Opinion
D072595
06-15-2018
RUDOLPH DIAZ, Plaintiff and Appellant, v. CITY OF CHULA VISTA, Defendant and Respondent.
Rudolph Diaz, in pro. per., for Plaintiff and Appellant. Dentons US and Charles A. Bird for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2014-00016795-CU-OE-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Joel Pressman, Judge. Affirmed. Rudolph Diaz, in pro. per., for Plaintiff and Appellant. Dentons US and Charles A. Bird for Defendant and Respondent.
I
INTRODUCTION
Rudolph Diaz appeals from a summary judgment in favor of the City of Chula Vista (City) on his complaint for age discrimination arising from the City's inaccurate scoring of a promotional examination, which deprived him of an opportunity to be promoted to battalion chief. Diaz contends we must reverse the judgment because the City failed to meet its burden of producing evidence showing it had a legitimate business reason for the inaccurate scoring and, regardless, he met his countervailing burden of producing evidence showing the City's proffered reason was a pretext for age discrimination.
We conclude the City met its burden by producing evidence the inaccurate scoring of the examination was the result of a mistake by an employee who did not have a discriminatory animus. We further conclude Diaz failed to produce evidence showing, as he theorized, that the employee acted as the cat's-paw of another employee who did have a discriminatory animus. We, therefore, affirm the judgment.
II
BACKGROUND
Diaz is employed by the City as a fire captain. In 2011, when he was 56 years old, he took an examination to be placed on a one-year eligibility list for promotion to battalion chief. The examination had three components: (1) a simulation exercise, weighted at 50 percent of the examination score; (2) a written examination, weighted at 20 percent of the examination score; and (3) a panel interview, weighted at 30 percent of the examination score. The simulation exercise and panel interview were evaluated by three senior fire officials from outside the City.
The City's human resources operations manager, who was then 52 years old, oversaw the examination process, compiled the scores at the conclusion of the examination, and determined whether an applicant had passed or failed the examination. Diaz scored 63 percent on the simulation exercise, 76 percent on the written examination, and 87 percent on the panel interview. Although Diaz had an average weighted score of 72.8 percent, the City's human resources operations manager notified him he failed the examination because he did not achieve at least 70 percent on the simulation exercise. She based her determination on her interpretation of the applicable civil service rule and her understanding of the historical practice within the human resources department, which she believed required an applicant to pass each component of the examination with a score of at least 70 percent in order to pass the examination.
The City's applicable civil service rule for examination grades states, "Unless otherwise provided in notices published prior to holding the examination, applicants shall be graded on a scale in which 100 is the highest grade that can be expected and 70 is the lowest acceptable grade. Deviations from this grading scale may be established by announcing the different required minimum grade in the examination notice. Deviations designated by the Director of Human Resources may provide for a minimum grade in any part of the examination that would permit an applicant who scores below that grade to be disqualified from the remainder of the examination. [¶] In examinations composed of several tests graded independently, the grade of each test will be added together to determine the overall grade for placement on the eligibility list."
Diaz subsequently sued the City for age discrimination. He claimed the City falsely failed him because he was over 50 and eligible to retire and the fire department administration wanted to bring in younger people.
Diaz did not object to the human resources operations manager's determination until approximately nine months after she notified him of it. The City's civil service commission determined the objection was untimely under the applicable civil service rule. In a separate case, Diaz petition for a writ of mandate compelling the City to (1) find he passed the examination, (2) promote him to battalion chief, and (3) pay him back pay. The trial court denied the petition and we affirmed the judgment on appeal. (Diaz v. City of Chula Vista (Jan. 23, 2017, D069106) [nonpub. opn.].)
The City moved for summary judgment, arguing Diaz could not state a prima facie case of discrimination because denial of a place on a promotion eligibility list was not an adverse employment action. The City also argued it had a legitimate business reason for its decision (i.e., the human resources operations manager's interpretation of the applicable civil service rule and understanding the human resources department's historical practice) and Diaz could not present specific and substantial evidence the reason was a pretext for age discrimination.
Diaz opposed the motion, providing declarations and deposition testimony, some of which the court found inadmissible, tending to show (1) the human resources operations manager's interpretation of the applicable civil service rule and understanding of the human resources department's historical practice were mistaken; (2) the candidates who passed the examination were all under the age of 50; (3) age awareness and ageist comments were common within the fire department; (4) questions about older, longer-serving employees' retirement plans were common within the fire department; and (5) remarks about certain people, including Diaz, needing to retire were common within the fire department. Consequently, he believed the fire chief used the human resources operations manager as a cat's-paw to eliminate the candidates who were over 50 from the promotion eligibility list by having her falsely inform them they had failed the examination. (See DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 551 [under the cat's-paw theory, "showing that a significant participant in an employment decision exhibited discriminatory animus is enough to raise an inference that the employment decision itself was discriminatory, even absent evidence that others in the process harbored such animus"]; accord, Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1188.)
After considering the parties' evidence and arguments, the court granted the motion. The court found Diaz could state a prima facie case for relief because denial of an opportunity for a promotion could be an adverse employment action. However, the court found the City had met its burden of producing evidence showing it had a legitimate business reason for the scoring decision and Diaz had not met his countervailing burden of producing evidence showing the reason was a pretext for age discrimination.
III
DISCUSSION
"On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.] Under California's traditional rules, we determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff's case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).)
"In cases alleging employment discrimination, we analyze the trial court's decision on a motion for summary judgment using a three-step process that is based on the burden-shifting test that was established by the United States Supreme Court for trials of employment discrimination claims in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792." (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 860 (Serri).) "[U]nder the first step of the McDonnell Douglas framework, the plaintiff may raise a presumption of discrimination by presenting a 'prima facie case,' the components of which vary depending upon the nature of the claim, but typically require evidence that ' "(1) [the plaintiff] was a member of a protected class, (2) [the plaintiff] was qualified for the position he [or she] sought or was performing competently in the position ... held, (3) [the plaintiff] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance [that] suggests discriminatory motive." ' [Citation.] 'A satisfactory showing to this effect gives rise to a presumption of discrimination which, if unanswered by the employer, is mandatory—it requires judgment for the plaintiff.' [Citations.] However, under the second step of the test, 'the employer may dispel the presumption merely by articulating a legitimate, nondiscriminatory reason for the challenged action. [Citation.] At that point the presumption disappears.' [Citation.] Under the third step of the test, the 'plaintiff must ... have the opportunity to attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.' " (Id. at pp. 860-861.)
This framework is modified in the summary judgment context: " 'the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.' " (Serri, supra, 226 Cal.App.4th at p. 861.) "In this context, legitimate' reasons 'are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination.' " (Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 673 (Reeves).) "If the employer meets its initial burden, the burden shifts to the employee to 'demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.' " (Serri, at p. 861.)
An employee " ' "may establish pretext 'either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.' " ' " (Batarse v. Service Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820, 834 (Batarse).) "It is not sufficient for an employee to make a bare prima facie showing or to simply deny the credibility of the employer's witnesses or to speculate as to discriminatory motive. [Citations.] Rather it is incumbent upon the employee to produce 'substantial responsive evidence' demonstrating the existence of a material triable controversy as to pretext or discriminatory animus on the part of the employer." (Serri, supra, 226 Cal.App.4th at p. 862.) "[S]ummary judgment for the employer may thus be appropriate where, given the strength of the employer's showing of innocent reasons, any countervailing circumstantial evidence of discriminatory motive, even if it may technically constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred." (Guz, supra, 24 Cal.4th at p. 362; Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005 (Hersant).)
Here, the City presented evidence the human resources operations manager determined solely on her own that Diaz had failed the promotional examination because he had failed the simulation exercise component of the examination. She based her determination on her interpretation of the applicable civil service rule and her understanding of the human resources department's historical practice. This reason, if true, is facially unrelated to Diaz's age and precludes a finding of discrimination. (Reeves, supra, 186 Cal.App.4th at p. 673; Coleman v. Quaker Oats Co. (9th Cir. 2000) 232 F.3d 1271, 1282.) Accordingly, the City was entitled to summary judgment as a matter of law unless Diaz presented substantial evidence the City's true reasons were discriminatory. (Coleman, at p. 1282.)
"While state and federal legislation concerning age discrimination differs in some respects, their objectives are identical, and courts of this state have looked to federal law to aid in the interpretation of analogous provisions of California statutes." (Hersant, supra, 57 Cal.App.4th at p. 1002, fn. 1; accord, Guz, supra, 24 Cal.4th at p. 354.) --------
In response to the City's evidence, Diaz produced evidence tending to show the human resources operations manager's interpretation of the applicable civil service rule and understanding the human resources department's historical practice were mistaken. The City does not dispute this point for purposes of this appeal. However, to meet his burden, Diaz had to do more than present evidence showing the City's determination was wrong, mistaken, or unwise. He had to present evidence showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the City's stated reason that a reasonable fact finder could rationally find the reason unworthy of credence and, consequently, infer the City did not truly act for the stated reason. (Batarse, supra, 209 Cal.App.4th at p. 834; Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 75.)
Diaz acknowledged in his deposition he had no evidence the human resources operations manager harbored any discriminatory animus. Indeed, she was not much younger than him at the time of the examination and she submitted a declaration expressly denying she considered his age in any way when she scored or calculated his examination results.
Instead, to meet his burden and support his cat's-paw theory, Diaz produced evidence tending to show that, within the fire department, ageist remarks were common; queries about older, long-serving employees' retirement plans were common; and employees over the age of 50 were unlikely to be promoted because the fire department administration at that time was looking for a younger team. He also produced evidence the human resources operations manager was asked about scoring during the testing process and she said the scoring had not yet been figured out. Conflating this evidence, he proffered the fire chief had to have influenced the scoring decision.
The court sustained objections to some of Diaz's evidence, but even if the court had considered all of it, it was not sufficient to raise an inference the City's reason was a pretext for age discrimination. At best, Diaz's evidence showed the fire chief may have had some bias against older workers, but it did not show the fire chief influenced the human resources operations manager's decision.
Moreover, the human resources operations manager submitted a declaration unequivocally stating (1) no one from the fire department had consulted with her or directed her in any way as to any aspect of the scoring or calculation of the examination or Diaz's examination results; and (2) she was not influenced in any way by anyone in the fire department as to the conduct of the examination, the grading of it, or Diaz's success or failure. The fire chief also submitted a declaration unequivocally stating he did not participate in the examination process in any way, he was not involved in and did not consult with anyone in the human resources department regarding any aspect of the scoring or calculation of Diaz's examination, and he did not direct the participation or involvement in the process by anyone else in the fire department.
Diaz admitted in his deposition he does not have any tangible information to the contrary. He simply believes the fire chief must have been involved in the scoring decision because he can conceive of no other explanation for the error. "Where a former employee's suspicions of improper motives are primarily based on conjecture and speculation, he or she has not met the requisite burden of proof of establishing a pretextual basis for dismissal." (Walker v. Blue Cross of California (1992) 4 Cal.App.4th 985, 996, abrogated on another point in Guz, supra, 24 Cal.4th at p. 351; Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1014 [an issue of fact can only be created by a conflict in the evidence, not by speculation, conjecture, imagination, or guess work]; Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1615 [opposition to summary judgment based on conjecture and speculation is insufficient].)
Given our conclusion and its rationale, we need not decide whether depriving Diaz of a place on the promotion eligibility list was an adverse employment action. We also need not decide whether the trial court abused its discretion in sustaining any of the City's objections to Diaz's evidence.
IV
DISPOSITION
The judgment is affirmed. The City is awarded its appeal costs.
McCONNELL, P. J. WE CONCUR: BENKE, J. NARES, J.