Opinion
B294829
05-12-2020
GUILLERMO AVILES-RODRIGUEZ, Plaintiff and Appellant, v. LOS ANGELES COMMUNITY COLLEGE DISTRICT, Defendant and Respondent.
Knapp, Petersen & Clarke, Andre E, Jardini, K.L. Myles and Michael D. Carr for Plaintiff and Appellant. Wood, Smith, Henning & Berman, Stacey F. Blank and Shannon M. Benbow for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC599158) APPEAL from a judgment of the Superior Court of Los Angeles County, Samantha P. Jessner, Judge. Affirmed. Knapp, Petersen & Clarke, Andre E, Jardini, K.L. Myles and Michael D. Carr for Plaintiff and Appellant. Wood, Smith, Henning & Berman, Stacey F. Blank and Shannon M. Benbow for Defendant and Respondent.
INTRODUCTION
Appellant Guillermo Aviles-Rodriguez appeals from a summary judgment entered in favor of his former employer, respondent Los Angeles Community College District (the District), on his claim of race discrimination in violation of the Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq. In 2010, the District hired appellant as a tenure-track theater and cinema professor at Los Angeles Mission College (LAMC). A five-member tenure review committee, consisting entirely of white and non-Chicana/Chicano members, evaluated appellant annually throughout the four years of his employment. In its first and second evaluations, the committee expressed concern about appellant's perceived failure to work closely with the chair of his department and to adhere to college protocol. In its third, favorable evaluation, the committee praised appellant for improvement in those areas. In its final evaluation, the committee found that his performance in these areas had regressed (in addition to faulting his performance in other areas), and recommended that he be denied tenure. After interviewing the committee members, appellant, and others, the president of LAMC concluded that appellant's performance in administrative matters was lacking and agreed with the committee's recommendation that he be denied tenure. The District accepted the recommendations, resulting in appellant's termination.
Appellant brought this action, alleging that the District terminated him because of his race (Chicano or Mexican) in violation of FEHA. The District filed a motion for summary judgment, arguing that it had terminated appellant for the nondiscriminatory reasons identified by appellant's committee and the president, and that no reasonable jury could find those reasons were pretexts for racial discrimination. Appellant argued that the proffered reasons were facially insufficient to motivate the tenure denial, and submitted purported evidence of a racially discriminatory motive, much of which the trial court excluded. Appellant also sought and obtained a continuance to pursue additional discovery, but thereafter filed a supplemental brief standing on the evidence he originally submitted. The trial court granted the District summary judgment, concluding that in the face of the District's proffered nondiscriminatory reasons for the tenure decision, appellant had failed to adduce any evidence supporting a reasonable inference that the decision was substantially motivated by appellant's race.
On appeal, appellant contends the trial court erred by: (1) sustaining various objections to appellant's evidence; and (2) granting the District summary judgment. Finding no error, we affirm.
FACTUAL BACKGROUND
A. Appellant's Tenure Review Committee
LAMC is a community college within the District. According to its former Vice President, Michael Allen, it has been designated a "'Hispanic-serving institution'" by the federal government. (See 20 U.S.C.A. § 1101a [term means institution of higher education that, inter alia, has full-time undergraduate enrollment of at least 25 percent Hispanic students].)
In February 2010, appellant began working at LAMC as a tenure-track professor in the Arts, Media, and Humanities Department. He taught in the disciplines of theater and cinema, though he identifies his discipline as theater only. Appellant racially identifies as Chicano or Mexican. In his operative complaint, appellant alleged that all members of his tenure review committee were white and non-Chicana/Chicano. There is no contrary evidence in the record.
The District's tenure review procedures are governed by bargaining contracts. Tenure-track faculty are annually reviewed by a committee for four years, after which the committee's third- and fourth-year evaluations and its fourth-year recommendation regarding the tenure decision are forwarded to an appropriate vice president, then to the college president. The president then forwards the committee's recommendation and his own recommendation (which may be based on the president's own "administrative evaluation") to the Board of Trustees, which makes the final tenure decision. Denial of tenure results in termination.
Four of the five members of appellant's tenure review committee served on the committee throughout all four years of the committee's existence: (1) Deborah Paulsen (chair of both the committee and appellant's department); (2) Curtis Stage (a professor of Multimedia, Cinema, and Photography selected for the committee by appellant's department); (3) Leslie Milke (a professor of Health and Physical Education selected for the committee by appellant); and (4) Carolyn Daly (a professor of English appointed to the committee by the Faculty Senate). The fifth member of the committee varied; Nadia Swerdlow served on the committee for its first two years (after which she was not consulted in connection with appellant's evaluations), then was replaced in the third year by Stephanie Atkinson-Alston, who was replaced in the fourth year by Michael Fenton. Fenton served on the committee in its fourth year as the designee of Vice President Allen. Allen was the vice president to whom the committee, in its final year, forwarded its evaluations and recommendation. Monte Perez was the college president who, after conducting an administrative evaluation, forwarded the committee's recommendation and his own to the Board of Trustees.
Only three of the committee's five final members had the right to vote on the committee's recommendation. Stage testified at his deposition that he was a voting member of the committee and that he and the other two voting members all voted to deny appellant tenure. Maria Fenyes, a former District employee familiar with its bargaining contracts, declared that Stage's vote violated a contractual term because neither he nor any other member of the committee taught in appellant's discipline, viz., theater. She explained that the contract required appellant's department to select a theater professor as an additional member of the committee, who would vote instead of Stage. In an internal email, Paulsen indicated that appellant had never asked for a "discipline rep." to be on the committee and that "'no one on campus'" could have served in that capacity. Fenyes declared that it was common practice to select a discipline representative from another campus within the District.
Appellant's counsel erroneously asserted, both in his appellate briefing and at oral argument, that the trial court sustained an objection to Fenyes's declaration. In fact, the court declined to rule on the District's objections to the declaration, stating the declaration was immaterial to the court's ruling. The court nevertheless addressed the alleged procedural irregularity in the substantive portion of its ruling, stating that (1) the proper method to challenge the irregularity was a petition for a writ of mandate; and (2) the irregularity, standing alone, was immaterial to the issue of discriminatory animus.
B. Appellant's First Three Years at LAMC
1. First Year
Appellant began his employment at LAMC in February 2010. He declared that during a December 2010 faculty meeting, Stage yelled at him and said "'You are not going to fucking come in here and take over'" and "'If it weren't for me you fucking wouldn't even have a building.'" There is no evidence in the record regarding the context of these remarks. The trial court sustained an objection to a portion of appellant's declaration characterizing Stage's remarks as "racially charged," on the grounds that it constituted improper lay opinion and was made without foundation or personal knowledge.
In January 2011, appellant's tenure review committee completed his first-year evaluation. The committee found that appellant met or exceeded expectations in all categories but one, rating him "Needs Improvement" in the category of "Interacts or communicates with peers." The committee stated it had "serious concerns" regarding appellant's communication with faculty during meetings and his responses to recommendations from Paulsen (chair of the committee and of appellant's department). The committee commented, inter alia, "[I]t is essential that Mr. Aviles-Rodriguez learn to work within the processes and protocol of the college. In the future, it is key that he give faculty a chance to collaborate and share their ideas. This will help us develop a climate of trust and congeniality within our Department." The committee advised appellant to work closely with Paulsen, to respond appropriately to her recommendations, to identify a high-quality advisory board, and to take care that his work with a student drama club did not impact his class preparation.
2. Second Year
In June 2011, Swerdlow (a member of appellant's tenure review committee only in his first and second years) delivered a counseling memorandum to appellant identifying three areas of concern. First, the memorandum identified concerns regarding appellant's adherence to campus business policies. Swerdlow recounted that she and another member of LAMC's staff had advised appellant that "business processes [were] in place for all contractual agreements and income generating activities," and had told him to keep the campus informed of all such activities. Nevertheless, without informing anyone on campus, appellant had subsequently contracted with an independent business group for the production of an off-campus play, thereby committing the college to payments without authorization. Moreover, appellant had disregarded existing "income monitoring processes" by including provisions in the agreement regarding income-splitting and ticket-selling. Though appellant had expressed his belief that more relaxed rules applied because the production was a drama-club activity, this belief was inconsistent with (1) information he had previously received on business processes applicable to student-club activities; and (2) the fact that participation in the production was graded work for his acting classes. Second, the memorandum identified concerns regarding appellant's timeliness in handling fiscal responsibilities. Swerdlow recounted that she and others had trained appellant on post-production accounting. Despite receiving this training and having significant time to reconcile outstanding bills from his recent production, appellant had disregarded repeated requests from LAMC's Business Office to reconcile outstanding bills, resulting in vendors contacting the campus regarding delinquent payments. Finally, the memorandum identified a concern regarding appellant's setting of appropriate requirements for courses, and requested that appellant develop a plan for productions that would "represent an academically appropriate relationship of productions to classroom activities . . . ."
In September and October 2011, appellant and Swerdlow exchanged emails regarding appellant's proposal to produce an Italian play in 2012. In an October 21, 2011 email, Swerdlow thanked appellant for meeting with her and Paulsen the day before and noted that they had discussed, inter alia, appellant's report that he had "approached ASO [Associated Student Organization] for financial support" without informing Swerdlow or Paulsen. In his declaration, appellant stated that on October 21, 2011, in Paulsen's presence, Swerdlow "verbally insulted" him and said to him, "'You think you can come in here and take over the place.'"
In February 2012, appellant's tenure review committee completed his second-year evaluation. The committee delivered an overall rating of "Needs to improve," based on its findings that he needed improvement in nine categories. The committee noted "serious concerns" regarding appellant's failure to fully meet recommendations from his previous evaluation, including recommendations to work closely with Paulsen, to respond appropriately to Paulsen's recommendations, to "collaborate collegially" with his departmental colleagues, and to "follow protocol in seeking guidance and approval with the department chair in matters relating to the theater program, curriculum and outreach." The committee noted that appellant had entered an unauthorized contract, had been counseled about that contract in the counseling memorandum, and had nevertheless proceeded to request a loan from ASO without informing Paulsen. The committee further noted that appellant repeatedly had been informed that students were not permitted to sell tickets, but had nevertheless proposed that each student involved in an upcoming production sell 20 tickets each. The committee expressed a desire to support appellant in "acclimating to the many departmental, District and state guidelines that all community college instructors face."
The nine categories were: (1) interacting or communicating with peers; (2) accepting constructive criticism well; (3) making appropriate contributions to the discipline/department and assuming an appropriate share of faculty responsibilities; (4) submitting grades and/or other required information on time; (5) using class time efficiently; (6) demonstrating sensitivity in working with diverse students; (7) teaching appropriate course content; (8) teaching at an appropriate level; and (9) following stated grading criteria.
At appellant's request, President Perez completed an administrative evaluation following appellant's second-year tenure review evaluation. Perez disagreed with several of the committee's findings, including its overall rating of "Needs to improve," and delivered an overall rating of "Meets/Exceeds Expectations." Perez did find, however, that appellant needed to improve in the category of "Performance of Responsibilities." Perez noted that an improvement plan developed by Paulsen "provide[d] a blue print to [appellant] to meet the expectations of the department for the next evaluation," and that the improvement plan specifically addressed interactions with peers and working closely with Paulsen.
3. Third Year
There is no evidence in the record concerning the events of appellant's third year at LAMC other than his third-year tenure review evaluation, completed December 5, 2012. The committee found appellant met or exceeded expectations in every category. It commented, "Mr. Aviles-Rodriguez has shown considerable growth this year as a faculty member. Significant concerns included in last years [sic] evaluation have been met and he continues to work with the department chair [i.e., Paulsen] on on-going activities . . . ." Its recommendations included the following: "Continue to be involved with the wider aspects of the college community and be patient with the time that it will take to launch a full-scale Theater Program at LAMC. Continue to work with department chair and other colleagues to follow the college protocol on curriculum, funding, and scheduling of events."
C. Appellant's Final Year at LAMC
1. Spring 2013
In December 2012, after completion of his third-year evaluation earlier that month, appellant forwarded an invoice from Wired Studios, Inc., to Paulsen and "N D Ondoy" (presumably an administrative employee), stating that the invoice was for work on a new theater website. Ondoy responded, stating the invoice could not be paid because there was no approved contract with Wired Studios. Ondoy requested that appellant consider hiring students to work on the website because it would be easier to pay them. The next month (January 2013), Stage introduced appellant to two of Stage's web-design students, but appellant deemed the students to be less qualified than Wired Studios. The following month (February 2013), appellant asked Ondoy to proceed with the process of contracting with Wired Studios for the website work. Wired Studios began working on the website, with appellant's knowledge, on April 15, despite the fact that the contract had not been approved. Appellant admitted that "Paulsen believed plaintiff had authorized work by an outside company without first having obtained approval of the contract."
In April 2013, professor Edward Raskin emailed appellant (copying Paulsen) to request documentation needed to obtain approval for "cooperative education" theater classes, and noted that he believed appellant had already completed the required forms. Appellant responded (copying professor Said Pazirandeh), "Yes all the work on our end has been completed. Deborah [Paulsen] and I finished the course forms and now I am not sure what the hold up is, I will check in with her and Said and get back to you." Paulsen responded (copying Vice President Allen), noting that she, Allen, and appellant had discussed putting the cooperative education idea on hold. Appellant responded, "You are right that the Cooperative Ed idea for the play was put on hold on our end. But I was not clear about who was going to let Ed [Raskin] know about it." Appellant admitted that as a result of this email exchange, "Paulsen believed that plaintiff was not taking responsibility for his actions . . . ."
On May 8, 2013, Paulsen delivered a letter to appellant by email. Paulsen wrote that appellant should have checked in with her and Allen regarding the contracting process before having Wired Studios create an invoice; should have confirmed the contract had been approved before authorizing Wired Studios to begin work; should have contacted her before meeting with Raskin on his own; and should have admitted to Raskin that the cooperative education idea was on hold rather than claiming not to know why there was a delay. She also recounted that Raskin's emails had "escalated into accusations about Michael Allen and [Paulsen] not doing [their] jobs correctly," and that she had asked appellant to encourage Raskin to "back down," but appellant had responded that he felt it "wasn't [his] place to do so." Appellant did not respond to the letter.
The trial court sustained an objection on relevance and authentication grounds to other emails sent in May 2013. In the first of these emails, Mando Contreras (otherwise unrelated to the events in this case) wrote to Milke and others, informing them that an instructor and students had complained when they were provided an outdoor space in which to hold potluck gatherings. Contreras quoted the students as saying, "'Does this "lady" want us to eat outside like dogs![?]'" Milke forwarded the email to Allen, who responded, "All I can think about is the movie about Ritchie Valens, 'La Bamba.' [¶] Bob Morales: I understood why he treated you just a little better than me. I'll just hang around for the leftovers, like a dog. That's how much i [sic] loved him. Like a goddamn dog." Milke responded, "I am still laughing." No evidence in the record identifies the students or instructor.
The trial court also sustained an objection on the ground of failure to authenticate to a pair of emails sent in spring and summer 2013, both of which appellant submitted as evidence that Milke and Paulsen were hostile to Chicano Studies. In a March 2013 email to Allen regarding the courses approved for summer 2013, Paulsen mentioned that she felt that Milke's department (Health and P.E.) should have received a P.E. course; she appeared to make additional comments on a second page, but appellant omitted that page when he submitted the email in opposition to the District's motion. In a July 2013 email to Allen regarding the courses approved for fall 2013, Milke wrote, "I'm disappointed that there was no discussion of what new [c]ourses to add. I would have requested that 1 Health class be added. There are scores of students turned away each semester and the students could have benefitted from an added class. I understand math but chicano studies??"
2. Fall 2013
In September 2013, as appellant admitted, Paulsen discovered that appellant's syllabi provided that if a student participated in a play appellant was producing through the drama club, the student would receive extra credit and be excused from writing a paper. Appellant further admitted that in the same month, after Paulsen observed appellant arriving late to a committee meeting, appellant explained that he had scheduled his office hours at the same time as the meeting -- even though Paulsen had previously told him to avoid such scheduling conflicts.
In a September 5, 2013 email to appellant (copying Allen), Paulsen expressed frustration with his disregard of her advice. She further noted that appellant had recently scheduled auditions for a play during non-college hours (requiring vice presidential approval) and had notified her only a few days before the auditions, leaving little time to obtain the required approval. She stated that she needed appellant to significantly improve on keeping her and Allen informed "well in advance" of such matters. Appellant responded (copying both Allen and union representative Louise Barbato), asking Paulsen to specify the amount of advance notice he should provide for play-related activities, as he did not "understand the exact meaning of 'well in advance.'" He also requested that "all guidance, advice, directives, etc." be delivered in writing, for the purpose of helping him be accountable to "verifiable" facts; he explained that request by stating that her email, like a previous email, reflected important (unspecified) differences in their interpretation of events.
In a September 8 response email, Paulsen quoted from written materials appellant had previously received, including (1) a club handbook stating that requests to use college facilities for club events must be submitted two weeks in advance; and (2) field trip request procedures stating that the instructor arranging the field trip must collect field trip waivers from each student three weeks in advance. Appellant replied, acknowledging that he had "been advised in writing previously and counseled extensively" regarding college and student club activities, and stating that he was simply requesting that all communication concerning his performance be in writing. Paulsen asked appellant to articulate their differences in interpretation, and appellant replied that he intended to, but that it would take some time to ensure the resulting conversation would be positive and constructive. Allen responded, opining that there had been a breakdown in communication and asking appellant and Paulsen to defer further communication until they met in person.
Appellant, Paulsen, Allen, and Barbato met in person to follow up on these emails on September 18, 2013. Appellant declared that he notified the others during the meeting that he was being "harassed on the basis of [his] ethnicity," and that Barbato (the union representative) yelled at him and behaved in a "menacing" and "aggressive" manner toward him. The next week, Paulsen sent appellant an email (copying Allen and Barbato), memorializing and reiterating Allen's request during the meeting that appellant respond to Paulsen's emails "in such a way that outlines acceptance of your responsibilities as a faculty member and how you plan to improve." Appellant admitted that he never responded. Paulsen's email also stated, "During the meeting it was difficult for you to articulate your concerns in a way that the group could understand, although you did express concerns regarding my emails and the perceived implication that I think you make mistakes on purpose and that I am looking to find things to get you in trouble as to negatively affect your evaluation and job security." In his declaration, appellant described Paulsen's email as follows: "Paulsen, the Chairperson of my tenure review committee, threatened me and asserted that by expressing my concerns I had 'negatively affect[ed] . . . [my] job security.'"
In an October 2, 2013 email to Paulsen (copying Allen and others), appellant presented a draft advertisement for the drama club's upcoming production of a play in a cemetery, and mentioned that he had taken students to the cemetery for a photo shoot. Paulsen responded, noting that their department had no field-trip forms on file. Appellant replied that he had not collected field-trip forms from the students because it was a drama-club event. He stated that he had spoken to ASO administrator Robert Crossley, who had suggested that appellant "run field trip slips through him since this [was] a Drama Club event." In response, Paulsen referred to her September 8 email quoting from a student-club field-trip policy and wrote, "I would disagree with Robert [Crossley] signing of[f] on the field trip waivers since that is not the published procedure and it keeps me out of the loop, when I am supposed to be kept in the loop as we have discussed many time[s] before." Paulsen and Crossley then privately exchanged emails about the field-trip form procedure, after which Paulsen forwarded their exchange to Allen and wrote, "The field trip forms that the Clubs use are exactly the same as ours, and would still require our signatures." Allen thanked Paulsen for the information and wrote, "I don't think we can pull the plug at this point. I am just as frustrated as you are. I've appointed Mike Fenton to serve as my designee on [appellant's] evaluation committee. Please provide him with copies of all past evaluations and give him some history." Appellant admitted that a District administrative regulation concerning "ASO Field Trips and Excursions" stated, inter alia, "All adults taking field trips or excursions . . . shall sign a statement waiving [specified] claims (See attached form dated April 21, 2003). [¶] e. Any person . . . who does not sign the waiver will not be permitted to attend the field trip or excursion.'"
As noted, Paulsen's September 8, 2013 email to appellant had quoted from field-trip request procedures. In an earlier, January 2013 email to appellant and others, Paulsen had provided field-trip forms and related instructions, including an instruction to submit signed forms three weeks in advance of any field trip.
According to Paulsen's declaration, she attended a showing of appellant's cemetery play and perceived it to have sexual content that warranted a parental advisory. She suggested a parental advisory to appellant in an October 29, 2013 email. Appellant responded that he was not in charge of audience communication and that it was "not [his] call" whether to include an advisory, but he had forwarded the suggestion to the person in charge and he would let Paulsen know what that person said. Paulsen declared that she heard nothing more from appellant on the subject, and that she felt appellant, as the play's director and playwright, should have given more consideration to a parental advisory.
Around November 6, 2013, as appellant admitted, Paulsen heard that appellant had canceled one of his classes to attend a showing of the cemetery play. In a November 6 email to appellant, Paulsen told him she needed advance notice of class cancellations, and that cancelling a class for a club event was generally unacceptable. She reminded appellant that she had previously warned him against unduly prioritizing club events.
In another November 6, 2013 email to appellant (and other faculty), Paulsen requested that he submit "program reviews" by November 15 or November 18 at the latest, and wrote, "It is required that I review and contribute to each one as needed to turn in on November 22." Appellant responded that he understood. On November 16, appellant submitted program reviews for theater and cinema; the next day, Paulsen asked appellant to correct and resubmit the program reviews. Appellant admitted that he did not respond until after the expiration of the November 22 submission deadline.
In his appellate briefing, appellant notes that Paulsen did not mention, in this email, her November 22 deadline for submitting the program reviews, which he refers to as a "nonexistent" deadline. He does not mention Paulsen's November 6 email identifying the deadline, or his response to it.
On November 7, 2013, according to appellant's declaration, Allen "verbally attacked" him in relation to the death of a chicken that had been used (among several other animals) in the cemetery play. Appellant declared, "Allen became irate, began to yell and point his finger at me so close that it made physical contact with the palm of my hand. Allen then stated to me 'you have been lucky but your luck is about to run out.'" The trial court sustained an objection to a portion of appellant's declaration stating that Allen exhibited "a definite tone of discriminatory intent . . . because his criticisms did not otherwise justify his tirade," on the grounds that it constituted improper lay opinion and was made without foundation or personal knowledge.
Appellant filed a grievance alleging that during the confrontation regarding the chicken, Allen engaged in "ad hominem attacks, verbal abuse, humiliation, intimidation and threats both direct and implied" in violation of "Article 5 Collegiality in the Workplace, Nondiscrimination and Non-Reprisal." He did not allege that Allen expressed or was motivated by racial animus. At a "person most qualified" deposition, a District representative testified that three people were interviewed and the Vice Chancellor found Allen's conduct was not substantiated to be in violation of the cited article.
D. Appellant's Tenure Denial and Termination
Appellant's tenure review committee (then consisting of Paulsen, Stage, Milke, Daly, and Fenton) completed his final evaluation on November 21, 2013, and recommended that he be denied tenure. The committee commented, "[M]any of the areas of needed improvement in the past evaluations have reoccurred during this fourth year evaluation period." It rated appellant "Needs to Improve" in 12 categories. In support of these ratings, the committee cited, inter alia, the following incidents described above: (1) appellant's scheduling of office hours at a time that conflicted with a committee's standing meeting, in disregard of Paulsen's advice; (2) appellant's authorization of work by Wired Studios before a contract was approved, despite the committee's belief that a specialist had previously explained the contracting process to appellant in detail; (3) appellant's rejection of Stage's recommended students in favor of hiring Wired Studios, "which in the end caused contractual problems"; (4) appellant's failure to respond to Paulsen's letter regarding the Wired Studios and cooperative education issues, and to her subsequent letter following their meeting with Allen and Barbato; (5) appellant's perceived failure to accept responsibility for his actions during that meeting; (6) appellant's response to Paulsen that a parental advisory was not his call, which the committee interpreted as a deflection of responsibility; (7) appellant's preparation of a syllabus that waived a required course paper for any student who participated in the cemetery play; (8) appellant's unapproved cancellation of one of his classes in connection with the cemetery play; (9) appellant's failure to timely request approval for weekend use of campus facilities; and (10) appellant's failure to collect and submit field-trip waivers for the cemetery photo shoot.
The 12 categories were: (1) interacting or communicating with peers; (2) accepting constructive criticism well; (3) making appropriate contributions to his discipline and department and assuming an appropriate share of faculty responsibilities; (4) making appropriate contributions to the college by serving effectively on "committees, projects, special assignments, etc."; (5) developing and disseminating course syllabi consistent with appropriate rules; (6) maintaining adequate and appropriate records; (7) participating in the Student Learning Outcomes Assessment Cycle; (8) promoting active involvement of students in learning activities; (9) using class time efficiently; (10) demonstrating sensitivity in working with students with diverse backgrounds and needs; (11) teaching course content "that is appropriate to the official course outline of record congruent with standards set by the discipline"; and (12) providing a positive learning environment for all student populations.
In January 2014, Perez completed an administrative evaluation and agreed with the committee's recommendation that appellant be denied tenure. Perez identified the basis for his recommendation as appellant's "uneven performance" over his four years and "the documentation during the fall of 2013 that exhibited the return to actions and behaviors" for which appellant had previously been counseled. Perez cited many of the incidents cited by the committee. As evidence of an inability to accept constructive criticism, Perez additionally cited appellant's request to Paulsen to put all communications about his performance in writing, noting that appellant had "stated he did not understand or trust verbal interaction." Appellant admitted that in completing his evaluation, Perez met with appellant twice, interviewed people appellant requested he interview, interviewed the committee members, and observed appellant in the classroom. Appellant further admitted that as a result of his evaluation, Perez concluded that appellant's "responsibilities to interact and communicate with peers, fulfilling his professional responsibilities, and participation in professional development activities were lacking."
On February 18, 2014, appellant filed a grievance challenging the committee's final review and recommendation, alleging that the committee should have included a theater professor and that the committee's evaluation lacked a factual basis. He did not allege that the committee's evaluation was motivated by his race.
In a February 24, 2014 email to Barbato, Allen wrote, "[Appellant] is a cocky little 'you know what.' As he left my office with Fernando just now, he gave me a smurk [sic] and told me 'good luck.'" At his deposition, Allen testified that he did not recall what he meant by "'you know what,'" but that the phrase could not have been a reference to appellant's ethnicity "because [Allen] would not use that language."
On February 27, 2014, Allen denied appellant's grievance challenging the committee's final review and recommendation, on the grounds that the grievance was untimely and that the committee had complied with contractual requirements. For the same reasons, Perez subsequently denied appellant's appeal of the denial.
On March 5, 2014, a Vice Chancellor of Human Resources notified appellant in writing that the Board of Trustees had decided not to grant him tenure for the reasons cited in the committee's final review and Perez's administrative evaluation. This decision amounted to a decision to terminate appellant, effective June 30, 2014.
E. Reactions to Appellant's Tenure Denial and Termination
In a December 4, 2013 email to Paulsen, a student (whose identity was redacted on privacy grounds) opined that appellant deserved to be recommended for tenure. The student praised appellant's teaching and drama-club work and asserted, without elaboration, "He has not violated any school codes; in fact, he has excelled at them."
Samantha Jaffray, a former LAMC student, declared, "It appeared that discrimination against [appellant] and against Chicana/Chicano studies was behind the [termination] decision." She opined that the atmosphere at LAMC was hostile toward Chicano Studies, citing a 1997 letter signed by Milke and other members of LAMC's faculty and administration "taking the position against a full time Chicano studies department." She further declared that she and many other students had organized to advocate a reversal of appellant's termination, which had been the subject of many local newspaper articles.
The trial court sustained an objection on hearsay, relevance, and authentication grounds to the 1997 letter signed by Milke and others. In the letter, the signatories opposed a then-pending proposal to create a full-time Chicano Studies position at LAMC. They wrote that "[i]t would be ideal (and equitable) to offer Chicano Studies, Asian Studies, and Black Studies," but proposed that the college instead focus its "scant" financial resources on an Ethnic Studies program that would make use of existing faculty and courses, including two Chicano Studies courses and two "Chicano history" courses.
The court also sustained a hearsay objection to an April 2014 newspaper article submitted by appellant. According to the article, students were protesting appellant's tenure denial, as well as poor transfer and graduation rates, alleged retaliation against a student activist, and filthy bathroom facilities. The article reported, without elaboration or attribution, that appellant had been "criticized for producing Latino themed productions . . . ." It further reported that an anonymous "insider" at LAMC had opined that appellant had been "'doomed from the beginning'" and "punished for taking initiative," explaining, in part, "'He is creative, innovative and isn't afraid to speak up. He has courage and that's threatening to the group who have held on to power at Mission College. [¶] . . . [Appellant] just rolled up his sleeves and started producing without asking for permission. If he hadn't, he would've been criticized for not producing.'" Neither this "insider" nor any other person quoted in the article attributed the tenure denial to appellant's race.
Norma Ramirez, a former LAMC student and Chicano community activist married to a counselor at LAMC, declared that in May 2014, during a speech she delivered when her husband received an award from LAMC's Chicano Studies department, she opined that appellant was denied tenure because of his race. She did not claim personal knowledge of the committee's or Perez's stated reasons for recommending that appellant be denied tenure. She did describe past events that informed her opinion: (1) in 1994, she noticed "pervasive anti-Chicano sentiment" at LAMC; (2) in "the late 1990s," LAMC faculty member Larry Andre made anti-Chicano statements to her and her husband, including the following remark: "'Look my child, we are not going to permit this college to become a Mexican college'"; and (3) in 2010, several non-Chicano LAMC faculty members made derogatory comments about traditional altars she had placed on campus for Dia de los Muertos, including a comment that the altars had a repugnant smell. There is no evidence in the record that Andre remained an LAMC faculty member at the time of appellant's tenure denial (some 15 years after his alleged remark), or that he had any opportunity to influence the tenure review process. Nor is there any evidence identifying the faculty members who allegedly disparaged the traditional altars. Ramirez did not elaborate on the anti-Chicano sentiment she claimed to have perceived in 1994.
Also without elaboration, appellant declared that there was a "general atmosphere among [LAMC's] faculty and administrative staff of anti-Latina/Hispanic/Chicano sentiment"; that he endured insulting and "racially prejudicial" affronts from many LAMC employees; and that it was "a matter of public outcry" that LAMC was "racially biased against Chicanos and their culture." The trial court sustained objections to these portions of appellant's declaration on the grounds that they constituted improper lay opinion and were made without foundation or personal knowledge.
F. Proceedings Below
Appellant filed the original complaint in this action in October 2015 and the operative, third amended complaint in July 2016. The operative complaint named only the District as a defendant and brought only one cause of action, alleging the District terminated appellant on the basis of his race (Chicano or Mexican) in violation of FEHA. The trial court (Judge Barbara A. Meiers) sustained a demurrer to the operative complaint on the ground that it was time-barred, but this court reversed that ruling and remanded for further proceedings. (Aviles-Rodriguez v. Los Angeles Community College Dist. (2017) 14 Cal.App.5th 981, 984.)
In July 2018, the District filed a motion for summary judgment. The District admitted that appellant had been an adequate instructor and popular with some students. However, it argued that in his fourth year, as reflected in the tenure review committee's final evaluation, appellant had reverted to conduct addressed in previous evaluations and "demonstrated an inability or unwillingness to follow Board rules, accept guidance and criticism, and work within the processes set by the college." It argued its evidence of these nondiscriminatory reasons for appellant's termination shifted the burden to appellant to show the reasons were pretextual or to identify other evidence raising a reasonable inference that the termination was racially discriminatory. It did not challenge appellant's ability to meet his burden to establish a prima facie case.
In opposition to the District's motion, appellant treated the reasons stated by his tenure review committee as the District's proffered reasons for his termination, and argued those reasons were pretexts for racial discrimination. Appellant also argued that the District had violated its discovery obligations in several ways, warranting denial of the District's motion or a continuance to allow appellant to pursue information that the District had withheld. Appellant did not argue that the District's withholding of any information would permit a reasonable jury to draw any inference adverse to the District.
The trial court (Judge Samantha P. Jessner) continued the summary judgment hearing to enable appellant to pursue additional discovery. In a supplemental brief, appellant noted that he had taken Fenton's deposition, that he had taken further depositions of Paulsen and Daly, and that he was unable to take Allen's further deposition. Appellant stated that he did not wish to assert any additional facts, and that he "[stood] on" his original opposition. He nevertheless, without leave of court, filed a second supplemental brief requesting another continuance to pursue additional discovery.
It appears that the trial court had denied appellant's motion to compel Allen's further deposition due to a service defect, and that appellant neglected to correct the defect and file a renewed motion.
At the outset of the summary judgment hearing, the trial court gave a tentative ruling in the District's favor. Appellant's counsel observed that the District bore the burden of proffering a nondiscriminatory reason for the termination, and -- without claiming the District had failed to proffer such reasons -- argued that "under the circumstances of this case pretext is demonstrated by . . . the inherent inappropriateness of the reasons given." Focusing on the tenure review committee's concern that appellant failed to collect field-trip forms for the cemetery photo shoot, as well as Paulsen's suggestion for a parental advisory, he argued, "They are going to deny him tenure because he put on a play at the cemetery. That's what it comes down to." He cited the 1997 letter signed by Milke as evidence that the committee members were part of a "last bastion of non-Hispanics" who were resistant to the growing majority of Hispanic students at the school. He mischaracterized the evidence that in December 2010, Stage told appellant "'You are not going to fucking come in here and take over,'" asserting that Stage had said, "You people are not taking over here." (Italics added.) He noted that Allen, too, had "verbally attacked" appellant, and characterized Allen as the "orchestrator" of the tenure denial. The District's counsel submitted on the court's tentative ruling in the District's favor.
The court adopted its tentative ruling and granted the District's motion for summary judgment. It denied appellant's request for an additional continuance on the grounds that the request was procedurally improper and that appellant had not been diligent in pursuing discovery. It reviewed the evidence concerning the tenure review committee's and Perez's evaluations -- including the committee's finding of "significant regression" in appellant's fourth year -- and concluded that the District had met its burden to proffer nondiscriminatory reasons for the tenure decision. It then concluded that appellant had failed to adduce any evidence supporting a rational inference that appellant's race was the true motive for the tenure decision.
Appellant timely appealed the judgment.
DISCUSSION
Appellant contends the trial court erred by (1) sustaining various objections to his proffered evidence; and (2) granting the District summary judgment on his sole cause of action, in which he alleged the District violated FEHA by terminating his employment because of his race. We address these contentions together.
A. Principles
1. Summary Judgment and Related Evidentiary Rulings
"A defendant's motion for summary judgment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law." (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003 (Kahn), citing Code Civ. Proc., § 437c, subd. (c).) Where the plaintiff would have the burden of proof by a preponderance of the evidence at trial, the defendant may establish the absence of a triable issue by "present[ing] evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true" or by "presenting evidence that the plaintiff 'does not possess and cannot reasonably obtain, needed evidence.' [Citation.]" (Kahn, supra, at 1003.) Evidence that would be inadmissible at trial cannot defeat summary judgment. (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 543.)
We review a grant of summary judgment de novo. (Kahn, supra, 31 Cal.4th at 1003.) Nevertheless, as the parties agree and as the weight of authority provides, we review the trial court's evidentiary rulings for abuse of discretion. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2019) ¶ 8:168.) A trial court abuses its discretion only when its ruling exceeds the bounds of reason. (Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 199.) "[A]n erroneous evidentiary ruling requires reversal only if '"there is a reasonable probability that a result more favorable to the appealing party would have been reached in the absence of the error."'" (D.Z. v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 210, 231.)
2. Discrimination
FEHA prohibits an employer from discharging any person from employment -- or otherwise discriminating against the person in terms, conditions, or privileges of employment -- because of the person's race. (Gov. Code, § 12940, subd. (a).) To establish an employer's liability for race discrimination, a plaintiff must show his race was a substantial motivating factor in the challenged employment decision. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 231-232; Cal. Code Regs., tit. 2, § 11009, subd. (c).)
"In analyzing claims of discrimination under FEHA, California courts have long used the three-stage burden-shifting approach established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 . . . ." (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1181 (Husman).) The three stages of this burden-shifting approach are: (1) the plaintiff's burden to establish a prima facie case by providing evidence that (a) he had a protected characteristic; (b) he was qualified for his position or performed competently in it; (c) he suffered an adverse employment action; and (d) his protected characteristic motivated the action; (2) the employer's burden to proffer a nondiscriminatory reason for the action; and (3) the plaintiff's burden to show that the employer's proffered reasons are pretexts for discrimination or to produce other evidence of a discriminatory motive. (See ibid.)
Any proffered reason unrelated to the plaintiff's protected characteristics -- even an unfair reason -- suffices to shift the burden to the plaintiff. (See Slatkin v. Univ. of Redlands (2001) 88 Cal.App.4th 1147, 1150, 1157-1160 (Slatkin) [treating "academic politics" as university's proffered reason for Jewish plaintiff's tenure denial and affirming summary judgment in university's favor, where evidence showed several people involved in tenure decision were "prejudiced against her as a matter of academic politics," but trial court properly excluded most of plaintiff's proffered evidence of anti-Semitic animus and remaining evidence was insufficient to raise triable issue of material fact]; cf. Diego v. City of Los Angeles (2017) 15 Cal.App.5th 338, 342-344 (Diego) [reversing jury verdict holding city liable for discrimination against Hispanic police officers, where jury implicitly based verdict on finding that plaintiffs were treated unfairly because of political concerns, not because of their race].) Indeed, a mere "personal grudge" suffices. (Slatkin, supra, at 1157.)
Evidence that raises only a weak suspicion of discrimination is insufficient to defeat summary judgment. (See Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 868; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 369-370.)
3.Analysis
We assume arguendo that the evidence before the trial court established triable issues regarding each element of appellant's prima facie case (which the District did not dispute), shifting the burden to the District to proffer nondiscriminatory reasons for his termination. (See Husman, supra, 12 Cal.App.5th at 1181.) Though appellant argues on appeal that the District failed to adequately proffer nondiscriminatory reasons, he forfeited that argument by failing to raise it in the trial court. (See Jackpot Harvesting Co., Inc. v. Superior Court (2018) 26 Cal.App.5th 125, 154-155 (Jackpot) [general rule that arguments not raised in trial court are forfeited on appeal applies equally to summary judgment appeals].) Thus, appellant bore the burden of identifying admissible evidence from which a reasonable jury could conclude that the District's proffered reasons were pretexts for discrimination, or other admissible evidence of discriminatory motive from which a reasonable jury could conclude that appellant's termination was substantially motivated by his race. (See Husman, at 1181.) The trial court concluded that appellant failed to meet this burden. For the reasons stated below, we agree.
For the same reason, appellant has forfeited his arguments that a reasonable jury could draw adverse inferences from the District's withholding of information in discovery. (See Jackpot, supra, 26 Cal.App.5th at 154-155.) Having forfeited those arguments, appellant cannot demonstrate prejudice from the trial court's alleged error in sustaining objections to portions of his counsel's declaration purporting to describe the District's redacting of documents and failing to produce a privilege log.
Nor can appellant demonstrate prejudice from the court's alleged error in sustaining objections to portions of his declaration and his counsel's declaration quoting from or paraphrasing the contents of deposition transcripts and exhibits. For instance, Allen acknowledged at his deposition that LAMC is a "'Hispanic-serving institution'" (without objection), and appellant's counsel declared that Allen "admitted" this fact at his deposition. Though appellant protests the court's exclusion of his counsel's description of Allen's testimony, he concedes there is no indication in the record that the court disregarded the testimony itself, or any other quoted or paraphrased evidence.
1. Pretext
Appellant failed to raise a triable issue of material fact regarding whether the District's proffered reasons were pretextual. There is strong evidence that the committee members' and President Perez's reliance on those reasons was genuine. First, appellant admitted many facts underlying the proffered reasons, including the facts that: (1) Paulsen told appellant not to schedule office hours that conflicted with committee meetings, and understood that he nevertheless did so; (2) Paulsen believed appellant had authorized work by Wired Studios without an approved contract; (3) Paulsen believed appellant failed to take responsibility for his actions in his emails concerning the cooperative education idea that had been put on hold; (4) appellant never responded to Paulsen's email reiterating a request from Allen to respond to Paulsen's earlier emails in a manner outlining acceptance of his responsibilities; (5) appellant prepared a syllabus waiving a required course paper for any student who participated in the drama club's cemetery play; (6) Paulsen received a report that appellant had canceled a class to attend a production of the cemetery play; and (7) a District administrative regulation provided that no persons could attend a student-club field trip without signing waivers, which appellant admittedly did not collect before taking drama-club students to the cemetery for a photo shoot. Second, though appellant argues that the committee intentionally induced his purported failings in order to set him up for tenure denial, he fails to explain how that theory is consistent with the committee's delivery of an entirely favorable third-year review. Finally, appellant admitted that President Perez eventually concluded, after conducting interviews of appellant, the committee members, and others, that appellant's "responsibilities to interact and communicate with peers, fulfilling his professional responsibilities, and participation in professional development activities were lacking." Perez had demonstrated independent judgment by disagreeing with some of the committee's second-year findings, and appellant has not accused Perez of racial animus.
The committee's comments in support of its favorable third-year review reflected concern for the same performance areas emphasized in its unfavorable reviews, viz., appellant's work with Paulsen and his adherence to college protocol. Though Fenton joined the committee between its favorable third-year review and its unfavorable fourth-year review, appellant has not accused Fenton of fabricating pretextual reasons for the tenure denial or of exhibiting racial animus.
We reject appellant's principal contention in the trial court, which he continues to urge on appeal: that the District's proffered reasons were facially insufficient to motivate the District to deny him tenure. The contention is based largely on misrepresentations of the District's proffered reasons. For instance, the committee expressed concern about appellant's disregard for Paulsen's advice not to schedule a conflict between his office hours and a committee meeting, which appellant mischaracterizes as a concern about appellant's arriving late to a single meeting. The committee also expressed concern about appellant's multiple failures to respond to communications related to his performance, which appellant mischaracterizes as a concern about appellant's failure to send a single reply email. Finally, the committee noted that appellant entered an unauthorized contract and received related counseling in his first year, and expressed concern that he nevertheless presented an invoice from Wired Studios without an approved contract in his fourth year. Appellant mischaracterizes this concern as limited to the first-year contract.
To the extent appellant accurately characterizes the proffered reasons, his challenges to them amount to complaints that they are unfair, which, even if true, is immaterial. (See Slatkin, supra, 88 Cal.App.4th at 1150, 1157-1160; Diego, supra, 15 Cal.App.5th at 342-344.) Though the patent absurdity of a proffered reason might itself be evidence that the reason was pretextual, no reasonable jury could find any of the reasons stated by the committee or Perez to be patently absurd. Appellant quibbles with the instructions he received from Paulsen concerning the requirement to collect waivers for student-club field trips, but he admitted the requirement was set forth in an administrative regulation. It was not absurd for the committee to believe appellant had adequate notice of the requirement. Similarly, though appellant argues it was "plainly unfair" for President Perez to fault him for requesting that all communication about his performance be in writing, appellant contemporaneously explained that request by insinuating, without elaboration, that Paulsen had repeatedly misinterpreted past interactions and that he expected her to continue doing so. It was not absurd for Perez to view appellant's request as evidence of an inability to accept constructive criticism. We conclude that no reasonable jury could find the District's proffered reasons were pretextual on the ground that they were facially insufficient to motivate the tenure decision.
Nor could a reasonable jury find the District's proffered reasons were pretextual on the ground that the District failed to add a theater professor to appellant's tenure review committee, regardless of whether the omission violated a bargaining contract. As the trial court aptly observed, "the failure to comply with the [contractual] procedures, standing alone, is immaterial to the issue of discriminatory animus." Appellant identified no evidence regarding why the District failed to add a theater professor. Though appellant asserts that he was "singled out" in this regard, he identifies no evidence of disparate treatment. Thus, no reasonable jury could infer that the omission of a theater professor from the committee was intended to facilitate the committee's fabrication of pretextual criticisms or reliance on anti-Chicano animus. (See Diego, supra, 15 Cal.App.5th at 359-360 [denial of off-duty work permits to Hispanic police officers did not support inference of racial discrimination, even if it violated their department's policy or regulations, where officers provided no evidence of disparate treatment or other evidence suggesting reason for denial was their race]; Slatkin, supra, 88 Cal.App.4th at 1159 [evidence that university procedures were violated supported reasonable inference that several decision makers were "'prejudiced'" against tenure candidate, but no reasonable juror could conclude that their "'prejudice'" was based on candidate's religion rather than academic politics].)
Appellant faults the District for refusing to allow discovery regarding other professors' tenure review processes, but he failed to move to compel that discovery or to request sanctions for the District's withholding of it. The trial court granted appellant one continuance to pursue additional discovery and denied him a second continuance, finding he had not been diligent. Appellant does not challenge that finding or the denial of a second continuance.
In sum, in the absence of substantial evidence of a racially discriminatory motive for the termination decision (discussed below), no reasonable jury could find the District's proffered reasons were pretexts for racial discrimination.
2. Discriminatory Motive
A reasonable jury could find that each of the following nine decision makers had the opportunity to substantially influence the decision to deny appellant tenure: President Perez, Vice President Allen, the five final members of appellant's tenure review committee (Paulsen, Stage, Milke, Daly, and Fenton), and the committee's two former members (Swerdlow and Atkinson-Alston). (See Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 665-666 (Clark) [discriminatory evaluation at any stage of tenure review process could reasonably support finding that tenure decision was discriminatory, where evaluators at each stage considered previous evaluators' reports].) Appellant failed to identify admissible evidence raising a triable issue regarding whether any one of these nine decision makers harbored anti-Chicano animus. Indeed, he has not even accused Perez, Daly, Fenton, or Atkinson-Alston of harboring such animus. Though he claims to have identified substantial, admissible evidence of such animus on the part of the other five decision makers, we disagree.
There is no triable issue regarding whether Paulsen, the chair of the tenure review committee, harbored anti-Chicano animus. Appellant claims that Paulsen exhibited racial animus by stating, in an email, that he had endangered his job security by expressing concerns about racial discrimination. But as the trial court accurately noted, Paulsen's email said no such thing; instead, it referenced appellant's job security only to memorialize appellant's own expression of concern that Paulsen was unfairly scrutinizing him in a manner jeopardizing his job security. Appellant also claims that he introduced evidence that Paulsen opposed the addition of two Chicano Studies courses to the schedule for one semester. As the trial court observed, however, no such opposition appeared in the portion of Paulsen's email that appellant submitted in opposition to the District's motion (rendering it immaterial whether the court properly excluded the email from evidence).
With respect to Milke, too, appellant claims he identified admissible evidence that Milke exhibited anti-Chicano animus by expressing opposition to Chicano Studies courses. The trial court excluded the proffered evidence, viz., (1) a 1997 letter in which Milke and other faculty opposed a then-pending proposal to create a full-time Chicano Studies position, citing financial restraints and the perceived sufficiency of existing courses in Chicano Studies and other subjects; and (2) a July 2013 email to Allen in which Milke expressed disappointment that a new Chicano Studies course was added to the fall 2013 schedule instead of a health course, but implied she was not disappointed by the similar addition of a math course. The court nevertheless considered Milke's email and properly concluded that it raised no triable issue (implying the same proper conclusion regarding the letter). The 15-year-old letter raised no inference of racial animus; the most that could reasonably be inferred from the email is that Milke viewed Chicano Studies courses as less valuable than math courses and those in her own discipline (health). In the absence of any evidence regarding the reasons for that view, the opinion alone does not support a reasonable inference that Milke harbored anti-Chicano animus. (Cf. Gonzalez v. Douglas (D. Ariz. 2017) 269 F.Supp.3d 948, 964-972 [reviewing extensive evidence to support conclusions that enactment and enforcement of law to eliminate Mexican-American Studies program were motivated by anti-Mexican-American animus].)
Nor is such an inference supported by Milke's expression of amusement in response to Allen's reference to the film La Bamba (a Ritchie Valens biopic). After Milke forwarded Allen a third party's report that students had complained of being expected to eat outside like dogs, Allen quoted lines from La Bamba in which a character compared himself to a dog waiting to eat leftovers. The trial court, after noting that it had excluded this email exchange on authentication grounds, properly concluded that in any event, no reasonable jury could interpret Allen's email to refer to appellant or another Chicano man as Ritchie Valens. Indeed, no evidence in the record suggests that the unidentified instructor who accompanied the students was Chicano.
Neither Allen's La Bamba reference nor any other evidence raised a triable issue regarding whether Allen harbored anti-Chicano animus, despite Allen's expressions of hostility toward appellant on two occasions. First, about two weeks before the committee completed its final evaluation, Allen allegedly "verbally attacked" appellant in relation to the death of a chicken that had been used in the cemetery play. But Allen's criticism was facially unrelated to appellant's race and to any Chicano themes in the cemetery play. Even appellant, in his grievance regarding the incident, did not allege that Allen had expressed or been motivated by racial animus. Though appellant later declared that Allen had exhibited a "tone of discriminatory intent" during the confrontation, he identified no factual basis for his belief that Allen's tone, however hostile he may have perceived it to be, was motivated by race or another protected characteristic. Thus, he has not shown the trial court abused its discretion in sustaining an objection to that portion of his declaration on the ground that it lacked foundation. (See Diego, supra, 15 Cal.App.5th at 355-356 & fn. 6 [plaintiffs' beliefs that they would have been treated differently had they been of different race were "simply speculation, or, at best, conclusions -- not competent evidence from which a jury could find discrimination"]; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1119-1121 (Guthrey) [trial court properly excluded declarations of plaintiff and coworkers asserting they had been discriminated against, where declarations were "purely conclusional" rather than based on "evidentiary facts"].)
Second, in February 2014 -- after appellant had filed his grievance against Allen -- Allen informed Barbato that appellant had recently smirked while wishing him good luck, and called appellant "a cocky little 'you know what.'" But in the absence of any evidence that Allen had ever used racially disparaging language, nothing but impermissible speculation could support an inference that he used "'you know what'" as a substitute for such language. Thus, though a reasonable jury could find that Allen held a "personal grudge" against appellant, it could not find that grudge to be racially motivated. (See Slatkin, supra, 88 Cal.App.4th at 1157.)
As the trial court noted -- and contrary to appellant's representation -- Allen denied that his use of the phrase "'you know what'" could have been a reference to appellant's race. Even if a jury discredited Allen's testimony, it could not rely on his discredited denial as affirmative evidence. (See Wise v. DLA Piper LLP (US) (2013) 220 Cal.App.4th 1180, 1192.)
For similar reasons, no reasonable jury could find that Stage or Swerdlow harbored anti-Chicano animus. Appellant purports to have identified evidence of such animus in a pair of similar comments the two professors made: (1) in December 2010 (before the committee delivered any of its evaluations), Stage allegedly yelled at appellant and said to him "'You are not going to fucking come in here and take over'"; and (2) in October 2011 (between appellant's second-year counseling memorandum and second-year evaluation), Swerdlow insulted appellant and said to him, "'You think you can come in here and take over the place.'" As the trial court noted, the quoted statements made "no reference or inference to race." Again, only impermissible speculation could support an inference that Stage or Swerdlow was implicitly referring to appellant's race, in the absence of evidence that they had otherwise expressed or exhibited anti-Chicano animus.
Rather than identify any such evidence, appellant relies on the declaration of former LAMC student and community activist Norma Ramirez, arguing Ramirez demonstrated that "the 'you' who was not to be allowed to 'take over' Mission College was not just [appellant], it was Chicanos." Not so. Ramirez did not purport to interpret Stage's, Swerdlow's, or any other decision maker's comments or actions. She did opine that appellant's tenure denial was racially discriminatory, but she claimed no personal knowledge of the decision makers' motivations or of their stated reasons. Thus, Ramirez's opinion that the decision was racially discriminatory was inadmissible for lack of foundation. (See Diego, supra, 15 Cal.App.5th at 355-356 & fn. 6; Guthrey, supra, 63 Cal.App.4th at 1119-1121; cf. People v. Jones (2017) 3 Cal.5th 583, 601-602 [trial court acted within its discretion in excluding lay witness's opinion that defendant was not active gang member, where trial court found witness's personal observations merely confirmed impressions gathered from secondhand sources rather than providing independently sufficient basis for opinion].)
Ramirez claimed personal knowledge only of an alleged "anti-Chicano sentiment" at LAMC two decades before the tenure decision, and of remarks by professors who, so far as the record shows, had no opportunity to influence the decision: (1) a racist remark allegedly made by Larry Andre some 15 years before the decision; and (2) derogatory comments about traditional altars made by unspecified faculty members in 2010, around the beginning of appellant's employment at LAMC.
For the same reason, (1) Jaffray's and another student's opinions regarding the tenure decision were inadmissible; and (2) the trial court did not abuse its discretion in sustaining objections to appellant's opinions that Stage's remarks, other unspecified "affronts," and the general atmosphere on campus were racially discriminatory.
Nor did the court abuse its discretion in sustaining a hearsay objection to the newspaper article offered by appellant for the truth of its statements. (See People v. Waidla (2000) 22 Cal.4th 690, 717 ["Hearsay is evidence of a statement made by a declarant outside of court and offered in court for its truth," and is generally inadmissible].) Even had the article been admitted, it would not have supported a reasonable inference that appellant's termination was racially discriminatory. On the contrary, the article reported only one allegation concerning the reasons for appellant's termination: an anonymous allegation that appellant was punished for being outspoken and for taking the initiative, including by "'producing without asking for permission.'" This anonymous allegation was consistent with the committee's stated concerns about appellant's perceived failure to consult Paulsen in advance of his actions and to defer to existing protocol. At worst, it was an allegation of the type of "prejudice[] . . . as a matter of academic politics" that is not actionable under FEHA. (Slatkin, supra, 88 Cal.App.4th at 1150.)
The cases on which appellant relies are distinguishable. In two, the reviewing courts relied on admissible evidence of discriminatory motive unlike anything appellant submitted. (See Pantoja v. Anton (2011) 198 Cal.App.4th 87, 93-98, 109-119 [trial court's erroneous exclusion of evidence required reversal of defense verdict on sexual harassment and discrimination claims, where excluded evidence included multiple former employees' proffered testimony that sole decision maker had sexually harassed female employees, including by touching their legs and buttocks, leering, and making sexual comments]; Clark, supra, 6 Cal.App.4th at 643, 652, 666-670 [substantial evidence supported FEHA verdict in favor of Black professor denied tenure; reviewing court noted that its far-ranging research into tenure-denial cases had revealed none involving discriminatory remarks so "blatant" as those in case before it, including professor's alleged remark that he was unsure how he would feel working with a Black man].) In another two, there were triable issues regarding whether the employers' proffered nondiscriminatory reasons -- viz., the plaintiffs' tardiness and absenteeism -- were themselves discriminatory because the plaintiffs' tardiness and absenteeism were caused by their protected disabilities. (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 595-596; Humphrey v. Mem'l Hosps. Ass'n (9th Cir. 2001) 239 F.3d 1128, 1139-1140.) Here, there is no evidence that any of the facts underlying the District's proffered reasons were caused by or otherwise intertwined with appellant's race.
In sum, the trial court did not err in granting the District summary judgment. Viewed in the light most favorable to appellant, the admissible evidence at most supported reasonable inferences that Allen, Stage, and Swerdlow disliked appellant. It did not support a reasonable inference that their dislike was related to appellant's race. It did, on other hand, support a reasonable inference that their dislike was related to the performance deficiencies proffered by the District as the reasons for appellant's termination. The trial court properly concluded that no reasonable jury could find that those reasons were pretexts for racial discrimination, or otherwise find that appellant's termination was substantially motivated by his race.
One month before Allen's altercation with appellant in connection with the death of a chicken used in appellant's play, Allen received emails regarding appellant's failure to collect field-trip forms for an event related to the play and confided to Paulsen that he was "frustrated" with appellant. Swerdlow's alleged insult concerning appellant's perceived intent to "'take over'" occurred during a meeting at which, according to her memorializing email, appellant reported that he had sought financial support without informing Swerdlow or Paulsen, notwithstanding their previous counseling against such behavior. Stage's similar alleged insult (bereft of context in the record) was soon followed by appellant's first-year evaluation finding appellant needed improvement in his interactions with peers. Echoing that finding, appellant's improvement plan implemented after his second year addressed his interactions with peers, and the committee's and Perez's recommendations that appellant be denied tenure were accompanied by findings that appellant's interactions with peers were lacking.
DISPOSITION
The judgment is affirmed. The District is entitled to its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J. We concur: WILLHITE, J. CURREY, J.