Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TC 018800, Rose Hom, Judge.
C. Brent Scott, for Plaintiff and Appellant.
Walsh & Associates, APC, Dennis J. Walsh and Stephan Birgel, for Defendant and Appellant.
MANELLA, J.
In the underlying action, appellant Robert L. Joiner asserted claims of racial discrimination and retaliation against his employer, respondent and cross-appellant Compton Community College District (CCCD). After the trial court granted summary judgment on Joiner’s claims in favor of CCCD, it denied CCCD’s request for an award of attorney fees. We affirm the summary judgment and the denial of the fee award.
FACTUAL AND PROCEDURAL BACKGROUND
There are no material disputes about the following facts: Joiner, an African-American, began working for CCCD as an instructor in the 1980’s. In 2004, Joiner was Executive Dean of Human Resources and Risk Management at CCCD. As such, Joiner served at the pleasure of the CCCD’s Board of Trustees (Board). On January 2, 2004, Joiner, like all other CCCD administrators (with the exception of the President and Deputy Superintendent), received notice that his administrative position might not be renewed for the 2004-2005 college year (Ed. Code, § 72411, subd. (b)). Joiner was entitled to return to an assignment as an instructor if his administrative position was terminated.
After a CCCD budget reduction committee concluded that CCCD faced severe financial problems, it recommended that the Board take action to eliminate and consolidate administrative positions. On May 7, 2004, at the Board’s request, a Fiscal Crisis Management Assistance Team (FCMAT) was assigned to assess CCCD’s financial condition. On May 13, 2004, CCCD told Joiner and all other administrators (except the President and Deputy Superintendent) that the Board had decided not to reemploy them in their positions. On May 21, 2004, the State Chancellor’s Office took control of CCCD, and Art Tyler was subsequently appointed Special Trustee, with the authority to override the Board.
Tyler identified himself as African-American. In opposing summary judgment, Joiner disputed this self-characterization, pointing to an excerpt from Tyler’s deposition in which he described himself as part Indian American.
In June 2004, Tyler presented new organizational charts that consolidated administrative positions. On June 29 and 30, 2004, Tyler informed Joiner that he would have a faculty assignment as of January 1, 2005. Tyler also appointed Joiner Acting Dean of Human Resources and Risk Management from July 1 to December 31, 2004. Tyler placed all but three of CCCD’s administrators in acting or interim positions. In July 2004, the Accrediting Commission for Community and Junior Colleges, Western Association of Schools (ACCJC), sent a team to assess CCCD’s financial condition and its compliance with ACCJC standards.
The remaining three administrators were hired in permanent positions after undergoing a formal selection process.
On October 13, 2004, Joiner received notice that he was being removed from his interim administrative position and placed on paid leave, pending his faculty assignment. The FCMAT and ACCJC published their reports on CCCD, respectively, on October 15, 2004, and February 9, 2005. Both reports criticized CCCD’s Human Resources Department. On December 20, 2004, Joiner filed a complaint for discrimination and retaliation against CCCD and Tyler with the California Department of Fair Employment and Housing (DFEH). In January 2005, Irene Pinkard, an African-American, replaced Joiner in the human resources department. Thereafter, Joiner unsuccessfully applied for the position of Dean of Human Resources and Risk Management.
Joiner initiated the underlying action against CCCD in April 2005. His first amended complaint, filed on June 8, 2005, asserts claims of racial discrimination and retaliation under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.). After the trial court granted CCCD’s motion for summary judgment on Joiner’s complaint, it denied CCCD’s request for an award of attorney fees on November 16, 2006.
Joiner has noticed his appeal from the order granting summary judgment, which is a nonappealable preliminary order. (Avila v. Standard Oil Co. (1985) 167 Cal.App.3d 441, 445.) Appeal should be taken from the judgment rendered on this order (Code Civ. Proc., § 437c, subd. (m)(1)), but the record lacks a judgment. In the interests of justice and to avoid further delay, we exercise our discretion to construe the order to incorporate a judgment, and thus treat the appeal as taken from this judgment. (See Francis v. Dun & Bradstreet, Inc. (1992) 3 Cal.App.4th 535, 539; Avila v. Standard Oil Co., supra, 167 Cal.App.3d at p. 445.)
DISCUSSION
I. Joiner’s Claims of Racial Discrimination and Retaliation
Joiner contends the trial court erred in granting summary judgment. We disagree.
A. 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.]” (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334 (Guz).) Thus, we apply “‘the same three-step process required of the trial court. [Citation.]’” (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662.) The three steps are (1) identifying the issues framed by the complaint, (2) determining whether the moving party has made an adequate showing that negates the opponent’s claim, and (3) determining whether the opposing party has raised a triable issue of fact. (Ibid.) In applying this process, we resolve any doubts as to the existence of triable issues in favor of the party opposing summary judgment. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.)
Generally, “the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Furthermore, in moving for summary judgment, “[a]ll that the defendant need do is show that the plaintiff cannot establish at least one element of the cause of action -- for example, that the plaintiff cannot prove element X.” (Id. at p. 853, fn. omitted.)
In the present case, Joiner and CCCD each raised numerous evidentiary objections to the other’s proffered showings, which the trial court sustained in part and overruled in part. Generally, the trial court’s evidentiary rulings on summary judgment are reviewed for an abuse of discretion. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169; see Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 928-929.) Joiner does not challenge the rulings on appeal, and thus our review is limited to the evidence admitted in connection with the summary judgment motion. (County of Alameda v. Superior Court (2005) 133 Cal.App.4th 558, 564, fn. 3.)
CCCD also raised a number of objections to Joiner’s separate statement and showing upon which the trial court failed to rule. Because CCCD has not resurrected these objections on appeal, we do not address them. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 326-327, 594, pp. 367-369, 627-628.)
B. Employment Discrimination
1. Governing Principles
FEHA provides that it is an unlawful employment practice for an employer “to discriminate against [a] person in compensation or in terms, conditions, or privileges of employment” due to the person’s race, national origin, or ancestry. (Gov. Code, § 12940, subd. (a).) Under FEHA, demotions, transfers, suspensions, and denials of available positions may constitute unlawful employment practices. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 373-375; Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.)
All further statutory citations are to the Government Code.
Here, Joiner’s complaint asserts that CCCD engaged in discriminatory conduct in demoting him and denying him the administrative position he had previously held. It alleges that in August 2004, Tyler hired Victor R. Collins, a Caucasian, who assumed many of Joiner’s duties as dean. It further alleges that although Joiner had received favorable evaluations as dean, Tyler removed him as dean, placed him on administrative leave, directed him to arrange for a faculty assignment, and declined to reappoint him as permanent dean.
In assessing whether summary judgment was properly granted with respect to this claim, we apply established principles regarding discrimination claims. “Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes. [Citation.] In particular, California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination, . . . based on a theory of disparate treatment. [Citations.]” (Guz, supra, 24 Cal.4th at p. 354.) Accordingly, had Joiner reached trial with his discrimination claims, he “would of course have borne the initial burden of proving unlawful discrimination, under well-settled rules of order of proof: ‘[T]he employee must first establish a prima facie [showing] of wrongful discrimination. If [he] does so, the burden shifts to the employer to show a lawful reason for its action. Then the employee has the burden of proving the proffered justification is mere pretext.’ [Citations.]” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1730.) These rules concerning the burden of producing evidence do not affect the burden of persuasion, which remains on the plaintiff throughout trial. (Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 143.)
Here, CCCD sought to carry its initial burden on summary judgment by showing not only that Joiner lacked a prima facie case of discrimination, but also that CCCD had legitimate nondiscriminatory reasons for its conduct. Because CCCD tendered a rationale for its conduct, we need not address whether he established a prima facie case. (Guz, supra, 24 Cal.4th at p. 357.) CCCD’s showing shifted the burden on summary judgment to Joiner to raise a triable issue of material fact about the propriety of this rationale. Accordingly, the key question is whether he presented evidence adequate to raise a triable issue of fact that the nondiscriminatory reasons proffered by CCCD were pretextual.
The trial court concluded that summary judgment was proper on both grounds.
2. Legitimate and Nondiscriminatory Basis for Conduct
To establish that CCCD had a legitimate, nondiscriminatory basis for its conduct, CCCD submitted declarations and deposition testimony from Tyler, Joiner, and Pinkard supporting the following version of the underlying facts: Tyler, an African-American, was appointed Special Trustee after the State Chancellor’s Office determined that CCCD had reached a devastating financial condition that required immediate action. In June 2004, Tyler reorganized CCCD to reduce the number of administrative positions. Tyler received a number of preliminary reports from FCMAT and ACCJC, identifying problems in the procedures and operations of the human resources department. These reports were drafts of portions of the final reports. In August 2004, Tyler hired Collins as a consultant to help him create “a legitimate hiring process.”
The preliminary reports persuaded Tyler that Joiner’s management of the human resources department had been inadequate. They identified a number of serious deficiencies in the department’s hiring practices stemming from a lack of expertise and knowledge among administrators. These included outdated job specifications, inadequate minimum qualifications, inadequate job-related employment testing, failure to detect falsified academic degrees in applications, an inadequate anti-nepotism policy, and a disregard for EEOC employment and selection regulations. As a result of the preliminary reports, Tyler concluded that Joiner lacked the expertise and skills needed to cure the deficiencies, and he removed Joiner from his position as acting dean on October 13, 2004. The FCMAT’s and ACCJC’s final reports, which were published after this date, criticized the operations of the human resources department under Joiner’s management and recommended, among other things, that the department be reorganized. Pinkard assumed Joiner’s duties in January 2005, was named interim dean in April 2005, and ended her tenure in that position in September 2005. As of the filing of CCCD’s motion for summary judgment, no permanent dean had been hired for the human resources department.
Based on this showing, the trial court concluded that CCCD had shown legitimate nondiscriminatory reasons for its employment actions regarding Joiner. We agree. As our Supreme Court indicated in Guz, supra, 24 Cal.4th at page 358, an employer’s need to reduce its workforce or restructure its business does not invariably constitute a legitimate and nondiscriminatory basis for terminating or demoting workers. However, if an employer’s reasons for its conduct are not discriminatory, they “need not necessarily have been wise or correct. [Citation.] While the objective soundness of an employer’s proffered reasons supports their credibility . . ., the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Thus, ‘legitimate’ reasons [citation] in this context are reasons that are facially unrelated to prohibited bias, and which, if true would thus preclude a finding of discrimination. [Citations.]” (Id. at p. 358.)
Here, CCCD’s evidence indicates that Tyler, who was charged with resolving CCCD’s acute financial crisis, initially placed Joiner and most of the remaining administrators in acting or interim positions. After Tyler determined, based on preliminary reports from FCMAT and ACCJC, that under Joiner’s management the human resources department suffered serious deficiencies, Tyler hired Collins to help him resolve those deficiencies, and eventually removed Joiner from his interim position. In view of the criticisms of the human resources department documented in the FCMAT’s and ACCJC’s final reports, CCCD never rehired Joiner as dean. Because nothing in this showing suggests that CCCD’s reasons for its decisions were discriminatory, they constitute a proper basis for its conduct, regardless of whether they were “wise or correct.” (Guz, supra, 24 Cal.4th at p. 358.)
Joiner contends the trial court erred in determining that Tyler’s and CCCD’s reasons for action were legitimate and nondiscriminatory. He argues that the trial court sustained his hearsay objections to excerpts from FCMAT’s and ACCJC’s final reports in CCCD’s separate statement, and thus improperly relied on the excerpts to conclude that the reports’ criticisms of his department were true. He is mistaken. As Witkin has explained, the rule against hearsay “excludes hearsay statements only when they are offered for the same purpose as testimony of a witness on the stand and therefore depend for probative value on the credibility of the declarant. [Citations.] [¶] The importance of this qualification is that out-of-court statements not offered to prove the truth of the matter stated are not regarded as hearsay. No special exception to the hearsay need be invoked for their admission; they are not within the hearsay rule at all. [Citations.]” (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 5, pp. 683-684.)
Under these principles, an out-of-court statement may be admitted to establish facts other than the truth of the matter asserted, including the state of mind of a person who heard or received the statement. Thus, in Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 259, an employer fired an employee when it determined he had violated the employer’s sexual harassment policy. In seeking summary judgment on the employee’s complaint for improper termination, the employer submitted evidence that it discharged the employee upon receiving a written report from an internal investigator. (Id. at pp. 260-261.) After summary judgment was granted, the employee contended that the trial court had improperly considered the report despite a hearsay objection. (Id. at p. 265.) The appellate court rejected the contention, concluding that the report was admissible to show that the employer had acted reasonably in response to the report. (Ibid.)
Tyler’s own testimony established a legitimate, non-discriminatory motive for hiring Collins to take over some of Joiner’s responsibilities and thereafter removing Joiner as interim dean. The reports, though excluded for their hearsay content, were admissible and relevant to establish the basis for Tyler’s belief that Joiner was not capable of remedying the problems in the human resources department.
Joiner also contends that Tyler’s testimony that he relied on the preliminary reports in hiring Collins and demoting Joiner is not credible, pointing to Tyler’s failure to keep the preliminary reports or mention them in a declaration he submitted in support of CCCD’s motion. However, because Joiner did not submit evidence that contradicted Tyler’s testimony, Joiner’s challenge to Tyler’s credibility does not preclude summary judgment. (Code Civ. Proc., § 437c, subd. (e); see AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1065).
3. Pretext
Because CCCD demonstrated legitimate, nondiscriminatory reasons for its conduct, the burden on summary judgment shifted to Joiner to show that CCCD’s “actual motive was discriminatory.” (Guz, supra, 24 Cal.4th at p. 361, fn. omitted.) The remaining issue, therefore, is whether the record as a whole discloses evidence supporting the rational inference that notwithstanding its proffered reasons, CCCD acted with an improper discriminatory motive. In our view, Joiner failed to raise a triable issue that the legitimate reasons offered for its employment decisions were, in fact, a pretext for illegal discrimination.
To show that CCCD’s asserted reasons for its conduct were pretextual, Joiner contended that Tyler (1) demoted and discharged him in an unfair manner, (2) engaged in improper hiring practices, and (3) failed to resolve CCCD’s problems. Joiner submitted evidence that as an administrator, he was accorded rights of due process: he could be demoted only for good cause, and was entitled to “progressive discipline,” that is, disciplinary measures intended to correct deficiencies in conduct. Despite his favorable evaluations as dean, Joiner contended Tyler demoted him without offering good cause or applying progressive discipline.
The trial court sustained hearsay objections to the documents Joiner submitted to support his claim that he had received favorable evaluations, to the extent the documents were intended to establish the facts asserted therein. Nonetheless, Joiner also pointed to his own deposition testimony as additional support for this statement, to which no objection was sustained.
According to Joiner’s showing, neither Tyler nor Collins met with Joiner to discuss the role of Collins, who assumed some of Joiner’s duties. Joiner asked Tyler for an explanation of the changes in his employment status and loss of his position as acting dean, but received none. After the FCMAT and ACCJC published their final reports, Joiner responded in detail to the reports, arguing that they mistakenly attributed to his department deficiencies that had arisen in other departments not under his control. Although he was told that he could reapply for the positions of interim and permanent dean, he never received an interview for either position. When deposed, Tyler explained that he had not discharged Joiner due to poor past performance, but because he judged Joiner to lack the knowledge necessary to “fix the problems”; he also stated that he had not applied progressive discipline because the deficiencies in Joiner’s department were not “a disciplinary matter.”
Joiner also contended that Tyler failed to use a required selection process in appointing several interim and two permanent administrators. He presented deposition testimony from Rita Cepeda, an administrative consultant Tyler hired in 2004, who stated that colleges often -- but not invariably -- used some sort of selection process in hiring interim administrators. In addition, Joiner pointed to his own testimony that in September 2004, he complained that Tyler had bypassed the requisite selection process in hiring two permanent administrators, James Williams and Arnel Pasquel.
Moreover, Joiner tried to show that Tyler’s measures failed to resolve CCCD’s financial problems. According to Joiner’s showing, Tyler’s hiring decisions increased the size of CCCD’s administrative payroll. In June 2005, CCCD’s budget remained in a financial “danger zone,” and ACCJC announced its intention to terminate CCCD’s accreditation.
In our view, none of this evidence -- which bears on the fairness, wisdom, and efficacy of Tyler’s decisions -- is sufficient to carry Joiner’s burden of raising a rational inference that Tyler’s proffered reasons were a pretext for racial discrimination. As our Supreme Court explained in Guz, the existence of discriminatory motives cannot be inferred solely from deficiencies in the employer’s proffered reasons for its conduct, even when the evidence establishes that these reasons are untrue: “Proof that the employer’s proffered reasons are unworthy of credence may ‘considerably assist’ a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons. [Citation.] Still, there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer’s actions. [Citation.]” (Guz, supra, 24 Cal.4th at pp. 360-361.)
Here, the evidence bearing on the manner in which Tyler demoted Joiner carries no suggestion of a racially discriminatory motive. Tyler testified that he hired Collins and otherwise acted on the basis of the preliminary reports from FCMAT and ACCJC, which -- as Joiner has conceded -- are outside agencies, and there is no evidence that FCMAT and ACCJC acted with discriminatory motives in conducting their investigations. In view of Guz, Tyler’s failure to explain his decision to Joiner or to give him an opportunity to rectify the deficiencies in his department does not, by itself, support a rational inference of discrimination.
Nor does Joiner’s remaining evidence support any such inference. None of this evidence suggests that Tyler engaged in improper hiring practices. Cepeda never testified that CCCD adopted a selection process for interim administrators, and the other evidence in the record establishes that it did not; moreover, Joiner’s separate statement conceded that Tyler had not, in fact, violated CCCD’s selection process in hiring Williams and Pasquel. Finally, the fact that Tyler’s policies were not efficacious does not establish that they were discriminatory. (See Guz, supra, 24 Cal.4th at p. 358.)
Joiner’s separate statement conceded that Tyler did not violate CCCD’s policy and procedures in hiring Williams and Pasquel. He purported to dispute only whether Tyler had violated these requirements in declining to rehire him.
In an effort to show that Tyler acted with improper discriminatory motives, Joiner argued that Tyler hired administrators on the basis of their ethnicity or race in proportion to the size of ethnic and racial groups within CCCD’s student body. According to Joiner’s evidence, Hispanic students and African-American students each comprise approximately half of the student population. In May 2004, all but one of CCCD’s administrators were African-American, and none were Hispanic. Tyler then hired Collins and several other persons who were not African-American -- including Cepeda, an Hispanic -- to assume administrative duties at CCCD. Joiner pointed to excerpts from Cepeda’s and Tyler’s depositions, which -- he contended -- established that Tyler followed an improper affirmative action policy. As further evidence of an improper motive, Joiner submitted evidence that Tyler did not replace CCCD’s sole Caucasian administrator, Phillip Glazier, although FCMAT and ACCJC reportedly expressed concerns about Glazier’s department.
Joiner’s opening brief also asserts that in December 2003, a CCCD attorney used a racial slur in informing CCCD’s administrators -- including Joiner -- that they had to accept a 10 percent reduction in pay. Although this allegation appears in Joiner’s complaint, he does not cite any evidence to support it, and thus may not rely on it to defeat summary judgment. (Twain Harte Associates, Ltd. v. County of Tuolumne (1990) 217 Cal.App.3d 71, 88.) Moreover, because there is no evidence that the attorney played any role in Joiner’s demotion and removal as acting dean, it is irrelevant to the issues before us. (See Gibbs v. Consolidated Services (2003) 111 Cal.App.4th 794, 798-799, 801.)
Nothing in this showing raises a triable issue regarding Tyler’s motives. As our Supreme Court has explained, the 1996 amendment to the California Constitution barring various forms of preferential treatment in hiring does not proscribe “outreach efforts to disseminate information about public employment . . . not predicated on an impermissible classification.” (Hi-Voltage Wire Works, Inc. v. City of San Jose (2000) 24 Cal.4th 537, 565.) Neither Cepeda’s nor Tyler’s deposition discloses Tyler’s commitment to an impermissible hiring policy. Cepeda testified that although she and Tyler talked about “increasing the diversity overall,” they never discussed tying the hiring of administrators to the ethnic and racial composition of the student body. Tyler testified that he wanted to increase diversity within the administration to match the makeup of the student body. When asked to describe his policy for achieving this goal, he responded: “What I tried to do was find the best qualified candidates to support the teaching of our English in the college and for that community. And there was no specific quotas or anything else like that. [¶] However, what we tried to do was to try to make sure that we had as broad a spectrum of people who could apply for the position as possible.” He added: “We did not segregate our searches to a specific race.”
In addition, Joiner’s evidence regarding Tyler’s pattern of employment decisions does not raise a reasonable inference of discrimination. His showing indicates that Tyler retained Glazier and hired two Caucasians (including Collins), three Hispanics (including Cepeda), and one Asian-American. However, Joiner does not suggest that this represents a full account of Tyler’s decisions, as he concedes that Tyler also hired at least one African-American (namely, Pinkard) to fill his former position. Moreover, Joiner’s showing is silent as to the nature of FCMAT’s and ACCJC’s unspecified concerns about Glazier’s department: Joiner’s sole evidence was his own deposition testimony that he had heard the agencies had some concerns.
As the court in Guz cautioned, inferences of intentional bias cannot rest on such samples, which are “too minuscule to demonstrate a statistically reliable discriminatory pattern. [Citation.]” (Guz, supra, 24 Cal.4th at p. 367.) In this context, the Guz court cited with approval several cases in which the sample was deemed to be too small to support a reliable inference of discrimination. (E.g., Fallis v. Kerr-McGee Corp. (10th Cir. 1991) 944 F.2d 743, 745-746 [sample of 51 employees]; Sengupta v. Morrison-Knudsen Co., Inc. (9th Cir. 1986) 804 F.2d 1072, 1076 [sample of 28 employees]; Simpson v. Midland-Ross Corp. (6th Cir. 1987) 823 F.2d 937, 942-944 [sample of 17 persons].) Here, Joiner’s sketchy references to a handful of Caucasians and other non-African-Americans whom Tyler hired or retained does not permit a reasonable inference that Joiner was subject to discriminatory action. In sum, the record, taken as a whole, does not disclose triable issues regarding racial discrimination.
For this reason, it is unnecessary for us to address CCCD’s contention that Tyler was neither its employee nor agent, which CCCD tendered as an alternative basis for summary adjudication of Joiner’s discrimination claim.
C. Retaliation
FEHA provides that it is an unlawful employment practice “[f]or any employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Gov. Code, § 12940, subd. (h).) Retaliation claims, like discrimination claims, are subject to the federal “three stage burden-shifting test.” (Guz, supra, 24 Cal.4th at p. 354.) “The elements of title VII and [FEHA] claims require that (1) the plaintiff establish a prima facie case of retaliation, (2) the defendant articulate a legitimate nonretaliatory explanation for its acts, and (3) the plaintiff show that the defendant’s proffered explanation is merely a pretext for the illegal [conduct]. [Citations.] [¶] . . . To establish a prima facie case, the [employee] must show that he engaged in a protected activity, his employer subjected him to adverse employment action, and there is a causal link between the protected activity and the employer’s action. [Citations.]” (Flait v. North American Watch Corp. (1992)3 Cal.App.4th 467, 476.)
Here, as with Joiner’s discrimination claim, CCCD denied that Joiner could present a prima facie case of retaliation, and also offered a showing of legitimate nonretaliatory reasons for its conduct. On appeal, Joiner contends that CCCD retaliated against him for the filing of his DFEH complaint by repeatedly denying his application for the positions of interim and permanent dean. Because Joiner filed his DFEH complaint on December 20, 2004, we limit our inquiry to CCCD’s conduct after that date.
The trial court concluded that Joiner presented no evidence of a causal link between the filing of his DFEH complaint and CCCD’s treatment of his applications.
We recognize that Joiner’s complaint alleges that he engaged in other protected activity, and that CCCD retaliated against him in several ways. For the reasons explained below, we do not examine whether Joiner presented a tenable retaliation claim predicated on these allegations.
In seeking summary judgment, CCCD proffered evidence that it had a legitimate non-retaliatory basis for rejecting Joiner’s applications, namely, Tyler’s conclusion that Joiner lacked the skills and expertise necessary to remedy the problems documented in the drafts and final reports of the FCMAT and ACCJC. To raise an inference that CCCD’s conduct was retaliatory, Joiner submitted evidence that in July and October 2004, CCCD advertised an open position for permanent dean of human resources. After Joiner applied for the position, Cepeda informed him by letter on January 11, 2005, that the position was on hold and that he would be notified when it was reopened. The letter also asked him to check CCCD’s website for job listings. According to Cepeda, at the time of her letter, the position was withdrawn because CCCD was “in a state of limbo.”
In view of this showing by CCCD, we do not address whether Joiner established a prima facie case of retaliation. (See Guz, supra, 24 Cal.4th at p. 357.)
According to Joiner’s showing, CCCD again advertised the position in April 2005. Although Joiner did not receive a personal notice about the position, he discovered the open position at CCCD’s website and applied for it, but received no response. After Pinkard left the position of interim dean in September 2005, CCCD hired other individuals as interim deans, and never subjected Pinkard or her successors to a selection process. Joiner was never asked to be interim dean, and when he responded to CCCD’s subsequent advertisements for the position of permanent dean, CCCD never asked to interview him.
The trial court concluded this showing was insufficient to preclude summary judgment in CCCD’s favor. We agree. Generally, “[a] party cannot avoid summary judgment based on mere speculation and conjecture [citation], but instead must produce admissible evidence raising a triable issue of fact. [Citation.]” (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1524.) As we have explained, Joiner failed to raise a triable issue regarding the propriety of Tyler’s motives in removing him from the position of acting dean in October 2004. As for CCCD’s failure to interview or reappoint Joiner to head the human resources department after he filed his complaint, nothing in the record reasonably suggests that CCCD acted on any basis other than the conclusions reached in October 2004 regarding his ability to manage the department. The record establishes that CCCD did not impose a selection process on interim positions, and Joiner identifies no evidence that CCCD was obliged to interview him for the position of permanent dean. Summary judgment on Joiner’s complaint was therefore proper.
II. CCCD’s Motion for Attorney Fees
CCCD contends the trial court erred in denying its request for an award of attorney fees under FEHA. We disagree. Subdivision (b) of section 12965 accords the trial court discretion to award the prevailing party reasonable attorney fees. Our review for an abuse of discretion follows established principles. “‘[T]he showing necessary to reverse the trial court is insufficient if it presents facts which merely afford an opportunity for a different opinion: “An appellate [court] is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. To be entitled to relief on appeal from the result of an alleged abuse of discretion it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice; . . . ” [Citation.]’ [Citation.]” (Dolan v. Buena Engineers, Inc. (1994) 24 Cal.App.4th 1500, 1504, italics deleted.)
Subdivision (b) of section 12965 provides in pertinent part: “In actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney’s fees and costs, including expert witness fees, except where the action is filed by a public agency or a public official, acting in an official capacity.”
The leading case regarding the propriety of a fee award under this provision to a prevailing defendant is Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383 (Cummings). There, a 63-year-old woman was hired to supervise the cleaning staff of a large office building. (Id. at p. 1385.) Over the following two- or three-year period, the woman’s employer received numerous complaints about her performance as supervisor. (Ibid.) In terminating her, the employer told her that she was too old. (Ibid.) The woman filed an action for age and sex discrimination under FEHA, and later dismissed her claim for sex discrimination. (Ibid.) After the employer obtained summary judgment on her remaining claims, the trial court granted the employer’s request for a fee award. (Id. at p. 1386.)
Following an examination of federal authority, the appellate court in Cummings held that FEHA authorizes a fee award to a prevailing defendant “‘“only where the action brought is found to be unreasonable, frivolous, meritless or vexatious.’”” (Cummings, supra, 11 Cal.App.4th at p. 1387, quoting Christianburg Garment Co. v. EEOC (1978) 434 U.S. 412, 421.) Applying this standard, the court reversed the fee award, reasoning that the woman had presented some evidence of age discrimination, and that her action “appear[ed] to be a routine case in which the plaintiff merely failed to achieve success on her claim.” (Cummings, supra, 11 Cal.App.4that pp. 1388-1390.)
In so concluding, the court followed White v. South Park Independent School Dist. (5th Cir. 1982) 693 F.2d 1163 (White). (Cummings, supra, 11 Cal.App.4th at p. 1390.) In White, a physical education teacher complained about the athletic facilities in the school, and made threats to administrators who disregarded his complaints. (White, supra, 693 F.2d at p. 1165.) After he was fired, he initiated an action for racial discrimination and violations of his rights to free speech and due process. (Ibid.) Following a bench trial, the district court rendered a judgment in favor of the school defendants, and issued a fee award to them. (Ibid.) The Fifth Circuit affirmed the judgment but reversed the fee award, concluding that although sufficient evidence supported the judgment, the teacher’s suspicion that he had been fired due to his complaint was not “‘without foundation.’” (Id. at p. 1170.)
Here, the trial court offered no explanation for its ruling. With respect to a discretionary ruling, “[w]e are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked. [Citation .]” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) Following our independent review of the evidence, we see no clear error in the trial court’s implied determination that Joiner’s claims, though weakly supported, were not “‘without foundation’” (White, supra, 693 F.2d at p. 1170), and that his action could be regarded as routine.
CCCD’s reliance on Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918 is misplaced, as that case is factually distinguishable. There, an employer unsuccessfully sought summary judgment on an employee’s FEHA action. (Bond v. Pulsar Video Productions, supra, 50 Cal.App.4th at pp. 920-921.) After the employer prevailed at trial, the trial court issued a fee award to the employer. (Id. at p. 921.) On appeal, the employee contended that his successful opposition to the summary judgment motion established that his action had some merit. (Id. at p. 922.) The court rejected this contention, reasoning that the motion had been denied on grounds that did not reflect the underlying merits of the employee’s claims: the employer had failed to carry its burden on summary judgment of showing that the employee could not establish an element of his claims, and submitted a defective separate statement. (Id. at p. 923 & fn. 3.) Here, CCCD shifted the burden on summary judgment to Joiner to establish a triable issue, and thus compelled Joiner to present evidence in support of his claims. As explained above, our review of this evidence does not disclose any error in the trial court’s fee award.
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal.
We concur: EPSTEIN, P. J., WILLHITE, J.
On a related matter, Joiner disputed whether Tyler is African-American. Although Tyler’s declaration states that he is African-American, Joiner submitted an excerpt from Tyler’s deposition in which he describes himself as part Indian American. For the reasons explained below, this dispute does not preclude summary judgment.
Joiner’s complaint alleges that he engaged in protected activity by (1) challenging Tyler’s new organizational chart in June 2004, (2) complaining in September 2004 that Tyler had hired administrators in violation of CCCD’s affirmative action policies and selection requirements, and (3) joining other administrators in a civil action in September 2004. To establish a retaliation claim, Joiner was obliged to show that in engaging in these activities, he reasonably believed he was asserting interests protected under FEHA. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1046-1048.) In opposing summary judgment, Joiner conceded as undisputed that the charts reorganized the administration solely to ease CCCD’s financial distress, that CCCD had no affirmative action policies, that Tyler had not violated CCCD’s selection requirements in hiring the administrators, and that the civil action sought only to reinstate the administrators. Although Joiner’s briefs mention items (1) through (3), they contain no argument that the items constituted protected activity under FEHA. He has therefore forfeited any such contention. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125-126 [Although review of summary judgment is de novo, review is limited to issues adequately raised in appellant’s brief.].)
Joiner’s complaint also alleges that CCCD retaliated against him by denying him accrued vacation benefits, sick leave benefits and payment for attending Board meetings; delaying overtime pay; temporarily placing him at an incorrect salary level; and delaying access to an office. Before the trial court, Joiner conceded as undisputed that he was not entitled to the benefits he sought, that he did not know why he had been placed at an incorrect salary level, and that he had an office and the assurance of a key. On appeal, Joiner contends only that he was denied “accrued vacation pay and vested medical benefits.” To the extent his contention refers to the benefits alleged in his complaint, it fails in light of his concessions before the trial court; to the extent it concerns other benefits, it fails for want of an allegation in the complaint. (Ramona Convent of the Holy Names v. City of Alhambra (1993) 21 Cal.App.4th 10, 24 [defendant seeking summary judgment need only address issues raised in complaint].)