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Brome v. California Highway Patrol

Court of Appeal of California, First Appellate District, Division Five

January 28, 2020, Opinion Filed

Civil No. A154612

Opinion

BURNS, J.—Jay Brome sued the California Highway Patrol (the Patrol) asserting that, during his career as a law enforcement officer, he suffered harassment and discrimination because of his sexual orientation in violation of the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.).1 The trial court granted summary judgment to the Patrol, holding that Brome's claims were filed after the statute of limitations expired [***2]  and a reasonable jury could not have concluded they were timely based on an exception to the deadline. The court also rejected Brome's claim that he was [*791]  constructively discharged. Brome now appeals the grant of summary judgment. We hold that the record does not [**105]  preclude, as a matter of law, a conclusion that his claims were timely and that he was constructively discharged. Accordingly, we reverse.

Background

Brome began his employment at the Patrol in 1996. During his nearly 20-year career, other officers subjected Brome, who was openly gay, to derogatory, homophobic comments; singled him out for pranks; repeatedly defaced his mailbox; and refused to provide him with backup assistance during enforcement stops in the field.

Brome started in the Patrol's San Francisco office before transferring to the Contra Costa office in 2002. While he worked at those offices, he filed administrative complaints about the unlawful harassment and discrimination he suffered, including a discrimination complaint with the Department of Fair Employment and Housing (the Department) in 2003. The Department ruled that the evidence was insufficient, dismissed Brome's complaints, and issued a right-to-sue letter. [***3]  Brome did not file a lawsuit then, hoping the Patrol would take his complaints seriously and remedy the situation.

Seeking a better work environment, Brome ultimately transferred to the Patrol's Solano County office in 2008. At that office, his fellow officers presumed he was gay. Homophobic “locker room” talk using words like “gay or ***” “was ongoing” and “very common” amongst the officers there. Officers “would use gay in a negative connotation,” saying things like “[o]h, I hated that movie, it was so gay,” or “[q]uit looking at me, [f]aggot.” An officer made up a poem about Brome's sexual orientation. In another incident, officers used the word “faggots” to describe the potential victims of a hate crime that a recently arrested individual had planned to commit against homosexuals. This type of locker room talk “lessened” over time at the Solano office because officers “didn't want to say things around [Brome].”

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44 Cal. App. 5th 786 *; 85 Cal. Comp. Cases 103 **; 2020 Cal. App. LEXIS 71 ***; 258 Cal. Rptr. 3d 83; 2020 WL 429035

JAY BROME, Plaintiff and Appellant, v. CALIFORNIA HIGHWAY PATROL, Defendant and Respondent.

Prior History:  [***1] Superior Court of Solano County, No. FCS047706, Hon. Michael Mattice, Judge.

Disposition: Appeal from judgment of the Superior Court of Solano County. Judgment reversed, request for judicial notice denied, matter remanded with directions, and appellant awarded his costs on appeal.

CORE TERMS

tolling, harassment, equitable, backup, intolerable, sexual, resign, orientation, permanence, stress, notice, work-related, disability, deadline, hostile, triable, futile, homophobic, display

Civil Procedure, Appeals, Summary Judgment Review, Standards of Review, Governments, Legislation, Statute of Limitations, Tolling, Labor & Employment Law, Discrimination, Disparate Treatment, Statute of Limitations, Workers' Compensation & SSDI, Administrative Proceedings, Evidence, Witnesses, Business & Corporate Compliance, Statutory Application, Exclusivity, Exceptions, Wrongful Termination, Constructive Discharge, Burdens of Proof, Employment Practices, Adverse Employment Actions, Discharges & Failures to Hire