Jackson v. Los Angeles Unified School Dist.





Filed 10/4/11 Jackson v. Los Angeles Unified School Dist. CA2/4





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

PAULETTE JACKSON et al., Plaintiffs and Appellants, v. LOS ANGELES UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents

B221100 (Los Angeles County Super. Ct. No. BC381091)

APPEAL from judgments of the Superior Court of Los Angeles County, Yvette M. Palazuelos, Judge. Affirmed.
Paulette Jackson, in pro. per., for Plaintiff and Appellant.
Alice Johnson, in pro. per., for Plaintiff and Appellant.
Liebert Cassidy Whitmore, Pilar Morin, Alex Y. Wong and Meredith G. Karasch, for Defendants and Respondents.


_________________________________________

Appellants Paulette Jackson and Alice Johnson appeal from summary judgment granted against them in their lawsuit against the Los Angeles Unified School District (District) for racial discrimination in violation of Government Code section 12940. We affirm the judgments as to both appellants.

PROCEDURAL AND FACTUAL SUMMARY
Appellant Paulette Jackson is employed by District at Daniel Webster Middle School. Appellant Alice Johnson was employed by District at the same school. Along with three other African-American employees, Johnson and Jackson filed an action against District and several named employees alleging employment discrimination on the basis of race. The lawsuit pleaded 10 causes of action. Eventually, the causes of action against individually named employees were dismissed, the suits by the other plaintiffs were severed, and the charging pleading, the second amended complaint, was reduced to three causes of action against District: racial discrimination, retaliation (Jackson only), and failure to take preventative steps, all under the Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq.

a. Paulette Jackson
Jackson is employed by District as a special education teacher. She began working at Daniel Webster Middle School in 1997 and became a special education teacher in 2003. Kendra Wallace began her service as principal at the school in July 2005. Jackson is African-American; Wallace is Caucasian.
District took informal and formal disciplinary action against Jackson for various violations of District rules and policies, beginning in 2001. Among these were the following notices of unsatisfactory service: March 2008, with no disciplinary action; April 2008, with a recommendation for a two-day suspension without pay; October 2008, with a follow-up notice of suspension for three days without pay; and March 2009, with a notice of suspension for 12 days without pay. These notices alleged that Jackson falsified time records, failed to adequately supervise students, and communicated with co-workers in an unprofessional manner, among other violations of District rules governing teachers.
Jackson filed a discrimination charge with the Department of Fair Employment and Housing and the Equal Employment Opportunity Commission in November 2006. The charge alleged that Jackson received differential treatment on the basis of race. District’s Equal Opportunity Section investigated the charge and found no racial discrimination. Rather, the investigator concluded that Jackson was disciplined because “‘she did not perform her duties consistent with District standards.’” He also determined that other alleged differential treatment, including a change in Jackson’s assigned classroom, was race-neutral and applied equally to all teachers regardless of race. Jackson was issued a right to sue letter.
Jackson brought this lawsuit in 2007. During discovery District served her with requests for admission. (Code Civ. Proc., § 2033.010 et seq.)[1] Jackson did not respond to these requests and District moved to have them deemed admitted. Jackson’s counsel failed to produce a response prior to or during the hearing, and the court granted District’s motion. (§ 2033.410.) The effect of this ruling was that Jackson was deemed to have admitted that: 1) she submitted false time records; 2) she did not attend mandatory meetings; 3) she turned in Individualized Education Plans late and with mistakes; 4) she failed to sign in for work; 5) District did not discriminate against her on the basis of race; and 6) District took all reasonable steps to prevent discrimination.
District moved for summary judgment. Jackson filed her opposition after the deadline, and the trial court disregarded her untimely opposition. The court reasoned that because Jackson did not offer any evidence to substantiate why the opposition was not timely, the court could not ascertain its reasonableness. Summary judgment was entered in District’s favor.

b. Alice Johnson
Johnson was employed by District as a special education assistant at Daniel Webster Middle School from March 1994 until her resignation in May 2008. Johnson is African-American.
During the course of Johnson’s employment, District took disciplinary action against her for various violations of District rules and policies. It issued her notices of unsatisfactory service at the following times: in January 2002, with no disciplinary action; in March 2002, with no disciplinary action; in July 2003, with a recommendation for dismissal that was reduced to a five day suspension when Johnson signed an agreement to comply with all District rules and regulations; in December 2007, with a 10-day suspension; in March 2008, with a recommendation that she be dismissed. These notices, along with other informal disciplinary measures, alleged that Johnson failed to sign in or out for work, falsified time records, arrived late to work, returned late from breaks, and left early without obtaining prior approval. District also alleged that she engaged in personal business during work hours, neglected her duty to supervise students with disabilities, failed to communicate appropriately with co-workers and supervisors, improperly contacted the parents of students, and kept recycling money she obtained after making her students collect cans on school premises during class.
In April 2008, District’s personnel commission approved Johnson’s dismissal. In May 2008, she resigned.
In the present suit, the trial court granted District’s motion for summary judgment. The trial court noted that the only evidence Johnson offered in opposition was her own declaration, which the court found to be argumentative, conclusionary, and not based on personal knowledge. In its order the court sustained all but four of District’s 165 evidentiary objections to Johnson’s declaration.
Judgment was entered against both appellants and this timely appeal followed.

DISCUSSION
I
As we have discussed, this case is before us after a grant of District’s motions for summary judgment against appellants. The trial court determined that appellants did not raise a triable issue of material fact as to racial discrimination. Appellants each allege that the trial court’s grant of summary judgment in favor of District was improper.
FEHA prohibits employment discrimination on the basis of race. (Gov. Code, § 12940, subd. (a).) The amended pleading in this case alleged disparate treatment on the basis of race, retaliation, and failure to take preventative steps. At the trial stage, we apply a three-step burden-shifting test for employment discrimination claims that are based on the disparate treatment theory. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) First, the plaintiff must present a prima facie case that shows, at a minimum, actions taken by the employer from which the court can infer that it is more likely than not that such actions were based on a protected characteristic. (Id. at p. 355.) If the plaintiff presents a prima facie case, there is a presumption of discrimination and the burden of production shifts to the employer to refute it. (St. Mary’s Honor Ctr. v. Hicks (1993) 509 U.S. 502, 506.)[2] If the employer presents evidence to rebut the presumption, the presumption disappears and it is up to the plaintiff to present evidence that the proffered reasons are pretextual. (Id. at p. 510; Guz, supra, 24 Cal.4th at p. 356.)
To establish a prima facie case of employment discrimination based on a theory of disparate treatment, “the plaintiff must provide evidence that (1) [she] was a member of a protected class, (2) [she] was qualified for the position [she] sought or was performing competently in the position [she] held, (3) [she] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. [Citations.]” (Guz, supra, 24 Cal.4th at p. 355.)
“On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained.” (Guz, supra, 24 Cal.4th at p. 334.) The defendant moving for summary judgment satisfies the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (§ 437(c).) The defendant may do so by setting forth competent, admissible evidence of nondiscriminatory reasons for the employment action. (Guz, supra, 24 Cal.4th at p. 357.) The burden then shifts to the plaintiff to “rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred.” (Id. at p. 357, italics omitted.) To defeat an employer’s motion for summary judgment, the plaintiff must raise a triable issue, i.e., a permissible inference that, in fact, the employer acted for discriminatory purposes. (Id. at p. 362.)

II
Jackson argues the trial court abused its discretion by disregarding her untimely opposition to District’s motion for summary judgment. She cites no authority for her claim. Courts may properly refuse to consider late filed papers. (Cal. Rules of Court, rule 3.1300(d).) The trial court did not abuse its discretion in doing so in this case since Jackson offered no supporting evidence to allow the court to evaluate the reasonableness of the reason for filing the opposition late. (See Kapitanski v. Von’s Grocery Co. (1983) 146 Cal.App.3d 29, 32-34; § 473.)
Jackson also argues that the trial court abused its discretion by granting District’s motion to deem unanswered requests for admission admitted. If a party fails to serve a timely response to requests for admission, the requesting party may move to deem the requests admitted. (§ 2033.280, subd. (b).) The court must deem the requests admitted, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (Id. at subd. (c), italics added; see Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395-396, disapproved on other grounds in Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983, fn. 12.)
Jackson did not respond to District’s requests for admission on time. District moved to have the requests deemed admitted under section 2033.280. In opposition, Jackson’s counsel did not submit the response or a proposed response to the court. The court was therefore required to deem the requests admitted.
Deemed admissions may be withdrawn or amended. (Wilcox v. Birtwhistle, supra, 21 Cal.4th at p. 983). But Jackson did not seek relief. She did not produce a response or a proposed response to the trial court.[3] The trial court was required by statute to grant District’s motion to deem the requests admitted because it had no basis upon which to determine whether Jackson had served any response before the hearing that complied with section 2033.220. (See § 2033.280, subd. (c).) We also have no basis to determine whether the response complies with section 2033.220 because no response appears in the record. Thus, we hold that the trial court did not abuse its discretion.
The deemed admissions established the material facts necessary for District to prevail on summary judgment because they showed that Jackson was disciplined for legitimate, nondiscriminatory reasons. However, because this issue was not raised in the summary judgment briefs below and the trial judge’s order did not rely on the admissions, we do not do so here.
Jackson further claims District was not entitled to summary judgment on the merits. Notwithstanding the admissions and the untimely opposition, District proffered evidence of disciplinary action taken against Jackson for documented violations of District rules governing special education teachers. Our review of the record reveals no evidence that places District’s showing of legitimate, nondiscriminatory motives for disciplining Jackson in material dispute. (See Guz, supra, 24 Cal.4th at p. 362.) Jackson’s evidence disputing these allegations consisted only of her declaration and attached exhibits. Her declaration is conclusionary and argumentative. The exhibits are largely irrelevant and fail to substantiate the claims for which they are cited. The exhibits that are relevant are background documents detailing District rules governing teachers. These do not create a triable issue of material fact without admissible evidence that District, for example, deviated from these rules with respect to Jackson because of her race. There is no such evidence on the record.
Nor is there a basis for her claim that actions were taken against her in retaliation for her complaints of discrimination. In particular, there is no showing that District’s reasons for its actions were pretextual. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) We thus affirm the summary judgment in favor of District.

III
Johnson also raises two contentions on appeal. First, she claims the court abused its discretion by sustaining District’s evidentiary objections to her declaration without stating particular reasons for its ruling on each objection. Second, like Jackson, she claims that District was not entitled to summary judgment on the merits.
We review a trial court’s evidentiary rulings made on summary judgment for abuse of discretion. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169.) The trial court has an obligation to expressly rule on evidentiary objections presented in proper form at a summary judgment hearing. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 531.)
The only evidence Johnson cited to dispute District’s motion for summary judgment was her own declaration.[4] District made 165 objections to her declaration. In its order granting District’s motion, the court stated “Defendant’s Evidentiary Objections to the Declaration of Alice Johnson are SUSTAINED, except for objection nos. 29, 70, 109, and 122, which are OVERRULED.” While the court ruled on the objections, Johnson argues that the court was required to articulate the basis for its ruling on each of the objections it sustained. She cites no support for this proposition, and we find no authority requiring the court to do so. The court stated its rulings in the order, and discussed why some of the evidence offered by Johnson in her declaration was inadmissible. Accordingly, the trial court did not abuse its discretion in sustaining District’s evidentiary objections.
The fact that Johnson is African-American and the school principal is Caucasian is not enough for a prima facie case unless the actions taken are such that it is more likely than not that they were racially motivated. On the merits, Johnson presented little beyond her own declaration containing conclusionary statements to show that such conduct occurred. Much of her declaration, which is the bulk of the evidence upon which she relied, was properly excluded by the trial court. For example, she states that Caucasian teachers were not reprimanded for engaging in conduct similar to that for which she was disciplined. But she presented no evidence to substantiate these claims or her personal knowledge that they were valid.
Even if we could conclude that Johnson presented a prima facie showing of race-based action, the presumption disappears in light of the formal disciplinary action taken against her. Her two suspensions were based on specific charges related to violations of District rules and regulations. While Johnson disputes the underlying facts, these incidents were alleged in formal disciplinary actions which were determined against her, and which are now final. These actions were sufficient to shift the burden to Johnson to prove that the actions taken against her were because of her race. No such showing was made.
Johnson also failed to show that the reasons given by District for its actions were pretextual. Indeed, she alleges that the disparate treatment began because a former principal erroneously believed she was having an affair with a married man. Even if this were true, it does not support her race discrimination claim.

DISPOSITION
The judgments are affirmed. Respondent District to have its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



EPSTEIN, P. J.

We concur:


WILLHITE, J.


SUZUKAWA, J.


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