' " Although Montoya denied making that statement, we take it as true for purposes of deciding this motion.

The Department ultimately concluded Mohamed's allegations, as well as complaints she made later, either were untimely or did not raise an inference of harassment, discrimination, or retaliation and did not merit further investigation.

Before Newman's complaint, Mohamed had chosen not to disclose her sexual orientation at work out of concern that the Department treated the LGBTQ community poorly. She testified at her deposition that some of her co-workers thought being gay was "disgusting," and she reported aconversation in which another officer said lesbians did not have sex " 'the right way.' "

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