Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MC018747. Randolph A. Rogers, Judge.
Law Offices of Brian E. Reed, Brian E. Reed for Plaintiff and Appellant.
Renne Sloan Holtzman Sakai, Timothy G. Yeung, Steve Cikes for Defendant and Respondent.
ARMSTRONG, Acting P. J.
Plaintiff and appellant George Henderson appeals from the judgment entered in favor of defendant and respondent City of Lancaster, after respondent's motion for summary judgment was granted. We affirm.
Standard of Review
"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.)
Facts and Discussion
Appellant worked for the City's Public Works Department from 1987 to 2007. After he resigned, at age 57, he filed suit, alleging discrimination based on age. In the second amended complaint at issue here, he brought causes of action for age discrimination, failure to prevent discrimination, and unlawful retaliation, in each instance alleging a violation of the Fair Employment and Housing Act. (Gov. Code, §§ 12940 et seq.)
A cause of action for wrongful termination was dismissed after the City's demurrer to that cause of action was sustained.
The causes of action for age discrimination and failure to prevent discrimination were based on allegations that after Randy Williams was hired as Public Works Director, in 2003, the City engaged in a pattern of discrimination by ignoring appellant's requests for increases in pay and benefits, despite the fact that younger and less experienced people in his department were receiving raises and promotions, and by denying his request that a new job category be created for him, although the City had created job categories for other employees in the past. The factual allegations included allegations about incidents which in appellant's view established that Williams had a discriminatory motive.
In the cause of action for retaliation, appellant alleged that the Public Works Director and other supervisors were aware that he had complained about his supervisor and about age discrimination, and that the City retaliated against him by continuing to refuse to promote him or to create a position for him, refused to pay him fairly based on his work product, experience, work history, and productivity, and took steps to force him out of his job.
We begin our analysis with the applicable law.
Appellant relies in large part on California Code of Regulations, title 2, section 7295, which provides: "(a) Statement of Purpose. The purpose of the law prohibiting age discrimination in employment is to guarantee all protected individuals 40 or over employment opportunities commensurate with their abilities. These regulations are promulgated to assure that employment opportunities for those protected persons over the age of forty are based upon their abilities and are not conditioned upon age-based stereotypes and unsupported generalizations about their qualifications or job performance."
Appellant cites the facts concerning his tenure with the City, his value to the City, the high quality of his work, and his compensation as compared to that of other employees, and argues that he was not compensated commensurate with his abilities, and thus that the law was violated. He argues that FEHA was violated because "despite [his] outstanding performance and production, he was not put in a position commensurate with his abilities as required by Title 2 California Code of Regulations, section 7295."
Appellant's reliance on this regulation is misplaced. The regulation is not the basis for a cause of action. It merely elucidates the purpose of the age discrimination law, which is to ensure that older workers are not denied opportunities. The regulation does not give an employee a right to compensation commensurate with experience, or the right to any particular position or any particular compensation, no matter what the employee's age or how valuable the employee's service.
Instead, in an employment discrimination case, a plaintiff must show that he or she was a member of a protected class, was qualified for the position he or she sought, suffered an adverse employment action, such as termination, demotion, or denial of an available job, and discriminatory motive. (Guz, supra, 24 Cal.4th at p. 355.) The elements of a cause of action for retaliation under FEHA are similar. The employee must show, inter alia, that he or she engaged in a protected activity, retaliatory animus on the part of the employer, and an adverse action by the employer. (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686.)
We focus this opinion on the question of adverse employment action element, because we agree with the City that on this summary judgment, it conclusively negated that element of the plaintiff's case. (Guz, supra, 24 Cal.4th at p. 334.)
At summary judgment, the City established, through undisputed fact, that:
The City is governed by its Municipal Code and Personnel Rules and Regulations. Under those rules, there are five categories of employees for purpose of compensation; Executive Management, Mid-Management, Professional/Supervisory, General, and Union.
At the time he resigned, appellant was an Assistant Civil Engineer in the Capital Improvements Engineering Division, a position within the Professional/Supervisory class. He had held that position since 2001. His complaint was that he was not put into Mid-Management, either through promotion or the creation of a new job.
Some, but not all, of the Mid-Management positions in the Department required a Professional Engineer License. Appellant did not have such a license, and thus could not show that he was qualified for those positions. (Guz, supra, 24 Cal.4th at p. 355.)
He contends that the license requirement was pretext. On such a claim, at summary judgment, appellant had the burden "to point to evidence raising a triable issue -- i.e., permitting an inference -- that, notwithstanding [the defendant's] showing, its ostensible reasons were a mask for prohibited age bias." (Guz, supra, 24 Cal.4th at p. 353.) Appellant points to no such evidence. The facts at summary judgment were that appellant believed that the bias started with Williams, and there is no evidence that the license requirement originated with Williams, or at the time he was hired, or that the requirement was created in order to discriminate against appellant or any other older worker.
As to the other Mid-Management positions, it was undisputed that under the City's rules and regulations, open positions are filled through an application process. It was also undisputed that between the time appellant was promoted to Assistant Engineer and his resignation, he did not apply for any Mid-Management position. Appellant thus cannot establish any adverse employment action through failure to promote. (See Ibarbia v. Regents of University of California (1987) 191 Cal.App.3d 1318, 1328.)
There was one possible exception, in that appellant believed that he had applied for Public Works Superintendent at some point before Williams was hired, but he did not believe that age had any role in the hiring process.
We turn to the theory that appellant was discriminated against because no Mid-Management job was created for him.
It was undisputed that the City can create a new job class when necessary, and that "A new job class is necessary when there are job duties to be performed that are not properly contained in a current class. It is not proper under the City's merit system to create a new job class solely to provide an employee more pay and benefits for performing the same work the employee previously performed."
The Director of Human Resources for the City declared that under the rules, "the City does not 'create' positions or classifications merely in order to provide an employee more pay or benefits. New classifications are created when there is the need for the performance of job duties that are not encompassed within an existing classification."
The City also proposed as undisputed that the duties appellant performed were appropriate to the Assistant Engineer job, and that there was never any indication that he was performing duties outside that class. Appellant disputed that fact with reference to specified paragraphs of his own declaration, but nothing in those paragraphs actually disputes the fact. Indeed, at his deposition, appellant testified that the job which he thought should have been created would be "basically the same thing that the associates and assistant engineers were doing." When asked "so really it would just be a way to get you into mid-management?" he answered, "Correct."
Appellant makes much of the evidence that the City created 16 new jobs during William's tenure, but there was no evidence that the new jobs were created merely to provide an employee with increased compensation, an improper reason.
The City's failure to violate its own rules and create a new job just so that appellant could receive greater compensation is not an adverse employment action.
The City was thus entitled to judgment on the cause of action for discrimination and the cause of action for retaliation. The cause of action for failure to prevent discrimination also fails. Where there has been no discrimination, there can be no cause of action for failure to prevent discrimination. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 288-289.)
Disposition
The judgment is affirmed. Respondent to recover costs on appeal.
We concur: MOSK, J., KRIEGLER, J.