Opinion
D056681
09-15-2011
ROBERT GONZALES,Plaintiff and Appellant, v. CITY OF SAN DIEGO et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 37-2008-00091832-CU-WT-CTL)
APPEAL from a judgment of the Superior Court of San Diego County, Judith F. Hayes, Judge. Affirmed.
Robert Gonzales appeals the summary judgment entered against him on claims of discrimination and retaliation he asserted against the City of San Diego and the San Diego Police Department (collectively the City) after the City terminated his employment as a police officer in training. The City has moved for dismissal and sanctions on the ground the appeal is frivolous. We deny the City's motion and affirm the summary judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Gonzales's Hiring and Training
The City hired Gonzales to train to become a police officer. Gonzales is Hispanic and was 48 years old when he was hired. He completed six months of instruction at the police academy and then began another six months of training with various police officers in the field.
Field training is designed to give police officer trainees experience in several areas of police conduct, including arrest procedures, responding to crimes in progress, neighborhood policing and problem solving, officer safety, radio communications, location and orientation, report writing, and traffic stops. Field training consists of four phases that give a trainee a progressively increasing level of responsibility until the trainee is able to function independently. All of the officers who trained Gonzales reported serious deficiencies in his performance in each training phase.
During phase 1 training, the field training officer reported that Gonzales repeatedly filled out interview and citation forms incompletely or inaccurately and continued to "make the same mistakes over and over, even after discussing the prior mistakes." After Gonzales completed this phase, the training officer felt that Gonzales was "on the low end" of all trainees and "just did not seem to get it."
The phase 2 training officer also documented deficiencies in Gonzales's performance. The evaluation forms for this phase describe numerous problems Gonzales had with officer safety, report writing, traffic stops, determining location, and radio communications.
Phase 3 training was particularly problematic for Gonzales, and he had to go through it three times. The officer who conducted Gonzales's first phase 3 training stated that Gonzales "had a very difficult time multi-tasking" (e.g., monitoring the radio while driving) and "significant trouble retaining things demonstrated or explained to him," and he recommended that Gonzales repeat phase 3 training. The officer who trained Gonzales when he first repeated phase 3 training similarly concluded Gonzales was "not ready to proceed to the next level of training" because he "had continual problems with several performance [areas]"; "was not able to multi-task"; and "never appeared to perceive danger in certain situations when he should have." The training officer during the second repetition of Gonzales's phase 3 training noted that corrective intervention was required on several occasions regarding preparation, report writing, location and orientation, officer safety, and radio communication; but he nonetheless concluded Gonzales had "develop[ed] the basic skills necessary to move on to his fourth training phase."
Illustrative of the many documented deficiencies in Gonzales's performance during phase 3 of his field training were the following incidents: (1) When Gonzales responded to a call for domestic violence, he made no attempt to separate the suspect from the victim before interviewing them. (2) In response to a call concerning a mentally ill woman who was striking people with a club, he did not initially restrain or frisk the woman for weapons but later found sharp tweezers in her pocket. (3) When responding to a burglar alarm at a bank, Gonzales stopped the patrol car right in front of the bank; after the training officer told him not to stop there, Gonzales became so flustered he pulled away and almost drove into oncoming traffic. (4) After making a traffic stop, he did not know where he was and radioed headquarters a location three blocks away. (5) Gonzales lost his notes from a gang-related narcotics investigation. (6) He lost a citation by leaving it on the hood of a patrol car and driving away. (7) On multiple occasions, Gonzales had difficulty determining the quickest route to the scene of a reported crime, got lost while en route to the scene, or took too long to arrive at the scene. There were many other incidents described in the phase 3 training officers' daily evaluations, but these examples suffice to establish the seriousness and the extent of the deficiencies in Gonzales's performance of basic police duties.
Gonzales did not perform well in phase 4 training, however. Among the many deficiencies documented in the daily evaluations of Gonzales's performance are the following: (1) failing to frisk potentially dangerous suspects for weapons; (2) failing to notice moving traffic violations observed by the field training officer; (3) unsafely parking the patrol car during traffic stops; (4) driving several blocks at night without turning on the lights of the patrol car; and (5) continuing to get lost and be disoriented when responding to calls. Based on the evaluations, the training officer noted that Gonzales's performance was unacceptable in several areas, needed improvement in another, and was inconsistent from day to day. The training officer concluded Gonzales was not ready to patrol the streets on his own and should not advance to that level.
B. Gonzales's Reassignment and Termination
After the failure of phase 4 training, the field training administration sergeant advised Gonzales that he had failed to progress, had been found unable competently to perform the duties of a police officer, and therefore had failed to complete the field training program satisfactorily. The sergeant reassigned Gonzales to a telephonic report unit pending an investigation into his failed field training. The sergeant subsequently forwarded a report to the training division captain recommending that Gonzales fail his probationary period and be terminated based on his incompetent performance during field training.
The training division captain reviewed the field training administration sergeant's report and the report of an investigation into complaints Gonzales had made about other officers to the lieutenant for field training administration (see part I.C., post). Based on these reports, which documented Gonzales's consistently poor performance during field training and rated his performance unacceptable in five categories, the captain notified Gonzales that she intended to recommend to the chief of police that he be failed in his probationary period as a police officer. Gonzales requested and participated in an informal hearing to contest the recommendation, in accordance with police department procedures. After the informal hearing, the training division captain notified Gonzales in writing that she would recommend his failure of probation to the chief of police and stated her reasons for doing so. The chief of police, in turn, notified Gonzales in writing he had failed probation and his employment was being terminated. After his termination, Gonzales unsuccessfully pursued an internal appeal of the decision to terminate his employment.
C. Gonzales's Complaints to Coworkers and the City About His Training
At various times during his employment as a police officer in training, Gonzales complained to other members of the City's police department about the inadequacy of his training. For example, after he was informed he would have to repeat phase 3 training, he complained to a field training administration supervisor that he "was being cheated in [his] training" and that "these people were not giving [him] the training [he] was due to have." He also told a field training administration officer that his training officers "were very lazy, unmotivated, [and] not prepared to work." According to Gonzales, some of his training officers actually slept on the job. He did not, however, complain that his training officers were giving him inadequate training because of his race or age.
Later, after Gonzales failed field training and was reassigned to a telephonic report unit, he initiated an internal affairs investigation by speaking to an investigative sergeant about members of the field training administration. Specifically, Gonzales testified at his deposition that a field training officer had instructed the officer who conducted Gonzales' third phase 3 training not to train Gonzales and to let him fail the program. He further testified that he complained that he "was being retaliated against and discriminated against," but he did not identify who was retaliating or discriminating against him or claim that the retaliation and discrimination were based on his race or age.
Gonzales contradicted his deposition testimony in the declaration he submitted in opposition to the City's motion for summary judgment, where he stated that he told the internal affairs investigator he was discriminated against based on his age and nationality. A party opposing summary judgment may not create a triable issue of fact by submitting a declaration that contradicts his own prior deposition testimony. (E.g., Shin v. Ahn (2007) 42 Cal.4th 482, 500, fn. 12 (Shin); Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087.) We thus consider only Gonzales's deposition testimony on the matter in reviewing the trial court's decision to grant summary judgment.
Gonzales also testified at his deposition that he complained to the lieutenant for field training administration that he suffered racial discrimination and retaliation during field training. He also mentioned that some of his field training officers slept on the job and that other Hispanic officers trained by one of the officers who trained him also failed their field training. An internal investigation into Gonzales's allegations found them to be unfounded.
In his declaration in opposition to the City's motion for summary judgment, Gonzales stated that he also reported discrimination and retaliation to the lieutenant's immediate successor. At his deposition, however, Gonzales testified he did not tell the successor about discrimination or retaliation. With respect to Gonzales's reports of discrimination and retaliation, we therefore disregard his declaration and consider only his deposition testimony. (See fn. 2, ante.)
Finally, after Gonzales was terminated, he contacted the City's Equal Employment Investigations Office and complained about discriminatory and retaliatory treatment during his field training. The Office informed him that since he failed probationary employment and never obtained permanent employment status with the City, the Office had no jurisdiction over his grievance. D. The Trial Court Proceedings
In his complaint, Gonzales alleged the City denied him the right to file an internal complaint about discrimination and retaliation, did not properly investigate his complaints about his field training officers, and denied him a fair hearing to challenge his termination. In support of its motion for summary judgment, the City submitted evidence (summarized in part I.B. & C., ante)to refute these allegations. Gonzales offered no evidence and made no argument concerning the allegations in opposition to the City's motion, and he did not mention them in his brief on appeal. We therefore deem any claim based on these allegations to have been abandoned. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 285; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 710-711.)
Gonzales filed a first amended complaint against the City in which he asserted the City violated the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) by terminating his employment because of his national origin (Hispanic) and age (over 40) and in retaliation for his previous complaints of discrimination by field training officers. Gonzales sought compensatory damages and costs, including attorney fees.
It is unclear whether Hispanic is technically a race or a national origin for purposes of the antidiscrimination laws. (See, e.g., Alonzo v. Chase Manhattan Bank, N.A. (S.D.N.Y. 1998) 25 F.Supp.2d 455, 459 [noting some courts have treated Hispanic as race and others have treated it as national origin category but concluding it was merely "a semantic distinction"]; Sandhu v. Lockheed Missiles & Space Co. (1994) 26 Cal.App.4th 846, 852-855 [tracing debate in federal courts over whether discrimination against Hispanics was based on race, national origin, or ethnicity].) Since the FEHA prohibits discrimination on the basis of both race and national origin (Gov. Code, § 12940, subd. (a)) and the parties have at various times used the two categories interchangeably in this case, we need not and do not resolve the issue.
The City moved for summary judgment or, alternatively, summary adjudication (Code Civ. Proc., § 437c), on the ground that it had legitimate, nondiscriminatory, and nonretaliatory reasons for discharging Gonzales. Specifically, the City contended, based largely on declarations and evaluations from Gonzales's field training officers, that Gonzales was discharged as a police officer because of his incompetent performance. Over Gonzales's opposition, the trial court granted the City's motion and entered judgment for the City on all claims.
II
DISCUSSION
A. The City's Motion to Dismiss
After briefing was completed, the City filed a motion to dismiss the appeal on the grounds that the appeal is frivolous and was taken for the purpose of delay. Gonzales filed opposition to the motion, and the City filed a reply. We notified the parties we would consider the motion to dismiss with the appeal. We now deny the motion.
Appellate courts have power to dismiss an appeal that is based upon wholly sham or frivolous grounds. (Ferguson v. Keays (1971) 4 Cal.3d 649, 658.) Dismissal is appropriate when the frivolous character of the appeal can readily be determined from a brief inspection of the record. (See, e.g., McFadden v. Dietz (1897) 115 Cal. 697, 698; Olsen v. Harbison (2005) 134 Cal.App.4th 278; Zimmerman v. Drexel Burnham Lambert Inc. (1988) 205 Cal.App.3d 153, 162.) When, however, it is necessary to conduct a thorough review of the record and analysis of the merits of the appellant's contentions in order to determine whether the appeal is frivolous, the general rule is that a motion to dismiss will be denied. (See, e.g., Gogerty v. Coachella Valley Junior College Dist. (1962) 57 Cal.2d 727, 729; Johnson v. Sun Realty Co. (1932) 215 Cal. 382, 383; Crook v. Crook (1960) 184 Cal.App.2d 745, 751.) "The general rule is grounded on policies of avoiding double work by this court and avoiding unwarranted advancement of the case on calendar." (Olsen, at p. 284, fn. 5.) Thus, rather than dismiss an appeal that is found to be frivolous after full review of the record and analysis of the merits, appellate courts generally affirm the judgment and award sanctions against the appellant. (See Cal. Rules of Court, rule 8.276(a)(1) [authorizing imposition of sanctions for frivolous appeal]; Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 168-169 [affirming judgment and awarding sanctions for frivolous appeal]; In re Marriage of Mason (1996) 46 Cal.App.4th 1025, 1028 [same].)
The general rule applies here. Gonzales has appealed the summary judgment entered against him, contending he presented evidence disclosing material factual disputes as to his FEHA claims against the City. To determine whether his contentions have merit, we must independently review all of the nonexcluded evidence that was before the trial court when it granted the City's motion for summary judgment and decide whether, under the governing law, the evidence shows there is a triable issue of fact. (See Code Civ. Proc., § 437c, subd. (c); Shin, supra, 42 Cal.4th at p. 499; Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1320.) Even if we find Gonzales's contentions to be frivolous after our independent review, "[o]nce the record has been reviewed thoroughly, little appears to be gained by dismissing the appeal rather than deciding it on its merits." (People v. Wende (1979) 25 Cal.3d 436, 443.) We therefore deny the City's motion to dismiss the appeal and proceed to decide it on the merits. B. Gonzales's Appeal
Gonzales contends the trial court erred in granting the City summary judgment because he presented triable issues of fact on his claims that the City discriminated against him based on age and national origin and retaliated against him for complaining about such discrimination. After setting forth the applicable standard of review and the general legal principles applicable to Gonzales's claims, we will apply those principles to the summary judgment record to determine whether it contains evidence of material factual disputes that require a trial. Finally, we will address the various other arguments for reversal that Gonzales urges on appeal.
1. Standard of Review
On appeal from a summary judgment in favor of the defendant, "[t]he rules of review are well established. If no triable issue as to any material fact exists, the defendant is entitled to a judgment as a matter of law. [Citations.] In ruling on the motion, the court must view the evidence in the light most favorable to the [plaintiff]. [Citation.] We review the record and the determination of the trial court de novo." (Shin, supra, 42 Cal.4th at p. 499.)
2. General Legal Principles Applicable to Summary Judgment in FEHA Discrimination and Retaliation Cases
a. Discrimination
The FEHA prohibits an employer from discriminating against an employee based on certain characteristics. As pertinent here, the FEHA makes it "an unlawful employment practice" for "an employer because of the race, . . . national origin, . . . [or] age . . . of any person, . . . to discharge the person from employment or from a training program leading to employment." (Gov. Code, § 12940, subd. (a), italics added.)
To establish a claim of discrimination under the FEHA, "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).) Ordinarily, the employee has an initial burden to prove each of these elements in order to raise a presumption of discrimination; and then the burden shifts to the employer to rebut the presumption, often by introducing evidence of legitimate, nondiscriminatory reasons for the adverse employment action. (Id. at pp. 355-356.)
"A defendant employer's motion for summary judgment slightly modifies the order of these showings." (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097.) An employer may satisfy its initial burden "by setting forth competent, admissible evidence to show legitimate, nondiscriminatory reasons for its action. [Citation.] It is then the employee's burden to rebut the employer's showing by pointing to evidence which raises an inference that intentional discrimination did occur. '[A] plaintiff's showing of pretext,[] combined with sufficient prima facie evidence of an act motivated by discrimination, may permit a finding of discriminatory intent, and may thus preclude judgment as a matter of law for the employer. [Citation.]' " (Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1194 (Villanueva).)Summary judgment for the employer is proper, however, if the employee is unable to rebut the employer's showing of a legitimate, nondiscriminatory reason for its action against the employee. (Guz, supra, 24 Cal.4th at pp. 369-370.)
To show pretext, the employee must prove by competent evidence "that the presumptively valid reason for the employer's action was in fact a coverup." (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388.) A showing of pretext requires evidence of such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the employer's proffered legitimate reasons that a reasonable trier of fact could find those reasons unworthy of credence and conclude they are pretextual. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 80 (Morgan).)
b. Retaliation
The FEHA also prohibits an employer from retaliating against an employee for engaging in certain protected activities. As pertinent here, the FEHA makes it "an unlawful employment practice" for "any employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." (Gov. Code, § 12940, subd. (h), italics added.)
"[T]o 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. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ' " 'drops out of the picture,' " ' and the burden shifts back to the employee to prove intentional retaliation." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) If the employee does not submit competent evidence from which a trier of fact could conclude the employer's articulated reason for the adverse employment action was pretextual and its real reason was retaliatory, then the employer is entitled to summary judgment. (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1113 (Loggins).)
3. Application of General Legal Principles to the Record Before the Trial Court on the City's Motion for Summary Judgment
The trial court granted the City's motion for summary judgment on the ground that each of Gonzales's FEHA claims (national origin discrimination, age discrimination, and retaliation) failed as a matter of law because the City properly discharged him for poor performance on the job. Therefore, under the principles discussed in part II.B.2., ante, we must determine (1) whether the City submitted admissible evidence to establish a legitimate, nondiscriminatory, and nonretaliatory reason for the discharge; and (2) whether Gonzales submitted admissible evidence to establish that the City's proffered reason was pretextual and its real reason for discharging him was unlawful discrimination or retaliation. We will address each issue in turn.
a. The City Sustained Its Initial Burden to Establish a Legitimate, Nondiscriminatory, and Nonretaliatory Reason for Terminating Gonzales's Employment
To establish its reason for discharging Gonzales, the City submitted declarations from Gonzales's field training officers and others involved in his training and supervision, as well as copies of evaluations and other documents. All of the declarants criticized various aspects of Gonzales's performance, and most were of the opinion that he lacked the necessary skills to perform competently as a police officer in the field. The evaluations document that Gonzales repeatedly had difficulties with such routine and basic tasks as using a map to figure out where he was and how to get to another location, filling out citations, communicating with police headquarters on the radio, and recognizing potential dangers to his own safety and that of others. (See part I.A., ante.)
This evidence demonstrated that Gonzales was not satisfactorily performing essential functions of the job of a police officer and provided a legitimate, nondiscriminatory reason for termination. (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1149; Gibbs v. Consolidated Services (2003) 111 Cal.App.4th 794, 800 (Gibbs).)The same evidence also established a legitimate, nonretaliatory reason for the discharge, because poor job performance has repeatedly been recognized as such. (E.g., Pinkerton v. Colorado Dept. of Transp. (10th Cir. 2009) 563 F.3d 1052, 1065; Farley v. Nationwide Mut. Ins. Co. (11th Cir. 1999) 197 F.3d 1322, 1337; Wrighten v. Metropolitan Hospitals, Inc. (9th Cir. 1984) 726 F.2d 1346, 1353; Smith v. Pefanis (N.D.Ga. 2009) 652 F.Supp.2d 1308, 1332.) The evidence was therefore sufficient to shift the burden to Gonzales to submit evidence that the City's proffered reason for discharging him was merely a pretext for unlawful discrimination or retaliation. (Code Civ. Proc., § 437c, subd. (p)(2); Guz, supra, 24 Cal.4th at p. 356; Loggins, supra, 151 Cal.App.4th at p. 1112.)
"Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes." (Guz, supra, 24 Cal.4th at p. 354.)
b. Gonzales Did Not Sustain His Burden to Raise a Triable Issue of Fact That the City's Proffered Reason for Discharging Him Was Pretextual and That Its Real Reason Was Unlawful Discrimination or Retaliation
In opposition to the City's summary judgment motion, Gonzales argued the City's decision to fire him on the ground of incompetence was pretextual. "A nonmoving plaintiff may show pretext either indirectly by demonstrating that the employer's stated reasons for its adverse action were not credible, or directly by establishing that the employment decision was more likely motivated by a discriminatory reason." (Nelson v. United Technologies (1999) 74 Cal.App.4th 597, 614.) As we shall explain, Gonzales did not show pretext either indirectly or directly.
i. Gonzales Did Not Show Pretext Indirectly
Gonzales tried to establish pretext indirectly by impugning the City's evidence of his poor job performance. In his declaration in opposition to the City's motion for summary judgment, he stated that the City's evaluation of his performance as consistently deficient was "inaccurate" and that he "showed great improvement in the final two phases." "But disagreeing with reviews of one's performance does not create an issue of material fact . . ." (Batchelor v. Merck & Co. (N.D.Ind. 2008) 651 F.Supp.2d 818, 833 (Batchelor));and "an employee's subjective personal judgments of his or her competence do not raise a genuine issue of material fact" (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 816). Further, the attachment to Gonzales's declaration of four evaluations that rated his performance as acceptable in some categories, but noted significant improvement was needed in others, in no way undermined the credibility of the City's reason for terminating him, which was based on a much greater number of consistently negative evaluations. (See part I.A., ante.) "[S]ome positive reviews and comments . . . are not enough to cancel out the overwhelming weight of evidence that shows [Gonzales] was not meeting expectations." (Batchelor, at p. 833.) Hence, Gonzales's challenges to his performance evaluations did not show the City's proffered reason for discharging him was pretextual. (See King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433 ["plaintiff's subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations"].)
We realize, as did our colleagues in the First District, that the process by which an employee's qualifications and job performance are measured against job requirements is often a subjective one on the part of the evaluator. (See Morgan, supra, 88 Cal.App.4th at pp. 75-76.) Thus, an evaluator's motive and state of mind will almost always be in dispute in employment discrimination cases involving job performance evaluations. (Id. p. 76.) Nevertheless, an employee may not defeat an employer's motion for summary judgment simply by establishing a prima facie case and disputing the evaluator's credibility. (Ibid.) The employee "must produce specific facts either directly evidencing a discriminatory motive or showing that the employer's explanation is not credible." (Lindahl v. Air France (9th Cir. 1991) 930 F.2d 1434, 1438.)
Gonzales also tried to establish pretext indirectly by showing that he failed field training because his field training officers did not give him adequate training. In the declaration he submitted in opposition to the motion for summary judgment, Gonzales stated that two of his field training officers slept on the job and that a field training administration officer instructed another field training officer not to train him. He argued this constituted "evidence of a pretextual reason for failing [him,] as if he could not be trained the likelihood of his passing probation is reduced." We are not persuaded.
In his declaration, Gonzales also stated that two training officers did not adequately train him, that he did not receive the training he should have, and that he "was singled out as the only individual" that the field training administration officer instructed the field training officer not to train. The City objected to these statements, and the trial court sustained the objections. Gonzales does not challenge the evidentiary rulings on appeal. Therefore, we consider the statements to have been properly excluded and do not consider them in reviewing the propriety of the trial court's grant of summary judgment. (Code Civ. Proc., § 437c, subd. (c); Guz, supra, 24 Cal.4th at p. 334; Villanueva, supra, 160 Cal.App.4th at p. 1196.)
In making this argument, Gonzales does not actually challenge the veracity of the City's stated reason for firing him, namely, that he performed the job poorly; he instead disputes the underlying cause of that poor performance. According to Gonzales, his poor performance resulted not from any deficiency on his part but rather from the City's slumbering police officers' failure to train him properly. The FEHA, however, does not provide a remedy for complaints that police officers are sleeping on the job or the City is providing inadequate field training to police officer trainees; it provides a remedy for complaints of discrimination and retaliation. (See Gov. Code, § 12940, subds. (a), (h); Guz, supra, 24 Cal.4th at p. 361.) Therefore, the issue is whether discriminatory or retaliatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.) Gonzales's complaints that the City's incompetent administration of its field training program left him without adequate training simply do not raise a factual dispute sufficient to avoid summary judgment on his FEHA discrimination and retaliation claims.
ii. Gonzales Did Not Show Pretext Directly
In opposition to the City's motion for summary judgment, Gonzales also tried to show pretext directly by submitting evidence that the City discharged him on the prohibited bases of age (he is older than 40) and national origin (he is Hispanic). (See Gov. Code, §§ 12926, subd. (b), 12940, subd. (a).) The primary evidence Gonzales offered in support of this claim was the following paragraph from the declaration he submitted in opposition to the motion: "Upon information and belief, I believe there are many instances where non-Hispanic officers under the age of 40 who were given up to nine opportunities to successfully complete their training whereas I was not given those many opportunities. I am also aware of three or four other Hispanic officers trained by [one of the officers who trained me] who also failed." Gonzales also relied on his own deposition testimony and a declaration submitted by the City to establish that a Caucasian under the age of 40 successfully completed field training after having failed initially. As we shall explain, this evidence was not sufficient to raise a triable issue of fact as to pretext.
We may not consider Gonzales's statement about younger, non-Hispanics having been given more opportunities to complete field training, because the City objected to it and the trial court sustained the objection. In determining whether the record on a motion for summary judgment shows a triable issue of fact, we do not consider evidence to which objections have been made and sustained. (Code Civ. Proc., § 437c, subd. (c); Guz, supra, 24 Cal.4th at p. 334.) Since Gonzales has not challenged this evidentiary ruling on appeal, we consider the statement to have been properly excluded. (Villanueva, supra, 160 Cal.App.4th at p. 1196; Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014-1015.)
Also insufficient to sustain Gonzales's burden on the motion for summary judgment were the statements that the training officer who failed him also failed three or four other Hispanics and that a younger Caucasian initially failed but later successfully completed training. Gonzales apparently offered these anecdotes as statistical evidence that the City treated non-Hispanic and younger trainees better than it treated Hispanic and older trainees. To prove discrimination with statistical evidence, "the statistics 'must show a stark pattern of discrimination unexplainable on grounds other than age.' " (Coleman v. Quaker Oats Co. (9th Cir. 2000) 232 F.3d 1271, 1283; see also Aragon v. Republic Silver State Disposal Inc. (9th Cir. 2002) 292 F.3d 654, 663 (Aragon)[same as to race].) The statistics must also account for possible nondiscriminatory variables that could explain the outcome. (Coleman, at p. 1283.) Thus, to be probative of discrimination, the statistical disparities among comparable employee groups must be sufficiently substantial that they raise an inference that the challenged employment practice has harmed certain employees because of their membership in a protected group. (Carter v. CB Richard Ellis, Inc. (2004) 122 Cal.App.4th 1313, 1323-1324 (Carter).) Gonzales introduced no such statistical evidence here.
In his declaration and deposition testimony, Gonzales stated only that he knew of three or four other Hispanic trainees who failed and one Caucasian trainee younger than age 40 who failed initially but then successfully completed training. But, he provided no evidence to establish any of the following matters: (1) the other Hispanic trainees who failed actually performed adequately; (2) the total number of police officer trainees in his class and its composition in terms of age or national origin; (3) only Hispanic trainees failed; (4) Hispanic trainees failed at a higher rate than did non-Hispanic trainees; (5) trainees age 40 and older failed at a higher rate than younger trainees; and (6) the younger Caucasian trainee who initially failed but later completed training suffered from deficiencies similar in nature and extent to Gonzales's performance deficiencies.Without evidence on these matters, the mere facts that Gonzales and three or four other Hispanic trainees failed, and one younger Caucasian trainee initially failed but later successfully completed training, display no stark pattern of trainee failures that can be explained only on the basis of age or national origin discrimination. (See, e.g., Aragon, supra, 292 F.3d at p. 663 [evidence that three of four coworkers laid off at same time as plaintiff were of same race as plaintiff did not raise inference of race discrimination because sample size was too small and evidence did not account for possible nondiscriminatory variables such as job performance]; Carter, supra, 122 Cal.App.4th at pp. 1325-1326 [data set incomplete when plaintiff suing for gender and age discrimination offered no evidence on gender or age composition of all of defendant's employees]; Gibbs, supra, 111 Cal.App.4th at p. 801 [statistical sample of three employees of large company too small to support inference of discrimination].) In short, Gonzales's minimal, anecdotal evidence "has virtually no significance in itself." (Gibbs, at p. 801.)
In fact, during his deposition Gonzales admitted that the field training officer who failed him also failed trainees of other races, although he did not state how many others failed or what their races were.
At oral argument, counsel for the City represented that this trainee's deficiencies were limited to report writing and did not extend into other performance areas. The record, however, does not contain any evidence concerning the nature and extent of the trainee's deficiencies, precluding any comparison to Gonzales's performance deficiencies.
As additional evidence of national origin discrimination, Gonzales offered the statement in his declaration that a field training administration officer and a field training administration supervisor "mentioned [his] accent to [him]." Although "[a]ccent and national origin are obviously inextricably intertwined in many cases . . ." (Fragrante v. City and County of Honolulu (9th Cir. 1989) 888 F.2d 591, 596), "[m]ere allegations which may appear racially motivated on their face do not sufficiently establish discriminatory intent so as to permit the issue to go to a jury." (Rodriguez v. City of Hialeah (S.D.Fla. 1989) 716 F.Supp. 1425, 1429.) Here, Gonzales described neither the content of the comments about his accent nor the circumstances in which they were made; and he did not point to any evidence that the comments contributed in any way to the decision to terminate his employment. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 541 (Reid) [who made comments, when they were made relative to termination, and in what context they were made are all relevant factors in employment discrimination case].) Without such evidence, we cannot infer from the mere mention of an accent that the City terminated Gonzales because he is Hispanic. (See Rodriguez, at p. 1429 [sergeant's statement to police officer that he should " 'speak English like they do in Queens, New Jersey, not Little Havana' " did not show discharge was based on officer's accent when no evidence showed sergeant's statement was communicated to anyone with hiring authority].) Accordingly, Gonzales may not rely on the comments about his accent to avoid summary judgment. (See Guz, supra, 24 Cal.4th at p. 361 [to defeat summary judgment, "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"].)
In his final effort to show pretext directly, and thereby defeat the City's motion for summary judgment, Gonzales argued the real reason the City discharged him was retaliation for his earlier complaints of discrimination. To establish retaliation, an employee must establish engagement in protected activity, adverse employment action, and a causal link between the two. (Yanowitz, supra, 36 Cal.4th at p. 1042.) The only evidence Gonzales submitted regarding retaliation was his own deposition testimony to the effect that a few months before he was fired he complained to the lieutenant for field training administration that he suffered racial discrimination during field training. This evidence established adverse employment action. (See Guz, supra, 24 Cal.4th at p. 355 [listing termination as type of adverse employment action].) It also, at least arguably, established engagement in protected activity. (See California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1018 [informal complaints to management about discrimination trigger prohibition against retaliation].)
Gonzales, however, submitted no evidence to establish a causal link between his complaints about racial discrimination and his termination. Essential to establishing a causal link is evidence that someone substantially involved in the decision to discharge the employee knew the employee had engaged in the protected activity. (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1250-1251; Morgan, supra, 88 Cal.App.4th at pp. 70, 73.) There is no evidence that the lieutenant to whom Gonzales complained about racial discrimination participated in the decision to fire him. Indeed, according to one of the declarations submitted by the City in support of its motion for summary judgment, the lieutenant retired five months before the City fired Gonzales. In other declarations from persons who recommended Gonzales's termination, the declarants stated they had no knowledge that he ever complained of discrimination. On this record, the necessary causal link between protected activity and termination is missing, no inference of retaliation can be drawn, and summary judgment for the City may not be denied. (Avila, at pp. 1250-1252; Morgan, at pp. 73, 79-80.)
c. The Trial Court Properly Granted Summary Judgment
In sum, after considering the totality of the evidence before the trial court, except that to which objections were made and sustained (Code Civ. Proc., § 437c, subd. (c); Yanowitz, supra, 36 Cal.4th at p. 1062 ; Guz, supra, 24 Cal.4th at p. 334), we conclude the City introduced evidence sufficient to establish a legitimate, nondiscriminatory, and nonretaliatory reason for terminating Gonzales's employment, namely, his consistently poor performance during field training. We also conclude Gonzales did not submit substantial responsive evidence that would permit a reasonable trier of fact to infer that the City's proffered reason for terminating Gonzales was pretextual and that its real reason was discrimination or retaliation prohibited by the FEHA. The trial court therefore correctly granted the City's motion for summary judgment. (Code Civ. Proc., § 437c, subd. (c); Guz, at p. 361; Loggins, supra, 151 Cal.App.4th at pp. 1112-1113.)
4. The Various Arguments Gonzales Raises on Appeal Do Not Support Reversal of the Summary Judgment
On appeal, Gonzales raises several arguments why we should reverse the summary judgment. For reasons we shall explain, none is persuasive.
a. Gonzales May Not Rely on His Prior Military Service or College Grades to Raise a Triable Issue of Fact
Gonzales devotes several pages of his brief to a summary of exemplary performance ratings he received while he was serving in the United States Army prior to his enrollment in the City's police training program. He also states he had a 4.0 grade point average at a community college. Later in the brief, Gonzales compares these facts to the poor performance evaluations he received during field training and asks rhetorically, "What happened to this highly trained, motivated, exemplary individual with recognized and proven leadership and training qualities?" Apparently, Gonzales believes his exemplary military service and good grades at community college raise an inference that the City's field training officers gave him poor performance ratings not because he actually performed poorly while training to become a police officer but because he is Hispanic or older than 40. Even if this inference theoretically could be drawn as a logical matter, it cannot be drawn here because the facts necessary to support the inference are not in the record.
On appeal from a summary judgment, "[t]he trial court's decision must be reviewed on the basis of the papers filed at the time the court considered the motion, not in the light of documents filed subsequent to the trial court's resolution of the issue." (Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621, 627; accord, Yanowitz, supra, 36 Cal.4th at p. 1037 [on appeal challenging order granting motion for summary judgment, "we take the facts from the record that was before the trial court when it ruled on that motion"].) "We may consider only those facts which were before the trial court, and disregard any new factual allegations made for the first time on appeal." (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) None of the facts about Gonzales's prior military service or college grades was before the trial court when it ruled on the City's motion for summary judgment. Rather, Gonzales sought to add certain official records and correspondence pertaining to those matters to the record on appeal by means of a request for judicial notice, which we denied because the documents are not the proper subject of judicial notice. (See People v. Castillo (2010) 49 Cal.4th 145, 157 [declining to take judicial notice of official letters when it "would not establish the truth of critical factual matters asserted in those documents"]; California Advocates for Nursing Home Reform v. Bontá (2003) 106 Cal.App.4th 498, 515, fn. 8 [declining to take judicial notice of official document that was not before trial court when it ruled on motion for summary judgment].) Accordingly, we disregard all the facts stated in Gonzales's brief pertaining to his military service and college grades.
b. Gonzales's Receipt of Acceptable Ratings in Some of His Performance Evaluations Did Not Raise a Triable Issue of Fact
Next, Gonzales spends 20 pages of his brief parsing the daily evaluations prepared by his field training officers and summarizing them in color-coded spreadsheets. He urges us to "take a close look at the comments made under 'Strong Points' or buried in the introduction of each [field training officer's] report" and conclude that because the evaluations show he had more successes than failures, the City's decision to discharge him for poor job performance was merely a pretext for discrimination and retaliation. We, of course, have reviewed the daily evaluations; and, as we previously explained, they indicate Gonzales consistently performed poorly on the job. (See part I.A., ante.)
Moreover, Gonzales's disagreement with the evaluations does not create a triable issue of fact requiring reversal of the summary judgment (Batchelor, supra, 651 F.Supp.2d at p. 833), and it is not within our purview to make an independent assessment of his performance on the job. "[W]e do not sit as a kind of 'super-personnel department' weighing the prudence of employment decisions made by firms charged with employment discrimination [citations]; we are concerned solely with whether the reason for which the defendant discharged the plaintiff was discriminatory. [Citations.] Thus, when an employer articulates a reason for discharging the plaintiff not forbidden by law, it is not our province to decide whether that reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination." (Giannopoulos v. Brach & Brock Confections, Inc. (7th Cir. 1997) 109 F.3d 406, 410-411.) Accordingly, we must affirm the summary judgment because the City submitted evidence showing that Gonzales's overall performance was inadequate but Gonzales submitted no evidence raising a triable issue of fact on that issue. (See part II.B.3., ante.)
c. Gonzales May Not Rely on His Status as a Military Retiree to Raise a Triable Issue of Fact
Buried within Gonzales's lengthy discussion of the performance evaluations is his contention that, with respect to the discrimination claims, he was in a protected class based not only on national origin and age but also on prior service in the armed forces. (See 38 U.S.C. § 4311(a) [prohibiting denial of employment on basis of military service].) Gonzales acknowledges, however, that he did not allege in the complaint that the City discharged him based on his prior military service. This acknowledgment renders his contention regarding prior military service irrelevant.
It is well settled that the pleadings define the scope of the issues to be decided on a motion for summary judgment. (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250; Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th 112, 122.) Thus, a plaintiff appealing a summary judgment may not raise for the first time on appeal a claim not asserted in the complaint. (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1266.) " 'The rule which forbids raising a new issue for the first time on appeal takes on added significance in summary judgment proceedings because "[t]he moving party's burden on a motion for summary judgment is only to 'negate the existence of triable issues of fact in a fashion that [entitles] it to judgment on the issues raised by the pleadings. [Citation.] It [is] not required to refute liability on some theoretical possibility not included in the pleadings.' [Citation.]" ' " (Jordan-Lyon Productions, Ltd. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472.) Since Gonzales failed to allege in his complaint that the City discharged him based on his prior military service, he may not seek reversal of the summary judgment on that ground.
Gonzales contends on appeal that he was unaware of his rights under federal law not to be discriminated against based on prior military service, because the City "illegally failed to inform him of these rights, as required by Federal Statute." He cites nothing in the record and no statute or other authority as support, however. We therefore deem this contention to be without foundation and to have been abandoned. (Cal. Rules of Court, rule 8.204(a)(1)(B); In re Phoenix H. (2009) 47 Cal.4th 835, 845.)
d. Gonzales Was Not Denied Due Process of Law
Gonzales next complains the City's premature filing of its motion for summary judgment prevented him from marshaling the evidence he needed to defeat the motion and thereby denied him due process of law. We disagree. The summary judgment statute specifically authorizes a trial court, upon application of a party opposing a motion for summary judgment, to continue the hearing on the motion in order to allow the party to obtain necessary discovery. (Code Civ. Proc., § 437c, subd. (h).) The record contains no request for a continuance from Gonzales or a declaration explaining the reasons he needed a continuance; and in his appellate brief, Gonzales acknowledges that his trial counsel did not request one. "Because [Gonzales] 'did not take advantage of opportunities to avoid in the trial court the problem about which [he] now complain[s] on appeal, [he has] [forfeited] any claim of a due process violation.' " (Robbins v. Regents of University of California (2005) 127 Cal.App.4th 653, 659-660; see also Lloyd Design Corp. v. Mercedes-Benz of North America, Inc. (1998) 66 Cal.App.4th 716, 726 [failure to file motion for continuance supported by required declaration forfeits right to claim deprivation of opportunity to oppose motion for summary judgment].)
e. Reid Does Not Require Reversal of the Summary Judgment
Finally, Gonzales quotes from our Supreme Court's decision last year in Reid, supra, 50 Cal.4th 512, and argues that decision requires reversal of the summary judgment here. Specifically, he argues "[r]eversal is appropriate in this case so that [he] can continue his discovery to include 'stray remarks.' " Gonzales further argues "[r]eversal is required . . ." because the trial court "totally ignored all of [his] positive accomplishments . . . and erroneously concluded 'he got bad reviews all the way through.' " We are not persuaded.
In Reid, supra, 50 Cal.4th 512, the court considered the so-called stray remarks doctrine, pursuant to which federal courts "deem irrelevant any remarks made by non-decisionmaking coworkers or remarks made by decisionmaking supervisors outside of the decisional process, and such stray remarks are insufficient to withstand summary judgment." (Id. at p. 537.) The court noted the general rule that on a motion for summary judgment the trial court must consider all the evidence in the record and all reasonable inferences that may be drawn from the evidence. (Id. at p. 541.) Consistent with this general rule, the court concluded that "in reviewing the trial court's grant of Google's summary judgment motion, the Court of Appeal properly considered evidence of alleged discriminatory comments made by decision makers and coworkers along with all other evidence in the record." (Id. at p. 545.)
Reid, supra, 50 Cal.4th 512, does not compel reversal of the summary judgment here, for at least two reasons. First, the trial court did not improperly exclude any evidence of stray remarks; the court considered the only evidence that arguably constituted stray remarks, i.e., the comments of the coworkers who "mentioned" Gonzales's accent, along with all the other evidence, and correctly concluded the evidence as a whole was insufficient to raise an inference of discrimination. (See id. at pp. 541, 545 [stray remarks must be considered with all other evidence introduced on summary judgment].) Second, the trial court did not "totally ignore[]" the acceptable performance ratings contained in the few evaluations Gonzales attached to his declaration in opposition to the City's motion for summary judgment; the court considered them in connection with the far greater number of consistently negative evaluations submitted by the City. (See id. at p. 541 ["a trial court must review and base its summary judgment determination on the totality of evidence in the record"].) Based on all of the evaluations, the trial court correctly concluded that Gonzales had not raised a triable issue of fact as to whether the City's assertion of poor job performance as its reason for firing him was a pretext for unlawful discrimination or retaliation. (See fn. 8 & accompanying text, ante.) Hence, Reid does not require us to reverse the summary judgment and remand the matter for further discovery. C. The City's Motion for Sanctions
In connection with its motion to dismiss Gonzales's appeal as frivolous, the City also moved for sanctions. Gonzales filed opposition to the motion, and the City filed a reply. We notified the parties we would consider the motion for sanctions with the appeal. We now deny the motion as untimely.
A motion for sanctions must be filed "no later than 10 days after the appellant's reply brief is due." (Cal. Rules of Court, rule 8.276(b)(1).) An appellant's reply brief is due 20 days after the respondent's brief is filed. (Id., rule 8.212(a)(3).) The City filed its brief on October 15, 2010, making Gonzales's reply brief due November 4, 2010, and the City's request for sanctions due 10 days thereafter. The City did not file its request for sanctions until December 3, 2010, however, which is beyond the period prescribed by the Rules of Court. Thus, the City "failed to comply with this procedural requirement. That reason alone is grounds to deny the request." (Bak v. MCL Financial Group, Inc. (2009) 170 Cal.App.4th 1118, 1127-1128; accord, FEI Enterprises, Inc. v. Yoon (2011) 194 Cal.App.4th 790, 807.)
DISPOSITION
The judgment is affirmed. The City's motion to dismiss and for sanctions is denied.
IRION, J. WE CONCUR:
BENKE, Acting P. J.
NARES, J.