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Not Reported in Cal.Rptr.3d, 2010 WL 3388066 (Cal.App. 1 Dist.)


Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2010 WL 3388066 (Cal.App. 1 Dist.))

ciplinary measures.
Only the Westlaw citation is currently available.
FN1. The operative first amended com-
California Rules of Court, rule 8.1115, restricts plaint names 18 police officer plaintiffs:
citation of unpublished opinions in California Clayton Harmston, Gigi George, James
courts. Lewis, Mike Evanson, Erick Solares, Dav-
id Parry, Andrew Cohen, Noah Mallinger,
Carlos Mustafich, Luis DeJesus, James D.
Court of Appeal, First District, Division 4, Califor-
Aherne, Jason Kirchner, Reginald Scott,
nia.
Gerald P. Lyons, Wendy Hurley, Holly
Gigi GEORGE et al., Plaintiffs and Appellants,
Stoumen, Christine Arndt, and Shareef
v.
Nasir. The trial court summarily adjudic-
CITY AND COUNTY OF SAN FRANCISCO et
ated all causes of action against all but four
al., Defendants and Respondents.
plaintiffs (Harmston, Lewis, Evanson and
No. A125809.
Parry). This appeal concerns the 14
(San Francisco County Super. Ct. No. CGC-
plaintiffs whose claims were adjudicated.
06-454955).
This lawsuit concerns the initial administrative sus-
Aug. 30, 2010.
pensions alone, not the later disciplinary actions.
Waukeen Q. McCoy, San Francisco, CA, for Plaintiffs allege in this lawsuit that the City and its
Plaintiff and Appellant. Chief of Police Heather Fong (who is Chinese-
American) discriminated against them on the basis
Lawrence Hecimovich, Office of the City Attorney, of race or national origin by imposing administrat-
San Francisco, CA, for Defendant and Respondent. ive suspensions upon plaintiffs, who are not
Chinese-American, while sparing Chinese-Amer-
ican officers. (Gov.Code, § 12940; 42 U.S.C. §
SEPULVEDA, J.
2000e et seq.) The trial court granted defendants'
*1 Plaintiffs are police officers employed by the motion for summary adjudication upon finding un-
FN1 disputed evidence that defendants suspended video
City and County of San Francisco (City). The
City's police chief suspended plaintiffs from duty participants without regard to race. In the trial
for several days pending the filing of police com- court, defendants demonstrated a race-neutral reas-
mission charges of misconduct for the officers' par- on for the suspensions: willing participation in the
ticipation in an assertedly “inappropriate and unau- video vignettes posted on the Internet. The trial
thorized video” of police department activities that court granted summary adjudication upon conclud-
plaintiff Officer Andrew Cohen produced at the ing that plaintiffs failed to rebut this showing with
Bayview police station and posted on the Internet in any evidence of discrimination. We affirm the trial
2005. Ultimately, the police chief did not file court's ruling.
charges with the police commission against all of
the officers administratively suspended. Following FN2
I. FACTS
an investigation, the police chief ordered counsel-
ing, reprimands, and short disciplinary suspensions
upon most plaintiff officers, and referred only five FN2. Our statement of facts is drawn from
plaintiffs to the police commission for stronger dis- the statements of undisputed facts submit-
ted by the parties on the motion for sum-

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


Page 2
Not Reported in Cal.Rptr.3d, 2010 WL 3388066 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2010 WL 3388066 (Cal.App. 1 Dist.))

mary adjudication. (Code Civ. Proc., § band is seized, and the officers celebrate to the tune
437c, subd. (b)(1), (3).) The facts recited of “We are the Champions.” (4) “Traffic Cop Gone
here were either undisputed by the parties, Wild”-A male officer makes a traffic stop and, be-
or conclusively established by the evidence fore citing the female driver, looks over her body.
submitted with the motion. Plaintiffs ob- (5) “A Day in the Life of Hamster and Big
jected to some of this evidence in the trial Dummy”-Two uniformed officers in a patrol car
court. The trial court correctly overruled (plaintiffs Harmston and Parry) are shown in sever-
those objections. al scenes with text showing elapsed time from early
morning through afternoon. At the start of the day,
Plaintiffs participated in the creation of what they the officers are in a parked patrol car reading a
call “a comedic parody video” that was produced newspaper with the front page displaying the head-
and directed by Officer Cohen. The video was go- line “ ‘Asian Managers Gain Ground in City Gov-
ing to be played at a Christmas party attended by ernment,’ “ along with a photograph of Chief Fong
Bayview officers but the video's format was incom- with the caption “ ‘Spotlight on Safety.’ “ The of-
patible with the video player available at the site of ficers read the newspaper and ignore repeated radio
the party. On December 3, 2005, after the unsuc- broadcasts asking them to respond. Throughout the
cessful viewing effort, Cohen posted portions of the morning, the officers sleep, play computer solitaire,
video on the Internet. The video was not presented and listen to rap music while ignoring radio calls.
in the trial court so we have only descriptions of its The officers are then seen executing tai-chi type
content. movements outside the patrol car while listening to
Asian music and ignoring radio calls. The officers
Lieutenant Edward Santos, Jr., the lead investigator
read the newspaper again; then, with emergency
in this matter, submitted a declaration describing
lights and siren activated, they ignore radio calls
the five video vignettes posted on the Internet, and
and drive to a massage parlor.
his description is unchallenged: (1) “Charlie's An-
gels”-three female plainclothes officers (plaintiffs *2 On December 6, 2005, within days of the Inter-
Hurley, Arndt, and Stoumen) enter Captain Richard net posting, San Francisco Police Officer Associ-
Bruce's office at the Bayview Station to music from ation (POA) President Gary Delagnes told Chief
the Charlie's Angels television series and pose with Fong that the press had contacted the POA about
guns drawn. They say, “ ‘Oh Captain’ “ and move Officer Cohen's video vignettes and Delagnes
their tongues in a licking manner. A female officer showed the vignettes to Chief Fong on the Internet.
in uniform (plaintiff George) also makes sexually Chief Fong declares that she “was immediately
suggestive moves, as does a male officer in a dress concerned that the vignettes, which contained
(plaintiff Lewis). Captain Bruce's image appears highly inappropriate material and included officers
with the text “ ‘the ladies man.’ “ (2) in uniform and using [Police] Department equip-
“Blockhead”-A uniformed police officer (plaintiff ment, potentially violated various Department Gen-
Evanson) drives a marked patrol vehicle over an eral Orders and could cause damage to the Depart-
African-American woman. The woman stands up ment's mission and community relationships.”
and yells, “ ‘Evanson, you white motherfucker’ “ Chief Fong ordered the Management Control Divi-
and displays her middle finger as the scene fades sion (MCD) of the San Francisco Police Depart-
out. (3) “One Rock”-numerous officers (including ment (Department) to identify the officers who
plaintiffs Aherne, DeJesus, Kirchner, Mallinger, willingly participated in the publicly aired vign-
Mustafich, Scott, Solares, and Stoumen) respond to ettes, and ordered those officers administratively
the report of a “ ‘suspicious person’ “ with drawn suspended.
guns (some fake). The person is searched, contra-

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


Page 3
Not Reported in Cal.Rptr.3d, 2010 WL 3388066 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2010 WL 3388066 (Cal.App. 1 Dist.))

The San Francisco Police Commission promulgates judgment regarding the merits or proper disposition
General Orders governing the conduct and discip- of the disciplinary charges the Department has filed
line of sworn police officers. General Order 2.07 against Cohen.” (Id . at p. 12.) The court also did
establishes different types of discipline, some of not consider the issue presented here: whether the
which may be imposed by the police chief and administrative suspensions were imposed in a ra-
some of which require police commission proceed- cially discriminatory manner.
ings. The police chief may admonish, reprimand,
prescribe corrective action or, after a hearing or op- *3 On that issue, the undisputed evidence here is
portunity for a hearing, impose a disciplinary sus- that Chief Fong ordered MCD to identify the of-
pension (unpaid time off) for a period not to exceed ficers who willingly participated in the publicly
10 days. A disciplinary suspension by the chief of aired vignettes and decided to administratively sus-
police may be appealed to the police commission. pend those identified by MCD without knowing the
Harsher punishment is reserved to the police com- races or ethnicities of the officers who participated
mission. The police commission, after trial, may in the video vignettes. Plaintiffs tried to dispute this
reprimand, fine, suspend, or dismiss police officers. fact in the trial court by introducing Chief Fong's
The police chief is also separately authorized to deposition testimony admitting that she saw the
suspend an officer temporarily pending the filing or video before suspending plaintiffs. But simply see-
hearing of charges before the police commission. ing the video does not refute her declaration state-
Such an administrative suspension is limited to ment that she did not identify any of the depicted
“exigent circumstances,” and a hearing must be officers nor catalogue their personal characteristics.
held within five working days of the suspension to The evidence establishes that Chief Fong delegated
determine whether the officer should remain sus- to MCD the task of identifying the officers who
pended pending a police commission hearing. willingly participated in the video. Lieutenant San-
tos, with other MCD officers, “conducted a detailed
The case of plaintiff Cohen is illustrative. Chief and intensive review of the five vignettes” from
Fong suspended Officer Cohen from duty without December 6 to December 8, 2005, and conducted
pay on December 8, 2005, pending the filing of interviews of Officer Cohen and his commanding
misconduct charges with the police commission. officer. MCD prepared an administrative suspen-
An administrative hearing was held on December sion list identifying 26 officers who willingly parti-
14 to consider whether he should remain suspended cipated in the publicly aired video vignettes. On
pending a police commission hearing. The adminis- December 8 and 9, 2005, Chief Fong suspended
trative hearing officer recommended that Officer each of the officers MCD identified.
Cohen be returned to duty, and Chief Fong ordered
his return effective December 16, 2005. Cohen A comprehensive investigation of the Bayview
missed four days' pay while the administrative sus- video was conducted over a period of months, from
pension was in place. Cohen later sued the City December 2005 through October or November
upon allegations that his suspension was unauthor- 2006. The results of the investigation were com-
ized. This District Court of Appeal found the ad- piled in a report over 1,200 pages long. The MCD
ministrative suspension unauthorized because the recommended disciplinary action against 46 of-
City acted without demonstrating the existence of ficers, ranging from counseling for most to police
exigent circumstances, and ordered restoration of commission review for a few. Chief Fong adopted
pay and benefits lost as a result of the temporary the MCD recommendations with limited excep-
suspension. (Cohen v. City and County of San tions. She imposed lesser discipline in some cases.
Francisco (July 5, 2007, A114661) [nonpub. opn.].) None of those cases concerned Asian officers.
The court was careful to note that it “impl[ied] no MCD concluded, and Chief Fong concurred, that

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


Page 4
Not Reported in Cal.Rptr.3d, 2010 WL 3388066 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2010 WL 3388066 (Cal.App. 1 Dist.))

the conduct of two plaintiffs whose claims are on *4 The City moved for summary adjudication and
appeal here warranted a police commission hearing: presented evidence of a race-neutral reason for sus-
Officers Cohen and Hurley. Chief Fong also dis- pending plaintiffs-their willing participation in a
armed Cohen and Hurley and reassigned them to publicly posted video of police department activit-
limited public contact positions pending the adju- ies produced with Department resources that con-
dication of misconduct charges before the police tained material considered “racist, sexist, [and] ho-
commission. On appeal, plaintiffs do not challenge mophobic,” that potentially violated Department
these disciplinary actions of late 2006. The sole conduct standards, and that was injurious to “the
contention on appeal is that defendants discrimin- Department's mission and community relation-
ated against plaintiffs when imposing the initial ad- ships.” In June 2009, the trial court granted the mo-
ministrative suspensions in December 2005 and, in tion for summary adjudication on all causes of ac-
doing so, intentionally inflicted emotional distress. tion brought by 14 of the 18 plaintiffs. Plaintiffs
moved for reconsideration, and the motion was
denied in July 2009. Plaintiffs filed a notice of ap-
II. PROCEDURAL HISTORY
peal from the summary adjudication order later that
FN5
Plaintiffs filed this lawsuit in August 2006. The ac- month.
tion was removed to federal court, then returned to
FN5. Orders granting summary judgment
state court after dismissal of certain claims. As rel-
or summary adjudication are not appeal-
evant here, plaintiffs sued the City and Chief Fong
able. ( Kasparian v. AvalonBay Communit-
claiming race discrimination and intentional inflic-
FN3 ies, Inc. (2007) 156 Cal.App.4th 11, 14,
tion of emotional distress. Initially, plaintiffs
fn.1; Eisenberg et al., Cal. Practice Guide:
alleged that the discrimination consisted of favor-
Civil Appeals and Writs (The Rutter
ing Asians over non-Asians in suspending police
Group) ¶ 2:241, p. 2-116.) Appeal lies
officers in connection with the Bayview video.
from a judgment entered on the order. (Id.
Most of the plaintiffs alleged in their first amended
at ¶ 2.241.1.) Here, defendants obtained
complaint that they are “non-Asian individual[s],”
summary adjudication on all causes of ac-
although plaintiffs Arndt and Nasir rested their
tion against most of the plaintiffs but no
claims on being “perceived to be” non-Asian.
judgment was entered against those
Plaintiffs later asserted that defendants favored
plaintiffs. In the interest of justice and to
Chinese-Americans over all who were not Chinese-
avoid delay, we construe the order granting
Americans, including officers who are African-
summary adjudication as incorporating an
American, Latino, White, Japanese-American and
appealable judgment and the notice of ap-
possibly other races, ethnicities, or national origins.
FN4 peal as appealing from such judgment. (
The implication is that Chief Fong, a Chinese-
Levy v. Skywalker Sound (2003) 108
American, favored Chinese-American officers over
Cal.App.4th 753, 761, fn. 6; Belio v. Pan-
all others.
orama Optics, Inc. (1995) 33 Cal.App.4th
FN3. Plaintiffs alleged other causes of ac- 1096, 1101-1102.)
tion, but they are not at issue on this ap-
peal. III. DISCUSSION

FN4. For convenience, we continue to use “On appeal after a motion for summary judgment
plaintiffs' designation of “race discrimina- has been granted, we review the record de novo,
tion” although plaintiffs' categories do not considering all the evidence set forth in the moving
always correspond to race. and opposition papers except that to which objec-

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


Page 5
Not Reported in Cal.Rptr.3d, 2010 WL 3388066 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2010 WL 3388066 (Cal.App. 1 Dist.))

tions have been made and sustained. [Citation.] Un- nondiscriminatory reason.” (Id. at pp. 355-356.) “If
der California's traditional rules, we determine with the employer sustains this burden, the presumption
respect to each cause of action whether the defend- of discrimination disappears. [Citations.] The
ant seeking summary judgment has conclusively plaintiff must then have the opportunity to attack
negated a necessary element of the plaintiff's case, the employer's proffered reasons as pretexts for dis-
or has demonstrated that under no hypothesis is crimination, or to offer any other evidence of dis-
there a material issue of fact that requires the pro- criminatory motive. [Citations.] In an appropriate
cess of trial, such that the defendant is entitled to case, evidence of dishonest reasons, considered to-
judgment as a matter of law.” ( Guz v. Bechtel Na- gether with the elements of the prima facie case,
tional, Inc. (2000) 24 Cal.4th 317, 334 (Guz ).) may permit a finding of prohibited bias. [Citations.]
The ultimate burden of persuasion on the issue of
actual discrimination remains with the plaintiff.” (
A. Race discrimination claim
Ibid.)
Plaintiffs allege intentional race discrimination.
*5 On a motion for summary judgment, an employ-
Specifically, plaintiffs allege that Chief Fong, a
er may proceed directly to the second step of the
Chinese-American, engaged in disparate treatment
McDonnell Douglas formula and present evidence
of police officers on the basis of race by punishing
of a legitimate, nondiscriminatory reason for the
only non-Chinese-American officers with adminis-
challenged action. ( Guz, supra, 24 Cal.4th at p.
trative suspensions for participating in the Bayview
357.) If the employer does so, the burden shifts to
video. We find no evidence of discrimination.
the employee to present evidence from which in-
tentional discrimination may be inferred. (Ibid.) In
1. General principles the face of an employer's showing of nondiscrimin-
atory reasons, the employee must show there was
California has adopted the three-stage burden- nonetheless a triable issue that decisions leading to
shifting test established by the United States Su- the adverse employment action were actually made
preme Court in McDonnell Douglas Corp. v. Green on the prohibited basis of race. (Id. at p. 360.)
(1973) 411 U.S. 792 (McDonnell Douglas ) for try- “[A]n employer is entitled to summary judgment if,
ing claims of discrimination based on a theory of considering the employer's innocent explanation for
disparate treatment. ( Guz, supra, 24 Cal.4th at p. its actions, the evidence as a whole is insufficient to
354.) “At trial, the McDonnell Douglas test places permit a rational inference that the employer's actu-
on the plaintiff the initial burden to establish a al motive was discriminatory.” (Id. at p. 361.)
prima facie case of discrimination.” (Ibid.)
“Generally, the plaintiff must provide evidence that When evaluating an employer's explanation for its
(1) he was a member of a protected class, (2) he action in a race discrimination case, the court must
was qualified for the position he sought or was per- not confuse unwise acts with discriminatory acts.
forming competently in the position he held, (3) he “While the objective soundness of an employer's
suffered an adverse employment action, such as ter- proffered reasons supports their credibility ..., the
mination, demotion, or denial of an available job, ultimate issue is simply whether the employer acted
and (4) some other circumstance suggests discrim- with a motive to discriminate illegally. Thus,
inatory motive.” (Id. at p. 355.) If the plaintiff es- ‘legitimate’ reasons [citation] in this context are
tablishes a prima facie case, a presumption of dis- reasons that are facially unrelated to prohibited bi-
crimination arises and the burden shifts to the em- as, and which, if true, would thus preclude a finding
ployer to rebut the presumption by producing evid- of discrimination.” ( Guz, supra, 24 Cal.4th at p.
ence that its action was taken for a “legitimate, 358, italics omitted.) The issue is discriminatory in-

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


Page 6
Not Reported in Cal.Rptr.3d, 2010 WL 3388066 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2010 WL 3388066 (Cal.App. 1 Dist.))

tent, not whether the employer's decision was and his commanding officer. MCD prepared an ad-
wrong, mistaken, unwise, incompetent, imprudent, ministrative suspension list identifying 26 officers
or foolish. (Ibid.) Of course, “[p]roof that the em- who willingly participated in the publicly aired
ployer's proffered reasons are unworthy of credence video vignettes. On December 8 and 9, 2005, Chief
may ‘considerably assist’ a circumstantial case of Fong suspended each of the officers MCD identi-
discrimination, because it suggests the employer fied.
had cause to hide its true reasons. [Citation.] Still,
there must be evidence supporting a rational infer-
3. Plaintiffs failed to present evidence of discrimin-
ence that intentional discrimination, on grounds
atory intent sufficient to raise a triable issue of fact
prohibited by the statute, was the true cause of the
employer's actions. (Id. at p. 361, italics omitted.) Defendants presented evidence of a nondiscriminat-
ory reason for the challenged action and thus the
2. Defendants presented evidence of a legitimate, burden shifted to plaintiff employees to present
nondiscriminatory reason for the challenged sus- evidence from which intentional discrimination
pensions may be inferred. ( Guz, supra, 24 Cal.4th at p. 357.)
Plaintiffs failed to do so.
Defendants presented creditable evidence that Chief
Fong imposed administrative suspensions upon On appeal, plaintiffs argue that Chief Fong acted in
plaintiff police officers for reasons wholly unre- excess of her authority in imposing administrative
lated to the race of the officers. Chief Fong de- suspensions without exigent circumstances.
clared that she was concerned that the publicly Plaintiffs point to this District Court of Appeal's
aired vignettes, “which contained highly inappro- finding that the administrative suspension of Of-
priate material and included officers in uniform and ficer Cohen was unauthorized because the City ac-
using Department equipment, potentially violated ted without demonstrating the existence of exigent
various Department General Orders and could circumstances. (Cohen v. City and County of San
cause damage to the Department's mission and Francisco, supra, A114661.) The argument,
community relationships.” however, does nothing to advance their race dis-
crimination claim. All that plaintiffs have shown,
Fong “took immediate action to mitigate damage to at most, is that Chief Fong may have seen exigency
the Department's mission, and to avoid any risk to where none existed. A mistaken assessment of exi-
public safety.” She ordered MCD “to work ur- gency does not show race discrimination.
gently to identify the officers who willingly parti- Plaintiffs argue to the contrary, and maintain that
cipated in the five vignettes, and ordered those of- since the proffered reason (exigency from deleteri-
ficers administratively suspended pending a com- ous impact of video vignettes) was discredited, a
prehensive Department investigation.” Chief Fong reasonable juror could infer that the real reason was
ordered the suspension of those identified without discrimination. We disagree. While Chief Fong
knowing the races or ethnicities of the officers who may have overestimated the exigency of the situ-
participated in the video vignettes. She delegated to ation, or at least failed to articulate the nature of the
MCD the task of identifying the officers who will- exigency in her notice of suspension, her stated
ingly participated in the video. concern over the video's production, content, and
impact is not unreasonable. A court's later determ-
*6 Lieutenant Santos, with other MCD officers, ination that Chief Fong suspended Officer Cohen
“conducted a detailed and intensive review of the without demonstrating the existence of exigent cir-
five vignettes” from December 6 to December 8, cumstances does not show that the police chief was
2005, and conducted interviews of Officer Cohen not genuine in believing that the suspension of Co-

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


Page 7
Not Reported in Cal.Rptr.3d, 2010 WL 3388066 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2010 WL 3388066 (Cal.App. 1 Dist.))

hen (and other officers) was required under the cir- first five vignettes.” Chief Fong confirmed in her
cumstances as she understood them at the time she declaration that Officer Nasir “had been inadvert-
acted. It certainly does not show that Chief Fong ently added to the list despite the fact that his in-
fabricated concern over the video to strike out at volvement related to a subsequent vignette.” Fong
non-Chinese-American officers. said she learned of the inadvertent inclusion months
after issuing the suspension and, at the time she ac-
Plaintiffs have somewhat more success in advan- ted, “was never informed and was not aware that
cing their race discrimination claim when arguing Officer Nasir had not appeared in the first five
that defendants' asserted basis for suspending of- vignettes that were in the public arena.” Officer
ficers (willing participation in the video vignettes Nasir's inclusion on the suspension list was thus
posted on the Internet) was not consistently applied. fully explained, and does not raise an inference that
Plaintiffs note that plaintiff Nasir was suspended Chief Fong suspended him out of racial animus. Of
even though he was not in an Internet vignette, and the 26 administratively suspended officers, 25 ap-
Officer Derrick Lew-who is Chinese-American-was peared in the public video vignettes. This close
not suspended despite his appearance in an Internet correlation cannot be harmonized with plaintiff's
vignette. The argument, however, fails to raise a tri- theory that the suspensions were race-based. The
able issue of fact as to discriminatory intent. only reasonable inference is the one propounded by
defendants-Nasir's inclusion on the suspension list
*7 Undisputed evidence establishes that inadvert-
was inadvertent. It was not discriminatory.
ence-not discrimination-led to Officer Nasir's in-
clusion on the suspension list and Officer Lew's The same is true of Lew's omission from the sus-
omission from the list. In both cases, the error rests pension list. Lieutenant Santos declared that “[t]he
with MCD investigators working under extreme MCD team did not identify Officer Derrick Lew
time pressure to quickly review the video vignettes, during the December 2005 emergency review” of
identify numerous officers depicted in them, and the vignette in which Lew appeared. The vignette
assess whether their participation was willing. The was “ ‘One Rock,’ “ and it “was faster moving and
lead investigator, Lieutenant Santos, declared that generally presented a harder task as to identifying
Officer Nasir's inclusion on the list was a mistake. the participating officers.” Santos explained that,
Santos explained that Officer Nasir drew the atten- unlike some of the other officers in the vignette,
tion of MCD officers because of his appearance in a “Officer Lew did not key his microphone or use his
subsequent vignette where he pulls his firearm from call sign during the lunchroom scene and was not
his holster, points it at a dog, and says “ ‘This is recognized as a participant in the chase scene.”
how you train a dog Bayview style.’ “ Lieutenant When Lew was later identified, his conduct was ad-
Santos declared that “[t]his was the only instance of dressed with counseling, which was the same level
any officer in the video explicitly threatening to use of discipline imposed upon other officers (including
his Department firearm, and triggered further dis- several plaintiffs) of comparable culpability appear-
cussion of possible additional measures to be im- ing in the vignette.
plemented in his case. However, it was not our in-
tention to include Officer Nasir's name on MCD's *8 There is no evidence that the suspension list's in-
administrative suspension list, at least not without clusion of Officer Nasir and omission of Officer
getting the Chief's knowing review and approval, as Lew were anything other than innocent mistakes
Captain Keohane had made it clear that that list was free of discriminatory animus. Notably, Chief
to include only officers who appeared in the first Fong-who is accused of favoring Chinese-American
five public vignettes. The Chief was never in- officers like Officer Lew over all others-did not
formed that Officer Nasir had not appeared in the prepare the suspension list. Chief Fong ordered

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


Page 8
Not Reported in Cal.Rptr.3d, 2010 WL 3388066 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2010 WL 3388066 (Cal.App. 1 Dist.))

MCD to identify the officers who willingly parti- munity in their briefing on appeal. We conclude
cipated in the public vignettes, and ordered those that the trial court properly granted defendants
officers administratively suspended. At the time she summary adjudication on the intentional infliction
made that decision, Chief Fong did not know the of emotional distress cause of action.
races or ethnicities of the officers who participated
in the video vignettes. It was MCD that reviewed
IV. DISPOSITION
the vignettes and prepared an administrative sus-
pension list identifying 26 officers who willingly The judgment is affirmed.
participated in the public vignettes. Lieutenant
Santos declared that “Chief Fong at no time did or We concur: RUVOLO, P.J., and RIVERA, J.
said anything to suggest that Asian [officers] be
treated differently [from] non-Asians with regard to Cal.App. 1 Dist.,2010.
any aspect of the MCD process,” and Santos never George v. City and County of San Francisco
observed any MCD officer impose disparate treat- Not Reported in Cal.Rptr.3d, 2010 WL 3388066
ment based on race. Chief Fong did not pick and (Cal.App. 1 Dist.)
choose from the suspension list prepared by MCD
END OF DOCUMENT
but suspended each of the officers MCD identified
as a willing participant in the public video vign-
ettes. The evidence establishes that defendants were
entitled to summary adjudication of the race dis-
crimination claim.

B. Intentional infliction of emotional distress

Plaintiffs' cause of action for intentional infliction


of emotional distress rests upon allegations that de-
fendants engaged in “extreme and outrageous con-
duct” by “acting in a discriminatory manner” and
by “[m]aking public statements regarding a private
personnel matter” during a December 2005 press
conference about the Bayview video. Standard per-
sonnel actions and management decisions, even if
discriminatory, are not extreme and outrageous
conduct sufficient to support a claim for intentional
infliction of emotional distress. ( Janken v. GM
Hughes Electronics (1996) 46 Cal.App.4th 55, 80.)
In any event, we have already determined that de-
fendants did not act in a discriminatory manner.
Plaintiffs' complaint about the press conference
fails because the decision to speak to the press was
a discretionary act immune from liability. (
Gov.Code, §§ 820.2, 821.6.) This was the holding
of a federal district court when this case was ven-
ued there. Plaintiffs failed to challenge that holding
and have failed even to address the issue of im-

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.