Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. No. M72957.
Mihara, J.
Plaintiff Cecilia Lucas claims that her former employer, defendant California State University Monterey Bay (“the university”), violated the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) (38 U.S.C. § 4301 et seq.) by failing to reemploy her after her military service at the same position she held prior to her military duty. She appeals from a judgment entered after the trial court granted defendant’s motion for summary judgment. We affirm the judgment.
I. Background
A. Factual Background
The following facts are taken from evidence introduced in connection with defendant’s motion for summary judgment.
Lucas began as a full-time employee at the university in 1994, the school’s inaugural year. She initially held a position of accounting analyst, but by September 2001 she was an accounting manager. Her job classification in 2001 was an Administrator II. As the sole accounting manager in the accounting department, Lucas oversaw five accounting department divisions and approximately nine full-time employees. Lucas did not oversee the accounting operations for the foundation, the university’s fundraising arm. Lucas routinely worked 60 hours a week, but due to the demands of the department she still was unable to complete all of the available work.
During this same time frame, 1994 to 2001, the university grew dramatically. Lucas recalled that the student population was only 500 its first year, and had reached approximately 3,000 by December 2001. In 2001, to address its growth, the university hired outside consultants to conduct a study of the accounting and purchasing departments. The university asked the consultants to provide recommendations regarding administrative structure to ensure that the university was able to meet the current and future needs of the faculty, staff, and students.
The consultants issued a draft report in August 2001, and a final report in September 2001. The final report recommended a new structure for financial services, which included budget, accounting, and business and support services. The report recommended that accounting be divided into five structured divisions to achieve more effective and sustainable workloads for managers and staff.
Based on the report and on further communications with the consultants, Colleen Nickles (then the Associate Vice President of Financial and Auxiliary Services and Administration) determined that the accounting department should be restructured. Various positions were reorganized to fit within the new structure, and, on October 18, 2001, the university’s president approved the preliminary reorganization plans.
Meanwhile, in the wake of the events of September 11, 2001, Lucas received notice of full-time active duty in the National Guard to begin on October 8, 2001. Her orders were extended twice, and she served from October 2001 until June 2002. She received additional orders a few months later, and again was on active duty from November 2002 through January 2003.
On December 17, 2001, while still on leave for active service, Lucas met with Nickles (who had been her immediate supervisor prior to her military leave) and Ruth Stipp (her new supervisor) regarding her year-end performance review and changes in the accounting department. Lucas was told that her position in the restructured department would be as Manager of the Tax and Disbursements Division, one of the five formal divisions in the department. At the time of the meeting, the precise classification of the position was unknown. Lucas was told that even if the new position was classified lower than her prior position, her salary would be protected at its current level, a process Lucas refers to in her briefing as “red-circling.” Lucas rejected the position, calling it a demotion.
Throughout Lucas’s service and after its completion, the university reiterated its offer of the new position. Lucas repeatedly rejected the offer, believing it to be a demotion because the entire accounting department would not report directly to her.
In 2002, Lucas filed a complaint with the Department of Labor, which then investigated whether the university had violated USERRA. In November 2002, the Department of Labor concluded that there had been no violation and urged Lucas to return to work at the university.
After a year-long period of unpaid military leave from June 19, 2002, the date of Lucas’s initial military discharge, to July 19, 2003, the university discharged Lucas.
B. Complaint
By complaint filed January 13, 2005, Lucas alleged that upon her return from active military service the university offered her a position that was not the same status, seniority, or pay as the position she held prior to her leave of absence. The complaint contains a single cause of action based on the university’s failure to reemploy Lucas and alleges an unlawful employment practice in violation of USERRA (38 U.S.C. §§ 4301-4333). The complaint does not refer to a specific provision of USERRA, nor does it specify the cause of action beyond a general violation of the statute.
C. Summary Judgment Motion
The university filed a motion for summary judgment on December 16, 2005. The university contended, and continues to contend, that (1) there is no evidence that the new position offered Lucas was, in fact, of lower status, seniority, or pay, and (2) regardless of whether Lucas’s new position was such a demotion, she cannot establish a prima facie case because there is no evidence that the university’s actions were motivated by her military service.
In a supporting declaration, Nickles stated explicitly that the decision to restructure the accounting department, including Lucas’s position, was independent of Lucas’s military service. The reorganization process began before Lucas even received her activation orders, and even if Lucas had not entered active service, her position would have been altered. Stipp’s declaration reiterated that Lucas’s military service had no impact on the employment opportunity extended to Lucas upon her release from active duty. Stipp explained that although the new position did not involve as many accounting areas as Lucas’s prior position, it did encompass several new areas of responsibility—select accounting duties for the foundation and a separate related entity (university employee housing), implementation of new specialized software, and a non-resident alien taxation program. Moreover, the accounts payable staff from the university, the foundation, and the employee housing entity all would report to Lucas.
Stipp stated that the December meeting was the only time that a lower classification and possible need for salary protection were mentioned. Lucas met with the university president’s chief of staff only a month later, in January 2002, and he assured her that her administrative grade, classification, and compensation “were being protected or would be protected no matter what.” In letters dated March 11, 2002 and April 10, 2002, the university referred to its intent to reemploy Lucas in conformity with USERRA. By the time Lucas’s leave ended in mid-2002, the university had confirmed that the position offered Lucas (Manager of the Tax and Disbursements Division) was to be an Administrator II position, the same classification Lucas held prior to her military leave. In letters dated July 29, 2002, August 20, 2002, December 5, 2002, and April 8, 2003, the university stated explicitly that it was offering Lucas the Tax and Disbursement Accounting Manager position as an Administrator II position of the same seniority, status, and pay as her prior position.
During her deposition, Lucas acknowledged that no one in the university’s management ever spoke to her or others disparagingly about military service and that she was aware of no documents reflecting a critical attitude toward military service. Lucas also acknowledged that none of the new accounting department positions identically resembled her old position. She admitted that despite being told in letters after December 2001 that the new position was classified as an Administrator II, she simply did not believe that it was the same classification as her old position.
D. Summary Judgment Opposition
In Lucas’s opposition to the motion for summary judgment, she relied on circumstantial evidence of discriminatory intent. She stressed that the adverse action occurred right after she was called to active duty, in October 2001, and argued that the restructuring studies that preceded her military service did not “pertain[] directly to her position.” She argued, and continues to argue, that she was demoted and that the university’s claim that the accounting department changes would have occurred regardless of her military leave is a pretext for a violation of USERRA.
As support, Lucas pointed to Nickles’s admission that she told Lucas in December 2001 that if the new position was not classified as an Administrator II, her salary would be red-circled so that she would maintain her salary at its current level. Lucas also emphasized some negative comments in her performance review at the December 2001 meeting, in which she was told she should have a stronger knowledge of generally accepted accounting principles (“GAAP”) for her current role in the accounting department. Finally, Lucas explained that she understood the university’s letters to mean that she was being offered an Administrator II salary, but she did not believe the job was classified as Administrator II. She believed that she would not be eligible for pay increases and the other benefits of an Administrator II classification because she had been told that her salary would red-circled.
E. Trial Court’s Ruling
At oral argument on the summary judgment motion, the trial court found no evidence that the accounting department reorganization was a pretext: “I suppose one can argue that. [Lucas] has been arguing that right along. But I find no evidence in the record to support it, whether it is classified [as] direct or circumstantial. [¶] It’s her subjective feeling. But that is all I find. I don’t find any evidence that she was discriminated against because of her military service. [¶] I will have to grant the motion on that basis.” In its written order, the trial court granted the university’s motion for summary judgment and further stated: “No triable issue of material fact exists as to plaintiff’s single cause of action for violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA) because plaintiff cannot establish a prima facie case that her military service was a motivating factor for the employment events about which she complains.”
On June 23, 2006, the trial court dismissed Lucas’s complaint with prejudice and entered judgment in favor of the university. Lucas filed a notice of appeal on August 24, 2006.
II. Discussion
“‘Appellate review of a ruling on a summary judgment or summary adjudication motion is de novo.’” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 316.) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) To prevail on a motion for summary judgment, “[a]ll that the defendant need do is to show [] that one or more elements of the cause of action . . . cannot be established by the plaintiff.” (Id. at p. 853, internal quotation marks omitted.)
Plaintiff contends that the university violated USERRA by failing, upon her return from active duty, to provide her with a position equal in seniority, status, and pay to her previous position. Although the complaint does not state the precise statutory basis for Lucas’s cause of action, the cause was litigated below as if it was brought pursuant to section 4311 of title 38 of the United States Code. In moving for summary judgment, the university assumed Lucas’s claim was a discrimination claim made pursuant to this section of USERRA. Lucas opposed the motion and did not correct this assumption regarding the claim’s statutory basis. The trial court ruled accordingly. On appeal, the university again assumes Lucas’s claim is based on section 4311 of the statute, and Lucas again fails to specify the statutory basis or to correct the university’s assumption. We therefore also presume the claim is made pursuant to section 4311.
All further statutory references are to title 38 of the United States Code unless otherwise noted.
USERRA establishes express reemployment rights for those persons who serve in the military. (E.g., § 4312.) Section 4313, in particular, provides that “a person whose period of service in the uniformed services was for more than 90 days[,]” shall be reemployed “in the position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service, or a position of like seniority, status and pay, the duties of which the person is qualified to perform . . . .” (§ 4313(a)(2)(A), italics added; see also § 4316.)
Section 4311 of USERRA prohibits discrimination against those who serve in the uniformed services and provides that such a person shall not be denied “employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer” due to his or her service. (§ 4311(a), (b), italics added.) An employer violates USERRA “if the [employee]’s . . . service . . . or obligation for service in the uniformed services is a motivating factor in the employer’s [adverse employment] action, unless the employer can prove that the action would have been taken in the absence of such . . . service . . . or obligation for service[.]” (§ 4311(c)(1).) An aggrieved employee may file a complaint with the Department of Labor, which will investigate and seek to resolve the complaint, and may file a civil complaint against the employer in state or federal court. (§§ 4322, 4323(a)(2) [suit against a state as employer may be brought in state court].)
“[C]ourts applying § 4311(b) should use the scheme of burden-of-proof allocations approved by the Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393[.]” (Leisek v. Brightwood Corp. (9th Cir. 2002) 278 F.3d 895, 898-899 (Leisek).) Under this scheme, “the employee first has the burden of showing, by a preponderance of the evidence, that his or her protected status was ‘a substantial or motivating factor in the adverse [employment] action;’ the employer may then avoid liability only by showing, as an affirmative defense, that the employer would have taken the same action without regard to the employee’s protected status.” (Id. at p. 899; Velazquez-Garcia v. Horizon Lines (1st Cir. 2007) 473 F.3d 11, 17 (Velazquez-Garcia).) “Under USERRA, the employee does not have the burden of demonstrating that the employer’s stated reason is a pretext. Instead, the employer must show, by a preponderance of the evidence, that the stated reason was not a pretext; that is, that ‘the action would have been taken in the absence of [the employee’s military] service.’” (Velazquez-Garcia, at p. 17, quoting § 4311(c), italics in original.)
We therefore must determine whether there is sufficient evidence from which a jury could find that the university demoted Lucas, or took another adverse employment action, due, at least in part, to Lucas’s military service. We conclude that there is not. Lucas has presented no credible evidence that her military service was a motivating factor in the university’s decision to offer her a different position upon her return from active duty.
The parties also dispute whether Lucas was offered a position of equal seniority, status, and pay. As we find no evidence of discriminatory motivation, an essential element of a section 4311 claim, we need not reach this issue.
“Under USERRA, discriminatory motivation of the employer may be reasonably inferred from a variety of factors, including proximity in time between the employee’s military activity and the adverse employment action, inconsistencies between proffered reason and other actions of the employer, an employer’s expressed hostility towards members protected by the statute together with knowledge of the employee’s military activity, and disparate treatment of certain employees compared to other employees with similar work records or offenses.” (Leisek, supra, 278 F.3d at p. 900, citing Sheehan v. Department of Navy (Fed. Cir. 2001) 240 F.3d 1009, 1014.)
Lucas is unable to cite any statement or document that referred negatively to her military service, and has cited no evidence showing disparate treatment between employees who served in the military and those who did not. In arguing that there was a discriminatory motive, Lucas relies almost exclusively on the proximity in time between her service and the accounting department’s restructuring. Although proximity in time between the employee’s military service and the adverse employment action may be a factor in determining discriminatory animus, it is not necessarily dispositive. (See Velazquez-Garcia, supra, 473 F.3dat p. 19.) In light of the undisputed evidence of a department reorganization that was independent of Lucas’s military leave (and that began prior to her orders to report to duty), we cannot conclude that the timing of Lucas’s change in position alone gives rise to a reasonable inference that Lucas was discriminated against due to her military service.
Lucas also argues that the university has presented various reasons to justify the change in her position, and argues that this is evidence that the university is covering up a discriminatory motivation. She points to the negative comments in her December 2001 review, arguing that her lack of qualifications was presented as the original reason to alter her position in the accounting department. The fact that the university now relies on the accounting department reorganization, she argues, is suspect. We disagree. The discussion, which included both areas for improvement and the department-wide reorganization, does not imply that the university was “grasping for rationalizations” to explain Lucas’s change in position. The two topics are not inherently contradictory, and the reorganization was cited as the reason for the change in her job position from the very first meeting in December 2001. We thus find no basis to conclude that the “negative” performance review comments were a cover-up for discriminatory animus.
Even if we were to conclude Lucas has stated a prima facie case of discrimination based on the suspect timing of the employment action, the university has presented substantial evidence to support its affirmative defense that Lucas would have been offered the Tax and Disbursements Manager position regardless of her military service. (See Leisek, supra, 278 F.3dat p. 899.) Based on the uncontested evidence, the department reorganization was prompted by the university’s tremendous growth in the eight years Lucas worked at the university. A six-fold increase would undoubtedly require changes to the financial services structure of the institution. The consultant’s study, which outlined the new structure in detail, was commissioned prior to any knowledge of Lucas’s military duties and completed contemporaneous with the start of her military service. Both Nickles and Stipp stated that her military leave had no bearing on the decision to restructure the department and to change her position.
Additionally, without delving into whether the new position is of “like seniority, status and pay” as defined in USERRA, the university has shown that the change in position was not a demotion to a pre-existing position of lower classification. The new position, while perhaps not of the same scope as the old position, incorporated some responsibilities not previously part of Lucas’s purview, or even the accounting department’s purview. These facts support the university’s assertion that Lucas’s position was restructured to fit within a new organization, and not that the university used her military service as an excuse to demote her. In short, the university has shown by a preponderance of the evidence that it would have changed Lucas’s position regardless of her military service. (See Velazquez-Garcia, supra, 473 F.3d at p. 20.)
In rebuttal, Lucas argues that the university’s other personnel decisions undermine its argument that her job was eliminated and/or restructured as part of a broad reorganization. Lucas first contends that her position was not eliminated, but was instead given to her new supervisor, Stipp: “[The record] clearly shows that Ruth Stipp holds the position over the same five (5) divisions that Appellant supervised prior to leaving on military leave.” Lucas next complains that in 2003 another employee was hired as a General Accounting Manager in charge of the same five units, but she was not considered for the job. The position was subsequently advertised, in February 2004, with a description analogous to her prior position. Finally, Lucas points to a job advertisement in 2004 for an Accounts Payable Lead which, she asserts, describes what her duties would have been in the new position. She claims that because the advertised position was an Accountant II, three classifications below an Administrator II, the advertisement establishes that the position she was offered was a demotion and “is strong evidence that the reorganization was a pretext for an impermissible demotion.”
Lucas’s assertions regarding the relationship of these hiring actions to her position at the university are simply conjecture, and are insufficient to defeat summary judgment. There is no evidence, beyond Lucas’s unsupported insistence, that Stipp’s position and/or the General Accounting Manager position were the same as Lucas’s position prior to military leave. In contrast, the university has presented substantial evidence regarding its growth and restructuring that explains significant changes in the accounting department, including the creation of new positions. Stipp’s declaration explains that the General Accounting Manager position filled in 2003 (and, presumably, advertised in February 2004) was a new position fundamentally different from Lucas’s prior job. The position did not involve all five units of accounting, as did Lucas’s old position. Additionally, the job did include several areas of responsibility not previously within Lucas’s job description, such as financial reporting for the foundation and the conversion of financial data to new GAAP standards. The university also has presented credible evidence that the Accounts Payable Lead advertised in 2004 is not the same position that Lucas was offered. Indeed, the very title supports this point, as do the letters sent to Lucas throughout her leave specifying the job offered as an Administrator II.
Lucas presents little more than personal disbelief in the university’s commitment to reemploy her in an equivalent position and refusal to view the accounting department’s reorganization as legitimate. This is insufficient to create a triable issue of material fact and to rebut the showing made by the university that Lucas would have been offered the Tax and Disbursements Manager position regardless of her military service. We concur with the trial court’s decision to grant summary judgment and to dismiss the complaint.
III. Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.