Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. RCVRS088216. Martin Hildreth and Craig S. Kamansky, Judges. (Retired judges of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Dismissed as to case No. E044699. Affirmed as to case No. E045517.
Law Offices of Gloria Dredd Haney, Gloria Dredd Haney; Law Offices of Harry E. Hutchison, Jr., and Harry Earle Hutchison, Jr., for Plaintiff and Appellant.
Cummings, McClorey, Davis, Acho & Associates and Sarah L. Overton for Defendants and Respondents.
OPINION
McKinster, J.
Plaintiff and appellant, Anthony Joseph Buccheri (hereafter plaintiff), appeals from the judgment entered against him and in favor of defendant and respondent, Chaffey Community College District (hereafter Chaffey), after the trial court granted Chaffey’s motion for summary judgment on plaintiff’s complaint for damages based among other things on unlawful termination of employment, age and sex discrimination, and retaliation. Plaintiff contends in this appeal that he presented evidence in the trial court that created a triable issue of material fact with respect to each of his alleged claims against Chaffey. We disagree and therefore will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The pertinent allegations of plaintiff’s third amended complaint, the operative pleading in this appeal, are that plaintiff was employed by Chaffey from 1996 to 2003 in a part-time, short-term position originally as a “Disabled Student Programs and Services Instructional Assistant I/Vocational, Developmental Disabilities,” and ultimately as an “Instructional Assistant/Job Coach Workability III.” As plaintiff alleged in his complaint, the term “short-term employee” is defined in Education Code section 88003 and “‘means any person who is employed to perform a service for the district, upon the completion of which, the service required or similar services will not be extended or needed on a continuing basis. Before employing a short-term employee, the governing board, at a regularly scheduled board meeting, shall specify the service required to be performed by the employee pursuant to the definition of “classification” in subdivision (a) of Section 88001, and shall certify the ending date of the service. The ending date may be shortened or extended by the governing board, but shall not extend beyond 75 percent of a school year. [¶] “Seventy-five percent of a college year” means 195 working days, including holidays, sick leave, vacation and other leaves of absences, irrespective of number of hours worked per day.’”
As a result of successful demurrers to plaintiff’s previous pleadings, only Chaffey and Sharlene Smith remained as defendants by the time Chaffey filed its summary judgment motion. Smith was named as a defendant in only one of the remaining causes of action, plaintiff’s claim based on alleged retaliation in violation of Government Code section 12940, subdivision (h). In his opening brief, plaintiff concedes that he cannot prevail on the claim against Smith. As a result of that concession only Chaffey remains a party to this appeal.
Plaintiff alleged that Chaffey terminated his employment on December 18, 2003, and later “selected a younger female employee who had the same position as plaintiff, whom plaintiff trained, to remain.” Plaintiff was 63 years old at the time. Plaintiff further alleged that Chaffey should have paid him more than what he was paid at the time Chaffey terminated his employment; that plaintiff worked more hours than he should have worked as a short-term employee hired to work less than 75 percent of the year; that Chaffey made plaintiff under-report his hours on his time records; that plaintiff “complained” by “sen[ding] an e-mail to Sacramento” on May 23, 2003, that he was required to falsely report his hours; that plaintiff also “complained” that he was underpaid, that he had to wash his supervisor’s van, and was “made to clean and do the job of the janitorial staff,” none of which were part of his job duties, and “female employees were not asked to do the same.” Plaintiff also alleged that “[o]n July 24, 2003, plaintiff sent an e-mail to Paul Gomez, a member of the Governing Board for [Chaffey], complaining about [Chaffey’s] potential misuse of funds.” Chaffey, according to plaintiff, “elected to replace [plaintiff] with two women under the age of 40 years,” even though plaintiff never received a negative evaluation while employed by Chaffey.
Plaintiff’s complaint is lengthy and includes many allegations, some of which are purported facts, others of which are statements of law or mere conclusions either of fact or law. We recount the pertinent factual allegations, to the extent we are able to discern them, in our discussion of Chaffey’s motion for summary judgment.
Based on the above allegations, plaintiff asserted in his first purported “claim for relief,” that he was entitled to damages because Chaffey violated state law by terminating his employment based on his age. In his second claim for relief, plaintiff alleged Chaffey violated state law because it terminated his employment based on his sex. Plaintiff’s fourth claim for relief alleged Chaffey violated state public policy by discriminating against him based on his age. Plaintiff alleged in his sixth claim for relief that Chaffey violated the California Education Code which, according to plaintiff, creates either an express or implied contract of employment pursuant to which plaintiff’s employment could only be terminated for good cause. Plaintiff’s eighth “cause of action” alleged that Chaffey terminated plaintiff’s employment in violation of Labor Code section 1102.5 which prohibits retaliation against an employee who reports or discloses to law enforcement or a pertinent government agency that the employer has violated state or federal law. In his prayer for relief, plaintiff sought both compensatory and punitive damages from Chaffey. In addition, plaintiff sought “a permanent injunction, ordering [Chaffey] to reinstate plaintiff with back pay, reimbursement to his retirement plan, and interest in the amount of 10% per annum.”
Although plaintiff also purported to appeal the trial court’s ruling sustaining defendants’ demurrer without leave to amend as to the third, fifth, and seventh claims for relief alleged in the third amended complaint (case No. E044699), plaintiff does not address the demurrer in his opening brief. We construe that omission as an abandonment of any claims regarding the demurrer. Therefore, plaintiff’s third, fifth, and seventh claims for relief or causes of action are not at issue in this appeal.
After the trial court apparently overruled Chaffey’s demurrer to the third amended complaint, Chaffey filed its answer to that pleading, and then moved for summary judgment. Chaffey asserted in its separate statement of undisputed material facts submitted in support of that motion that plaintiff could not establish the elements of any of the claims set out in his complaint because Chaffey had not taken any improper adverse action against him. It is undisputed, Chaffey asserted, that when plaintiff was first hired in 1996, and hired again each year thereafter until December 2003, plaintiff knew his position was part time and short term. Chaffey did not hire plaintiff after the fall semester in 2003 because Chaffey had adopted a campus-wide policy that prohibited rehiring short-term workers. As a result, after 2003, Chaffey did not rehire plaintiff or any other short-term worker. Chaffey also stated that it was undisputed that Chaffey did not discriminate against plaintiff based on his age or his sex, that it did not retaliate against plaintiff, or terminate his employment in violation of public policy or the Education Code or the Labor Code. Chaffey submitted plaintiff’s deposition testimony and the deposition testimony of plaintiff’s supervisor at Chaffey, Sharlene Smith, as evidence in support of the above noted undisputed facts.
In his response, plaintiff disputed every pertinent fact set out in Chaffey’s motion except that he was 56 years old in 1996 when he was hired by Chaffey, that Sharlene Smith was his only direct supervisor, that Chaffey is a governmental agency, that plaintiff claims he exceeded the number of days allowed as a short-term worker in 1998, and that his employment ended in December 2003. Plaintiff set out what he described as additional facts that supported his position that all the other pertinent facts Chaffey cited in its summary judgment motion were disputed. Plaintiff supported his claims with citations to excerpts from his own deposition testimony, and that of Sharlene Smith and Lisa Bailey, Chaffey’s executive director of human resources who is one of the individual defendants dismissed from the litigation after successfully demurring to plaintiff’s complaint. Plaintiff also cited and submitted discovery and evidence from a lawsuit filed by Darhlene Taylor against Chaffey, and excerpts from the reporter’s transcript of a 2001 hearing in another lawsuit filed by Patricia Wangler. In her declaration, plaintiff’s attorney stated that she represented Taylor and Wangler in their respective lawsuits. Finally, plaintiff submitted his own declaration under penalty of perjury to which he appended various documents including what he described as copies of “the calendars [he] kept so that [he] could keep a true record of the number of days [he] worked,” and copies of the pay warrants he received while employed by Chaffey.
Bailey went to work for Chaffey in 2000 as its human resources director. She became executive director of human resources in 2002 and could not remember which position she held in 2003, the time pertinent to plaintiff’s complaint.
In its reply, Chaffey objected on the basis of hearsay, relevance, and lack of foundation to the Taylor and Wangler evidence, and to the documents appended to plaintiff’s declaration, The trial court granted Chaffey’s motion for summary judgment following a hearing at which the trial court stated, among other things, that the evidence it relied on was “the Third Amended Complaint, depositions of [plaintiff], Smith, Bailey, and declarations of [plaintiff] and attachments.” Plaintiff appeals from the subsequently entered judgment in favor of Chaffey.
We construe the statement as the trial court’s ruling on Chaffey’s objections to the evidence, namely that it sustained the objections to everything other than the specified items. Plaintiff does not challenge that ruling on appeal.
DISCUSSION
1.
STANDARD OF REVIEW
On appeal, we review de novo an order granting summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) The trial court must grant a summary judgment motion when the evidence shows that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar, at p. 843.) In making this determination, courts view the evidence, including all reasonable inferences supported by that evidence, in the light most favorable to the nonmoving party. (Code Civ. Proc., § 437c, subd. (c); Aguilar, at p. 843.) A defendant moving for summary judgment has the burden of producing evidence showing that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, pp. 849, 850-851, 854-855.) The burden then shifts to the plaintiff to produce specific facts showing a triable issue as to the cause of action or the defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at pp. 849, 850-851.) Despite the shifting burdens of production, the defendant, as the moving party, always bears the ultimate burden of persuasion as to whether summary judgment is warranted. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, at p. 850.)
Plaintiff argues that the trial court’s analysis is incorrect, but we will not address that assertion because it is irrelevant. Our review is de novo. Therefore, we conduct an independent analysis and in doing so consider “all the evidence set forth in the moving and opposition papers except that to which objections were made and sustained.” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65-66.)
We take issue however with the assertions of plaintiff’s attorney, Ms. Haney, that Judge Hildreth did not give her an opportunity to argue at the hearing on the summary judgment motion and was biased against plaintiff because opposing counsel apparently represented Judge Hildreth in a lawsuit that had been filed against him and other judges. As recounted below, the record does not support Ms. Haney’s claims.
To support her claim that Chaffey’s attorney, Ms. Overton, is Judge Hildreth’s attorney, Ms. Haney cites the record filed in connection with a petition for writ of mandate that is not part of the record in this appeal.
The record reveals that at the outset of the hearing on the summary judgment motion, the trial court made it clear it was not inclined to give a tentative or indicated ruling, and instead asked counsel to present their respective arguments. When pressed by Ms. Haney for a tentative ruling the judge said, “The Court is having trouble with your establishing your side of the case. [¶] I know that’s very general, doesn’t help you a whole lot, but that’s the essence of the problem.” Ms. Haney and opposing counsel then presented their respective arguments, after which the trial court gave its ruling granting Chaffey’s summary judgment motion. When Ms. Haney asked if she could respond now that the trial court had given its reasoning, the judge said, “No, ma’am. That was the Court’s ruling. It’s over.” Ms. Haney then said she had some things she wanted to state “just for the record.” The trial court responded, “You want to speak to the record? Yes?” After Ms. Haney said yes, the judge gave his permission, and then he left the bench. Despite the judge’s departure, Ms. Haney proceeded to make her record and stopped only when interrupted by the court clerk, who declared the hearing at an end when Ms. Haney said that she had one more point, which was to ask the then-absent judge whether opposing counsel was his attorney.
Her contrary claim notwithstanding, the record discloses that the trial court did give plaintiff’s attorney an opportunity to argue the summary judgment motion. The judge only left the bench after both attorneys had made their respective oral arguments. The record also does not support Ms. Haney’s claim that opposing counsel represented the judge in unspecified litigation, but even if the record supported her claim, Ms. Haney has not demonstrated that the judge was aware of the purported connection. Knowledge that Chaffey’s attorney was representing or had represented him is an essential aspect of Ms. Haney’s bias claim. Ms. Haney should have raised the issue at the outset of hearing. Instead she waited until after the judge ruled on the summary judgment motion. As a result, the record does not establish the purported connection between the trial judge and Chaffey’s attorney. Moreover, by failing to raise the issue at the earliest opportunity Ms. Haney arguably waived her claim. In any event the claim is not cognizable in this appeal.
2.
ANALYSIS
A. Age and Sex Discrimination Claims
When, as here, the plaintiff alleges employment discrimination and bases the claim on circumstantial evidence, as in this case, courts utilize a three-step process to determine whether the evidence supports an inference of discrimination or whether the moving party, in this case the employer, is entitled to judgment as a matter of law. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, 356 (Guz), quoting Code Civ. Proc., § 437c, subd. (c).) First, the burden is on plaintiff, as the employee, to establish a prima facie case of discrimination by showing “(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz, at p. 355.) If the employee makes the required prima facie showing, then the next step is that the burden shifts to the employer to set forth competent, admissible evidence to show a legitimate, nondiscriminatory reason for its action. (Guz, at p. 357.) The third and final step is that the employee “ha[s] the burden to rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred.” (Ibid.) “[A] plaintiff’s showing of pretext, combined with sufficient prima facie evidence of an act motivated by discrimination, may permit a finding of discriminatory intent, and may thus preclude judgment as a matter of law for the employer. [Citation.]” (Guz, at p. 361.)
Assuming without actually deciding that plaintiff’s third amended complaint alleges facts that establish a prima facie case of either age or sex discrimination, Chaffey demonstrated in its showing in support of its summary judgment motion that it had a legitimate, nondiscriminatory reason for its action. Plaintiff describes Chaffey’s action as termination of his employment. In fact, Chaffey did not hire plaintiff after his employment agreement ended on December 18, 2003 (the fall semester). Chaffey demonstrated in its summary judgment motion that it took that action based on a change in policy.
The evidence Chaffey submitted that supports this assertion is plaintiff’s deposition testimony in which he stated (1) he understood when he was hired in 1996 that the position was short term and that he might not be rehired from year to year; and (2) in the spring of 2003 when plaintiff asked his supervisor, Sharlene Smith, for a raise, she not only denied the request but she also told him that due to lack of funds he would probably lose his job at the end of the 2002-2003 year. Chaffey also cited excerpts from Sharlene Smith’s deposition in which she stated, in pertinent part, that Chaffey did not hire plaintiff after December 18, 2003, because Chaffey had changed its policy regarding rehiring of short-term employees. Under the new policy, short-term employees would be hired for one year only and could not be rehired.
Because Chaffey demonstrated a legitimate, nondiscriminatory reason for not rehiring plaintiff, the burden shifted back to plaintiff to rebut Chaffey’s showing by presenting evidence that raises a rational inference of discriminatory purpose. (Guz, supra, 24 Cal.4th at p. 357.) Although plaintiff’s opposition to Chaffey’s summary judgment motion is lengthy, only a small part is actually relevant. According to the relevant facts, plaintiff showed that even though he was a short-term employee, Chaffey had hired him each year from 1996 until 2003; in 2003 he was over 60 years of age; and after December 2003, Chaffey hired younger women to fill the short-term position plaintiff had previously held.
Plaintiff’s evidence does not raise a rational inference of discriminatory purpose and therefore does not rebut Chaffey’s showing that the reason for its action was that it changed its policy on the hiring of short-term employees. Plaintiff argues that Chaffey offered different explanations for its action, which if true, support an inference of discriminatory purpose. The record, however, does not support plaintiff’s assertion. Although plaintiff testified that he was told he would not be rehired due to a lack of funds, Sharlene Smith and Lisa Bailey both testified in their respective depositions that plaintiff was not hired as a short-term employee after December 2003 because Chaffey had adopted a new policy regarding short-term employees. The competent evidence does not support defendant’s claim that Chaffey offered more than one reason for not rehiring him.
The only other fact plaintiff cited in his opposing papers that supports an inference of discriminatory purpose based on either age or sex is that Chaffey hired a woman younger than plaintiff as a job coach. That fact is not inconsistent with, and therefore does not rebut, Chaffey’s showing that it had a legitimate, nondiscriminatory reason for not continuing to hire plaintiff—that it had adopted a new policy regarding short-term employees pursuant to which it would not hire such employees for more than one academic year. Because Chaffey negated an element of plaintiff’s age and sex discrimination claims, and plaintiff’s evidence does not rebut Chaffey’s showing, Chaffey is entitled to judgment in its favor on those claims.
Both in the trial court and on appeal plaintiff claimed that Chaffey hired two young women to fill the position he once held. The evidence shows that Chaffey did hire women but did not hire more than one at a time to fill the job coach position. Chaffey’s evidence supports its assertion that it had changed its practice regarding short-term employees and as a result people hired to fill short-term positions were hired only for one year.
Plaintiff asserts other claims regarding Chaffey’s motive for purportedly terminating his employment, all of which are irrelevant, and in any event are supported only by plaintiff’s subjective belief rather than facts. For example, plaintiff contends that Chaffey terminated his employment and hired younger employees so that Chaffey would not have to make contributions to the California Public Employees Retirement System. The claim is unfounded. Moreover, it is incorrect to the extent it assumes Chaffey’s obligation to pay retirement benefits depends only on the age of an employee. According to Lisa Bailey, the length of time a person has worked determines whether Chaffey must make PERS contributions on that employee’s behalf. The age of the employee is irrelevant.
To the extent plaintiff purports to allege claims of age and sex discrimination in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) based on the purported manner in which he was treated while employed, Chaffey also negated a crucial element of those claims in its summary judgment motion. To be actionable, the employee must present evidence to show that the employer discriminated against the employee with respect to personnel management decisions because of the employee’s age or sex and that the employee suffered a loss of tangible job benefits, either with respect to compensation or in the terms, conditions, or privileges of employment, as a result of sex or age-related animus. (Gov. Code, § 12940, subd. (a); Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1413-1414.)
Chaffey showed in its summary judgment motion that plaintiff based his sex discrimination claims on his belief that because he is male he was asked to do things that other employees were not asked to do. For example, in his deposition plaintiff stated that in 1997-1998, his supervisor Sharlene Smith asked him if he and his students would wash what plaintiff described as “her van,” apparently referring to the Chaffey van that Ms. Smith drove, presumably as part of her employment. Plaintiff believed this was sex discrimination because although his duties as a job coach for disabled students included showing the students how to wash their cars, they “didn’t wash personal vans” and also because in plaintiff’s opinion “it would have been much harder for a woman to wash it than me and direct the students.” In 1998-1999, plaintiff claims he was discriminated against based on his sex because Ms. Smith would “acknowledge” female employees but not him, and “[j]ust general happenings that would occur” such as someone asking him to take care of a toilet that overflowed. Plaintiff’s opposition papers are replete with similar examples of the ways in which plaintiff believes because he “never saw other employees do these things,” that he was discriminated against based on his age and sex.
Part of plaintiff’s responsibility as a job coach was to prepare students with disabilities for competitive employment by teaching them job skills.
Similarly, Chaffey showed that plaintiff based his age discrimination claim on his feeling, as set out in his deposition, that “all the people they [presumably referring to Chaffey] had hired were much younger than [plaintiff] and [plaintiff] was given the responsibilities of doing the jobs that the younger people weren’t capable of doing.” Plaintiff also said he believed it was age discrimination when he was asked by unspecified persons to do things that were not part of his job and should have been done by other Chaffey employees, such as having his students unload bundles and pallets of paper from a truck. Plaintiff also believed it was age discrimination when another employee whose name plaintiff could not recall “would take the van, consume all the gasoline, and return it empty. And [plaintiff] was expected to fill it up again.” As with the sex discrimination claim, plaintiff cited other similar examples as the basis for his age discrimination claim.
Plaintiff did not offer any other evidence in support of his sex and age discrimination claims based on purported disparate treatment while employed. The only credible evidence does not establish sex or age discrimination. It only establishes plaintiff’s subjective belief on the issue.
B. Retaliation Claim
Government Code section 12940, subdivision (h) makes it unlawful “[f]or any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because a person has filed a complaint, testified, or assisted in any proceeding under this part.” The analysis applied to plaintiff’s age and sex discrimination claims also applies here: If plaintiff establishes a prima facie case of retaliation, the burden then shifts to Chaffey to offer evidence of a legitimate, nondiscriminatory reason for its action, and then plaintiff must rebut Chaffey’s showing. (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 155.) To establish a prima facie case of retaliation in violation of Government Code section 12940, subdivision (h), plaintiff must show he engaged in a protected activity, that Chaffey took adverse employment action against him, and there was a causal link between the protected activity and the adverse employment action. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476.)
Plaintiff’s complaint incorrectly cites subdivision (f) of Government Code section 12940 as the section that prohibits retaliation. Subdivision (f) prohibits an employer from conditioning employment on the physical or mental health of an employee except where physical health is relevant to the requirements of the job.
According to his complaint, plaintiff “specifically opposed” and “complained to Smith” about being treated differently at work than female employees and younger employees. We recounted the details of plaintiff’s complaints above, in our discussion of plaintiff’s age and sex discrimination claims. Therefore, we will not recount them again here. Plaintiff alleged that Chaffey retaliated against him for that purported opposition by “denying him the opportunity and to [sic] right to hold employment at [Chaffey].”
In its summary judgment motion, Chaffey showed (1) that it did not hire plaintiff as a short-term employee after the fall semester of 2003 because its policy changed regarding short-term employees, and (2) plaintiff did not voice his complaints to anyone at Chaffey. As previously discussed plaintiff’s opposition did not rebut Chaffey’s showing of a legitimate, nondiscriminatory reason for its action, i.e., the changed policy regarding short-term employees. That conclusion controls our resolution of this issue. Moreover, Chaffey showed that plaintiff did not engage in any alleged protected activity, a showing that plaintiff also did not rebut. According to Chaffey’s evidence, namely the depositions of plaintiff and Sharlene Smith, plaintiff did not complain to Smith or any other management level employee at Chaffey that he was being treated differently than the female and younger employees.
In response to Chaffey’s showing, plaintiff asserted that he did complain about “the discrimination and even did so at [a] staff meeting.” To support that assertion, plaintiff cited his own deposition testimony in which he stated the following: in 1999-2000 he talked to fellow employees Kevin Parks and Karen Long, and at “one of the staff meetings” he “brought it up” that he did not “think it was fair” that he should have to work on Saturdays or Sundays or weeknights; in 2000-2001 he complained to Sharlene Smith about “the lack of higher pay,” which plaintiff explained meant he asked for a raise and Smith said there was no money; in 2001-2002 he “complained” to fellow employees Karen Long and Bonner Fuller that people starting out were getting paid much more than he was being paid, and they explained that everyone’s pay had been cut; and he sent an email to the California School Employee’s Association (CSEA) in May 2003 in which he complained the he was being treated differently than other employees.
The cited evidence does not show that plaintiff engaged in protected activity or opposed Chaffey’s alleged disparate treatment of him as an employee. The evidence shows that plaintiff did complain, mostly about his pay, and apparently requested raises all of which were turned down due to lack of funds. The May 2003 e-mail to CSEA, which is appended to plaintiff’s deposition and thus is included in the record on appeal, does not contain complaints about alleged discriminatory treatment. Instead plaintiff asked CSEA for help and direction for Chaffey’s part-time employees whose hours and benefits were being reduced or eliminated due to budget cuts. Plaintiff sent the same e-mail to Assemblyperson Jackie Goldberg. Plaintiff also sent an e-mail to Paul Gomez, a Chaffey board member, in which he asked about a bond measure Gomez apparently addressed at a board meeting plaintiff attended. Plaintiff “thinks” he might also have made some “comments” at the board meeting that were overheard by faculty members who were seated behind him.
Moreover, even if we were to generously and broadly construe plaintiff’s evidence, he did not demonstrate a causal link between his purported complaints and the alleged adverse employment action. With the exception of the staff meeting at which plaintiff purported to complain, plaintiff did not demonstrate that Chaffey was aware he had made any complaints about any aspect of his employment. Plaintiff cannot connect the fact that he complained at a staff meeting in 1999-2000 to Chaffey’s action in 2003 of not continuing to hire him as a short-term employee.
In short, Chaffey’s evidence negated essential elements of plaintiff’s claim based on alleged retaliation and therefore Chaffey is entitled to judgment in its favor on that claim.
C. Whistleblower Claim
The evidence recounted above is the evidence plaintiff also cites in support of his claim alleged in his eighth cause of action that he engaged in whistleblowing activity protected under Labor Code section 1102.5, and as a result of that activity Chaffey terminated his employment. Labor Code section 1102.5 states in pertinent part that, “(a) An employer may not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. [¶] (b) An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.”
The only evidence of activity protected under Labor Code section 1102.5 plaintiff cited in the trial court is set out above: his e-mails to CSEA, Jackie Goldberg, and Paul Gomez, none of which disclose a violation of federal or state law or noncompliance with a state or federal rule or regulation. But even if the e-mails did contain such information, plaintiff has not presented evidence to show that Chaffey knew about the communications, and as a result terminated his employment in retaliation. Accordingly, Chaffey is entitled to judgment in its favor on plaintiff’s whistleblowing claim.
D. Employment Termination in Violation of Public Policy Claim
In his fourth claim for relief, plaintiff alleged that Chaffey terminated his employment based on his age and that doing so violated the public policy of the State of California as articulated in the FEHA. In its summary judgment motion Chaffey cited each of the facts previously noted as the basis for its claim that plaintiff could not demonstrate that Chaffey terminated plaintiff’s employment based on his age, sex, or in retaliation for engaging in protected activity. As previously discussed, plaintiff did not rebut Chaffey’s showing in his opposition to its summary judgment motion. Therefore, Chaffey was entitled to judgment on this claim for relief.
E. Education Code Section 88003 Claim
As his sixth claim for relief plaintiff alleged that he had an express or implied contract of employment with Chaffey, the terms of which were dictated in part by Education Code section 88003, and Chaffey breached that employment agreement by allegedly allowing plaintiff to work more hours than specified in that section. In its summary judgment motion, Chaffey as previously discussed showed in pertinent part that plaintiff was a short-term employee whose employment ended at the end of each academic year, and who only worked in successive years if Chaffey rehired him. In his opposition, plaintiff disputed Chaffey’s factual assertion that he did not have a contract for employment. Plaintiff claimed he had a contract “as established by Ed[ucation] C[ode] Section 88003.” To support that claim plaintiff asked the trial court to take judicial notice of that code section, which as quoted above, includes the definition of a short-term employee.
Plaintiff’s opposition raises an issue of law, namely, whether Education Code section 88003 confers some right on plaintiff or duty on Chaffey with respect to their employment relationship. In other words, resolution of this issue requires us to interpret Education Code section 88003. That section, previously quoted in part, states in its entirety, “The governing board of any community college district shall employ persons for positions that are not academic positions. The governing board, except where Article 3 (commencing with Section 88060) or Section 88137 applies, shall classify all those employees and positions. The employees and positions shall be known as the classified service. Substitute and short-term employees, employed and paid for less than 75 percent of a college year, shall not be a part of the classified service. Part-time playground positions, apprentices and professional experts employed on a temporary basis for a specific project, regardless of length of employment, shall not be a part of the classified service. Full-time students employed part time, and part-time students employed part time in any college work-study program, or in a work experience education program conducted by a community college district and which is financed by state or federal funds, shall not be a part of the classified service. Unless otherwise permitted, a person whose position does not require certification qualifications shall not be employed by a governing board, except as authorized by this section. [¶] ‘Substitute employee,’ as used in this section, means any person employed to replace any classified employee who is temporarily absent from duty. In addition, if the district is then engaged in a procedure to hire a permanent employee to fill a vacancy in any classified position, the governing board may fill the vacancy through the employment, for not more than 60 calendar days, of one or more substitute employees, except to the extent that a collective bargaining agreement then in effect provides for a different period of time. [¶] ‘Short-term employee,’ as used in this section, means any person who is employed to perform a service for the district, upon the completion of which, the service required or similar services will not be extended or needed on a continuing basis. Before employing a short-term employee, the governing board, at a regularly scheduled board meeting, shall specify the service required to be performed by the employee pursuant to the definition of ‘classification’ in subdivision (a) of Section 88001, and shall certify the ending date of the service. The ending date may be shortened or extended by the governing board, but shall not extend beyond 75 percent of a school year. [¶] ‘Seventy-five percent of a college year’ means 195 working days, including holidays, sick leave, vacation and other leaves of absences, irrespective of number of hours worked per day. [¶] Employment of either full-time or part-time students in any college work-study program, or in a work experience education program shall not result in the displacement of classified personnel or impair existing contracts for services. [¶] This section shall apply only to districts not incorporating the merit system as outlined in Article 3 (commencing with Section 88060).” (Italics added.)
The Legislature added the emphasized language in 2002, an amendment that became effective on January 1, 2003, because no other effective date was specified. (See Stats. 2002, ch. 867, § 2.) The amendment is significant because it supports Chaffey’s explanation for limiting short-term employees to one year of service, in place of its previous practice of repeatedly hiring short-term employees, all of which supports Chaffey’s explanation for not rehiring plaintiff after the fall semester of 2003. Moreover, the substance of the statute belies plaintiff’s theory of recovery—the statute does not create any rights for employees, such as plaintiff; it simply defines the categories of employment for employees in jobs other than academic positions. Plaintiff simply is wrong in his view that because he allegedly worked more than 75 percent of a school year, his employment was transformed under Education Code section 88003 from short-term and part time to permanent and full time.
Plaintiff has not cited any other authority to support his claim that Chaffey was obligated to continue to hire him. The only other purported fact plaintiff cited to support his claim is his deposition in which he stated that he was told to under-report his hours on his time sheet. That fact even if true is irrelevant to the issue of whether plaintiff is entitled under Education Code 88003, or any other statute, to continued employment by Chaffey. Moreover, plaintiff has not cited any facts to show that he was required to work the extra hours, or that any managerial or supervisorial employee of Chaffey knew that plaintiff was under-reporting his time, and thereby condoned either of those actions. In fact, plaintiff’s complaint quotes a purported memorandum from Lisa Bailey that directs employees to accurately report their hours, an allegation that supports the inference that Chaffey did not condone the practice. When asked in his deposition who told him to under-report his time, plaintiff said he could not recall but he thinks it was a clerical person or secretary.
Because plaintiff did not cite any facts other than those noted above or any law other than Education Code section 88003 to support his claim of a contractual right to employment, Chaffey is entitled to judgment on this theory of recovery, or claim for relief, as a matter of law.
In summary, notwithstanding plaintiff’s numerous theories, the evidence supports only one conclusion, plaintiff was a short-term employee whose employment by Chaffey was pursuant to successive agreements, each of which ended at the conclusion of the pertinent academic year. Chaffey did not have any legal obligation to hire plaintiff in successive years. Therefore, Chaffey did not breach any employment agreement or retaliate, or otherwise engage in any unlawful action when it did not hire plaintiff after the fall semester of 2003.
DISPOSITION
The summary judgment entered in favor of Chaffey and Sharlene Smith, and against plaintiff, in case No. E045517, is affirmed. The appeal in case No. E044699 is dismissed.
Chaffey to recover costs on appeal.
We concur: Hollenhorst, Acting P.J., Gaut, J.