Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TC 019068, William P. Barry, Judge.
C. Brent Scott for Plaintiff and Appellant.
Walsh & Associates, Dennis J. Walsh and George E. Ordonez for Defendant and Respondent.
ROTHSCHILD, J.
Stanley Viltz brought this action against the Compton Community College District (the College) alleging she suffered employment discrimination because of her race and age and that the College retaliated against her because she complained to the Department of Fair Employment and Housing (DFEH). The trial court granted the College’s motion for summary judgment and entered a judgment in its favor. We affirm.
FACTS AND PROCEEDINGS BELOW
We state the undisputed facts briefly for background purposes and discuss further details as relevant to the issues on appeal.
The events leading up to this lawsuit occurred during the years 2004-2005 when the College experienced financial and academic crises. It had run out of funds two months before the end of the fiscal year. The Accrediting Commission for Community and Junior Colleges threatened to revoke its accreditation. The Board of Governors of the California Community Colleges had appointed a special trustee, Arthur Tyler, to assume the powers of the College’s board of trustees.
Plaintiff Viltz is an African-American woman, age 60 at the time of the events alleged in her lawsuit. Viltz began her employment as an administrator at the College in 1995 and immediately preceding Tyler’s assumption of control of the College, held the position of Vice President of Vocational Technology. At the time her employment terminated in June 2005, she had held the position of interim Vice President of Academic Affairs and Student Life since December 2004. She briefly served as acting President of the College in February 2005.
Viltz alleges that because of her race the College denied her the position of permanent Vice President of Academic Affairs and Student Learning and instead gave her only an interim appointment. She also alleges that thereafter because of her race the College denied her the positions of interim President and permanent President of the College and terminated from her position as interim Vice President of Academic Affairs and Student Learning. She further alleges that the College denied her the position of interim President because of her age and that the College terminated her in retaliation for her complaints to the DFEH. After receiving a right-to-sue letter from the DFEH, Viltz brought this action against the College under the Fair Employment and Housing Act, Government Code sections 12900-12956.1 (FEHA).
On appeal, Viltz claims she was demoted from vice president of vocational technology to dean of that discipline because of her race. We do not consider this claim because Viltz did not allege it in her complaint. The pleadings define the issues to be considered on a motion for summary judgment. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253.)
The College moved for summary judgment. It contended that at the time of the alleged discrimination it was not Viltz’s employer because all employment decisions had been assumed by the Board of Governors’ special trustee, Tyler. It further contended Viltz could not establish a prima facie case of race or age discrimination or retaliatory termination and, even if she could, the College had legitimate, nonpretextual reasons for its employment actions which Viltz did not rebut. The trial court granted the College’s motion and entered judgment in its favor. Viltz filed a timely appeal. We affirm.
Because we affirm the judgment on the grounds Viltz did not suffer discrimination or retaliation, we do not address the College’s argument it cannot be held liable for the actions of the special trustee, Tyler.
DISCUSSION
I. RACE AND AGE DISCRIMINATION
In order to establish a prima facie case of discrimination because of race or age, Viltz must show that: (1) she is a member of a protected class; (2) she was qualified for the position she sought or was performing competently in the position she held; (3) she suffered an adverse employment action; and (4) some other circumstance that suggests a discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) It is undisputed that Viltz is a member of protected classes—she is an African-American and over the age of 40.
An employer moving for summary judgment on a FEHA cause of action can negate discriminatory intent and shift the burden of proving that intent to the plaintiff by producing evidence of a legitimate, nondiscriminatory reason for the allegedly adverse employment action. (Guz v. Bechtel National, Inc., supra,24 Cal.4th at pp. 356-357; and see Code Civ. Proc., § 437c, subd. (p)(2).) Once the employer has shown nondiscriminatory reasons for its actions, in order to avoid summary judgment, a plaintiff must present specific facts that would support a reasonable conclusion that the employer engaged in intentional discrimination. (Guz v. Bechtel National, Inc., supra,24 Cal.4th at p. 357.) “[A]n employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Id. at p. 361.) We review the trial court’s grant of summary judgment de novo and decide independently whether the parties have met their respective burdens and whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.)
Plaintiff supports her case in part with purported facts that are not contained in the record and evidence that was struck by the trial court, neither of which we may consider. (Laabs v. City of Victorville, supra, 163 Cal.App.4th at p. 1250.)
A. Interim Appointment as Vice President Of Academic Affairs And Student Life
In 2004, Tyler reorganized the College’s administrative structure, eliminating some positions and creating others. He created approximately 14 new administrative positions. Viltz, who was Vice President of Vocational Technology, one of the positions eliminated, applied for the newly created permanent position of Vice President of Academic Affairs and Student Learning. Tyler selected Viltz for the post but, after doing so, informed her that her appointment was on an interim basis, and only for the period January 2005 through June 2005.
Viltz alleges that Tyler’s decision to only appoint her to the new position on an interim, rather than permanent, basis was racially motivated. The College contends that Viltz cannot show that Tyler’s decision to reclassify the position as interim was an adverse employment action or that it was racially motivated. We agree with both contentions.
The undisputed evidence showed that the College reclassified 14 of the newly created administrative positions from permanent to interim. (Cf. Murray v. Chicago Transit Authority (7th Cir. 2001) 252 F.3d 880, 888 [“policy changes that affected a large class of employees” were not adverse employment actions directed toward plaintiff”].)
The College also produced evidence that it had a legitimate, nonpretextual reason for changing the vice presidency position from permanent to interim. Tyler testified that due to the uncertainties of the College’s continued accreditation and whether its current president would be retained, he decided to make the 14 new administrative positions, including Vice President of Academic Affairs and Student Learning, interim positions to allow a new president to have “a say as to who he or she would like to have on his or her team.” Tyler also testified that the expiration date of the interim assignments, June 30, 2005, “was no different than if they had been hired as a regular administrator position [sic] because the District had customarily ended the term of administrator positions at the end of each academic year, June 30th.” Viltz’s testimony at her deposition confirmed Tyler’s explanation. She acknowledged that “permanent” administrators were employed on a year-to-year basis and were notified by March 15 “if there was going to be a change.”
The College’s evidentiary showing shifted the burden to Viltz to show the existence of a triable issue of fact as to whether Tyler’s decision to make her position interim was an adverse employment action and, if it was, whether Tyler’s reason for his decision was pretextual. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Viltz failed to make either of those showings. Viltz did not dispute the College’s evidence that it treated interim and permanent administrators the same in terms of the length of their contracts. Nor did she deny that the College reclassified all 14 positions to interim positions or provide any evidence that the rationale for the decision was suspect.
B. Denial Of Appointment As Interim President
In February 2005, Tyler appointed Viltz as acting president of the College, a position she held for about two weeks. Tyler informed Viltz that he would appoint her as interim president, to serve until a permanent president was selected, on the condition that she not seek the permanent presidency. Viltz intended to seek the permanent presidency, so she declined appointment to the interim presidency and continued as interim Vice President of Academic Affairs and Student Life.
Viltz maintains that Tyler conditioned the interim presidency on her not seeking the permanent position in order to deprive her of the interim position because of her age and race.
Viltz admits that the only evidence she has to support her claim of age discrimination is that the person who was appointed as interim president was under the age of 40. Because that evidence would not survive a nonsuit (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 355), the trial court properly granted summary judgment on the age discrimination cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 855.)
As to Viltz’s claim of racial discrimination, the College presented undisputed evidence that Tyler had rational, non-pretextual reasons for the condition that the appointee to the interim presidency could not seek the permanent presidency. Tyler testified that the same condition had been imposed on candidates for interim presidencies in other community college districts including Los Angeles Community College. The condition serves two purposes, Tyler explained. “[It] avoid[s] any bias, favorably or unfavorably towards the candidate that may be created if the candidate for the position also is simultaneously serving as the interim [p]resident. It also avoids the problem created by the situation where the interim [p]resident may not take risks in making hard decisions which may affect individuals who could play a role in the selection of the [p]resident.” Viltz presented no evidence to suggest that the rationale was suspect.
Viltz’s assertion that Tyler imposed the condition because of racial animus is further contradicted by the undisputed evidence that Tyler, an African-American, had previously appointed Viltz to the position of acting president and the person Tyler ultimately appointed to the interim presidency, Jamillah Moore, was also African-American.
C. Denial Of Appointment As Permanent President
Viltz contends the College denied her the permanent presidency because of her race. This contention fails because the undisputed evidence shows that Moore, an African-American, continued to serve as interim president of the College until August 2006 when it merged with the El Camino Community College District. Because the position ceased to exist and the College never hired a permanent president Viltz did not suffer an adverse job action.
D. Viltz’s Appointment To Vice President Is Not Extended
In May 2005, Tyler caused letters to be sent to all of the College’s administrators informing them that they would not be reemployed in their present positions for the 2005-2006 academic year. Tyler, however, informed Viltz that he was appointing her as acting Vice President of Academic Affairs and Student Life effective July 1, 2005. In June 2005, however, Tyler changed his mind. He testified: “I made the decision not to extend [Viltz’s] position as acting Vice President of Academic Affairs and Student Life, and that she would be recommended for a teaching position, provided review of her paperwork determined she was eligible.” Tyler testified that he made this decision based on the College’s interim president Rita Cepeda’s negative evaluation of Viltz and his own observations of Viltz’s performance. Viltz alleges Tyler did not extend her contract because of her race.
The question is whether Tyler’s stated reason for not renewing Viltz’s contract—her poor performance—was a legitimate, nondiscriminatory reason and, if so, whether Viltz has presented some evidence to suggest the stated reason was a pretext. (Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44.) Our review of the undisputed evidence, summarized below, persuades us that the stated reasons were legitimate and nondiscriminatory and that Viltz has not raised a triable issue of pretext.
In a performance evaluation prepared in June 2005, Cepeda found that Viltz had not met the expectations explained to Viltz upon her appointment as interim vice president. She resisted, rather than instituted, the rapid changes necessary under the College’s critical circumstances. She ignored or failed to develop many of the recommendations of the Accreditation Commission. In addition, Cepeda found that “‘key components under Dr. Viltz’s jurisdiction continue to be in . . . a state of disarray and dysfunction.’”
Tyler testified that he observed many of the same deficiencies in Viltz’s performance as cited by Cepeda. In addition, Tyler discovered that Viltz had failed to initiate changes within her jurisdiction that were necessary to help remedy the College’s financial crisis. He concluded that Viltz was fully aware of the College’s financial problems “but her actions did not exhibit an understanding of the urgency within which to make changes in the areas of her responsibility.” Cepeda’s and Tyler’s justifications for the decision not to employ Viltz as an administrator were rationally related to her duties as Vice President of Academic Affairs and Student Life.
Viltz failed to produce evidence tending to show these justifications were pretextual. Viltz did not produce any evidence to rebut Cepeda’s and Tyler’s criticisms of her performance. Instead, the only alleged evidence of pretext that she supports with citation to evidence in the record is that Cepeda failed to evaluate her performance in accordance with the College’s manual of policies and procedures. The manual provides in relevant part that all administrators shall be evaluated before March 15 of each year, that they shall receive “a written description of areas of unsatisfactory performance,” and written recommendations and a plan of action for improvement. The manual also requires that administrators with unsatisfactory areas of performance be reevaluated before May 15 of the same year. Evidence that Cepeda and Tyler failed to provide Viltz with a performance evaluation within the time required by the College’s rules does not tend to show that their reasons for failing to renew her contract were pretextual. As Viltz admits, the College was in chaos in the spring of 2005 and Viltz has produced no evidence that Cepeda or Tyler intentionally delayed her evaluation in order to deny her an opportunity for improvement.
II. RETALIATION FOR FILING A DISCRIMINATION COMPLAINT WITH THE DFEH
Viltz filed a claim of race and age discrimination with the DFEH on June 27, 2005, the same day Tyler informed her that she would not be hired as an acting vice president for the next academic year. She filed an amended claim on June 30, 2005. Viltz’s complaint alleges that the College retaliated against her for filing those claims by denying her a faculty appointment following her termination as an administrator.
On appeal, Viltz also contends the College retaliated against her by not allowing her to compete for the interim and permanent presidency and other administrative posts. Because Viltz did not make these allegations in her complaint we do not consider them. (See footnote 1, ante.)
In order to establish a prima facie case of retaliation under FEHA the plaintiff must be able to show that she engaged in a protected activity, her employer subjected her to an adverse employment action and that there is a causal link between the protected activity and the employer’s action. If the employee meets her burden, the burden shifts to the employer to show a legitimate, nonretaliatory reason for its action. If the employer does so, the burden shifts back to the employee to show intentional retaliation. (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1454.) The parties agree that filing a discrimination complaint with the FEHA is a protected activity. (Gov. Code, § 12940, subd. (h).) The College, however, presented undisputed evidence showing that it had a legitimate, nonretaliatory reason for not appointing Viltz to the faculty and Viltz failed to present evidence raising a triable issue of fact of pretext.
The evidence is undisputed that in June 2005, when Tyler terminated Viltz as an administrator, all of the courses Viltz was qualified to teach were already assigned to members of the adjunct faculty for the 2005-2006 academic year. (Viltz argues that there were teaching positions open at the time Tyler terminated her as an administrator but she cites no evidence to support that argument.) A terminated administrator cannot require the college to discharge an adjunct professor to make room for the administrator. (Wong v. Ohlone College (2006) 137 Cal.App.4th 1379, 1384-1385.) Even if Tyler could have exercised his discretion to discharge an adjunct faculty member and appoint Viltz to a teaching position, the College presented evidence of three legitimate, nonretaliatory reasons for his not doing so. Low morale among the faculty members was one of the chief concerns of the accreditation committee. In light of the evidence that the College’s administration was responsible for the College’s plight, displacing a faculty member from a teaching position to make room for a discharged administrator could have worsened the morale problem. Appointing Viltz to the faculty would have invited a confrontation with the Faculty Senate which was on record as opposing the introduction of administrators into the faculty ranks. Lastly, it could also have led to litigation against the College by the discharged adjunct faculty member.
The College’s evidence of legitimate reasons for not appointing Viltz to the faculty shifted the burden to Viltz to produce evidence from which a trier of fact could conclude those reasons were pretextual. She failed to do so. In her complaint, Viltz alleges other administrators who did not file claims of discrimination with the DFEH were allowed to return to the faculty after Tyler terminated them from their administrative positions and that this shows Tyler’s reasons for not appointing her to the faculty were pretextual. In opposing summary judgment, however, Viltz provided no evidence to support this assertion. Nor did Viltz offer any other evidence to show that the reasons for not appointing her to the faculty were illegitimate.
III. THE ORDER GRANTING SUMMARY JUDGMENT
Viltz contends that the judgment should be reversed because, in violation of Code of Civil Procedure section 437c, subdivision (g), the court’s order granting summary judgment referred only to evidence presented by the College and omitted evidence presented by her. Subdivision (g) states that the court’s order granting summary judgment “shall specifically refer to the evidence proffered in support of, and if applicable in opposition to, the motion which indicates no triable issue exists.” Even if the court’s order does not fully comply with section 437c, subdivision (g), the error is harmless because we look at the evidence de novo. (Ace American Ins. Co. v. Walker (2004) 121 Cal.App.4th 1017, 1027.)
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
We concur: MALLANO, P. J., NEIDORF, J.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.