News
Government
Feb. 21, 2002
Deputy DA Loses Appeal of Her Own Bias Case
LOS ANGELES - An Orange County deputy district attorney who unsuccessfully sued the county and managers in the district attorney's office for discrimination and retaliation has lost her appeal.
The 4th District Court of Appeal, Division 3 in Santa Ana, found no merit to Victoria Chen's arguments, calling her work record "checkered" and stating that promoting her would have been "undeservedly favored treatment." Chen v. County of Orange, 2002 DJDAR 1883 (Cal. App. 4th Dist. Feb. 15, 2002).
Chen sued the county for race, gender and marital-status discrimination and retaliation. In Orange County Superior Court, before Judge Derek W. Hunt, her marital-status and retaliation claims were dismissed on motions for nonsuit after Chen rested her case, according to the appellate opinion. A jury returned defense verdicts for the race and gender discrimination causes of action.
The appellate justices found that the trial court did not err in dismissing the two claims. Justice David G. Sills wrote in the opinion, "There were obviously good and legitimate reasons not to promote her, not the least of which was the fact that anybody who was promoted had to be available to work, not on indefinite stress leave."
Chen began working as a Level 1 deputy district attorney in 1990 and by 1993 had been promoted to Level 3, the opinion says. She went on leave in July 1995 because of complications with a pregnancy and did not return to work until April 1997. During her leave, she earned $100,000 annually as a bond trader and started an acting career, completing two commercials, according to the opinion.
After a short stint back at work in 1997, she took a medical leave because of stress and never returned to work. Yet, despite her absence from work, she applied for a Level 4 position. When she did not receive it, she sued the county and members of the district attorney's office in March 1998, the opinion says. She applied for another Level 4 position later that year. When she failed to get the promotion, she amended her lawsuit to include the retaliation claim.
In affirming the lower court, Sills wrote, "If anything, given Chen's checkered work record, her willingness to subordinate her deputy district attorney's job to her bond trading and nascent acting career, and the malleability of her purported 'stress' (on when convenient, possibly off when convenient), the only rational conclusion is that a promotion over more senior and available attorneys would have been undeservedly favored treatment."
Chen's attorney, Robert Reeves of Santa Ana, did not return a phone call requesting comment.
A lawyer representing Orange County called the tone of the opinion unusual.
"They really got into the spirit of the case," said Nancy Zeltzer, a partner at Lewis, D'Amato, Brisbois & Bisgaard in Costa Mesa. "Not only was she not discriminated against while she was at the DA's office, but she actually was very favorably treated."
The most interesting legal issue addressed in the opinion was marital-status discrimination, Zeltzer said. Under state law, marital-status discrimination stems from whether or not someone is married, not from whom the person has married, she said. In this case, Chen alleged she was discriminated against because her husband was a high-level management attorney in the office and was not well-liked by those in the highest echelons of the office, the opinion says.
"I think this is the only case in California that sets out the decisional authority of the marital-status issue," Zeltzer said. "There really wasn't any law in this area in this state."
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Amy Tatko
Daily Journal Staff Writer
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