Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC414644. Mary Ann Murphy, Judge.
Rice & Bloomfield and Linda Fermoyle Rice for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Alicia M. B. Fowler, Assistant Attorney General, and Celine M. Cooper, Deputy Attorney General for Defendant and Respondent.
CHAVEZ, J.
William Lynn Watkins (appellant) appeals from a final judgment entered after the trial court granted summary judgment in favor of the Department of Motor Vehicles (respondent or DMV) on appellant’s claims against respondent of gender discrimination, race discrimination, and failure to prevent discrimination. We affirm.
CONTENTIONS
Appellant contends that the trial court erred in determining that respondent met its burden of showing legitimate, nondiscriminatory reasons for declining to appoint appellant to the position of regional administrator. Further, appellant argues, even if respondent did meet its burden, the trial court erred in determining that appellant failed to produce sufficient evidence to raise a triable issue of fact as to pretext.
FACTUAL BACKGROUND
1. Organization of the DMV
The DMV is led by a director, followed by a chief deputy director, and 10 deputy directors. One of the 10 deputy directors oversees the field operations division. Walter George Valverde (Valverde) became the director of the DMV in 2006 and was director in 2007. Ken Miyao (Miyao) was the chief deputy director in 2007. Susan Hogg (Hogg) was the deputy director of the field operations division in 2007.
The field operations division has eight geographic regions (regions I – VIII). The eight regions are overseen by regional administrators. A regional administrator is responsible for the overall management and operation of all the field offices in the designated region. Regional administrators are career executive assignments and are part of the director’s management team.
2. Regional administrator positions open up in 2007
In 2007, three regional administrator positions opened up and needed to be filled: region I (Redding), region IV (Fresno), and region VIII (San Diego). A qualified applicant could apply to fill one, two, or all three of the vacancies, meaning he or she was willing to go to work in any of those regions. Appellant, a White male, submitted an application and statement of qualifications to fill any one of the three regional administrator positions, indicating that he was willing to work in any region where he was needed.
3. General eligibility and appointment procedures
Eligibility for appointment to career executive assignments, such as the regional administrator assignments that opened up in 2007, is established by competitive examinations. Appointments are governed by the civil service system provided by the California Constitution. (Cal. Const., art. VII, § 1; Gov. Code, § 19889.3; see also Professional Engineers v. Department of Transportation (1997) 15 Cal.4th 543, 548.) The Civil Service Act (§ 18570 et seq.) (“the Act”) requires appointing powers to fill vacant positions “by appointment” and, except as otherwise provided, requires appointments to “be made from employment lists.” (§ 19050.)
All further statutory references are to the Government Code unless otherwise indicated.
An “employment list” includes an “eligible list, ” meaning “a list of persons who have been examined in an open competitive examination and are eligible for certification for a specific class.” (§§ 18532, 18537.) Eligible lists are “established as a result of free competitive examinations open to persons who lawfully may be appointed to any position within the class for which these examinations are held and who meet the minimum qualifications requisite to the performance of the duties of that position as prescribed by the specifications for the class or by board rule.” (§ 18900, subd. (a).)
Examinations to establish eligible lists must be “competitive and of such character as fairly to test and determine the qualifications, fitness, and ability of competitors actually to perform the duties of the class of position for which they seek appointment.” (§ 18930.) The names of persons who have attained passing marks in the examination “shall be placed on the list in the order of final earned ratings, ” subject to modification for application of constitutional veterans’ preferences. (§ 18937.)
Section 19057.1 of the Act requires certification of a list to the appointing power with the names of those eligible employees who place in the top three ranks of scores and who are willing to accept appointment under the conditions of employment specified. This is known as the “rule of three ranks.” A rank consists of one or more eligible employees with the same whole percentage score. (§ 19057.1.) The regional administrator positions which were open in 2007 were subject to the rule of three ranks.
Hogg, working with the DMV’s human resources department, was responsible for the general examination process for the regional administrator positions that opened up in 2007. However, Valverde was responsible for making the final appointment decisions.
4. Examination for the regional administrator positions in 2007
Upon learning that the three regional administrator positions would become vacant in 2007, Miyao directed Hogg to work with human resources to develop a process for filling the positions. A single job announcement was issued for all three positions. The human resources department would screen out those applicants who did not meet the minimum qualifications. The remaining applications would be scored. A panel would then interview the qualified candidates and make further recommendations to Valverde, who would conduct a final interview and make the appointments.
The examination announcement was made on July 23, 2007. It identified the minimum qualifications and desirable characteristics for the position, as well as the examination process and filing date. Applicants were advised that interviews would be conducted with the most qualified candidates.
Twenty-one candidates applied for one or more of the open regional administrator positions. Appellant applied for each of the three open positions. Gloria Rivera (Rivera) also applied for each of the three open positions. Rafaela Escalante (Escalante) applied for the region IV position. Dolores Colon (Colon) applied for the region I position.
On August 23, 2007, Hogg and three other panel members reviewed and scored the applications and statements of qualification for those candidates who met the minimum qualifications. The panel compared the candidate’s application and statement of qualifications with the desirable qualifications for the position. Seventeen candidates applied for region I, and fifteen successfully passed the examination and were ranked. Twenty candidates applied for region IV and fifteen were ranked. Twenty-one candidates applied for region VIII and sixteen were ranked.
Appellant received an examination score of 85 for regions I, IV, and VIII. Rivera received a score of 85 for regions I, IV and VIII. Escalante received a score of 80 for region IV. Colon received a score of 80 for region I. By virtue of their examination scores, appellant, Rivera, Escalante, and Colon were all within the top three ranks for the respective examination for which they applied. Any candidate in the first three ranks was deemed qualified and eligible for appointment by Valverde.
5. Panel interviews for the regional administrator positions
Hogg scheduled interviews with eligible candidates in the first three ranks before a four-member panel which included her and three others. The purpose of the panel interview was to narrow the candidate pool down so only the most competitive candidates would be interviewed by Valverde. Valverde did not want to interview a large number of candidates.
Following the interviews, the top five candidates were appellant, Escalante, Colon, Rivera, and Esther Lizarraga (Lizarraga), a candidate from the Employment Development Department (EDD). Appellant and Rivera had the highest scores from the panel interview. They scored 95. Escalante scored 90, and Colon scored 85.
Hogg recommended that Rivera and Lizarraga be interviewed by Valverde for region VIII, Escalante for region IV, and appellant for region I. After speaking with Valverde about it, Miyao had Colon added to the list of candidates that Valverde would interview for region I.
6. Valverde’s interviews and appointments
Valverde was the ultimate decision maker regarding the appointments. He wanted people that he could work with. During the interviews for region VIII, Miyao was on vacation. Shamim Khan participated in Valverde’s interviews of the region VIII candidates. Miyao participated in the region IV and region I interviews. After conducting the interviews, Valverde appointed Rivera to fill the region VIII position, Escalante to fill the region IV position, and Colon to fill the region I position.
PROCEDURAL HISTORY
Appellant timely exhausted his administrative remedies when he obtained a right-to-sue letter from the Department of Fair Employment and Housing on July 21, 2008. The operative complaint, filed on July 8, 2009, alleged causes of action against respondent and Valverde under the Fair Employment and Housing Act (FEHA) (§ 12900 et seq.) for employment discrimination based on gender; employment discrimination based on race/national origin; employment discrimination based on age; and failure to prevent employment discrimination. The third cause of action for age discrimination was dismissed with prejudice on March 30, 2010.
Valverde was later dismissed as a defendant.
In this appeal, appellant does not challenge the trial court’s ruling as to his fourth cause of action for failure to prevent discrimination.
Appellant alleged that “[s]ometime before September 21, 2007, Irene Madrid [(Madrid)], a Hispanic female, filed a lawsuit against [respondent] for employment discrimination based on race/national origin and gender.” Appellant alleged that at the time Madrid’s lawsuit was filed, none of the eight regional administrators was a Hispanic female. Appellant further alleged that as of July 2008, when appellant filed his complaint with the Department of Fair Employment and Housing, four of the regional administrators were black females, three were Hispanic females and one was a Hispanic male. None of the regional administrators was a White male. Appellant alleged that none of the Hispanic females promoted to regional administrators in October 2007 were better qualified for the position than appellant.
As to his cause of action for gender discrimination, appellant alleged that “the decision to hire three Hispanic females, who were less qualified than [appellant] for the position of Regional Administrator, was a ‘knee-jerk’ response to the lawsuit by Madrid at a time when there were no Hispanic females at that level” in the DMV.
As to his cause of action for discrimination based on race/national origin, appellant similarly alleged that the decision to hire three Hispanic females was a “knee-jerk” reaction to Madrid’s lawsuit. Appellant further alleged that Valverde, “a Hispanic male, was pre-disposed to discriminate against him because he was not Hispanic; that [Valverde] was determined to promote employees, not based on merit and qualifications, but based on race because of pride in his own ethnicity; and that [Valverde] sought to redress what he perceived as previous discrimination against Hispanics by making race/ ethnic origin as or more important a consideration for advancement than skill and qualifications for promotion to the level of Region Administrator.”
On May 28, 2010, respondent filed its motion for summary judgment or, in the alternative, motion for summary adjudication (summary judgment motion). Respondent argued that appellant could not establish a discriminatory motive, and that respondent had legitimate, nondiscriminatory reasons for appointing Rivera, Escalante and Colon.
As to the Madrid lawsuit, respondent presented evidence that Valverde was unaware of the lawsuit at the time he made the appointments in fall 2007. Respondent presented evidence that the Madrid lawsuit was filed in November 2004, one and one-half years before Valverde became director of the DMV. In addition, respondent presented evidence that judgment was entered in favor of the DMV in the Madrid lawsuit on February 5, 2007, well before the 2007 regional administrator appointment process began. In addition, respondent presented evidence that Valverde did not even know that Colon was Hispanic when he appointed her.
Finally, respondent argued that appellant had no evidence suggesting that the reasons for respondents’ appointments were untrue or pretextual.
Respondent’s summary judgment motion was heard on August 24, 2010. On August 26, 2010, the motion was granted. Final judgment was entered on September 3, 2010.
On October 27, 2010, appellant filed his notice of appeal from the final judgment.
DISCUSSION
I. Standard of review
The standard of review for an order granting or denying a motion for summary judgment or adjudication is de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) The trial court’s stated reasons for granting summary relief are not binding on the reviewing court, which reviews the trial court’s ruling, not its rationale. (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
A party moving for summary judgment “bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Ibid., fn. omitted.) “A defendant bears the burden of persuasion that ‘one or more elements of’ the ‘cause of action’ in question ‘cannot be established, ’ or that ‘there is a complete defense’ thereto. [Citation.]” (Ibid.)
Generally, “the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.... A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]” (Aguilar, supra, 25 Cal.4th at pp. 850-851.)
II. Standards applicable to FEHA claims
The FEHA prohibits discriminatory employment practices. It is an unlawful employment practice for an employer, “because of the race... [or] sex... of any person... to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (§ 12940, subd. (a).)
The framework for determining the existence of a cause of action for race or gender discrimination is as follows: “Under well-settled rules of order of proof, the employee must first demonstrate a prima facie showing of prohibited discrimination. If the employee does so, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action. The employee then has the burden of proving the proffered justification was a pretext for discrimination. [Citations.]” (Nelson v. United Technologies (1999) 74 Cal.App.4th 597, 613, citing McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802.)
A defending employer seeking summary judgment in a discrimination case may meet its burden by showing that one or more of these prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354-356 (Guz); Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.)
In this matter, the trial court determined that respondent produced undisputed evidence that its failure to promote appellant to the position of regional administrator was based on legitimate, nondiscriminatory factors, and that appellant failed to create a triable issue of fact as to pretext. Therefore, we focus our discussion on the second two phases of the burden-shifting analysis described above.
III. Respondent made sufficient showing of a legitimate, nondiscriminatory reason for its decisions
A. Respondent’s position
In support of its summary judgment motion, respondent presented evidence that the final five candidates for the regional administrator positions were chosen based on a merit system under the so-called rule of three ranks. (§ 19057.1.) Thus, they were equally eligible for appointment to one of the three open positions.
For the region VIII position, Valverde interviewed Rivera and Lizarraga. Respondent presented evidence that Rivera was appointed because she demonstrated the skills, knowledge and ability to work as the regional administrator in region VIII. She had extensive experience in field operations and a total of 23 years in management. She was experienced in a large, urban office setting and understood complex human resources and customer service issues. She was knowledgeable about DMV’s strategic direction and was a Leadership Academy graduate.
For the region IV position, Valverde interviewed Escalante. Respondent presented evidence that Escalante was appointed because she had extensive experience in field operations management. She understood and was sensitive to the differences and complexities of different sized offices. She was known for her organizational skills and her passion for the DMV. She was also a Leadership Academy graduate.
During the interview with Escalante, Valverde observed that she articulately demonstrated an understanding of the operation of a variety of different field offices, showed a comfort with the scope and responsibility of being a regional administrator, and demonstrated an understanding of his expectations. She displayed an ability to relate effectively with all levels of people within the DMV.
For the region I position, Valverde interviewed appellant and Colon. Colon was appointed in part because she had 41 years experience in the DMV with over 30 years of management experience. Colon had been employed by the DMV longer than any of the other candidates. She had an exceptional depth and breadth of knowledge about the DMV field operations. She was often called on to mentor others in technical skills, knowledge, management and interpersonal relationships in region I.
Colon was confident in her interview and demonstrated an understanding of the scope of the responsibility and the specific issues in region I. Colon was from region I and had been acting regional administrator in the past. Valverde considered her the best qualified candidate for region I.
Appellant had more than 15 years experience as an office manager with the DMV in region V (the Los Angeles area). While appellant was well qualified for the job and well thought of by his regional administrator, both Valverde and Miyao felt that he needed further development and that he was better suited for a region with larger offices. Appellant did not specifically discuss region I during the interview, and Valverde and Miyao were concerned that he did not have an appreciation for the unique characteristics of the smaller DMV offices within region I. Miyao also found appellant to be boastful and overly talkative. Ultimately, Valverde did not see appellant as less deserving of the appointment to regional administrator, but instead thought that Escalante and Colon were a better fit for the respective regions to which they were appointed.
This evidence was sufficient to show that respondent had legitimate, nondiscriminatory reasons for its appointment decisions.
B. Appellant’s position
Appellant argues that respondent did not present legitimate, nondiscriminatory reasons for its decision to promote three Hispanic women instead of appellant. Appellant argues that he offered evidence that he was better qualified by virtue of the scoring of his application, his statement of qualifications, his interview, his background in safety and security issues, his experience in field offices of different sizes, and the required customer service criteria.
We decline to engage in a comparison of each candidate’s qualifications, as it is apparent from the evidence that all five candidates that made it to the final interviews were highly qualified for the jobs. Legal precedent requires that, in order for a case to proceed beyond summary judgment on the basis of a disparity in qualifications alone, the disparity must be substantial. (Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 675.) Appellant’s belief that he was a better candidate does not defeat respondent’s evidence. “[A]n employee’s subjective personal judgments of [his] competence alone do not raise a genuine issue of material fact. [Citation.]” (Bradley v. Harcourt, Brace & Co. (9th Cir. 1996) 104 F.3d 267, 270.)
“‘Because the antidiscrimination objectives and relevant wording of title VII of the Civil Rights Act of 1964 (Title VII) [(42 U.S.C. § 2000e et seq.)], ... are similar to those of the FEHA, California courts often look to federal decisions interpreting these statutes for assistance in interpreting the FEHA. [Citations.]...’” (Reno v. Baird (1998) 18 Cal.4th 640, 647-648.)
Next, appellant argues that respondent did not make an affirmative showing that neither race nor gender were factors in its decision to select Rivera, Escalante and Colon over appellant. Appellant claims that, in cases holding that the employer produced sufficient evidence to shift the burden back to the plaintiff to prove pretext, the employer submitted evidence affirmatively stating that discrimination played no part in the employment decision. Appellant complains that the DMV did not produce a declaration from Valverde stating that he did not consider race or gender in this case.
Appellant cites one case in support of his position that respondent must affirmatively declare that race and gender did not influence its employment decision. In University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028 (University of Southern California), a tenured associate professor sued the University for gender discrimination after she was denied a promotion to full professor. The plaintiff had requested a promotion, and pursuant to University policies, a committee was formed to evaluate her request. Each member of the committee filed a declaration stating that the recommendation against promoting the plaintiff was not based on her gender, but was based on the established criteria for promotion decisions: scholarship, service, and teaching. (Id. at pp. 1031-1032.) When her request for promotion was later renewed, a different committee reached the same decision. Each member of the second committee, like the first, filed declarations stating that the recommendation against promotion was based solely on the professor’s record, not her gender. (Id. at p. 1033.) The Court of Appeal reversed the trial court’s denial of the University’s summary judgment motion, finding that the University met its burden of showing a legitimate, nondiscriminatory reason for the denial of the professor’s promotion. (Id. at pp. 1035-1037.)
While the University of Southern California court found that the declarations filed by the committee members presented ample evidence of a legitimate, nondiscriminatory reason for its action, we find no language in that case suggesting that an affirmative denial of discrimination is required to defeat a prima facie case on summary judgment. Instead, the cases have consistently held that the sole burden on the employer is to produce evidence that the employment decision was made for a legitimate, nondiscriminatory reason. (University of Southern California, supra, 222 Cal.App.3d at pp. 1035-1036.) This requires the employer to set forth, “‘through the introduction of admissible evidence, the reason for the plaintiff’s rejection.’ [Citation.]” (Id. at p. 1036.) The explanation must be “‘clear and reasonably specific.’” (Ibid.) Appellant has failed to cite a case requiring an employer to make an affirmative statement that gender and race were not considered. Respondent’s evidence was admissible, clear and reasonably specific. Therefore, respondent met its legal and factual burden.
Finally, appellant complains that respondent relied on subjective criteria, using characteristics such as “sincerity” and “humility” to explain why the female candidates were more compelling. In support of this argument, appellant cites Lindahl v. Air France (9th Cir. 1991) 930 F.2d 1434 (Lindahl). In Lindahl, a customer promotion agent sued for age and gender discrimination after she was passed over for promotion in favor of a younger male. The Ninth Circuit determined that she had created triable issues of material fact regarding discrimination. Among other things, the plaintiff pointed out that the district manager had made comments suggesting that his evaluation of leadership ability was sexist. He testified that he believed the “female candidates get ‘nervous’” and that other female candidates got “‘easily upset.’” (Id. at p. 1439.) The court concluded that the district manager viewed the male candidate as “aggressive and cool, ” while he saw the female candidates as “nervous and emotional.” (Ibid.)
While Lindahl confirms that sex stereotyping can be evidence of sex discrimination, there is simply no evidence that Valverde engaged in such stereotyping. Appellant has provided no evidence that Valverde connected the characteristics of sincerity and humility with females only. These qualities are gender-neutral. Unlike the district manager in Lindahl, appellant has provided no evidence of any comments made by Valverde suggesting that he judged the candidates’ abilities with “male/female stereotypes.” (Lindahl, supra, 930 F.2d at p. 1439.)
In addition, the evidence in Lindahl suggested that the plaintiff’s employer had “later fabricat[ed]” its explanation as to why the younger male candidate was more qualified for the promotion at issue. (Lindahl, supra, 930 F.2d at p. 1438.) This is not the case in the matter before us, where each candidate went through an objective examination process and was equally qualified for the job.
In sum, despite appellant’s arguments to the contrary, we find that respondent successfully established legitimate, nondiscriminatory reasons for its selection of Rivera, Escalante, and Colon for the three regional administrator positions. Therefore, the burden shifts back to appellant to create a triable issue of fact as to whether respondent’s stated reasons were merely a pretext for discrimination.
IV. No triable issue of fact as to pretext raised
Appellant argues that he has presented sufficient evidence to create a triable issue of fact as to pretext. First, appellant points out, the DMV was on notice of racial bias in the appointment of regional administrators as early as 2004, but chose not to take steps to address or prevent the problem.
Appellant’s contention that there was racial bias in the hiring of regional administrators at any time is not supported by evidence in the record. Respondent produced evidence that Madrid’s lawsuit was dismissed on February 5, 2007, on the ground that the operative complaint failed to state a cause of action. There was no evidence that Madrid’s claims had any merit. In addition, Valverde testified that he was unaware of Madrid’s complaints or her lawsuit at the time he made the promotion decisions in 2007. Appellant has produced no other evidence that respondent was on notice of racial bias, as he claims, and he has failed to create a triable issue of fact as to pretext by referring to the Madrid lawsuit.
In his reply brief, appellant acknowledges that Valverde denied knowledge of the Madrid lawsuit. However, appellant argues that Valverde’s position required that he meet regularly with the DMV’s Equal Employment Opportunity office, as well as committees such as the Latin Hispanic Committee, where concerns about upward mobility were often expressed. We reject appellant’s suggestion that Valverde’s meetings with these groups suggests that Valverde was on notice of any racial bias in the hiring of regional administrators. Valverde testified that he met with members of the Disabled Advisory Committee, the Black Employees Committee, and the Latin Hispanic Committee, regarding issues of importance to those employee groups. He acknowledged that “upward mobility” was one of the concerns generally raised by these groups. However, Valverde testified that he had never spoken to a member of the Latin Hispanic Committee who expressed frustration about the DMV’s history with respect to the upward mobility of its members in general. Appellant has failed to produce any evidence supporting his claim that Valverde had any specific knowledge of improper bias in past promotional decisions or any improper motive with respect to the promotion of Hispanic females.
Appellant also argues that a disproportionate number of Hispanic females were identified to fill in the regional administrator position in 2007. However, appellant fails to link this disproportionate number to any racial or gender bias. Appellant makes no argument that the examination process, or the rule of three ranks, is flawed or biased. It would be difficult for him to make such an argument, as appellant himself fared well in the process and reached the small group of five finalists. Thus, there is no evidence suggesting that the disproportionately large number of Hispanic females in the group of finalists can be attributed to anything other than the merit of those individuals.
Appellant again raises the question of whether the Hispanic females were more qualified than he was. He focuses on Colon, who was chosen by Valverde despite Hogg’s recommendation that appellant be given the position of regional administrator in region I. However, the evidence was undisputed that, after the examination process was completed, Valverde had discretion to make the final appointment decisions. Valverde could not recall if he spoke with Hogg about her opinion of the candidates. However, he testified that Hogg’s opinion of the candidates was not dispositive, as he wanted individuals that he could work well with. In addition, appellant does not dispute that Colon had worked at the DMV for longer than he had. As appellant admits, Colon had been employed by the DMV longer than any of the other candidates. Furthermore, we reiterate that appellant’s favorable opinion of himself cannot defeat summary judgment:
“[A] plaintiff cannot satisfy [his] burden of demonstrating pretext ‘simply based on [his] own subjective assessment of [his] own performance.’ [Citations.] A plaintiff has the duty to put forth evidence of discrimination, not to ‘quibble about the candidates’ relative qualifications.’ [Citation.] In the absence of any other evidence that would allow a jury to infer that discrimination took place, ‘slight questions of comparative qualifications do not warrant a jury trial.’ [Citation.]”
(Hammond v. Chao (D.D.C. 2005) 383 F.Supp.2d 47, 57.)
In his reply brief, appellant articulates 10 purported “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action.” (Fuentes v. Perskie (3d Cir. 1994) 32 F.3d 759, 765.) Many of these purported implausibilities relate to appellant’s argument that he was better qualified than the candidates chosen. For example, he claims that “although all of the candidates may have been eligible and qualified to fill the position... [appellant] scored better on his application and at his initial interview than Colon”; that Hogg had identified him as “best qualified to address the challenges presented by Region I”; that “although Valverde said he thought [appellant] was ‘better suited’ for an area with larger offices, it isn’t clear why he thought this”; that “although Valverde specifically identified improving safety, security and customer service as important goals for the [DMV], he didn’t know what the various candidates’ experience in these areas actually was or that [appellant] had unique experience in security to bring to the role”; and that while “Hogg testified that ‘strategic planning’ for the DMV was very important to Valverde and Miyao, ” there was “no indication that they considered the candidates’ strengths in this area.”
We decline to go over each area of skill and experience which was evaluated for the promotion. “A plaintiff cannot create a triable issue by selecting from the many criteria used in the promotions process the one factor on which he or she may conceivably compare.” (Hux v. City of Newport News (4th Cir. 2006) 451 F.3d 311, 317.) This is especially true where, as here, appellant was one of five finalists for three jobs, and each candidate was extremely qualified for the promotion. Appellant has admitted that at this final stage of the selection process, “all of the candidates interviewed by Valverde were eligible and qualified for the position of Regional Administrator.”
As set forth above, it is not our role to scrutinize every detail of Valverde’s employment decisions. We do not “‘“sit as a super personnel department that reexamines an entity’s business decisions.”’” (Farnham v. Superior Court (1997) 60 Cal.App.4th 69, 78.) As long as the reasons for an adverse employment action are nondiscriminatory, they need not be wise or correct. (Guz, supra, 24 Cal.4th at p. 358.) Appellant’s analysis of his own superior qualifications is insufficient to defeat summary judgment.
Appellant raises general statistical race and gender information as evidence of pretext. Appellant claims that weaknesses in respondent’s case are presented by the fact that: “all three open positions were filled by Hispanic women who were appointed by a Hispanic Director at a time when no Hispanic females had ever filled a Regional Administrator position.” This fact does not create an inference of pretext, especially because four of the five candidates who made it through the objective examination process were Hispanic females. Appellant has produced no specific evidence that Valverde’s decision was based on discriminatory motives, and we decline to speculate that such discriminatory motives existed based on the circumstances described by appellant. A summary judgment motion may not be defeated by speculation, conjecture, imagination or guesswork. (O’Neil v. Dake (1985) 169 Cal.App.3d 1038, 1044.) A triable issue of fact must be supported by a factual foundation in the record, not mere conclusory assertions or possibilities. (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 525.)
Finally, appellant claims that “the pattern of hiring Regional Administrators over time suggests that race was a factor in that decision-making, of which the DMV was aware and complicit.” In support of this argument, appellant cites the declaration of Madrid, in which she claims that early on during her tenure at the DMV, it implemented an affirmative action policy which resulted in the promotion of a few females and several African-American individuals. Since Madrid has been employed at the DMV since the 1970’s, we decline to find a connection between the alleged “affirmative action policy” in place “early on” during her tenure and Valverde’s 2007 decisions. Appellant must produce evidence showing that discrimination was a motivating factor in Valverde’s decision. Appellant has failed to make any connection between the pattern alleged by Madrid and the 2007 decisions. He has failed to produce any evidence that Valverde’s decisions were improperly motivated.
Because appellant has failed to create a triable issue of fact as to pretext, we conclude that respondent’s motion for summary judgment was properly granted.
V. Evidentiary rulings did not constitute an abuse of discretion
The disputed evidentiary rulings concern evidence which is not necessary to the resolution of this matter. The evidence appellant argues was wrongly excluded concerns a letter Madrid wrote to the previous director of the DMV in July 2004 concerning an alleged hiring bias in favor of African-Americans, and an email Madrid sent to the assistant deputy director in August 2004 on the same subject. As we have discussed in this opinion, even if they were admissible, Madrid’s opinions about the hiring practices of previous officers do not constitute evidence that Valverde’s decisions regarding promotion were improperly motivated. Because those evidentiary rulings do not affect the outcome of this matter, we decline to discuss them.
DISPOSITION
The judgment is affirmed. Respondent is entitled to its costs of appeal.
We concur:BOREN, P. J., DOI TODD, J.