Filed 7/2/20 Aguilar v. Ventura County Sheriff’s Office CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

DONALD AGUILAR et al.,

Plaintiffs and Appellants,

v.

VENTURA COUNTY SHERIFF’S OFFICE et al.,

Defendants and Respondents.

2d Civil No. B296725

(Super. Ct. No. 56-2017-00500852-CU-OE-VTA)

(Ventura County)

Two sheriff’s captains, Donald Aguilar and Melissa Smith, sued the Ventura County Sheriff’s Office and the County of Ventura (collectively, County), claiming they were not promoted based on their race, national origin and (in Smith’s case) gender. They appeal from the trial court’s grant of summary judgment against them. They contend triable, material facts support their discrimination claims. We affirm.

FACTUAL AND PROCEDURAL HISTORY

The Ventura County Sheriff’s Office employs eight commanders. In 2016, they included five male Caucasians, two female Caucasians, and one male who identified as Native American or Hispanic (Rick Barrios).

In 2016, Sheriff Geoff Dean began a process to fill three anticipated commander vacancies. A fourth vacancy was created in 2017. Dean anticipated filling the vacancies by promoting captains from within the department. The process included a pass-fail oral examination conducted by outside raters, interviews with the sheriff’s executive staff, and numerical rankings and comments from the eight commanders. Dean would make the final selections. The applicants included Aguilar, who is an Hispanic male of Mexican descent, and Smith, an African-American female.

The selection process differed from that used in 2014. In 2016, commanders made comments in writing rather than verbally, the comments were obtained before the oral examination and executive staff interviews, and the comments were compiled into a chart.

One commander e-mailed five other commanders asking whether her intended ratings and comments were “off base.” Barrios and a Caucasian male commander were not included in the e-mail. Two commanders responded to the e-mail without copying the other recipients.

The promotional process was mentioned at a regularly scheduled commanders’ meeting, at which the commanders were told to provide their honest opinions. Barrios was not present. At a later meeting, Dean planned to discuss the commanders’ opinions and rankings. During that meeting, he e-mailed a rating chart to the commanders but also inadvertently sent it to other personnel. While discussing this error, he told the commanders they could leave the meeting. Barrios left, but when nobody else came out, he rejoined the meeting. Dean stated that all the commanders provided input at the meeting, but he never had a full discussion with them. Three commanders stated there was no discussion of the candidates.

The commanders ranked Aguilar in the bottom three of the 11 candidates. They commented that he had not distinguished himself, had difficulty operating under stress, and had poor time management and multitasking skills. Aguilar previously had been the sheriff’s personal adjutant, and Dean’s written evaluation for that assignment contained only positive comments. But Dean had told command staff that Aguilar was having a difficult time getting his work done and that he wanted to replace Aguilar because he was not happy with his performance.

Smith was also ranked by the commanders in the bottom three. They commented she was divisive, condescending, corrosive, unable to establish or maintain effective working relationships or communications with others, and lacked the ability to motivate through positive means. These criticisms were not set forth in her previous performance evaluations. But commanders and sergeants had verbally complained that they had problems working with her, she had difficulty managing her subordinates, played favorites, and was vindictive.

The three captains promoted in 2016 were Caucasian males. In 2017, Smith withdrew her application and a fourth Caucasian male was promoted.

Dean stated he selected the most qualified candidates. He said he did not base his selections on appellants’ race, national origin, or gender. He said their races, national origins and Smith’s gender “could have only helped their chances of promotion,” and if two candidates were equally qualified, he would select the person who would further his goal of diversity.

Dean stated he did not promote Aguilar because Aguilar was often flustered, fell behind on tasks, and was the only candidate disciplined in the previous five years. Dean stated he did not select Smith because she was difficult to work with, did not use positive reinforcement to motivate subordinates, and lacked the interpersonal and leadership skills to be an effective commander.

Two months after the 2016 promotions, the sheriff received an anonymous complaint against Smith. An outside investigator sustained the allegation that she disparaged one employee in front of another, but did not sustain the allegation of retaliation. She was reprimanded.

During Dean’s tenure, he promoted 11 people to commander, including 10 Caucasians and 10 males. He promoted 32 people to captain, 28 of whom were Caucasian. In 2016, of 23 captains, Aguilar was the only Hispanic and Smith was the only African-American.

The complaint alleged race, national origin and gender discrimination, and failure to take reasonable steps to prevent discrimination. (Gov. Code, § 12940, subds. (a) & (k).) The trial court granted the County’s motion for summary judgment and entered judgment for the County.

DISCUSSION

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “A triable issue of material fact exists if the evidence and inferences therefrom would allow a reasonable juror to find the underlying fact in favor of the party opposing summary judgment.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1158 (Featherstone).)

On appeal of a grant of summary judgment, our review is de novo. (Coral Construction, Inc. v. City and County of San Francisco (2010) 50 Cal.4th 315, 336.) “‘[W]e review the trial court’s rulings and not its reasoning.’ [Citation.]” (Ibid.) We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in their favor. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274.)

Discrimination claims are evaluated using a three-stage burden-shifting test. (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-804; Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 214 (Harris).) “[A] plaintiff has the initial burden to make a prima facie case of discrimination by showing that it is more likely than not that the employer has taken an adverse employment action based on a prohibited criterion. . . . The employer [then] may . . . produc[e] evidence that its action was taken for a legitimate, nondiscriminatory reason. . . . The plaintiff must then show that the employer’s proffered nondiscriminatory reason was actually a pretext for discrimination, and the plaintiff may offer any other evidence of discriminatory motive. The ultimate burden of persuasion on the issue of discrimination remains with the plaintiff.” (Harris, at pp. 214-215.)

“‘[T]o avoid summary judgment, an employee claiming discrimination must offer substantial evidence that the employer’s stated nondiscriminatory reason . . . was untrue or pretextual, or evidence the employer acted with a discriminatory animus[] . . . such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.’ [Citation.]” (Nakai v. Friendship House Assn. of American Indians, Inc. (2017) 15 Cal.App.5th 32, 39 (Nakai); Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.) It is not enough to raise triable issues of fact that the employer’s reasons were not sound, or were generally unfair. (Hersant, at p. 1005.) “[A]n 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 v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 361 (Guz).)

Prima facie case

Generally, a plaintiff may establish a prima facie case by “provid[ing] evidence that (1) [they were] a member of a protected class, (2) [they were] qualified for the position [they] sought or [were] performing competently in the position [they] held, (3) [they] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz, supra, 24 Cal.4th at p. 355.) Appellants satisfy at least the first three criteria. They are members of protected classes, were qualified, and were denied promotions that went to Caucasian males. The County does not dispute that a prima facie case was made.

County’s nondiscriminatory reasons

The County rebutted appellants’ prima facie case by articulating legitimate and nondiscriminatory reasons for the County’s selections. Dean stated he based his selections on the qualities needed to be a successful commander, including excellent interpersonal skills, well-rounded experience, ability to motivate others to accomplish tasks, ability to multitask, and ability to make decisions regarding SWAT deployment by obtaining candid information from others.

The first applicant selected had strong communication and interpersonal skills and recently oversaw training at the Sheriff’s Academy. The second applicant selected had excellent interpersonal skills, had been the acting chief of police for a contract city, oversaw the aviation unit, and had successfully led and managed groups and difficult projects. The third applicant selected was highly respected by his peers with a good temperament, provided well-thought-out decisions, and had proven himself as head of the mounted unit and as a problem-solver on the board of the deputies’ union.

Dean also provided nondiscriminatory reasons for not selecting appellants. Aguilar had difficulty operating under stress and poor time management and multitasking skills. Smith was recognized as divisive, unable to maintain effective working relationships or communications, and lacked the ability to motivate through positive means. Consequently, the burden shifted back to appellants to show pretext. (Harris, supra, 56 Cal.4th at pp. 214-215.)

Pretext

Appellants had the burden to show the neutral reasons given by the County were “‘“pretext” or cover-up for unlawful discrimination.’” (Nakai, supra, 15 Cal.App.5th at p. 39.) “[T]he ultimate issue is simply whether the employer acted with a motive to discriminate illegally,” and “not whether [the] employer’s decision was ‘wrong or mistaken,’ or whether [the] employer is ‘wise, shrewd, prudent, or competent.’” (Guz, supra, 24 Cal.4th at p. 358, original italics.) Although a plaintiff may rely on inferences to establish a factual dispute regarding motive, the inferences must be reasonable. (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1529-1530 (McGrory).) Nonspeculative evidence must show a causal link between a prohibited motivation and the employment decision. (Featherstone, supra, 10 Cal.App.5th at p. 1159.) The evidence cited by appellants does not meet this burden.

For example, the commander who initiated the e-mail exchange about her rating of some applicants stated she sought input from the commanders of two applicants (not appellants) with whom she was unfamiliar. Cast in that light, her failure to include Barrios and a Caucasian male commander in this exchange is too speculative a basis to establish discriminatory intent in the promotional process.

Nor is discrimination shown by the unexplained absence of Barrios at one commanders’ meeting, or his absence at a portion of another meeting. Drawing an inference of discrimination from these facts requires too much speculation. And appellants’ claim that Dean asked only Barrios to leave the meeting is belied by the record, which provides no support whatsoever for this assertion.

1. Consideration of race and gender

Appellants argue that pretext is shown by Dean’s consideration of race and gender to further his goal of diversity. But the law prohibits “an employer, because of the race, . . . national origin, . . . sex, [or] gender . . . to discriminate against the person.” (Gov. Code, § 12940, subd. (a), italics added; Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1317 [employer “‘treats some people less favorably than others’”].) Consideration of these factors in favor of appellants is not evidence of discrimination against them. It instead supports the opposite conclusion. (See Grutter v. Bollinger (2003) 539 U.S. 306, 334 [upholding consideration of race or ethnicity as “plus” factor to increase diversity in law school admissions]; Ricci v. DeStefano (2009) 557 U.S. 557, 583 [challenges to race-conscious remedial measures when challenged by nonminority employees].)

2. Use of stereotypes

Contrary to appellants’ claims, there is no evidence here of “derogatory, pejorative, or demeaning statements reflecting antipathy towards [protected groups] by those directly involved in the decision . . . or by anyone who influenced the decision-makers.” (McGrory, supra, 212 Cal.App.4th at p. 1534.)

Appellants have not shown that the context of a commander’s description of Smith as “a bull in a china shop” reasonably gives rise to an inference of racial or gender stereotyping. The commander explained, “She had her own opinions about things, and she tended to trample on other opinions that were worth her at least listening to, and kind of proceeded with her own ideas about how things should be done.”

Appellants claim that the criticisms of Smith demonstrated that the commanders relied on an “angry African-American woman” stereotype. We disagree.

This case is not like Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 235, where “some of the partners reacted negatively to Hopkins’ personality because she was a woman,” suggested she take “‘a course at charm school,’” and advised her to “‘walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.’” Gender animus was demonstrated by a partner’s comments “‘that he could not consider any woman seriously as a partnership candidate and believed that women were not even capable of functioning as senior managers.’” (Id. at p. 236.) No such evidence of stereotyping or gender or racial bias is present here.

Nor were the criticisms of Smith similar to the traits praised for the successful candidates. The descriptions of Smith as condescending, contemptuous, corrosive, polarizing, and not motivating subordinates are not equivalent to the descriptions of successful candidates as “stern and not afraid to discipline . . . yet . . . the first to create a great atmosphere,” or “not afraid to tactfully speak his mind.”

3. County’s honest belief and lack of paper trail

Appellants claim the County did not “honestly believe,” and even lied about, the reasons given for passing them over for promotions. When dishonesty is shown, it may suggest the employer lied to hide discriminatory reasons, but there must “be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer’s actions.” (Guz, supra, 24 Cal.4th at p. 361, original italics.) There is no such evidence here.

As noted by the trial judge, the contrast between the negative evaluations of appellants during the promotional process and their previous positive evaluations is “striking.” But the County’s explanation of this discrepancy provides further context. At the same time Dean wrote Aguilar’s evaluations, he complained to commanders that Aguilar had trouble getting his work done and he wanted to replace him. Dean stated he inflated the ratings and comments in Aguilar’s performance evaluations to be supportive of his career. This explanation is also consistent with Smith’s statement that she (and others) sometimes omitted negative characteristics from written performance evaluations, and instead discussed them informally. While the negative comments about Smith were not reflected in her written performance evaluations, commanders and sergeants had previously complained she had those traits.

In any event, the absence of negative comments in appellants’ performance evaluations does not establish that the reasons for the promotion decisions were pretext for discrimination. (Guz, supra, 24 Cal.4th at p. 361; see Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1010 [failure to document poor job performance did not raise inference of pretext], distinguishing McGinest v. GTE Service Corp. (9th Cir. 2004) 360 F.3d 1103, 1123 [large company had no “paper trail” to confirm claim of hiring freeze].)

Appellants’ claim that “Dean literally instructed his commanders to provide him false and unjustified reasons to deny Plaintiffs promotion in 2016” simply misrepresents the evidence. No such instruction is found in the record.

Nor do the County’s actions after the promotions demonstrate that it did not believe the reasons it provided. Appellants’ claim that that the anonymous complaint against Smith was “fabricated” is not supported by the record. And the fact that appellants received important assignments after the promotional process concluded does not establish that their stated shortcomings for the position of commander were untrue.

Nor is pretext shown by Dean’s successor, Sheriff William Ayub, hiring retired Commander Monica McGrath in 2018 as the undersheriff. No evidence supports the speculative theory that Sheriff Ayub selected his second-in-command from outside the department in order to avoid a commander vacancy that might go to one of the appellants. Moreover, this selection sheds no light on the decisions Dean made in 2016 and 2017. And because McGrath is female, it clearly lends no support to the claim of gender discrimination.

4. Changes in process

Appellants contend the changes made to the promotion process after 2014 establish pretext for discrimination. We are not persuaded. This case is unlike Lindahl v. Air France (9th Cir. 1991) 930 F.2d 1434, 1439. There, when the only eligible candidates were women, all were informed of the opening and were told they needed to take a test. But in a subsequent recruitment, when the eligible candidates included two men under 40 and two women over 40, the employer did not tell the eligible candidates about the position, and instead awarded the promotion to a young man without testing or interviewing the candidates. Here, the limited changes in the selection process were not associated with the protected status of appellants, who also participated in the 2014 process. There is no evidence that the changes show discriminatory intent.

5. Pattern of discrimination

Appellants contend that statistical evidence shows a discriminatory pattern in the County’s promotional practices. But the limited number of Latinos and African-Americans in the ranks of captain and commander is not evidence of discrimination because there is no evidence of the race or gender of the applicant pool from which the selections were made. (Albemarle Paper Co. v. Moody (1975) 422 U.S. 405, 425; Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805, 819-820.) Nor was there expert testimony that the sample size was adequate to be statistically significant. (McGrory, supra, 212 Cal.App.4th at p. 1536.)

6. Comparative qualifications

Appellants have not established that they were better qualified than the successful candidates. They do not refute Dean’s statement that the desirable qualities for a commander are different than those for a captain. Aguilar claims to have longer tenure as a captain than the candidates selected, but two had longer tenures, and Dean did not consider tenure to be a significant factor.

Appellants do not provide a comprehensive comparison of candidates based on the selection criteria for commander. Instead, they rely on their own applications and prior positive evaluations, compared with limited information regarding the successful candidates (e.g., isolated negative comments, unsubstantiated rumors of misconduct, and unremarkable performance evaluation forms).

Dean recognized that all the candidates, including appellants, were qualified and had “impressive resumes and extensive professional experience.” From the 11 candidates he selected those he thought were best qualified. Both Smith and Barrios ranked two of those selected in 2016 in the top three, and did not rank Aguilar in the top three. Appellants have not established that those selected were less qualified.

7. False declarations

Appellants claim the County relied on false declarations. But there is nothing inconsistent in Dean’s statements that he received input from everyone at the commander meeting, that Barrios left for a portion of the meeting, and that they did not have a full discussion regarding the candidates. While some commanders state that no discussion occurred, this does not show that false reasons were advanced for the promotion decisions. Nor do the commanders’ identification of the ratings they made contradict the evidence of the sources of their information. Even if we were to agree with appellants’ claim that inconsistencies in the declarations renders them lies, “[t]he pertinent statutes do not prohibit lying, they prohibit discrimination.” (Guz, supra, 24 Cal.4th at p. 361.) Finally, the record does not support appellants’ claims of spoliation of evidence.

Failure to prevent discrimination

Because the court found that discrimination was not established, summary judgment was properly entered for the cause of action for “fail[ing] to take all reasonable steps necessary to prevent discrimination and harassment from occurring” (Gov. Code, § 12940, subd. (k)). (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925, fn. 4; Featherstone, supra, 10 Cal.App.5th at p. 1166.)

DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on appeal.

NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

GILBERT, P. J.

PERREN, J.

Vincent J. O’Neill, Jr., Judge

Superior Court County of Ventura

______________________________

Keith A. Fink & Associates, Keith A. Fink and Sarah E. Hernandez, for Plaintiffs and Appellants.

Lawrence Beach Allen & Choi, Paul B. Beach, James S. Eicher, Jr., and Rocco Zambito, Jr., for Defendants and Respondents.