May v. Trustees of CA St. Univ. 2/28/05 CA6

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: H024624

Case Date: 06/09/2005

Preview:Filed 2/28/05 May v. Trustees of the Cal. State University CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

JAMES H. MAY, Plaintiff and Appellant, v. TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, Defendant and Appellant.

H024624 (Monterey County Super. Ct. No. M51073)

Plaintiff James May (May), a former tenured professor and administrator, who is Native American, sued his employer, defendant California State University, Monterey Bay (State), for racial discrimination. A jury trial resulted in a verdict in part for May and in part for State. Specifically, the jury found State had not discriminated against or constructively discharged May because of his race/national origin or his disability. The jury also found that State harassed May because of his race/national origin, and that State retaliated against May because of his complaints of discrimination and harassment. Following the verdict, the trial court granted State's motion for a new trial, and denied State's motion for judgment notwithstanding the verdict (JNOV). May appeals the trial court's order granting a new trial on the ground that the order is procedurally deficient because it fails to comply with the statutory requirements

of Code of Civil Procedure sections 657 and 660. Additionally, May asserts there was not prejudicial juror misconduct to support the new trial order. State files a cross-appeal of the trial court's denial of its motion for judgment notwithstanding the verdict, asserting there is not substantial evidence to support the jury's verdicts in May's favor. STATEMENT OF THE FACTS AND CASE May is a Native American who was hired in 1994 at State as the Dean of Instruction. May was the primary administrator responsible for the creation of the library and the "Center for Science Technology and Information Resource" (STIR) and the design of the "Media Learning Complex," a high-tech building of classrooms and offices. A year after May starting working at State, Peter Smith was appointed as president. In November 1995, Smith said in May's presence that there were "too many minorities in power on this campus." May told Smith that Smith's comment was discriminatory, and Smith said, "That's your opinion." Smith then told May his intent to fire the existing provost, Steven Arvizu, who was a Latino. Smith told Arvizu on several occasions in 1996 that he was going to remove May as dean. Arvizu testified that Smith said he was going to "level the playing field" in reference to changing May's assignment, and in reference to his plan to transfer May, Smith said "I'm going to ride a rank horse into the swamp." Smith did not explain to Arvizu what he meant by that phrase. In August 1996, Smith removed May as dean, and reassigned him to a newly created position as assistant to the president. As part of the reassignment, May's salary of $106,000 would be maintained for two years, but thereafter, May was required to raise funds from outside sources to pay his salary. No other administrator at State was required to raise funds for his or her own salary. During the time May was removed as dean, he observed that a dean, two professors and two staff members who were all ethnic minorities were having their 2

offices moved out of the "Media Learning Center Complex" (MLC), where May also had his office. The MLC was considered a desirable building on campus because it had extensive technology access. May told Smith that the moves "look[ed] like segregation, racial segregation" because only "people of color" and no Caucasians were being moved. Smith became angry with May. Smith approached May later during the same week and accused May of using the term "ethnic cleansing." May told Smith he did not use that term, but reiterated that he believed there was racial segregation happening on campus. Less than a week later, Smith ordered that May's office be moved out of the MLC. May was relocated to module 86D, an isolated building with no drinking water, no operational office equipment such as copiers, printers, computers, and no support staff. The building was not refurbished, lacked proper ventilation and was not seismically upgraded to meet state standards. When May complained to Smith about the move to module 86D, Smith said that he thought May would like to be with people "of [his] own kind." At the time, three other Native Americans had been relocated to module 86D. After the move, Smith required May to relinquish all of his technology equipment. This included the computer server that ran the Native American website. May was left with one working computer. Smith gave May one day to return the equipment, and threatened May that the police would be notified if the equipment was not returned within one day. All of the returned equipment was scrapped. In March 1997, Smith told May, "[w]e have too many Hispanics on campus," and "We have too may Latinos here." When May told Smith that the comments were discriminatory, Smith said, "you've got to realize that you're now working for me. As an assistant to the president, you have to be loyal. You cannot be making comments like that."

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Two months later, Smith demoted May from administrator to faculty. As a result of this demotion, May's salary was reduced by $35,000, from $106,000 to $71,000. Because of Smith's agreement in August 1996 to keep May's salary at $106,000 for two years, the salary reduction did not go into effect until 1998. After May's demotion to faculty, his office was again relocated, this time to a building on campus known as "the old DMV building." No other person had an office in that building at the time May moved there. The building had no computer connections, no business machines or supplies and no support staff. There was no security at the building, and it was dark, located on the edge of campus with no streetlights. During his first semester back as a faculty member, May was given a full teaching load. This was against State policy. For the 1997/1998 academic year, May taught 23.1 credits, which is a much higher load than any other tenured technology professor. May's teaching load was equivalent to that of a non-tenured lecturer or a first-year tenure track professor. After his first complaint directly to Smith about what he perceived was racially discriminatory segregation of Native Americans to module 86D in 1996, May complained to the newly-appointed campus Equal Employment Opportunity Officer, Patricia Hiramoto in August 1997. May told Hiramoto that Smith had discriminated against him and harassed him based on his Native American heritage. Hiramoto never conducted an investigation of May's allegations. In March 1999, May complained of discrimination to the Senior Director for Employee Relations from State's Chancellor's office, Maria Santos, while she was on State's campus. May told Santos about the ongoing discrimination, harassment and retaliation against him because he was a Native American. May told Santos he was fearful of retaliation, and that he had blocked arteries and that his health had suffered because of the conditions at work.

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Santos contacted both Linda Wight, the Director of Human Resources, and Hiramoto to see what if anything they knew about May's allegations. They both told Santos they were aware of May's allegations and had looked into them. Santos did not conduct an investigation or follow up to see what State had done about May's complaints. May took early retirement in the summer of 2000, four years prior to his intended retirement date. In October 2000, May filed this Fair Employment and Housing Act action for unlawful discrimination, harassment, retaliation and constructive discharge in violation of public policy. After a 19-day trial, the jury returned a special verdict finding that State racially harassed May and retaliated against him because of his complaints about discrimination and/or harassment. The jury also found that State did not discriminate against May or constructively discharge him. The jury awarded May $325,000 in economic damages and $50,000 in non-economic damages. The trial court did not enter judgment on the special verdict, and instead, the court set the date for hearing post-trial motions on April 25, 2002. The court directed State to file opening papers by March 29, 2002. On March 29, 2002, State filed and served its notice of motion for new trial and its motion for judgment notwithstanding the verdict. On May 9, 2002, the court orally announced it would grant the new trial motion and deny the motion for JNOV. The minute ordered entered May 9, 2002, did not contain any grounds or reasons for the court's grant of a new trial. On May 29, 2002, the court filed an order granting the new trial stating the grounds and reasons as jury misconduct, insufficient evidence and excessive damages. On June 6, 2002, May filed a notice of appeal from the new trial order and from the special verdicts in favor of State. On June 28, 2002, State filed a cross-appeal from the denial of its JNOV motion and from the jury's special verdicts in May's favor. 5

Subsequent to the parties' filing their notices of appeal, on July 17, 2002, the court filed two judgments. One was a judgment on special verdict, and reflected the jury's verdict. The other was a judgment on motion for new trial and JNOV. The latter judgment vacated the verdict in favor of May for retaliation and harassment, ordered a new trial on those claims, and ordered judgment entered in favor of State on the discrimination, disability harassment, and constructive discharge claims on which the jury had found in State's favor. May filed a second notice of appeal from the judgment on motion for new trial and JNOV. DISCUSSION I. May's Appeal May appeals the trial court's order granting a new trial on the ground that the order is procedurally deficient, because it fails to comply with the statutory requirements of Code of Civil Procedure sections 657 and 660.1 Additionally, May asserts there was not prejudicial juror misconduct to support the new trial order. In this case, the court made two orders granting a new trial. The first was a minute order entered on May 9, 2002. The second was a written order filed on May 29, 2002. Both orders fail to meet the statutory requirements of sections 660 and 657. The May 9, 2002 minute order is procedurally deficient, because it fails to state the grounds or reasons for the trial court's grant of the new trial. A statement of grounds is mandatory whenever a new trial is ordered: "The order passing upon and determining the motion . . . must state the ground or grounds relied upon by the court . . . ." (

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