Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC370623. Conrad Richard Aragon, Judge.
Law Office of Jerry L. Webb and Jerry L. Webb; Law Offices of Jill B. Shigut and Jill B. Shigut, for Plaintiff and Appellant.
Rockard J. Delgadillo, City Attorney, Richard M. Brown, General Counsel, Lisa S. Berger, Deputy City Attorney, for Defendant and Respondent.
RUBIN, ACTING P. J.
Larry Tagawa appeals from summary judgment against him in his employment discrimination lawsuit against the Los Angeles Department of Water and Power. We affirm.
FACTS AND PROCEEDINGS
Larry Tagawa was born in 1952 and is of Japanese-American descent. In 1978, he started working for the City of Los Angeles Department of Water and Power (DWP) as a heavy duty equipment mechanic. In the following years, he received several promotions and by 1998 had become an equipment repair supervisor. In 1998, he moved from the DWP to the city’s general services division and then to its airport department, where he served as a senior automotive supervisor, a position possibly equivalent to a fleet services manager at the DWP.
In May 2004, the DWP published a job posting for the position of fleet services manager. Civil service rules required applicants for the job to take a written civil service exam to qualify for placement on an eligibility list from which the DWP would choose the candidate who scored highest in a department interview. The civil service rules required the DWP to interview five more candidates than the number of positions to be filed, with the candidates to be the written exam’s six highest scorers. Appellant earned the highest score on the exam, guaranteeing him an interview slot. Before the interviews started, however, the city’s civil service board approved the DWP’s request to create two more fleet services managers positions. Consequently, the DWP augmented the interview list to include candidates whose scores had not been in the top-six cut-off when the DWP sought to fill only one manager position. All three of the candidates the DWP eventually named as the new fleet services managers got onto the interview list following the list’s expansion.
Two interviewers (Richard Fujimura and William Spring) conducted the interviews for the fleet services managers and scored the candidates. Although performance on the written civil service exam determined which applicants received interviews, the exam scores did not figure into the final ratings used to select the managers. (See California State Personnel Bd. v. California State Employees Assn., Local 1000, SEIU, AFL-CIO (2005) 36 Cal.4th 758, 773 (State Personnel Bd.) [public employer entitled to consider all job-related qualifications and not obligated to select based solely on ranking on eligibility list derived from examination].) Instead, the interviewers asked each candidate the same preselected questions involving their anticipated duties as a fleet services manager, such as:
● “Name at least three major challenges Fleet Services will face over the next few years. How would you propose meeting these challenges?”
● “Fleet Services has just merged the Operations and Maintenance groups into a consolidated business unit. You are assigned to oversee safety and environmental compliance for this new business unit. Explain the steps you would take to ensure compliance with all regulations.”
● “Suppose you were informed that your budget was being reduced by 10%. What areas would you recommend for reduction and why?”
● “As a Fleet Services Manager, you notify one of your supervisors that he is scheduled for a random [Department of Transportation] test. The supervisor becomes somewhat agitated and tells you he feels ill and is going home. How would you handle this situation?”
The interviewers scored each candidate’s performance in the interview in five areas: experience and training; business acumen and management skills; analytical problem solving; interpersonal/communication skills; and oral communication skills. The available scores in each category were: “Outstanding” – 90 to 99 points; “Good” – 80 to 89 points; “Satisfactory” – 70 to 79 points; and “Unsatisfactory” – 70 or less. Both interviewers rated appellant “outstanding” in his experience and training, and “good” in the other four areas. Each interviewer awarded appellant an overall score of 86. In the comment section of his interview form for appellant, interviewer Fujimura noted some of appellant’s responses were “tentative” and did not “display a high level of confidence.” Civil service rules obligated the DWP to offer the managers positions to the three highest scorers; because appellant’s score of 86 was fourth highest, he was not among the chosen. Instead, those selected were white men younger than appellant, none of whom had been on the original interview eligibility list before its expansion.
Appellant sued the DWP. He alleged causes of action for age, race, and national origin discrimination in violation of the Fair Employment and Housing Act (Gov. Code, § 12940) for the DWP’s failure to make him a fleet services manager. The DWP moved for summary judgment or adjudication. It argued that the three selected managers scored higher in their interviews than did appellant, and thus, according to the DWP, were chosen for legitimate, nondiscriminatory reasons.
Appellant also alleged a cause of action for harassment based on his age, race, and national origin, but dismissed that cause of action.
The court entered summary judgment for the DWP. The court concluded appellant had established a prima facie case of employment discrimination because he was qualified to be a fleet services manager and the three candidates the DWP selected were younger than appellant and white. The court ruled, however, that appellant’s discrimination claim nevertheless failed because scores on the written civil service exam at which appellant had excelled did not count in scoring the selection interviews that determined who became a manager. Moreover, appellant had no evidence that the interviewers acted with discriminatory motives or bias. The court found the interviewers’ comments on their scoring sheets for all the candidates were not arbitrary, capricious, or motivated by age, race, or national origin; indeed, the criticism of appellant’s interview answers as tentative and lacking confidence was leveled by interviewer Fujimora, who, like appellant, was of Japanese descent and in his 50’s. The court thus entered judgment for the DWP. This appeal followed.
DISCUSSION
Appellant contends the court erred in dismissing his employment discrimination complaint because, in his view, overwhelming evidence proved he was more qualified than the three younger white men whom the DWP chose. He asserts the disparity in qualifications was most pronounced in comparison to the candidate who scored highest in the interviews, Michael McGeachy. Appellant’s contention glides over the fact that the interview questions emphasized the inner workings of the DWP’s fleet services and that all three chosen candidates, including McGeachy, were working at the DWP when the department promoted them to managers, but appellant had not worked at the DWP since 1998. McGeachy was a DWP garage attendant from 1985 to 1990 and a DWP automotive dispatcher from 1990 to 2004. In 2004, he received an emergency appointment making him a fleet services manager pending selection of a permanent manager. In contrast to McGeachy’s experience that appellant dismisses as at best unremarkable, appellant had worked the previous four years in the city’s airport department at a position he implies is akin to a fleet services manager.
Ignoring his six-year absence from the DWP, appellant focuses on the seemingly topsy-turvy switch between scores on the written civil service exam and interview scores. The three white candidates who were elevated to managers (Thomas Patzlaff, Michael McGeachy, and Peter Suterko) scored sixth, seventh, and eighth on the written exam, not high enough to make the initial interview eligibility list. But once the DWP added two new fleet service manager positions, the interview list expanded to pick up these three heretofore omitted candidates. At the end of the formal interview process, they captured the top three spots – Patzlaff rose from sixth on the written civil service exam to third in the interview; McGeachy rose from seventh on the exam to first in the interview; and Suterko rose from eighth on the exam to second in the interview. Movement of this sort, although suspicious to appellant, is of marginal significance. (See State Personnel Bd., supra, 36 Cal.4th at p. 772 [“competitive examinations that result in eligible lists typically test and rank only the general fitness and minimum qualifications required for an entire class of positions”].) On the other hand, the three older minority candidates who earned the top three scores on the written exam failed to place in the top three in the interviews; appellant dropped from first on the written exam to fourth in the interview, while the other two dropped from second in the exam to seventh in the interview and from third in the exam to eighth in the interview. (Ibid. [competitive written exams “do not test for all the specific knowledge, skills, abilities, and other personal characteristics and attributes that might reflect an eligible candidate’s superior fitness for a particular position”].) Appellant asserts the drop in his rankings from the written exam to the interview was especially suspicious because he ordinarily did well in job interviews, usually finishing first or second.
The thrust of appellant’s claim is Thomas Anderbery, who was the supervising general manager of the DWP’s fleet services section, manipulated the selection process for managers in a discriminatory way. Appellant does not offer evidence creating a triable issue that Anderbery made derogatory comments about appellant’s age, race, or national origin. Instead, appellant contends Anderbery orchestrated the expansion of the interview eligibility list to ensure younger white men were chosen as fleet services managers instead of appellant. Appellant also contends Anderbery tried to discourage him from applying to be a fleet services manager by misrepresenting the position’s benefits and perquisites. According to appellant, Anderbery falsely told appellant the position did not allow overtime, comp time, promotions, or use of a departmental car, when in fact all of those things came with the job. (Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 149 [employee showing prima facie case of discrimination and employer’s false pretext may be, but is not necessarily, enough to support liability without needing to show additional affirmative evidence of discrimination]; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 361-362 [prima facie case coupled with falsity of employer’s explanation may be enough for liability].)
DWP denies the list expanded for an improper reason. DWP asserts it sought two additional managers as part of its reorganization of the fleet division triggered by personnel changes in the division.
Appellant’s focus is Anderbery, with the suggestion that Anderbery engaged in favoritism that smacked of racism and age discrimination in that Anderbery favored younger white candidates for promotion. Appellant’s discrimination claim founders, however, upon his failure to connect Anderbery to the scores the interviewers gave the candidates in the selection interview. (Accord King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433-434 [decision maker must be affected by bias].) Appellant admitted in deposition testimony that he had no knowledge that Anderbery participated in the interviews that led to selection of the fleet services managers or that Anderbery directed the interviewers to score any candidates in any particular way. In addition, appellant did not properly dispute with admissible evidence sufficient to create a triable fact that Anderbery asked the interviewers to treat appellant differently from other candidates because of his race, age, or national origin. Finally, appellant offers no admissible evidence creating a triable issue of fact that age, race, or national origin bias motivated the interviewers who scored the candidates. Appellant’s inability to raise a triable issue of fact suggesting unlawful bias among the interviewers, whose scoring of the candidates determined who was chosen to be the fleet services managers, defeats his claim of employment discrimination. (King v. United Parcel Service, Inc., supra, 152 Cal.App.4th at pp. 433-434.) “[P]laintiff’s subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.” (Ibid.) Appellant’s speculation about the motivation of the decision makers, without proof of an actual causal link between prohibited motivation and termination is insufficient. (Ibid.)
Appellant’s most salient complaint about his interview is the interviewers told him to keep his answers brief because they were pressed for time. Appellant contends the interviewers punished him for his brevity by characterizing his answers as tentative and lacking confidence. Appellant’s contention fails, however, because it rests on a non-sequitur: one’s brevity might contribute to, say, one’s insufficient detail in an answer, or even to one’s wit, but a brief answer can also come forth from a speaker who is unhesitant and confident. Appellant’s contention that the interviewers punished him because he accommodated them by being brief is again unsupported speculation.
Finally, a letter in the record from the U.S. Equal Employment Opportunity Commission (EEOC) stating appellant had a plausible claim for discrimination does not create a triable issue of fact sufficient to defeat summary judgment. Without identifying any facts or evidence, the letter stated in conclusory terms that the director of the commission’s Los Angeles office concluded, “Examination of the evidence reveals reasonable cause to believe [appellant’s] claim that he was denied promotion on the basis of his, race, national origin and age. Therefore, I have concluded that the evidence is sufficient to establish a violation of [employment discrimination] statute[s].” Such EEOC letters carry limited evidentiary value, however, and do not create triable issues of fact. (Coleman v. Quaker Oats Co. (9th Cir. 2000) 232 F.3d 1271, 1283-1284 [EEOC letter is admissible but does not create a genuine issue of material fact when it contains only conclusory finding of “reasonable cause” to believe discrimination occurred]; but see Gifford v. Atchison, Topeka And Santa Fe Ry. Co. (9th Cir. 1982) 685 F.2d 1149, 1156 [EEOC report was sufficient to create triable issue of fact whether a female employee was treated differently from two male employees].)
DISPOSITION
The judgment for respondent Los Angeles Department of Water and Power is affirmed. Respondent to recover its costs on appeal.
WE CONCUR: FLIER, J., BIGELOW, J.