Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Imperial County No. ECU03177, Barry Hammer, Judge. (Retired judge of the San Luis Obispo Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.) Affirmed.
HUFFMAN, J.
We review a defense summary judgment in an employment discrimination action. Plaintiff David Fraitag sued his former part-time employer, the Superior Court of California for the County of Imperial (Employer), contending that its refusal to hire him on a full-time basis was due to age and/or disability discrimination. (Fair Employment and Housing Act (FEHA); Gov. Code, § 12900 et seq.; all further statutory references are to this code unless noted.) Employer successfully brought a motion for summary judgment, seeking to establish that as a matter of law, Fraitag could not prevail on any cause of action because he could not establish that any age or disability discrimination took place when he was not hired on a full-time basis. (Code Civ. Proc, § 437c.) Employer relied on its showing in defense that legitimate nondiscriminatory business reasons existed for its decisions about Fraitag's employment status, e.g., that he was known to have gambled by telephone at the courthouse during business hours after being warned not to do so.
Fraitag appeals, contending the trial court erroneously granted summary judgment, because triable material issues of fact remain regarding whether the decision not to hire him was pretextual. He argues that the record shows there were other reasons cited at various times by different decisionmakers, besides gambling, that included concerns about his health issues, job references, and computer usage, and that further, it is unclear which management personnel made the decision not to hire him. Together, he argues, those inconsistencies about the hiring decision and investigations by administrative agencies created an inference of pretext, and he further contends Employer may have impermissibly considered the cost of retirement benefits that would have been incurred in hiring him, amounting to age discrimination.
After reviewing the record de novo, we conclude the trial court correctly granted summary judgment as a matter of law and the judgment must be affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
A. Background of Employment; Filing of 2005 Equal Employment Opportunity Commission (EEOC) and Department of Fair Employment and Housing (DFEH) Charge
From 1990 to 1997, Fraitag worked as an independent contractor, per diem court reporter for Employer. He left for some time to operate his own business. He was 74 in 2004, when, at the request of the court services coordinator, Jennifer Bolin, he started working again for Employer on a per diem basis, and he performed satisfactorily. In mid-November 2005, he used a courtroom telephone to place a bet on an athletic event, and was overheard by another court reporter who told Bolin about it. The court executive officer, Jose Guillen, instructed Bolin to tell Fraitag it was against the rules to use court property for gambling purposes on court time, and she told him that. Fraitag said he would get a personal cellular phone and use it on breaks.
In 2005, there were three openings for a regular full-time position with Employer, and Fraitag applied. On November 29, 2005, Bolin, the court executive officer, Guillen, and his assistant Kristine Kussman participated in the interview process. That day, Fraitag was observed while in the courtroom, making a phone call to a gambling agency.
On December 5, 2005, Employer's human resources coordinator, Linda Nunez, wrote Fraitag a standard rejection letter stating that although his interview and application were impressive, he was not selected for the position, but he was invited to visit the website for future employment opportunities. Fraitag was discharged from the part-time work also, and Fraitag said Bolin told him that someone in Sacramento had decided to stop using his services because he was a gambler. On December 12, 2005, Fraitag wrote to Employer asking why the part-time work had been terminated, and received a letter dated a week later stating that Employer had determined that its operational and staffing requirements were such that his contractor services were not presently required. At that time, two of the three open positions had been filled by younger women.
In December of 2005, Fraitag filed a complaint with the DFEH, alleging that the refusal to hire him was due to age discrimination. DFEH referred the matter to the EEOC. Right to sue letters were issued in December 2005 and April 2006, referring generally to both age and disability grounds. This action followed.
The investigator for the EEOC, Deborah Barnes, wrote to Employer asking for a statement of the reasons Fraitag was not hired. On January 25, 2006, Nunez responded on behalf of Employer that the two persons recently hired had favorable references and satisfactory job performance, while Fraitag, during his recent work as a contract reporter, "had performance issues that caused us to reject him for hire as a court employee." Specifically, he had used a courtroom telephone to gamble three times, although he had been told not to do so. (Later, at her deposition, Nunez stated that the courtroom telephone was used once but there were other personal gambling telephone calls after the warning.) Other reasons given to the EEOC for not hiring Fraitag were that he requested assignments with lighter caseloads, he had not received all positive job performance reviews, and his outside references were difficult to reach. He had also stated during the interview process that his reporter's dictionary in the computer software he used was not up to date. The decision not to hire him was made by the court executive officer, Jose Guillen, and Nunez.
In February 2006, Ms. Barnes interviewed Bolin to ask about the nonhiring decision, and Bolin said that she had concerns about Fraitag's health, which seemed to be declining a little bit. His medical issues included a shoulder injury and the use of a neck brace. Before Fraitag's job interview, he told Bolin that he was planning to get a recliner at work so he could take naps in the afternoon, and he had once called her while driving to work from San Diego to say he had stopped at a rest stop, due to tiredness. She reported his comments to the EEOC investigator.
B. Complaint; Amended Charge; Motion for Summary Judgment
In his second amended complaint, Fraitag pursued FEHA theories on age and disability discrimination, seeking damages and an injunction. His federal theories had been dismissed. He contended the job actions taken were pretextual in nature and discriminatory. In March 2007, he filed a second DFEH complaint against Employer to add disability discrimination charges, based on the notes taken by EEOC investigator Barnes, stating that Bolin had concerns in 2005 about Fraitag's health issues.
Employer moved for summary judgment or summary adjudication of issues. Employer argued the decision not to hire him on a full-time basis was made for valid, nondiscriminatory reasons. Specifically, Employer provided evidence that while Fraitag was working at the courthouse on a part-time basis, he was heard using a courtroom telephone for gambling and was warned by Bolin, a supervisor, to stop. However, he continued to use his own telephone for gambling while at the courthouse during the interview process, which showed some poor judgment and reflected badly on Employer. Also, his computer dictionary was not up to date, leading the interviewers to rank him lower than the other persons interviewed, and Employer had trouble contacting his outside job references. Fraitag had also listed Bolin as a reference and had provided a written reference from a judge at the courthouse.
Employer argued that it had made the decision not to hire Fraitag for a legitimate business reason, not because of any age or disability discrimination. In support, a declaration from Guillen, the court executive officer, stated that he interpreted the court code of ethics as barring gambling during work hours, because gambling did not promote public trust and confidence in the professionalism and conduct of court employees. In Bolin's declaration, she stated that after learning that Fraitag had gambled on court property, she told him not to place bets in the future from the courthouse while working at the court. She stated that Fraitag was ranked lower than the other applicants because he admitted that his dictionary was not as built-up as it should be.
With respect to the disability discrimination claim, Employer argued the second DFEH complaint was untimely, and in any case, the evidence demonstrated lack of knowledge by the decisionmakers of the existence or nature of any disability that Fraitag may have had at the relevant times.
Fraitag filed opposition to the summary judgment motion, arguing that the conflicts in the evidence about the various reasons given for not hiring him, as well as on which supervisors had made the decisions not to hire him and/or to discharge him as a per diem employee, gave rise to inferences of pretextual reasons being used as a cover for age or disability discrimination. He contended there was direct evidence of a motive for age discrimination, because Employer would have to pay him retirement and health insurance benefits if he became a full-time employee, and such benefits were a function of age. He also argued that he had complied with the instructions not to use the courtroom telephones for gambling, instead using his own telephone during breaks.
Regarding disability, he argued that the administrative agency investigation had brought up facts suggesting that his health condition or disability might have been considered in the hiring decision, because Bolin knew he had shoulder surgery and she thought he tired easily. He contended that the notes of the investigator, attached as an exhibit to Bolin's deposition, supported the amended charge and were based on the same general set of facts.
Defendant filed reply papers and evidentiary objections, criticizing Fraitag's reliance on the investigator's notes as hearsay and for lack of foundation.
C. Ruling
After hearing oral argument, the trial court granted the motion in favor of Employer on both discrimination claims. First, the trial court sustained in part and overruled in part Employer's evidentiary objections (to be further discussed as necessary).
Regarding the proper procedure, the court stated: "When plaintiff has established a prima facie case and defendant makes a showing of a legitimate, non discriminatory reason, the plaintiff bears the burden of showing the proffered reason was pretextual. [Citations.]" The court then concluded that Employer had presented evidence concerning Fraitag's gambling, which had nothing to do with age or disability. Fraitag had admitted that he was so admonished and was in fact told that this was the reason he was not hired and was terminated as a per diem reporter.
In analyzing the evidence, the court concluded Fraitag had failed to show the reasons given were pretextual. Although he attempted to show that he was not hired full time because Employer may have wanted to save on employee costs by not hiring a person who was near retirement, Fraitag could only speculate about that. The court stated:
"Plaintiff's showing is similar to those found not to constitute 'specific, substantial evidence of pretext . . . not created by speculation or conjecture.' [Citations.] Concerning the warning plaintiff was given, the question here is whether plaintiff was in fact not hired/fired for non-discriminatory reasons concerning gambling -- not whether he was in fact guilty of using court property or guilty of violating the warning. [Citation.] Defendant knew of plaintiff's age when they hired him as a pro tem and selected him for the interview process -- the pretext argument does not fit those facts. The time of the second incident right near the time the decision was made does."
The court's ruling next stated that the disability discrimination case could not be proved, because that there was no evidence that Fraitag's disability (e.g., shoulder or energy problems) was known to Employer: "All of the evidence indicates that neither Jose Guillen nor the others on the oral board were aware of any disability. Thus it did not play a part in the employment decision."
Further, the court ruled that Employer had come forward with a valid, nondiscriminatory reason for the decision, which had not been adequately rebutted by Fraitag (gambling at the courthouse during work hours, after being told not to do so). Fraitag had also failed to exhaust his administrative remedies on disability, since he did not originally mention any disability claims in his first filing, and his updated claim in March 2007 did not relate back to the original charge (under authorities such as Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718 (Martin), Fairchild v. Forma Scientific (1998) 147 F.3d 567 (Fairchild) and Rodriguez v. Airborne Express (2001) 265 F.3d 890). Since Fraitag's request for an injunction depended on the other two theories, the reasons for disposing of them also applied to that relief as well.
Fraitag appeals. At his request, by order of June 5, 2008, this court expedited the appeal because of his age and ill health.
DISCUSSION
Fraitag contends that summary judgment should not have been granted, because he was able to present a prima facie case of age and/or disability discrimination, but the trial court failed to recognize that Employer inadequately rebutted that showing. Employer was required to present creditable evidence of its reliance on legitimate business reasons that justified the decision not to hire him on a full-time basis, but Fraitag argues it did not do so. Instead, although Employer repeatedly referred to Fraitag's gambling behavior, it also relied on various other concerns, giving rise to possible inferences that gambling was a pretextual reason and a cover-up for alleged age or disability discrimination.
After setting forth our standard of review and applicable rules of law for resolving these FEHA claims, we examine the evidence and ultimately conclude the trial court correctly granted summary judgment.
I
STANDARD OF REVIEW: SUMMARY JUDGMENT
We review the trial court's ruling on the summary judgment motion on a de novo basis, and "apply the same rules and standards that govern a trial court's determination of a motion for summary judgment. [Citation.]" (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1258.) Because granting a summary judgment motion involves resolving questions of law, we must "reassess the legal significance and effect of the papers presented by the parties in connection with the motion. [Citation.]" (Id. at p. 1259.) Summary judgment should be granted if "all the papers submitted show that there is no triable issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).)
To prevail in a motion for summary judgment, a defendant must bear a burden of persuasion "that 'one or more elements of' the 'cause of action' in question 'cannot be established,' or that 'there is a complete defense' thereto. [Citation.] [¶] . . . [T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. . . . A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.)
"We accept as true the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them. [Citation.] However, to defeat the motion for summary judgment, the plaintiff must show ' "specific facts," ' and cannot rely upon the allegations of the pleadings. [Citation.] At the same time, we must bear in mind that, ' "[b]ecause discrimination cases often depend on inferences rather than on direct evidence, summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant." ' [Citations.]" (Spitzer v. The Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1385-1386; Brundage v. Hahn (1997) 57 Cal.App.4th 228, 234 (Brundage).)
With regard to the disability discrimination claim in particular, Fraitag contends the trial court erroneously excluded certain evidence, i.e., the notes taken by the EEOC investigator Barnes, that were attached to the Bolin deposition as an exhibit. To consider that evidentiary argument, "an appellate court reviews a court's final rulings on evidentiary objections by applying an abuse of discretion standard. [Citations.]" (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694 (Carnes).) Even where an appellant disagrees with the rulings made, reversal is not required if they are not shown to be incorrect. " 'Anyone who seeks on appeal to predicate a reversal of [a judgment] on error must show that it was prejudicial. [Citation.]' [Citation.]" (Ibid.) Although Employer contends that the evidentiary ruling had to be separately appealed, that underlying ruling is essentially subsumed in the judgment. On review of the record, we consider all the evidence set forth in the moving and opposition papers "except that to which objections have been made and sustained. [Citation.]" (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334 (Guz)). We may nevertheless examine the evidentiary ruling for abuse of discretion, as will be discussed in part IIIB., post.
II
APPLICABLE FEHA PRINCIPLES
Under FEHA, it is "an unlawful employment practice, unless based upon a bona fide occupational qualification . . . [¶] (a) For an employer, because of . . . physical disability . . . [or] age . . . to refuse to hire or employ the person or . . . to discharge the person from employment . . . ." (§ 12940, subd. (a).)
An employee who alleges age or disability discrimination must ultimately prove the employment action taken was based upon that set of circumstances. "Since direct evidence of such motivation is seldom available, the courts use a system of shifting burdens as an aid to the presentation and resolution of . . . discrimination cases. [Citations.] That system necessarily establishes the basic framework for reviewing motions for summary judgment in such cases. [Citations.]" (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1002.)
In Guz, supra, 24 Cal.4th 317, 355-356, the appropriate procedural sequence is explained by the Supreme Court as requiring the plaintiff to set forth evidence of a prima facie case, including circumstances that suggest there was a discriminatory motive for the job action taken. The defendant then has the opportunity "to rebut the presumption by producing admissible evidence, sufficient to 'raise[] a genuine issue of fact' and to 'justify a judgment for the [employer],' that its action was taken for a legitimate, nondiscriminatory reason." (Ibid.) The plaintiff will then "have the opportunity to attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. [Citations.] In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias. [Citations.] The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff. [Citations.]" (Id. at pp. 360-361.)
Interestingly, in Guz, supra, 24 Cal.4th at pages 356 to 357, the Supreme Court drew the following distinction about prohibited employer conduct: "[A]n inference of intentional discrimination cannot be drawn solely from evidence, if any, that the company lied about its reasons. The pertinent statutes do not prohibit lying, they prohibit discrimination. [Citation.] Proof that the employer's proffered reasons are unworthy of credence may 'considerably assist' a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons. [Citation.] Still, there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer's actions. [Citation.] Accordingly, the great weight of federal and California authority holds that an 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."
Part of the analysis in assessing whether an employer's actual motive was discriminatory requires the court or factfinder to keep in mind not whether the alleged employee misconduct leading to the adverse job action actually was carried out, but "whether at the time the decision to terminate his employment was made, [defendant employer], acting in good faith and following an investigation that was appropriate under the circumstances, had reasonable grounds for believing plaintiff had done so." (Cotran v. Rollins Hudig Hall Intern., Inc. (1998) 17 Cal.4th 93, 109 (Cotran).)
Another relevant consideration in a discrimination claim is whether the same person or supervisor (same actor) was responsible for both the hiring and the firing of a discrimination plaintiff. Where both of these actions " 'occur within a short period of time, a strong inference arises that there was no discriminatory motive.' [Citations.]" (Horn v. Cushman (1999) 72 Cal.App.4th 798, 809 (Horn).) Such an inference may be based on the theory that " ' "[c]laims that employer animus exists in termination but not in hiring seem irrational." ' " (Ibid.)
These general standards apply to both age and disability discrimination causes of action. (See Guz, supra, 24 Cal.4th at pp. 354-358; Brundage, supra, 57 Cal.App.4th at pp. 235-236.) "[W]hether or not a plaintiff has met his or her prima facie burden, and whether or not the defendant has rebutted the plaintiff's prima facie showing, are questions of law for the trial court, not questions of fact for the jury." (Caldwell v. Paramount Unified School District (1995) 41 Cal.App.4th 189, 201 (Caldwell).)
With these considerations, we next discuss whether triable issues remain on whether Employer has sufficiently established its defenses as a matter of law, or if Fraitag adequately rebutted its showing. His theory on appeal is that under the standards set by the United States Supreme Court, summarized above, "The fact finder's disbelief of the reasons put forward by the [defendant/respondent] may, together with the elements of the prima facie case, suffice to show intentional discrimination." (Saint Mary's Honor Center v. Hicks (1993) 509 U.S. 502, 511.) Fraitag contends that he proved a prima facie case, and further, this record contains "abundant evidence" to permit a trier of fact to disbelieve the reasons given for his nonhire and discharge.
III
ANALYSIS
A. Age Discrimination
On the age issue, we seek to determine whether triable issues remain, due to creditable evidence that the adverse employment actions were taken "because of" Fraitag's age, and without legitimate business reasons. (§ 12940, subd. (a); Guz, supra, 24 Cal.4th 317, 363.) We look to whether Employer's proffered reasons are "unworthy of credence," when coupled with any circumstantial evidence that discrimination may have occurred. (Id. at p. 361.) The employee has the burden of providing, in response to the showing made by Employer, that there is "evidence supporting a rational inference that intentional discrimination 'was the true cause' of the employer's job actions." (Ibid.) "The authorities suggest that, in an appropriate case, an inference of dissembling may arise where the employer has given shifting, contradictory, implausible, uninformed, or factually baseless justifications for its actions. [Citations.]" (Id. at p. 363.)
According to Fraitag, this is such a case of pretext, because Employer has given different reasons at different times for not hiring him on a full-time basis. First, the rejection letter he received invited him to apply again, which he argues should undermine any Employer claim that deciding against him because of his gambling behavior was the "core message" being sent in the adverse decision, as was argued at the hearing on the motion. Next, when Employer answered the letter from the EEOC investigator in January 2006, its representative Nunez relied not only on his performance issues, such as repeated gambling in the courthouse, but also on alleged difficulty in contacting his references, and on his admission that his computer dictionary was not up to date. Fraitag argues that the mention of these additional concerns raised an inference that his gambling was merely a pretext for discrimination, especially since he was not using the courtroom telephone a second or third time in placing bets, but instead was using his own cell phone, and only on breaks.
In July 2007, when Employer answered Fraitag's interrogatories, it stated that the adverse hiring decision was due to his poor job performance, i.e., gambling during work hours. The decision was said to be made by the court executive officer, Guillen, although earlier, Employer had stated that Guillen made the decision in conjunction with the human resources representative, Nunez. There was also evidence that Bolin told Fraitag that "someone in Sacramento" told them not to hire him permanently, and Fraitag contends that these discrepancies in identifying the decisionmaker show falsehoods on the part of Employer regarding the reasons for the decision. He thinks such discrepancies should prevent any Employer reliance on "the same actor doctrine" (i.e., he argues he has undercut any argument that Bolin, merely because she originally hired him part time and also participated in the full-time interviewing process, may not be attributed any discriminatory intent). (See Horn, supra, 72 Cal.App.4th at p. 809.)
Fraitag also argues Employer gave false reasons for not hiring him when it claimed it had difficulty contacting his outside references, since he had also provided a letter from one of the judges at the court and listed Bolin herself as one of his references. Although the telephone number he provided for his former outside employer was not an effective means of communication, Nunez was able to find a different one on the Internet and make that call, so he contends that was not a real reason for turning him down.
Further, Fraitag points to evidence that Bolin made several statements indicating concerns about his advanced age, such as whether he was going to need to take naps during the afternoon at work or would have difficulty getting to work after a long drive, and that Bolin realized this was not a joking matter. In any case, Bolin was not shown to have conveyed any such concerns to Guillen, who was identified as Employer's chief decisionmaker on the interview panel. According to Fraitag, there is still other evidence that could give rise to an inference of age discrimination, i.e., one of the applicants who was hired was 55 years younger than appellant, and one of the three positions that was open was not filled at the time.
In addition to the above factors, Fraitag suggests that the benefits to which he would have been entitled if he became a full-time employee would have been "a function of age," and therefore constitute direct evidence of a motive for age discrimination. From all those facts, he would conclude that Employer gave only pretextual reasons for discharging him.
In opposition to Fraitag's interpretation of the evidence, Employer pointed out that when he was recruited by Bolin to work at the court as a "per diem" court reporter, he was already 74 years of age, which was evidently not considered a problem at that time. Bolin was the person who warned him not to gamble at the courthouse, and she participated in the interviewing panel for the permanent position. Insofar as Fraitag claims she was prejudiced against him and therefore Employer was too, we think his circumstantial evidence showing is weakened by the "same actor" doctrine. (See Horn, supra, 72 Cal.App.4th at p. 809.)
Although Fraitag was found to be gambling while working at the court and warned to stop, nevertheless, at the time he was interviewing for a full-time court reporter position, he apparently continued to use his own telephone to place bets while at the courthouse during business hours. Through its executive officer's declaration, Employer stated that it decided not to hire him for a permanent position, because of concerns about his behavior in not complying with the court's code of ethics. Fraitag was not avoiding the appearance of impropriety or promoting the impression of impartial decisionmaking. It is not dispositive that all of his gambling was not illegal or did not use court property, since the discrimination issue focuses not upon the commission of an employee's actual rule violations, but on whether, "at the time the decision to terminate his employment was made, [defendant employer], acting in good faith and following an investigation that was appropriate under the circumstances, had reasonable grounds for believing plaintiff had done so." (Cotran, supra, 17 Cal.4th 93, 109.)
When responding to the DFEH/EEOC charge alleging age discrimination, the Employer expressly relied not only on the gambling issue but also on other nondiscriminatory reasons for not hiring him, such as difficulty in contacting his outside references and his computer dictionary update status (also his request for lighter caseloads and some negative reactions to his part-time work). Employer argues that the fact that it had other concerns did not serve to diminish the core reason, gambling, since those other concerns also amounted to legitimate nondiscriminatory employment-related criteria. According to Employer, its decision not to hire an applicant caught gambling during the interview process, despite a prior admonition, qualifies as a legitimate business reason, regardless of other concerns. We agree that those additional concerns reflected in the EEOC letter were not the kind of off-base, alternative reasons that would give rise to "an inference of dissembling," such as "shifting, contradictory, implausible, uninformed, or factually baseless justifications" for the adverse job decision. (Guz, supra, 24 Cal.4th at p. 363.)
Likewise, the sending of a generic rejection letter to Fraitag, stating that his interview and application were impressive, and he could visit the website for future employment opportunities, did not amount to false statements that were completely inconsistent with the core reason not to hire him, his gambling. No evidence was presented to substantiate any claim that the cost of employee benefits factored into its decision.
"[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." (Guz, supra, 24 Cal.4th at p. 361.) We think it is "creditable on its face" (id. at p. 357) for Employer to rely upon its code of ethics, as reasonably interpreted by managing personnel, to decide that Fraitag's past job performance had not entitled him to be appointed to the permanent position. Moreover, the other reasons given by Employer are not so inconsistent or factually baseless as to support Fraitag's claim that the nonhiring decision was chiefly attributable to "discriminatory animus" on the basis of his age. (Id. at p. 358.)
B. Disability Discrimination/Defense; Remaining Claims
To continue with his prima facie case regarding discrimination, Fraitag had to show he was subjected to an adverse employment action because of a disability or even a "perceived" disability. (§ 12926.1, subd. (b); see Brundage, supra, 57 Cal.App.4th 228, 236.) The burden then shifted to Employer to offer a legitimate nondiscriminatory reason for the adverse employment decision. In response, Fraitag had the burden of proving that Employer's proffered reason was untrue or pretextual. (Caldwell, supra, 41 Cal.App.4th 189, 196-197.)
Many of the legal issues concerning pretexts for discrimination have already been addressed above, and that rationale equally applies here to the same record references. Fraitag also brings separate procedural and evidentiary contentions regarding the disability claim. Fraitag's original EEOC claim in December 2005 was based on age alone, stating that younger, less qualified individuals were hired. In his second EEOC claim, in March 2007, he checked the box stating he was "laid off" based upon his age and disability. The right to sue letters that were issued by the DFEH and EEOC in December 2005 and April 2006 refer generally to either disability and/or age discrimination. The second claim was based on information gained from the notes taken by EEOC investigator Barnes, in February 2006. Fraitag contends that the trial court erroneously found that later claim untimely, and that a failure to exhaust administrative remedies barred his separate disability discrimination claim.
This issue hinges on whether his disability discrimination charge relates back to the date of the filing of his age discrimination charge. (Martin, supra, 29 Cal.App.4th 1718, 1723; Fairchild, supra, 147 F.3d 567, 574.) If an amended charge alleges an entirely new theory of recovery, it will not relate back to a timely filed original charge. (Id. at p. 575.) The test under EEOC regulations is whether the challenged amendment to the original charge "alleges additional acts related to or growing out of the same subject matter of the original charge." (Ibid.) If so, relation back is allowed (such as where two acts, failure to promote and termination, grew out of the same subject matter of the original charge). (Ibid.) However, the later claim will be deemed untimely if it alleges an additional basis for legal liability, rather than additional acts by the employer that were designed to pursue the original type of discrimination charged. (Ibid.)
It is part of the human condition that the process of aging may lead to various physical infirmities, and the particular effect of the aging process is different for each individual. Nevertheless, the factual allegations in this original age discrimination charge do not provide any support for a separate disability discrimination claim. Unlike the description in Fairchild, supra, 147 F.3d 567, this case does not involve subsequent acts by the defendant that were allegedly in violation of the same legal right of the plaintiff (e.g. demotion, termination). Even if we found there were a sufficient relationship between the two types of alleged discriminatory motivations in this set of facts (age and disability), Fraitag has still failed to prove that Employer's reasons for not hiring him were actually attributable to his disability, if any, or perceived disability. Employer provided evidence that no one on the interview panel knew of any disability on Fraitag's part at the time, and Bolin told the EEOC investigator that she did not convey any such concerns about Fraitag's health issues before the interview to Guillen, the main decisionmaker on the interview panel. Fraitag has not demonstrated disability played a part in the hiring decision. (§ 12926.1.)
Fraitag next challenges the trial court's evidentiary ruling that there was a lack of foundation for admissibility of the notes taken by EEOC investigator Barnes, because Bolin's knowledge of plaintiff's "medical issues" might be relevant to the adverse employment decision. He argues Bolin's later comments to the EEOC investigator were not too remote from the nonhiring decision, and they demonstrate that Employer must have had actual or constructive knowledge of some perceived disability on his part, even though he did not regard himself as disabled. He contends these notes, taken together with the evidence as a whole, are sufficient to raise triable issues of fact about discrimination against him on the basis of a perceived disability.
We find no abuse of discretion on the part of the trial court in sustaining the objection to this evidence, for lack of foundation, since the notes were attached as an exhibit to the deposition of Bolin, rather than to any authentication by Barnes. (See Carnes, supra, 126 Cal.App.4th at p. 694.) Even if erroneous, this evidentiary ruling did not result in any prejudice, because Fraitag had already brought forward other evidence that Bolin had concerns about his health issues, sufficiently making his argument that disability might have been considered by the decisionmakers (even though such evidence was ultimately rebutted by Employer). Employer provided declarations from its managing personnel that at the time of the interview and decision, they, the decisionmakers, did not know he was disabled, nor perceive him as disabled.
Where the employer has provided an explanation of nondiscriminatory business reasons for the employment decision, the plaintiff has the burden "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 317, 357.) Fraitag has not set forth admissible evidence to rebut the showing made by Employer that its decision not to hire him was free of any impermissible age or disability discriminatory intent. In conclusion, the injunctive relief claim based on the substantive discrimination claims must also fail. (§ 12970, subd. (a).)
DISPOSITION
Summary judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., NARES, J.