Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Jon M. Mayeda and Harold I. Cherness, Judges, Los Angeles County Super. Ct. No. BC349298
Alan Burton Newman for Plaintiff and Appellant.
Carlton, DiSante, & Freudenberger, Brent M. Giddens and Dorothy L. Black for Defendant and Respondent.
ZELON, J.
Plaintiff and appellant Rome Gagliano sued Angelica Textile Services, Inc. for age discrimination in violation of Government Code section 12940, subdivision (a). Angelica moved for and obtained summary judgment. On appeal, Gagliano contends that the trial court made what he characterizes as four errors of law and one error of fact, precluding summary judgment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Angelica was a linens provider for healthcare and hospitality clients. Gagliano was a district manager for Angelica’s Long Beach plant and had worked for Angelica for approximately 29 years. In December 2005, Angelica sold its Long Beach plant, including the plant’s customers, accounts, delivery routes, equipment, delivery vehicles, and non-healthcare linen inventory. As a result of the sale, Angelica eliminated Gagliano’s district manager position as well as the four other district manager positions at the Long Beach plant. Gagliano’s position was terminated and he lost his employment. Gagliano was not replaced; that is, no one at Angelica performed his job duties as district manager of the Long Beach plant after his position was terminated. However, two younger employees, Pat Magallanes and Randy Welter, were offered positions as Customer Relationship Managers (CRM), elsewhere within Angelica.
Gagliano sued, claiming age discrimination. He claimed that he was 63 years old and therefore protected from age discrimination by Government Code section 12940, subdivision (a). Gagliano complained that when the plant where he worked was sold, other similarly situated employees, who were significantly younger than he, were transferred to another division within the company, while Gagliano himself was let go. Gagliano argued that he was equally qualified to be transferred to another division of Angelica, and that the company’s failure to transfer him indicated that Angelica had illegally terminated his employment because of his age.
Angelica moved for summary judgment. Specifically, Angelica contended that Gagliano could not establish a prima facie case of age discrimination because his position was entirely eliminated in the sale of the Long Beach plant. Furthermore, even if a prima facie case of age discrimination were established, Angelica argued that it was entitled to summary judgment because it had a legitimate, non-discriminatory reason for terminating Gagliano: it no longer needed his services after the sale of the Long Beach plant, and the employees it transferred were selected via specific and legitimate criteria. Finally, Angelica argued that it was entitled to summary judgment because Gagliano could show no evidence that its stated reasons for discharging Gagliano were pretextual.
The trial court granted summary judgment in Angelica’s favor. This appeal followed.
DISCUSSION
On appeal from a summary judgment, we make “an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. [Citations.]” (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.)
Discrimination may be proven by direct evidence or by indirect evidence. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) As direct evidence of age discrimination is seldom available, California courts use the three-prong test for indirectly proving discrimination that was set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Guz, at p. 354.) First, the employee must establish a prima facie case of unlawful discrimination. (Ibid.) If he or she does so, a presumption of discrimination arises, and the burden shifts to the employer to articulate a legitimate, nondiscriminatory justification for the adverse employment action. (Id. at pp. 355-356.) If the employer does so, the presumption of discrimination disappears and the burden shifts back to the employee to demonstrate that the stated reason is a pretext for discrimination. (Id. at p. 356.)
In Guz, the Supreme Court recognized that the Courts of Appeal have developed two different methods for applying the McDonnell Douglas formula to an employer’s motion for summary judgment against a claim of prohibited discrimination. (Guz, supra, 24 Cal.4th at pp. 356-357.) Some courts require the plaintiff to present, at the outset, triable evidence of a prima facie case, thereby satisfying the first step of the McDonnell Douglas analysis. (E.g., Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805-807; Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.) Other decisions suggest that because a plaintiff opposing summary judgment need not demonstrate triable issues until the moving defendant has made an initial showing that the plaintiff’s case lacks merit, the McDonnell Douglas burdens are in essence reversed and the defendant must provide evidence of a nondiscriminatory purpose for the adverse employment action—the second step of the McDonnell Douglas formula—before the plaintiff is obligated to offer any evidence at all. (E.g., Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150-151.) Here, Angelica set forth competent admissible evidence showing a legitimate, nondiscriminatory business reason for its action, thereby shifting the burden to the plaintiff to demonstrate that a rational juror could find, more likely than not, that the employer’s proffered legitimate reason was untrue and that the motivation was discrimination, or that the asserted reason was merely a pretext for discrimination. (Guz, supra, 24 Cal.4th at p. 357; Martin v. Lockheed Missles & Space Co. (1994) 29 Cal.App.4th 1718, 1735; Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147, 1156.) “[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, at p. 361.) As Gagliano did not meet his burden, we conclude that Angelica was entitled to summary judgment.
As we do not focus on whether Gagliano established a prima facie case of age discrimination, we need not address the error Gagliano asserts in the trial court’s ruling that the fact that the two younger employees were transferred cannot create an inference of discrimination because they also were over 40 years old. We instead consider whether Angelica offered evidence of a legitimate, nondiscriminatory reason for terminating Gagliano’s employment, and then whether Gagliano has offered evidence from which a trier of fact could conclude that it was pretextual.
I. Legitimate, Nondiscriminatory Reason for Termination
Angelica’s evidence demonstrates a legitimate, nondiscriminatory reason for terminating Gagliano: it sold the portion of the business in which he worked and eliminated both his position and the need for Gagliano’s skills. It is undisputed that no one has performed Gagliano’s job since he was terminated. Gagliano contends that this is the entirety of the trial court’s reasoning on this question. In his first alleged error of law, he isolates two sentences from the trial court’s ruling on the motion for summary judgment in which the trial court observed that there was no evidence that Gagliano had been replaced by someone younger performing substantially the same job duties and that Gagliano’s position had been eliminated. Gagliano then argues that “[t]he trial court is confused. The question is whether Plaintiff was discriminated against because he was not offered a transfer as the younger District Managers had been.” We discern no error here. It is quite clear from the ruling as a whole that the trial court appreciated that Gagliano was arguing that he should have been offered a transfer too, as the court discussed whether the retention and transfer of employees Magallanes and Welter created an inference of age discrimination “as to why plaintiff was not retained after defendant’s structural reorganization.” Gagliano has not established any error in the trial court’s ruling here.
Performing our independent review, we conclude that Angelica met its burden on summary judgment by offering evidence from which a trier of fact could conclude that there was a legitimate, nondiscriminatory reason why Gagliano was not offered the transfer the younger employees were. Angelica provided evidence that Gagliano was not offered a new position as a CRM with Angelica when younger employees Magallanes and Welter were because the CRM position required computer skills that Gagliano did not have but that Magallanes and Welter did possess. Gagliano attempted to counter these asserted facts by contending that the position did not require computer skills, that his computer skills were sufficient, and that Magallanes and Welter did not have the necessary computer skills, but he has not established a triable issue of material fact here.
Angelica produced evidence in the form of a declaration from an Angelica Market Vice President that the CRM position “required that an individual have well developed computer skills[,] as a CRM would be required to, among other things, enter all ‘customer call activity’ on the computer system, use the e-mail system to compose and respond to a variety of e-mails, prepare client proposals, analyze a customer’s linen inventory, and create detailed spreadsheets for advising clients about their linen and management.” Gagliano disputed that fact, stating, “Plaintiff denies that well developed computer skills are required for the CRM position.” Gagliano pointed to two pieces of evidence, only one of which did he include in the record on appeal and therefore make available for consideration. Paragraph 18 of Gagliano’s declaration stated, “In order to perform the duties of the CRM position, both Mr. Magallanes and Mr. Welter had to learn new customer requirements. The computer program for the CRM is different, but not more difficult, than the program used for the District Manager position. Mr. Magall[a]nes and Mr. Welter had to be trained on how to use the program for the CRM position. The training period to learn the customer requirements and computer skills is approximately one year.” Not only is there no explanation in this passage as to how any of these assertions are based on Gagliano’s personal knowledge, but none of these alleged facts create a factual dispute as to whether computer skills are required for the job. Indeed, it appears that Gagliano agrees that a universe of computer skills is required. Gagliano has not established a disputed issue of material fact with respect to computer skills being necessary for the CRM position.
Gagliano has also not demonstrated a triable issue of material fact as to whether he possessed those computer skills. In its separate statement, Angelica asserted that it was an undisputed material fact that Gagliano “did not have the sufficient computer skills as he had only started using a computer for work-related tasks when he became a District Manager” in 2005. As supporting evidence for this assertion, Angelica included portions of Gagliano’s deposition, in which he testified, “Since I became a district manager in January of 2005, that’s when I had to learn the computer.” Gagliano had used other people’s computers before that, but he “learned more on the computer” in 2005: “That’s when I used it the most.” When he became a district manager in 2005, it was the first time that his job responsibilities required him to use a computer. Before that time, he had not used e-mail at work.
Gagliano disputed Angelica’s assertion that he lacked the necessary computer skills for the CRM position: “Plaintiff had sufficient computer skills. Plaintiff had been using the computer for work-related tasks for many years as a Sales Representative prior to becoming a District Manager.” Gagliano’s sole evidence for his claim was a portion of the declaration he submitted in opposition to the motion for summary judgment. It read, “At the time of my termination, I had the same level of computer proficiency as Mr. Magallanes and Mr. Welter. I had greater computer proficiency than Steve Jones. I was never counseled nor written up for any computer-related deficiencies.” This conclusory evidence fails to support Gagliano’s assertion in his response to the separate statement that he had been using the computer for work-related tasks for many years as a Sales Representative prior to becoming a District Manager. Moreover, only by inference can the supporting evidence be interpreted as supporting the contention that Gagliano’s skills were adequate for the new position: if Magallanes’s skills and Welter’s skills were adequate, and Gagliano was equally proficient, then he had adequate computer skills. More problematically, Gagliano’s declaration does not establish the basis for his evaluation of his computer skills in comparison to those of Magallanes or Welter: he does not assert that he reviewed their computer skills, that he had the opportunity to observe them, or that he had any personal knowledge that he was equally proficient on the computer. Gagliano failed to make a showing that there was a triable issue of material fact as to whether he possessed the requisite computer skills to perform the CRM position.
Angelica submitted evidence that Magallanes and Welter had the requisite computer proficiency. Both had been using computers for the duration of their jobs as district managers: Magallanes for approximately 10 years, Welter for four to five years. To dispute this, Gagliano offered another reference to Paragraph 18 of his declaration, in which he had stated in relevant part, “The computer program for the CRM position is different, but not more difficult, than the program used for the District Manager position. Mr. Magall[a]nes and Mr. Welter had to be trained on how to use the program for the CRM position. The training period to learn the customer requirements and computer skills is approximately one year.” Aside from the absence of any apparent foundation for these statements, there is also the problem that this evidence, even if accepted, merely establishes that the computer programs are different enough that training is required; it does not demonstrate that Magallanes or Welter lacked the requisite computer proficiency to be able to perform the computer tasks required in the CRM position. Gagliano has failed to establish that there is a disputed issue of material fact as to the sufficiency of Magallanes’ and Welter’s computer skills.
With its evidence that the CRM position required computer proficiency that Gagliano lacked and that Magallanes and Welter possessed, Angelica met its burden to produce evidence that its action was taken for a legitimate nondiscriminatory reason. (Guz, supra, 24 Cal.4th at p. 356.)
II. Pretext
In light of Angelica’s evidence that it had a legitimate, nondiscriminatory reason for retaining Magallanes and Welter but terminating Gagliano, the burden shifted to Gagliano to offer evidence that the asserted reason for termination was not actually Angelica’s true reason, but that it was a pretext for discrimination.
Gagliano asserts that Angelica’s discriminatory purpose is shown by four comments made by Gagliano’s immediate supervisor and friend, Steve Jones. At deposition, Gagliano testified that two days after he was terminated he told Jones that he had chosen not to take a position offered to him elsewhere because the position did not come with the offer to use a company car. Jones, whom Gagliano testified had been his friend for “20 some years,” said, “You know, nobody is giving cars anymore,” and asked Gagliano, “How stupid can you be?” Then, according to Gagliano, Jones said, “You have very little to offer. You’re a 63-year-old man.” When asked at deposition, “Did you ever have any other discussions with Mr. Jones about your age?” Gagliano answered, “No.” Despite this testimony, Gagliano declared in opposition to the summary judgment that Jones had actually made three additional age-related statements, asking “Why don’t you just retire?” three times in the year preceding his termination. Declarations may be used to explain one’s prior deposition testimony, but when there is no need for an explanation, they cannot be used to evade one’s prior deposition testimony. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22, disapproved on another ground in Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 1, 21; Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1503; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1524-1525 [trial court may disregard declaration that contradicts discovery responses but may not ignore credible evidence that explains a party’s answers].)
Gagliano argues that the court erred as a matter of fact in stating that there was only one age-related comment made, and points to his evidence that Gagliano was asked on three occasions by Jones why he did not just retire. Apparently Gagliano believes that by describing the “little to offer” exchange as “an isolated incident,” the trial court made a finding of fact that only one alleged age-related comment was made. We understand this not as an error in appreciating the evidence placed before the trial court, but as an implicit evidentiary ruling (or perhaps as a reference to an evidentiary ruling made elsewhere, as we can tell from the record that evidentiary objections were made and ruled upon but not included in the record on appeal) that the three other allegedly discriminatory statements were inadmissible. This was not an abuse of discretion. (D’Amico v. Board of Medical Examiners, supra, 11 Cal.3d at pp. 21-22; Niederer v. Ferreira, supra, 189 Cal.App.3d at p. 1503; Scalf v. D. B. Log Homes, Inc., supra, 128 Cal.App.4th at pp. 1524-1525.) We too disregard the three retirement statements mentioned for the first time at the eleventh hour because they directly contradict Gagliano’s prior deposition testimony and Gagliano made no showing that there was any misunderstanding or need for clarification of the deposition testimony on this point.
The trial court considered the statement about having little to offer to be a stray comment unrelated to Gagliano’s termination. In his third alleged error of law, Gagliano claims that the trial court drew this conclusion simply because Gagliano and Jones were longtime friends, but that is not the case. After mentioning that the speaker, Gagliano’s supervisor, was also a friend with whom Gagliano often discussed non-work-related issues, the court made its actual ruling: “The evidence further shows that during an isolated incident where plaintiff and Mr. Jones were discussing whether plaintiff should accept another job offer, Mr. Jones made the comment, ‘You know you have very little to offer. You’re a 63 year old man.’ Made in this context, these comments are nothing more than ‘stray comments’ and do not create an inference of age discrimination as to why plaintiff was not retained after defendant’s structural reorganization . . . .”
We reach the same conclusion the trial court did. The comment does not support an inference that the adverse employment action was motivated by discriminatory animus. The evidence demonstrated that this comment was not connected to Angelica’s decision to terminate Gagliano, but instead was made after Gagliano’s employment was terminated, in the context of discussing with a friend whether he should accept another position. The post-termination words of a former supervisor and longtime friend expressing great dismay that Gagliano had turned down a new position because no company car was offered simply do not tend to demonstrate that Angelica elected not to transfer Gagliano on the basis of age. At the very most, Jones’s words could be considered to constitute a “stray comment” that did not create an inference of age discrimination. (Gibbs v. Consolidated Services (2003) 111 Cal.App.4th 794, 801 [comments unrelated to adverse employment action are stray and do not establish age discrimination]; see also Patel v. Midland Memorial Hosp. and Medical Center (5th Cir. 2002) 298 F.3d 333, 343-344 [for workplace comments to provide sufficient evidence of discrimination, they must be related to the protected class of persons of which the plaintiff is a member, proximate in time to the adverse employment action, made by an individual with authority over the employment decision, and related to the employment decision at issue].)
Moreover, Jones was not the individual who decided whether to offer Gagliano a new position within Angelica. Jones, along with three others at Angelica, made recommendations of 11 people to hire to fill the 11 CRM positions, and then Senior Vice President Richard Oliva made the final decision about job offers. While the courts disagree on the precise circumstances in which biased comments by employees without decision-making authority may be evidence of discriminatory intent by an employer (see, e.g., Hill v. Lockheed Martin Logistics Mgmt., Inc. (4th Cir. 2004) 354 F.3d 277, 290-291; Lust v. Sealy, Inc. (7th Cir. 2004) 383 F.3d 580, 584-585; Poland v. Chertoff (9th Cir. 2007) 494 F.3d 1174, 1181-1183), Gagliano has not demonstrated that Jones had sufficient influence over Oliva’s decision making such that this comment, even if it could somehow be considered to evince discriminatory animus, could be interpreted as evidence of discriminatory intent by Angelica.
III. Direct Evidence
Gagliano contends that he need not demonstrate that Angelica’s reason for terminating his employment was pretextual, because evidence of pretext is only required when there is no direct evidence that Gagliano was terminated because of his age. According to Gagliano, Jones’s comment about having little to offer was “directly related” to his termination and “by its terms is discriminatory.” We disagree. “Direct evidence is evidence which proves a fact without inference or presumption.” (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1145.) In an age discrimination case, it “must indicate that the complained-of employment decision was motivated by the decision-maker’s ageism. As a result, ‘only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of age’ will constitute direct evidence of discrimination.” (Damon v. Fleming Supermarkets of Florida, Inc. (11th Cir. 1999) 196 F.3d 1354, 1359.) Jones’s comment does not meet this high standard. Not only was Jones only a person making recommendations rather than the ultimate employment decisions here, but the comment was made after the termination and was made in an entirely separate context from the termination—i.e., in a discussion about how the wisdom of Gagliano’s conditions for an acceptable employment offer. Jones’s words are not among those most blatant remarks whose intent could be nothing other than discriminatory—inferences are needed to conclude that Jones’s stated feelings about Gagliano’s post-termination employment selectivity revealed a bias that had motivated the termination of Gagliano’s employment from Angelica. Gagliano did not offer direct evidence of discrimination.
IV. Conclusion
Angelica met its burden with respect to the summary judgment motion. Gagliano offered no direct evidence of discrimination, and he failed to demonstrate triable issues of material fact with respect to whether Angelica had a legitimate, nondiscriminatory reason for failing to offer him a transfer or whether the reason was a pretext for age discrimination. “If the employer presents admissible evidence either that one or more of plaintiff’s prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing.” (Caldwell v. Paramount Unified School Dist., supra, 41 Cal.App.4th at p. 203.) The trial court properly granted summary judgment in Angelica’s favor.
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.
We concur: PERLUSS, P. J., WILEY, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.