Faquir v. Los Angeles

Filed 7/19/07 Faquir v. Los Angeles CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Los Angeles County, Conrad R. Aragon, Judge. Judgment is affirmed.

Law Offices of David Peter Cwiklo and David Peter Cwiklo for Plaintiff and Appellant.

Rockard J. Delgadillo, City Attorney and Paul L. Winnemore, Deputy City Attorney, for Defendants and Respondents.

_______________________________________

Plaintiff and appellant Ameer Faquir brought a race discrimination and retaliation action against his employer, the City of Los Angeles (City) and his supervisors (collectively defendants). The gravamen of his complaint is that he was denied two promotions and transferred to an unfavorable position based on his race and his pursuit, and support of, other race discrimination lawsuits against the City. As the evidence is undisputed that Faquir was not qualified for the two promotions he was denied, and voluntarily accepted the transfer, we affirm the summary judgment in favor of defendants.

FACTUAL AND PROCEDURAL BACKGROUND

Faquir, who is African-American, is employed by the City in the Department of Public Works, Bureau of Sanitation (Bureau). As Faquirs complaint surrounds promotions to certain management positions in the Bureau, a brief outline of the management structure is necessary to an understanding of this action. The Bureau itself comprises numerous divisions, including Wastewater Collection and Wastewater Treatment. The Bureau is headed by a Director, who is appointed by the mayor. Beneath the Director are several Assistant Directors. Beneath the Assistant Directors are several grades of manager. Prior to 2001, managers in different divisions held distinct positions. That is, Wastewater Collection Manager, Wastewater Treatment Maintenance Manager, and Wastewater Treatment Plant Manager were all different categories, each with their own pay grades. In 2001, former Bureau Director Judith Wilson requested consolidation of these three classes of manager into a single class of Sanitation Wastewater Manager.^[1] Later that year, the Board of Civil Service Commissioners approved the class consolidation.^[2] The consolidation went into effect in March 2003, retroactive to September 7, 2002. The new class of Sanitation Wastewater Manager had three different pay grades, ranging from Sanitation Wastewater Manager I through Sanitation Wastewater Manager III. Sanitation Wastewater Manager III is the class immediately beneath Assistant Director. Beneath Sanitation Wastewater Manager I are supervisors; beneath supervisors are the laborers. This case involves Faquirs failed attempts to promote from Sanitation Wastewater Manager I to Sanitation Wastewater Manager III and Assistant Director. Faquir also challenges his actual promotion to Sanitation Wastewater Manager II, as retaliatory.

1. Underlying Facts

Faquir began working for the Bureau in 1979; he was a Sewer Maintenance Laborer. By 1992, he was a Wastewater Collection Supervisor seeking a promotion to Wastewater Collection Manager. Concluding the promotion process was discriminatory, Faquir and another supervisor brought suit against the City for race discrimination and retaliation. In 1994, while his action was pending, Faquir went on an extended leave of absence due to stress associated with workplace discrimination. Faquirs lawsuit was successful. In 1997, judgment was entered in his favor in an amount exceeding $800,000. In 2001, Faquir attempted to return to work as a Wastewater Collection Supervisor and again sought to promote to Wastewater Collection Manager. His immediate supervisor, Wastewater Collection Manager Barry Berggren, refused to allow him to return to work. As a result, Faquir filed a second lawsuit. This suit was resolved prior to trial, and Faquir returned to work on September 23, 2001, as a Wastewater Collection Manager. This date was after the class consolidation of managers had been approved, but before it went into effect. Faquir was a Wastewater Collection Manager I, the lowest grade of the then-existing class. When the class consolidation went into effect in March 2003, Faquir became a Sanitation Wastewater Manager I, effective retroactive to September 2002. Faquir does not contend there was any discrimination or retaliation in the fact that he was not made a Sanitation Wastewater Manager II at this point.^[3]

Then-Director Wilson retired from the Bureau on September 25, 2003. The City hired an outside independent search agency, Arcus, to conduct a national search for the most qualified candidates to fill the Directors position. The job announcement seeking applicants for the Directors position stated, The successful candidate will have a minimum of two years of managerial experience within a major division of a Sanitation District for a large metropolitan area or an environmental firm. On October 1, 2003, Faquir, who had been a Wastewater Collection Manager I for two years and one week, submitted his application to Arcus. The admissibility of evidence of the progress of Faquirs application for Director is contested in this appeal. Faquir was not selected by the mayor to fill the position; Faquir has no quarrel with his non-selection. However, Faquir believes that the fact that Arcus concluded he was qualified for the position of Director has some relevance to the issue of his qualification for other positions. Rita Robinson, who is African-American, was appointed to the position of Director in January 2004.

In February 2004, an action had been filed by three workers who alleged race discrimination in recent Wastewater Collection Supervisor promotions (the McMillian action). As Faquir had been involved in some of the interviews conducted in connection with the promotional examination at issue, the Deputy City Attorney defending the case interviewed Faquir. Faquir told the Deputy City Attorney that he believed the McMillian plaintiffs had good cause to bring a race discrimination lawsuit. Shortly thereafter, the Deputy City Attorney sent Faquir, for his review, a draft declaration that she had prepared for him. The declaration did not include any of Faquirs statements which would have been favorable to the position of the McMillian plaintiffs, and included other facts which Faquir believed were untrue. He refused to sign it.

Director Robinson summoned Faquir to her office to discuss his failure to cooperate with the Citys defense of the McMillian action. Faquirs statements as to the content of this discussion are somewhat contradictory. In Faquirs declaration in the instant case, Faquir takes the position that Director Robinson told him that he will sign the prepared declaration or he is  not ready . . . to be a manager.  However, in his deposition one month earlier, Faquir testified that when he insisted he be allowed to edit the declaration so that it would not be untrue, Director Robinson told him to  make it true.  He also testified that Director Robinson told him that  if we have done something wrong, then were just liable. And if were liable, well deal with that.  Faquir testified he understood this to mean that the Bureau would accept responsibility for any misconduct. Faquir edited his declaration and executed the revised version. Ultimately, neither version was filed with the court in the McMillian action.

In July 2004, the Bureau announced two vacancies in the position of Assistant Director. The requirements set forth in the job announcements stated, The successful candidate will have at least two years of full-time paid administrative or management experience at the level of a Principal Engineer/Chief Management Analyst involved in the engineering, design, administration, construction, financial analysis or operation of a municipal waste collection, recycling, treatment or disposal facility, wastewater or stormwater collection activities or the regulatory enforcement of said activities. (Emphasis added.) Faquir concedes that he did not meet these qualifications. Nonetheless, he applied for the Assistant Director positions. On August 10, 2004, Director Robinson denied his application.

On September 2, 2004, the Bureau announced openings in all three grades of Sanitation Wastewater Manager. Specifically, there were four vacancies at grade I, three vacancies at grade II, and two vacancies at grade III. The minimum requirements for the two higher grades were as follows: The Sanitation Wastewater Manager III positions are open to all candidates currently employed in the Bureau of Sanitation who have at least two years experience at the level of a Sanitation Wastewater Manager II/Shift Superintendent Wastewater Treatment II. [] The Sanitation Wastewater Manager II positions are open to all candidates currently employed in the Bureau of Sanitation who have at least two years experience at the level of a Sanitation Wastewater Manager I/Shift Superintendent Wastewater Treatment I. Upon receipt of this announcement, Faquir emailed his supervisor, Berggren, asking, So does this mean I dont qualify for a SWM III? Berggren responded that he did not know, and advised Faquir to ask the Personnel Department.^[4] It does not appear that Faquir made any further inquiry. Instead, Faquir submitted an application for both the Sanitation Wastewater Manager II and Sanitation Wastewater Manager III positions. In his application, he acknowledged that he was currently a Sanitation Wastewater Manager I, although he characterized the position as Assistant Division Manager. Faquir was not interviewed for the Sanitation Wastewater Manager III positions. The two positions were filled by highly qualified applicants, including George Raymond, who was a Sanitation Wastewater Manager II, working at the Hyperion Wastewater Treatment Plant (Hyperion).

In late September 2004, interviews were held for the three vacant Sanitation Wastewater Manager II positions. Faquir interviewed and received the fourth highest score. The candidates with the three highest scores received the promotions; Faquir does not contend there was any race discrimination involved in this decision. On October 13, 2004, a fourth Sanitation Wastewater Manager II vacancy opened, due to Raymonds promotion to Sanitation Wastewater Manager III. The interview panel recommended Faquir for this promotion. After consulting with Assistant Director Joseph Mundine, who concurred with the selection of Faquir, Director Robinson offered Faquir the Sanitation Wastewater Manager II position at Hyperion. Faquir accepted the promotion.

2. Allegations of the Complaint

On September 9, 2005, Faquir filed his complaint in the instant action. He named as defendants the City, Berggren, Director Robinson, former Director Wilson, Assistant Director Mundine, and former Assistant Director James Langley. Faquir alleged four causes of action: (1) wrongful failure to promote due to race discrimination in violation of the Fair Employment and Housing Act (FEHA); (2) wrongful failure to promote due to race discrimination in violation of public policy; (3) wrongful failure to promote due to race discrimination in violation of the California Constitution; (4) retaliation in violation of FEHA; and (5) wrongful failure to promote for retaliatory reasons in violation of public policy. Each failure to promote cause of action was based on the failure to promote Faquir to Assistant Director and Sanitation Wastewater Manager III, allegedly due to Faquirs race or in retaliation for his opposition to discriminatory practices at the Bureau. Additionally, Faquir contended the position to which he was promoted at Hyperion was a dead-end Managers job and that his purported promotion to that position was a retaliatory transfer that ostracized Faquir from the Wastewater Collection division, as well as capping his upward promotability to the [Sanitation Wastewater] Manager III, Assistant Director, and Bureau Director positions.^[5]

3. Defendants Motion for Summary Judgment

On May 18, 2006, defendants moved for summary judgment. The premise of defendants motion was, very simply, that Faquir, as a Sanitation Wastewater Manager I, was not qualified for the positions of Assistant Director and Sanitation Wastewater Manager III. As to the allegedly retaliatory transfer, defendants noted that Faquir voluntarily accepted the promotion, which he was free to reject. Moreover, defendants presented evidence that it was a true promotion to Sanitation Wastewater Manager II, complete with a pay raise of 18%, and that many individuals had promoted into higher management positions from Hyperion.^[6]

4. Faquirs Opposition

With respect to the Assistant Director position, Faquir argued that, despite not meeting the announced qualifications for the promotion, he was, in actuality, qualified for the job. Faquir based this argument on two theories. First, Faquir argued that, since he was qualified for the Director position, he was necessarily qualified for the Assistant Director position. Second, Faquir argued that, to the extent the job required two years of management experience at the level of a Principal Engineer/Chief Management Analyst, the quoted language had been recently added to the qualifications by Director Robinson, in retaliation for Faquirs refusal to sign the declaration prepared by the Deputy City Attorney in the McMillian action. Interestingly, Faquir provided a copy of a 2002 job announcement for the Assistant Director position, which purportedly supported his argument. The 2002 announcement stated that a candidate was required to have at least two years of full-time paid administrative or management experience in a public or private organization, as the head of a division involved in the engineering, design, administration, construction, or operation of a municipal waste collection, recycling, treatment or disposal facility, wastewater or stormwater collection activities or the regulatory enforcement of said activities.^[7] (Emphasis added.) The announcement went on to state, Current City employees at the level of Chief Management Analyst, with two years of full-time paid management experience as a division manager overseeing a large complex City-wide activity, with field personnel and operations, are welcome to apply. (Emphasis added.)

With respect to the Sanitation Wastewater Manager III position, Faquir again argued that his qualification to be Director necessarily rendered him qualified for any lesser position. Faquir also argued that, as a Sanitation Wastewater Manager I, he was entitled to be considered for the promotion regardless of his lack of experience as a Sanitation Wastewater Manager II. Faquir relied on Department of Public Works Personnel Directive 22 (Directive 22), which discusses classes with multiple pay grades. Directive 22 provides, In general, all employees who have assignment rights/status in a class, which has several pay grades, are eligible for consideration for assignment to any of the pay grades. Faquir interprets this to mean that a Sanitation Wastewater Manager I is necessarily qualified for assignment to Sanitation Wastewater Manager III.^[8] We note, however, that Directive 22 also discusses the procedure for Appointments to Higher Pay Grade Positions. The directive goes on to state that, [w]hen a higher pay grade position is to be filled by pay grade advancement the concerned bureau shall announce the position to eligible employees. The Directive states that the announcement to employees shall include [t]he minimum experience requirements, if any, for the higher pay grade position(s). Thus, Directive 22, by its terms, acknowledges that higher pay grades within a class may, in fact, include minimum experience requirements.

As to the transfer to Hyperion, Faquir conceded that many individuals had, in fact, promoted to executive positions from Hyperion. Faquir argued, however, that defendant[s] did not cite a single similarly situated African-American with the same promotional success.

Underlying Faquirs entire opposition were various allegations of impropriety on the part of the individual defendants. Thus, Faquir relied heavily on Director Robinsons purported order that he sign a false declaration in the McMillian action; comments Director Robinson allegedly made which suggest she does not think highly of individuals who pursue race discrimination actions; and his adversarial history with Berggren.

5. Discovery Dispute

While the summary judgment motion was pending, a discovery dispute arose. On July 25, 2006, after Faquir had filed his opposition to the summary judgment motion, Faquir filed an ex parte application to compel certain discovery. Specifically, Faquir sought to depose the City employee most knowledgeable regarding Faquirs application for Director. At approximately the same time, the City filed an ex parte application for an order shortening time for its motion to quash the notice of deposition. The trial court denied both ex parte applications, for insufficient good cause. The court indicated, however, that it would consider the discovery issues at the summary judgment hearing. At no time did Faquir file an application to continue the summary judgment motion to enable him to obtain the discovery he sought. (Code Civ. Proc.,  437c, subd. (h).)

6. Hearing, Ruling and Judgment

At the hearing on the summary judgment motion, the trial court ruled on the parties objections, sustaining numerous objections to Faquirs affidavit. The trial court then concluded that Faquir was simply not qualified for either the Assistant Director position or the Sanitation Wastewater Manager III position, and therefore granted summary judgment in favor of defendants. The court then concluded the pending discovery motions were moot, but indicated they would be denied for the purposes of an appeal. Judgment was entered in favor of defendants on October 6, 2006. Faquir filed a timely notice of appeal.

ISSUES ON APPEAL

On appeal, Faquir first argues the trial court abused its discretion by not sua sponte continuing the summary judgment motion until Faquir could compel the deposition of the Citys person most knowledgeable regarding his application for Director. Second, Faquir argues that he has raised a triable issue of fact as to whether he was refused the challenged promotions for improper means, rather than his lack of qualifications. Finally, Faquir argues he has raised a triable issue of fact as to whether his promotion to Sanitation Wastewater Manager II was, in fact, a retaliatory demotion. We disagree in all respects and affirm.

DISCUSSION

1. Standard of Review

 A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiffs asserted causes of action can prevail. (Molkov.Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) The pleadings define the issues to be considered on a motion for summary judgment. (Sadlier v. Superior Court (1986) 184 Cal.App.3d 1050, 1055.) As to each claim as framed by the complaint, the defendant must present facts to negate an essential element or to establish a defense. Only then will the burden shift to the plaintiff to demonstrate the existence of a triable, material issue of fact. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065.) (Ferrariv. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) We review orders granting or denying a summary judgment motion de novo. (FSR Brokerage, Inc.v. Superior Court (1995) 35 Cal.App.4th 69, 72; Union Bankv. Superior Court (1995) 31 Cal.App.4th 573, 579.) We exercise an independent assessment of the correctness of the trial courts ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. (Iversonv. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.)

2. Employment Discrimination

FEHA prohibits discriminatory employment practices. It is an unlawful employment practice [f]or an employer, because of the race . . . of any person, to . . . discriminate against the person in . . . terms, conditions, or privileges of employment. (Gov. Code,  12940, subd. (a).) Similarly, it is unlawful [f]or any employer . . . or person to . . . discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part. (Gov. Code,  12940, subd. (h).)

The courts have adopted a three-stage burden-shifting test for trying claims of discrimination. At trial, the plaintiff has the initial burden to establish a prima facie case of discrimination. (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 354.) The plaintiff must provide evidence that (1) [plaintiff] was a member of a protected class, (2) [plaintiff] was qualified for the position . . . sought or was performing competently in the position . . . held, (3) [plaintiff] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. (Id. at p. 355.) Once the plaintiff has established a prima facie case, a presumption of discrimination arises. The burden then switches to the employer to rebut the presumption by producing admissible evidence sufficient to raise a genuine issue of fact that its action was taken for a legitimate, nondiscriminatory reason. (Id. at pp. 355‑356.) It does not matter if the employers reasons were not wise or correct, as long as they were nondiscriminatory. (Id. at p. 358.) Once the employer has met the burden, the presumption of discrimination disappears. The plaintiff must then have the opportunity to attack the employers proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. (Id. at p. 356.) The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff. (Ibid.)

Similarly, a shifting-burden test also applies to claims of retaliation. Thus, the plaintiff initially has the burden to show: (1) [plaintiff] engaged in a 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 employers action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation   drops out of the picture,   and the burden shifts back to the employee to prove intentional retaliation. (Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

Our Supreme Court has yet to decide how the shifting burden affects motions for summary judgment, when the defendant wishes to challenge plaintiffs prima facie case. (Guz v. Bechtel National Inc., supra, 24 Cal.4th at pp. 356‑357.) However, it is clear that if the defendant moves for summary judgment by setting forth competent, admissible evidence of a nondiscriminatory reason for its decision, the burden then shifts to the plaintiff to rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination [or retaliation] occurred. (Id. at p. 357.)  [A]n employer would be entitled to judgment as a matter of law . . . if the plaintiff created only a weak issue of fact as to whether the employers reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.  (Id. at p. 362.)

3. Faquirs Qualification for the Director Position is Irrelevant

Faquir argues the trial court abused its discretion in failing to compel the deposition of the Citys person most knowledgeable regarding his application for Director prior to the summary judgment motion. We disagree. Faquir takes the position that his qualification for the Director position and, specifically, the fact that Arcus found him to be among the top candidates for the appointment has some relevance to this case. It does not. At issue here is whether Faquir was qualified for promotion to Assistant Director and Sanitation Wastewater Manager III, not whether he was qualified for political appointment to the position of Director. Faquir reasons^[9] that since he apparently met the minimum qualifications for Director, he necessarily met the qualifications for all lesser administrative or management positions at the Bureau. The contention is nonsense. The politically-appointed Administrator of NASA is not necessarily qualified to command a shuttle mission; the politically-appointed Chief of Police is not necessarily qualified to command a SWAT team; and so forth. Indeed, any natural born U.S. citizen who is 35 years old and has been a resident for fourteen years is qualified to become President (U.S. Const., art. II,  1), yet this does not render every 35‑year‑old citizen qualified for every position in the executive branch. Faquir has not established that the Director is necessarily qualified to perform every lesser job in the Bureau. As such, his purported qualification for the Director position is completely irrelevant to this case. The discovery was therefore properly denied.

4. Faquir was Not Qualified for Assistant Director

Defendants summary judgment motion was based on the premise that Faquir was not qualified for the positions he sought. Whether considered as a challenge to Faquirs prima facie case or the offer of a legitimate non-discriminatory, non-retaliatory justification, the result is the same. Faquirs lack of qualification for the positions he sought completely defeats his claims that the denial of the promotions was in any way improper.

As to the Assistant Director position, Faquir conceded that he did not meet the qualifications in the job announcement. However, Faquir took the position before the trial court that the qualifications in the job announcement had been changed from earlier announcements, for the precise purpose of denying him the promotion in retaliation for his May 2004 refusal to sign the prepared declaration in the McMillian case. Review of the 2002 Assistant Director job announcement, however, reveals that the requirements had not been changed, and that Faquirs experience as a Sanitation Wastewater Manager I was never considered sufficient experience to qualify for Assistant Director.

On appeal, Faquir appears to have abandoned his argument that the Assistant Director job requirements were changed, and instead argues that the idea that he was not qualified for the job was a recent fabrication, as it was never conveyed to him when he was denied the opportunity to interview for the promotion. The argument is meritless. Indeed, it impliedly concedes that Faquir was not, in fact, qualified for the promotion. As such, a necessary element of Faquirs prima facie case cannot be established, and we need not consider the argument further.

In any event, Faquir relies on the August 10, 2004 letter by which Director Robinson informed him that he would not be considered for the promotion. The letter states, After careful review of your qualifications, we regret to inform you that you were not selected for an interview at this time. Although you were not interviewed, this is not a reflection on your ability or suitability for this or other positions.^[10] (Emphasis added.) Faquir argues that, since Director Robinsons letter states that the denial is not a reflection on his ability or suitability for the job, Director Robinson clearly meant that he was qualified for the job. On the contrary, Director Robinsons letter expressly states that Faquir was not selected to interview after careful review of his qualifications. The meaning is clear; Director Robinson was making no judgment as to Faquirs abilities, but simply denying him an interview because his qualifications were inadequate.

5. Faquir was Not Qualified for Sanitation Wastewater Manager III

The result is the same with respect to the Sanitation Wastewater Manager III position. Defendants established that Faquir was not qualified for this position, having not served for two years as a Sanitation Wastewater Manager II. Faquirs only response to this is that Directive 22 mandates that a Sanitation Wastewater Manager I is eligible for consideration for assignment as a Sanitation Wastewater Manager III, and that he is therefore necessarily qualified for the position. We disagree. As discussed above, Directive 22 also expressly states that higher pay grade positions may include minimum experience requirements. Directive 22s eligible for consideration for assignment language simply means that all Sanitation Wastewater Managers may be promoted within the class without having to test into the class and place on a eligible list; it does not mean that minimum experience requirements can be completely ignored. As such, defendants have established that Faquir was simply not qualified for the Sanitation Wastewater Manager III promotion.

6. The Promotion was Not a Demotion

As to Faquirs claim that his promotion to Sanitation Wastewater Manager II at Hyperion was, in effect, a retaliatory demotion, defendants presented evidence that it was no such thing. To establish a prima facie case, Faquir must show the promotion was an adverse employment action. Defendants presented evidence that Faquirs assignment to Hyperion as a Sanitation Wastewater Manager II was a promotion in title, with a pay raise. Defendants also presented evidence that Faquir voluntarily accepted the promotion.^[11] To the extent Faquir argued that it was a dead-end position that capped his upward promotability, defendants presented undisputed evidence that many individuals had, in fact, promoted upward from the position.^[12] In short, the evidence was undisputed that the promotion was not an adverse employment action.

7. Conclusion

Faquir was a Sanitation Wastewater Manager I. He was denied promotions to Assistant Director and Sanitation Wastewater Manager III because he was indisputably not qualified for those positions. He was, however, promoted to Sanitation Wastewater Manager II, a position from which he will be qualified to promote to Sanitation Wastewater Manager III. While Faquir relies heavily on evidence which suggests defendants may have held antagonistic thoughts toward him due to his prior lawsuits and support of the McMillian plaintiffs, this means nothing in light of the fact that he was not qualified for the promotions that he sought, and actually received the one promotion for which he was qualified and for which he had also applied. Summary judgment was indisputably proper.

DISPOSITION

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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

We Concur:

KLEIN, P. J.

KITCHING, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

^[1] In 1998, a City-appointed task force recommended combining 141 classes of management employees into 24, in order to provid[e] significantly greater management flexibility in promoting and assigning employees. The record does not indicate whether the consolidation requested by the Bureau related to management classes covered by the task force recommendation, or was simply consistent with it.

^[2] Defendants separate statement of undisputed facts, number 106, states, In 2001, the Board of Civil Service Commissioners approved and adopted the class consolidation which established the new class of Sanitation Wastewater Manager pursuant to the Charter of the City of Los Angeles and the old class of Wastewater Collection Manager was abolished. Faquirs response to this fact reads as follows: Disputed. Director Robinson changed the Assistant Directors minimal qualifications to exclude Faquirs eligibility for the Assistant Directors position. The Black & Veatch Best Practices Study and Baykeeper lawsuit had nothing to do with Director Robinsons changing of the Assistant Directors minimal qualifications to exclude Faquirs eligibility for the Assistant Directors position. Nothing in defendants moving papers makes any specific reference to any portion of the Best Practices Study or Baykeeper lawsuit that specifically compelled Director Robinson to change the Assistant Directors minimal qualifications that [sic] these two issues are red herring issues that have no bearing on this case. That this response has absolutely nothing to do with the fact asserted by defendants is apparent. The fact at issue is simply that the classes were consolidated in 2001. Any facts regarding Director Robinson, who did not become director until 2004, the referenced study or the referenced lawsuit are completely irrelevant. We therefore treat the fact as undisputed.

^[3] Prior to the consolidation, Faquir reported to Berggren, who was a Wastewater Collection Manager II, and was considered the Division Head. Faquir, who was immediately beneath Berggren, was considered the Assistant Division Head. After the consolidation, Faquir became a Sanitation Wastewater Manager I, while Berggren became a Sanitation Wastewater Manager III. Faquir suggests there was some impropriety in this, in that there was now an additional layer inserted between him and Berggren, and that he lost his Assistant Division Head title. The class consolidation went into effect in March 2003; Faquirs Department of Fair Employment and Housing complaint was not filed until April 27, 2005, long after the one-year limitations period had lapsed with respect to the consolidation. (Gov. Code,  12960, subd. (d).) Perhaps in recognition of this fact, the causes of action in Faquirs complaint are based only on the subsequent failures to promote him to Assistant Director and Sanitation Wastewater Manager III.

^[4] Berggren also offered to help Faquir with interview preparation.

^[5] Hyperion is a very large facility with an additional layer of management. Thus, a Sanitation Wastewater Manager III serves as the Division Head for the Wastewater Collection or Wastewater Treatment division, or a Section Head for either the Maintenance or Operation section of Hyperion. Correspondingly, a Sanitation Wastewater Manager II is either an Assistant Division Head in Wastewater Collection or Wastewater Treatment, but an Assistant Section Head in Maintenance or Operation at Hyperion. To the extent Faquir contends his Sanitation Wastewater Manager II position at Hyperion has an additional level above him, as opposed to his previous position in the Wastewater Collection division, he is correct. However, he makes no argument that his actual management responsibilities (e.g., the number and rank of the individuals below him) have not, in fact, increased.

^[6] Indeed, Faquir would not have been offered the position at all had Raymond not been promoted to Sanitation Wastewater Manager III from the very job.

^[7] In Faquirs declaration, he quotes from the 2002 job announcement, conveniently omitting, with an ellipsis, the words as the head of a division.

^[8] In Faquirs declaration, he stated that he was aware of a Caucasian Manager I who was allowed to interview and promote directly to the Manager III level. The trial court sustained defendants objection to this portion of Faquirs declaration. In Faquirs brief on appeal, he does not contest the trial courts evidentiary ruling. We therefore disregard the evidence. In any event, the trial courts evidentiary ruling was indisputably correct. Faquirs aware[ness] of the circumstances of the other individuals promotion is hearsay, lacks foundation, and constitutes speculation.

^[9] Faquir bases this argument on [c]ommon sense.

^[10] As set forth in Faquirs brief on appeal, the sentence referring to review of his qualifications is conveniently omitted.

^[11] Indeed, plaintiff had applied for the available Sanitation Wastewater Manager II positions, as well as those at the Sanitation Wastewater Manager III grade.

^[12] Faquirs allegation that the assignment ostracized him from the Wastewater Collection division is somewhat nonsensical. When Faquir had applied for the Assistant Director positions, the two vacant positions were for Assistant Director of Technical Services and Assistant Director of Wastewater Treatment Operations. Faquir certainly did not intend to limit himself to the Assistant Director position in Watershed/Collection Systems Operations. In any event, the purpose of consolidating the Sanitation Wastewater Manager classes was to allow greater flexibility in assignments between divisions; there is no suggestion in the record that Faquir was the only individual promoted into another division.