Opinion
B303364
01-13-2022
SONIA GONZALEZ, Plaintiff and Appellant, v. WHITTIER COLLEGE, Defendant and Respondent.
Horton Law Firm, Laura L. Horton and Flor C. Dery, for Plaintiff and Appellant. Anderson, McPharlin & Connors, David R. Hunt, Colleen A. Deziel, Leila M. Rossetti, and Delia Ibarra, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC691295, Rupert A. Byrdsong, Judge. Affirmed.
Horton Law Firm, Laura L. Horton and Flor C. Dery, for Plaintiff and Appellant.
Anderson, McPharlin & Connors, David R. Hunt, Colleen A. Deziel, Leila M. Rossetti, and Delia Ibarra, for Defendant and Respondent.
KIM, J.
I. INTRODUCTION
Defendant and respondent Whittier College (Whittier) employed plaintiff and appellant Sonia Gonzalez (Gonzalez) as a non-tenure-track visiting assistant professor through a series of one-year contracts from June 2011 until June 2018. After Whittier informed Gonzalez that it would not extend her employment further, Gonzalez sued Whittier alleging retaliation in violation of the Fair Employment and Housing Act (FEHA); retaliation in violation of the Labor Code; failure to prevent, investigate, or remedy discrimination in violation of FEHA; wrongful termination in violation of public policy; breach of implied employment contract; and gender, race, and/or national origin discrimination in violation of FEHA. Whittier moved for summary judgment or, alternatively, summary adjudication (summary judgment motion). The trial court granted Whittier summary judgment and Gonzalez appeals. We affirm.
II. BACKGROUND
Whittier is a four-year liberal arts college. Due to budget constraints, it employs only a certain number of tenured professors. Apart from tenured professors, Whittier meets its teaching needs through temporary positions such as visiting and adjunct professors. Typically, tenure-track faculty positions become available at Whittier either when a faculty member departs or when the school determines that enrollment numbers and overall need support creating a new tenure-track position.
The process to fill an open tenured position at Whittier begins with a national search for the best possible candidate. Once a candidate is selected, the candidate goes through a stringent five-year peer-review assessment in the areas of teaching, advising, service, and scholarship.
The process for creating a new tenure-track position begins when an academic department reaches consensus as to the need for a new position. The department then submits a proposal to the Educational Policies Committee (EPC) which determines, based on available funds, whether to recommend the creation of the position. If the EPC recommends a new tenure-track position, the Dean of Faculty and the President and the Board of Trustees must then approve the position.
Beginning in 2004, Gonzalez was a tenure-track assistant Spanish professor at Purdue University. In 2009 or 2010, she was up for, but denied tenure.
In the fall of 2010, Whittier advertised for a tenure-track position in the Spanish section of its Modern Languages Department (Department) due to a tenured professor's impending retirement. Whittier received over 60 applications for the position, including an application from Gonzalez. It selected 15 applicants to interview, including Gonzalez.
Whittier professors Gustavo Geirola and Doreen O'Connor-Gomez, the two tenured faculty members in the Department's Spanish section, interviewed the applicants and selected the top three candidates for a second round of interviews. Gonzalez was not among the top three candidates. Geirola and O'Connor-Gomez's first choice among the top three candidates was Jennifer Gomez-Menjivar, a woman of Latin descent. Gomez-Menjivar apparently accepted a position at another institution and Whittier offered the position to Lizardo Herrera, Geirola and O'Connor-Gomez's second choice. Herrera, a man of Ecuadorian ancestry, accepted the position.
In the spring of 2011, Gonzalez applied for a position at Whittier as a visiting assistant professor for the 2011-2012 academic year. Whittier offered Gonzalez the position and she signed a one-year contract for a "non tenure-track position as a Visiting Assistant Professor of Spanish and Latino Studies." When she applied for the position, Gonzalez understood it was not a tenure-track position. Prior to signing the contract, Gonzalez did not have any communication with anyone that led her to believe that the position could possibly turn into a tenure-track position. Every year thereafter, until her employment at Whittier ended, Gonzalez signed a one-year contract.
In the 2011-2012 academic year, the Department submitted a proposal to the EPC for an additional tenure-track position in its Spanish section. The EPC did not recommend the position. In 2015, the Department considered submitting another proposal for a tenure-track position for the Latino Studies program in its Spanish section.
Beginning in the 2015-2016 academic year, Whittier hired Darrin Good as its Dean of Faculty and Vice President of Academic Affairs. During the summer of 2015, Good invited all faculty members to meet with him. Gonzalez accepted Good's invitation and met with him on September 1, 2015. In their meeting, Gonzalez explained that she was a visiting assistant professor and wanted to become a permanent member of Whittier's faculty. To that end, Gonzalez explained, she was working with members of the Department to submit a proposal to the EPC for a tenure-track position focused on Latino Studies. Good provided Gonzalez with tips and ideas for how to present the strongest possible case for the proposal.
On April 28, 2016, Gonzalez met with Good to inquire about the status of the proposal for the Latino Studies tenure-track position. Good informed her that the Department had not submitted the proposal. The proposal was not submitted because Geirola thought O'Connor-Gomez was submitting it, O'Connor-Gomez thought Geirola had given it to Horng-Yi Li to submit to the EPC, and Li did not actively pursue it.
It is not clear from the record what Li's then status was at Whittier. In April 2017, he was chair of the Department.
Also at that meeting, Good noted that Gonzalez was in her fifth year at Whittier as a visiting assistant professor. He explained that, based on his understanding of the America Association of University Professors' (AAUP guidelines, visiting assistant professors were not permitted to remain employed at the same institution for more than six years. Good understood that if Whittier kept a visiting professor on its faculty for more than six years, AAUP guidelines called for it to grant the faculty member "'de facto tenure.'"
According to its website, the AAUP "is a nonprofit membership association for faculty and other academic professionals." (AAUP.org <http://www.aaup.org/about-aaup> [as of Jan. 12, 2022], archived at <https://perma.cc/VQ2M-SZ8V>.) Its stated mission "is to advance academic freedom and shared governance; to define fundamental professional values and standards for higher education; to promote the economic security of faculty, academic professionals, graduate students, post-doctoral fellows, and all those engaged in teaching and research in higher education; to help the higher education community organize to make our goals a reality; and to ensure higher education's contribution to the common good." (Ibid.)
In its 130-year history, Whittier had never granted a faculty member de facto tenure. Good believed that permitting a faculty member to "sidestep [the tenure] requirements by virtue of simply having taught at an institution . . . would be extremely inequitable and unfair to the other tenured and tenure-track faculty members . . . ." Accordingly, unless Gonzalez's department was able to obtain approval for a different position for her, the 2016-2017 academic year would be her last at Whittier.
On November 29, 2016, Good sent Gonzalez an e-mail that stated, "I am aware that [Geirola] is working to develop a proposal for a lecturer position that would allow you to remain at [Whittier]. However, to be clear and forthright with you, I want to convey to you in writing what you and I have discussed previously. A request to put this in writing also came from the Faculty Personnel Committee in order to be transparent and clear with you.
"As we discussed, this is your final year at [Whittier] barring a successful proposal that would allow you to become a Lecturer. This is in no way a reflection of the quality of work you have done, but rather the limitation on the number of years a Visiting faculty member can serve at [Whittier] as described in our Faculty Handbook." Gonzalez responded, "Yes, I understand, as set forth in the Faculty Handbook, that the visiting position is limited to six years."
In around January 2017, in an effort to keep Gonzalez at Whittier, Geirola, then chair of the Latino Studies program, submitted a proposal for a lecturer position in the Department. The proposal was submitted for a lecturer position rather than a tenure-track position to try to ensure that Gonzalez would be eligible.
On April 14, 2017, after Herrera announced his intention to take a full-year sabbatical, the Department posted an advertisement for two or more adjunct positions or for an assistant professor of Latino Studies and Spanish. Oriol Sui, a female of Latin descent and Gomez's first choice for the position, turned down Whittier's offer. Jose Flores, a man of Mexican descent, accepted Whittier's offer and joined the Department as a visiting assistant professor for the 2017-2018 academic year.
On April 24, 2017, the EPC met and decided not to recommend the Department's proposed lecturer position for funding.
On May 3, 2017, Gonzalez contacted the AAUP concerning her status at Whittier. She wrote, "I am reaching out to you because I believe my current institution, Whittier College, has not followed the policies [in] the RedBook in regards to due process, tenure consideration, and notice of non-reappointment." Gonzalez stated, "What appears to be clear is that they don't want to hire me [for] an additional year because they don't want to grant me de facto tenure." (Fn. omitted.)
Hans-Joerg Tiede responded on behalf of the AAUP. He wrote, "As you note, the primary motivation for the administration's decision not to renew your appointment is to keep you from attaining de facto tenure. However, Dean Good's claim that 'AAUP language is very clear' that you cannot return for a seventh year of full-time teaching is mistaken. AAUP language is very clear that you can: under the 1940 Statement of Principles, which you cite, you can be reappointed for a seventh year without concern that you would attain de facto tenure, as long as you are given 12 [months] of notice of nonreappointment. In fact, tenure track faculty members who are denied tenure routinely receive a 'terminal year,' which usually is their seventh at the institution. They are, however, given notice of nonreappointment before the end of the sixth."
On June 6, 2017, Gonzalez sent Good a grievance letter concerning Whittier's decision to not reappoint her for the 2017-2018 academic year. Among other things, Gonzalez alleged that the failure to reappoint her was due to gender and race discrimination. Until Gonzalez's grievance letter, Whittier was unaware that she had contacted the AAUP.
On June 21, 2017, Gonzalez met with Good and Whittier Human Resources Director Cynthia Joseph to discuss the impending cancellation of her employee benefits and her request that Whittier provide the loan officer for her home purchase confirmation of employment. After the meeting, Whittier agreed to continue Gonzalez's employee benefits while her grievance was pending and to confirm her employment status.
By letter dated June 21, 2017, Tiede wrote to Whittier that Good's November 29, 2016, e-mail to Gonzalez notifying her that her employment would not be renewed "[w]as seriously deficient when measured against standards generally accepted in the academic community." He further stated that under AAUP guidelines, Gonzalez could be hired for a seventh year without implicating de facto tenure status. Upon learning that Gonzalez could be hired for a seventh year and because it appeared that Whittier had not given Gonzalez 12 months' formal written notice of the end of her employment, Whittier agreed to renew Gonzalez's employment contract for a seventh and final year.
At the end of June 2017, Whittier's Faculty Personnel Committee (FPC) considered Gonzalez's grievance letter. On June 30, 2017, Erica Fradinger, Chair of the FPC, wrote Gonzalez informing her that the FPC had reached a consensus that her letter had not established a prima case of any violation of academic freedom or discrimination on the basis of gender or race. Gonzalez did not respond to Fradinger's letter or follow up with anyone in Whittier's administration about the letter.
On July 18, 2017, Good e-mailed Gonzalez stating, "In light of the fact that an offer for your appointment has been made for the 2017-2018 academic year and the FPC's review and decision of the issues raised in your June 6, 2017 letter and related correspondence, we believe that we have addressed all of your concerns. If you disagree, please let us know." On July 24, 2017, Gonzalez e-mailed Good stating that she would respond to his e-mail shortly, but never did.
III. DISCUSSION
A. Standard of Review
'"Summary judgment is properly granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc, § 437c, subd. (c).) A defendant seeking summary judgment bears the initial burden of proving the "cause of action has no merit" by showing that one or more elements of plaintiffs cause of action cannot be established or there is a complete defense. (Code Civ. Proc, § 437c, subds. (a), (o)(2); [citations.].) Once the defendant's burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action. [Citation.]" (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 67.) "On appeal from the granting of a motion for summary judgment, we examine the record de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party. [Citation.]" (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.)
B. Retaliation in Violation of FEHA and the Labor Code
Gonzalez contends the trial court erred in granting Whittier summary judgment on her FEHA and Labor Code retaliation causes of action. The court did not err.
"[I]n order to establish a prima facie case of retaliation under . . . FEHA, a plaintiff must show (1) he or she engaged in a 'protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Likewise, to establish a prima facie case of retaliation under Labor Code section 1102.5, subdivision (b) "a plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two. [Citation.]" (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384.)
The trial court granted summary judgment as to Gonzalez's FEHA and Labor Code retaliation causes of action based on its finding that Gonzalez could not establish a causal link between any protected status or activity on her part and any adverse employment action by Whittier. Instead, the court found, the undisputed evidence established that Gonzalez did not engage in any protected activity until months after Whittier notified her that it was not going to renew her employment contract as a visiting assistant professor.
On November 29, 2016, Good sent Gonzalez an e-mail informing her that her employment contract with Whittier would not be renewed for the 2017-2018 academic year unless a lecturer position was created that she could fill. Gonzalez did not complain to the AAUP about the non-renewal of her employment contract with Whittier until May 3, 2017, over five months later. She did not file her grievance with Whitter until June 6, 2017, over six months later. Because Gonzalez's alleged protected activity occurred after Whittier notified her that it would not renew her employment contract, she cannot demonstrate a causal link between any protected activity and any adverse employment action.
Gonzalez argues the trial court erred because even though Good told her that Whittier would not renew her employment contract before she engaged in any alleged protected activity, Geirola placed her on the Fall 2017 class schedule, assured her she would remain at Whittier, and told her he was submitting a proposal for a lecturer position which caused her to believe that she would continue to teach at Whittier. Gonzalez does not explain how Geriola's conduct and assurances and her subjective belief that she would remain at Whittier demonstrate a causal link between her alleged protected activity and any adverse employment action, particularly in light of the fact that she understood throughout her employment at Whittier that Geirola did not have final decision-making authority concerning faculty retention at Whittier.
C. Wrongful Termination in Violation of Public Policy
Gonzalez argues we should reverse the trial court's order granting summary judgment as to her wrongful termination in violation of public policy cause of action. Her entire, two-sentence argument is: "Whittier's attacks on this claim are derivative of its attacks on the statutory claims. Triable issues on the statutory claims thus defeat adjudication of this claim."
Gonzalez has forfeited her challenge to the trial court's order by her conclusory argument and failure to cite supporting authority. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368 (Niko) ["One cannot simply say the court erred, and leave it up to the appellate court to figure out why"]; People ex rel. 20th Century Ins. Co. v. Building Permit Consultants, Inc. (2000) 86 Cal.App.4th 280, 284 (People ex rel. 20th Century Ins. Co.) ["Their discussion on this point is conclusory and fails to cite any authority to support the claim. Such a presentation amounts to an abandonment of the issue"]; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie) ["When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived"].)
Moreover, the trial court correctly granted Whittier's summary judgment motion as to Gonzalez's wrongful termination in violation of public policy cause of action. "A cause of action for wrongful termination in violation of public policy does not lie if an employer decides simply not to exercise an option to renew a contract. In that instance, there is no termination of employment but, instead, an expiration of a fixed-term contract. [Citation.] To hold otherwise would require the creation of a new tort for nonrenewal of a fixed-term employment contract in violation of public policy. We decline to do so." (Touchstone Television Productions v. Superior Court (2012) 208 Cal.App.4th 676, 678 (Touchstone))
Whittier employed Gonzalez pursuant to a series of one-year contracts. Gonzalez's employment with Whittier ended when Whittier decided not to renew her employment contract. Thus, there was no termination of employment that would support a wrongful termination in violation of public policy cause of action. (Touchstone, supra, 208 Cal.App.4th at p. 678.)
D. Breach of Implied Employment Contract
Gonzalez argues the trial court erred in granting Whittier's summary judgment motion as to her breach of implied contract cause of action contending, "A triable issue of fact exists as to the existence of an implied contract, whether Whittier breached the contract by not renewing [her] and failing to offer her an adjunct position, or a contractual term of agreement about the de facto tenure." We disagree.
In support of her argument, Gonzalez correctly cites Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 336-337 (Guz) for the proposition that "[i]n determining the existence and contents of implied-in-fact agreements, Courts consider the personnel policies or practices [of the employer], the employee's longevity of services, the employer's actions or communications reflecting assurances of continued employment, and the practices of the industry in which the employee is engaged." Gonzalez's reliance on Guz is unavailing.
In her opening brief, Gonzalez does not identify any factual basis for her claim of an implied contract for continued employment. That is, she does not identify any of Whittier's personnel policies, practices, actions, or communications or any industry practices that create a triable issue about whether there was an implied contract for continued employment. Accordingly, Gonzalez has forfeited the issue. (Niko, supra, 144 Cal.App.4th at p. 368; People ex rel. 20th Century Ins. Co., supra, 86 Cal.App.4th at p. 284; Badie, supra, 67 Cal.App.4th at pp. 784-785.)
In her reply brief, Gonzalez apparently attempts to remedy her forfeiture, stating that Geirola's assurances that he wanted to keep her in the Latino Studies program even if no tenure track position was available, Geirola's submission of a proposed lecturer position for her, and her placement on the Fall 2017 class schedule created an implied contract for continued employment. We do not consider arguments raised for the first time in a reply brief. (Hawran v. Hixon (2012) 209 Cal.App.4th 256, 268; WorldMark, The Club v. Wyndham Resort Development Corp. (2010) 187 Cal.App.4th 1017, 1030, fn. 7.)
In any event, "an employer's actions or communications reflecting assurances of continued employment 'have no relevance when there is an express contract of employment which states the term of employment.' [Citation.]" (Al-Agha v. Cephalon, Inc. (CD. Cal., Jan. 23, 2009) 2009 WL 10669479 at 3; see also Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 203 ["[I]t is well settled that an action based on an implied-in-fact or quasi-contract cannot lie where there exists between the parties a valid express contract covering the same subject matter. [Citations.]"]; Wal-Noon Corp. v. Hill (1975) 45 Cal.App.3d 605, 613 ["There cannot be a valid, express contract and an implied contract, each embracing the same subject matter, existing at the same time"].) Each of Gonzalez's written contracts with Whittier was for an express term of one year. Accordingly, there could not also be an implied contract concerning the length of Gonzalez's employment.
E. Gender, Race, and/or National Origin Discrimination in Violation of FEHA
Gonzalez contends the trial court erred in granting summary judgment as to her claim of gender, race, and/or national origin discrimination in violation of FEHA. The court did not err.
1. Disparate Treatment
Gonzalez asserted a claim for disparate treatment discrimination based on her "gender, race, and/or national origin." The trial court rejected Gonzalez's disparate treatment theory of employment discrimination in part because she could not establish a nexus between her gender, race, or ancestry and Whittier's decision not to renew her employment contract.
Government Code section 12940, subdivision (a) makes it an unlawful employment practice "[f]or an employer, because of the race, . . . national origin, [or] gender . . . of any person, ... to discriminate against the person in . . . terms, conditions, or privileges of employment." Absent direct evidence of discrimination, claims of discrimination based on a disparate treatment theory are tried under the so-called McDonnell Douglas three-stage burden-shifting test. (Guz, supra, 24 Cal.4th at p. 354.) Under that test, the plaintiff has the initial burden of demonstrating a prima facie case of discrimination- "[g]enerally, the plaintiff must provide evidence that (1) [s]he was a member of a protected class, (2) [s]he was qualified for the position [s]he sought or was performing competently in the position [s]he held, (3) [s]he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive." (Id. at p. 355.)
McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas).
If the plaintiff demonstrates a prima facie rebuttable presumption of discrimination arises, shifting the burden to the employer to produce admissible evidence that it took its action for a legitimate, nondiscriminatory reason. (Guz, supra, 24 Cal.4th at pp. 355-356.) If the employer meets its burden, the presumption of discrimination disappears and the plaintiff "must then have opportunity to attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive." (Id. at p. 356.)
At this third stage, "to avoid summary judgment, an employee claiming discrimination must offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pre textual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination." (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.) Speculation is not substantial responsive evidence (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735) and a plaintiff must do more than raise the inference that the employer's asserted reason is false (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003 (Hicks)). '"[A] reason cannot be proved to be "a pretext for discrimination" unless it is shown both that the reason was false, and that discrimination was the real reason.' [Citation.]" (Hicks, supra, 160 Cal.App.4th at p. 1003.)
In the case of a motion for summary judgment or summary adjudication, several cases have held that the McDonnell Douglas burden-shifting analysis is reversed, with the employer having the burden to negate the employee's entitlement to relief. (See cases cited in Guz, supra, 24 Cal.4th at pp. 356-357.)
Whittier argues that it did not renew Gonzalez's employment contract because it did not want to run afoul of the AAUP guidelines that a visiting assistant professor who remained on a university's staff for more than six years should be granted de facto tenure. It presented evidence that in its 130-year history, it had never granted a faculty member de facto tenure.
In response to Whittier's proffered legitimate, nondiscriminatory reason for not renewing her employment contract, Gonzalez presented evidence of O'Connor-Gomez's alleged workplace slights; evidence of other Latina professors at Whittier-Teressa Delfin and Xochitl Ruiz-whose employment contracts were not renewed at the same time that Gonzalez's employment ended and who claimed they were discriminated against based on their gender and race; evidence of other female faculty members who Good allegedly mistreated; testimony from Sangeeta Gupta, a "cultural expert," that Whittier's culture in a number of areas ranged from mild-to-moderate dysfunctionality to severe toxicity; Whittier's alleged failure to investigate Gonzalez's discrimination complaint; Whittier's decision to hire Flores allegedly to replace Gonzalez even though she believed she had superior academic credentials; Whittier's asserted baseless reasons for not renewing Gonzalez's employment contract; Whittier's failure to discuss her future at Whittier with her after she complained to the AAUP and submitted her grievance to Good; and statistical evidence she claimed showed a pattern of terminating and failing to promote Latina professors. Although Gonzalez's presentation was voluminous, none of the evidence- considered separately or collectively-was substantial evidence that Whittier's stated legitimate, nondiscriminatory reason for not renewing her employment contract was untrue or pretextual, or substantial evidence that Whittier acted with discriminatory bias in light of the strong and persuasive evidence that it did not renew her employment contract for a legitimate, nondiscriminatory reason-i.e., it did not want to employ her for a period of time that might call for it to grant her de facto tenure under the AAUP guidelines in contravention of its 130 year history.
The trial court excluded virtually all of the statistical evidence upon which Gonzalez relies. We affirm the court's exclusion of this evidence below.
In addition to disputing many of Whittier's 77 claimed undisputed material facts, Gonzalez asserted an additional 336 undisputed material facts in 106 pages that she claimed defeated summary judgment.
At most, Gonzalez presents evidence that Whittier may not be a good employer and she and others were not treated well, but she does not present evidence of discrimination. (Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1187.)
2. Disparate Impact
Gonzalez asserted a claim for disparate impact discrimination based on her "gender, race, and/or national origin." The trial court rejected Gonzalez's disparate impact theory of employment discrimination in part because she could not establish that Whittier had a facially neutral policy that was discriminatory as applied.
"To prevail on a theory of disparate impact, the employee must show that regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on certain employees because of their membership in a protected group." (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 129, citing, inter alia, Guz, supra, 24 Cal.4th at p. 354, fn. 20, disapproved on another ground by Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115.) "'Statistical proof is indispensable in a disparate impact case: "'The plaintiff must begin by identifying the specific employment practice that is challenged.'" "'Once the employment practice at issue has been identified, causation must be proved; that is, the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group."" ([Citations]; see also Paige v. California (9th Cir. 2002) 291 F.3d 1141, 1145 . . .) [statistical analysis 'must show a disparity that is "sufficiently substantial" as to "raise such an inference of causation"']; [citation]; Stagi v. AMTRAK (3d Cir. 2010) 391 Fed.Appx. 133, 137-140 ['a plaintiff will typically have to demonstrate that the disparity in impact is sufficiently large that it is highly unlikely to have occurred at random, and to do so by using one of several tests of statistical significance'].)" (Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 650, disapproved on another ground by Williams v. Superior Court (2017) 3 Cal.5th 531, 557, fn. 8.)
The employment practice Gonzalez challenges is "utilizing annual contracts for all full-time faculty members who are not tenured." As statistical support for her challenge, Gonzalez relies on a declaration from Hyowook Chiang, an economics Ph.D.
Chiang's declaration is insufficient to establish a statistical disparity that demonstrates a disparate impact on Latina professors. Whittier objected to most of Chiang's declaration, and the trial court sustained most of Whittier's objections. After the court's order sustaining Whittier's objections, Chiang's declaration provided, in relevant part:
"The number of Latina faculty members decreased by five (from 14 to 9) and the percent of Latina faculty members declined by 37 percent or four percentage points from 11.0% to 7.0% between 2017 and 2018. There has been a steady increase in the number and percentage of Latina faculty members between 2009 and 2017 with an average increase of 0.9 percentage points per year in the percentage of Latina faculty members.
". . . In contrast, the number of non-Latina faculty members increased for all years between 2009 and 2018 except for 2012 when the number of non-Latina faculty members decreased by only one from 103 to 102."
Chiang then provided a table for the period from the 2009-2010 academic year to the 2017-2018 academic year that compared the number and percentage of non-Latina faculty members and Latina faculty members who were terminatedeach year. We reproduce the chart below:
By "terminated," Chiang meant faculty members who were on Whittier's faculty one year and not the next for whatever reason. Thus, if a professor took a job at another university, Chiang's table included that departure as a "termination."
Non-Latinas
Latinas
Academic Year
Number
Number of Terminations
Percent Terminations
Number
Number of Terminations
Percent Terminations
2009 - 2010
92
5
5.4%
4
0
0.0%
2010 - 2011
95
6
6.3%
5
0
0.0%
2011 - 2012
103
8
7.8%
7
0
0.0%
2012 - 2013
102
6
5.9%
11
1
9.1%
2013 - 2014
102
7
6.9%
11
0
0.0%
2014 - 2015
107
9
8.4%
11
0
0.0%
2015 - 2016
110
10
9.1%
12
1
8.3%
2016 - 2017
111
11
9.9%
13
1
7.7%
2017 - 2018
113
12
10.6%
14
5
35.7%
According to Chiang's table, the percentage of Latina faculty member terminations exceeded the percentage of non-Latina faculty member terminations in only two of the nine years. In five of the nine years, there were no Latina faculty member terminations. In three of the remaining four years, there was only one Latina faculty member termination. The only year in which the percentage of Latina faculty member terminations significantly exceeded the percentage of non-Latina faculty terminations was 2017-2018-35.7 percent to 10.6 percent. Plainly, statistical data demonstrating that Whittier's annual contract employment practice impacted non-Latina faculty members more adversely than Latina faculty members in seven out of the nine years reviewed is insufficient to demonstrate the opposite-that Whittier's annual contract employment practice had a disparate impact on Latina faculty members over the same period. (See Katz v. Regents of the University of California (9th Cir. 2000) 229 F.3d 831, 836; Rose v. Wells Fargo & Co. (9th Cir. 1990) 902 F.2d 1417, 1424-1425.)
Gonzalez contends the trial court erred in sustaining Whittier's objections to Chiang's declaration. "We review a trial court's rulings on the admissibility of evidence for abuse of discretion, and we will not reverse absent '"a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice."' [Citation.]" (Pilliod v. Monsanto Company (2021) 67 Cal.App.5th 591, 630.)
Gonzalez fails to demonstrate the trial court abused its discretion in excluding parts of Chiang's declaration because she does not address each objection as it applied to specific testimony, instead, lumping together all objections made on a certain ground and asserting the court erred. For example, Whittier objected to 14 distinct statements in Chiang's declaration as being irrelevant. Gonzalez's claim of error on appeal is: "These paragraphs are highly relevant to [Gonzalez's] discrimination claims." As stated above, an appellant "cannot simply say the court erred, and leave it up to the appellate court to figure out why." (Niko, supra, 144 Cal.App.4th at p. 368.)
F. Failure to Prevent, Investigate, or Remedy Discrimination in Violation of FEHA
Under Government Code section 12940, subdivision (k), it is an unlawful employment practice for an employer "to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." Gonzalez contends there was a triable issue of fact as to her third cause of action for failing to prevent, investigate, or remedy unlawful discrimination because Whittier did not investigate her complaint of discrimination to Good.
An employee cannot establish a cause of action for failure to prevent discrimination if she cannot demonstrate she was discriminated against. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021 ["An actionable claim under [Government Code] section 12940, subdivision (k) is dependent on a claim of actual discrimination"]; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 282, 289 ["'[T]here's no logic that says an employee who has not been discriminated against can sue an employer for not preventing discrimination that didn't happen . . .'"].) We held above that the trial court properly granted summary judgment as to Gonzalez's FEHA discrimination claim. Accordingly, the court also correctly granted summary judgment as to her failure to investigate, prevent, or remedy discrimination claim.
G. Punitive Damages
"Punitive damages are available under Civil Code section 3294 'where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, . . . [.]" Malice is defined in [Civil Code] section 3294 as 'conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.' ([Civ. Code 3294, s]ubd. (c)(1).) Oppression is defined as 'despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.' ([Civ. Code 3294, s]ubd. (c)(2).)" (Cloud v. Casey (1999) 76 Cal.App.4th 895, 911.) In an employment discrimination case, "evidence of discriminatory intent and pretext which supported the finding of liability also provided a sufficient basis for the jury to find malice or oppression." (Id. at p. 911.)
Gonzalez contends that Whittier's discrimination and retaliation against her and the coverup of its "illegal motives by a pretextual excuse" support an award of punitive damages. Because we held above that the trial court correctly granted summary judgment as to Gonzalez's FEHA discrimination and FEHA and Labor Code retaliation claims, we also hold it correctly granted summary judgment as to her punitive damages claim.
IV. DISPOSITION
The judgment is affirmed. Whittier is to recover its costs on appeal.
We concur: RUBIN, P. J., MOOR, J.