Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC394980, Elizabeth Allen White, Judge.
Law Offices of Helena S. Wise and Helena S. Wise for Plaintiff and Appellant in case No. B223405 and Plaintiff and Respondent in case No. B226114.
Gutierrez, Preciado & House, Nohemi Gutierrez Ferguson and Calvin House for Defendants and Respondents in case No. B223405 and Defendants and Appellants in case No. B226114.
WILLHITE, Acting P.J.
INTRODUCTION
Plaintiff and appellant Thuong T. Do appeals from the grant of summary judgment on his complaint against defendants and respondents, Los Angeles County and individual Iraj Nasseri (collectively referred to herein as “the County”). Do alleged claims for age and racial discrimination, harassment, and retaliation under the California Fair Employment and Housing Act (FEHA, Gov. Code, § 12900, et seq.) He contends the trial court erred in denying his request for a continuance of the summary judgment hearing so that he could obtain additional data needed by his expert witness. He further contends the trial court erred in granting summary judgment because he raised triable issues of material fact as to all his claims.
For its part, the County appeals the trial court’s denial of its motion for attorney fees.
We find no abuse of discretion in the court’s denial of Do’s request for a continuance, and we likewise affirm the judgment as well as the denial of the County’s request for attorney fees.
FACTUAL AND PROCEDURAL BACKGROUND
Background
Do is a Vietnamese man, born in 1943. In 1981, at the age of 38, Do began working for the County as an Engineering Aid III in the Flood Control Department, which was later consolidated with the Department of Public Works (DPW). He obtained a bachelor’s degree in engineering from California State University, Los Angeles in 1986. In 1988, the County promoted Do to the position of civil engineering assistant (CEA) in the Water Conservation Division. In 1989, he was promoted to Senior CEA.
In 1996, Do obtained a professional engineering license, qualifying him for the first time for consideration for a Civil Engineer position. That year, he was promoted to Supervising CEA, and in 1998, to Supervising Civil Engineer I. That position was reclassified to Associated Civil Engineer in 2001. That year, Do obtained a Master’s Degree in Public Administration and in 2003 obtained a doctorate degree in Philosophy, specializing in engineering. Since 2001, Do has unsuccessfully sought a further promotion to the position of Civil Engineer within DPW.
On July 23, 2007, Do filed a complaint for discrimination, harassment, and retaliation with the California Department of Fair Employment and Housing, and then initiated the underlying action against respondents.
Do’s Complaint
Do’s complaint in the instant action, filed in July 2008, asserts claims for discrimination based on race and age, harassment, and retaliation under FEHA. (Gov. Code, § 12900 et seq.) The complaint names Nasseri as a defendant only with respect to the cause of action for harassment.
The complaint alleges that since 2001 Do had been repeatedly bypassed for promotion to the position of Civil Engineer, despite his substantial work experience, graduate degrees, and recognition for the quality of his work and ability to supervise employees. In evaluating his suitability for such a promotion, Do’s supervisors routinely have assigned him an Appraisal of Promotability (AP) of 70, a score too low to place him within the band of promotable employees, even though he claims to possess skills and abilities the same as or greater than those candidates selected for promotion.
Do alleges that he has regularly protested the County’s failure to promote him, in internal grievances and appeals to the Civil Service Commission. Although his supervisors maintained that Do needed to seek out more complex assignments and engage in supervision of employees, Do claims that they have rebuffed his efforts to obtain such assignments and supervisory responsibility, while giving those opportunities to younger, Caucasian employees. In addition, because AP scores are supposed to be based in part on employees’ performance evaluation ratings, Do has internally protested the “Competent” ratings which he consistently has been given on those performance evaluations.
The complaint alleges that non-Asians, and applicants under the age of 40, have been promoted to the position of Civil Engineer “in grossly disproportionate numbers, ” notwithstanding the large pool of Asian applicants and applicants over 40. He contends that the County’s method for determining who receives promotions is too subjective and has an adverse disparate impact on Asian engineers and engineers over 40 years of age. The complaint asserts that Do intends to prove discrimination under both “disparate treatment” and “disparate impact” theories.
Do alleges that Nasseri made several statements that he contends referred to his race, including advising Do that “his President” (i.e., the then-president of Vietnam) would be visiting the United States, notwithstanding the fact that Do does not share the communist ideology of the current regime, and, on another occasion, stating that he was not giving Do supervisory responsibilities because he had a “military style.”
Do alleges that the County has purposefully employed management practices designed to replace the older engineers with younger ones. On one occasion, when Do complained to Division Head Reza Izadi that younger employees were receiving the promotions and the more complex work assignments, Izadi allegedly responded that “superstars” in the division, whom Do knew to be under the age of 40, had greater potential and thus were more deserving of promotions at that time. Do further alleges that he approached Nasseri to ask him why two of his younger colleagues had received higher AP scores than he did and were being promoted. Nasseri allegedly responded that one of them, who was under 40, was “like a son” to him.
Do further alleges that Nasseri purposefully prevented him from timely completing his projects by requiring him to funnel all his technical questions through another supervisor, Sterling Klippel, who did not know the answers to the questions and had become confrontational and aggressive with Do. Do alleges that non-Vietnamese engineers in his division did not have to use Klippel as a conduit for their questions. In addition, he contends that he was deprived of a functional computer and printer.
Do alleges that Nasseri harassed him by labeling and treating him differently because he is Vietnamese, placing a performance evaluation in his file with the false notation that Do had refused to sign it.
Do alleges that the County has retaliated against Do’s protests of discrimination since 2001 by denying him promotional opportunities, lowering his AP scores and performance evaluations, refusing to assign him more challenging work or supervisory responsibilities, denying him a transfer to another division, forcing him to submit his assignments to a supervisor who lacked technical expertise, and assigning him a non-functional computer and printer.
The County’s Summary Judgment Motion
After Do’s case had been pending for 15 months, the County filed a motion for summary judgment on October 29, 2009. Do moved ex parte for a continuance of the summary judgment hearing pursuant to Code of Civil Procedure section 437c, subdivision (h); Do contended that he was still awaiting crucial responses to interrogatories served on the County with respect to the age and race statistics of the candidate pool from 2001 to 2008 for the Civil Engineer position. The trial court denied the motion, and Do filed his opposition to the summary judgment motion, again renewing his contention that a continuance was necessary to enable him time to receive the statistical data from the County.
The Trial Court’s Rulings
In ruling on the summary judgment motion, the court again denied Do’s request for a continuance to permit Do to obtain more information, finding that Do had failed to comply with Code of Civil Procedure section 437c, subdivision (h). The trial court also sustained most of the County’s objections to the evidence submitted by Do in opposition to the motion for summary judgment.
The court granted the motion for summary judgment, finding that Do failed to establish a prima facie case of discrimination, retaliation, and disparate impact and that Do failed to show that the business reasons proffered by the County as the justifications for its actions were pretextual. The court concluded that Do failed to provide any evidence that he was not promoted based on his age or race. The court further found that the alleged harassing conduct was “innocuous and unrelated to any protected category.” In sum, the court found that Do failed to create a triable issue of material fact as to any of the alleged causes of action. The court also noted that Do’s opposition violated California Rules of Court, rule 3.1113(d), as it exceeded the 20-page limit.
The court entered judgment in favor of the County. Subsequently, the County moved for attorney fees in the amount of $143,592 against Do under Government Code section 12965. The trial court denied the County’s motion for attorney fees.
Do timely appealed from the judgment and the County from the denial of the motion for attorney fees. The two appeals were subsequently consolidated.
DISCUSSION
I
Do contends that the trial court erroneously refused his request for a continuance pursuant to Code of Civil Procedure section 437c, subdivision (h), which provides that “[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment... that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had.... The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” (Civ. Proc. Code, § 437c, subd. (h).)
“The statute mandates a continuance of a summary judgment hearing upon a good faith showing by affidavit that additional time is needed to obtain facts essential to justify opposition to the motion. [Citations.] Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h). [Citations.]” (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 253-254 (Cooksey).)
“A declaration in support of a request for continuance under section 437c, subdivision (h) must show: ‘(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. [Citations.]’ [Citation.]” (Cooksey, supra, 123 Cal.App.4th at p. 254.) In addition, “lack of diligence may be a ground for denying a request for a continuance of a summary judgment motion hearing. Although the statute does not expressly mention diligence, it does require a party seeking a continuance to declare why ‘facts essential to justify opposition... cannot, for reasons stated, then be presented’ (§ 437c, subd. (h)), and courts have long required such declarations to be made in good faith. [Citations.] There must be a justifiable reason why the essential facts cannot be presented. An inappropriate delay in seeking to obtain the facts may not be a valid reason why the facts cannot then be presented.... A good faith showing that further discovery is needed to oppose summary judgment requires some justification for why such discovery could not have been completed sooner.” (Id. at p. 257.)
There is a split of authority as to whether lack of diligence of the party seeking a continuance may constitute the sole basis for denial of the application. (Compare Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 398 [Fourth District Court of Appeal stating “[w]e question whether diligence alone should make or break a continuance request”] with Cooksey, supra, 123 Cal.App.4th at p. 257 [disagreeing with the Fourth District Court of Appeal, and agreeing with the majority of the other Courts of Appeal, that lack of diligence may be a ground for denying a continuance].) We agree with the reasoning in Cooksey, discussed above.
As we explain below, such a lack of diligence was evident in this case and the affidavits submitted in opposition to the summary judgment motion failed to explain why the sought-after data could not have been obtained sooner. Because Do therefore failed to submit an affidavit satisfying all the requirements for such affidavits, a continuance was not mandatory, but rather discretionary. Accordingly, we review for an abuse of discretion the trial court’s denial of the request for a continuance (Cooksey, supra, 123 Cal.App.4th at p. 254), and conclude that the court did not abuse its discretion.
After the County filed its motion for summary judgment on October 29, 2009, Do moved ex parte on December 18, 2009, seeking a continuance of the summary judgment hearing to give him an opportunity to receive from the County statistical data needed by Do’s expert witness, Dan Biddle, to determine whether DPW promotional examinations issued between 2001 and 2008 resulted in a disparate impact on engineers over 40. Do’s counsel submitted an affidavit in support of the motion for a continuance.
The County opposed the motion on the ground that Do’s failure to obtain the requested data earlier was due solely to the lack of diligence on the part of Do’s counsel, who the County alleged had not begun discovery until nine months after filing the lawsuit and who waited until after receiving the County’s summary judgment motion before propounding interrogatories on the disparate impact theory. Do’s motion for a continuance was denied.
When Do filed his opposition to the motion for summary judgment, the supporting papers included another declaration from his counsel, arguing that necessary facts regarding the disparate impact on Asians and engineers over 40 had not been presented in Do’s opposition because the County had not yet served responses to interrogatories propounded by Do 19 days earlier, on December 9, 2009. Do’s counsel explained in her declaration that she had originally propounded the interrogatories on November 6, 2009, after being served with the motion for summary judgment on October 28, 2009, but apparently she had inadvertently failed to attach a declaration supporting the issuance of more than 35 interrogatories. After the County served responses only to the first 35 interrogatories, Do’s counsel immediately re-issued the interrogatories to which the County had not responded, seeking race and age data regarding the pool of candidates seeking promotions to Civil Engineer positions.
While Do’s counsel provides a detailed explanation of her attempts to diligently pursue discovery after her receipt of the County’s summary judgment motion, she fails to explain why she waited until this late date to propound discovery necessary to support Do’s discrimination claim. Do’s complaint, filed in July 2008, asserted that Do intended to proceed on such a disparate impact theory with respect to both his race and age discrimination claims. As the plaintiff, it was his burden to compile statistical evidence to support his disparate impact claims, which generally are established through the analysis of statistical data. (Carter v. CB Richard Ellis, Inc. (2004) 122 Cal.App.4th 1313, 1323-1326 (Carter).) Do cannot escape responsibility for his counsel having waited until after the defendant served its motion for summary judgment, 15 months after Do filed his complaint, to propound discovery seeking supposedly crucial statistics to support an expert analysis on the disparate impact claims. Based on this lack of diligence, we find no abuse of discretion in the trial court’s decision to deny a continuance.
II
We now turn to the merits of the trial court’s decision granting the County’s motion for summary judgment. “We review the grant or denial of summary judgment de novo. [Citations.] We apply the same analysis as the trial court. When the moving party is a defendant, we first identify the issues framed by the pleadings; next, we determine whether the defendant has shown the plaintiff has not established, and cannot reasonably expect to establish, a prima facie case; if so, we determine whether the plaintiff has demonstrated the existence of a triable, material issue of fact as to the cause or causes of action at issue. [Citations.] Summary judgment is appropriate when no triable issue of material fact exists and the defendant is entitled to judgment as a matter of law. [Citations.]” (Bourgi v. West Covina Motors, Inc. (2008) 166 Cal.App.4th 1649, 1662.)
Age and Racial Discrimination Claims
A. Applicability of Continuing Violations Doctrine
At the outset, we address the relevant window of time for determining whether the County engaged in wrongful discrimination under FEHA. In moving for summary judgment, the County contended that it may not be found liable for conduct that occurred before July 24, 2006, one year before Do filed his administrative complaint with the Department of Fair Employment and Housing (DFEH). Government Code section 12960, subdivision (d) provides: “No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice... occurred.” Therefore, any conduct occurring prior to July 24, 2006, cannot serve as the basis for liability unless some exception to the one-year limitations period applies. (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1040 (Cucuzza).)
Do argues that the County should be held liable for its failure to promote him since 2001, and asserts that the “continuing violation” theory provides the exception permitting the court to consider conduct by the County prior to July 2006. The continuing violation rule “comes into play when an employee raises a claim based on conduct that occurred in part outside the limitations period.” (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 812 (Richards).) In Richards, the California Supreme Court held that an employer’s conduct outside the one-year period may be considered timely under the continuing violation doctrine only if the conduct over a period of time was (1) “sufficiently similar in kind”; (2) “occurred with reasonable frequency”; (3) and has “not acquired a degree of permanence.” (Richards, supra, 26 Cal.4th at p. 823.) In the context of an employer’s refusal to make reasonable accommodations to a disabled employee, the claim at issue in Richards, “permanence” is achieved when “an employer’s statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will be futile.” (Ibid.) “[A]n employer who is confronted with an employee seeking accommodation of disability or relief from disability harassment may assert control over its legal relationship with the employee either by accommodating the employee’s requests, or by making clear to the employee in a definitive manner that it will not be granting any such requests, thereby commencing the running of the statute of limitations.” (Id. at pp. 823-824.) Thus, the statute of limitations begins to run in such a case when the unlawful practice ends, “or when the employee is on notice that further efforts to end the unlawful conduct will be in vain.” (Id. at p. 823.)
In Cucuzza, the plaintiff claimed gender discrimination after her employer allegedly limited her job duties to clerical and administrative tasks and assigned technical duties to less qualified men. (Cucuzza, supra, 104 Cal.App.4th at p. 1034.) The plaintiff alleged that the discriminatory conduct began in 1993, when the company began assigning other employees to do the technical tasks that had been part of her job. (Id. at p. 1035.) However, she did not file an administrative complaint with the DFEH until September 22, 1998. Thus, the employer’s conduct before September 22, 1997 could not serve as the basis for liability, unless the continuing violation doctrine applied.
Applying Richards, the appellate court found that the continuing violations doctrine did not apply, because, “even assuming the conduct was sufficiently similar and frequent enough to constitute a single course of conduct, the situation had reached permanence well over a year before plaintiff commenced her lawsuit.” (Cucuzza, supra, 104 Cal.App.4th at p. 1042.) In response to a grievance the plaintiff filed in 1994, the employer’s only response was to offer to transfer her out of the department, which the court characterized as a “definitive denial of plaintiff’s request to perform certain job duties.” (Id. at pp. 1042-1043.) The court also found it significant that in response to the plaintiff’s continual requests to be assigned technical duties, her employer “invariably and unequivocally denied her request.” (Id. at p. 1043.) The plaintiff thus had reason to know the situation was permanent, and the court concluded there was no basis for applying the continuing violation doctrine to permit conduct by the employer prior to 1997 to form the basis for liability. (Ibid.)
Do contends that the County’s historical failure to promote him every year since 2001 based on his age and race constitutes a course of conduct that, under the continuing violation theory, should have been considered in its entirety by the trial court in deciding whether the County was liable for race and age discrimination. However, Do failed to raise a triable issue whether the continuing violations doctrine applies so as to make the allegations of the County’s conduct occurring prior to July 2006 timely. Each year’s promotion decision presumably “acquired a degree of permanence” as soon as it was made and communicated to Do, with its sense of permanence only heightened by the results of Do’s unsuccessful grievances and appeals. (Richards, supra, 26 Cal.4th at p. 823.) Do presented no evidence permitting a court to conclude that, each time he learned he would not be promoted, he reasonably was not on notice that his rights may have been violated.
Contrary to Do’s suggestion, the different standard for assessing a continuing violation discussed in Alch v. Superior Court (2004) 122 Cal.App.4th 339 (Alch), does not apply in his case to permit liability to be founded on conduct occurring prior to July 2006. In Alch, a class action centered on allegations of an on-going “systematic, companywide corporate policy of discrimination against a protected class” (id. at p. 369), the Court of Appeal held that the requirements set forth in Richards for finding a continuing violation did not apply in that case. (Id. at p. 373.) The Alch court drew a distinction between cases involving a series of discriminatory acts targeting a single individual, the category of case to which Richards was addressed, and the “fundamentally different” cases concerning “pervasive companywide discrimination against a protected class.” (Alch, supra, 122 Cal.App.4th at p. 370.)
Unlike Alch, Do’s suit is not a class action, and, although his complaint generally alleges management practices geared towards eradicating Asians and older employees from the ranks of the civil engineers, he has proffered no evidence of such systematic and pervasive discrimination. His case boils down to allegations of a series of discriminatory acts directed at him, and thus, the continuing violation standard set forth in Richards squarely applies to his case. Under that standard, Do has failed to raise a triable issue of fact whether the continuing violations doctrine applies, and thus we decline to consider evidence of supposed discriminatory acts prior to July 2006.
B. Legal Standards for Do’s Discrimination Claims
Government Code section 12940 prohibits employers from discriminating against an employee on the basis of age or race “in compensation or in [the] terms, conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a).) Do seeks to prove discrimination under both disparate treatment and disparate impact theories.
The gravamen of Do’s disparate treatment claim is that the County excluded him from a “reachable” promotion band by assigning him lower AP scores than he deserved. To make out a prima facie case of disparate treatment by an employer, “[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.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 (Guz).) An employer seeking summary judgment on such a claim meets its burden by showing that one or more of these prima facie elements is lacking, or that legitimate, nondiscriminatory reasons existed for the adverse employment action. “‘[L]egitimate’ reasons [citation] in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination. [Citations.]” (Id. at p. 358.) If the employer sustains this burden, the plaintiff must then demonstrate that the employer’s proffered reasons are pretexts for discrimination or must offer other evidence of a discriminatory intent. (Id. at p. 356.) “[A]n employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Id. at p. 361.)
“Prohibited discrimination may also be found on a theory of ‘disparate impact, ’ i.e., 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.]” (Guz, supra, 24 Cal.4th at p. 354, fn. 20.) Generally, disparate impact claims are established through the analysis of statistical data. (Carter, supra, 122 Cal.App.4th at pp. 1323-1326.) Plaintiffs must generally rely on statistical data to demonstrate a disparate impact. (Id. at pp. 1323-1324.) The party must identify “‘the specific employment practice that is challenged’” and prove causation, that is, “‘offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group.’ [Citation.]” (Ibid.) “Although statistical data alone, in a proper case, may be adequate to prove causation [citation], the ‘statistical disparities must be sufficiently substantial that they raise such an inference of causation.’ [Citations.]” (Stout v. Potter (9th Cir. 2002) 276 F.3d 1118, 1122.)
C. The Parties’ Showings
1. The County’s Evidence
In seeking summary judgment, the County submitted evidence supporting the following version of the facts: in the many years that Do and Nasseri have known each other, Nasseri has made at most two comments arguably touching on Do’s race. The first was a comment to Do that “your president is coming, ” i.e., the President of Vietnam was visiting the United States. The second was Nasseri’s statement to Do that he could not be given greater than a “competent” rating because he had a “military style, ” which Do took to betray a bias against Vietnamese people who generally have a military background by virtue of the war in Vietnam.
Similarly, the only comments Do alleged to show age discrimination were (1) a comment by his former supervisor Izadi that some engineers (whom Do knew to be younger than him) were promoted before Do because they were “superstars, ” meaning they knew more and were more valuable than Do; and (2) a statement by Nasseri to Do that one of the younger employees “acts like a son” to him.
Do acknowledges that he began his career at DPW when he was 38 years old, whereas many employees joined DPW right out of college when they were 21 or 22. Do did not even become eligible to apply for a Civil Engineer position until he received his civil engineering license at age 53. Do has been promoted four times between the ages of 45 and 55.
According to Nasseri, Do “has always struggled with computer related job functions... frequently need[ing] help with the programs used in the division.” Do admitted he had trouble with one of the computer programs used for his job, the Watershed Modeling System, despite having received training on two occasions, and he would often ask the newer engineers for help because they learned the programs more quickly.
Since his promotion to CEA in 1988, Do consistently received “competent” ratings on his performance evaluations, except in 2004-2005, when he received a “Very Good” overall rating. Do submitted a grievance regarding his 2003-2004 performance evaluation, arguing that the “competent” rating did not accurately reflect his performance; the grievance was denied. In meeting to discuss Do’s performance evaluation for the 2005-2006 period, in which he again was rated “competent” overall, Nasseri told Do that he could not be rated higher than “competent” in part because of his violation of the County’s policy against personal use of his work computer. Do then submitted a grievance for the 2005-2006 evaluation, objecting that he had not timely received a copy of the evaluation and that Nasseri had wrongly added a notation “Refused to sign” on the form, when Do had not refused to sign it. Nasseri granted his request to remove the phrase. Ultimately the grievance review concluded that Nasseri had erroneously relied on the Division Secretary to give Do a copy of his performance evaluation, and Nasseri was “counseled concerning proper processing of performance evaluations.” However, Do was found to have been “rated accurately and fairly, if not generously.”
In the spring of 2007, Nasseri met with Do to discuss his performance evaluation for the period April 1, 2006 to March 31, 2007. They discussed the quality of Do’s work, and Do said he felt his “competent” rating on the category “soundness of judgment” was inaccurate. Nasseri told Do that the “competent” rating on “quality of work” and “soundness of judgment” were both accurate; a “very good” rating is reserved for an employee who exceeds expectations, and Nasseri did not feel Do had done so. Nasseri’s declaration asserts the belief that while Do has completed his work competently, he “very rarely exceeds expectations.”
In 2001, Do began applying for a promotion to the level of Civil Engineer. Claudia Perez, an Administrative Services Manager, describes in her declaration the process for the C3435 examination, following the Civil Service Rules, that is applied to determine the promotability of a candidate for the position of Civil Engineer. The promotional examination consists of two parts: (1) a record rating based on education and experience; and (2) an Appraisal of Promotability (AP) prepared by the candidate’s supervisor assessing the candidate’s potential performance at the sought-after position. The score on each part is scaled and combined to arrive at an overall score for the candidate.
In completing the AP for a candidate, the supervisor considers the candidate’s past performance and how the applicant might perform in the higher level position for which he is applying. The supervisor considers performance records, the demands of the higher position, the scope and depth of previous assignments, and the observations and judgments of management. The supervisor assigns a grade to six different areas, adding comments for each area. The possible grades for each area are A (Exceptionally Qualified), B (Well Qualified), C (Qualified), D (Limited), or E (Not Qualified). The supervisor assigns a score based on a hundred point scale, on ten point integrals, usually assigning a score of 60, 70, 80, 90, or 100, depending on the number of A’s, B’s, or C’s assigned. According to the Rating Scale used to grade applicants for the promotion to Civil Engineer, candidates who receive two ratings of Exceptionally Qualified, two ratings of Well Qualified, and two ratings of Qualified would receive a score of 80, while a candidate with three “Qualified” ratings and no rating below this should be assigned a score of 70.
Once the ratings from records and the AP scores are complete, analysts from the Administrative Services department rank the applicants and place them in “bands” based on their overall scores, with Band 1 being the highest and Band 5 the lowest. A certification list is prepared, listing the candidates eligible for promotion in each band. Positions are filled from the certification list in descending order.
In 2001, the first year he applied for the Civil Engineer position, Do received an AP score of 70 and an overall score of 72.75, placing him in Band 5, the lowest band, making him unreachable for a promotion. He appealed his AP score, and his appeal was denied. Each subsequent year, Do continued to receive AP scores of 70, which he routinely appealed, only to have the appeals denied. After applying again in 2004 and receiving an AP score of 70 that placed him in Band 4 (again an unreachable band), he appealed the score, but the appeal again was denied on the basis that his performance record did not support a higher AP rating.
In June 2006, Do re-applied for the Civil Engineer position, and on the certification list for the C3435E promotional examination that was promulgated on February 5, 2007, Do received an AP score of 70 and an overall score of 83.50, placing him in Band 3. The certification list for the examination listed 145 total candidates, with 5 candidates in Band 1, 46 candidates in Band 2, 41 candidates in Band 3, 42 candidates in Band 4, and 11 candidates in Band 5.
50 of the 145 candidates were Caucasian, and 45 of the candidates, or 31 percent, were Asian. Ultimately, 31 candidates, or 21 percent, were promoted to the position of Civil Engineer. Five of the candidates who were promoted were from Band 1, and the remaining 26 were from Band 2. Of the 31 candidates promoted, eight, or 26 percent, were Asian. 14 of the candidates promoted, or 45 percent, were over the age of 40. Several of the candidates waited “close to a decade” before being promoted to the position.
In assigning Do an AP of 70 on the C3435E promotional examination, Nasseri rated Do based on his three prior performance evaluations, two of which found him “Competent” overall and one rating him “Very Good, ” as well as based on Nasseri’s assessment of Do’s ability to perform at the Civil Engineer level. Specifically, Nasseri rated Do as “Exceptionally Qualified” in two areas, “Well Qualified” in one area, and “Qualified” in three areas, namely, Written and Oral Communications, Work Habits and Attitudes, and Supervision. Under the applicable Ratings Scale, this translated to an AP score of 70. Nasseri stated in his declaration that this AP score was an accurate and fair assessment of Do’s ability to perform in the Civil Engineer capacity.
Do appealed his AP score of 70 with the Department of Human Resources. He contended that (1) there was a conflict between the ratings for certain factors making up the AP that supported another factor’s rating being raised; (2) the comments for some factors supported higher ratings for those factors; and (3) some ratings were contrary to Do’s record of performance. The Human Resources Department denied the appeal, finding “no facts that would support a conclusion that Mr. Do’s management erred in assigning his appraisal ratings and score in this examination.” The letter communicating the denial of the appeal stated that Do could appeal the decision of the Human Resources to the Civil Service Commission, but any appeal was due within 10 business days. Three months later, Do petitioned the Civil Service Commission for a hearing on the issue, but his request was denied as untimely.
The County submitted declarations from fifteen supervisors across DPW’s divisions who promoted employees to the position of Civil Engineers, based on the C3435E examination that listed the candidates and the bands into which each of them fell. The declarations contained particularized information as to the business reason justifying each individual promotion. Many of the positions required specialized knowledge for the particular division. As discussed above, all the candidates who were promoted were taken from Bands 1 and 2, as required under the Civil Service Rules. As such, all these candidates had received higher ratings from their supervisors than Do and thus were more highly recommended.
2. Do’s Evidence in Opposition to Summary Judgment
Do conceded much of the County’s showing. As for the evidence submitted by Do, the trial court excluded significant portions of Do’s own declaration as well as his wife’s. Do does not challenge those evidentiary rulings with any specificity in his opening appellate brief, instead arguing that all the trial court’s evidentiary rulings should be summarily reversed. Because of Do’s failure to provide cogent and specific arguments for reversing the evidentiary rulings with respect to his and his wife’s declarations, we do not disturb the rulings, and thus we do not discuss or rely upon the excluded evidence. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“The absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived.”]; Cal. Rules of Court, rule 8.204(a)(1)(B).)
While Do challenges some of the specific evidentiary rulings in his reply brief, we decline to consider those arguments raised for the first time in the reply. (County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861, 871, fn. 9.)
Do asserts that his supervisor, Nasseri, routinely assigned him AP scores of 70, which resulted in his being placed in an “unreachable” band, even though AP scores of 80 are usually assigned to engineers who have consistently received “competent” performance evaluations, as Do has. He contends that the County engaged in the same practice of assigning lower AP scores with respect to other engineers who are over 40. However, none of the “evidence” Do cites ostensibly in support of these propositions either demonstrates that “competent” performance evaluation ratings should lead to AP scores of 80 or that the County has a practice of assigning older engineers lower AP scores. Either Do relies on his own self-serving assertions in his declaration, which the trial court found inadmissible, or he cites to other pieces of testimony that have nothing to do with the proposition for which they are cited.
While Do disputes his supervisors’ statements that he has struggled with computer-related job functions, he submitted no admissible evidence to the contrary. Do does not dispute the legitimacy of the reasons given by each of the DPW supervisors for making their respective promotion decisions for the C3435E Examination promulgated on February 5, 2007.
Do also suggests that Nasseri intentionally lowered his performance evaluation for the 2005-2006 time period from “Very Good” overall to “Competent” after Do protested his 2005 AP score to the Civil Service Commission. However, again, the admitted evidence he cites in support of this proposition does not support it. He further asserts that Nasseri engaged in other nefarious conduct with respect to the 2005-2006 performance evaluation, for example, by including on the form the false notation that Do had “refused to sign” and including a comment that “Mr. Do can improve his performance by being more observant of rules and regulations, ” which according to Do, referred to his personal use of the internet at work. Do contends the reference to his internet use violated a promise DPW Assistant Deputy Director Rod Kubomoto made to Do not to continue to use the violation of policy against him. However, the admissible evidence he submitted did not prove the existence of such an agreement by Kubomoto, and in any event, both the notation “refused to sign” and the comment about Do’s need to observe department rules were removed after Do submitted a grievance with respect to this evaluation.
Do further relies on a statistical analysis performed by Do’s expert, Dan Biddle, which was excluded by the trial court. That statistical analysis apparently was meant to demonstrate a disparate impact on Asian engineers and engineers over 40 on the County’s promotional exams. However, the court excluded much of Biddle’s statistical analysis and conclusions because the court determined that he only compared the impact on Asians under 40 with Asians over 40, an improper comparison for either purposes of the racial discrimination or the age discrimination claim. Because of contradictory and confusing language in Biddle’s declaration and supporting tables, we have difficulty understanding what analysis Biddle purports to set forth. However, whether the trial court correctly construed Biddle’s analysis, the analysis plainly pertained only to data from the 2005 promotional examination, not the 2007 examination. As we have concluded above, in this case, the statute of limitations prevents alleged wrongful conduct by the County prior to July 2006 from forming the basis for liability for race and age discrimination. Accordingly, Biddle’s analysis is irrelevant, and thus even if the trial court misconstrued its purpose and meaning, the decision to exclude it was harmless error.
D. No Triable Issue as to Discrimination Claims
On appeal, the County does not challenge whether Do established a prima facie case, but instead asserts that it satisfied its burden to produce evidence of legitimate business reasons for its actions, and that Do failed to rebut the County’s presentation of this evidence. We agree with the County that it is entitled to summary judgment because, “considering [the County’s] innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that [the County’s] actual motive was discriminatory.” (Guz, supra, 24 Cal.4th at p. 361.)
As Do acknowledges, the heart of his discrimination claims is that Nasseri assigned him lower AP scores than he deserved, on account of his race and age, which conduct prevented him from being placed in reachable promotion bands. Thus, the key inquiry concerns Nasseri’s motivations for giving Do the performance evaluations and AP scores that he did.
The County presented sufficient evidence that Nasseri gave Do the ratings that he believed Do had earned. While Do was undoubtedly a “competent” employee, Nasseri did not believe he consistently exceeded expectations, and his performance evaluations reflect as much. The County presented evidence that Do has continued to struggle with computer programs, a skill area that is important to his job and in which many of his peers surpass him. Do has failed to point to evidence to seriously dispute this fact, or to suggest that these stated reasons for not assigning him stronger reviews and AP scores are pretextual.
“In responding to the employer’s showing of a legitimate reason for the complained-of action, the plaintiff cannot ‘“simply show the employer’s decision was wrong, mistaken, or unwise. Rather, the employee ‘“must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence, ’ [citation], and hence infer ‘that the employer did not act for the [asserted] non-discriminatory reasons.’ [Citations.]” [Citations.]’ [Citation.]” [Citation.]’ [Citation.]” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388-389.) Do has failed to make a showing of such contradictions and inconsistencies in the County’s proffered reasons for his lack of a promotion. While Do makes much of the circumstances surrounding his 2005-2006 performance evaluation, on which Nasseri wrote that Do had “refused to sign” and included a line suggesting that Do could make better efforts to follow company rules, ultimately Do was successful in his grievance and got both these notations removed. Notably, at the conclusion of the grievance process, his overall evaluation by Nasseri was found to have been “generous.”
We also find that the several stray remarks made by his supervisors over the years arguably touching on race or age do not raise a rational inference of a discriminatory intent by the County against Do. On their own or taken together, the remark “Your president is coming” and the reference on another occasion to Do’s “military style” reasonably could not be considered to betray a bias against Asians or the Vietnamese. Similarly, the fact that Do’s supervisor candidly told him that “superstars” in the department (who were younger than Do) would get promoted before he did does not prove that the County was biased against Do because of his age; it simply demonstrates that other candidates, who happen to be younger, are more well-regarded and thus more deserving of a promotion. Nor does Nasseri’s alleged remark that one of the younger engineers who was promoted “act[ed] like a son” suggest that he harbored discriminatory animus against Do because of his age. While such stray remarks may “gain significance in conjunction with other circumstantial evidence” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 541), that “other” evidence is lacking here. Considering the “totality of evidence in the record” (ibid.), the evidence was simply too weak to raise an inference that Do’s race or his age was a factor in his performance evaluation ratings or in his unsuccessful application for a promotion.
Do also presented insufficient evidence to support his disparate impact claims based on race or age. We agree with the County that he failed to identify the “specific employment practice” alleged to result in a discriminatory impact on Asians or engineers over 40 and then to demonstrate through statistical evidence that the particular practice has caused members of those protected groups to be denied promotions to the Civil Engineer position. (Carter, supra, 122 Cal.App.4th at p. 1323.) Do appears primarily to challenge the subjective nature of the process for assigning AP scores, one piece of the promotional examination; however, he presents no statistics analysis isolating that particular practice. Instead, he relies on expert opinion as to the statistical results from the promotional examination as a whole. Moreover, the expert opinion only examined data from the 2005 promotional examination, which is not a proper basis for liability given the applicable limitations period.
The statistical data produced by the County also does not aid Do, as it shows that 31 percent of the applicants to the Civil Engineer position were Asian, and ultimately 26 percent of those who were promoted were Asian. This data does not reveal a stark statistical difference between the numbers of Asians applying and the number who were ultimately promoted. Similarly, although the County did not disclose what percentage of the applicants were over 40, the fact that 45 percent of the candidates who were promoted were over 40 does not assist Do’s case. Without an appropriate statistical analysis showing a “‘significantly discriminatory pattern’” emerging from the AP scores assigned after May 2006, Do cannot state a prima facie case. (City and County of San Francisco v. Fair Employment & Housing Com. (1987) 191 Cal.App.3d 976, 986.)
In sum, the trial court properly granted summary judgment on Do’s race and age discrimination claims.
Harassment Claim against the County and Nasseri
Do also contends that the trial court erroneously granted summary judgment on his claim for harassment under FEHA. Government Code section 12940 makes it unlawful for “an employer... or any other person, because of race [or] age... to harass an employee.” (Gov. Code, § 12940, subd. (j)(1).) “[H]arassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706 (Roby).) Liability for harassment may lie when the workplace “is permeated with ‘discriminatory intimidation, ridicule, and insult’ [citation] that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, ’ [citation].” (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21; see Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130.) “‘[H]arassment cannot be occasional, isolated, sporadic, or trivial[;] rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature. [Citation.]’ [Citation.]” (Aguilar, supra, 21 Cal.4th at p. 131.) “That is, when the harassing conduct is not severe in the extreme, more than a few isolated incidents must have occurred to prove a claim based on working conditions.” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 284 (Lyle).)
Whether the harassment was sufficiently severe to alter the conditions of employment and create an abusive working environment is judged objectively, “‘“by looking at all the circumstances [including] the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” [Citation.]’ [Citation.]” (Lyle, supra, 38 Cal.4th at p. 283.) The plaintiff must show that the harassing conduct was motivated by discriminatory bias based on the plaintiff’s race or age. (Roby, supra, 47 Cal.4th at p. 709.) “[A]cts of discrimination can provide evidentiary support for a harassment claim by establishing discriminatory animus on the part of the manager responsible for the discrimination, thereby permitting the inference that rude comments or behavior by that same manager was similarly motivated by discriminatory animus.” (Ibid.)
In alleging that he was the victim of harassment based on his race and age, Do relies on much of the same evidence used to support his discrimination claims. Thus, he contends that Nasseri’s remarks to him about the visit from “Do’s president” and Do’s military style, as well as his statement that another younger engineer “acts like a son” were instances of harassing conduct. We have already concluded that these statements cannot reasonably be considered to betray a discriminatory animus, and thus we reject the notion that these statements could create a triable issue of fact on Do’s harassment claim. Similarly, as we have already concluded with respect to his discrimination claim, Do failed to raise a triable issue with his unsubstantiated allegations that his supervisors deliberately lowered his AP ratings because of his race and age and placed allegedly “false information” in his personnel file, which was ultimately removed in any event.
Other conduct alleged on appeal to constitute harassment by County supervisors includes (1) forcing Do to work in an isolated work area; (2) refusing to permit him to transfer to another department, and (3) refusing to give him meaningful assignments, training, or supervisory responsibility.
On appeal, Do has abandoned his allegations of harassing conduct by another supervisor, Klippel, including confrontational behavior and an order to change the format of his work memoranda. We note that some of the conduct alleged to constitute harassment took place prior to July 24, 2006, one year before Do filed his complaint with DFEH. The continuing violation doctrine enunciated in Richards applies to a claim for workplace harassment. (Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 1003-1004.) Instances of harassing conduct are more likely than repeated instances of a failure to promote to be deemed a continuing course of unlawful conduct and satisfy the requirement that the employer’s actions be sufficiently similar in kind, have occurred with reasonable frequency, and have not acquired a degree of permanence. (Richards, supra, 26 Cal.4th at p. 823.) Even assuming that the alleged conduct prior to July 24, 2006 may form the basis for liability on the harassment claim, however, we conclude that Do has failed to raise a triable issue.
While Do contends that they isolated him by placing him in a cubicle far away from Nasseri and failed to rotate him out of that location after six months as was the custom, he admitted that he had one of the four cubicles out of 19 with a window, and that he had not asked to be moved. Moreover, the evidence on which he relies, Nasseri’s deposition testimony, suggests that for a period of time Do was not placed close to his office because of the set-up of the office, which required Nasseri, like other division heads, to place many members of his department in spaces shared with other sections’ staff. Do presents no evidence that discriminatory animus, rather than legitimate business reasons, dictated the seating arrangements. He also admitted that Nasseri has always been professional with him and nice to him, which substantially undercuts his claim of harassment.
Do alleges that he was repeatedly denied the opportunity to transfer of his department several times, but the County proffered evidence that in fact he interviewed with other departments for open positions, but was never selected. The evidence also demonstrates that Nasseri testified that he was not aware of any employees in his section transferring to another division. Further, while Do suggests that other, younger employees were allowed to participate in a rotation program to other divisions and that he was not permitted to do so, he proffers no admissible evidence that he requested to do so and was denied.
Finally, Do contends that his supervisors harassed him by not giving him meaningful assignments worthy of someone with him experience. However, again Do fails to present any admissible evidence that he was denied assignments that were commensurate with his skill and experience.
In sum, Do has failed to raise a triable issue that he was subjected to a concerted pattern of severe or pervasive harassing conduct on account of his race or age.
Retaliation Claim
Finally, Do asserts that the trial court erred in granting summary judgment on his retaliation claim. Government Code section 12940 prohibits an employer from retaliating against an employee for complaining that he or is the victim of employment discrimination. (Gov. Code, § 12940, subd. (h).) “[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity, ’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) If the plaintiff establishes a prima facie case of retaliation, the defendant must articulate a legitimate, nonretaliatory explanation for its acts, and the plaintiff then has the opportunity to show that the defendant’s proffered explanation is merely a pretext for the illegal conduct. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476.)
Do contends that he engaged in protected activity by protesting his performance evaluations and AP scores to the Civil Service Commission and the Office of Affirmative Action Compliance, and that Nasseri retaliated against him in 2007 by giving him a lower AP score than he deserved. However, we have already concluded that the County proffered a legitimate business reason for Do’s being assigned an AP score of 70, and Do has not presented sufficient evidence to raise a rational inference that this stated reason was a pretext for retaliatory animus. As such, Do’s retaliation claim was properly dismissed.
We affirm the trial court’s decision to grant summary judgment because Do failed to raise a triable issue as to any of his claims.
Because of this holding affirming the grant of summary judgment, we need not address Do’s contentions that the trial court committed error in alternatively holding that summary judgment was proper because Do violated California Rules of Court, rule 3.1113(d) by filing an opposition that exceeded 20 pages in length.
III
In a consolidated appeal, the County asserts that the trial court erred in denying its motion for attorney fees brought after judgment was entered into its favor. We disagree.
Government Code section 12965 accords the trial court discretion to award attorney fees and costs to the prevailing party in any action brought under FEHA. (Gov. Code, § 12965, subd. (b); Code Civ. Proc., §§ 1021, 1033.5, subd. (a)(10)(B).) While a prevailing plaintiff in a FEHA action often is awarded attorney fees, such awards are not routinely granted when it is the defendant that prevails. (Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387.) The fact that the plaintiff merely failed to achieve success on his or her claim “should not automatically entitle a prevailing defendant to fees and costs or otherwise only those plaintiffs with the most airtight cases will risk bringing suit to enforce antidiscrimination legislation.” (Id. at p. 1390.) Rather, a prevailing defendant in a FEHA case should only be awarded fees “‘“where the action brought is found to be unreasonable, frivolous, meritless or vexatious.”’” (Id. at p. 1387.) We review for an abuse of discretion the trial court’s decision to deny the County its attorney fees. (Id. at p. 1387.)
The County has failed to show that the trial court committed a “manifest miscarriage of justice” in determining that Do’s action was not unreasonable, frivolous, meritless, or vexatious. (Dolan v. Buena Engineers, Inc. (1994) 24 Cal.App.4th 1500, 1504.) Notably, in responding to Do’s appeal from the grant of summary judgment, the County did not assert that Do had failed to establish a prima facie case of discrimination, but rather argued only that the County had provided legitimate business reasons for its conduct that Do could not prove were pretextual. That Do’s evidence of discrimination, retaliation and harassment ultimately proved too weak to raise a rational inference that such wrongful conduct occurred does not establish that his action was frivolous from the start or that he continued to litigate the suit after learning it was frivolous. We thus affirm the trial court’s denial of the motion for fees.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
We concur: MANELLA, J., SUZUKAWA, J.