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Akers v. County of San Diego2/8/2002
CERTIFIED FOR PARTIAL PUBLICATION
Laura Akers, a former deputy district attorney, sued the County of San Diego (County), claiming gender/pregnancy discrimination, violation of family leave act statutes, wrongful termination in violation of public policy, and unlawful retaliation. The jury found in Akers's favor on her retaliation claim, but found Akers did not prove her other causes of action. The jury initially awarded Akers $250,000, but the court reduced this amount to $150,000 after conditionally granting a new trial because of jury misconduct. The court entered judgment of $150,000 plus $249,345 in attorney fees.
On appeal, County contends insufficient evidence supported the jury's finding that Akers suffered an adverse employment action, and the court prejudicially erred in instructing on this element. County also challenges the sufficiency of the evidence to support the jury's finding that its actions were pretextual, and contends the trial court erred in admitting certain evidence on this issue. In her cross-appeal, Akers contends the court erred in granting a new trial on the basis of jury misconduct.
In the published portion of this decision, we conclude: (1) an adverse employment action within the meaning of a Fair Employment and Housing Act retaliation claim requires proof that the employer substantially and materially adversely affected the terms and conditions of the plaintiff's employment; and (2) the plaintiff satisfied this test by showing the retaliation eliminated or reduced her promotional opportunities within the district attorney's office. In the unpublished portion of the decision, we reject the parties' additional contentions. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Akers began working as a San Diego County deputy district attorney in 1985. In 1993, Akers was assigned to the district attorney's family protection division where she prosecuted domestic violence cases. Akers enjoyed working with domestic violence victims, and developed an excellent reputation in this area.
In January 1995, Paul J. Pfingst became San Diego's elected District Attorney. Two months later, Pfingst appointed Luis Aragon as the family protection division chief, and Aragon became Akers's supervisor. Aragon did not have daily contact with Akers because he worked in the downtown San Diego headquarters, whereas Akers worked in the El Cajon branch.
In December 1995, Akers's husband, Stephen Anear, who was also a San Diego County deputy district attorney, notified Aragon that Akers was pregnant and the baby was due in approximately May 1996. Shortly thereafter, Akers told Aragon that she had heard rumors she was going to be transferred out of the division and she wanted Aragon to assure her she could stay in El Cajon because she needed to be close to her baby. Aragon responded that this would not be a problem.
Two months later, in February 1996, Aragon told Akers he was concerned with the morale in the El Cajon family protection division, and believed Akers was not doing her fair share of the unit's misdemeanor work. He said he wanted to transfer her to the downtown office to satisfy Akers's desire to work on felony and high profile cases, and to permit him to more closely supervise Akers. Akers responded by repeating her desire to stay in the El Cajon office to be close to her Lakeside home after her baby was born.
Shortly thereafter, Akers contacted Gregory Thompson, the second- in-command of the district attorney's office, who reported directly to Pfingst. Akers told Thompson that Aragon's criticisms of her were not justified, and she wanted assurance that she would stay
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