Padayao v.
Management
Filed 11/14/13 Padayao v. Island
Hospitality Management CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
CHERRYMAE PADAYAO et al.,
Plaintiffs and
Appellants,
v.
ISLAND HOSPITALITY MANAGEMENT,
INC.,
Defendant and
Respondent.
H037990
(Santa Clara
County
Super. Ct. No. 1-10-CV165137)
I. INTRODUCTION
Appellants
Cherrymae Padayao and Vivica Victug (plaintiffs) were employed by respondent
Island Hospitality Management, Inc. (Island Hospitality) from 1990 until 2009,
when they were terminated from their positions as housekeeping supervisors at a
hotel. Plaintiffs, who are both
Filipino, filed a wrongful termination
action alleging that Island Hospitality’s decision to terminate them was based
upon their race and/or national origin.
Plaintiffs’ complaint included causes of action for discrimination in
violation of the Fair Employment and
Housing Act (Gov. Code, § 12940) and wrongful termination in violation
of public policy.
Island
Hospitality moved for summary judgment on the ground that the undisputed facts
showed that plaintiffs were terminated for nondiscriminatory reasons: their failure to ensure that hotel rooms were
clean and, in Padayao’s case, her failure to follow procedures regarding the
hotel’s pet log. The trial court granted
the summary judgment motion, finding that no triable issue of fact existed
because plaintiffs failed to present substantial evidence showing that Island
Hospitality’s reasons for the terminations were pretextual or that Island
Hospitality had acted with discriminatory intent.
On appeal,
plaintiffs contend that a triable issue of fact exists as to whether Island
Hospitality terminated them due to their race and/or national origin. For the reasons stated below, we determine
that Island Hospitality met its burden on summary judgment to show legitimate,
nondiscriminatory reasons for terminating plaintiffs. (See Guz
v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 357 (Guz).) We also determine
that plaintiffs produced no substantial evidence from which it could be
reasonably inferred that Island Hospitality terminated them on the basis of
their race and/or national origin. (See
Island Hospitality’s favor.
II. FACTUAL
BACKGROUND
Our factual
summary is drawn primarily from the parties’ separate statements of fact
submitted in connection with Island Hospitality’s motion for summary
judgment. In setting out the facts we
regard as material, we will note those that plaintiffs have disputed.
Plaintiffs
are both Filipino. Both worked as
housekeeping supervisors at the Residence Inn by Marriott (the hotel) in Sunnyvale,
which is managed by Island Hospitality.
Both had worked at the hotel since 1990.
As housekeeping supervisors, plaintiffs were responsible for inspecting
rooms that had been cleaned by housekeepers, then designating the rooms as
“guest-ready†if the rooms were in fact clean.
Plaintiffs reported to the executive housekeeper.
The hotel
allowed guests to keep pets in the rooms, and a pet log was maintained to
ensure the housekeeping staff provided additional cleaning after the pet
stay. The pet log entries were made by
the housekeeping supervisors or the executive housekeeper.
In December
of 2008, Island Hospitality hired Kathy McClintock, who is of Mexican heritage,
as the executive housekeeper. McClintock
was informed that the hotel had a history of low scores on guest satisfaction
surveys. The prior executive housekeeper
had been disciplined, and ultimately terminated, for failing to improve the
housekeeping department’s performance and survey scores.
According
to McClintock, after she was hired she met with the hotel’s housekeeping staff,
including plaintiffs, to review their job duties and the hotel’s housekeeping
policies and procedures. Plaintiffs both
denied that they met with McClintock.
A. Vitug’s
Termination
In a
declaration, McClintock claimed she reviewed the housekeeping policies and
procedures with Vitug on December 22,
2008, after finding that rooms designated by Vitug as “guest-readyâ€
had not been cleaned in compliance with those policies and procedures. In her own declaration, Vitug disputed that
she had designated as “guest-ready†any rooms that were not completely clean,
and she disputed that McClintock reviewed any policies or procedures with her
on that date.
McClintock
claimed that on January 14, 2009, she found that more rooms designated by Vitug
as “guest-ready†had not been cleaned in compliance with the housekeeping
policies and procedures, and that afterwards, she again reviewed the policies
and procedures with Vitug. Vitug again
disputed the truth of McClintock’s declaration.
According
to McClintock, on January 16, 2009 she found that four more rooms designated by
Vitug as “guest-ready†had not been cleaned in compliance with the housekeeping
policies and procedures. In her
declaration, Vitug disputed that three of the rooms were not cleaned properly,
and she disputed that the fourth room had been assigned to her that day.
McClintock
asserted that on January 19, 2009, she found that two more rooms designated by
Vitug as “guest-ready†had not been cleaned in compliance with the housekeeping
policies and procedures. Vitug again
disputed that the rooms were not cleaned properly.
On January
19, 2009, Vitug received a written warning.
The warning stated that she needed to improve her job performance by
inspecting rooms carefully prior to designating them as “guest-ready.†The warning also stated that any other
infraction could result in further disciplinary actions.
On January
21, 2009, McClintock found an ozone air purifying machine in a room that Vitug
had designated as “guest-ready.â€
On January
22, 2009, a hotel guest complained that a room was dirty. The room had not been occupied since January
14, 2009. McClintock believed, but Vitug
disputed, that Vitug was the only housekeeping supervisor at the hotel on
January 14, 2009 and thus had been responsible for ensuring that the room was
cleaned. Vitug received another written
warning following the January 22, 2009 incident. The warning stated that another infraction
would result in Vitug’s termination.
According
to McClintock, on January 26, 2009, she found that two more rooms designated by
Vitug as “guest-ready†had not been cleaned in compliance with the housekeeping
policies and procedures. In her
declaration, Vitug disputed that the rooms were not cleaned properly.
Vitug was
terminated on January 26, 2009.
B. Padayao’s
Termination
In her
declaration, McClintock stated that she reviewed the housekeeping policies and
procedures with Padayao on December 24 and 26, 2008, and on January 14, 15, and
16, 2009. In her own declaration, Padayo
disputed that any such reviews occurred.
McClintock
also claimed that on January 16, 2009, she found that two rooms designated by
Padayao as “guest-ready†had not been cleaned in compliance with the
housekeeping policies and procedures, and that she then reviewed the policies
and procedures with Padayao. Padayao disputed
these claim in her declaration.
On January
21, 2009, Padayao received a written warning. The warning stated that she needed to improve
her job performance by inspecting rooms carefully prior to designating them as
“guest-ready.†The warning also stated
that any other infraction could result in further disciplinary actions.
On May 4,
2009, Padayao received a second written warning. The warning concerned her failure to comply
with the pet log procedures, and it stated that any other infraction could
result in further disciplinary actions.
The hotel’s pet log policy requires the housekeepers to inform the
housekeeping supervisors or the executive housekeeper that there is a pet in
the room. The housekeeping supervisors
or the executive housekeeper must then make a notation in the pet log. According to McClintock’s declaration, the
pet log notation must be made as soon as possible, but Padayao believed that
the pet log notation only needed to be made some time before the guest checked
out of the hotel. The written warning
noted that no pet log notations had been made between December 2008 and May
2009.
On
September 17, 2009, McClintock determined that Padayao had not made an entry in
the pet log for room 1623. Padayao
admitted she knew a pet had been in that room for two days, but claimed she had
been too busy to make an entry in the pet log.
Also, she believed she did not need to log the pet until the guest
checked out.
Padayao was
terminated on September 17, 2009.
C. Padayao’s
Complaint
A few days
prior to her termination, on or about September 14, 2009, Padayao prepared a
letter in which she complained that McClintock was discriminating against
Filipino employees. The letter noted
that McClintock had terminated four or five Filipino employees; that McClintock
had hired 15 Mexicans but no Filipinos; and that McClintock was giving more
hours to Hispanic employees, particularly “her favorites,†than to Filipino
employees.
Nine
employees, including Padayao, signed a blank piece of paper, which Padayao
attached to the complaint letter. The
letter was addressed to Philip Cohen, Island Hospitality’s vice president of human
resources, in Florida. The letter was
postmarked on September 15, 2009 and received by Cohen on September 22, 2009.
McClintock
and the hotel’s general manager, Kurt Gursu, both denied they had any knowledge
of Padayao’s complaint at the time of her termination on September 17, 2009.
Island
Hospitality investigated Padayao’s complaint between September 22, 2009 and
October 2, 2009. Cohen instructed Gursu
and Gregg Forde, Island Hospitality’s regional general manager for Northern
California, to investigate the complaint.
Forde confirmed that McClintock had not hired any Filipinos in the
housekeeping department, but that she had hired 15 new Hispanic employees. Forde determined that many of Padayao’s
accusations about discriminatory treatment were false. For instance, Padayao had claimed that a
particular Hispanic employee had been promoted, but Forde determined that this
was untrue. Likewise, Forde determined
it was untrue that McClintock told some employees not to come in so that she
could give the hours to her “ ‘favorites.’ †Based on the investigation by Forde and Guru,
Island Hospitality concluded there was no evidence that Filipinos had been
discriminated against.
D. Other
Employees
During
McClintock’s tenure as executive housekeeper, which lasted from December of
2008 through April 8, 2010, thirty-four housekeeping employees separated from
the hotel. Twenty-six employees had
separated voluntarily by resigning or abandoning their jobs, and eight
employees had been involuntarily terminated.
Six of the involuntarily terminated employees were Filipino. The other two involuntarily terminated
employees were Hispanic.
name="_ftnref1" title="">[1]
During the
same time period, the hotel hired 30 new employees to work in the housekeeping
department. Twenty-five of the new
employees were Hispanic, three were Filipino, one was African-American, and one
was Caucasian. McClintock knew some of
the new Hispanic employees from working with them at a different hotel. The three new Filipino employees were hired
after the investigation of Padayao’s complaint.
The hotel
advertised for new employees primarily by posting job openings on
websites. The hotel also prepared flyers
regarding housekeeping jobs. Following
the investigation of Padayao’s complaint, the flyers were translated into
Spanish, Tagalog, and Vietnamese.
III. PROCEDURAL
BACKGROUND
A. The
Complaint
The record reflects that the
operative complaint is the first amended
complaint (hereafter, the complaint) filed on April 2, 2010.
In their
first cause of action, plaintiffs alleged that Island Hospitality violated the
California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940) by discriminating
against them on the basis of their race and/or national origin.
In their
second cause of action, plaintiffs alleged that Island Hospitality wrongfully
terminated them because of their race and/or national origin, in violation of
public policy as set forth in article I, section 8 of the California
Constitution.
In their
third cause of action, plaintiffs alleged that Island Hospitality wrongfully
terminated them because of their race and/or national origin, in violation of
public policy as set forth in the FEHA.
The fourth
and fifth causes of action were brought by Padayao alone. Padayao alleged that Island Hospitality
retaliated against her when she complained about its discrimination and that
Island Hospitality failed to properly investigate her complaint.
B. The
Motion for Summary Judgment
Island
Hospitality filed a motion for summary judgment, or, in the alternative,
summary adjudication, arguing that plaintiffs failed to state a prima facie
case of discrimination, that plaintiffs were terminated for legitimate,
non-discriminatory reasons, and that plaintiffs could not establish that Island
Hospitality’s actions were a pretext for discrimination.
In opposition to the motion for
summary judgment, plaintiffs argued that there were triable issues of
fact. They argued that they had
established a prima facie case of discrimination and that Island Hospitality’s
proffered reasons for the terminations were pretextual.
On October
25, 2011, the trial court granted Island Hospitality’s motion for summary
judgment. The court found that Island
Hospitality had “provided legitimate, non-discriminatory reasons for
Plaintiffs’ terminations.†The court
noted plaintiffs’ disagreement about whether certain rooms were dirty and
whether they had properly followed policies and procedures, but found those
disagreements “insufficient to show the terminations were motivated by
discrimination.†The court further found
that plaintiffs had not provided any direct evidence of discriminatory intent,
and that the statistical evidence about terminations and hiring was
insufficient to show pretext. Finally,
the court found “no evidence of individual instances of discriminatory treatment.â€
Judgment
was entered in favor of Island Hospitality on December 22, 2011.
IV. DISCUSSION
On
appeal, plaintiffs contend that triable issues of fact exist as to whether
Island Hospitality terminated their employment because they were Filipino. Before addressing plaintiffs’ contention, we
will outline the applicable standard of review.
A. Standard
of Review
The
standard of review for an order granting a motion for summary judgment is de
novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).)
In performing our
independent review, we apply the same three-step process as the trial
court. “Because summary judgment is
defined by the material allegations in the pleadings, we first look to the
pleadings to identify the elements of the causes of action for which relief is
sought.†(Baptist v. Robinson
(2006) 143 Cal.App.4th 151, 159 (Baptist).)
“We then examine the
moving party’s motion, including the evidence offered in support of the
motion.†(Baptist, supra, 143
Cal.App.4th at p. 159.) A defendant
moving for summary judgment has the initial burden of showing that a cause of
action lacks merit because one or more elements of the cause of action cannot
be established or there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o)
Aguilar, supra, 25 Cal.4th at p.
850.)
If
the defendant fails to make this initial showing, it is unnecessary to examine
the plaintiff’s opposing evidence and the motion must be denied. However, if the moving papers make a prima
facie showing that justifies a judgment in the defendant’s favor, the burden
shifts to the plaintiff to make a prima facie showing of the existence of a
triable issue of material fact. (§ 437c,
subd. (p)(2); Aguilar, supra, 25
Cal.4th at p. 849; Kahn v. East Side
Union High School Dist. (2003) 31 Cal.4th
990, 1002-1003.)
In
determining whether the parties have met their respective burdens, “the court
must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably
drawn therefrom [citations], and must view such evidence [citations] and such
inferences [citations], in the light most favorable to the opposing
party.†(Aguilar, supra, 25 Cal.4th at p. 843.) “There is a triable issue of material fact
if, and only if, the evidence would allow a reasonable trier of fact to find
the underlying fact in favor of the party opposing the motion in accordance
with the applicable standard of proof.â€
(Id. at p. 850,
fn. omitted.) Thus, a party “cannot
avoid summary judgment by asserting facts based on mere speculation and
conjecture, but instead must produce admissible evidence raising a triable
issue of fact. [Citation.]â€
(LaChapelle v. Toyota Motor Credit
Corp. (2002) 102 Cal.App.4th 977, 981.)
We will begin our evaluation of the order
granting Island Hospitality’s motion for summary judgment with a brief overview
of the legal framework governing summary adjudication of an employee’s claim
for discrimination.
B. Summary
Adjudication of a Discrimination Claim
California has adopted
the three-stage, burden-shifting test known as the McDonnell Douglas test (McDonnell
Douglas Corp. v. Green (1973) 411 U.S. 792) for determining the merits of a
discrimination claim, including discrimination on the basis of race, ethnicity,
or national origin. (
512, 520, fn. 2 (Reid).)
“At trial, the
plaintiff the initial burden to establish a prima facie case of
discrimination.†(Guz, supra, 24 Cal.4th at
p. 354.) In general, the elements of a
prima facie case of discrimination are (1) the plaintiff was a member of a
protected class; (2) the plaintiff was qualified for the position sought or
performed competently; (3) the plaintiff suffered an adverse employment action,
such as termination; and (4) “some other circumstance suggests discriminatory
motive. [Citations.]†(Id. at
p. 355.) “If, at trial, the plaintiff
establishes a prima facie case, a presumption of discrimination arises. [Citations.]â€
(Ibid.)
If the plaintiff makes
the required prima facie showing at trial, the burden shifts to the employer to
produce admissible evidence sufficient to show a legitimate, nondiscriminatory
reason for the adverse employment action.
(Guz, supra, 24 Cal.4th at pp. 355-356.)
“If the employer meets this burden, the employee then must show that the
employer’s reasons are pretexts for discrimination, or produce other evidence
of intentional discrimination.
[Citation.]†(
With regard to summary
judgment, as this court has noted, an employer seeking summary judgment in a
discrimination case may meet its burden by showing that one or more of the
elements of a prima facie case are lacking or that the adverse employment
action was based on a legitimate, nondiscriminatory reason. (Cucuzza
v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038 (
If the employer meets
its initial burden in moving for summary judgment, the burden then shifts to
the employee to “demonstrate a triable issue by producing substantial evidence
that the employer’s stated reasons were untrue or pretextual, or that the
employer acted with a discriminatory animus,
such that a reasonable trier of fact could conclude that the employer engaged
in intentional discrimination or other unlawful action. [Citations.]â€
(Cucuzza, supra, 104 Cal.App.4th at p. 1038.)
In Guz, the California Supreme Court emphasized that “the great weight
of federal and California authority holds that an employer is entitled to
summary judgment if, considering the employer’s innocent explanation for its
actions, the evidence as a whole is insufficient to permit a rational inference
that the employer’s actual motive was discriminatory.†(Guz,
supra, 24 Cal.4th at p. 361, fn.
omitted.) “[A]n inference is reasonable
if, and only if, it implies the unlawful motive is more likely than defendant’s
proffered explanation. [Citation.]†(Cucuzza,
supra, 104 Cal.App.4th at p.
1038.) Speculation regarding the
employer’s unlawful motive in terminating the employee is insufficient to raise
a triable question of fact regarding whether the employer’s explanation was
pretextual or false. (
29 Cal.App.4th 1718, 1735.)
Having reviewed the
legal framework for summary adjudication of an employee’s claim of
discrimination and the applicable standard of review, we turn to our analysis
of Island Hospitality’s motion for summary judgment.
C. Analysis
Plaintiffs implicitly concede
that Island Hospitality met its burden
of showing that that the adverse employment action was based on a legitimate,
nondiscriminatory reason, such that the burden shifted back to plaintiffs. (See Cucuzza,
supra, 104 Cal.App.4th at p. 1038.)
Thus, the issue here is whether plaintiffs met their burden of
“demonstrat[ing] a triable issue by producing substantial evidence that the
employer’s stated reasons were untrue or pretextual, or that the employer acted
with a discriminatory animus, such
that a reasonable trier of fact could conclude that the employer engaged in
intentional discrimination or other unlawful action.†(Ibid.)
1. Falsity
of Reasons for Termination
Plaintiffs
contend that Island Hospitality’s proffered reasons for terminating them were
false, and therefore pretextual.
Plaintiffs assert that they provided evidence showing that they had
performed their jobs satisfactorily.
Plaintiffs refer to their declarations, in which each stated she had in
fact checked the rooms at issue and found them clean. Plaintiffs claim their declarations are
corroborated by the fact that McClintock did not document the specific issues
with the rooms nor review the rooms with either plaintiff. Plaintiffs also note that according to Vitug,
some of the rooms were not Vitug’s responsibility or had not actually been
marked by Vitug as clean. As to
Padayao’s purported failure to comply with the pet log policy, plaintiffs
assert that there was no written pet log policy, no mutually understood pet
policy, and no consistent enforcement of any pet log policy.
“[E]vidence
that the employer’s claimed reason [for the employee’s termination] is false—such
as that it conflicts with other evidence, or appears to have been contrived
after the fact—will tend to suggest that the employer seeks to conceal the real
reason for its actions, and this in turn may support an inference that the real
reason was unlawful.†(Mamou v.
Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715.) However, “an inference of intentional
discrimination cannot be drawn solely from evidence, if any, that the company
lied about its reasons. The pertinent
statutes do not prohibit lying, they prohibit discrimination. [Citation.]â€
(Guz, supra, 24 Cal.4th at pp. 360-361.) “Logically, disbelief of an Employer’s stated
reason for a termination gives rise to a compelling inference that the Employer
had a different, unstated motivation, but it does not, without more, reasonably
give rise to an inference that the motivation was a prohibited one.†(McGrory v. Applied Signal Technology,
Inc. (2013) 212 Cal.App.4th 1510, 1531-1532 (McGrory).)
The above
principles were applied in Hersant v. Department of Social Services
(1997) 57 Cal.App.4th 997, 1000 (Hersant),
where the plaintiff alleged he was demoted on the basis of his age in violation
of the FEHA. Hersant had presented a
prima facie case of age discrimination, but the employer had made a showing
that the demotion was for nondiscriminatory reasons. Specifically, the employer produced evidence
showing Hersant had instituted policies that corrupted a computer database,
failed to notify his superiors of those policies, and refused to follow
instructions from his superiors. (
Thus, the burden shifted back to Hersant, who presented evidence
contradicting the employer’s explanation for the demotion. Nevertheless, the appellate court found that
summary judgment was properly granted.
Although “Hersant raised triable issues concerning whether the actions
of [his employer] were reasonable and well considered,†a trier of fact could
not reasonably conclude that the employer’s “stated reasons were implausible,
or inconsistent or baseless.†(
conclude they were pretextual and used merely to veil an act of age
discrimination.†(Ibid.)
Here,
although plaintiffs denied that they had failed to perform their jobs properly,
the evidence they submitted was insufficient to support an inference that the
job performance issues were a pretext for discrimination. Notably, plaintiffs admitted some of the job
performance criticisms – for instance, Vitug acknowledged she had left an ozone
machine in a room but marked the room as “guest-ready,†and Padayao admitted
she failed to make any notations in the pet log for several months. Further, plaintiffs do not dispute that they
were each given two written warnings prior to the terminations, and Padayao’s
employment continued for nearly eight months after her first written
warning. Thus, the facts do not give rise
to an inference that Island Hospitality’s motivation for terminating plaintiffs
was something other than their job performance, much less “to an inference that
the motivation was a prohibited one.†(McGrory,
supra, 212 Cal.App.4th at p. 1532.)
While plaintiffs have presented some evidence contradicting Island
Hospitality’s stated reasons for plaintiffs’ terminations, the stated reasons
are not so “implausible, or inconsistent or baseless†as to give rise to an
inference that Island Hospitality’s true motivation was unlawful. (Hersant,
supra, 57 Cal.App.4th at p. 1009.)
2. Adequacy
of Investigation
Plaintiffs
next assert that pretext is shown because Island Hospitality only perfunctorily
investigated Padayao’s complaint. They
note that the investigation was conducted primarily by Forde, who had no formal
training in conducting investigations, that he did not interview either Padayao
or McClintock, and that he did not examine the hiring and firing statistics.
An
inference of pretext may arise where an investigation is “not truly independentâ€
(Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 119 (
‘thorough.’ †(Nazir v. United
Airlines, Inc. (2009) 178 Cal.App.4th 243, 277 (Nazir).)
Here, Forde
was employed by Island Hospitality as the regional general manager for Northern
California, and no evidence indicates he had any personal connection to
McClintock or plaintiffs. (Compare Nazir,
supra, 178 Cal.App.4th at p. 277 [investigator had “an axe to grindâ€
against plaintiff].) Although Forde
lacked formal training in investigation of employee complaints, he had
performed prior investigations “numerous times.†He interviewed seven of the people who had
signed Padayao’s complaint as well as two other housekeepers. He examined work schedules in response to the
complaint about McClintock’s unequal work hours assignments. Further investigation was conducted by Gursu;
he interviewed McClintock as well as the hotel’s assistant general manager and
the hotel’s chief maintenance engineer.
Although Padayao was not interviewed, it appears this was due to the
fact she had recently been terminated.
Based on this record, we find no evidence suggesting that Island
Hospitality failed to conduct a “truly independent†(Reeves, supra, 121
Cal.App.4th at p. 119) or “ ‘thorough’ †investigation (Nazir,
supra, at p. 277), so as to raise an inference of pretext.
3. Statistics
Plaintiffs
point to the statistics regarding the ethnicity of the employees fired and
hired after McClintock became executive housekeeper, claiming the statistics
create an inference that the non-discriminatory reasons for their termination
were pretextual.
Plaintiffs’
opening brief asserts that “within ten months of McClintock’s hiring, eight of
ten Filipino employees had been terminated or quit, and that McClintock hired
15 Hispanic employees to replace them.â€
As noted above, the trial court sustained an objection to the evidence
plaintiffs provided in support of their claim that there were 10 Filipino
employees at the time of McClintock’s hiring.
(See fn. 1, ante.) Thus, the trial court could not consider that
evidence (see § 437c, subd. (c)), nor can we.
(See Guz, supra, 24 Cal.4th at p. 334 [after a summary judgment
motion has been granted, appellate court must consider “all the evidence set
forth in the moving and opposition papers except that to which objections have
been made and sustainedâ€].)
name="_ftnref5" title="">[5]
The
undisputed evidence established that eight employees in the housekeeping department
were involuntarily terminated during McClintock’s tenure as executive
housekeeper. Six of those employees were
Filipino; the other two were Hispanic.
During the same time period, the hotel hired 30 new employees to work in
the housekeeping department. Twenty-five
of the new employees were Hispanic, three were Filipino, one was African-American,
and one was Caucasian.
“A
disparate treatment plaintiff may rely on statistical evidence to establish a prima
facie case . . . , or ‘to show that a defendant’s articulated
nondiscriminatory reason for the employment decision in question is pretextual,’
. . . . Statistical data is relevant because it can be
used to establish a general discriminatory pattern in an employer’s hiring or
promotion practices. Such a
discriminatory pattern is probative of motive and can therefore create an
inference of discriminatory intent with respect to the individual employment
decision at issue. [Citation.]†(Lowe v. City of Monrovia (9th Cir.
1985) 775 F.2d 998, 1008.)
name="_ftnref6" title="">[6] “On the other hand, ‘[s]tatistics taken in
isolation are generally not probative of . . . discrimination,’ [citation], and
statistical evidence on its own ‘will rarely suffice’ to show pretext, [citation]. At the very least, in order to create an
inference of pretext, ‘a plaintiff’s statistical evidence must focus on
eliminating nondiscriminatory explanations for the disparate treatment by
showing disparate treatment between comparable individuals.’ [Citation.]â€
(Timmerman v. U.S. Bank, N.A. (10th Cir. 2007) 483 F.3d 1106,
1114-1115 (Timmerman).)
Statistical
evidence and evidence of disparate treatment created an inference of pretext in
Damon v. Fleming Supermarkets of Florida, Inc. (11th Cir. 1999) 196 F.3d
1354 (Damon), which is cited by
plaintiffs in this case. In
as managers of supermarkets; both were over age 40. After the defendant acquired a supermarket
chain, it hired a new district manager to oversee seven of the
supermarkets. The new district manager
soon terminated the two plaintiffs: one
for job performance issues; the other for yelling at another employee on the
sales floor. The new district manager
also terminated or demoted three other older, more experienced managers, and he
replaced all of the older managers with men who were younger and less
experienced. He did not terminate any
younger managers during the same time period. (Id.
at p. 1358.) The new district manager
had actually advertised for new managers before there were any vacancies, and
he had made a remark about wanting “ ‘aggressive, young men’ like
himself to be promoted.†(Id. at p. 1362.) Moreover, one of the younger replacement
managers had serious performance problems, “and yet, was not fired.†(Id. at
p. 1364.) Likewise, there was evidence
that the new district manager himself had yelled at employees in front of
customers. The court found that this
circumstantial evidence, “taken as a whole, is sufficient to make a prima facie
showing of age discrimination, and to rebut the nondiscriminatory reasons†for
the plaintiffs’ terminations that the defendant had proffered. (Id. at p. 1366.)
In this
case, the statistics presented by plaintiffs do not create a similar inference
of discrimination, particularly since there is no evidence of “ ‘disparate
treatment between comparable individuals.’ [Citation.]â€
(Timmerman, supra, 483 F.3d at p. 1115.) Plaintiffs presented evidence that during
McClintock’s tenure, six Filipino employees were involuntarily terminated. However, two Hispanic employees were also
involuntarily terminated during the same time period. (Cf. Damon,
supra, 196 F.3d at p. 1358.)
Plaintiffs presented no evidence that other employees had similar
performance issues but were not terminated.
Although McClintock herself had not made any pet log entries and was not
disciplined, it was undisputed that McClintock – a newer employee – had not
previously known about the pet log policy, whereas Padayao had been aware of
the policy as a longer-tenured employee.
Moreover, McClintock was hired specifically to improve the performance
of the housekeeping department, not simply because of a corporate take-over as
in Damon, where the timing of the
terminations helped create an inference that the stated reasons were a pretext
for discrimination.
4. Recruitment
Practices
Finally,
plaintiffs assert that Island Hospitality specifically recruited Hispanics, and
that this demonstrated that Island Hospitality’s reasons for terminating
plaintiffs were pretextual.
Plaintiffs
claim to have “produced evidence that McClintock confined her recruiting
efforts to the posting of open positions in Spanish-language posters which were
distributed in local Hispanic markets†until after Padayao sent in her
complaint. That evidence was Padayao’s
declaration, which asserted that “Fliers were the primary way the Hotel
advertised for new employees†and that McClintock “had a flier made in English
and Spanish and asked the housekeepers to hand them in Mexican markets.â€
Significantly,
the trial court sustained Island Hospitality’s objections to the evidence cited
by plaintiffs. Thus, that evidence may
not be considered. (See § 437c, subd.
(c); Guz, supra, 24 Cal.4th at p. 334.)
Even more
significantly, Island Hospitality produced evidence that the hotel’s primary
means of advertising for new employees was posting job openings on websites
that do not target people of any particular race or national origin. As plaintiffs have not cited any admitted
evidence to support their claim of targeted recruiting, the allegedly
discriminatory recruiting practices did not create an inference that
plaintiffs’ performance issues were a pretext for discrimination.
5. Cumulative
Showing
We
acknowledge that “[i]n discrimination cases, proof of the employer’s reasons
for an adverse action often depends on inferences rather than on direct
evidence.†(Cucuzza, supra, 104
Cal.App.4th at p. 1038.) However, “even
though we may expect a plaintiff to rely on inferences rather than direct
evidence to create a factual dispute on the question of [the employer’s]
motive, a material triable controversy is not established unless the inference
is reasonable. And an inference is reasonable
if, and only if, it implies the unlawful motive is more likely than defendant’s
proffered explanation. [Citation.]†(Ibid.)
Here,
considered cumulatively, the evidence presented by plaintiffs does not permit a
rational inference that a discriminatory reason for their termination is more
likely than the job performance reasons proffered by Island Hospitality. As discussed above, plaintiffs did not
produce substantial evidence that the stated reasons for their terminations
were so implausible, inconsistent or baseless as to give rise to an inference
that Island Hospitality’s true motivation was unlawful. (Hersant,
supra, 57 Cal.App.4th at p. 1009.)
Plaintiffs also presented no substantial evidence suggesting that Island
Hospitality’s investigation was significantly inadequate. Likewise, the termination and hiring
statistics did not constitute substantial evidence that comparable employees
were disparately treated. (Timmerman,
supra, 483 F.3d at p. 1115.)
Finally, no substantial evidence shows that Island Hospitality’s
recruitment was discriminatory.
We therefore
determine that plaintiffs did not satisfy their burden in opposing Island
Hospitality’s motion for summary judgment to rebut Island Hospitality’s
“facially dispositive showing by pointing to evidence which nonetheless raises
a rational inference that intentional discrimination occurred. [Citation.]â€
(Guz, supra, 24 Cal.4th at p.
357.) The trial court did not err in
granting Island Hospitality’s motion for summary judgment.
V. DISPOSITION
The judgment is
affirmed.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
Márquez,
J.
Plaintiffs asserted, as an undisputed fact, that there were a total of 10
Filipino employees in the housekeeping department at the time of McClintock’s
hiring. The trial court sustained Island
Hospitality’s objection to the evidence plaintiffs produced in support of that
fact.
name="_ftn2" title=""> [2] A
third plaintiff, Estefania Poquiz, participated in the lawsuit from the time
the original complaint was filed until shortly before Island Hospitality filed
its motion for summary judgment. In its
motion for summary judgment, Island Hospitality noted that it had recently
settled with Poquiz.
