Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. CGC-05-443013
Ruvolo, P. J.
I.
Introduction
In this employment discrimination case, Thomas A. Matos (Matos) appeals from a summary judgment in favor of his former employer, the University of San Francisco (USF). Matos contends the court erred in granting summary judgment because “a triable issue of material fact exits as to whether Mr. Matos’s employment with the University was terminated based on his HIV+ status. . . .” We conclude the court properly granted summary judgment.
II.
Facts and Procedural History
On June 23, 2003, Matos began his employment with USF as its director of undergraduate admissions with an annual salary of $115,000. Matos’s position was described as “a key University staff position . . . oversee[ing] a staff consisting of over 20 University employees” and serving as a “key liaison for the applications and admissions process for new students coming to the University.” Like all new USF administrators, Matos began a 12-month evaluation period. Matos’s direct supervisor was Elizabeth J. (BJ) Johnson, USF’s dean and associate provost of academic and enrollment services division (Dean Johnson).
His employment started promisingly. On October 15, 2003, Matos was given additional responsibility—he would supervise and mentor USF’s acting director of graduate admissions. Matos was given a bonus of $6,000 per year in addition to his salary.
Every April, USF managers routinely conducted performance appraisals. On April 15, 2004, Dean Johnson met privately with Matos and discussed his job performance in the preceding nine or so months that he had been working at USF. Dean Johnson prepared a written overall assessment of Matos’s job performance to-date. She wrote: “A good start, good work ethic, clear vision, strong skills, and good analysis. Your concern for colleagues and students is good. All have produced good results so far. I enjoy working with you. Thank you for your good work.”
However, Dean Johnson expressed concern about Matos’s communication style, indicating “I appreciate your communication style’s strengths—and that you have gone out of your comfort zone sometimes to communicate differently. . . . We don’t all hear in the same way. You are a very knowledgeable professional. You do, however, sometimes give the impression that ‘your way is the way.’ Again, that may be wholly appropriate, but may cause friction where a different delivery method would not.” In the section titled “Goals,” Dean Johnson included “development of good relations,” including the suggestion, “let’s think about how to calm communication.”
In preparation for this evaluation, Matos submitted a self-evaluation to Dean Johnson where he identified his communication skills as a “Job Related Strength[].” Matos wrote: “[W]hile there are some who may find my direct and honest form of communicating outside the generally accepted ‘USF culture’ means of communicating, I think my approach it [sic] is a strength.” After this review, Matos was given an increase in base pay effective June 1, 2004, from $115,000 to $119,658 per year.
On May 5, 2004, after Matos’s April performance appraisal, Matos met with a young student who was appealing Matos’s decision denying her admission to USF. The student had traveled from the Midwest for the purpose of personally meeting with Matos. Prior to the meeting, Dean Johnson had several conversations with Matos where she stressed the need to handle the matter with sensitivity.
On May 13, 2004, the student’s father sent Dean Johnson an e-mail which stated, in pertinent part: “You should know that we are withdrawing our appeal for admission. For reasons unclear to me, Mr. Matos treated [the student] terribly in their interview. He accused her of being dishonest several times. He told her that she was giving rehearsed answers, and he spent a good part of the interview telling her that she did not belong in college and that she should take time off to get perspective. After an hour of this, [the student] broke down and finished the interview crying . . . [,] certainly not the result I was expecting after flying 3,000 miles, taking 2 days from work, and spending over $1,500 in travel expense. [¶] I must tell you that I truly feel that Mr. Matos’[s] interviewing techniques were amateurish, insensitive and unprofessional.”
Later in the evening of May 13, 2004, the student’s father sent a follow-up e-mail to Dean Johnson, which stated in part: “I have taught CCD and coached hundreds of girls over the years in sports and never have I been able to get one of them to open up to me by attacking them and making them feel defensive at the outset. I guess I feel [Matos’s] intimidation style is a crude and unproductive approach.”
Around this time period, on May 10, 2004, Matos met with Martha Peugh-Wade, USF’s associate director of human resources, to discuss health care, housing, and other employment-related issues. During this discussion, Matos disclosed that he was HIV+. Matos admits that Peugh-Wade was the first and only person at USF to whom he disclosed his HIV+ condition. He asked that their meeting remain confidential. During this conversation, Matos claims Peugh-Wade asked if he was seeing a psychiatrist and she indicated that perhaps Matos should seek other employment sooner rather than later.
Peugh-Wade averred that she told Terry Stoner, her boss in human resources (HR), of her entire conversation with Matos and that they both reminded themselves that medical information was not to leave HR, except for USF’s legal counsel. They agreed that the information was certainly not to go to Matos’s direct supervisor, Dean Johnson.
In mid-May 2004, Dean Johnson had an unplanned, unsolicited conversation with senior associate director Mike Hughes, a long-term and valuable USF staff member. Hughes told Dean Johnson that in his view, Matos’s interpersonal communication style with people at USF was abrasive and disagreeable and that he had poor “people skills.” In anticipation of the end of Matos’s one-year probationary period, Dean Johnson solicited the opinion of Virginia Rios, a long-term member of the admissions office staff. Rios told Dean Johnson that Matos’s “people skills” were not good and that he appeared to have a dictatorial style of communications with admissions office staff and other USF departments. Dean Johnson indicated “[i]t was then . . . I concluded that [Matos’s] interpersonal communications and customer relationship skills seemed inadequate for this job.”
Dean Johnson terminated Matos’s employment by letter dated June 22, 2004, to be effective June 25, 2004, after slightly longer than one year of service. In his deposition testimony, Matos acknowledges that after his employment was terminated, he revealed to Dean Johnson, for the first time, that he was HIV+.
Matos responded to his termination by filing a complaint on July 12, 2005, alleging that Dean Johnson’s decision to terminate his employment at the end of his one-year probationary period was impermissibly based on his HIV+ status. His complaint alleged two causes of action: 1) disability discrimination in violation of the California Fair Employment and Housing Act (Gov. Code, § 12940 et seq.), and 2) wrongful discharge in violation of public policy.
USF filed for summary judgment on May 19, 2006. After considering the parties’ respective submissions and arguments, on September 5, 2006, the court granted USF’s motion. The court concluded that Matos failed to adduce any evidence indicating Dean Johnson, the sole decision maker, had any knowledge that Matos was HIV+ at the time he was terminated, precluding his establishment of a prima facie case of discrimination. Further, the court concluded that, even if Matos had carried his burden at the prima facie stage, USF was still entitled to summary judgment because USF had produced a legitimate, nondiscriminatory reason for Matos’s termination—his abrasive communication style—and Matos had failed to present admissible evidence to create a triable issue of fact that USF’s reason for his termination was pretextual.
III.
Discussion
A. Shifting Burdens in Employment Discrimination Summary Judgment Motions
The parties do not dispute that Matos was in a protected class for purposes of his claim of disability discrimination. Nor do the parties dispute that Matos suffered an adverse employment action. What is in dispute is whether the adverse employment action was due to his HIV+ status, or whether the action was taken for legitimate nondiscriminatory business reasons and was not motivated by discriminatory intent.
When employment discrimination cases are in this posture, courts rely on a system of shifting burdens of proof, developed by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas), pursuant to which: “ ‘(1) The complainant must establish a prima facie case of discrimination; (2) the employer must offer a legitimate reason for his actions; (3) the complainant must prove that this reason was a pretext to mask an illegal motive.’ [Citation.]” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68 (Morgan).) To avoid summary judgment, once the employer has produced substantial evidence of a legitimate, nondiscriminatory reason for its adverse employment action, it is not enough for the employee to “ ‘simply show the employer’s decision was wrong, mistaken, or unwise. Rather, the employee “ ‘must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence,” [citation], and hence infer that the employer did not act for the [. . . asserted] non-discriminatory reasons.’ . . . [Citation.]” ’ ” (Id. at p. 75.)
In reviewing the dismissal of an action after summary judgment, we independently examine the record to determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) We view the evidence and all inferences reasonably drawn therefrom in the light most favorable to the party opposing the motion. (Id. at p. 768.)
B. Prima Facie Case of Discrimination
As already noted, the trial court found that Matos was unable to make even the minimal threshold showing necessary to establish a prima facie case for disability discrimination. (See, e.g., Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 (Guz) [to demonstrate prima facie case, plaintiff must demonstrate not only that he was in a protected class and suffered an adverse employment decision, but also some other circumstances suggesting a discriminatory motive].) At a bare minimum, at the prima facie stage, a plaintiff who relies on his HIV+ status to support an inference of discrimination must be able to point to some admissible evidence that the decision maker acted with knowledge of this condition. As numerous cases have explained, such knowledge is required to support the inference necessary to establish the discriminatory motive necessary to establish a prima facie case. (Morgan, supra, 88 Cal.App.4th at pp. 73-74; Trop v. Sony Pictures Entertainment Inc. (2005) 129 Cal.App.4th 1133, 1145-1146; Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236-237.)
Matos has not disputed that Dean Johnson was the sole decision maker in his termination. In his deposition testimony, he acknowledges that at no time prior to his termination did he tell Dean Johnson that he was HIV+. In support of summary judgment, Dean Johnson has attested that when she fired Matos, she had no knowledge of his HIV+ status and, indeed, had never spoken with Peugh-Wade or any other USF employee about Matos’s health. She avers Matos was terminated for job-related reasons—his abrasive communication style.
Peugh-Wade of HR, who was aware of Matos’s HIV+ status because he divulged this information to her during a May 10, 2004 conversation, has submitted a declaration under oath unequivocally stating that she never gave that medical information to Dean Johnson nor did she participate in the decision to terminate Matos. Matos’s HIV+ condition was known to three other USF employees, besides Peugh-Wade, all of whom worked in HR and the legal department. Each of the identified employees has attested under oath that he or she did not disclose this information to anyone else at USF, including Dean Johnson. All have declared that they considered Matos’s HIV+ status as highly confidential. All have stated that they did not participate in Dean Johnson’s termination decision.
There was nothing in the evidence before the trial court that showed the declarations submitted by Dean Johnson, Peugh-Wade, or the other USF employees were not worthy of belief. To the contrary, these declarations are essentially uncontradicted as Matos has not submitted any evidence, not even his own declaration, to controvert this showing.
Nevertheless, Matos claims a triable issue of material fact exists as to whether Dean Johnson was aware of his disability at the time of termination. First, he points to the fact Peugh-Wade admitted that she disclosed part of their supposedly confidential May 10, 2004 conversation to Dean Johnson. Second, Matos claims the timing of his termination directly coincides with USF’s knowledge of Matos’s HIV+ status and contradicts the “superlative” performance review and raise received by Matos prior to his disclosure. Third, Matos noted marked changes in behavior in Dean Johnson following his May 10, 2004 meeting with Peugh-Wade.
Matos asks this court to surmise that, because the evidence establishes that Peugh-Wade and Dean Johnson spoke with one another after the May 10, 2004 meeting, Peugh-Wade disclosed Matos’s HIV+ condition. It is true that Peugh-Wade admitted she spoke with Dean Johnson after the May 10, 2004 meeting, but she repeatedly testified she was simply passing along some of Matos’s employment-related complaints and that she did not inform Dean Johnson of any of the “sensitive” health-related information imparted at the meeting. Peugh-Wade’s testimony is squarely consistent with Dean Johnson’s testimony—Peugh-Wade never gave her any information about Matos’s health before Matos’s termination.
Next, we find nothing suspicious about the timing of Matos’s termination. There is no dispute that the termination took place at the point in time contemplated by the end of the one-year probationary period applicable to all employees, thus dispelling any inference that Matos was being singled out for special scrutiny. We also question Matos’s characterization of his prior performance review as “outstanding,” which he claims calls into question whether Dean Johnson had a discriminatory motive when she terminated him approximately one month later. Although the prior evaluation expressed overall satisfaction with Matos’s job performance, Dean Johnson expressed concern that he was speaking to others like “[my] way is the way,” and she urged him to “calm communication.” After this performance review, Dean Johnson continued to receive written and verbal complaints from a variety of sources, including coworkers and members of the public, regarding Matos’s poor communication skills and unprofessional conduct which caused her to question whether he should be retained after his one-year probationary period. Therefore, Matos has produced no evidence showing that the timing of his discharge is suspect.
Additionally, Matos has not raised a triable issue of fact based on his belief that Dean Johnson’s attitude toward him changed after he disclosed his health status to Peugh-Wade. Matos claims that after his May 10, 2004 meeting with Peugh-Wade, Dean Johnson began to avoid communicating with him, she refused to meet with him, and she began “scowling” at him and ignoring him when they passed in the halls. Matos claims that the “marked change in behavior . . . raise a triable issue of fact as to whether [Dean Johnson] had knowledge of Mr. Matos’ HIV status at the time of termination.” The inferences Matos would have us draw do not follow naturally from the evidence presented and would constitute sheer speculation. As the trial court noted when the summary judgment motion was argued, “I’ve been known to scowl walking around . . . . It’s not personal[] necessarily.” As the trial court recognized, merely being cool and distant to a coworker does not amount to knowledge that the coworker is HIV+.
We point out that Dean Johnson’s alleged change in attitude also followed her receipt of the e-mails from a parent who was extremely upset by Matos’s conduct during his daughter’s face-to-face meeting with Matos.
Our Supreme Court has noted that while the plaintiff’s prima facie burden is not onerous, the plaintiff must minimally show that the action taken by the employer was based on a prohibited discriminatory criterion. (Guz, supra, 24 Cal.4th at p. 355 .) Matos’s discrimination claim fails at this first step. He has failed to establish a prima facie case of employment discrimination because he has not shown that Dean Johnson, the decision maker, knew of his HIV+ status when she terminated his employment.
C. Legitimate Non-Discriminatory Reason for Termination
USF’s summary judgment motion focused not only on the sufficiency of Matos’s prima facie case of discrimination, but on the second stage of the McDonnell Douglas inquiry—the existence of good cause to terminate Matos. In its moving papers, USF offered evidence that Dean Johnson made the decision to terminate Matos’s employment at the conclusion of his one-year probationary period because reports of Matos’s abrasive communication style persisted, despite being warned in his earlier performance review to “calm communication.”
As part of its showing on summary judgment, USF submitted the declaration of USF Senior Associate Director of Admissions Virginia Rios indicating that, as Matos’s one-year anniversary approached, Dean Johnson asked her for her view on Matos’s job performance to date. Rios told Dean Johnson that she believed Matos lacked good “people skills” and that he appeared to exhibit a dictatorial style with other persons at USF. Michael Hughes, USF’s director of undergraduate admissions, offered Dean Johnson a similar assessment of Matos’s job performance. In his declaration he recalled telling Dean Johnson that Matos’s communication style was abrasive and disagreeable and that Matos had poor “people skills.” USF also submitted copies of two e-mails sent to Dean Johnson from the father of a student applicant to USF complaining about Matos’s unprofessional conduct and abrasive demeanor during a face-to-face meeting with his daughter. These e-mails have high probative value in proving the legitimacy of USF’s reasons for the termination because their author was a member of the general public who was not involved in the termination decision and would have no discriminatory motive to generate a complaint about Matos’s job performance.
USF’s evidence of a well-documented, legitimate, nondiscriminatory reason for Matos’s termination dispelled the presumption of discrimination and shifted the burden to Matos “to rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred.” (Guz, supra, 24 Cal.4th at p. 357.) At this point, to survive summary judgment, it was not sufficient for Matos simply to deny the credibility of USF’s witnesses or to speculate as to a discriminatory motive. Rather, Matos had to produce substantial responsive evidence demonstrating the existence of a material triable controversy as to pretext or discriminatory animus on the part of the employer. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004 (Hersant); Martin v. Lockheed Missile & Space Co. (1994) 29 Cal.App.4th 1718, 1735.) “For this purpose, speculation cannot be regarded as substantial responsive evidence. [Citation.]” (Ibid.) The employee must set forth specific facts demonstrating “ ‘such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence . . . .” ’ ” (Hersant, supra, 57 Cal.App.4th at p. 1005.)
In our view, Matos has not carried his burden. The undisputed facts demonstrate Dean Johnson’s stated reason for termination had a basis in fact, and, particularly at the juncture when Matos’s one-year probationary period was coming to an end, it was sufficient to motivate the discharge. Matos did not challenge USF’s showing with direct, credible evidence disputing the asserted inadequacies in his job performance. In fact, Matos’s opposition is wholly devoid of evidence challenging numerous individuals’ negative assessment of his interpersonal skills and communication style. Instead, Matos tenders several peripheral circumstances to establish that the articulated reason for USF’s adverse employment action was pretextual and designed to mask its discriminatory intent.
We are not persuaded by Matos’s argument on appeal that discriminatory animus can be inferred from USF’s failure to give him additional time and sufficient assistance to work on his perceived inadequacies in order to save his job. Dean Johnson gave a sworn declaration that she offered to extend Matos’s one-year probationary period to give him an opportunity to improve his interpersonal skills; but only if he would make a commitment to work on the needed changes. Instead, Matos indicated he disagreed with her assessment and declined to make a commitment to change. Consequently, Dean Johnson “made the decision that I did not believe there was a likelihood of a successful, long-term employment relationship. . . .”
This version of events is corroborated by Matos’s own deposition testimony: “Q. Did you question the validity of [Dean Johnson’s] judgment about your performance? [¶] A. Yes. [¶] Q. Did you ever communicate to your boss that you would fix the problem? [¶] A. Not that I recall. [¶] Q. Did you ever tell Dean Johnson that you accepted the validity of the performance comments she had made and that you would fix them? [¶] A. I do not believe so.” Given this testimony, the fact that USF did not extend Matos’s probationary period to offer him job-related assistance provides no evidence of discriminatory animus.
Nor do various statements which Peugh-Wade allegedly made during their meeting support an inference of discrimination or bolster a finding of pretext. Any alleged animus on Peugh-Wade’s part is relevant only if she participated in or influenced the decision to terminate Matos. Peugh-Wade has unqualifiedly stated that she had nothing to do with Matos’s termination, and Matos has not rebutted that showing. Consequently, even if we assume Peugh-Wade’s conduct manifested an inappropriate discriminatory attitude toward Matos, it is irrelevant. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 809-810.)
In her declaration, Peugh-Wade disputes Matos’s characterization of what took place in their May 10, 2004 meeting. She explains that her statement to Matos about looking for other employment was a direct response to Matos’s expression of dissatisfaction with many facets of his employment and not a reaction to his disclosure that he was HIV+. She also claims she did not suggest that he see a psychiatrist, but rather, she asked him if he knew about the university’s “Employee Assistance Center,” where USF provided access to health professionals to discuss personal problems.
Finally, as evidence that the explanation given for his termination was pretextual, Matos claims USF’s “reasons for termination have vacillated throughout this litigation.” Our Supreme Court has pointed out, an “inference of dissembling” sufficient to raise a triable issue of material fact “may arise where the employer has given shifting, contradictory, implausible, uninformed, or factually baseless justifications for its actions. [Citations.]” (Guz, supra, 24 Cal.4th at p. 363.) In support of this argument, Matos points to a single interrogatory response which nowhere refers to USF’s reason for his termination. In our review of the record on summary judgment, USF’s reason for terminating Matos has remained consistent throughout this litigation, and there is absolutely no evidence its reason was created after-the-fact in order to cover up discriminatory conduct.
In discovery Matos requested USF to “[s]tate all facts that support your contention that Mr. Matos misrepresented his job qualifications by communicating inaccurate information in the course of his application for employment with the University.” In response, USF replied, “Plaintiff failed to disclose certain adverse circumstances regarding his prior employment at Occidental College and New York Law School. Discovery and preparation or [sic] continuing in this matter.”
While USF has submitted deposition testimony, declarations, and copies of pertinent documents, Matos has not set forth any evidence supporting an alternate version of the facts which, if credited by the jury, would permit a verdict in his favor. In the face of USF’s well-supported summary judgment motion, Matos’s conclusory denials and weak suspicion that discrimination played a part in his termination are insufficient to create a disputed issue of material fact as to whether the legitimate nondiscriminatory reasons proffered by USF for his termination are pretextual. In the words of our state’s high court: “Under these circumstances we conclude, as a matter of law, that [Matos] has failed to point to evidence raising a triable issue that [USF’s] proffered reasons for its actions were a pretext for prohibited . . . discrimination. [USF] is therefore entitled to summary judgment on this claim.” (Guz, supra, 24 Cal.4th at p. 370 [affirmance of summary judgment in case in which the employer’s evidence of a nondiscriminatory motive was overwhelming, while the plaintiff’s countervailing evidence of discrimination was weak].)
IV.
Conclusion
The judgment is affirmed.
We concur: Reardon, J, Sepulveda, J.