Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 445422
GEMELLO, J.
Plaintiff Lawrence Zientarski appeals from a summary judgment in favor of defendant. We hold there is a triable issue of material fact regarding whether the reason proffered by defendant for laying off Zientarski was a pretext for age discrimination. We reverse the grant of summary judgment.
Factual and Procedural Background
In 2003, defendant Pan Asia Venture Capital Corporation owned various newspapers, including the Independent, which was published in San Francisco and on the San Mateo peninsula. Plaintiff Lawrence Zientarski worked as an editorial page designer for the division of the Independent that published six different editions in different cities on the Peninsula. Zientarski’s supervisor was Barbara Backer, the managing editor for the Peninsula editions of the Independent. Backer’s superior was James Pimentel, managing editor for both the Examiner newspaper and group managing editor of the Independent. There was a close relationship between the Independent and the Examiner; the Fang family controlled both publications and the publications shared staff; for example, the Human Resources manager was the same.
In July 2003, the production staff of the Independent, including Zientarski, was moved from offices in Burlingame to the offices of the Examiner in San Francisco. Pimentel terminated Zientarski in December 2003. Pimentel was solely responsible for the decision to lay off Zientarski. Zientarski was 52 years old.
Zientarski filed charges with the United States Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment & Housing, alleging age discrimination in the termination and in the provision of benefits during his employment. The EEOC made a finding of reasonable cause that Zientarski had been a victim of age discrimination. Subsequently, Zientarski filed this action, alleging age discrimination in violation of the California Fair Employment and Housing Act (FEHA). The trial court granted defendant’s motion for summary judgment and entered judgment in favor of defendant.
Discussion
I. Summary Judgment Rules and Standard of Review
“[T]he 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 v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either that the plaintiff cannot establish one or more elements of a cause of action or that there is a complete defense to the action. (Ibid.; Code Civ. Proc., § 437c, subds. (o) & (p).) If the defendant makes the required showing, the burden shifts to the plaintiff to present evidence that there is a triable issue of material fact. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780.) There is a triable issue if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of plaintiff. (Aguilar, at p. 850.) “ ‘ “Because discrimination cases often depend on inferences rather than on direct evidence, summary judgment should not be granted unless the evidence could not support any reasonable inference for the [plaintiff].” ’ ” (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1386.) “All doubts as to whether there are any triable issues of fact are to be resolved in favor of the party opposing summary judgment.” (Ingham v. Luxor Cab Co. (2001) 93 Cal.App.4th 1045, 1049.)
We review summary judgment rulings de novo. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) We independently determine whether the record supports the trial court’s conclusion that plaintiff’s discrimination claim failed as a matter of law, and we are not bound by the trial court’s stated reasons or rationales. (Ibid; Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951.) Our review is subject to the well established rule that “the relevant facts are limited to those set forth in the parties’ statements of undisputed facts, supported by affidavits and declarations, filed in support of and opposition to the motion in the present case, to the extent those facts have evidentiary support. [Citations.] Facts not contained in the separate statements do not exist.” (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 112; Code Civ. Proc., § 437c, subds. (b)(1) and (b)(3).)
II. The Age Discrimination Cause of Action
Subdivision (a) of Government Code section 12940, part of FEHA, makes it an unlawful employment practice to discharge a person from employment because of his/her age. Because of the similarity between state and federal employment discrimination laws, California courts look to federal precedent in interpreting FEHA. (Guz, supra, 24 Cal.4th at p. 354.) In particular, California courts have adopted the three-stage burden shifting test established by the United States Supreme Court for evaluating federal employment discrimination claims. (Ibid.)
Initially, the plaintiff has the burden of establishing a prima facie case of discrimination; that is, a set of circumstances from which one can infer, if such circumstances remain unexplained, that it is more likely than not that the employer had a discriminatory motive in taking an adverse action against the plaintiff. (Guz, supra, 24 Cal.4th at p. 355.) If the plaintiff meets the prima facie burden, a presumption of discrimination arises and the burden shifts to the employer to rebut the presumption by presenting evidence that the action was taken for a legitimate, nondiscriminatory reason. (Id. at pp. 355-356.) If the employer sustains this burden, the presumption of discrimination disappears and the plaintiff has an opportunity “to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. [Citations.] In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias. [Citations.] The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff.” (Id. at p. 356.)
This test “reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.” (Guz, supra, 24 Cal.4th at p. 354.)
III. Application of the Burden Shifting Test
A. Plaintiff’s Prima Facie Case
In the context of this case, a reasonable inference of age discrimination arises if Zientarski shows that (1) an adverse employment action was taken against him, (2) at the time of the adverse action he was 40 years of age or older, (3) at the time of the adverse action he was satisfactorily performing his job, and (4) he was replaced by a significantly younger person. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1003; see also Begnal v. Canfield & Associates, Inc. (2000) 78 Cal.App.4th 66, 73-74.)
Zientarski was 52 years of age when he was laid off in December 2003. Barbara Backer, the managing editor for the Peninsula editions of the Independent, and Clay Lambert, an editor for the Independent who worked with Zientarski, submitted declarations stating that Zientarski was performing his job well before he was laid off. Backer and Lambert averred that Zientarski’s duties were assumed by Sarah Borger, who was 28 years old. She was hired in September 2003.
Plaintiff Zientarski has thus presented a prima facie case of age discrimination. A presumption of discrimination was raised by the evidence and the burden shifted to the employer to rebut the presumption.
B. Defendant’s Nondiscriminatory Reason
Defendant must present evidence of a nondiscriminatory reason for the layoff. In its separate statement, defendant asserts that Zientarski “was laid-off with eight other employees as an aspect of a reduction in work force.” As support for that proposition, defendant proffered the declaration of Brian Underwood, human resources manager for both the Examiner and the Independent.
Plaintiff marshals controverting evidence that Underwood testified in his deposition that Zientarski was the only one laid off in his department. Plaintiff objects to defendant’s blurring of the workforces for the Independent and the Examiner.
In its separate statement, defendant asserts that “[t]he decision to release Mr. Zientarski, as opposed to other employees, was based solely upon the judgment of James Pimentel, the managing editor, that Mr. Zientarski was less efficient in the production of copy.” As support, defendant proffered the declaration of its Managing Editor Pimentel who stated that he was advised in November 2003 by officers of Pan Asia Venture Capital Corporation that “due to financial constraints, the staffing had to be reduced to the minimum level . . . . The previous February the Examiner had laid-off approximately sixty percent of its editorial staff. I was directed to further reduce the staff of the Independent.” In explaining why he selected Zientarski for lay off, Pimentel averred, “At that time there were two part-time page designers producing the Independent. I felt that we could manage with only one. Of the two, I believed that the plaintiff . . . was the less efficient and versatile.” Pimentel also refers to a computer program, called “In Design,” used in the San Francisco office, and he asserts that “Mr. Zientarski was slow in adapting to the new program and could not maintain the pace.”
Defendant did not offer any evidence either corroborating Pimentel’s concerns about Zientarski’s efficiency or offering any foundation for Pimentel’s conclusion about Zientarski’s performance.
The fact that Zientarski may have been laid off during a legitimate downsizing does not immunize defendant from liability. As the California Supreme Court stated in Guz, supra, 24 Cal.4th at page 358, “[D]ownsizing alone is not necessarily a sufficient explanation, under the FEHA, for the consequent dismissal of [a protected] worker. An employer’s freedom to consolidate or reduce its work force, and to eliminate positions in the process, does not mean it may ‘use the occasion as a convenient opportunity to get rid of [protected] workers.’ [Citations.] Invocation of a right to downsize does not resolve whether the employer had a discriminatory motive for cutting back its work force, or engaged in intentional discrimination when deciding which individual workers to retain and release.”
Although defendant’s evidence of nondiscriminatory motive was thin, defendant did satisfy its burden at the second stage of analysis. Taken as true, defendant’s evidence would permit the conclusion that the decision to lay off Zientarski was based on nondiscriminatory reasons. (Guz, supra, 24 Cal.4th at pp. 355-356.) The presumption of discrimination thus disappears and Zientarski has an opportunity to attack defendant’s proffered reasons. (Id. at p. 356.)
Stronger showings of nondiscriminatory reasons are more likely to withstand a plaintiff’s attempt to show that the reasons are a pretext for discrimination. (See, e.g., Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 353, 359-360; Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1044; Hersant, supra, 57 Cal.App.4th at p. 1006.)
IV. Pretext
Zientarski must point to evidence raising a triable issue (that is, supporting a rational inference) that defendant’s ostensible reason for terminating him was a pretext for prohibited age bias. (Guz, supra, 24 Cal.4th at page 353.) “ ‘[T]he [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.” [Citations.] ’ ” (Hersant v. Department of Social Services, supra, 57 Cal.App.4th at p. 1005.)
At this point in our analysis, the question is whether Zientarski raised a triable issue regarding the credibility of defendant’s explanation in light of (1) Zientarski’s evidence that Pimentel lacked any basis to know which page designer was the least efficient, (2) the lack of any evidence corroborating Pimentel’s assertion that Zientarski was the least efficient designer, and (3) the declarations from Backer and Lambert averring that Zientarski was overwhelmingly superior to Borger, the employee who took over Zientarski’s duties. Zientarski directs our attention to the fact that Pimentel’s credibility is further undermined by his flat denial that Zientarski’s duties were assumed by Borger; three Independent employees, including the managing editor Backer, contradicted Pimentel.
First, Zientarski’s evidence supports a reasonable inference that Pimentel lacked any basis for his conclusion that Zientarski was the least efficient page designer. Barbara Backer, not Pimentel, was the managing editor of the Independent and responsible for its day to day operations. Backer and Lambert controvert Pimentel’s testimony; they aver that Pimentel was rarely involved in the day to day operations of the Independent. Underwood, defendant’s Human Resources manager, testified that Pimentel was primarily engaged in managing the Examiner and that it was Backer who had the “say” in hiring and firing at the Independent. Further, Backer and Lambert averred that Pimentel did not seek information from them regarding the relative competence of Zientarski and his replacement Borger, and Pimentel admitted that he made the decision to lay off Zientarski without consulting anyone. Strikingly absent from Pimentel’s declaration is any statement that he has personal knowledge of Zientarski’s skills or how he acquired any information about Zientarski. Thus, Zientarski has demonstrated weaknesses and implausibilities in defendant’s proffered reasons. (Hersant v. Department of Social Services, supra, 57 Cal.App.4th at p. 1005.)
Second, in moving for summary judgment defendant failed to present any evidence corroborating Pimentel’s broad, unsupported assertion of Zientarski’s relative inefficiency. There is no evidence that at any point Zientarski failed to complete any tasks on time, that he was ever counseled that he had to increase the pace of his work, or that any management or co-workers expressed concerns about Zientarski’s performance before he was laid off. No evidence corroborates Pimentel’s assertion that he had a good faith belief that Zientarski was less efficient. Neither did defendant present any evidence that Zientarski was less skilled or efficient than Borger. Pimentel conceded in his deposition that Borger did not have any experience with the “In Design” computer program referenced in his declaration. Further undermining defendant’s credibility is the fact that defendant’s letter in response to an EEOC inquiry about Zientarski’s allegations does not mention the “In Design” program. The paucity of solid evidence supporting defendant’s showing of a legitimate reason for terminating Zientarski could lead a reasonable factfinder to find it “ ‘unworthy of credence.’ ” (Hersant v. Department of Social Services, supra, 57 Cal.App.4th at p. 1005.)
Third, Zientarski presented specific evidence supporting a reasonable inference that he was clearly superior to Borger as a page designer. Zientarski testified in his deposition that Borger did not know what she was doing and that he had to train her when she started working on the Independent. Lambert and Zientarski testified that editors complained about Borger’s performance. Backer stated in her declaration that Zientarski was one of the two best designers; that he was “very strong in artistic and creative design;” that he almost always designed the front page “picture box,” which was “the most important and visible graphic in the papers;” that he was assigned special projects that needed “exceptional design work;” and that, compared to Borger, there is “no question . . . that Larry Zientarski was the superior choice to remain on staff.” Lambert, in his declaration, spoke highly of Zientarski’s skills and stated that as between Zientarski and Borger, “I would have strenuously recommended that Mr. Zientarski be kept on. His depth of experience was much greater and his skills in design were far greater.” A reasonable jury could infer that Backer’s and Lambert’s positive assessments of Zientarski’s work encompass a conclusion that he performed his job with adequate efficiency. The evidence that others in the workplace who had firsthand knowledge of Zientarski’s skills stated unequivocally that he was superior to Borger is relevant because it raises a triable issue of fact regarding the credibility of Pimentel’s unsupported explanation for his decision to lay off an older worker. (See Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1099-1100.)
Zientarski argues that defendant’s justifications for its action are shifting, uninformed, and factually baseless. “[A]n inference of dissembling may arise where the employer has given shifting, contradictory, implausible, uninformed, or factually baseless justifications for its actions.” (Guz, supra, 24 Cal.4th at p. 363; see also Kelly v. Noyes (9th Cir., May 29, 2007, No. 04-17050) ___ F.3d ___ 2007 U.S. LEXIS 12356].) A reasonable jury could conclude that Pimentel is not credible and that the proffered explanation for the decision to lay off Zientarski is false. In this case, we conclude that there is enough to defeat defendant’s motion for summary judgment. Guz explained that a showing of dishonest reasons, combined with the evidence establishing a prima facie case of discrimination, may permit a finding of discriminatory intent and preclude a grant of summary judgment for the employer. (Id. at p. 356, 361.) Guz cautioned that such a showing would not defeat summary judgment if other facts indicate there was no discrimination. (Id. at pp. 361-362.) “ ‘For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer’s decision, or if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.’ ” (Guz, at p. 362, quoting Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 148; see also Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147, 1157-1158 [summary judgment proper where, although the proffered merit-based reasons for denying plaintiff tenure may have been untrue, evidence suggested that the real reason was “academic politics” and a “personal grudge”].) Here, the record contains no other evidence of nondiscriminatory reasons.
An additional basis to deny summary judgment is provided by Pimentel’s lack of forthrightness about the fact that Borger assumed Zientarski’s duties. Zientarski presented evidence supporting a reasonable inference that Borger took over his duties after he was laid off; Backer and Lambert stated that Borger took over his duties, and Fidel Cajulao, another Independent page designer, testified to that effect in his deposition. But Pimentel testified in his deposition that Borger did not “take over any of the duties that [] Zientarski was doing before he was laid off.” Similarly, in Pimentel’s declaration on summary judgment, he fails to acknowledge that Borger replaced Zientarski. Instead, the declaration implies that Zientarski’s work was absorbed by Cajulao and that Borger worked for the Examiner not the Independent. In light of the controverting evidence that Zientarski was replaced by Borger, a reasonable jury could conclude that Pimentel was knowingly untruthful in his deposition, which could give rise to an inference that he was covering up a discriminatory motive. (See Kelly v. Stamps.com Inc., supra, 135 Cal.App.4th at p. 1099, citing Reeves v. Sanderson Plumbing Products, Inc., supra, 530 U.S. at p. 147.)
“ ‘[D]eterminations regarding motivation and intent depend on complicated inferences from the evidence and are therefore peculiarly within the province of the factfinder.’ ” (Begnal, supra, 78 Cal.App.4th at p. 77.) In the absence of any other credible explanation and in light of the fact that Zientarski was by far the oldest page designer and he was replaced by someone more than 20 years younger, a reasonable jury could infer that age discrimination played a role in the selection of Zientarski for lay off. Our conclusion is influenced by defendant’s unusually thin showing of a nondiscriminatory reason for its decision. Resolving all doubts as to whether there are any triable issues of fact in favor of plaintiff Zientarski (Ingham v. Luxor Cab Co., supra, 93 Cal.App.4th at p. 1049), we conclude that he satisfied his burden of producing evidence permitting a rational inference that intentional discrimination was a substantial motivating factor in defendant’s decision to lay him off. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 377.)
We need not and do not address Zientarski’s other claims of discrimination, relating to the wages, hours, and benefits provided to other page designers.
Disposition
The judgment is reversed.
We concur: JONES, P.J., SIMONS, J.