Opinion
A100585.
10-23-2003
JOSE CASTANON, Plaintiff and Appellant, v. CITY OF UKIAH, Defendant and Respondent.
Jose Castanon sued respondent City of Ukiah (Ukiah) for employment discrimination, wrongful termination, and wrongful refusal to process his grievance. Ukiah successfully moved for summary judgment. Castanon appeals, contending that he raised a triable issue of fact as to whether his termination constituted unlawful employment discrimination. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Castanon was employed by Ukiah from October 1994 to March 20, 2000. Initially, he was employed as a "Public Works Maintenance I Worker," and later as the "Interim Landfill Supervisor." Castanon had six years of formal education in Mexico, starting at age 8, but he never graduated from high school, and at no time during his employment with Ukiah did Castanon have a GED. Castanons job applications for his first two positions with Ukiah, which were completed for him by his wife, represented that he was a high school graduate. During his employment with Ukiah, Castanon received several positive job evaluations.
When we review a decision granting summary judgment, "our account of the facts is presented in the light most favorable to the nonmoving party below, in this case plaintiff, and assumes that, for purposes of our analysis, [his] version of all disputed facts is the correct one." (Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 999, citing Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
In January 2000, Ukiah posted a job opening for a "Wastewater Treatment Plant Operator-in-Training" (WWOIT) position. Ukiah required that applicants have, at a minimum, an education "[e]quivalent to completion of the twelfth grade." The California State Water Resources Control Board, the agency responsible for certifying waste water treatment plant operators, does not require persons seeking WWOIT certification to have either a high school diploma or a GED.
The application form for the WWOIT position required applicants to certify that their answers to the questions on the application were complete, accurate, and true to the best of their knowledge, and to agree that "any omissions or misstatement of material contained in the application may cause me to forfeit all rights to employment." On Castanons application, he indicated that he had completed four years of high school in Mexico, and had graduated. Again, Castanon testified at his deposition that it was his wife who prepared the application, but he does not dispute the fact that this is what the application said, and he admitted signing it. Castanon believed that he had completed the equivalent of 12 years of American education due to the differences between the American and Mexican school systems.
Castanon was awarded the WWOIT position on March 13, 2000. The next day, at the request of Ukiah, he filled out an application for a wastewater treatment plant operator examination, on a form supplied by the California State Water Resources Control Board. The form included an instruction directing applicants to attach verification of their educational qualifications. On the form, Castanon circled the number "12" as his highest high school grade attended, and circled "NO" in answer to the question whether he was a high school graduate.
In his opposition to the summary judgment motion, Castanon disputed that it was relevant whether he was a high school graduate, but he did not dispute that he had filled out the application in the manner described above, as he had admitted at his deposition.
On March 14, 2000, Melody Harris, the personnel officer for Ukiah, learned that Castanon neither was a high school graduate nor possessed a GED. Based on this information, she concluded that Castanon was not qualified for the WWOIT position for which he had been hired the preceding day. In Harriss experience, Ukiahs consistent practice was to interpret a job description requiring education "equivalent to the completion of twelfth grade" as meaning that the job required either a GED or a high school diploma. Harris met with Castanon on March 14 and offered to reinstate him to his previous position as a "Maintenance Worker I," a position that did not require a high school education. On March 17, Castanon declined this offer, and on March 20, he signed a resignation form, believing that if he did not sign it, he would be fired.
In his opposition to the summary judgment motion, Castanon disputed Harriss authority to interpret the requirement; the accuracy and relevance of her interpretation; and her assertion that Ukiah had consistently applied her interpretation. He did not dispute that Harriss interpretation was in fact what she reported it to be.
On May 21, 2001, Castanon filed a complaint alleging four causes of action. The first three causes of action claimed damages (1) for employment discrimination in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940, subd. (a)); (2) for wrongful termination in violation of an express public policy; and (3) for breach of a written employment agreement. The fourth cause of action sought a writ of mandate compelling Ukiah to conduct a grievance proceeding regarding Castanons termination.
The complaint alleged that Castanon had filed charges with the California Department of Fair Employment and Housing and with the federal Equal Employment Opportunity Commission, and had received notices of his right to file a civil action from both agencies. Ukiahs summary judgment motion did not contest these allegations. For the purpose of this appeal, therefore, we assume that Castanon properly completed all of the administrative prerequisites to filing a lawsuit under FEHA.
On March 19, 2002, Ukiah filed a motion for summary judgment, or in the alternative, for summary adjudication of issues as to each of the causes of action pleaded in the complaint. On May 14, 2002, the trial court entered an order granting summary judgment. Judgment in favor of Ukiah was entered on August 7, 2002, and Castanon timely appealed.
In his briefs on appeal, Castanon argues only that he raised a triable issue of fact regarding his employment discrimination and wrongful termination claims. We therefore do not understand him to be challenging the trial courts grant of summary judgment regarding his third and fourth causes of action, arising out of Ukiahs refusal to process his grievance.
DISCUSSION
A. Standard of Review
In order to prevail, a defendant who has filed a motion for summary judgment must show that one or more elements of the cause of action cannot be established by the plaintiff. In other words, all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action—for example, that the plaintiff cannot prove element X. Although it remains free to do so, the defendant need not itself conclusively negate any such element—for example, itself prove not X. (California Advocates for Nursing Home Reform v. Bontá (2003) 106 Cal.App.4th 498, 504-505 (CANHR), citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853-854 (Aguilar).) Once the moving defendant has met its burden, the burden shifts to the plaintiff to show that a triable issue of fact exists as to the cause of action or the defense thereto. (CANHR, 106 Cal.App.4th at p. 505, citing Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, 25 Cal.4th at p. 849.)
On appeal, this court exercises its independent judgment in determining whether there are triable issues of material fact and whether the moving party is entitled to judgment as a matter of law. (CANHR, supra, 106 Cal.App.4th at p. 505, citing Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334-335 (Guz).)
B. Employment Discrimination
Castanons complaint broadly alleged that Ukiah had violated FEHA by harassing him, denying him a promotion, constructively terminating him, and treating him disparately from other employees on the basis of his national origin, which he described as Hispanic. The only factual basis for these claims that Castanon advanced in his opposition to the summary judgment motion, however, was his termination from the WWOIT position. Thus, the only issue before us on appeal is whether Castanon established the existence of a triable issue of fact regarding whether his termination arose from employment discrimination prohibited by FEHA.
Preliminarily, we note that Castanons complaint did not allege that Ukiahs requirement of education "equivalent to completion of the twelfth grade," as interpreted to require either a high school diploma or a GED (the education requirement), had a disparate impact on Hispanic applicants for employment and/or promotion. (See Guz, supra, 24 Cal.4th at p. 354, fn. 20 ["[The] theory of `disparate impact [is] that regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on members of the protected class. [Citations.]" (italics in original)].) Moreover, Castanon acknowledges that he did not make a prima facie case for a disparate impact claim in his response to the summary judgment motion. Accordingly, in reviewing the trial courts grant of summary judgment on Castanons FEHA claim, we consider only whether Ukiahs summary judgment motion negated one or more of the elements of a disparate treatment claim under FEHA. " `Disparate treatment is intentional discrimination against one or more persons on prohibited grounds. [Citations.]" (Guz , supra, 24 Cal.4th at p. 354, fn. 20, italics in original.) Thus, an employer that uniformly enforces a minimum qualification requirement as to all applicants for a position cannot be found liable of disparate treatment discrimination, because it has not intentionally discriminated against any applicant or group of applicants.
Because Castanons claim is based solely on a disparate treatment theory, his argument that he presented a triable issue of fact as to whether the education requirement was job-related is of no avail. (West v. Bechtel Corp., supra, 96 Cal.App.4th at p. 983 [business necessity defense applies only in disparate impact cases, and is irrelevant in disparate treatment case].) Establishing that a facially neutral employment qualification is job-related is an affirmative defense, which the employer has no burden to prove unless and until the plaintiff has proved a prima facie case under a disparate impact theory. (Ibid.) Thus, even if Castanon raised a triable issue of fact as to whether Ukiahs educational requirement was job-related, this issue was not material to Castanons disparate treatment claim.
In discussing whether Castanons failure to meet the education requirement was a valid, non-discriminatory reason for his termination, the parties have used the term "bona fide occupational qualification" (BFOQ). Technically, however, the term BFOQ does not apply to a job qualification which, though facially neutral (like Ukiahs education requirement), is asserted to have a disparate impact on a protected class. Rather, the term BFOQ refers to a defense available to legitimize "a practice which on its face excludes an entire group of individuals" in a protected class from employment in a particular position. (Cal. Code Regs., tit. 2, § 7286.7, subd. (a), italics added; see West v. Bechtel Corp. (2002) 96 Cal.App.4th 966, 983-984.) If "the practice is justified because all or substantially all of the excluded individuals are unable to safely and efficiently perform the job in question and because the essence of the business operation would otherwise be undermined," then the job qualification is a BFOQ. (Cal. Code Regs., tit. 2, § 7286.7, subd. (a).) For example, being a woman is a BFOQ for a position as a wet-nurse. (See Rosenfeld v. Southern Pacific Company (9th Cir. 1971) 444 F.2d 1219, 1224.) The correct term for the defense that a facially neutral job qualification or other employment practice is legitimate, despite its disparate impact on a protected class, is "business necessity" or "job-relatedness" rather than BFOQ. (Cal. Code Regs., tit. 2, § 7286.7, subds. (b), (c); § 7287.4, subd. (a); see West v. Bechtel Corp., supra, 96 Cal.App.4th at p. 983.)
With respect to a disparate treatment claim, the showing required to survive a defense motion for summary judgment is well-settled. "California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination, based on a theory of disparate treatment. [Citations.]" (Guz, supra, 24 Cal.4th at p. 354.) "This so-called McDonnell Douglas test" (ibid. , citing McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas)) "places on the plaintiff the initial burden to establish a prima facie case of discrimination. This step is designed to eliminate at the outset the most patently meritless claims, as where the plaintiff is not a member of the protected class or was clearly unqualified, or where the job he sought was withdrawn and never filled. [Citations.]" (Ibid.)
In order to make a prima facie case, "[g]enerally, the plaintiff must provide evidence that (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. [Citations.]" (Guz , supra, 24 Cal.4th at p. 355, italics added.)
Ukiah provided evidence in support of its motion for summary judgment that Castanon could not prove one of the elements of this prima facie case, i.e., that he was qualified for the WWOIT position, because he did not meet the education requirement. In his opposition, Castanon expressly conceded both that the education requirement existed, and that he did not meet it. Castanon contends nonetheless that summary judgment should not have been granted, on several grounds.
Castanon challenges the validity of the education requirement—that is, its job-relatedness—noting that the California State Water Resources Control Board does not require a high school diploma or GED for WWOIT positions. Castanon points to no evidence or authority, however, indicating that Ukiah is not free to adopt job qualifications higher than those demanded by the State of California. Moreover, as discussed above, the job-relatedness of Ukiahs requirement is not relevant to Castanons disparate treatment claim.
Castanon also contends that summary judgment should not have been granted because there was a triable issue of fact regarding whether he was qualified for the WWOIT position. Ukiahs separate statement of undisputed facts, supported by the declaration of Harris, averred that Ukiah interpreted its requirement for a level of education "[e]quivalent to completion of the twelfth grade" as meaning possession of a high school diploma or GED. On appeal, Castanon notes that his opposition to the summary judgment motion purported to dispute this fact, citing two categories of evidence.
First, Castanon cited his own testimony, based on his personal experience, that his Mexican education was at least equivalent to an American high school education. This evidence may have showed that Castanons interpretation of the education requirement differed from Ukiahs interpretation, but that is not the relevant fact. Castanons testimony that he met the education requirement based on his own interpretation of it did not create a triable issue of fact regarding whether Ukiahs interpretation of the requirement was, in fact, what Ukiah said it was. Nor did it create a triable issue of fact regarding whether Castanon met the education requirement as interpreted by Ukiah. (Cf. Quinn v. City of Los Angeles (2000) 84 Cal.App.4th 472, 480-482 [where employment discrimination plaintiff failed to prove that he met employers stated qualifications for position, trial court should have granted directed verdict for defendant, notwithstanding favorable testimony regarding plaintiffs performance by one individual colleague]; Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 816 [employees subjective personal judgments of his or her competence do not raise genuine issue of material fact as to whether employers determination that employee was not qualified was pretext for discrimination].)
Second, Castanon purported to dispute Ukiahs statement about how it interpreted the education requirement by citing his own testimony that Ukiah hired other employees for, or allowed them to remain in, positions for which they did not meet Ukiahs previously stated qualifications. Evidence that Ukiah did not uniformly apply its own asserted interpretation of the education requirement for the WWOIT position would have been relevant to show disparate treatment, particularly if Castanon had shown that Ukiah interpreted the requirement more leniently, or waived it, for non-Hispanic applicants. Castanon did not actually supply such evidence, however.
Only one of the examples about which Castanon testified involved a waiver of the educational requirements for a position. In that instance, an employee who was promoted to a position other than the WWOIT position, which also required a high school diploma or GED, was given six months after his promotion in which to complete his GED. Castanon did not, however, adduce any evidence that the position to which the employee was promoted entailed a comparable level of responsibility to the WWOIT position, or that the employee had misrepresented his qualifications on his application for the promotion. Castanon was unable to point to any instance in which Ukiah had allowed any employee, much less any non-Hispanic employee, to satisfy the education requirement for the WWOIT position, or a comparable position, by relying solely on his own subjective opinion that his educational background was equivalent to a high school degree. Thus, Castanon did not raise a triable issue of fact as to whether Ukiah consistently interpreted the education requirement for the WWOIT position to require either a high school diploma or a GED. Nor did Castanon show, in more general terms, that employees who were genuinely similarly situated to him were treated differently.
Summary judgment as to Castanons employment discrimination claim would have been proper solely on the basis of his failure to make a prima facie case. In fact, however, Ukiahs summary judgment motion went farther than that, by demonstrating that the reason for Castanons termination was that he did not meet the minimum educational qualifications Ukiah had established for the WWOIT position. Where an employers motion for summary judgment in a disparate treatment case not only negates an element of the plaintiffs prima facie case, but also offers competent, admissible evidence of creditable, nondiscriminatory reasons for its actions, the burden shifts to the plaintiff, in opposing the motion for summary judgment, to "to rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred." (Guz, supra, 24 Cal.4th at p. 357.)
Castanon failed to meet this burden in his opposition to the summary judgment motion. His testimony regarding alleged preferential treatment of other employees was not sufficient to raise such an inference, because (as just discussed) their situations simply were not comparable to Castanons. Castanon presented no other evidence that could lead a rational trier of fact to conclude that his failure to meet the educational requirements was a pretext for terminating him, and that the true reason was his national origin. (See Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 74-80 [discussing level of evidence necessary to rebut employers stated nondiscriminatory reason for adverse employment action].) Thus, the trial court was correct in granting summary judgment for Ukiah on this cause of action.
C. Wrongful Termination
Castanons wrongful termination cause of action alleged that his termination was in violation of public policy, but pleaded no factual or legal basis for that claim separate and apart from his FEHA claim. Accordingly, we affirm the grant of summary judgment as to the wrongful termination claim as well. (See Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1256.)
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., and Haerle, J.