Hernandez v. Cal. Dept. of Mental Health

Filed 10/13/06 Hernandez v. Cal. Dept. of Mental Health CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller, Judge. Affirmed.

Law Offices of Akudinobi & Ikonte, Chijioke O. Ikonte and Emmanuel C. Akudinobi for Plaintiff and Appellant.

Bill Lockyer, Attorney General, Jacob A. Appelsmith, Senior Assistant Attorney General, Laura Lee Gold, Supervising Deputy Attorney General, and Jerald L. Mosley, Deputy Attorney General, for Defendant and Respondent.

This is an appeal from a summary judgment entered in favor of defendant and respondent, California Department of Mental Health (hereafter defendant), on the complaint of plaintiff and appellant, Phyllis Anne Hernandez (hereafter plaintiff), for damages based on alleged employment discrimination. Plaintiff also challenges orders awarding defendant sanctions on a discovery motion against plaintiff and on plaintiff’s motion to reconsider the trial court’s ruling on defendant’s discovery motions. We conclude the summary judgment motion was properly granted and that the trial court did not abuse its discretion by imposing the noted sanctions. Therefore, we will affirm the judgment.

BACKGROUND

Plaintiff filed a complaint on April 16, 2004, against defendant^[1] for damages based on purported employment discrimination. In that pleading, plaintiff alleged in pertinent part that she is a 55-year-old female of Hispanic descent; that she has been employed by defendant at Patton State Hospital (Patton) as a rehabilitation therapist since 1994; that she applied for a position with defendant as a senior vocational rehabilitation counselor; that defendant hired a male, younger and less qualified than plaintiff, for the position; that plaintiff accepted a position with defendant as a senior vocational counselor trainee but without the commensurate pay; and that plaintiff is informed and believes that males who had held the same position were paid more than plaintiff was being paid.

After taking plaintiff’s deposition, defendant filed a motion for summary judgment, or in the alternative summary adjudication. In that motion defendant asserted, first, that plaintiff had no evidence to support her discrimination claims and next that defendant hired the other candidate rather than plaintiff because that candidate scored higher than plaintiff in the interview. In support of its summary judgment motion defendant presented evidence to show that plaintiff had worked at Patton as a rehabilitation therapist since June 1, 1994. In June 2002, plaintiff applied for a position as a senior vocational rehabilitation counselor trainee. Plaintiff was one of six candidates interviewed for the position. The interview panel, which was comprised of three people, one of whom was Patton’s equal opportunity employment officer, asked each candidate the same set of questions, and used a standardized printed form to score each candidate on the same criteria. Each of the three interview panelists gave Billy Mange the highest score and therefore he was offered the trainee position. Plaintiff received the second highest score. When the next trainee position was funded a few months later, plaintiff was offered that position. Plaintiff accepted the position but held it for only a few days before resigning^[2] and returning to her former position as a rehabilitation therapist. Plaintiff was not given a raise in the trainee position because trainees do not receive raises. Instead, when a current Patton employee transfers to a trainee position, the employee is paid the salary the employee received in the employee’s previous position.

In her opposition to defendant’s summary judgment motion, plaintiff asserted in relevant part that the interview process had been biased against her and in favor of Billy Mange because one of the interview panel members was Mr. Mange’s supervisor; another panel member changed the scores he had given Mr. Mange; the panel members failed to justify the scores they had given to each of the candidates; and plaintiff had more education than Mr. Mange because she had a bachelor’s degree and an adult education teaching credential whereas Mr. Mange was only enrolled in a bachelor’s degree program,^[3] but the interview panel did not give plaintiff credit for her education.^[4]

In its reply to plaintiff’s opposition, defendant showed that plaintiff’s evidence did not support her assertions and, in any event, there was no showing of discriminatory motive by defendant. In particular, defendant showed that Mr. Maher, the panel member plaintiff claimed had altered his scores in favor of Mr. Mange, had changed his scores during the Mange interview based on Mr. Mange’s responses to the interview questions. Mr. Maher could not recall whether he had adjusted the scores up or down during the interview.^[5] From the rating sheet Mr. Maher completed during the Mange interview only one score clearly had been increased, and while two others had been changed, it could not be determined whether they had been raised or lowered. Plaintiff’s evidence did not show that Mr. Maher had changed his scores other than in response to Mr. Mange’s responses to questions during the interview.

To support her claim that she had not been given credit for her education, plaintiff cited the deposition of Mr. Garland, another panel member. However, as defendant pointed out in its reply, Mr. Garland stated he could not recall the specifics of what he had done but most likely he would have considered the educational background of a candidate in arriving at the candidate’s final score. Mr. Maher and Ms. Rozzano, the third member of the interview panel, each stated in their declarations in support of defendant’s summary judgment motion, that they had considered educational background as a factor. Moreover, both panel members explained why they decided that Mr. Mange was a better candidate, despite plaintiff’s education -- Mr. Mange’s responses to questions were more detailed than plaintiff’s responses, he exhibited a greater understanding of the cooperative relationship between Patton and the Department of Rehabilitation, and he had been the coordinator of an educational program known as STEP as a result of which he had gained knowledge and teaching techniques that would be helpful in the new position. Plaintiff did not refute this showing.

The trial court granted defendant’s summary judgment motion. In the pertinent order, the trial court stated among other things that plaintiff had not presented evidence to support her claim of discrimination based on sex or age. The trial court noted that the only evidence of sex discrimination plaintiff offered was that she was female and defendant had given the position to a male. The evidence of age discrimination consisted of plaintiff’s personal view that “the state likes to put younger people in positions so that they will stay in them longer.” The trial court also found that even if plaintiff’s evidence were sufficient to support an inference of discrimination, defendant had offered evidence of a nondiscriminatory reason for selecting Mr. Mange for the first trainee position -- the panel of interviewers found him to be the stronger candidate based on his responses to the interview questions and therefore gave him a higher score than they gave plaintiff or any other applicant. The trial court found that the evidence did not support plaintiff’s attacks on the interview process and therefore plaintiff had not met her burden of refuting defendant’s showing.

While its motion for summary judgment was pending, defendant filed motions to compel plaintiff to provide further responses to special interrogatories and to a demand for production of documents. The hearing on the discovery motions was set for February 23. On February 8, the trial court heard and granted defendant’s summary judgment motion and also vacated future court dates. On February 11, defendant served plaintiff with notice that it had not withdrawn its discovery motions and intended to go forward with the hearing on those motions in order to recoup its attorney’s fees. Plaintiff did not file any opposition and did not appear at the February 23 hearing on the discovery motions. The trial court granted defendant’s discovery motions and imposed sanctions of $2,884.25 on both plaintiff and her attorney for the discovery violations.

Plaintiff filed a motion for reconsideration of the ruling on the discovery motions on April 14, 2005. In that motion, plaintiff claimed that she believed the trial court had vacated the hearing on the discovery motions when the court granted defendant’s summary judgment motion. Therefore, plaintiff did not file opposition to the motions or appear at the hearing. Plaintiff also purported to challenge the sanctions award claiming it was not justified under the discovery statute and in any event was excessive.

In its opposition to plaintiff’s motion for reconsideration defendant argued first that the motion was untimely in that it had not been filed within the statutory time limit, i.e., 10 days after plaintiff was served with notice of the trial court’s ruling on the discovery motions. Moreover, defendant asserted that plaintiff’s motion was unfounded because defendant had served plaintiff with the previously mentioned notice of nonwithdrawal of the discovery motions and therefore plaintiff could not have honestly believed that the trial court had vacated the hearing on those motions. Defendant also pointed out that the only dates the trial court had vacated at the hearing on the summary judgment motion were the settlement conference and trial dates. Because the motion was unfounded, defendant requested recovery of the reasonable expenses it had incurred in opposing plaintiff’s reconsideration motion. The trial court agreed with defendant, as evidenced by its ruling following a hearing on May 12, 2005, denying plaintiff’s motion for reconsideration and awarding defendant sanctions of $3,683, imposed on plaintiff and her counsel.

Plaintiff challenges the summary judgment and the ruling on her motion for reconsideration in this appeal.

DISCUSSION

We first address plaintiff’s challenge to the trial court’s order granting defendant’s summary judgment motion. In doing so, we note that plaintiff raises the same claims in this appeal that she raised in the trial court.

1.

DEFENDANT’S SUMMARY JUDGMENT MOTION

A defendant moving for summary judgment has the burden of producing evidence showing that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 850-851, 854-855 (Aguilar).) The burden then shifts to the plaintiff to produce specific facts showing a triable issue as to the cause of action or the defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at pp. 849, 850-851.) Despite the shifting burdens of production, the defendant, as the moving party, always bears the ultimate burden of persuasion as to whether summary judgment is warranted. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, at p. 850.) On appeal, we independently review the summary judgment motion. (Aguilar, at p. 860.)

When the plaintiff has alleged employment discrimination and bases the claim on circumstantial evidence, as in this case, courts utilize a three-step process to determine whether the evidence supports an inference of discrimination or whether the moving party, in this case the employer, is entitled to judgment as a matter of law. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, 356 (Guz), quoting Code Civ. Proc., § 437c, subd. (c).) An employer moving for summary judgment may do so by setting forth competent, admissible evidence to show a legitimate, nondiscriminatory reason for its action. (Guz, at p. 357.) Then the employee “ha[s] the burden to rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred.” (Ibid.) “[A] plaintiff’s showing of pretext, combined with sufficient prima facie evidence of an act motivated by discrimination, may permit a finding of discriminatory intent, and may thus preclude judgment as a matter of law for the employer. [Citation.]” (Guz, at p. 361.)

Plaintiff raised two purported claims of discrimination in her complaint: that she was not hired for the first trainee position and that she did not receive a pay increase when she was hired for the second trainee position because she was female and 55 years old. As set out above, defendant showed in its summary judgment motion that it chose Mr. Mange over plaintiff because he received the highest score from the interview panel and not because he was younger than plaintiff or because he was male. Defendant also showed that no one receives a pay increase when hired for a trainee position. That showing demonstrates legitimate, non-discriminatory reasons for hiring Mr. Mange and for not giving plaintiff a pay increase.

The burden then shifted to plaintiff to rebut defendant’s showing. Plaintiff attempted to meet that burden by showing that Mr. Mange received preferential treatment, or consideration, in the interview process.^[6] Arguably that showing would support an inference of discrimination against plaintiff. However, plaintiff’s evidence did not support her factual claims, as defendant pointed out in its reply to plaintiff’s opposition. Defendant has reiterated that showing in its respondent’s brief. Tellingly in our view, plaintiff did not file a reply brief.

In short and simply put, plaintiff failed to demonstrate discrimination and failed to rebut defendant’s showing that it had a legitimate reason for offering the trainee position to Mr. Mange. Accordingly, defendant was entitled to summary judgment in its favor.

2.

PLAINTIFF’S MOTION FOR RECONSIDERATION

The trial court, as previously noted, denied plaintiff’s motion to reconsider its rulings on defendant’s discovery motions.^[7] We review the trial court’s ruling on the motion for reconsideration under the abuse of discretion standard. (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.)

A party affected by a trial court’s order may seek reconsideration of that order under Code of Civil Procedure section 1008 “within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law . . . . The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008, subd. (a).)

Plaintiff’s motion for reconsideration was filed April 14, 2005, which is more than 10 days after February 23, 2005, the date on which defendant served plaintiff with the trial court’s order granting the discovery motions and therefore plaintiff’s motion for reconsideration was untimely. (Code Civ. Proc., § 1008, subd. (a); Advanced Building Maintenance v. State Comp. Ins. Fund (1996) 49 Cal.App.4th 1388, 1392.) For that reason alone, the trial court properly denied plaintiff’s motion for reconsideration.

Moreover, plaintiff failed to show a basis upon which to grant reconsideration of the trial court’s ruling on defendant’s discovery motions. Plaintiff’s showing in support of the reconsideration motion consisted of her attorney’s assertion that the attorney did not know the hearing on the discovery motions was taking place because the judge at the hearing on the summary judgment had vacated all future court dates. Defendant showed in its opposition that it had served plaintiff’s counsel with notice that it was not withdrawing the discovery motions. Given defendant’s showing, plaintiff could not have reasonably believed that the discovery motions had been taken off calendar. Therefore, the trial court properly denied the reconsideration motion. Because that motion was meritless, the trial court also properly awarded defendant the attorney’s fees it incurred in opposing plaintiff’s reconsideration motion.

DISPOSITION

The summary judgment is affirmed. The trial court’s order denying plaintiff’s motion for reconsideration of its orders granting defendant’s discovery motions and imposing sanctions on plaintiff is also affirmed. Defendant to recover costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Richli

J.

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^[1] Plaintiff had also named two individual employees as defendants but they were dismissed after the trial court granted their motions to strike.

^[2] The reason for plaintiff’s resignation is not clear from the record but in any event is not pertinent to plaintiff’s discrimination claim.

^[3] Plaintiff acknowledged that enrollment in a bachelor’s degree program was what the position required and that Mr. Mange met the minimum qualifications for the position.

^[4] Plaintiff also claimed that none of the panel members had been trained on the interview process and that the selection criteria were not clearly defined. Plaintiff did not offer any evidence to show that training was necessary and would have changed the result. Plaintiff also did not offer any evidence to support her challenge to the selection criteria or to refute defendant’s showing that each candidate was evaluated based on responses to an established set of questions.

^[5] The employment interviews occurred in August of 2002, nearly two years before plaintiff filed her complaint for damages and more than two years before the various witnesses were deposed in this action.

^[6] Plaintiff did not offer any evidence regarding the pay increase claim and thus effectively abandoned that issue.

^[7] Plaintiff purports in this appeal to challenge the trial court’s ruling on the discovery motions. However, plaintiff did not file opposition or appear at the hearing on those motions. Therefore, plaintiff’s claims are more correctly directed at the trial court’s denial of her motion for reconsideration.