Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. BC303785, Elizabeth Allen White, Judge.
Gronemeier & Associates and Dale L. Gronemeier for Plaintiff and Appellant.
Ballard Rosenberg Golper & Savitt, Linda Miller Savitt, Christine T. Hoeffner and Julie Weber for Defendant and Respondent.
CROSKEY, Acting P. J.
Marisela C. Adams appeals an order granting summary judgment on several causes of action alleging retaliatory employment discrimination by the Los Angeles Unified School District (the District). We affirm.
FACTS AND PROCEDURAL BACKGROUND
1. Adams’s Fourth Amended Complaint
Adams’s fourth amended complaint alleged that Adams, a 58-year-old Hispanic female, was employed by the District from July 21, 1994 until June 29, 2001, initially as a school counselor and subsequently as an administrator. In February of 2001, the District advised Adams her position of Pupil Services and Attendance (PSA) field coordinator (FC) of Local Districts J and H was going to be eliminated and she would be bumped from her position by an employee with greater seniority. When this occurred in June of 2001, Adams retired.
After October 1, 2002, Adams sought to return to work for the District. In pursuit of that objective, Adams applied for but was denied numerous positions within the District including PSA FC of Local District J in 2002 and assistant principal of secondary student services at Belmont High School (Belmont AP) in 2003.
As relevant to this appeal, Adams asserted causes of action as follows:
Count 1, refusal to hire because of retaliation for opposition of practices prohibited by the Fair Employment and Housing Act (FEHA);
Count 5, violation of Labor Code section 6310, prohibiting discrimination based on retaliation for reporting unsafe working conditions or work practices;
Count 6, violation of Labor Code section 1102.5, prohibiting retaliation by an employer against an employee who discloses a violation of state or federal law to a government or law enforcement agency;
Count 7, violation of Government Code section 12653, which prohibits discrimination against an employee based on a lawful act by an employee in disclosing information to a government or law enforcement agency.
Counts two and three were dismissed on demurrer. A jury trial on count four, which alleged age as the motivating reason in failing to hire Adams as a Spanish teacher at Marshal High School in 2003, resulted in a defense verdict.
The fourth amended complaint alleged Adams had engaged in the following protected activity:
(1) From February of 1998 through June of 2000, Adams requested and received accommodations from the District for her disabilities;
Adams alleged she had a painful physical disability of athenal wasting of her right arm and forearm causing weakness in her wrists and forearms and visible disfiguration of her arms and hands. Adams wears orthotics and has a spur or her right foot, as well as an injury to the Achilles tendon.
(2) In June of 2000, Adams acted to preclude the sexual harassment of Sergio Gonzales by the superintendant of Local District J, Dale Vigil, by facilitating Gonzales’s transfer to a position that was not under Vigil’s supervision;
(3) Adams requested accommodations for her disability commencing in July of 2000 and complained throughout the remaining school year that her request was denied;
(4) Adams complained to the superintendent of schools on November 8, 2000, and again on June 26 and 27, 2001, about her inability to obtain accommodations from the District. Adams wrote a letter to the superintendent on November 24, 2001, reporting the failure to provide reasonable accommodations;
(5) Adams complained to Teri Minami beginning in September of 2000, continuing throughout the school year and culminating in a written letter dated June 18, 2001, that two employees were committing fraud against the District by pretending to be at work when they were not, interfering with the outcome of performance evaluations and misappropriating funds;
(6) Adams reported violent behavior by one of these employees against her, including a report of an assault to Minami on November 27, 2000;
(7) Adams complained to the crisis team operations coordinator for Local District H and others, beginning on February 13, 2001 and continuing through June of 2001, that she and others were sick from chemical fumes coming from a cleaning establishment next-door to the building;
(8) Adams complained to numerous supervisors from June 18, 2001 through June 29, 2001, about being bumped from her position, being forced into retirement and her inability to obtain assistance with reinstatement.
Adams sought reinstatement to one or more of the positions for which she had been rejected and an injunction against further discrimination.
2. The District’s Motion for Summary Judgment
The District sought summary judgment with respect to the PSA FC and Belmont AP positions on the grounds the decisionmakers responsible for choosing an applicant to recommend for these positions had no knowledge or memory of Adams’s protected activity and the protected activity was not a factor in the decisions not to recommend Adams for either position. Further, the protected activities relied upon by Adams were so temporally attenuated from the nonhiring that no causal connection could be inferred. Also, the decisions not to hire Adams were based on legitimate, nondiscriminatory business reasons and consideration of her qualifications relative to other well qualified candidates.
The District further alleged Labor Code sections 1102.5 and 6310 and Government Code section 12653 protect only current employees and thus did not apply to Adams, who had retired.
3. The Order Granting Summary Judgment
The trial court granted summary adjudication in favor of the District on the first, fifth, sixth and seventh causes of action. The trial court found the District had demonstrated that its decision not to hire Adams was based on neutral non-retaliatory reasons. The trial court further found Adams failed to establish that the decisionmakers were aware of or affected by her protected activities. Therefore, no causal connection between the protected activity and her non-hiring could be shown. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 75 (Morgan); Cohen v. Fred Meyer, Inc. (9th Cir. 1982) 686 F.2d 793, 796-797.) The trial court also found Adams failed to provide evidence of pretext (Wallis v. J.R. Simplot Co. (9th Cir. 1994) 26 F.3d 885, 890) and failed to show the District actually was motivated by unlawful discrimination (St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 511 [125 L.Ed.2d 407]).
Because FEHA claims of retaliatory employment action are analogous to federal Title VII claims, it is appropriate to consult decisions interpreting that federal statute for guidance. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1065; Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 475-476.)
The trial court found the declarations submitted on behalf of the District established, as a matter of law, the articulation of legitimate nondiscriminatory reasons for rejecting Adams. (University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1036.) Also, Adams’s claim that destruction of interview notes constituted evidence of pretext giving rise to an inference the notes would have been favorable to her had they been produced constitutes speculation. The trial court found no evidence the interview notes were destroyed to hide a retaliatory motive. (Rummery v. Illinois Bell Telephone Co. (7th Cir. 2001) 250 F.3d 553, 558-559.)
CONTENTIONS
Adams contends the trial court erroneously assumed Adams was considered for the Belmont AP position, the District failed to adduce evidence from critical decisionmakers for each position, there were genuine issues of disputed material facts concerning (1) the decisionmakers’ knowledge of Adams’s protected activity and (2) whether the District’s explanations were pretextual, and the trial court erroneously failed to draw inferences against the District for illegally destroying interview notes and application records.
DISCUSSION
1. Summary Judgment
Summary judgment is properly granted if there is no question of fact and the issues raised by the pleadings must be decided as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar); Code Civ. Proc., § 437c, subd. (c).) In moving for summary judgment, a defendant may show that one or more elements of the cause of action cannot be established by the plaintiff or that there is a complete defense to the cause of action. (Aguilar, supra, at p. 849; Code Civ. Proc., § 437c, subd. (o)(2).)
Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at p. 849.) The defendant need not “conclusively negate” the element; all that is required is a showing “that the plaintiff does not possess, and cannot reasonably obtain, needed evidence . . . .” (Id. at pp. 853-854.)
Following a grant of summary judgment, we review the record de novo for the existence of triable issues, and consider the evidence submitted in connection with the motion, with the exception of evidence to which objections were made and sustained. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
2. General Principles Applicable to Employment Discrimination Cases
When a defendant seeks summary judgment in a case involving discriminatory or retaliatory employment action, the burden shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [36 L.Ed.2d 668] is used to determine whether there are triable issues of fact for resolution by a jury. (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1108-1109.) Under this three-part test: “ ‘(1) The complainant must establish a prima facie case of discrimination; (2) the employer must offer a legitimate reason for his actions; (3) the complainant must prove that this reason was a pretext to mask an illegal motive.’ [Citation.]” (Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 662.)
To establish a prima facie case of retaliation, a plaintiff must show she engaged in protected activity, she was subjected to an adverse employment action, and there is a causal nexus between the protected activity and the adverse employment action. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 472; Flait v. North American Watch Corp., supra, 3 Cal.App.4th at p. 476.)
Protected activity includes filing a complaint or participating in proceedings or hearings under the FEHA, or for opposing conduct made unlawful by the FEHA. (Gov. Code, § 12940, subd. (h).) The causal link between protected activity and adverse employment action may be established by an inference derived from circumstantial evidence, “ ‘ “ ‘such as the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.’ ” [Citations]’ ” (Morgan, supra, 88 Cal.App.4th at pp. 69-70.)
If the plaintiff establishes a prima facie case, the employer is required to produce substantial evidence of a legitimate, nondiscriminatory reason for the adverse employment action. (Morgan, supra, 88 Cal.App.4th at p. 68.) Where an employer establishes by declaration that all the individuals involved in an employment action acted based on neutral nondiscriminatory criteria, this evidence is sufficient to constitute, as a matter of law, the articulation of some “ ‘legitimate, nondiscriminatory reason for the employee’s rejection.’ ” (University of Southern California v. Superior Court, supra, 222 Cal.App.3d at p. 1031.)
If the employer produces substantial evidence of a legitimate, nondiscriminatory reason for the adverse employment action, the presumption of discrimination created by the prima facie case is removed from the case and the burden shifts back to the employee to demonstrate the existence of a triable material controversy as to whether the stated reasons for the employment action were either untrue or “a pretext for discrimination.” (Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 253 [67 L.Ed.2d 207]; Morgan, supra, 88 Cal.App.4th at p. 68.)
“ ‘[T]he plaintiff may establish pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” ’ [Citations.] Circumstantial evidence of ‘ “pretense” must be “specific” and “substantial” in order to create a triable issue with respect to whether the employer intended to discriminate’ on an improper basis. [Citations.] With direct evidence of pretext, ‘ “a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial.” [Citation.] The plaintiff is required to produce “very little” direct evidence of the employer’s discriminatory intent to move past summary judgment.’ [Citation.]” (Morgan, supra, 88 Cal.App.4th at pp. 68-69, fn. omitted.)
When an employer proves as a matter of law there was a proper basis for an employment action and the plaintiff fails to produce substantial responsive evidence demonstrating that the employer’s justification was untrue or a pretext, “a law and motion judge may summarily resolve the discrimination claim.” (University of Southern California v. Superior Court, supra, 222 Cal.App.3d at p. 1039.)
3. The Evidence Demonstrates Adams was considered for the Belmont AP Position
Adams contends there was a genuine issue of material fact as to whether she improperly was disqualified for the Belmont AP position by Kathy Price. Thus, she claims Price was a decisionmaker as to that decision. In Adams’s view, because the District failed to demonstrate Price’s decisionmaking rational, summary judgment should not have been granted.
a. Factual basis for Adams’s contention
Adams’s declaration in opposition to the District’s motion for summary judgment asserts Adams had her first interaction with Price, who worked in the District’s Human Services Department, on June 14, 2001, when Adams applied for an administrative position. Price told Adams she was not qualified for the position because she had only one year of public high school teaching experience at Fremont High School. In fact, Adams had never taught at Fremont High School but she had three years experience teaching public high school at Sierra Vista High School in the Baldwin Park Unified School District. Adams hand delivered to Price documentation from Adams’s personnel file showing the Sierra Vista teaching experience had been verified by the District when Adams was hired in 1994.
On October 30, 2002, Adams learned that Price had disqualified her for a position in Local District J because she lacked three years of public high school teaching experience. Adams reminded Price of the previous documentation of her teaching experience at Sierra Vista High School.
In January of 2003, Adams learned Price again had disqualified her from several jobs including the Belmont AP position on the basis that Adams had only one year of teaching experience and the position required three years. On January 29, 2003, Adams complained to Price and Price once again said the computer showed Adams had only one year of experience. Adams repeated their previous conversations and Price said she would see that the information was entered into the computer. Adams then faxed to Price a copy of the Sierra Vista verification of her teaching experience.
On April 4, 2003, the principal of an elementary school told Adams that Price had disqualified Adams for a position at the school because Adams had only one year of teaching experience. Adams telephoned Price who again told Adams the computer showed Adams had one year of teaching experience. Price again promised to correct the information in the computer and acknowledged that the disqualification was incorrect.
Adams claims Price erroneously disqualified her for the Belmont AP position and other positions that required three years of public high school teaching experience. Further, Price continued to disqualify Adams for such positions even after Adams reminded Price that the District had verified Adams’s three years of teaching experience.
Adams points out that Price testified the erroneous disqualification for the Belmont AP position would have been corrected by a revised applicant roster but the District failed to produce such a roster. Further, the decisionmakers for the Belmont AP position testified they could not recall any revised applicant roster or oral notification the disqualification had been rescinded. Also, Price’s post hiring conduct, again disqualifying Adams in April of 2003, was inconsistent with the assertion Price corrected the disqualification. Adams argues this evidence should have prompted an inference in her favor.
In support of her argument she was not considered for the Belmont AP position, Adams relies on four verified discovery responses from the District, given over a two-year period between May of 2004 and March of 2006, that indicated Adams was not considered for the Belmont AP position because Price deemed her not qualified. Adams claims that, by later contradicting these discovery responses, the District gave shifting and inconsistent explanations regarding its consideration of Adams for the Belmont AP position.
b. The District’s evidence refutes Adams’s claim
Adams submitted her application for the Belmont AP position on January 17, 2003. Diane Ramirez, director of school services for Local District F, and Ignacio Garcia, then principle of Belmont High School, worked on the hiring process for the Belmont AP position. The District conceded Price initially disqualified Adams for the Belmont AP position but submitted deposition testimony and a declaration from Ramirez and Garcia in support of the motion of summary judgment to demonstrate that Adams was considered for this position but was not interviewed.
Ramirez testified she did not recall receiving an amended applicant roster for this position but testified, “I do recall that [Adams] was later qualified . . . instead of a ‘No’ she became a ‘Yes.’ ” “I think Kathy Price notified us that [Adams] had originally been not qualified or not eligible for the position and then upon further review she became eligible.”
Garcia testified he had a “vague recollection” that an amendment was made to the applicant roster that allowed Adams to be considered for the position. However, Garcia did not recall seeing an “amended applicant roster” for this position or receiving a telephone call from the Central Office. Garcia believes he did but he had no clear recollection of it. In a declaration Garcia indicated that, “[a]fter I received Ms. Adams’ application, I forwarded correspondence to her dated January 23, 2003, advising her that I had received her application, that I would review it, and notify her of a decision.” On or about February 28, 2003, Garcia sent Adams a letter thanking her for the application and advising her she had not been selected for the position. A copy of each letter was attached as an exhibit to the motion for summary judgment.
Although the District did not produce a document entitled “Revised Applicant Roster,” it did produce an applicant roster note dated January 29, 2003, which indicated Adams was qualified for the Belmont AP position. Specifically, a notation on the applicant roster references a note at the bottom of the page, which states, “See attached regarding missing teaching experience requirements.” It appears the “attached” refers to exhibit No. 33 to Price’s deposition which is a copy of a certification of Adams’s teaching requirement from Sierra Vista High School. The copy bears the handwritten note, “Will accept this as verification,” dated January 29, 2003. Price testified the exhibit indicates she verified Adams’s teaching experience and faxed the document on January 29, 2003.
These exhibits together constitute convincing documentary evidence that Price corrected the disqualification of Adams for the Belmont AP position. Adams resists this conclusion and argues exhibit No. 33 is a separate exhibit that happens to be annexed to the applicant roster in the appellant’s appendix without any foundation it is the document referred to in the footnote in exhibit No. 30. Adams notes exhibit No. 33 has a post-it note at the top which refers to another position Adams applied for, the Berendo High School AP position. These circumstances do not dissuade us. Price disqualified Adams for several positions in January of 2003. It is entirely reasonable to assume Price sent the same certification to the decisionmakers for each of these positions, including the Belmont AP position.
Further, the conclusion that Adams was considered for the Belmont AP position is buttressed by the testimony of Garcia and Ramirez. Each testified they saw Adams’s application packet. Ramirez testified she saw a letter indicating they could consider Adams as a candidate. Ramirez also testified she saw the applicant roster indicating Adams’s missing teaching experience documentation was attached. Ramirez testified that although she saw the revised roster stating Adams was qualified for the position, Ramirez decided not to interview her. Garcia testified he reviewed the application and decided not to interview Adams. Adams’s reliance on the District’s four discovery responses is misplaced in that the District served an amended discovery response correcting its earlier responses before the summary judgment motion was filed.
On May 23, 2008, this court granted the District’s request to take judicial notice of the District’s amended response to Adams’s SROG No. 221. The amended response, dated October 6, 2006, indicates Adams’s initial disqualification was corrected and she was, in fact, considered for the Belmont AP position.
Based on the foregoing, the trial court properly concluded that Adams failed to demonstrate a genuine issue of material fact with respect to whether Adams was disqualified for the Belmont AP position.
4. Adams Failed to Demonstrate a Causal Nexus Between her Protected Activity and the Nonhiring Decisions
a. Knowledge of Protected Activity
As to the PSA FC position, the hiring committee formed to interview and select a candidate included Walter Flores, operations coordinator for Local District J, Cheryl Hovard-Walker, director of school services for Local District J, Minoo Maasaumi, FC for nursing services for Local District J, Patricia Morales, FC for psychological services for Local District J, and Karen Saunders, PSA FC for Local District D.
Adams argues there was conflicting evidence as to whether members of the hiring committee had knowledge of Adams’s protected activity. Adams claims her declaration in opposition to the motion for summary judgment showed that she discussed her protected activity with each committee member and the deposition testimony of the committee members showed they had knowledge of Adams’s protected activity.
However, the evidence showed only that the PSA FC decision makers were, to varying degrees, aware of Adams’s disability, her dispute with a co-worker, her complaints about fumes, etc. None was aware that Adams had filed a complaint with the District. In order to establish the causal link necessary for a claim of retaliation, there must be evidence the individuals who denied employment were aware of the protected activities. (Morgan, supra, 88 Cal.App.4th at p. 70.)
Saunders was aware Adams had complained about a co-worker but she could not recall the specifics. Maasaumi recalled Adams discussed having a door slammed in her face by a co-worker and Adams complained to co-workers about fumes from a cleaning business. Morales recalled Adams told her she had a physical handicap but Morales did not know Adams had complained about not receiving reasonable accommodations.
Each of the five committee members testified they had no knowledge that Adams previously had filed complaints about failure to receive reasonable accommodations for her disability, sexual harassment by Vigil, assault by co-workers, defrauding of the District by co-workers or chemical fumes in the workplace. Further, there was no discussion of these alleged complaints during the interview process and no one told the committee members they should not select Adams. Additionally, each decision maker expressly denied that Adams’s alleged protected activities had any effect on their decision making.
As to the Belmont AP position, Adams contends the evidence concerning the destruction of application records warrants the inference these records would have shown that Garcia and Ramirez knew of her protected activities. As discussed below, Adams fails to demonstrate illegal destruction of evidence. Further, there is no evidence Garcia and/or Ramirez knew of Adams’s protected activity. Both testified they were not aware of Adams’s protected activities.
b. Causation Based on Temporal Proximity
Causation may be inferred based on the temporal proximity of the protected activity and the adverse employment action. Where temporal proximity is the sole theory of causation, the connection between the protected activity and the retaliatory action must be “very close.” (Clark County School Dist. v. Breeden (2001) 532 U.S. 268, 273 [149 L.Ed.2d 509].) Adams’s protected activity occurred between 1998 and her retirement on June 30, 2001. The alleged retaliation occurred in late 2002 and early 2003.
Even excluding the time when the District could not retaliate against Adams (see Keyser v. Sacramento City Unified School Dist. (9th Cir. 2001) 265 F.3d 741, 752, fn. 4), the adverse decision on the PSA FC position was nearly four months after the last incident of protected activity. Such a gap has been found to be too attenuated for a temporal relationship theory of causation. (Filipovic v. K & R Exp. Systems, Inc. (7th Cir. 1999) 176 F.3d 390, 398-399; Richmond v. Oneok, Inc. (10th Cir. 1997) 120 F.3d 205, 209.)
Adams responds there is no per se rule of temporal non-proximity that precludes causation. (Coszalter v. City of Salem (9th Cir. 2003) 320 F.3d 968, 977-978.) Adams further asserts she resumed protected activity when she sought reemployment in September of 2002. At that time, Price attempted to dissuade Adams from seeking full-time employment and attempted to dissuade others from allowing her to seek full-time employment. Adams complained about Price’s renewed retaliation orally and in writing to the head of personnel and the District superintendent.
Even if we agreed Adams had shown sufficient temporal proximity to warrant a prima facie case on the issue of causation, as discussed below, the District provided neutral non-retaliatory reasons for its decisions not to hire Adams.
5. The District Adduced Evidence from the Critical Decisionmakers for Each Position
Adams contends summary judgment should not have been granted because the District failed to provide the rationale of four of the actual, ultimate decisionmakers. With respect to the Belmont AP position, Adams contends the District did not address the knowledge or decisionmaking of three individuals, namely, Price, the area superintendent and a Mr. Leno.
As already discussed, Price was not a decisionmaker as to the Belmont AP position. Thus, the District had no obligation to provide her decisionmaking rationale.
Further, although the area superintendent and a Mr. Leno made the final decision as to the Belmont AP position, they made the decision based on a recommendation they received from Garcia and Ramirez that did not mention Adams. Thus, as to the Belmont AP position, Garcia and Ramirez were the decisionmakers.
With respect to the PSA FC position, Adams contends the District failed to address the knowledge or decisionmaking of Vigil, who made the final decision on the position. However, the successful candidate was selected by a five person hiring committee. As demonstrated by the deposition testimony and the declarations of the members of the hiring committee, Vigil had nothing to do with the hiring committee’s recommendation for the position. Rather, Vigil made a final hiring decision based on a recommendation that did not mention Adams. Thus, Vigil was not a decisionmaker with respect to the PSA FC position.
Based on this conclusion, we need not reach Adams’s claim the trial court erroneously excluded evidence with respect to Vigil’s knowledge of Adams’s protected activities.
We therefore conclude the District provided the decisionmaking rationale of each of the relevant decisionmakers.
6. The District Carried its Burden to Show Nonretaliatory Reasons for Selecting Leon for the Belmont AP Position and Jimenez for the PSA FC Position; Adams Did Not Show Evidence of Pretext
a. Belmont AP
As to the Belmont AP position, Garcia and Ramirez interviewed only three or four candidates out of ten applicants. Ramirez and Garcia decided not to interview Adams because she submitted her application by fax, even though the position notice stated materials should not be submitted by fax. Also, Adams’s letter of interest was sloppy and unprofessional in that it was addressed to Garcia but the salutation stated, “Dear Assistant Superintendent Liechty.” Also, the opening paragraph of Adams’s letter of interest stated, “I am a Mexican woman,” which Garcia found to be unconventional. Finally, Adams’s letters of recommendation were not current.
The three candidates who were selected for interviews were known to Garcia and Ramirez. One of the candidates was a teacher at Belmont, one was the operations coordinator for Local District F who was regularly on the Belmont campus, and one was the Title I coordinator at Belmont and had been a dean and teacher at the school. Ramirez and Garcia recommended Evelio Leon, the Operations Coordinator for Local District F, because he had a good resume, appropriate experience, he interviewed well and was highly recommended by a respected educator.
This evidence demonstrates legitimate nonretaliatory reasons for not hiring Adams for the Belmont AP position. Because the District carried its burden of showing legitimate nonretaliatory reasons for its decisions, Adams must do more than deny the credibility of the District’s witnesses. (Coleman v. Quaker Oats Co. (9th Cir. 2000) 232 F.3d 1271, 1282; Wallis v. J.R. Simplot Co., supra, 26 F.3d at p. 890.) Indeed, given the strength of the District’s showing of non-retaliatory reasons for recommending Leon for the Belmont AP position, Adams’s “countervailing circumstantial evidence of discriminatory motive, even if it may technically constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred.” (Guz v. Bechtel National, Inc., supra, 24 Cal.4that p. 362, citing Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 148-149 [147 L.Ed.2d 105].
Adams next asserts Leon was a far less qualified person whose hiring shows pretext. (Raad v. Fairbanks North Star Borough School Dist. (9th Cir. 2003) 323 F.3d 1185, 1197.) Adams notes she had 24 years of public school teaching experience compared with Leon’s six and a half years, she had one year of administrative experience and 20 years of counseling experience whereas Leon had none and Adams had a lifetime administrative services credential while Leon had a preliminary administrative services credential. Adams argues pretext evidence standing alone is sufficient to infer a retaliatory reason. (Noyes v. Kelly Services (9th Cir. 2007) 488 F.3d 1163, 1170-1171.) Adams asserts that, although subjective factors are not per se impermissible, they lend themselves to discriminatory abuse and therefore should be closely scrutinized.
We need not determine whether Adams was more qualified for the position than Leon. An employer is free to exercise discretion to choose among qualified candidates provided the decision is not based on unlawful criteria. (Los Angeles County Dept. of Parks & Recreation v. Civil Service Com. (1992) 8 Cal.App.4th 273, 281.) Also, “where ‘the employee occupies a sensitive managerial or confidential position, the employer must of necessity be allowed substantial scope for the exercise of subjective judgment.’ ” (Fowler v. Varian Associates, Inc. (1987) 196 Cal.App.3d 34, 43.) Certainly, the Belmont AP position qualifies as sensitive.
For these reasons, we conclude the District showed sufficient non-retaliatory reasons to support its Belmont AP position hiring decision and that Adams has failed to show evidence of pretext.
b. PSA FC Position
Adams asserts her objective qualifications were far superior to the qualifications of the successful candidate, Patricia Jimenez, and the hiring of a far less qualified person shows pretext. (Raad v. Fairbanks North Star Borough School Dist., supra, 323 F.3d at p. 1197 .) Adams argues she previously had performed the duties of a PSA FC and previously had supervised certificated employees while Jimenez had not, Adams had 20 years of counseling experience compared to 7 and a half years for Jimenez, Adams had four credentials including a lifetime administrative services credential whereas Jimenez had only two credentials and only a preliminary administrative services credential, and Adams had 24 years of teaching experience compared to 8 and half years for Jimenez.
This argument ignores the deposition testimony of the individuals on the interview committee and their perception of the applicants. The District submitted deposition testimony and a declaration from each of the five hiring committee members. Each testified Adams interviewed for the position in October of 2002, along with several other candidates. The committee members uniformly indicated Patricia Jimenez had been the best qualified candidate because she interviewed well, she provided the best answers to the committee members’ questions and she had strong experience. Jimenez had been a PSA counselor for seven years, she had experience working with the courts and parents as the school liaison to the juvenile courts, she had an administrative credential and her current letters of reference strongly and enthusiastically recommended her for the position. The committee members unanimously recommended Jimenez for the position.
On the other hand, at least two of the committee members believed Adams’s letters of recommendation were not favorable, were weak or negative. At least one of the committee members believed Adams did not adequately respond to questions during the interview.
As noted in connection with the Belmont AP position, an employer is free to exercise discretion to choose among qualified candidates provided the decision is not based on unlawful criteria. (Los Angeles County Dept. of Parks & Recreation v. Civil Service Com., supra, 8 Cal.App.4th at p. 281.) Additionally, the PSA FC position, like the Belmont AP position, must be seen as a sensitive position. As such, the employer, “ ‘must of necessity be allowed substantial scope for the exercise of subjective judgment.’ ” (Fowler v. Varian Associates, Inc., supra, 196 Cal.App.3d. at p. 43.)
In sum, as to the PSA FC position, the District carried its burden to show non-retaliatory reasons to support its hiring decision and Adams fails to demonstrate pretext.
7. Adams Fails to Show the District Illegally Destroyed Application Records
Adams contends the District deliberately destroyed application records it was required to maintain for two years. (Gov. Code, § 12946.) Adams further asserts the District has a three-year retention policy for job application documents. Adams presented evidence showing application documents related to the Belmont AP and the PSA FC positions were destroyed in violation of these mandates.
Adams notes application documents for the Belmont AP position could not be produced because, as Garcia testified, they were shredded after six months. Adams asserts it is reasonable to infer these records intentionally were destroyed. Adams argues this evidence of spoliation is sufficient to defeat summary judgment. (Medical Laboratory Manag. v. American Broadcasting (9th Cir. 2002) 306 F.3d 806, 825.) Adams claims the trial court relied on a minority federal view, stated in the Rummery v. Illinois Bell Telephone Co., supra, 250 F.3d at pp. 558-559, that requires a showing the records were destroyed to conceal a retaliatory motive. California follows the rule that willful destruction of evidence allows an adverse inference against the destroying party. (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12; Evid. Code, § 413.) Adams argues the majority view does not require evidence of an intent to hide wrongful motive, citing Byrnie v. Town of Cromwell, Bd. of Educ. (2nd Cir. 2001) 243 F.3d 93, 109.
Adams contends the destruction of the notes from the PSA FC interviews was significant given the District’s rationale that the interviewers formed the subjective impression Jimenez interviewed better than Adams. Adams asserts the missing notes would have clarified which aspects of Adams’s interview performance failed subjective evaluation. Also, the destruction of the interview notes warrants the reasonable inference these notes would have shown the District’s subjective evaluation of the candidates was pretextual.
Initially, we note the case Adams relies upon, Byrnie held that in order to benefit from an inference of spoliation, the party must demonstrate “the records were destroyed with a culpable state of mind (i.e. where, for example, the records were destroyed knowingly, even if without intent to violate the regulation, or negligently).” (Byrnie v. Town of Cromwell, Bd. of Educ., supra, 243 F.3d at p. 109.)
Here, assuming the interview notes were destroyed within six months of Adams’s application for the PSA FC position in October of 2002, they were destroyed long before Adams filed suit. Consequently, there was no showing the District intentionally suppressed trial evidence.
Further, Adams has failed to demonstrate that the District destroyed any evidence it was required to maintain. Adams’s applications for both the Belmont AP position and the PSA FC position, with all their respective attachments, were before the trial court as exhibits to the summary adjudication motion. Also, the resume of the successful applicant for each position was before the court. The revised applicant roster for the Belmont AP position is contained in the record on appeal with a footnote showing Adams was eligible. Thus, it too was not destroyed. Finally, even assuming interview notes are subject to the retention policy, there has been no showing of any likelihood the notes would support Adams’s case.
In sum, Adams failed to identify any document subject to a retention statute that was lost or misplaced.
8. Labor and Government Code Violations
The District contends Adams’s claims under Labor Code sections 1102.5 and 6310 and Government Code section 12653 fail because they are not available to a person who is not an employee. Adams responds case law establishes that these statutes must be construed broadly to include both current and ex-employees. (See Lujan v. Minagar (2004) 124 Cal.App.4th 1040, 1045.)
Because the trial court properly granted summary judgment on the retaliation claim, the alleged statutory violations based on theories of retaliation also necessarily fail. We therefore need not determine whether Adams qualified as an “employee” under the various statutes.
DISPOSITION
The order granting summary judgment is affirmed. The District shall recover costs on appeal.
We concur: KITCHING, J., ALDRICH, J.