Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 432097
McGuiness, P.J.
Maria Martinez appeals the dismissal on summary judgment of a discrimination lawsuit she filed against her employer, the City and County of San Francisco (City). Martinez filed no opposition to the City’s motion for summary judgment, nor did she present evidence or object to evidence the City presented. On appeal, she argues summary judgment was improper because she could have made out a prima facie case of discrimination based on age and race. We affirm the judgment.
BACKGROUND
Martinez, who is employed as a citizen complaint officer with the San Francisco Rent Board (Rent Board), filed a complaint against the City in June 2004. The complaint was amended twice before it was answered, but because Martinez failed to include any of these complaints in her designation of the appellate record, we cannot tell exactly what claims they asserted.
On March 3, 2006, the City filed a motion for summary judgment or, in the alternative, summary adjudication. The City argued it was entitled to judgment as a matter of law on Martinez’s cause of action under the California Fair Employment and Housing Act (FEHA) because Martinez could not establish a prima facie case of discrimination or retaliation based on her sex, race or age and because Martinez could not rebut the City’s legitimate, nondiscriminatory and non-retaliatory reasons for its actions. According to the City’s statement of undisputed facts (Code Civ. Proc., § 437c, subd. (b)(1)), the Rent Board hired Martinez in 1999, when she was 60 years old. Martinez, who identifies as Hispanic, was one of 10 people employed as citizen complaint officers. The City presented evidence concerning Martinez’s two major areas of complaint about her treatment by the Rent Board—allegedly discriminatory restrictions on her ability to use vacation time, and alleged discrimination in the promotion of a younger Hispanic male to a supervisory position.
With respect to vacation time, the City’s evidence established that in 2002, after a dispute over her supervisor’s request that she clean up her work area, Martinez accused the supervisor of harassment and left work. She stayed away for nearly a month on sick leave. After she returned, Martinez requested vacation time to attend an event hosted by the Mexican government. The request was denied because Martinez was behind in her work, but Martinez called in sick and took the time off anyway. This incident raised suspicion about the legitimacy of Martinez’s use of sick leave, and the Rent Board required her to submit a doctor’s note to support future requests. Later in 2002, Martinez took sick leave without providing a doctor’s note, and she accused a supervisor of committing a “hate crime” when he asked for the required documentation. Another dispute occurred in 2004, when Martinez asked to use six days of vacation time although two of her colleagues were already scheduled to be off those days. In keeping with its policy to have no more than two citizen complaint officers out on the same day, the Rent Board denied Martinez’s request. Martinez had previously sought and obtained exceptions to the vacation policy, but instead of seeking an exception this time, she filed a grievance with her union.
The City also presented evidence rebutting Martinez’s claim that she was passed over for promotion for discriminatory reasons. When the Rent Board supervisor retired in February 2004, all the citizen complaint officers were invited to apply for the position. From the official criteria for this position, the selection panel agreed to emphasize the ability to delegate, credibility with staff, a sophisticated understanding of applicable ordinances and information technology management capabilities. The panel considered information technology skills especially important because the Rent Board did not have an employee designated to manage its computer and communications systems. Five citizen complaint officers applied and interviewed for the position: Martinez, Robert Collins (a Hispanic male under age 40), a Filipino male over age 40, and two white males under age 40. At the time, Collins was believed by his colleagues to be knowledgeable about and interested in computers and information technology. On the other hand, Martinez described herself as “not a computer person.” Collins scored the highest of all candidates on the interview questions and a written performance exercise, and he was ultimately chosen for the promotion to interim supervisor. Martinez received the lowest scores of all candidates on both assessments. The panel conducted the same process again in February 2005 to make a formal selection of the new supervisor. Once again, Collins received the highest scores for the interview and performance exercise, whereas Martinez’s scores were the lowest. Once again, Collins was selected for the job.
As compared with Collins’ high score of 502 and other candidates’ scores in the 400s, Martinez’s aggregate score was 290.
Martinez did not file a timely opposition to the motion for summary judgment. Instead, she sought a continuance of the hearing on the summary judgment motion. The court denied the motion for a continuance on the merits but held an evidentiary hearing on May 18, 2006, to address a claim by Martinez’s attorney that he never received service of the summary judgment moving papers. After hearing testimony from several witnesses, the court found that the documents had been properly served and denied Martinez’s motion for relief due to a failure of service.
On May 19, 2006, with no opposition having been filed to the summary judgment motion and no parties appearing in court, the court adopted its tentative ruling granting the motion. The court concluded Martinez could not make out a prima facie case of discrimination with respect to the choice of Collins for promotion because the undisputed facts showed Martinez was not qualified for the position of supervisor. The court further ruled that Martinez failed to make out a prima facie case of harassment and none of her other complaints rose to the level of adverse employment actions under FEHA. Judgment was entered in favor of the City on October 5, 2006.
DISCUSSION
Having considered the City’s statement of undisputed facts and supporting declarations, the trial court concluded the City was entitled to summary judgment. “When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff ‘does not possess and cannot reasonably obtain, needed evidence.’ [Citation.]” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851, 854.) Even if no opposition is presented to a summary judgment motion, the moving party still has the burden of presenting evidence to negate the plaintiff’s causes of action. (Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1228; Hufft v. Horowitz (1992) 4 Cal.App.4th 8, 13.)
On appeal from a grant of summary judgment, we independently review the record to determine whether the moving party is entitled to judgment as a matter of law. (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at pp. 1002-1003; Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) However, “ ‘[a]ppellate review of a summary judgment is limited to the facts shown in the supporting and opposing affidavits and those admitted and uncontested in the pleadings. . . . [Citations.]” (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.) We “consider only those facts that were before the trial court, and will disregard any new factual allegations on appeal. Facts not presented below cannot create a ‘triable issue’ on appeal. [Citations.]” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) ¶ 8:164, p. 8-110.)
In this appeal, Martinez does not complain of the denial of her motion to continue the summary judgment hearing, nor does she challenge the court’s ruling that service of the summary judgment motion was proper. Instead, Martinez has filed an opening brief disputing the substantive merits of the motion—i.e., Martinez argues she was discriminated against on the basis of age and race when she was denied the promotion to Rent Board supervisor and denied certain vacation requests. The brief does not contain a single citation to the record on appeal. (Cal. Rules of Court, rule 8.204(a)(1)(C) [appellate briefs must provide support for any reference to a matter in the record by citation to the volume and page number where the matter appears].) Indeed, the record itself would have been entirely inadequate to permit review by this court if it had not been augmented at the City’s request. Martinez’s failure to provide citations to the record is not a minor deficiency because her arguments about the City’s allegedly discriminatory motivation are highly fact-specific. Even more troubling, most of the brief’s factual claims are not supported by any evidence contained in the appellate record. Faced with such “dramatic noncompliance with appellate procedures” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246), we would be justified in deeming Martinez’s arguments waived. (See ibid. [rejecting as waived a challenge to sufficiency of evidence unsupported by record citations]; see also In re S.C. (2006) 138 Cal.App.4th 396, 406-407 [appellate court can deem a contention unsupported by a record citation to be without foundation and, thus, forfeited].)
The appellant’s opening brief represents the entirety of Martinez’s argument to this court. She did not file an appellant’s reply brief.
The only substantive document in the clerk’s transcript procured by Martinez is the trial court’s order granting summary judgment. The remainder of the clerk’s transcript consists of items that are required to be included, such as the register of actions, the notice of appeal, and the notice designating the record on appeal.
Nevertheless, we will endeavor to review the merits of the appeal. Based on the sparse record before us, which consists of little more than the City’s moving papers and the trial court’s order, we conclude summary judgment was properly granted.
In McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, the United States Supreme Court crafted a three-part test to evaluate claims of discrimination premised upon disparate treatment. California has adopted this burden-shifting test for purposes of evaluating evidence of disparate treatment presented at trial and on motions for summary judgment. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, 356-358.) First, the plaintiff has the burden of establishing a prima facie case of discrimination. (Id. at p. 354.) To do so, generally the plaintiff must present evidence showing (1) she was a member of a protected class, (2) she was qualified for the position sought or was performing competently in the position she held, (3) she 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.) If the plaintiff establishes a prima facie case, a presumption of discrimination arises, and “the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to ‘raise[] a genuine issue of fact’ and to ‘justify a judgment for the [employer],’ that its action was taken for a legitimate, nondiscriminatory reason. [Citations.]” (Id. at pp. 355-356.) If the employer carries this burden, the presumption of discrimination disappears, and the plaintiff can prevail only by demonstrating that the employer’s proferred reasons were pretexts for discrimination or by offering some other evidence of discriminatory motive. (Id. at p. 356.)
In its motion for summary judgment, the City produced admissible evidence showing legitimate nondiscriminatory reasons why Martinez was passed over for promotion. Both times she applied for the Rent Board supervisor position, Martinez scored the lowest of all applicants on the performance tests and on her responses to interview questions. In contrast, the person who was chosen for the position—Collins—consistently achieved the highest scores on these assessments. Martinez also failed to satisfy the job criteria of having information technology skills, which the selection panel had previously decided was an especially important requirement for the supervisor’s position. By her own admission, Martinez was “not a computer person.” No evidence in the record suggests the City’s reasons for choosing Collins over Martinez were pretexts for unlawful discrimination.
Martinez also complains she was discriminated against because, when it denied certain of her vacation requests, the Rent Board was engaging in “selective enforcement” of its vacation policy. However, these allegations do not rise to the level of an adverse employment action under FEHA. “ ‘Work places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action.’ [Citation.] If every minor change in working conditions or trivial action were a materially adverse action then any ‘action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.’ [Citation.]” (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511.) An actionable adverse employment action “must be both detrimental and substantial.” (Ibid.) It must result in a material change in the terms of employment, impair the plaintiff’s employment in some cognizable manner, or cause some other recognizable employment injury. (Ibid.; see also Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455 [the challenged action “must result in a substantial adverse change in the terms and conditions of the plaintiff’s employment”].)
Martinez does not dispute that the Rent Board’s denial of certain requests for vacation leave was consistent with its established policy that no more than two citizen complaint officers be absent at the same time. Even assuming Martinez could produce evidence showing the Rent Board inconsistently or selectively enforced this policy—and she has not—the incidents Martinez complains of did not constitute a detrimental or material change to the terms of her employment. They were not even close. After her vacation request was denied in 2002, Martinez took the days off anyway by calling in sick. Although her employer must have been suspicious about this excuse, Martinez was never disciplined for this or any other action. Nor can we say the denial of six days of vacation time in 2004 amounted to “a substantial adverse change in the terms and conditions of the plaintiff’s employment.” (Akers v. County of San Diego, supra, 95 Cal.App.4th at p. 1455.) Martinez did not pursue an exception to the vacation policy to secure this time off, although she knew from having received them before that such exceptions were available. Common sense suggests that the denial of a short vacation leave, which is consistent with an employer’s stated vacation policy, cannot on its own create a substantial and detrimental effect on the employee’s working environment. Moreover, Martinez presented no evidence suggesting the vacation decisions were based on discriminatory motives. Accordingly, the trial court correctly determined that Martinez’s complaints along these lines did not describe actionable conduct under FEHA.
This lawsuit appears to have been premised on a series of trivial complaints. In addition, Martinez failed to support her case nearly every step of the way. She filed a complaint, but then did not file an opposition to the City’s motion for summary judgment. She filed a notice of appeal, but then did not procure an adequate record to permit appellate review. She submitted a brief to this court filled with factual assertions that have no basis in the record. We note from the register of actions that Martinez was sanctioned once and her attorney was sanctioned twice during the short life of this case in the trial court. While no sanctions have been sought in connection with this appeal, we caution Martinez’s attorney to take greater care in preparing and presenting any future appeals to this court.
DISPOSITION
The judgment is affirmed. The City shall recover its costs on appeal.
We concur: Pollak, J., Siggins, J.