SEIU
Filed
9/4/12 Batarse v. SEIU Local 1000 CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
RAY BATARSE,
Plaintiff and
Appellant,
v.
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 1000,
Defendant and
Respondent.
F062063
(Super.
Ct. No. 09CECG00249)
APPEAL from
a judgment of the Superior Court of
County. Donald R. Franson, Jr., and
Mark W. Snauffer, Judges.
name="_ftnref1" title="">†
Ray
Batarse, in pro. per., for Plaintiff and Appellant.
Kaufman,
Borgeest & Ryan, Jeffery S. Whittington and Nicholas W. Sarris, for
Defendant and Respondent.
-ooOoo-
This is an
appeal from a judgment entered after the trial court granted the motion for
summary judgment filed by defendant, Service Employees International Union
Local 1000 (SEIU). The trial court
determined plaintiff’s opposition to the motion failed to include a separate
statement of disputed and undisputed facts that conformed to the requirements
of Code of Civil Procedure section 437c, subdivision (b)(3),
Court;
437c, subdivision (b)(3) to grant the motion on that basis. Plaintiff contends the trial court abused its
discretion by failing to grant a continuance in order to permit him to file a
proper separate statement. We conclude
the trial court did not abuse its discretion by denying the motion. Further, plaintiff has not established any
prejudice arising from the denial of an opportunity to correct the defective
separate statement. The facts outlined
and the evidence cited by plaintiff in his opposition, even if presented in a
proper separate statement, did not raise a triable
issue of material fact sufficient to defeat SEIU’s motion. Accordingly, we affirm.
The
operative pleading, plaintiff’s third amended complaint, alleged causes of
action for racial and gender
discrimination,[3]
retaliation, negligent supervision and retention, and wrongful termination
in violation of public policy. It
alleged plaintiff was employed by defendant SEIU as a Union Resource Center
Representative/Labor Relations Representative from March 17, 2008 through
August 8, 2008. SEIU is the exclusive
bargaining representative of its members.
Plaintiff applied for the position and was interviewed twice in February
or March 2008. In his interviews, he was
asked why he was no longer practicing law and he explained that he resigned
from the state bar due to personal matters involving a divorce and issues with
his law practice. Plaintiff was hired,
subject to a one year probationary period.
At SEIU’s
Bakersfield office, plaintiff met Bertha Sanchez, who was District Labor
Council (DLC) President for area 729.
Plaintiff was required to work with Sanchez; Sanchez was rude, used
profanity, and tried to have plaintiff’s employment terminated. In August 2008, plaintiff told Brian
Caldeira, Union Resource Center Coordinator, that Sanchez was discriminating
against him because of race or gender, or both, and plaintiff thought he should
complain to Human Resources or the Department of Fair Employment and
Housing. Caldeira told him to hang in
there. Shortly after this, plaintiff was
terminated. He was replaced by a
Hispanic person. The third amended complaint
alleged plaintiff was harassed by Sanchez because he was a Caucasian male, and
he was terminated in order to placate or satisfy Sanchez and Marc Bautista, a
member of upper level union management, because they were influential in the
union elections and preferred Hispanics.
Plaintiff alleged SEIU had actual knowledge of the hostile work
environment, discrimination and retaliation to which plaintiff was exposed, but
failed to take action to remedy it. The third amended complaint also alleged
defendant negligently supervised and retained Sanchez and Bautista, who had
trouble working with Caucasian males and were known to retaliate against
them.
On June 23,
2010, SEIU moved for summary judgment or summary adjudication, arguing there
was no evidence it discriminated against or harassed plaintiff on the basis of
his race; there was no evidence SEIU retaliated against plaintiff for any
protected activity; and there was no evidence it negligently retained any
employee. The motion also asserted SEIU
had a legitimate business reason for terminating plaintiff’s employment. SEIU’s separate statement of undisputed
material facts presented the same 67 factual statements for each cause of
action. Those facts indicated plaintiff
was a probationary at will employee supervised by Richard Rojas. Plaintiff testified in deposition that the
only time Sanchez used racially derogatory statements was when she called some
Caucasian individuals gringos. Other SEIU personnel, including those involved
in the decision to terminate plaintiff’s employment, did not discriminate,
harass, or retaliate against him based on race.
Plaintiff never contacted human resources or complained to anyone at
SEIU about discrimination or harassment due to race.
SEIU also
presented undisputed facts, supported by evidence, to show it had a legitimate
business reason for terminating plaintiff’s employment. Its separate statement presented facts and
evidence demonstrating that plaintiff presented false information in his
employment application and interviews. Plaintiff represented he resigned from
the state bar because of problems with his law partners, when he actually had
no law partners. He made other false
representations about the nature and extent of his law practice. In 2004, he
was disciplined by the state bar after stipulating to wrongdoing. In 2006, when he resigned from the state bar,
he had additional charges pending against him.
He did not disclose the disciplinary actions or charges to SEIU during
the employment application process. In
August 2008, Caldeira advised Paul Harris, Chief Counsel for SEIU, that he had
learned plaintiff had resigned from the state bar with charges pending. Harris investigated using the state bar’s
website and determined plaintiff had made false statements during the hiring
process and had omitted material information:
that plaintiff had been disciplined prior to his resignation from the
bar and his wrongdoing involved failing to respond to client inquiries and failing
to perform legal services competently.
The job for which plaintiff was hired involved responding promptly to
union members and diligently representing them.
Based on these facts, Harris made the decision to terminate plaintiff’s
probationary employment and instructed Caldeira to terminate him. At that time, Harris was not aware of
plaintiff’s race or national origin or of any complaints he might have made
about discrimination, harassment or
retaliation.
On November
2, 2010, plaintiff filed a memorandum of points and authorities in opposition
to SEIU’s motion for summary judgment, along with several declarations and an
opposition to SEIU’s separate statement of undisputed material facts. The opposition to the separate statement
indicated almost all of SEIU’s facts were undisputed. In response to some fact statements,
plaintiff indicated the fact was disputed, but failed to identify any evidence
supporting the existence of a dispute.
Only a few of plaintiff’s responses to SEIU’s factual statements
indicated the fact was disputed and cited supporting evidence. Plaintiff did not file a separate statement
of additional material facts in an attempt to show that a triable issue of fact
existed regarding whether SEIU’s asserted legitimate reason for terminating
plaintiff’s employment was actually a pretext for discrimination. Plaintiff’s memorandum of points and
authorities, however, included facts and citations to supporting evidence that
were not included in his opposition to SEIU’s separate statement.
On November
3, 2010, the day after his opposition was filed, plaintiff presented an ex
parte application seeking to continue the hearing of the motion for summary
judgment in order to permit plaintiff to conduct further discovery. SEIU opposed the application and the court
denied it.
On November
12, 2010, SEIU filed its reply to the opposition to its motion for summary
judgment. It pointed out that plaintiff
had not disputed sufficient facts in his separate statement to raise a triable
issue of material fact. It argued that
the facts discussed by plaintiff in his opposition at most showed Sanchez was
mean and unruly, but did not establish any discriminatory animus by any SEIU
employee. SEIU raised evidentiary
objections to the declarations submitted by plaintiff.
The trial
court’s tentative ruling was to grant the motion for summary judgment. Although it overruled SEIU’s objections to
plaintiff’s evidence, it tentatively found plaintiff had not shown racial
discrimination or retaliation. He also
had not filed a separate statement of additional facts to overcome SEIU’s
showing that it had a legitimate business reason for terminating plaintiff’s
employment. Further, the court noted
plaintiff’s separate statement cited no evidence in support of most of its
assertions that facts were disputed.
Citing the golden rule of summary judgment―that if matter is not
set forth in the separate statement it does not exist―the trial court
tentatively exercised its discretion to grant the motion. At the hearing on November 16, 2010,
plaintiff conceded his separate statement was defective and noted the court had
discretion to continue the hearing to allow the defect to be cured. The court took the matter under submission,
and later granted the motion on the grounds set out in the tentative ruling and
discussed at the hearing.
On December
6, 2010, plaintiff filed a motion for reconsideration. He argued SEIU failed to make two witnesses
available for deposition prior to the date his opposition to the motion for
summary judgment was due, and the transcript of Sanchez’s deposition, which was
taken shortly before the hearing, was not available at the hearing. He also argued the court had discretion to
continue the hearing to permit him to file a proper separate statement, and the
evidence he submitted in opposition to the motion, although not cited in the
separate statement, was sufficient to raise a triable issue of fact regarding
his discrimination and retaliation claims.
The trial court concluded plaintiff’s motion did not present any new
facts, circumstances, or law that would justify reconsideration, and it denied
the motion. Judgment was eventually
entered in favor of SEIU and against plaintiff.
Plaintiff appeals.
of Review
Ordinarily,
the trial court’s decision on a motion for summary judgment is reviewed de
novo. “As a summary judgment motion
raises only questions of law regarding the construction and effect of
supporting and opposing papers, this court independently applies the same
three-step analysis required of the trial court. We identify issues framed by the pleadings;
determine whether the moving party’s showing established facts that negate the
opponent’s claim and justify a judgment in the moving party’s favor; and if it
does, we finally determine whether the opposition demonstrates the
existence of a triable, material factual issue.
[Citation.]” (Tsemetzin v.
Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334,
1342.) “The trial court’s decision to
grant a motion for summary judgment because the opposing party failed to comply
with the requirements for a separate statement, however, is reviewed for an
abuse of discretion. [Citations.]” (Parkview
Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133
Cal.App.4th 1197, 1208 (Parkview).) A trial court’s exercise of discretion will
be disturbed only for clear abuse. (
557, 564.) “‘Discretion is abused
whenever, in its exercise, the court exceeds the bounds of reason, all of the
circumstances before it being considered.
The burden is on the party complaining to establish an abuse of
discretion, and unless a clear case of abuse is shown and unless there has been
a miscarriage of justice a reviewing
court will not substitute its opinion and thereby divest the trial court of its
discretionary power.’ [Citations.]” (Id.
at p. 566.)
in the Separate Statement
The
opposition to a motion for summary judgment is required to “include a separate
statement that responds to each of the material facts contended by the moving
party to be undisputed, indicating whether the opposing party agrees or
disagrees that those facts are undisputed.
The statement also shall set forth plainly and concisely any other
material facts that the opposing party contends are disputed.” (§ 437c, subd. (b)(3).) Each disputed fact must be followed by a
reference to supporting evidence. (
requirement of a separate statement may constitute a sufficient ground, in the
court’s discretion, for granting the motion.”
(Ibid.) The specific format of the opposing separate
statement is prescribed by rule 3.1350; “[a]n opposing party who contends that
a fact is disputed must state … the nature of the dispute and describe the
evidence that supports the position that the fact is controverted.” (Rule 3.1350(f).)
“When the
opposing party fails to file a separate responsive statement the trial court is
presented with two choices. It can grant
the motion for summary judgment based on the absence of the separate statement
or it can continue the motion or otherwise permit the filing of a proper
separate statement. [Citations.] Whichever choice the court makes must be
based on the circumstances before the court. ‘A trial court’s exercise of discretion will
be upheld if it is based on a “reasoned judgment” and complies with the “…
legal principles and policies appropriate to the particular matter at issue.”’ [Citation.]”
(Security Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89, 94 (Security
Pacific).)
In Security Pacific, the plaintiff filed a motion for summary
judgment; the defendant, represented by counsel, filed opposition that included
a separate statement of disputed and undisputed facts. The trial court denied the motion without
prejudice because it was not in proper form; it vacated the trial date to
permit the plaintiff to refile the motion.
In response to the second motion, the defendant, then appearing in
propria persona, filed opposition that omitted the separate statement. The trial court granted the plaintiff’s
motion on the ground the defendant failed to file a separate statement. (Security
Pacific, supra, 4 Cal.App.4th at p. 92.)
The reviewing court reversed.
The court noted that the trial court
did not abuse its discretion by refusing to hear the motion without a separate
statement. “Only when a case involves a
single, simple issue with minimal evidentiary support will a trial court consider
the merits unaccompanied by a separate statement.” (Security
Pacific, supra, 4 Cal.App.4th at p. 94.)
The trial court did, however, abuse its discretion by failing to allow
the defendant an opportunity to file a separate statement. The usual circumstances justifying denial of
a continuance, such as proximity to trial, prejudice to the other party,
previous dilatory conduct, and abuse of pretrial procedures, were absent. (Id.
at p. 96.) The court opined that
“granting a motion for summary judgment based on a procedural error by the
opposing party is equivalent to a sanction terminating the action in favor of
the other party,” and it is an abuse of discretion to impose terminating
sanctions if the party’s procedural violation is not willful. (Id.
at pp. 97-98.) The defendant’s failure
to file a separate statement in response to the plaintiff’s second motion was
not willful, because he apparently believed the separate statement filed in
response to the first motion applied to the second motion. (Id.
at p. 98.) The failure to file a
separate statement was a curable defect; there was no showing the defendant
would not have filed it if he had been given an opportunity to do so. “[U]nless the trial court has reason to
believe no responsive statement would be filed even if the respondent was
afforded a reasonable opportunity to file one, the respondent should be
afforded that opportunity rather than suffer a judgment not supported by a
decision on the merits.” (
In Parkview, the defendant
moved for summary judgment. Although the
plaintiff’s opposition included declarations and a response to the defendant’s
separate statement of facts, some of the responses in the separate statement
referred only generally to the supporting declarations, without specifying the
page and line where the supporting evidence appeared. The trial court granted the motion based on
the inadequate separate statement. (
1207-1208.)
The court reversed the judgment, concluding the trial court abused its
discretion by granting the motion without affording the plaintiff an
opportunity to correct the deficiencies in the separate statement. (Parkview,
supra, 133 Cal.App.4th at p. 1210.)
“There is no doubt Parkview Villas’s failure to comply
with these requirements for a separate statement made the task of the trial
court more difficult. [Citation.] And we do not question the right of a trial
court to refuse to proceed with a summary judgment motion in the absence of an
adequate separate statement from the opposing party. [Citation.] But the proper response in
most instances, if the trial court is not prepared to address the merits of the
motion in light of the deficient separate statement, is to give the opposing
party an opportunity to file a proper separate statement rather than entering
judgment against that party based on its procedural error.” (Parkview,
supra, 133 Cal.App.4th at p. 1211.)
The court rejected application of the golden rule of summary
judgment: that “‘[a]ll material facts
must be set forth in the separate statement.…
“[I]f it is not set forth in the separate statement, it does not
exist.”’ [Citations.]” (Parkview,
supra, 133 Cal.App.4th at p. 1213, italics omitted.) Prior cases applied the rule where the
on the merits, or where the defect was the failure to identify a disputed
material fact, not the evidence supporting it.
(Ibid.) The court observed that the “it” referred to
in the golden rule “is the undisputed material fact”; the fact, not the
evidence, must appear in the separate statement or be disregarded. (Id.
at p. 1214.)
“Overly general references to supporting evidence, of
course, may place an undue burden on busy trial courts [citation] and need not
be tolerated .… However, in the
absence of extraordinary circumstances not present here, a trial court
faced with an opposing party’s defective separate statement plainly indicating
which proposed material facts are disputed and including at least general
references to the evidence supporting its position does not have the discretion
to enter a judgment against that party solely as a result of that party’s
failure to explain the nature of the dispute and to provide sufficiently
specific citations to the evidence supporting its position. [Citations.]”
(Parkview, supra, 133 Cal.App.4th at pp. 1214-1215, fn.
omitted.)
In Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408 (
motion for summary judgment. The
plaintiff filed an opposition requesting a continuance so the plaintiff could
conduct further discovery; it did not address the merits of the motion or
include a separate statement of disputed and undisputed facts. The trial court denied the continuance and
granted the motion because the opposition contained neither a separate
statement nor any evidence raising a triable issue of material fact. (Id.
at pp. 413-414.)
The appellate court affirmed. It rejected the plaintiff’s argument, based
on Security Pacific, that the absence
of a separate statement was a curable defect.
The defect in Security Pacific
was the result of a procedural mistake; the defect in Kojababian “was based upon a lack of admissible evidence in opposition
to the motion, as evidenced by his request for a continuance under section
437c, subdivision (h). Allowing
plaintiff additional time to file a separate statement would have been futile
because he did not have the evidence necessary to submit a complying separate
statement.” (Kojababian, supra, 174 Cal.App.4th at p. 419.) The court concluded: “[P]laintiff could not cure the defect
without the continuance. Allowing
plaintiff the opportunity to file a separate statement would, in effect, give
him the continuance to which the trial court concluded he was not entitled
under section 437c, subdivision (h).
Although it was within the discretion of the trial court to allow
plaintiff to file a proper statement [citation], given the defendants’ prima
facie showing in support of their motion for summary judgment and plaintiff’s
failure to support his request for a continuance, the trial court did not abuse
its discretion in granting the motion under section 437c, subdivision (b)(3)
without first affording plaintiff an opportunity to file an opposing separate
statement.” (Id. at p. 420.)
In Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009)
170 Cal.App.4th 554 (Oldcastle), the
defendants’ separate statement in response to the plaintiff’s motion for
summary judgment listed only four of the plaintiff’s 46 factual statements as
disputed. The trial court sustained the
plaintiff’s objection to the defendant’s supporting evidence and granted the
motion. The appellate court rejected the
defendants’ argument that the trial court abused its discretion by refusing to
give them time to revise their separate statement. (Oldcastle,
supra, 170 Cal.App.4th at p. 573.)
Although the defendants argued they raised a triable issue of fact
regarding the affirmative defenses of waiver and estoppel, the responsive
separate statement did not mention those defenses, identify any disputed facts
regarding them, or identify, even generally, any evidence supporting the
defenses; the evidence it did cite was inadmissible. (Id.
at p. 575.) The deficiencies in the
separate statement were substantive, not a curable procedural defect, so
summary judgment was properly granted. (
This case does not involve a single simple issue with minimal evidentiary
support, which could be heard even without a separate statement. In an action asserting claims of
discrimination based on disparate
treatment[4] and retaliation, the court
applies “a three-stage burden-shifting test.”
(Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz);
Yanowitz v. L'Oreal USA, Inc. (2005)
36 Cal.4th 1028, 1042 (Yanowitz).) At trial, the plaintiff bears the initial
burden to establish a prima facie case of discrimination or retaliation; if he
does so, a presumption of discrimination or retaliation arises. (Guz,
supra, at p. 354; Yanowitz, supra,
at p. 1042.) The burden then shifts to
the employer to rebut the presumption by producing admissible evidence that its
adverse employment action was taken for a legitimate, nondiscriminatory or
nonretaliatory reason. (
plaintiff to “attack the employer’s proffered reasons as pretexts for
discrimination” or retaliation, or to offer other evidence of intentional
discrimination or retaliation. (
A defendant
moving for summary judgment, however, may skip to the second step of the
analysis and demonstrate that it had a legitimate business reason, unrelated to
race, other protected classification, or retaliation, for taking its employment
action. (Guz, supra, 24 Cal.4th at p. 357.)
The plaintiff then has “the burden to rebut this facially dispositive showing by pointing to evidence
which nonetheless raises a rational inference that intentional discrimination
[or retaliation] occurred.” (
In its motion, SEIU attempted to
show both that plaintiff could not establish a prima facie case of discrimination
and retaliation, and that SEIU had a legitimate business reason for terminating
plaintiff’s employment that was unrelated to his race or to retaliation. Thus, the motion presented multiple issues
regarding whether plaintiff could establish a prima facie case of
discrimination or retaliation, whether defendant established a legitimate
business reason for terminating plaintiff’s employment, and whether plaintiff
raised a triable issue of fact disputing the asserted reason and showing
intentional discrimination or retaliation.
The motion also presented issues of negligent supervision or retention
of SEIU employees. Consequently, the
trial court was justified in declining to consider plaintiff’s opposition
without a separate statement that conformed to the requirements of section
437c, subdivision (b)(3), and rule 3.1350(f).
This case appears to fall somewhere
between Kojababian and
plaintiff filed an ex parte application to continue the hearing of the motion
for summary judgment, asserting further discovery was needed to obtain evidence
necessary to his opposition to the motion.
The application was denied for failure to comply with section 437c,
subdivision (h). Unlike
memorandum of points and authorities in opposition to the motion addressed the
merits of the motion for summary judgment.
It was accompanied by declarations and excerpts from deposition
transcripts. It presented legal
arguments and included fact statements with citation to the evidence allegedly
supporting them. Although plaintiff’s ex
parte application indicated he lacked evidence he felt was necessary to his
opposition, plaintiff nonetheless presented some evidence in support of his opposition. That evidence, however, was generally not
cited in the separate statement.
As in
separate statement disputed a few of the plaintiff’s facts regarding liability,
but did not contain any reference to the affirmative defenses they asserted
remained in issue, plaintiff’s separate statement merely disputed a few of
SEIU’s facts without including additional facts attempting to affirmatively
show pretext or otherwise overcome SEIU’s asserted reason for termination. Plaintiff’s separate statement did not dispute
any of the facts showing SEIU had a legitimate reason for terminating his
employment; that is, it did not dispute any of the facts regarding plaintiff
being disciplined by the state bar or concealing or making misrepresentations
about the reasons for his resignation.
Plaintiff’s separate statement did not present his own additional facts,
attempting to affirmatively show that SEIU’s asserted legitimate reason for
terminating his employment was actually a pretext for discrimination or
retaliation. Thus, the defect in
plaintiff’s separate statement was not a mere curable procedural defect. Having admitted facts establishing a prima
facie showing that SEIU had a legitimate business reason for terminating plaintiff’s
employment, plaintiff failed to present a separate statement containing
additional facts and evidence in an attempt to show SEIU’s reason was untrue or
a pretext for discrimination. The trial
court did not abuse its discretion by granting the motion without affording
plaintiff an opportunity to correct the defects in his separate statement.
Error
Even if we
were to find an abuse of discretion, however, we would not reverse the
judgment, because any error was not prejudicial. “A judgment may not be reversed on appeal …
unless ‘after an examination of the entire cause, including the evidence,’ it
appears the error caused a ‘miscarriage of justice.’ [Citation.] When the error is one of state law only, it
generally does not warrant reversal unless there is a reasonable probability
that in the absence of the error, a result more favorable to the appealing
party would have been reached.
[Citation.]” (
Cal.4th 548, 574.) If plaintiff had been
granted a continuance to file a proper separate statement, in order to place
the facts and evidence he contended raised a triable issue of fact in his
separate statement, instead of in the memorandum of points and authorities, the
facts and evidence cited would still have been insufficient to defeat the
summary judgment motion.
SEIU presented facts and evidence
showing that plaintiff was disciplined by the state bar in 2004 for misconduct
in three cases; he “stipulated that he failed to respond to client inquiries,
return client files, perform legal services competently or cooperate with the
bar’s investigation.” In September 2006,
plaintiff resigned from the state bar with further charges pending. When he applied for employment with SEIU,
plaintiff made misrepresentations of fact in his cover letter, resume and
application regarding the nature and extent of his law practice, although he
acknowledged in the application that any omission or misstatement constituted
grounds for immediate termination. In
two interviews, when asked why he resigned from the state bar, plaintiff stated
he resigned due to personal issues. He
did not disclose that he resigned with charges pending.
In August 2008, Caldeira informed
Harris that he had recently learned plaintiff resigned from the state bar with
charges pending. Harris reviewed the
bar’s information and determined plaintiff made false statements about his
resignation during the hiring process and omitted material information about
his discipline and the misconduct to which he stipulated. Based on the false statements, the withheld
information, and the misconduct to which plaintiff stipulated, which included
failing to respond to client inquiries and to perform legal services
competently, Harris determined plaintiff should be terminated during his
probationary period. Harris instructed
Caldeira to terminate plaintiff’s employment, and Caldeira did so. When he made the decision to terminate
plaintiff’s employment, Harris was not aware of plaintiff’s race or national
origin or of any complaints of discrimination, harassment, or retaliation
plaintiff made to anyone at SEIU.
Plaintiff did not dispute any of these facts in his opposition.
When the
defendant moving for summary judgment produces substantial evidence of a
legitimate, nondiscriminatory reason for the adverse employment action, the
burden shifts to the plaintiff to prove intentional discrimination. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68 (
evidence that the employer’s stated nondiscriminatory reason for the adverse
action was untrue or pretextual, or evidence the employer acted with a
discriminatory animus, or a combination of the two, such that a reasonable
trier of fact could conclude the employer engaged in intentional
discrimination.”’ [Citation.] An employee in this situation can not ‘simply
show the employer’s decision was wrong, mistaken, or unwise. Rather, the employee “‘must demonstrate such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions
in the employer’s proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them “unworthy of credence,”
[citation], and hence infer “that the employer did not act for the [asserted]
non-discriminatory reasons.”
[Citations.]’ [Citations.]” [Citation.]’”
(Id. at p. 75.)
“‘[T]he plaintiff may establish
pretext “either directly by persuading the court that a discriminatory reason
more likely motivated the employer or indirectly by showing that the employer’s
proffered explanation is unworthy of credence.”’ [Citations.]
Circumstantial evidence of ‘“pretense” must be “specific” and
“substantial” in order to create a triable issue with respect to whether the
employer intended to discriminate’ on an improper basis. [Citations.]
With direct evidence of pretext, ‘“a triable issue as to the actual
motivation of the employer is created even if the evidence is not substantial.” [Citation.]
The plaintiff is required to produce “very little” direct evidence of
the employer’s discriminatory intent to move past summary judgment.’ [Citation.]”
(Morgan, supra, 88 Cal.App.4th
at pp. 68-69, fn. omitted.) “‘Direct
evidence is that which, “if believed by the trier of fact, will prove the
particular fact in question without reliance upon inference or
presumption.” [Citations.]
(2005) 129 Cal.App.4th 1133, 1147.) Direct evidence may take the form of
admissions by a decision maker that the adverse employment action was taken
because of the employee’s membership in the protected class. (Ibid.)
In his
memorandum of points and authorities in opposition to the motion for summary
judgment, plaintiff set out three statements of fact, two with supporting
evidence, which he asserted constituted direct evidence of SEIU’s
discriminatory motive. He also set out
30 statements of fact, most with references to supporting evidence, which he
contended constituted indirect evidence of intentional
discrimination―evidence that SEIU’s proffered explanation for his
termination was unworthy of credence.
As direct
evidence of intentional discrimination, plaintiff cites the following three
facts: (1) “Plaintiff has asserted that
he was replaced by a Hispanic individual … no more qualified than Plaintiff for
the position.” Plaintiff cites no
evidence that his replacement was Hispanic or that the replacement was no more
qualified than plaintiff. (2) Sanchez
“has shown a refusal to try and get along with the representatives that were
assigned to her DLC, who happen to be Caucasian males.” The declaration of Angela Moralez, cited in
support, states that Sanchez “has simply refused to attempt to get along with”
males she worked with; Moralez identified two Caucasian males, one who resigned
two months into his employment and another Sanchez “failed to get along
with.” Other unidentified males (of
unidentified race and ethnicity) left within months of employment “because of
their inability to get along with Ms. Sanchez and Ms. Sanchez’s refusal to
attempt to [get] along with any of them.”
Moralez states her belief that Sanchez used her influence to have
plaintiff terminated, but admits she “cannot say for certain[] that it was
because of [plaintiff’s] race, gender, or in retaliation for his conduct.” The declaration of Tim Chaney, also cited in
support of this statement, admits he has not personally heard Sanchez make
derogatory remarks about Caucasians, but opines that “she has shown an
inability or refusal to get along with Caucasian males.” (3) Within the first couple of weeks of
plaintiff’s employment, plaintiff’s supervisor received a phone call from a
member saying the member looked plaintiff up on the state bar website and did
not want him to represent the member.
None of
this constitutes direct evidence of discriminatory or retaliatory motive. The first fact is completely unsupported by
evidence. The second constitutes mere
opinion about Sanchez’s conduct and motivations. The third does not demonstrate unlawful
discrimination or retaliation.
Plaintiff
set out 30 facts in an attempt to show by circumstantial evidence that SEIU’s
proffered reason for termination was unworthy of credence and his termination
was more likely the result of a discriminatory motive. Plaintiff asserts he did not hide his bar
resignation from SEIU. The issue,
however, was not concealment of his resignation, but concealment of the reasons
for it; plaintiff admitted that concealment in his responsive separate
statement. Plaintiff presented facts
attempting to show that his job performance was satisfactory. It is not enough, however, to “‘show the
employer’s decision was wrong, mistaken, or unwise;’” plaintiff must show it
was intentionally discriminatory. (
supra, 88 Cal.App.4th at p.
75.) Plaintiff submitted facts
attempting to show SEIU gave multiple reasons for his termination. He cited no evidence that any of the reasons,
other than the false representations and concealment relating to the reasons
for plaintiff’s resignation from the state bar, were proffered by anyone in a
position to speak on behalf of SEIU. The
cited evidence included rumors circulated by unspecified “Union employees,”
statements allegedly made by Sanchez, beliefs of the individual witnesses, and
matters the witness could not recall.
Plaintiff also presented facts and
evidence regarding Sanchez’s desire to have plaintiff’s employment terminated
and unresolved complaints others made about Sanchez’s conduct. None of the facts or evidence, however,
demonstrated Sanchez’s abhorrent behavior was directed only toward Caucasian
males or was motivated by an intent to discriminate based on race or ethnicity;
rather, they suggested Sanchez was generally unpleasant and offensive toward
those she worked with.
Finally,
plaintiff asserted again that he was replaced by a Hispanic person; again he
cited no evidence supporting that assertion, however. He presented as facts that Nicholas Webber, a
Caucasian male, resigned and was replaced by a Hispanic person; he also stated
Webber resigned “because he was having a hard time managing the expectations of
the job and it was too big for him to handle.”
Webber’s replacement was a new attorney who had recently passed the bar
examination. Webber had a conversation
with “Kay Bentsel at the Sacramento headquarters for SEIU” in which someone
(plaintiff does not specify who) implied the replacement might fare better in
the Fresno office because he was Hispanic.
Except for the fact the replacement was Hispanic; none of these facts is
supported by evidence in the record.
Plaintiff cited Webber’s deposition transcript in support, but the
transcript is not in the record.
Once the
employer makes its showing of a legitimate reason for the employment action, to
“‘avoid summary judgment …, an employee claiming discrimination must offer
substantial evidence that the employer’s stated nondiscriminatory reason for
the adverse action was untrue or pretextual, or evidence the employer acted
with a discriminatory animus, or a combination of the two, such that a
reasonable trier of fact could conclude the employer engaged in intentional
discrimination.’ [Citation.]” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160.) Plaintiff did not show SEIU’s reason for his
termination was untrue; he admitted in his separate statement that he made
misrepresentations about his state bar resignation during the application
process. He admitted he concealed the
fact that he resigned with charges pending and he stipulated to wrongdoing,
including failing to respond to client inquiries and failing to perform legal
services competently. There is nothing
unreasonable or incredible about the asserted reason for plaintiff’s
termination that would indicate it was a pretext for discrimination or
retaliation. Plaintiff cited no
ethnic discriminatory animus.
Consequently, even if the trial court had continued the hearing of the
motion for summary judgment in order to permit plaintiff to put his facts and
evidence in the proper form in a separate statement of undisputed and disputed
facts, there was no reasonable probability that a result more favorable
to plaintiff would have been reached.
Plaintiff has not demonstrated prejudicial error.
The
judgment is affirmed. SEIU is entitled
to its costs on appeal.
_____________________
HILL, P. J.
WE CONCUR:
_____________________
CORNELL, J.
_____________________
KANE, J.
name="_ftn1" title="">† Judge Franson ruled on the motion for
summary judgment. Judge Snauffer ruled
on the motion for reconsideration.
name="_ftn2" title="">[1] All further statutory references are to the Code of
Civil Procedure unless otherwise indicated.
