Davis v. City of Los Angeles



Filed
3/14/13 Davis v. City of Los Angeles CA2/8

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
EIGHT


>

LEON DAVIS, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.

B237760 (Los Angeles County Super. Ct. No. BC400913)

APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County,

Amy D. Hogue, Judge.
Reversed and remanded.



Law Offices
of Alvin L. Pittman and Alvin L. Pittman for Plaintiff and Appellant.



Carmen A.
Trutanich, City Attorney, Zna Portlock Houston, Assistant City Attorney, and
Jennifer M. Handzlik, Deputy City Attorney, for Defendant and Respondent.



____________________________



Leon Davis
appeals from the trial court’s summary judgment dismissing his complaint for
employment discrimination based on age and race. Because the trial court erred in excluding
evidence that created a triable issue of age animus, we reverse summary
judgment and remand for further proceedings on appellant’s cause of action for
age discrimination.



>FACTS AND PROCEEDINGS



Appellant
Leon Davis, who is African-American, was born in January 1943. He began working for respondent City of Los
Angeles in 1997, and at all relevant times has worked
in the Los Angeles Housing Department.
The Department has four bureaus, consisting of an Executive bureau and
three working bureaus, one of which is the Development bureau. The Development bureau has a Homeownership
Division, which implements and secures governmental funding for several of the
city’s middle and low-income housing programs.

In 2002,
appellant was made the Community Housing Program Manager for the Homeownership
Division. As a Community Housing Program
Manager, appellant supervised 12 employees.
In January 2006, the Department’s General Manager, Mercedes Marquez, began
to reorganize the Department in response to criticisms by independent
auditors. In a meeting with senior
managers, General Manager Marquez said the Department was “top heavy with older
employees” for which she had a mandate to get rid of “dinosaurs” as part of the
department’s reorganization.href="#_ftn1"
name="_ftnref1" title="">^[1] Two months later in March 2006, the
Department transferred appellant from the Development Bureau’s Homeownership
Division to the Department’s Executive Bureau and a Latino who was 20 years
younger than appellant assumed appellant’s former duties, although not his
title, in the Homeownership Division.
The parties dispute the effect of appellant’s reassignment on his job
duties. Appellant claims his core duty
as a Community Housing Program Manager was to supervise and manage staff, but
his involuntary reassignment to the Executive Bureau stripped him of any
supervisory responsibilities. According
to appellant, his reassignment constituted a functional demotion as part of the
Department’s preemptive move to take him out of the running for promotion to
upcoming Housing Director openings in the Department. According to respondent, a Community Housing
Program Manager’s duties include organizing and managing staff >and preparing and presenting clear
reports. Thus, respondent asserts,
appellant’s position as Community Housing Program Manager was unchanged
following his reassignment to the Executive Bureau despite his having no one to
supervise in his new position.

Upon
appellant’s transfer to the Executive Bureau, his former supervisor in the
Homeownership Division, Yolanda Chavez, continued to supervise him. She directed him to prepare a written
marketing plan for the Department’s programs.
She also ordered him to work by himself without consulting fellow
employees who would implement the plan.
According to appellant, working on the marketing plan, which was
appellant’s only assignment from March 2006 to August 2007, was not within the
scope of duties of a Community Housing Project Manager as defined by Civil Service
rules. Moreover, according to appellant, Yolanda Chavez set him up for failure
on the project by denying him the staff, resources, and information he needed
to prepare an adequate plan.

In October
2006, several months after appellant’s March reassignment to the Executive
Bureau, the Department had two vacancies for emergency temporary appointments
for Directors of Housing, one of which was in appellant’s former Homeownership
Division. Appellant and four others, all
of whom were at least 15 years younger than appellant, applied for the open
positions. The Department ranked the
applicants based on interview scores.
Three of the candidates ranked higher than appellant and one ranked
lower, but appellant asserts that his middling ranking was the “fruit of the
discriminatory poisonous tree.”href="#_ftn2"
name="_ftnref2" title="">^[2] The Department promoted the two top-ranked
candidates, one of whom was white and the other African-American.

In the
meantime, things were not going well for appellant in the Executive
Bureau. In several meetings between
August and December 2006, supervisors told him his written marketing plan was
unacceptable and he received a disciplinary memorandum noting his need for
excessive supervision. In the ensuing
months, appellant continued to revise and resubmit his marketing plan, which
his supervisors continued to claim was inadequate. In August 2007, he submitted his final draft
to Supervisor Yolanda Chavez, who reported she remained unsatisfied with the
plan. Appellant asserts, however, that
Chavez doomed him to fail by denying him the resources and input from
colleagues that he needed to prepare a proper plan.

After
appellant submitted his final draft of the marketing plan in August 2007,
Chavez ordered him to prepare a Request for Proposal for a Departmental Housing
Assistance Program. Appellant contends
that writing the Request for Proposal required technical expertise beyond his
job description. After appellant worked
for more than one year on the proposal without completing it, Chavez assigned
it to another staff member to finish. In
the interim, the emergency temporary appointments for Directors of Housing,
including the director in appellant’s former Homeownership Division,
expired. In August 2007, a committee
interviewed appellant and three other applicants for the positions. Appellant scored third in the
interviews. The Department filled the
positions with the two highest scoring candidates (a White and an
African-American) who had been the two interim directors by emergency
appointment.

In 2008, appellant
filed his complaint against respondent, alleging causes of action for
employment discrimination based on race and age. (Appellant continued to work for respondent
until he retired in 2009.) Respondent
moved for summary judgment or adjudication on the ground that appellant offered
no admissible evidence that any claimed adverse employment action – whether
removal of his supervisory duties, transfer to the Executive Bureau,
unsatisfactory performance evaluations, or two failures to promote – was the
result of his age or race. Respondent
objected to much of appellant’s evidence, including General Manager Marquez’s
statement that she had a mandate as she reorganized the Department to get rid
of “dinosaurs.” The trial court
sustained most of respondent’s objections, including respondent’s hearsay
objection to Marquez’s dinosaur comment.
During the hearing on respondent’s motion, the court found no evidence
that respondent had discriminated against appellant because of race. But the court observed that a triable issue
of fact could, in principle, exist as to whether calling an employee a dinosaur
was evidence of age animus, or merely meant the employee was set in his
ways. The court said “dinosaurs, I guess
you could say that it connotes old age, but really I think it connotes a
failure to adapt.” But whichever the
meaning, the court found Marquez’s comment was inadmissible hearsay and
therefore was not evidence creating a triable issue of fact. Thus, the court found that appellant’s age
discrimination claim also failed. The
court therefore entered summary judgment for respondent. This appeal followed.



STANDARD OF
REVIEW



“ ‘A trial court
properly grants a motion for summary judgment only if no issues of triable fact
appear and the moving party is entitled to judgment as a href="http://www.fearnotlaw.com/">matter of law. [Citations.]
The moving party bears the burden of showing the court that the
plaintiff “has not established, and cannot reasonably expect to establish, a
prima facie case . . .name="citeas((Cite_as:_38_Cal.4th_264,_*274,_1"> .” [Citation.]’ ” (Lyle v. Warner Brothers
Television Productions (2006) 38 Cal.4th 264, 274.) “From commencement
to conclusion, the moving party bears the burden of persuasion that there is no
genuine issue of material fact and that he is entitled to judgment as a matter
of law. There is a genuine 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.”
(Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 845.)

California
courts have adopted in employment discrimination cases the three-part
burden-shifting analysis established in McDonnell Douglas Corp. v. Green
(1973) 411 U.S. 792. (Guz v. Bechtel National Inc.
(2000) 24 Cal.4th 317, 354.) Under
that analysis, the employee has the initial burden of establishing a prima
facie case to raise the presumption of discrimination; the employer must then
offer legitimate, nondiscriminatory reasons for the adverse employment action
at issue to dispel the presumption; once the employer has done so, the burden
shifts back to the employee to produce evidence that the employer’s stated
reason was a mere pretext for discrimination. (Id. at pp. 354-356.) Applying this analysis to summary
judgment or adjudication, the defendant employer can prevail by “present[ing]
admissible evidence . . . that the adverse employment action was based on
legitimate, nondiscriminatory factors . . . unless the plaintiff produces admissible evidence which raises a triable issue of fact
material to the defendant’s showing.” (Caldwell v. Paramount
Unified School Dist. (1995) 41 Cal.App.4th 189, 203.)



>DISCUSSION



1.
Triable
Issues of Age Discrimination Exist



To prove
age discrimination an employee “must provide evidence that (1) he was a member of
a protected class, (2) he was qualified for the position he sought or was
performing competently in the position he held, (3) he suffered an adverse
employment action, such as termination, demotion, or denial of an available
job, and (4) some other circumstance suggests discriminatory motive.” (Guz v.
Bechtel National Inc., supra, 24 Cal.4th
at p. 355.) An employer’s
reassignment of an employee into a position that limits the employee’s
possibility for career advancement and promotion can be an adverse employment
action even if the reassignment does not reduce the employee’s pay or
rank. (Yanowitz v. L’Oreal
USA, Inc. (2005) 36 Cal.4th 1028, 1054.)
Appellant contends he suffered an adverse employment action when the
Department shunted him to the Executive Bureau where, stripped of his
supervisorial authority and resources, he received assignments for which the
Department was setting him up to fail, an outcome that would undermine his
applications for promotion to Housing Director.href="#_ftn3" name="_ftnref3" title="">^[3] As evidence of the Department’s age animus,
he points to the dinosaur comment by General Manager Marquez, who was the
Department’s final authority in personnel decisions involving job duties, reassignments,
and discipline.

Respondent
contends Marquez’s dinosaur comment was inadmissible double hearsay because
appellant was not at the meeting where Marquez purportedly made the remark, and
appellant heard about the remark only from others. But one person who heard Marquez’s comment
and repeated it to appellant was Alfonso Perez, the Department’s Personnel
Director. Appellant contends the
statement was thus admissible under Evidence Code section 1222 as an authorized
admission. Section 1222 states,
“Evidence of a statement offered against a party is not made inadmissible by
the hearsay rule if . . . The statement
was made by a person authorized by the party to make . . . statements . . .
concerning the subject matter of the statement . . . .” (See also O’Mary
v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563, 570 (>O’Mary) [an employee’s authority to make
a statement for employer “name="______#HN;F3">name=B41997232307>requires an examination
of the nature of the employee’s usual and customary authority, the nature of the
statement in relation to that authority, and the particular relevance or
purpose of the statement”].)

The record contains no apparent dispute over Marquez’s
authority to speak about matters involving reassignment of Department
employees, so we do not address Marquez’s authority as an exception to the
first stage of double hearsay. And the
record contains undisputed evidence within Perez’s own declaration in support
of respondent’s motion for summary judgment of Perez’s authority over the
Department’s personnel and anti-discrimination policies. In his declaration, Perez stated: “As Personnel Director, I am
responsible for directing, developing, implementing, and managing a
comprehensive personnel and human resources program for the [Los Angeles
Housing Department], including developing, interpreting, implementing and
enforcing policies, procedures and systems to ensure compliance with municipal,
state, and federal laws. [¶] During the times alleged in this action, I
was entirely familiar with LAHD’s personnel policies, employment
classifications, job restructuring and reassignment, promotional processes and
procedures, Equal Employment Opportunity guidelines and procedures, and
applicable Civil Service Rules and City Charter provisions pertaining to City
employment.” Plainly, Perez had
authority to make statements to employees about respondent’s employment
policies and allegations of employment discrimination. (Cf. Rochlis
v. Walt Disney Co. (1993) 19 Cal.App.4th 201, 216-217, overruled on another
point by Turner v. Anheuser-Busch, Inc.
(1994) 7 Cal.4th 1238, 1251 [statement attributed to company’s president by
vice president of human resources not authorized admission because plaintiff
did not offer any foundational evidence that vice president authorized to speak
for company or president].) The court
thus erred in not admitting Perez’s repetition of Marquez’s dinosaur remark as
an authorized admission.

The court’s
exclusion of Marquez’s remark prejudiced appellant. During the summary judgment hearing, the
court found appellant had established a prima facie case of age
discrimination. The record included
substantial evidence of respondent’s legitimate reasons for appellant’s
transfer, so the burden shifted back to appellant to demonstrate href="http://www.mcmillanlaw.com/">unlawful discrimination. The court noted that, if admitted, Marquez’s
dinosaur remark created a triable issue of discriminatory intent, but
nevertheless excluded the remark as inadmissible hearsay, thus leaving
appellant with no evidence to refute respondent’s evidence of legitimate
business purposes.

Respondent
asserts we must review the court’s exclusion of Marquez’s comment for abuse of
discretion. But we disagree because
Marquez’s authority, as final decision maker in personnel matters, and of
Perez’s authority as stated in his declaration, are undisputed. Because their authority is undisputed, the
admissibility of Perez’s repetition of Marquez’s statement as an authorized admission
becomes a question of law which we independently review and, by that standard
of review, we conclude the court erred in excluding the statement. (Crocker
National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881,
888; Hoover v. American Income Life Ins.
Co. (2012) 206 Cal.App.4th 1193, 1202; Pasternak
v. Boutris (2002) 99 Cal.App.4th 907, 918.)
But even if we were to review the trial court’s ruling for abuse of
discretion, we would find abuse here because the trial court either apparently
misapprehended, or possibly overlooked, Evidence Code section 1222’s
applicability to Marquez’s and Perez’s authority over personnel decisions and
policies as revealed in respondent’s own evidence in support of summary
judgment. A court abuses its discretion
when it fails to follow applicable legal principles. (Prigmore
v. City of Redding
(2012) 211 Cal.App.4th 1322, _____.)

Respondent’s
reliance on Snider v. Superior Court
(2003) 113 Cal.App.4th 1187 is misplaced.
Respondent cites it for the proposition that O’Mary, supra, 59 Cal.App.4th 563 establishes that authorized
admissions under Evidence Code section 1222 apply only to statements of
“high-ranking organizational agents” of which, respondent seems to imply, Perez
was not one.href="#_ftn4" name="_ftnref4"
title="">^[4] (Snider,
at p. 1203.) But respondent cites
dicta. The issue in Snider involved rules of professional conduct governing a lawyer
who contacts a represented party. (>Id. at pp. 1192-1193.) Snider’s
reference to O’Mary was only in
passing as Snider canvassed laws
applicable to a lawyer’s ethical obligations toward employees of a represented
party. (Snider, at pp. 1198-1207.)
Rather than rely on what Snider
says about O’Mary in dealing with an
issue not before us, we rely directly on O’Mary
itself. O’Mary did not hold that authorized admissions apply only to “high-ranking”
agents. O’Mary instead explained that “[i]n general . . . the
determination requires an examination of the nature of the employee’s usual and
customary authority, the nature of the statement in relation to that authority,
and the particular relevance or purpose of the statement.” (O’Mary,
at p. 570.) An employee’s high
place in an organization’s hierarchy is a factor tending to show the employee
has authority to speak, but it is neither necessary nor dispositive, because it
is the “connection between the duties of the employee and the nature of the
statement” that matters. (>Id. at pp. 570-572.)

Respondent
also contends that Marquez’s dinosaur comment is a “stray” remark too
insubstantial to support appellant’s age discrimination claim. But the trial court did not think so, and
neither do we. If believed by a trier of
fact, the remark supports appellant’s claim that the Department shunted him to
the Executive Bureau because he was an older worker. As the
Supreme Court noted in Reid v. Google,
Inc. (2010) 50 Cal.4th 512, 541, “Although
stray remarks may not have strong probative value when viewed in isolation,
they may corroborate direct evidence of discrimination or gain significance in
conjunction with other circumstantial evidence.
Certainly, who made the comments, when they were made in relation to the
adverse employment decision, and in what context they were made are all factors
that should be considered.”

Respondent states
that appellant offered no evidence in opposition to summary judgment that Perez
was present when Marquez uttered her dinosaur comment. Respondent misreads the record. In his pre-summary judgment deposition,
appellant testified that he heard about Marquez’s dinosaur remark from an
employee who attended the meeting where Marquez made the comment, but appellant
could not remember during his deposition the name of that employee. By the time appellant filed his declaration
in opposition to summary judgment, he had recalled that one of the people who
told him about the remark was Alfonso Perez.
Appellant told the court during the summary judgment hearing that he
remembered Perez’s name after his deposition, an explanation that apparently
satisfied the court. (Accord, >Scalf v. D. B. Log Homes, Inc.
(2005) 128 Cal.App.4th 1510, 1522-1523, citing D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1,
21-22 [generally a party opposing summary judgment may not create triable issue
of fact by contradicting deposition testimony, but court may accept party’s
explanation why evidence opposing summary judgment does not contradict
deposition].)href="#_ftn5"
name="_ftnref5" title="">^[5]

Finally,
respondent contends it had legitimate business reasons for its actions against
appellant. According to respondent,
appellant’s work quality and quantity were poor, he did not meet deadlines, he
lacked organizational skills, he used time inefficiently, and he required
excessive supervision. The reasons
respondent cites for its treatment of appellant create triable issues of fact,
however, which we may not resolve on summary judgment. (DeJung
v. Superior Court (2008) 169 Cal.App.4th 533, 553-554 [“trier of fact
could properly take into account . . . statement that [employer wanted]
‘somebody younger, maybe in their 40’s’ ” as evidence creating a triable
fact sufficient to defeat summary judgment despite employer’s purportedly
legitimate reasons for adverse action].)



2. >Race Discrimination Claim Fails



Appellant’s
opening brief contains less than one page of legal discussion of his claim for
race discrimination, and his reply brief
contains even less. He notes that he was
one of four Community Housing Program Managers.
He also notes that he was the only Community Housing Program Manager
reassigned to the Executive Bureau, a reassignment he attributes to age
discrimination. The three other
Community Housing Program Managers were white or Latino. He argues that because he was the only
African-American Community Housing Program Manager, his suffering age
discrimination also constituted race discrimination. Appellant’s argument does not, however,
create a triable issue of race discrimination.
The mere difference in race among the four Community Housing Program
Managers does not by itself establish racial discrimination. To prevail on an appeal from summary
judgment, appellant must offer a reasoned argument supported by citation to
admissible evidence and legal authority showing a triable issue exists. Appellant’s discussion of his race discrimination
claim fails to do so. “ ‘On review
of a summary judgment, the appellant has the burden of showing error, even if
he did not bear the burden in the trial court. . . . “[D]e novo review does not obligate us to
cull the record for the benefit of the appellant in order to attempt to uncover
the requisite triable issues. As with an
appeal from any judgment, it is the appellant’s responsibility to affirmatively
demonstrate error and, therefore, to point out the triable issues the appellant
claims are present by citation to the record and any supporting authority. In other words, review is limited to issues
which have been adequately raised and briefed.”
[Citation.]’ ” (>Bains v. >Moores (2009) 172
Cal.App.4th 445, 455.)



DISPOSITION



The
judgment is reversed and the court is directed to enter a new order denying
respondent’s motion for summary judgment and respondent’s motion for summary
adjudication of appellant’s cause of action for employment discrimination based
on age, and granting respondent’s motion for summary adjudication of appellant’s
cause of action for employment discrimination based on race. The matter is remanded for further
proceedings. Appellant to recover his
costs on appeal.







RUBIN,
Acting P. J.

WE CONCUR:





FLIER,
J.





GRIMES,
J.