Filed 4/24/20 Tillman v. Oak Grove School District CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

VICTOR TILLMAN,

Plaintiff and Appellant,

v.

OAK GROVE SCHOOL DISTRICT,

Defendant and Respondent.

H044607, H044818

(Santa Clara County

Super. Ct. No. 2014 1 CV275061)

Appellant Victor Tillman worked as a substitute custodian for the Oak Grove School District (District) between January 2007 and May 2014. After the District decided to remove Tillman from its list of substitute custodians, Tillman filed a lawsuit against the District alleging causes of action for racial discrimination, retaliation, and wrongful termination in violation of public policy. Tillman, who is African American, alleged that he unsuccessfully applied for a permanent custodian position and was terminated after he asked why he was not hired. The trial court granted the District’s motion for summary judgment, concluding that the District had set forth legitimate, nondiscriminatory, and nonretaliatory reasons for its employment decisions, and there was no evidence that the District knew that Tillman believed he was not hired due to his race.

On appeal, Tillman argues that the trial court erroneously granted summary judgment in the District’s favor because he met his burden to show there were triable issues of material fact. We affirm.

BACKGROUND

1. Tillman’s Employment History with the District
2.
Tillman worked as a substitute custodian for the District between January 2007 and May 2014. During that time, he was one of approximately 15 other individuals who were on the District’s substitute custodian call list. The District continuously maintains the substitute custodian call list and offers assignments to individuals on the list when permanent custodians take time off work.

Miguel Cruz was the District’s maintenance, operations and transportation manager from 2013 to 2016 and was responsible for overseeing the District’s custodial needs. While he was a manager, Cruz assigned Tillman to various substitute custodial jobs, including Tillman’s final assignment with the District on March 12, 2014.

The District was not required to offer any work to Tillman as a substitute custodian, and Tillman had no guarantee of progressive discipline or continued employment. In his deposition, Cruz indicated that the District did not discipline substitute custodians in a formal way. If issues arose with substitute custodians, such as if a substitute custodian failed to thoroughly clean floors, the District would usually inform the substitute of “how to make . . . changes” and would remove the substitute custodian from the call list if changes were not made or if the substitute was not a good fit for the District. On prior occasions, the District had stopped assigning work to substitute custodians after receiving performance complaints that were not limited to a single or a trivial issue.

3. Tillman’s Application for a Permanent Position
4.
When reviewing candidates for a permanent position at the District, the District forms an interview panel, and the panelists ask all candidates the same questions. The panelists rank each candidate based on their responses, the panelists’ rankings are added together, and a cumulative ranking is used to compare the candidates. The panelists discuss the rankings outside the candidates’ presence, and the top candidate as determined by the panelists is offered the job. Occasionally, the individual deemed the top candidate is not the person who scored the most points during the oral interview process. Cruz acknowledged in his deposition that the questions asked during interviews “are more subjective in nature.”

On February 20, 2014, Tillman applied for a permanent night custodian position at Christopher/Edenvale Elementary Schools. In the past, Tillman had generally received positive reviews and praise for his work with the District. Out of the 66 applications the District received for the position, the District moved seven applicants, including Tillman, to the interview process. Tillman was the only African American candidate. Four of the other candidates identified as Hispanic, one candidate identified as Hispanic/Italian, and a final candidate did not disclose his or her race.

To evaluate the candidates for the permanent custodian position, the District formed an interview panel consisting of four panelists, including Cruz. The panelists asked the candidates the same set of questions and ranked the candidates based on how well they were able to relate their skills and experience to the custodian position’s key performance areas. Three of the four panelists ranked Tillman either sixth or seventh out of the seven candidates, and one panelist ranked Tillman third out of the seven candidates. The panelists did not discuss race or national origin when they evaluated the candidates. The highest ranked candidate had worked for the District as a substitute custodian and a substitute teacher’s assistant since 2007 and was recommended by her peers at the District. This candidate was offered the permanent position. Tillman was notified that he was not selected by a letter dated May 16, 2014.

Before this most recent rejection, Tillman had unsuccessfully applied for other permanent positions at the District. He had applied 12 times for a permanent custodian position and had once applied for a storekeeper position. After some of his failed attempts to secure a permanent position, the District tried to help Tillman improve his interview skills through its “African American and Latino Leaders in Equity Development” group.

In his deposition, Cruz acknowledged that on two or three occasions, he participated in interview panels where substitute custodians with less years of experience than Tillman were hired for permanent positions. Cruz recommended hiring the other candidates over Tillman because they were better at articulating their experiences.

No African American has ever been hired as a permanent custodian at the District. During Cruz’s tenure as the operations manager for the District from 2013 until 2016, the District received only two African American applicants, including Tillman, for permanent custodian positions.

5. Complaints About Tillman’s Performance and His Removal From the Substitute Custodian List
6.
On January 23, 2013, Cruz received a complaint from a school site principal that Tillman had caused damage to the walls of a school. On June 19, 2013, the District received a complaint from warehouse staff that Tillman had potentially caused damage to one of the District’s fleet vehicles. On April 15, 2014, a program administrator e mailed Cruz and complained that her staff and students had seen Tillman “smoking a cigarette from the window,” Tillman had talked on his phone while students were quietly reading, and Tillman had not adequately cleaned the school’s floors and bathrooms. Most recently, on May 1, 2014, Cruz received a complaint that Tillman had failed to pick up cones that were left outside a school site.

The District has a policy that prohibits the use of tobacco in the workplace or at a school sponsored activity. After receiving the program administrator’s April 2014 complaint, Cruz spoke with her over the phone, and she confirmed that her staff and students had seen Tillman smoking on school grounds. Subsequently, Cruz recommended to the District’s human resources department that the District no longer use Tillman for substitute custodian assignments. Cruz discussed Tillman’s performance issues with his supervisor and with the District’s human resources coordinator, and they agreed with his recommendation not to use Tillman for substitute custodian assignments after May 23, 2014.

Tillman was never asked if he had smoked on school grounds, and Cruz never inspected the cleanliness of the bathrooms in connection with the April 2014 complaint. In his deposition, Tillman denied that he ever smoked on school grounds.

After he was not selected for the permanent position, Tillman asked several of his superiors, including Chris Jew, why he was not hired and if he was doing anything wrong during his interviews. According to Tillman, he did not “complain” to his superiors or expressly mention discrimination; he merely asked them why he was not hired. Tillman was removed from the substitute custodian call list several weeks after he spoke with Jew.

During the time that he worked for the District, Tillman did not expressly complain to anyone about unfair treatment or discrimination. Nobody at the District ever made derogatory comments about Tillman’s skin color to him, nor did anybody at the District inform Tillman that his skin color was an issue.

7. Tillman’s Lawsuit and the District’s Motion for Summary Judgment
8.
Tillman filed a complaint with the Department of Fair Employment and Housing (DFEH) on August 26, 2014 and received a right to sue letter. On March 23, 2015, Tillman filed a first amended complaint against the District alleging causes of action under the California Fair Employment and Housing Act (FEHA) for racial discrimination (Gov. Code, § 12940, subd. (a)) and retaliation (Gov. Code, § 12940, subd. (h)), as well as a cause of action for wrongful termination in violation of public policy. Tillman sought compensatory damages, punitive damages, costs, and reasonable attorney fees. Tillman alleged that the District discriminated against him and ultimately discharged him from his employment because of his race. He also alleged that the District terminated him after he questioned why he was not hired for the permanent custodian position.

The District filed an answer to Tillman’s complaint and later, moved for summary judgment, or in the alternative, summary adjudication of Tillman’s claims. The District argued that Tillman could not establish a prima facie case of racial discrimination, and, even if he had made a prima facie case, he could not show that the District’s legitimate, nondiscriminatory reasons for its employment decisions were a pretext for racial discrimination. The District further argued that Tillman’s cause of action for retaliation failed as a matter of law because Tillman did not complain about racial discrimination to the District, and his cause of action for wrongful termination in violation of public policy could not be asserted against a public entity like the District. The District also requested that the trial court strike Tillman’s request for punitive damages in accordance with Government Code section 818.

9. The Trial Court’s Ruling on the District’s Motion for Summary Judgment
10.
After a hearing, the trial court granted the District’s motion for summary adjudication on all of Tillman’s causes of action and granted its motion for summary judgment. In its written order, the trial court determined that the District had met its burden to provide legitimate, nondiscriminatory, and nonretaliatory reasons for its employment decisions. Tillman, however, had not produced substantial responsive evidence of the untruth of the District’s stated justifications. The trial court further determined that Tillman had not engaged in protected activity under the FEHA. Finally, the trial court concluded that Tillman could not bring a cause of action for wrongful discharge in violation of public policy or request punitive damages against a public entity like the District.

The trial court entered judgment in the District’s favor on November 1, 2016, indicating that the amount of costs to be awarded to the District would be determined at a later date. Tillman timely appealed from this judgment in case No. H044607. On March 1, 2017, the trial court entered an amended judgment in the District’s favor, awarding $4,050.47 in costs to the District. Tillman timely appealed from the amended judgment in case No. H044818.

DISCUSSION

On appeal, Tillman argues that the trial court erred when it granted summary judgment in the District’s favor because triable issues of material fact existed as to whether the District racially discriminated and retaliated against him.

1. Legal Principles and Standard of Review
2.
Summary judgment is appropriate when there are no triable issues of material fact such that the moving party is entitled to judgment as a matter of law on all causes of action. (Code Civ. Proc., § 437c; Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618 (Schachter).)

We review a trial court’s grant of summary judgment de novo and apply the same three step analysis as the trial court. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860; Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1449.) We identify the causes of action framed by the pleadings, we determine whether the moving party has satisfied its burden of showing the causes of action have no merit because one or more elements cannot be established, or that there is a complete defense to that cause of action, and, finally, if the moving party has made a prima facie showing that it is entitled to judgment as a matter of law, the burden of production shifts and we review whether the party opposing summary judgment has provided evidence of a triable issue of material fact as to the cause of action or a defense. (Code Civ. Proc., § 437c, subds. (o), (p)(2); Pipitone, supra, at p. 1449.)

A party opposing summary judgment cannot “rely upon the allegations or denials of its pleadings” but must set forth “specific facts” beyond the pleadings to show the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) We must view the evidence in the light most favorable to the nonmoving party. (Schachter, supra, 47 Cal.4th at p. 618.)

3. The McDonnell Douglas Framework
4.
Tillman’s complaint alleged that the District discriminated against him based on race in violation of the FEHA (Gov. Code, § 12940, subd. (a)) and retaliated against him for engaging in protected activity in violation of the FEHA (Gov. Code, § 12940, subd. (h)).

“Under a disparate treatment theory, discrimination occurs ‘when the employer “treats some people less favorably than others because of their race, color, . . . or national origin.” ’ ” (Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805, 822 (Frank).) “California has adopted the three stage burden shifting test established by the United States Supreme Court [in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792] for trying claims of discrimination . . . based on a theory of disparate treatment.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz); Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 860 (Serri) [applying McDonnell Douglas framework to case alleging employment discrimination under the FEHA].) The framework established by McDonnell Douglas is also used when evaluating claims of employment retaliation under the FEHA. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)

The three step test described in McDonnell Douglas “reflects the principle that direct evidence of intentional discrimination [or retaliation] is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination [or retaliation] to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.” (Guz, supra, 24 Cal.4th at p. 354.)

First, the plaintiff must present a prima facie case of discrimination or retaliation. The components of a prima facie case may vary, but typically require evidence that “(1) [the plaintiff] 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 [a] discriminatory [or retaliatory] motive.” (Guz, supra, 24 Cal.4th at p. 355.) A plaintiff that satisfies this prima facie showing shifts the burden to the employer to dispel the presumption of discrimination or retaliation, which it may do by articulating a legitimate, nondiscriminatory or nonretaliatory reason for the challenged employment action. (Id. at pp. 355 356.) Once the employer satisfies its burden, the presumption of discrimination or retaliation disappears. The third step of the McDonnell Douglas framework requires the plaintiff have the opportunity “to attack the employer’s proffered reasons as pretexts for discrimination [or retaliation], or to offer any other evidence of discriminatory [or retaliatory] motive.” (Id. at p. 356.)

In the summary judgment context, “ ‘the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff’s prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.’ ” (Serri, supra, 226 Cal.App.4th at p. 861.)

If the employer meets this initial burden, the plaintiff must “ ‘demonstrate a triable issue by producing substantial evidence that the employer’s stated reasons were untrue or pretextual, or that the employer acted with discriminatory [or retaliatory] animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination [or retaliation] or other unlawful action.’ ” (Serri, supra, 226 Cal.App.4th at p. 861.)

“Federal and California courts have acknowledged the difficulty of proving intentional discrimination: ‘Proving intentional discrimination can be difficult because “[t]here will seldom be ‘eyewitness’ testimony as to the employer’s mental process” [Citations.] It is rare for a plaintiff to be able to produce direct evidence or “smoking gun” evidence of discrimination.’ ” (Frank, supra, 149 Cal.App.4th at pp. 822 823.) However, “ ‘ “[c]ircumstantial evidence of ‘ “pretense” must be “specific” and “substantial” in order to create a triable issue with respect to whether the employer intended to discriminate [or retaliate]’ on an improper basis.” ’ ” (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1182.)

5. Racial Discrimination
6.
Tillman alleges that the District discriminated against him based on his race by removing his name from the substitute custodian list and by not hiring him for a permanent position. We conclude that even if we assume that Tillman satisfied his burden to present a prima facie case of racial discrimination, the District met its burden to dispel the presumption of discrimination by articulating legitimate, nondiscriminatory reasons for its challenged employment decisions. (Guz, supra, 24 Cal.4th at p. 355.) Tillman, however, fails to produce substantial evidence that the District’s stated reasons were untrue or pretextual. (Serri, supra, 226 Cal.App.4th at p. 861.)

a. Removal From Substitute Custodian List
b.
i. The District Articulated Legitimate, Nondiscriminatory Reasons For Its Employment Decision
ii.
In response to Tillman’s lawsuit, the District proffered legitimate, nondiscriminatory reasons for its decision to remove Tillman from the substitute custodian list, namely that it had received multiple complaints about Tillman’s performance.

In January 2013, Cruz received a complaint that Tillman had caused damage to the walls at one of the District’s schools. In June 2013, Cruz again received a complaint that Tillman may have caused damage to one of the District’s fleet vehicles. In April 2014, Cruz received a complaint from a program administrator that her staff and students had seen Tillman smoking a cigarette, Tillman had talked on the phone while students were quietly reading, and Tillman had not adequately cleaned the facility’s floors and bathrooms. Cruz spoke with the program administrator, who confirmed that staff and students had seen Tillman smoking on school grounds in violation of the District’s policies. Finally, in May 2014, Cruz received a complaint that Tillman failed to pick up cones that were left outside a school site.

The District’s nondiscriminatory explanation for its decision to remove Tillman from the substitute custodian list is credible on its face. As a result, the District satisfied its burden under the second step of the McDonnell Douglas framework. (Guz, supra, 24 Cal.4th at p. 357.)

iii. Tillman Does Not Meet His Burden to Demonstrate That The District’s Explanation Was a Pretext For Discrimination
iv.
Since the District met its burden under the McDonnell Douglas framework, Tillman was required 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 discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.’ ” (Serri, supra, 226 Cal.App.4th at p. 861.)

Tillman argues that he presented evidence that the complaint that he had smoked on school grounds was not credible, generating an inference of pretext. He argues that he is not required to discredit each of the District’s legitimate reasons, and he satisfied his burden to demonstrate a triable issue by disputing the smoking complaint. (See Tomasso v. Boeing Co. (2006) 445 F.3d 702, 707 [“ ‘If the defendant proffers a bagful of legitimate reasons, and the plaintiff manages to cast substantial doubt on a fair number of them, the plaintiff may not need to discredit the remainder.’ ”].)

First, Tillman claims that the smoking complaint is not credible because it is not supported by admissible evidence. The written complaint received by Cruz stated that Tillman was seen “smoking a cigarette from the window” of a school building, not that he was seen smoking on school grounds. In his deposition, Cruz stated that he spoke with the program administrator over the phone, and she confirmed that she had seen Tillman smoke on school grounds. Cruz also summarized his conversation with the program administrator in his declaration, describing that the program administrator “affirmed that her staff and students witnessed [Tillman] smoking on school grounds.” Tillman characterizes the program administrator’s oral complaints, which were described in Cruz’s declaration and in his deposition, as inadmissible hearsay.

Tillman’s evidentiary objection has not been preserved for appellate review. In his response to the District’s separate statement of undisputed facts, Tillman characterized Cruz’s declaration and deposition as inadmissible hearsay. However, Tillman did not file a separate document setting forth his objection and did not submit a proposed order for the trial court to use when ruling on the objection as required by California Rules of Court, rule 3.1354. “The rules requiring evidentiary objections to be filed separately and not repeated in the separate statement are to allow the trial court to consider each piece of evidence and all of the objections applicable to that piece of evidence separately. . . . [I]nterposing objections into the separate statement defeats the goal of allowing the trial court to quickly and efficiently determine what particular piece of evidence is admitted and what is not. This is because the separate statement is focused on individual facts, which may be supported by the same or different pieces of evidence. A trial court would be forced to wade through all of the facts in order to rule on a particular piece of evidence.” (Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 9.) Unsurprisingly, the trial court did not rule on Tillman’s objection, and its failure to rule was not an abuse of discretion. (Id. at pp. 8 9.)

Tillman also waives his argument over the admissibility of the program administrator’s oral complaint because he does not develop it on appeal. Tillman briefly argues, without citation to any authority or further legal analysis, that the trial court “relied upon the hearsay set out in the Declaration of Miguel Cruz.” “When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784 785 (Badie).)

Moreover, even if we assume that Tillman has not waived his evidentiary objection, we would find it to be without merit. The program administrator’s oral statement was not offered to prove that Tillman actually smoked on school grounds; it was offered to show that the complaint was made in the first place and its effect on the listener, Cruz. It is therefore not hearsay. (Evid. Code, § 1200, subd. (a) [hearsay is an out of court statement that is offered to prove the truth of the matter stated].)

Second, Tillman insists that because he denies that he smoked on school grounds, his alleged violation of school policy a “disputed material fact.” We disagree. The fact that Tillman disputes whether he smoked on school grounds does not, without more, create a triable issue of material fact. “[I]f nondiscriminatory, [the District’s] true reasons need not necessarily have been wise or correct.” (Guz, supra, 24 Cal.4th at p. 358.) “ ‘ “The [employee] cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. [Citations.] Rather, the [employee] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence,’ [citation], and hence infer ‘that the employer did not act for [the asserted] non discriminatory reasons.’ ” ’ ” (Serri, supra, 226 Cal.App.4th at p. 863.) “It is the employer’s honest belief in the stated reasons for firing an employee and not the objective truth or falsity of the underlying facts that is at issue in a discrimination case.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 436.)

Tillman fails to demonstrate that the District’s explanation that he was removed from the substitute custodian list because Cruz received a complaint that Tillman had smoked on school grounds was either implausible or incoherent. The written complaint did not expressly state that Tillman was seen smoking on school grounds, but Cruz spoke with the program administrator over the phone, and she confirmed that staff and students had seen Tillman smoking on school grounds. “[I]n an appropriate case, an inference of dissembling may arise where the employer has given shifting, contradictory, implausible, uninformed, or factually baseless justifications for its actions.” (Guz, supra, 24 Cal.4th at p. 363.) No such inference arises in this case because there is no evidence in the record that indicates that the District should have disbelieved the program administrator’s complaints or comments.

Next, Tillman argues that discrimination can be inferred by the fact that he was not given a chance to correct or explain his behavior, nor was he “made aware of the [April 2014] complaint.” However, it is undisputed that the District was not required to offer Tillman any work as a substitute custodian, and Tillman had no guarantee of progressive discipline or continued employment with the District.

Tillman insists that the evidence demonstrates that the District failed to follow its own internal disciplinary policies, relying on a statement made by Cruz in his deposition. In his deposition, Cruz stated that the District had no formal disciplinary procedures for substitute custodians, but if there were minor issues with a substitute custodian’s performance, the District usually informed the substitute of how to make changes.

Tillman’s argument mischaracterizes Cruz’s statements and ignores Cruz’s clarification that this type of informal discipline was usually followed if a substitute custodian made minor or discrete errors, such as failing to thoroughly clean floors. Cruz did not blanketly assert that substitute custodians who were the subject of repeated complaints or a complaint that alleged a violation of school policy—such as smoking on school grounds—were required to be disciplined in a certain manner. There is no evidence that the District flagrantly ignored its own internal practices. In fact, Cruz asserted in his declaration that the District had previously ceased giving assignments to substitute custodians after receiving complaints about their work, especially in situations where the complaints were not limited to a single or trivial performance issues.

At best, Tillman’s evidence raises triable issues “concerning whether the actions of [the District] were reasonable and well considered,” such as its decision not to further investigate some of the complaints or advise Tillman of his perceived deficiencies before removing him from the substitute custodian list. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004 (Hersant).) However, the relevant issue is whether the District unlawfully discriminated against Tillman, not whether it deviated from best employment practices.

Tillman fails to point to evidence in the record that would raise a rational inference that the District’s actions were racially motivated or that its stated reasons for Tillman’s removal were a pretext for racial discrimination. “It is not sufficient for an employee to make a bare prima facie showing or to simply deny the credibility of the employer’s witnesses or to speculate as to discriminatory motive. [Citations.] Rather it is incumbent upon the employee to produce ‘substantial responsive evidence’ demonstrating the existence of a material triable controversy as to pretext or discriminatory animus on the part of the employer.” (Serri, supra, 226 Cal.App.4th at p. 862.) Thus, Tillman does not meet his secondary burden under the McDonnell Douglas framework.

c. Permanent Custodian Position
d.
Tillman also alleges that the District discriminated against him based on his race by deciding not to hire him for a permanent position. Before we address the merits of this claim, we must first determine which employment actions are at issue—Tillman’s most recent rejection for the permanent custodian position at Christopher/Edenvale Elementary Schools, or all his prior unsuccessful attempts at securing permanent positions with the District.

i. Continuing Violation Theory
ii.
Under the FEHA, an employee must exhaust his or her administrative remedies by filing a complaint with the DFEH and obtaining a right to sue letter before a lawsuit may be filed. (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492.) Generally, there is a one year statute of limitations for complaints filed with the DFEH alleging a violation of the FEHA. (Ibid.) Here, Tillman filed a complaint with the DFEH on August 26, 2014 and received a right to sue letter. It is undisputed that between August 26, 2013, and August 26, 2014, the applicable statutory period, the only permanent position that Tillman applied for that he did not receive was the night custodian position at Christopher/Edenvale Elementary Schools. Tillman’s other prior unsuccessful applications to permanent positions occurred outside the limitations period.

Despite the one year statute of limitations, under the continuing violation doctrine, plaintiffs can, in certain circumstances, recover damages for unlawful practices that fall outside the limitations period if the unlawful practices continue into the current limitations period. (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1402.) For example, in Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, the California Supreme Court concluded that an employer’s persistent failure to reasonably accommodate a disability or failure to eliminate a hostile work environment can constitute a continuing violation if the unlawful actions are “(1) sufficiently similar in kind—recognizing, as this case illustrates, that similar kinds of unlawful employer conduct, such as acts of harassment . . . may take a number of different forms [citation]; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence.” (Id. at p. 823.) Courts have extended the continuing violation doctrine to racial harassment claims. (See Nazir, supra, 178 Cal.App.4th at p. 270.)

On appeal, Tillman insists that all his prior rejections are independently actionable under a continuing violation theory. However, Tillman’s opening brief does not cite to any facts and does not provide any legal analysis on how the District’s previous hiring decisions constitute a continuing violation as described in Richards. Tillman merely cites to Richards and argues that because he was not made aware that his race was an issue or potential issue when he was passed over for past permanent positions, he could not have been expected to immediately file a claim with the DFEH. Tillman’s failure to develop his argument waives it on appeal. (Badie, supra, 67 Cal.App.4th at p. 784.) As a result, the trial court did not err when it concluded that Tillman’s claims of discrimination based on employment applications made prior to August 26, 2013, are time barred.

iii. The District Articulated Legitimate, Nondiscriminatory Reasons For Its Hiring Decision
iv.
With respect to Tillman’s sole actionable claim—the District’s decision not to hire him for the permanent custodian position at Christopher/Edenvale Elementary Schools—we find that the District met its burden to articulate legitimate, nondiscriminatory reasons for its hiring decision, namely that Tillman did not perform as well as the successful candidate during the oral interview and was not as highly ranked by the interview panelists who evaluated the candidates for the position.

It is undisputed that the District received 66 applications for the position, and seven of the candidates, including Tillman, were moved to the interview process. The candidates were asked the same questions by the interview panelists, and the panelists ranked the candidates based on their responses. The panelists assessed the candidates’ interviews based on their ability to orally relate their skills and experience to the key performance areas of the custodian position. Three of the four interview panelists ranked Tillman either sixth or seventh out of seven candidates, and one interview panelist ranked Tillman third out of seven candidates. The job was offered to the highest ranked candidate, who had previously worked for the District as a substitute custodian and as a substitute teacher’s assistant since 2007 and had recommendations from her peers.

The District’s stated reasons for its hiring decision—that the candidate who was offered the position performed better during the oral interview—appears credible, and the District has satisfied its burden to articulate a legitimate, nondiscriminatory reason for its hiring decision. (Guz, supra, 24 Cal.4th at p. 357.)

v. Tillman Does Not Meet His Burden to Demonstrate That The District’s Explanation Was a Pretext For Discrimination
vi.
The burden then shifted to Tillman to demonstrate that the District’s stated reasons were a pretext for discrimination. (Serri, supra, 226 Cal.App.4th at p. 861.) Tillman argues that he satisfied his burden by presenting evidence that shows that the District acted with racial animus when it declined to hire him.

First, Tillman argues that the District did not show that its interview process was job related, objective, or consistently applied. He insists that the subjective nature of the District’s candidate selection process is a classic badge of discrimination that facilitates racial bias. Tillman, however, does not point to any evidence in the record that tends to show that the interview process was used to mask discriminatory motives. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69 [circumstantial evidence of pretense must be specific and substantial to create a triable issue with respect to whether the employer intended to discriminate].) Although “subjective evaluations may lend themselves to discriminatory abuse and should, therefore, be closely scrutinized[,] . . . there is nothing inherently suspect in the use of subjective criteria. ‘ “Indeed, subjective evaluations of a job candidate are often critical to the decisionmaking process, and if anything, are becoming more so in our increasingly service oriented economy. . . .” ’ ” (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1005.) Standing alone, the subjective nature of the interview process does not generate an inference of bias or discrimination. “[A]bsent some evidence that [the business] made its decision based upon race, the mere use of subjective criteria does not permit us to second guess the employer’s business judgment.” (Ibid.)

Here, the objective differences between the qualifications of Tillman and the candidate that was hired were not particularly significant, and the bare fact that she was hired over Tillman does not generate an inference that the District harbored bias. Tillman’s own subjective belief that he was more qualified than the selected candidate and his speculation that the District was racially motivated is insufficient to raise a triable issue of material fact. (Horn, supra, 72 Cal.App.4th at p. 816 [“an employee’s subjective personal judgments of his or her own competence alone do not raise a genuine issue of material fact”]; Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1144 1145 (Dollinger) [speculation is insufficient to raise a triable issue of material fact].)

Second, Tillman argues that Cruz conceded in his deposition that there have been situations where “the number one candidate [determined by the interview panel] is not the person who scored the most points in the oral interview process.” He claims that Cruz’s statement demonstrates that the District did not follow its own procedures when ranking candidates or hiring them. Tillman misconstrues the evidence. According to the District, after interviews are completed, the interview panelists typically discuss the candidates’ rankings outside the presence of the candidates, and the top candidate as determined by the panelists is offered the job. There is no evidence that the District had a policy that mandated that the individual who scored the highest at the oral interview receive the job offer or be ranked the highest by the interview panelists following their discussion. Cruz’s statement—that the candidate who scores the highest in the interview is not always the top candidate as determined by the interview panelists—does not contradict the District’s stated employment practices and does not generate an inference of discrimination.

Next, Tillman claims that discrimination can be inferred from the District’s failure to articulate the objective qualifications required for the permanent custodian position. Quoting Sada v. Robert F. Kennedy Med. Ctr. (1997) 56 Cal.App.4th 138, Tillman argues that “when an employer seeks to establish on summary judgment that an applicant was not qualified for a job, it should describe the job qualifications in terms that are as specific and objective as possible.” (Id. at p. 151.) Tillman’s argument is unpersuasive because the District does not dispute that Tillman met the job’s required minimum qualifications. Tillman was offered an interview, but the panelists selected another qualified candidate for the permanent position.

Tillman also argues that his previous rejections for permanent positions demonstrates that he was subjected to illegal racial discrimination over a period of years. Although we previously determined that these additional employment decisions are not individually actionable, we agree with Tillman that they can be relevant to show the existence of racial animus. In AMTRAK v. Morgan (2002) 536 U.S. 101, 112, the United States Supreme Court determined that evidence of conduct outside of the applicable limitations period can be admissible as “ ‘relevant background evidence’ ” to show there was a racial motivation for the discrete act that occurred during the applicable limitations period. (Ibid.)

The evidence, however, does not support Tillman’s assertion that the District’s prior hiring decisions were racially motivated. Cruz acknowledged that he had participated in interview panels “two or three” times where substitute custodians with less years of custodial experience than Tillman were hired for permanent positions. Cruz explained that he recommended hiring the other candidates over Tillman because they were better able to articulate their experience. We know little else about the successful candidates, such as whether they came with extensive recommendations or whether they had other relevant work experience that translated well to a custodian position. Moreover, Tillman alleged that he unsuccessfully applied for permanent custodian position 12 times. There is nothing in the record about Tillman’s approximately nine other unsuccessful employment applications. Without more, the evidence is insufficient to show that the District’s prior hiring practices amounted to racial discrimination. “[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.’ ” (Dollinger, supra, 199 Cal.App.4th at pp. 1144 1145).)

Finally, Tillman claims that the District’s treatment of other African-American applicants demonstrates that the District was motivated by racial animus when it declined to hire him. This assertion is based purely on speculation. It is undisputed that no African American has been ever hired as a permanent custodian for the District, but there is little evidence about how many African American candidates have applied for permanent positions over the years. The limited information in the record is that between 2013 until 2016, when Cruz was the District’s operations manager, the District received only two African American applicants for permanent custodian positions, one being Tillman. There is no evidence in the record about this second African American applicant, such as his or her qualifications, or the qualifications of the candidate that was ultimately hired.

For these reasons, we conclude that Tillman has not met his burden of producing substantial evidence that the District’s stated reasons for its hiring decision were untrue or pretextual, or that the District acted with discriminatory animus. (Serri, supra, 226 Cal.App.4th at p. 861.)

e. Conclusion
f.
Tillman fails to meet his burden to demonstrate that the District’s stated reasons for removing him from the substitute custodian list and for declining to hire him were untrue or pretextual. As a result, the trial court did not err in granting the District’s motion for summary adjudication on Tillman’s cause of action for racial discrimination.

7. Retaliation
8.
Next, Tillman claims that the District retaliated against him in violation of the FEHA when it removed him from the substitute custodian list. He insists that he was removed from the list shortly after he asked one of his superiors, Jew, why the District decided not to offer him a permanent position at Christopher/Edenvale Elementary Schools.

To establish a prima facie case of retaliation under the FEHA, a plaintiff must show “(1) he or she engaged in ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz, supra, 36 Cal.4th at p. 1042.) Under Government Code section 12940, subdivision (h), a plaintiff engages in protected activity by “oppos[ing] any practices forbidden” under the FEHA or by filing a complaint, testifying, or assisting in a proceeding under the FEHA. Here, Tillman did not file a complaint, testify, or assist in a proceeding under the FEHA. At issue is whether a trier of fact could properly find that Tillman opposed a practice forbidden by the FEHA when he asked Jew why he was not hired for the permanent custodian position.

Tillman relies on Yanowitz, supra, 36 Cal.4th 1028 and argues that he was not required to bluntly complain about discrimination in order to engage in protected activity. In Yanowitz, the California Supreme Court considered whether an employee, who refused to terminate a sales associate on the basis of her appearance, had engaged in protected activity under the FEHA. (Id. at pp. 1045 1046.) The employee’s superior told the employee to dismiss the sales associate multiple times, and the employee asked her superior for an “ ‘adequate justification’ ” after each request. (Id. at p. 1046.) Ultimately, the employee did not carry out the dismissal order. She did not complain to her immediate supervisors or to the human resources department, and she never expressly told her superior that she believed his request was discriminatory. (Id. at pp. 1045 1046.)

Yanowitz concluded that the employee had presented sufficient evidence to satisfy the protected activity element of her prima facie case. (Yanowitz, supra, 36 Cal.4th at p. 1048.) Yanowitz held that “when the circumstances surrounding an employee’s conduct are sufficient to establish that an employer knew that an employee’s refusal to comply with an order was based on the employee’s reasonable belief that the order is discriminatory, an employer may not avoid the reach of the FEHA’s antiretaliation provision by relying on the circumstance that the employee did not explicitly inform the employer that she believed the order was discriminatory.” (Id. at p. 1046.) Yanowitz determined that based on the evidence, a trier of fact could properly find that the superior knew that the employee refused to comply with his order to terminate the sales associate because she believed that such an action was discriminatory on the basis of sex, citing to the employee’s repeated refusals to terminate the sales associate unless her superior provided an “ ‘adequate justification.’ ” (Id. at p. 1048.)

Yanowitz establishes that the relevant question is not whether an employee made a formal complaint of discrimination but whether an employee’s communications or actions sufficiently conveyed to the employer that the employee believed that an action was discriminatory. (Yanowitz, supra, 36 Cal.4th at p. 1047.) In its decision, Yanowitz reiterated that “[s]tanding alone, an employee’s unarticulated belief that an employer is engaging in discrimination will not suffice to establish protected conduct for the purposes of establishing a prima facie case of retaliation, where there is no evidence the employer knew that the employee’s opposition was based upon a reasonable belief that the employer was engaging in discrimination.” (Id. at p. 1046.)

Unlike in Yanowitz, the undisputed facts in this case do not permit a reasonable trier of fact to find that Tillman engaged in protected activity. The undisputed facts are that Tillman was removed from the substitute custodian list several weeks after he asked Jew about the District’s decision not to hire him for the permanent custodian position. Tillman provided little detail about the substance of his conversation with Jew, but he stated that he did not complain to Jew about discrimination. Tillman also asked several of his other superiors, aside from Jew, about the district’s hiring decision, but Tillman said he also did not complain to them about discrimination and solely asked them why he was not hired and if he was doing anything wrong during interviews. Moreover, Tillman does not dispute that during the time that he worked for the District, he did not expressly complain to anyone about unfair treatment or discrimination.

There is simply no evidence from which a trier of fact could infer that the District knew that Tillman was concerned about discrimination when he asked Jew, or any of his other superiors, why he was not hired. “[C]omplaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct.” (Yanowitz, supra, 36 Cal.4th at p. 1047.) As a result, Tillman has not established a prima facie case of retaliation under the FEHA, and the trial court did not err when it granted the District’s motion for summary adjudication of this claim.

9. Disputed Facts
10.
Finally, Tillman argues that the trial court erred when it granted summary judgment because he disputed 23 of the material facts listed by the District in its separate statement. Citing Nazir, supra, 178 Cal.App.4th 243, he insists that by inserting a “fact” into its separate statement, the District conceded the fact’s materiality. (Id. at p. 252.) Thus, by disputing any of the District’s material facts, Tillman claims that he created a triable issue, precluding summary judgment.

The perfunctory nature by which Tillman raises this argument waives it on appeal. (Badie, supra, 67 Cal.App.4th at p. 784 [failure to support point with reasoned argument and citations to authority waives it on appeal].) Tillman insists that he disputed some of the District’s facts—such as whether he actually smoked on school grounds, whether the District’s undisputed facts were based on inadmissible hearsay, and whether the District failed to comply with its own disciplinary policies—and we addressed these purported disputes in the preceding sections of this opinion. However, to the extent Tillman argues that there are additional factual disputes, these disputes are not clearly identified or analyzed in his opening brief, rendering his arguments waived.

11. Conclusion
12.
The trial court properly granted the District’s motion for summary adjudication on Tillman’s causes of action for racial discrimination and retaliation, and Tillman does not challenge the trial court’s decision to grant the District’s motion for summary adjudication on his cause of action for wrongful termination in violation of public policy. Thus, the trial court properly granted summary judgment in the District’s favor.

DISPOSITION

The judgment and the amended judgment are affirmed.

Premo, Acting P.J.

WE CONCUR:

Elia, J.

Mihara, J.

Tillman v. Oak Grove School District

H044607; H044818