Filed 7/31/20 Cadena v. L.A. Community College Dist. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

RICHARD CADENA,

Plaintiff and Appellant,

v.

LOS ANGELES COMMUNITY COLLEGE DISTRICT,

Defendant and Respondent.

B290975

(Los Angeles County

Super. Ct. No. BC644331)

APPEAL from a judgment of the Superior Court of Los Angeles County. Elizabeth Feffer, Judge. Affirmed.

Michelman & Robinson and Reuben A. Ginsburg for Plaintiff and Appellant.

Olivarez Madruga Lemieux O’Neill, Thomas M. Madruga, Brent J. Lehman and Deborah Lee-Germain for Defendant and Respondent.

_________________________________

Richard Cadena appeals from a judgment against him following a successful summary judgment motion by respondent Los Angeles Community College District (District). Cadena sued the District for alleged unlawful discrimination. Cadena claims that the District discriminated against him on the basis of his age (63 at the relevant time) when it declined to interview him for several program director positions and instead hired younger persons.

In support of its summary judgment motion the District presented evidence that it made its hiring decisions based on the specific requirements of the programs for which the successful candidates were hired. Cadena argues that this explanation was pretextual, but he does not identify substantial evidence in the record from which a fact finder could conclude that the District’s stated reason for its hiring decisions was false. We therefore affirm.

BACKGROUND

1. The Advertised SFP Program Director Position

In January 2014 the District posted a job bulletin for the position of “SFP Program Director.” The bulletin explained that a person in that position “plans, organizes, administers, promotes, evaluates, and supervises the day-to-day activities of a large, multi-faceted specially funded program.”

Under the heading of “Minimum Requirements for Acceptance of an Application,” the bulletin stated that “[a]ny combination of experience and education that would likely provide the required knowledge and abilities would be qualifying.” Examples included a four-year college degree in a relevant field and four years of relevant work experience, or a Master’s degree and two years of relevant work experience. The bulletin also stated that “[q]ualifying experience must have included responsibility for planning, organizing, administering, and supervising the operations of a large, multi-faceted SFP program.”

The bulletin explained that applicants who met the minimum qualifications would be admitted to an examination, which might contain several parts. Persons who were successful on all parts of the examination would be placed on an eligibility list and ranked by the “scores attained on the various parts” of the examination. The bulletin stated that the eligibility list was “used to fill vacancies at all nine colleges and the administrative offices.” The eligibility list was effective for at least a year.

2. Cadena’s Application

Cadena submitted an application for the position on January 21, 2014. His application stated that he had received a Bachelor of Arts degree in History from Brandeis University in 1972; a teaching credential from UCLA in 1974; and a Master’s degree from USC in 1984. He had also completed course work in film and broadcasting at Stanford University and an office systems certificate program at East Los Angeles Community College.

Cadena’s work experience included 10 years as a program director for Catholic Charities of Los Angeles from 1990 to 2000. In that position, Cadena “[m]anaged countywide adult English-as-a-Second Language, adult basic education, job training, and job placement programs located throughout Southern California.” He stated that he “[d]eveloped and oversaw programs, funding proposals, program planning and evaluation, budgets and voluntary support group.”

Cadena was accepted into the examination process. Following the examination, he was placed in the top rank (out of three ranks) on the eligibility list for the SFP director position.

3. Selection of Candidates from the Eligibility List

Two SFP director positions were filled from the eligibility list while Cadena was on the list. One position was for the director of the Upward Bound program in the Student Services Department at Los Angeles Southwest Community College (Southwest College). The other was for the director of the CalWORKS program at Pierce College.

Cadena was not interviewed for either of those positions. The Southwest College position was ultimately filled by Michael Harris, a 38-year-old African-American male. The Pierce College position was filled by Claudia Velasco, a 42-year-old Hispanic female.

Harris’s application reflected 13 years of experience as an Upward Bound Program Specialist at Southwest College. His duties included planning and implementing programs and activities, evaluating program services, students, and staff, and hiring, training, and supervising staff. Velasco’s application reflected experience as an Associate Director, Advisor Specialist and Program Coordinator with TRIO Student Support Services at West Los Angeles College. She had also served as an Advisor Specialist with TRIO Upward Bound at West Los Angeles College. Neither Harris nor Velasco had prior experience as an SFP director.

4. Cadena’s Administrative Complaint

Cadena filed an administrative complaint with the California Department of Fair Employment and Housing and the federal Equal Opportunity Employment Commission. The District responded to the complaint. In its response, the District stated that, for the Southwest College position, the “hiring authority” selected three persons from the eligibility list to interview: “One Black male (DOB 1976), one Black female (DOB 1972), and one Hispanic female (DOB 1978) . . . . The Black male was hired.” For the Pierce College position, three “Hispanic females (DOBs 1985, 1972, 1968) were interviewed. A Hispanic Female (1972) was hired.” The response further stated that “[t]he selection of eligibles to [be] interviewed was based on a pre-identified set of skills necessary for the individual positions/programs that was developed by the hiring authority in advance of the application screening.”

5. Proceedings in the Trial Court

Cadena filed his complaint in this case in propria persona in December 2016. The complaint alleged one cause of action for unlawful discrimination under the California Fair Employment and Housing Act (FEHA, Gov. Code, § 12900 et seq.). Cadena alleged that the District failed to interview him for “positions within the Los Angeles Community College District, specifically the position of SFP Director, or hire him for same, instead selecting much younger persons who were not male or Latino.”

The District moved for summary judgment in January 2018. The District claimed that Cadena was not interviewed for the two SFP director positions because he did not have the specialized experience required for the positions. In support of that claim, the District submitted declarations from persons responsible for the hiring process stating that the positions required prior experience with the CalWORKS, Upward Bound, or TRIO programs. The District also claimed that the persons selecting the candidates to interview “did not have access” to information “related to” a candidate’s age, race or gender.

The trial court granted the motion. The court found that the District had identified legitimate, nondiscriminatory reasons for its decision not to select Cadena for an interview. The court cited the District’s evidence that the persons making the interviewing decisions “did not have access to information such as age, national origin, and gender.” The court also cited the District’s evidence that candidates were selected for interview based on their specialized experience in the CalWORKS, TRIO or Upward Bound programs.

The court rejected Cadena’s arguments that the District’s stated reason for its interview decisions was pretextual, including Cadena’s argument that the District had fabricated job requirements tailored to the successful candidates. The court concluded that Cadena had failed to “present substantial evidence to demonstrate that [the District] pre-selected candidates and that its preference for individuals with CalWorks, Upward Bound, and TRIO experience was pretextual or that [the District’s] motive was discriminatory.”

DISCUSSION

1. Standard of Review and Governing Law

We apply a de novo standard of review to the trial court’s summary judgment ruling. We interpret the evidence in the light most favorable to Cadena as the nonmoving party, and resolve all doubts about the propriety of granting the motion in his favor. (Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201, 206.) In doing so, we consider only those facts that were before the trial court. (American Continental Ins. Co. v. C&Z Timber Co. (1987) 195 Cal.App.3d 1271, 1281.) We consider all the evidence before the trial court except that to which objections were made and properly sustained. (Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1451–1452.) Although we independently review the District’s motion, Cadena has the responsibility as the appellant to demonstrate that the trial court’s ruling was erroneous. (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 372.)

We independently review the evidence in the context of the standards applicable to summary judgment motions. A defendant moving for summary judgment has an initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850–851.) Once the defendant does so, the burden of production shifts to the plaintiff to show the existence of material disputed facts. (§ 437c, subd. (p)(2); Aguilar, at pp. 850–851.) The plaintiff must make that showing with admissible evidence. (§ 437c, subd. (d); Jambazian v. Borden (1994) 25 Cal.App.4th 836, 846.)

A particular burden shifting procedure that applies to employment discrimination cases frames the summary judgment process in such cases. California has adopted the “McDonnell Douglas” test for adjudicating discrimination cases alleging a theory of disparate treatment. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz), citing McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.) In such cases, the plaintiff has the initial burden to establish a prima facie case of discrimination. (Guz, at p. 354.) This burden is not onerous, but a plaintiff must at least show some action by the employer that, if unexplained, makes it more likely than not that the action was based on a prohibited discriminatory criterion. (Id. at pp. 354–355.)

If the plaintiff meets that burden, a presumption of discrimination arises. (Guz, supra, 24 Cal.4th at p. 355.) The employer may rebut that presumption by providing evidence sufficient to justify a judgment for the employer that its action was taken for a legitimate, nondiscriminatory reason. (Id. at pp. 355–356.) The plaintiff may then attack the employer’s proffered reasons as pretextual or offer other evidence of discriminatory motive. “In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias.” (Id. at p. 356.)

An employer may meet its initial burden on summary judgment by proceeding directly to the second step of the McDonnel Douglas procedure. (Guz, supra, 24 Cal.4th at pp. 354–355.) If the employer supports its summary judgment motion with evidence showing a legitimate reason for its challenged employment action, the employee must respond with “substantial” evidence that the employer’s stated reasons were pretextual or that the employer acted with discriminatory animus, thereby raising at least an inference of discrimination. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004–1005.)

Evidence that an employer’s proffered reasons for an employment decision were untrue may considerably assist a circumstantial case of discrimination “because it suggests the employer had cause to hide its true reasons.” (Guz, supra, 24 Cal.4th at p. 361.) But the “pertinent statutes do not prohibit lying, they prohibit discrimination.” (Ibid.) Although proof that a defendant’s explanation of its employment action “is unworthy of credence” may be “quite persuasive,” it is “simply one form of circumstantial evidence that is probative of intentional discrimination.” (Reeves v. Sanderson Plumbing Products (2000) 530 U.S. 133, 147 (Reeves).) Thus, there must still 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, at p. 361.)

To defeat summary judgment, the employee need not provide evidence sufficient to show that a discriminatory motive was the only reason for the employer’s action. However, it must have been a “substantial motivating factor” in the employer’s decision to take the challenged action. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232.) Summary judgment should be granted if, “given the strength of the employer’s showing of innocent reasons, any countervailing circumstantial evidence of discriminatory motive, even if it may technically constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred.” (Guz, supra, 24 Cal.4th at p. 362.)

2. The District Provided Evidence of a Legitimate Reason for its Decision Not to Interview Cadena

The District supported its summary judgment motion with a declaration from Karen Martin, who was a personnel director in the District’s Personnel Commission. Martin’s duties included “overseeing the Merit System of the District with respect to selection, retention, and promotion of classified employees.”

Martin explained that the selection process for an SFP director position involves several steps. In the first step, applicants are required to demonstrate that they meet the minimum qualifications listed in the recruitment bulletin. In the second step, the applicants may take written, oral and/or practical examinations. If the applicant passes these examinations, he or she receives a score and is ranked on an eligibility list. The list remains active for one or two years, depending when a new list is established.

As openings arise for SFP director positions, the positions are filled from the eligibility list. However, particular specially funded programs may require “special program related skills” as a condition of funding for the program. In that case, a “hiring authority reviews the qualifications and skill sets of all eligibles on the list and identifies those that most closely match the needs of the program.”

The Southwest College and Pierce College SFP director positions were each filled from the eligibility list while Cadena was on it. However, Martin testified that each of those positions “required unique skills.” The Southwest College position “required that the candidate have prior experience with the Upward Bound Program and/or TRIO.” The Pierce College position “required that the candidate have prior experience with GAIN/CalWORKS and/or Upward Bound or TRIO programs.”

Martin testified that the candidates for interviews for the Southwest College position were “selected from the eligibility list with deference to experience in the Upward Bound Program.” Harris, the successful candidate, had extensive experience with the Upward Bound program. The candidates for interviews for the Pierce College position were selected from the eligibility list with deference to experience in the “GAIN/CalWORKS and/or Upward Bound or TRIO programs.” Velasco, the successful candidate, had extensive experience with TRIO, including the Upward Bound program.

The District also submitted a declaration from David Follosco, the former Dean of Student Services at Pierce College. Follosco testified that he personally participated in the selection of candidates for the SFP director position at Pierce College. Follosco explained that the position required “substantial focus” on GAIN/CalWORKS and “emphasized the importance of prior CalWORKs, TRIO, and/or Upward Bound programing experience.” Follosco testified that, according to his “review of the application materials, Mr. Cadena did not possess the required specialized skills and prior experience in CalWORKs, TRIO, and/or Upward Bound that was required for the SFP Director position.”

At his deposition, Cadena admitted that did not have any professional experience with the TRIO, Upward Bound or CalWORKS programs.

Thus, in moving for summary judgment the District provided evidence showing a legitimate reason for its decision not to interview Cadena for the Southwest College or Pierce College positions. The evidence showed that Cadena did not have specific professional experience that was required for those positions.

3. Cadena Failed to Provide Substantial Evidence Showing that the District’s Stated Reason for Deciding Not to Interview Him Was Pretextual

Cadena argues that he successfully responded to the District’s evidence by providing evidence from which a fact finder could conclude that the District’s stated reason for declining to interview him was untrue. We reject the argument, as the evidence that he identifies was not sufficient for such a finding.

First, Cadena argues that the District was not truthful in explaining its selection process. In its response to Cadena’s administrative complaint, and in its summary judgment briefing, the District claimed that the decision makers who selected the candidates for interview did not have access to information about the candidates’ ages. Cadena argues that this was false because the decision makers could deduce the candidates’ approximate ages from the dates of their college education and their work experience identified in their applications.

We agree that the District overstated the evidence on this issue. One could infer from the fact that Cadena graduated from college in 1972 that, as of the date of his application in 2014, Cadena was necessarily over 40 and likely over 60. Thus, the District’s broad claim in its summary judgment motion that the hiring panel did not have access to any information “related to” a candidate’s age was incorrect.

However, this misstatement could not support any reasonable inference that the District’s explanation for its interview decisions was pretextual. (See Reeves, supra, 530 U.S. at p. 147 [“In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose”].) Indeed, the challenged statements did not concern the reason for the District’s interview decisions at all; rather, they concerned the District’s decision-making process. Even if a fact finder were to conclude that the District lied about the information that was available to its decision makers, a further inference would be necessary to conclude that the District lied about the reasons why particular candidates were selected for an interview. The fact that a decision maker could deduce from Cadena’s resume that he was over 40 does not mean that he or she made the decision not to interview Cadena on that ground.

Moreover, the evidence does not even support an inference that the District intended to misrepresent its decision-making process. The District submitted Cadena’s job application in support of its summary judgment motion, and acknowledged that the reviewers had access to the candidates’ applications. Thus, the District did not attempt to cover up the information that its decision makers could glean from the application.

Finally, the District’s misstatements were not material. (See Reeves, supra, 530 U.S. at p. 147 [an inference of discrimination from an employer’s pretextual explanation of an employment decision is “consistent with the general principle of evidence law that the factfinder is entitled to consider a party’s dishonesty about a material fact as ‘affirmative evidence of guilt’ ”], quoting Wright v. West (1992) 505 U.S. 277, 296, italics added.) Although the decision makers could discern from Cadena’s educational background that he was over 40 (and likely at least 60), they could not make any reliable judgment about the relative ages of other candidates. It is easier to tell a minimum age from the dates of college degrees and work experience than a maximum age. Because Cadena graduated from college in 1972, he must have been over 40 in 2014. But a candidate who begins college in 1994 (such as Harris, the successful candidate for the Southwest College position) might have been 18 at that time (and therefore 38 in 2014), or might have been much older, depending upon when he or she was in a position in life to begin pursuing higher education.

The relevant core of the District’s statement was true. The persons making the decisions about which candidates to interview for the SFP director positions were not given sufficient information to base a selection decision on the candidates’ protected status.

Cadena also argues that the District provided shifting explanations of the experience required for the two SFP director positions. Cadena argues that this supports an inference that the District’s proffered reason for deciding not to interview Cadena was pretextual. (See Guz, supra, 24 Cal.4th at p. 363 [“in 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”].)

We reject the argument. Cadena does not identify evidence sufficient to show that the District offered inconsistent or implausible descriptions of the qualifications necessary for the positions.

Cadena points out that the January 2014 job bulletin for the SFP director position did not include any description of required experience in the TRIO/Upward Bound or GAIN/CalWORKS programs. But that fact is consistent with the District’s evidence that the initial job listing was just for the purpose of establishing an eligibility list, not for identifying the specific requirements of particular positions that might later be filled from that list. As discussed above, the job bulletin itself stated that it was describing the “minimum requirements” for an application sufficient to qualify for the subsequent examination process. The bulletin explained that the “hiring list established by this examination will be used to fill future vacancies as they occur during the life of the list.”

As Cadena points out, the job bulletin did not specifically state that future vacancies for specific programs might have more detailed experience requirements. But it also did not purport to identify all the specific requirements for future positions. And Cadena has not identified any evidence contradicting the testimony of Follosco and Martin that specific SFP director positions can include requirements that are mandated by the funding conditions for the particular programs at issue.

Cadena also argues that the District’s description of the requirements for the Southwest College and Pierce College positions were different in its response to Cadena’s administrative complaint and in its summary judgment filings. He is correct that the descriptions were different. However, they were not inconsistent.

In its response to the administrative complaint, the District explained that the candidates selected for interview for the Southwest College position “most closely met the requirements associated with the Upward Bound Program for interview.” Similarly, the persons selected for interview for the Pierce College positions “most closely met the requirements associated with the Cal Works/GAIN for interview.”

In their declarations submitted in support of the District’s summary judgment motion, Martin and Follosco described in more detail the “requirements associated with” these two programs. For the Southwest College position, the requirements “associated with” the Upward Bound program were prior experience with “the Upward Bound Program and/or TRIO.” For the Pierce College position, the requirements “associated with” the CalWORKS/Gain Program were prior experience in CalWORKS/GAIN, TRIO, and/or Upward Bound. There was nothing inconsistent in these explanations.

Finally, Cadena argues that documents the District submitted concerning the requirements for the Pierce College position were not reliable. However, Martin’s testimony itself was admissible evidence concerning the requirements for that position. Cadena did not provide any contrary evidence. His argument attacking the credibility of documents supporting Martin’s testimony therefore does not identify any disputed issue of material fact precluding summary judgment. (§ 437c, subd. (e) [“summary judgment shall not be denied on grounds of credibility”]; Trujillo v. First American Registry, Inc. (2007) 157 Cal.App.4th 628, 636 [plaintiffs could not defeat summary judgment merely by attacking defendant’s evidence as “unbelievable and self-serving”].)

DISPOSITION

The judgment is affirmed. The Los Angeles Community College District is entitled to its costs on appeal.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.