Hodge v. Poway Unif. School Dist.

Filed 10/4/06 Hodge v. Poway Unif. School Dist. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Charles R. Hayes, Judge. Affirmed.

Stephanie Hodge brought an action against the Poway Unified School District (District), alleging the District's refusal to rehire her for a custodian position constituted gender discrimination and unlawful retaliation in violation of the Fair Employment and Housing Act (FEHA). The jury found Hodge did not prove these claims, and the superior court entered judgment in the District's favor.

On appeal, Hodge contends the court erred in denying her motion for judgment notwithstanding the verdict because the District failed to satisfy its burden, under McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas), to identify the reason it did not hire her with respect to eight open custodial positions. This contention is without merit. The McDonnell Douglas analysis is inapplicable to a motion brought after a jury reached its verdict. In any event, even assuming the analysis applies, Hodge's contention that the District did not meet its McDonnell Douglas burden is unsupported by the factual record. Hodge also challenges the court's earlier order granting summary adjudication of her breach of an implied contract claim. We conclude the court properly granted summary adjudication on this cause of action. We thus affirm the judgment.

FACTUAL SUMMARY

The District first employed Hodge as a substitute custodian in July 1990. Hodge resigned three years later. In 1998, the District rehired Hodge as a substitute custodian. Hodge became a full-time probationary custodian in August 2000.

One month later, Hodge became angry and upset when her supervisor (Clayton Dale) left her a note in a faculty restroom indicating that Hodge should use a cleaning brush (which she called a "green scrubby") and a toothbrush to better clean the school bathrooms. Hodge was "completely shocked" and complained to the school principal. The next day, Dale came to Hodge's home to apologize with flowers. Hodge asked Dale to leave, which he did. Five months later, the District elevated Hodge to permanent full time custodian status.

Nine months after the Dale incident, in June 2001, Hodge submitted an internal written complaint to the District, complaining about sexual harassment related to Dale's prior conduct and claiming that she was working in an "unsafe work environment." The District investigated Hodge's complaint and, although it did not necessarily find any legitimate grounds for the sexual harassment or discrimination complaints, it took remedial action by transferring Hodge to a new work site, which was a split custodian position between Midland Elementary School and the District administrative office. During the first few days at the new work site, Hodge became very upset because she claimed her supervisor, Mel Tucker, falsely accused her of not working sufficient hours and not performing the work properly. After Hodge complained, District officials met with Hodge and Tucker, and took steps to resolve the conflict.

Several months later, on November 2, 2001, Hodge resigned from her custodian job because she decided to relocate out of the state. She said she resigned "for personal reasons not relating to my job . . ." and she had "always enjoyed" working for the District.

Three months later, on January 2, 2002, Hodge wrote to the District seeking reemployment and asking the District to "reinstate" her to a custodian position under the District's "'39 Month Rule.'" Under this rule, "[a]n employee who voluntarily resigns in good standing . . . may be re-employed to a position in his or her former classification for a period of 39 months after the last day of paid service and without further competitive examination." (Poway Unified School District, Personnel Commission, Rules and Regulations for the Classified Service, rule 60.600.3.)

Under the District's personnel policies, job applicants must take a preliminary objective examination for any open position. The District then ranks the candidates, and issues a document referred to as the "Certificate of Eligibles," which lists the top three candidates from the preliminary testing, and sends the Certificate to the individual school site with the open job position. The school then selects a candidate from this list through an interview process designed to allow the school to choose the candidate who best fits the school site's specific needs. Once the school selects the candidate, it sends that name back to the Personnel Commission. If an applicant falls under the 39-Month rule, the District waives the requirement that the applicant take the preliminary examination and automatically includes the applicant on the interview list for an open position at a site for which the applicant has requested to be considered.

Pursuant to these rules, the District found Hodge came within the 39-month rule for purposes of a custodian position. The District then gave Hodge an "Availability Questionnaire," which identifies each of the school sites by name and also lists the administrative offices. The questionnaire asked whether Hodge would accept employment in any geographic area or whether she would accept employment only in certain locations to be indicated by checkmarks. She chose the second option, and marked most of the school sites, except for five sites. She did not mark any "Administrative Offices" boxes.

During the next 11 months, numerous custodian positions at different school sites became vacant. The District placed Hodge on the Certificate of Eligibles list for at least 12 of these positions, and she interviewed for each of these custodian jobs. However, after each interview, the school site selected another candidate. In each case except one, the selected candidate was male. At trial, a member from each interview panel (except for one panel) testified and explained the reason for the selection; each of these reasons were nondiscriminatory and concerned primarily the school's determination that the successful applicant was better qualified to serve as a custodian at the particular site. In addition, the District produced the rating sheets used by the interview panel members to rate each interviewee on four relevant factors: experience, training, interpersonal relations, and oral communication. Although the rating sheets were not binding, the schools used them as a tool in the interview process.

After six of the custodian interviews were conducted, Hodge filed a claim with the Department of Fair Housing and Employment (Department), claiming she believed she was discriminated against on the basis of her gender because: (1) she had seven years of experience with the District; (2) she applied for open positions for which she was qualified; and (3) a male was selected for each position. In its written response, the District stated: "The reasons complainant Hodge was not hired as a custodian are based upon comparative qualifications as determined through the interview process. . . . [A]s reflected within the interview rating sheets, . . . complainant Hodge was not the highest rated applicant for any of the positions at issue. Additionally, as discussed above, a general concern existed regarding her ability to work with other staff members." The evidence produced at trial confirmed that with respect to the first six interviews, Hodge did not receive the highest rating on the interview rating sheets.

After she unsuccessfully interviewed for two more custodian jobs and a male was chosen for each of these positions, Hodge filed a second FEHA claim, stating the District's continued refusal to hire her for a custodian position constituted gender discrimination and retaliation for filing the prior internal discrimination/harassment complaint. The Department thereafter issued her a right to sue letter.

During the next two months, Hodge interviewed for four more job positions, but was not chosen for any of the positions. A male was chosen for three of these positions, and a female was chosen for one position. The last interview was on November 6, 2002. Hodge thereafter told the District not to call her for any more interviews or substitute work, and filed suit against the District, alleging numerous causes of action, including gender discrimination, unlawful retaliation, disability discrimination, sexual harassment, defamation, and breach of an implied contract.

The District successfully moved for summary adjudication on the breach of the implied contract cause of action. Hodge's other claims were similarly dismissed or withdrawn before trial, except for Hodge's FEHA gender discrimination and retaliation claims. Thus, the sole issue for the jury's determination was whether the District's failure to hire Hodge from January 2002 to November 2002 was motivated by Hodge's gender and/or by her prior complaints of discrimination or harassment. After a lengthy trial with 19 witnesses, the jury returned a unanimous special verdict finding Hodge did not prove the District's failure to rehire her for a custodian position was based on Hodge's gender or retaliation for her prior complaints.

Hodge thereafter filed a motion for judgment notwithstanding the verdict (JNOV), arguing she was entitled to judgment as a matter of law because the District did not meet its burden under McDonnell Douglas to come forward with evidence of nondiscriminatory reasons for its failure to hire Hodge for any one of eight open custodial positions. After considering the written submissions and counsels' oral arguments, the court denied the motion.

DISCUSSION

I. Court Properly Denied JNOV Motion

Hodge's sole challenge to the judgment on her FEHA claims is that the court erred in denying her JNOV motion.

A. The McDonnell Douglas Analysis Is Inapplicable to a JNOV Motion

Generally, on appeal from the denial of a motion for JNOV, an appellate court must review the record de novo and make an independent determination whether there is any substantial evidence to support the jury's findings. (Paykar Construction, Inc. v. Spilat Construction Corp. (2001) 92 Cal.App.4th 488, 494; Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053, 1058.) The scope of the review is limited to determining whether there is any substantial evidence, contradicted or not, to support the jury's verdict. (Begnal v. Canfield & Associates, Inc. (2000) 78 Cal.App.4th 66, 72 (Begnal).) The court must accept as true the evidence supporting the verdict, disregard conflicting evidence, and indulge every legitimate inference to support the verdict. (Ibid.) The court does not weigh the evidence or judge the credibility of the witnesses. (See Tognazzini, supra, 86 Cal.App.4th at p. 1058.) If sufficient evidence supports the verdict, a reviewing court must uphold the court's denial of the JNOV motion.

Hodge does not seek to prevail on appeal under this standard, i.e., she does not challenge the sufficiency of the evidence to support the jury's finding that the District's hiring decisions did not result from unlawful discrimination or retaliation. (Gov. Code, § 12940, subds. (a), (h).) The reason is understandable. The record contains substantial--if not overwhelming--evidence supporting the jury's findings that the District's reasons for failing to rehire Hodge were unrelated to her gender or her past complaints. Viewing the facts in the light most favorable to the District, the evidence showed that Hodge did not interview well (i.e., she did not present herself at the interviews as someone interested in the job or willing to work hard), was unwilling to learn new skills, had substantial difficulty getting along with her coworkers and supervisors, and had a history of instability with respect to staying on the job. Additionally, as discussed more fully below, each school site found the selected candidate to be the better applicant and more qualified to perform the custodian job. With respect to the three positions for which she did not interview, the evidence showed Hodge did not adequately notify the District that she was interested in these positions.

Hodge instead seeks to overturn the judgment based on a different standard particular to a "disparate treatment" discrimination claim. Because direct evidence of discriminatory motive is ordinarily unavailable, California courts analyze disparate treatment claims under the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas, supra, 411 U.S. 792. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354; Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 111.) Under the McDonnell Douglas test: (1) the plaintiff/employee must initially set forth sufficient evidence to establish a prima facie case of discrimination; (2) the defendant/employer must then articulate a legitimate, nondiscriminatory reason for the adverse employment action; and (3) the burden then shifts back to the employee to show the challenged action in fact resulted from discriminatory animus. (Guz, supra, at pp. 354-356.) This burden shifting test "reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained." (Id. at p. 354.)

Although the District has not specifically challenged the use of the McDonnell Douglas shifting burden test on this appeal, we do not believe the test properly applies on a motion filed after the jury has rendered its verdict, or on appeal from such a motion. (See Begnal, supra, 78 Cal.App.4th at p. 73.) California courts regularly apply the McDonnell Douglas analysis in pretrial motions such as summary judgments, and to dispositive trial motions such as motions for nonsuit and directed verdict. (See Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 375; Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203-204 (Caldwell).) But no reported California decision has applied the analysis in evaluating a ruling after a jury has rendered its verdict. There is good reason for this. The McDonnell Douglas paradigm concerns burden of production rules, and was designed primarily as a procedural mechanism to facilitate the orderly presentation of circumstantial evidence of discrimination and to assist the court in determining "whether the litigants have created an issue of fact to be decided by the jury." (Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 255, fn. 8.) But if the parties fail to move for summary disposition before or during trial, or are unsuccessful in their motions, the intermediate presumptions disappear, and the sole issue for the jury's consideration is whether the defendant intentionally discriminated against the plaintiff on a prohibited basis. (See Horsford, supra, 132 Cal.App.4th at p. 375; Begnal, supra, 78 Cal.App.4th at p. 73; Caldwell, supra, 41 Cal.App.4th at p. 204.) "[T]he construct of the shifting burdens of proof enunciated in McDonnell Douglas is an analytical tool for use by the trial judge in applying the law, not a concept to be understood and applied by the jury in the factfinding process." (Caldwell, supra, 41 Cal.App.4th at p. 202.) For this reason, it makes no sense for a trial court to return to an analysis of the intermediate burdens after the jury has reached its verdict.^[1] (See Begnal, supra, 78 Cal.App.4th at p. 73.)

Numerous federal courts have likewise recognized the rationale for applying the McDonnell Douglas test is inapplicable to a motion made after trial, and have declined to analyze the intermediate burdens at this stage. (See, e.g., Webber v. International Paper Co. (1st Cir. 2005) 417 F.3d 229, 235; Kovacevich v. Kent State University (6th Cir. 2000) 224 F.3d 806, 821; Merwine v. Bd. of Trustees for State Institutions (5th Cir. 1985) 754 F.2d 631, 636; see also United States Postal Service Board of Governors v. Aikens (1983) 460 U.S. 711, 713-714.) As stated by one federal court, "'[w]here as here, the case has been fully tried on the merits, the adequacy of a party's showing at any particular stage of the McDonnell Douglas ritual is of no consequence. We are simply to determine whether the record contains evidence upon the basis of which a reasonable trier of fact could have concluded as the jury did.' [Citation.] The ultimate issue, that of discrimination vel non, 'is to be treated by the district and appellate courts in the same manner as any other issue of fact.'" (Merwine v. Bd. of Trustees for State Institutions, supra, 754 F.2d at p. 636; see also United States Postal Service Board v. Aikens, supra, 460 U.S. at pp. 713-714 ["[b]ecause this case was fully tried on the merits, it is surprising to find the parties and the Court of Appeals still addressing the question whether [the plaintiff] made out a prima facie case. We think that by framing the issue in these terms, they have unnecessarily evaded the ultimate question of discrimination vel non"].)

In support of her argument that a California court must engage in a McDonnell Douglas shifting burdens analysis on a JNOV motion, Hodge relies on the fact that the McDonnell Douglas analysis has been applied to directed verdict motions (see Quinn v. City of Los Angeles (2000) 84 Cal.App.4th 472, 479; Caldwell, supra, 41 Cal.App.4th at pp. 203-204), and that a "trial judge's power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict." (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110; see Code Civ. Proc., § 629; Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 226.)

We agree that generally the court's authority in ruling on directed verdict and JNOV motions is the same, i.e., the court's authority to grant each motion is "'severely limited'" and consists solely of an examination whether sufficient evidence supports the nonmoving party's case. (In re Coordinated Latex Glove Litigation (2002) 99 Cal.App.4th 594, 606; see Code Civ. Proc, § 629.) However, we are unconvinced this rule limiting the scope of review was intended to encompass a requirement that after a jury has reached its verdict, a court must examine whether the parties met their intermediate evidentiary production burdens, rather than to resolve the ultimate question whether substantial evidence supported the jury's factual determination as to the existence of discrimination. (See Begnal, supra, 78 Cal.App.4th at p. 73 ["[t]he question whether the plaintiff established a prima facie case, is not properly before this court, because the case proceeded to a jury verdict . . . . Instead, the relevant question when reviewing the judgment notwithstanding the verdict is whether the trial court correctly concluded that no substantial evidence supported the jury's conclusion that [the termination was discriminatory]").] Neither the governing JNOV statute (Code Civ. Proc., § 629), nor the relevant case law, supports applying the McDonnell Douglas burden shifting framework to the review of a judgment after a jury has returned a verdict.^[2]

B. The District Presented Sufficient Evidence to Meet its McDonnell Douglas Burden

We alternatively conclude the court properly denied the JNOV motion under the McDonnell Douglas analysis.

A plaintiff bears the initial burden of proving a prima facie case of unlawful discrimination. (Guz, supra, 24 Cal.4th at pp. 354-355.) Once that burden is met, the burden shifts to the defendant to articulate a "legitimate, nondiscriminatory reason" for the adverse employment action. (Id. at pp. 355-356) Hodge contends she met her prima facie burden, and the District failed to meet its burden because it did not establish nondiscriminatory reasons for refusing to hire her for eight specific custodial positions. As explained below, these contentions are unsupported by the factual record.

1. Hodge's Challenge to the Interview Panel Members' Reasons for the Hiring Decisions

With respect to four of the challenged custodian positions, the District does not dispute that Hodge met her prima facie case. But the District contends it met its burden of production by presenting the testimony of at least one interview panel member who explained why the school found the selected candidate to be the better applicant for the job.^[3] Hodge counters that the reasons were not "legitimate" because they were unpersuasive or not credible.

In determining whether an employer met its McDonnell Douglas burden to show a legitimate reason for the employment decision, the term "legitimate" refers to a reason that is "facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination." (Guz, supra, 24 Cal.4th at p. 358.) The evidence is sufficient if the reason is "'nondiscriminatory on [its] face' and 'honestly believed'" by the employer, even if the reason is "'foolish or trivial or baseless.'" (Ibid.) The issue of the validity of the employer's articulated reason for the termination arises in the third step of the analysis. (Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at pp. 257-258; see Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1003; see also Raad v. Fairbanks North Star Borough School Dist. (9th Cir. 2003) 323 F.3d 1185, 1196.) The plaintiff has the opportunity at that time to show that the reasons offered by the defendant were not its true reasons, and were a pretext for discrimination.

Under these standards, the District met its burden to explain its hiring decisions by presenting the testimony of the interview panel members. According to these witnesses, the other applicant was chosen because of his prior work experience, the manner in which the applicant presented himself to the panel, and the applicant's positive attitude. These reasons were on their face nondiscriminatory and honestly believed. Hodge's arguments to the contrary are without merit.

First, with respect to Michael McMorran, two interview panel members testified they selected him for the night custodian position because he had management experience, was willing to work flexible hours, and was friendly and outgoing. The panel members found that, in contrast to McMorran's interview responses, Hodge's body language and brief answers communicated to the panel members that Hodge "didn't care, [or] want to be there." The evidence further showed that management experience, flexibility and an outgoing personality were important to the job: "As a night custodian at an elementary school, . . . you're the only person there typically at night. There's community members, parents, staff and students potentially on your campus at night, and they look to you for any answers during an emergency or any questions regarding a permit for a facilities usage. You're the answer person . . . ." Based on the interview responses, the panel members felt McMorran's experience made him better suited for this role than Hodge's experience.

In challenging this evidence, Hodge characterizes McMorran's one-year management experience as a "brief stint in a taco shop," and thus argues it was insufficient to constitute a "legitimate" reason to hire McMorran. Although this was certainly a fair argument to be made to the jury, it is insufficient to show the employer did not meet its McDonnell Douglas burden.

Similarly, with respect to the position filled by Maximo Laminoza, Yoenda Dornan, an administrative assistant at Sunset Hills Elementary who was a member of the interview panel, testified that Laminoza's personality was a better fit with the school climate and with the "personalities that are involved with our teaching staff . . . ." Dornan further explained that although Hodge had more experience as a school custodian, the panel was impressed with Laminoza's prior work experience at the post office and the fact that he had been in the military for "a number of years."

Hodge contends Dornan's testimony did not reflect a "legitimate, nondiscriminatory" reason because her focus on the applicant's personality reflected a subjective, rather than an objective, factor. However, under the District procedures, the applicants who reached the interview stage were presumed to be qualified on an objective basis, and the primary purpose of the interview was to provide the individual school sites the discretion to determine which candidate would best fit the school's specific needs based on various subjective factors such as the quality of the person's interpersonal skills. The fact that the interview panels chose the best candidate by relying on subjective criteria does not mean the decisions were related to discrimination or that the decisions were not honestly believed by the employer.^[4] Hodge had the opportunity to, and did, argue to the jury that the District's focus on personality was merely a pretext for gender

discrimination. The jury, however, found these arguments not persuasive, which it had the right to do.

We reach a similar conclusion with respect to the hiring of Juan Lapitan at Rancho Bernardo High School. Wayne Cooper, the custodian supervisor with more than 30 years of experience, testified that the panel selected Lapitan for the position because Lapitan demonstrated the desire to work hard and the panel members believed him to be a better candidate than Hodge, particularly because Hodge displayed a bad attitude at the interview by asking an inappropriate question that "put[ ] the interviewers on the spot . . . ."

With respect to the custodian position filled by Ponchito Ong at Canyon View Elementary, Johneen Gregg, the school principal, testified that the interview panel believed Ong was the most qualified person and that gender was not a factor in the decision. Gregg said that although Ong had not worked previously for the District, he had worked at a nursing home and was "extremely sincere in this desire to do the best job that . . . he could do and . . . excel and go out of his way. So he made quite an impression." She explained that it is very important that a custodian be "energetic and excited" because "when you work at a school with 600 children and 30-some teachers and . . . parents, you need to be extremely flexible, you need to extremely patient, you need to be willing to go above and beyond. . . . Someone that's got a really positive outlook and just will do whatever it takes. Attitude is a huge bonus for a site. . . . . . . I look for someone that is animated or is eager or you can tell that they are really interested in the position." In light of this testimony, Hodge's argument that Gregg merely "signed off" on another employee's recommendation is unsupported by the record. Moreover, the fact that the District did not produce another interview panel member who apparently influenced the hiring decision goes to the credibility of the asserted reason, but does not negate the fact that the District met its burden of production to show its reason for the employment decision.

The desire to hire a more qualified applicant is a valid, legitimate business decision. (See Parker v. Bd. of Sch. Com'rs. of City of Indianapolis (7th Cir. 1984) 729 F.2d 524, 527.) Because the District articulated a reason for its employment decisions, i.e., the selected employee was more qualified, Hodge had a sufficient basis to respond with evidence demonstrating pretext.

2. The Decision to Hire Edwin Sevilla in March 2002

Hodge additionally argues the District did not meet its burden with respect to the selection of Edwin Sevilla because the District did not produce an individual who was on the interview panel that selected Sevilla. We find this contention to be without merit.

Although a panel member did not testify, the District produced the rating sheets used by the Sevilla interview panel members. This evidence reflected that the interview panel members rated Sevilla substantially higher than Hodge. Out of a total of 200 points, Sevilla received 171 points and scored in the highest "superior" category in almost every category. This rating was substantially higher than Hodge, who received only 100 points, and only one "superior" rating in one category from one interviewer. Additionally, after Sevilla was selected for the position, the District filed a response to Hodge's FEHA claim (which included a challenge to the hiring of Sevilla), stating that: "'The reasons complainant Hodge was not hired as a custodian are based upon comparative qualifications as determined through the interview process. . . . Hodge was not the highest rated applicant for any of the positions at issue. Additionally, as discussed above, a general concern existed regarding her ability to work with other staff members.'"^[5] Although these reasons were fairly general, they applied to the selection of Sevilla and satisfied the District's minimal burden to come forward with a reason for its actions. The fact that the District did not produce the testimony of an interview panel member goes to the weight of the evidence, and not the issue of whether the burden of production was satisfied. Likewise, the fact that several District witnesses testified that the ratings sheets are not dispositive, and are used only as "tools" for the ultimate employment decision, goes to the persuasiveness of the asserted explanation, and does not render the rating sheet evidence irrelevant.

3. The District's Failure to Interview Hodge for Three Custodian Positions During 2002

Hodge also contends the District failed to meet its McDonnell Douglas burden with respect to three additional open custodian positions because it did not explain why she was not given the opportunity to interview for these positions: (1) a position filled by Nathan Lang on March 1, 2002; (2) a position filled by Bonifacio Quainzon on October 1, 2002; and (3) a position filled by Kenneth Jones on November 1, 2002. For the

reasons explained below, we find this argument to be without merit.

First, with respect to Nathan Lang, the evidence established that he filled a custodian position that required a split custodian route at Midland Elementary School and the District offices, and that Hodge did not want to interview for this split shift. Specifically, Robert Guerrero, the District's personnel commission director, testified that the District understood Hodge did not want to work at the District offices based on her response to the District's "Availability Questionnaire." In challenging this reason, Hodge cites to her testimony where she states that she had a telephone conversation with Guerrero in early to mid-January 2002 to inquire about the Midland/District split position. However, the jury had an ample basis to reject her claim that she timely expressed interest in this position because Guererro did not recall any such conversation, and the evidence showed that when Hodge filed her first FEHA complaint in July 2002, she failed to identify this position as a basis for her claim.

With respect to the other two open positions for which Hodge did not interview, the burden never shifted to the District because Hodge did not make a preliminary showing that she was qualified and desired to work in these positions. Hodge did not present any evidence identifying the particular school or District site for which these custodians were hired. Contrary to Hodge's assertions in her appellate briefs, the Availability Questionnaire was admitted into evidence as Exhibit 473, and in this questionnaire Hodge made clear that she would not accept employment in every geographic area of the District, and instead that she would accept employment only in the particular sites that she marked. We are also unpersuaded by Hodge's reliance on Guerrero's deposition testimony that the District generally contacts employees after they fill out an Availability Questionnaire to ensure the employee is aware of the "ramification" of the selection decision. The evidence did not show whether a phone call was made to Hodge, and if so, whether Hodge made clear that she was seeking to interview at the relevant school sites. Although Hodge argued the form was unclear and she did not intend to preclude employment at any site, the jury verdict reflects the jury's implicit rejection of this argument and the jury had a substantial basis to do so.

Absent evidence that Hodge sought to be considered at the sites for which Quainzon or Jones were hired, Hodge did not meet her prima facie case to show she was qualified for the position, i.e., willing and able to work in the particular location. (See Diaz v. American Telephone & Telegraph (9th Cir. 1985) 752 F.2d 1356, 1364, fn. 9 [to state a claim for unlawful discrimination the employee must first show he or she is qualified for the position, which includes fact that the employee is willing to take a job in the specific geographic area].)

C. Hodge's Additional Arguments

Although she does not specifically raise a sufficiency of the evidence challenge on appeal, Hodge's appellate briefs include various factual arguments challenging the wisdom and fairness of the District's hiring decisions. None of these arguments show the court erred in denying the JNOV motion, nor do they provide a basis for overturning the jury's factual conclusions.

For example, Hodge engages in a lengthy discussion of the fact that the District has adopted the merit system to govern classified employment. (See Ed. Code, § 45240 et seq.; Personnel Com. v. Barstow Unified School Dist. (1996) 43 Cal.App.4th 871, 876.) Hodge contends that school districts governed by the merit system are precluded from making employment decisions "based upon a panelist's perception of 'the climate of the school' or their perception of a candidate[']s 'personality.'" However, Hodge's claims at trial alleged unlawful discrimination, not a violation of the merit system. Hodge was permitted to, and did, argue that the District's use of subjective factors in the interview process was inconsistent with its merit system, and thus was evidence of a hidden discriminatory intent. While this was a legitimate argument to be made to the jury, the jury had an ample basis to reject the argument, and to instead credit the District's evidence that the school sites were permitted to apply subjective considerations in evaluating each candidate's performance at the interviews, and additionally that the consideration of these factors was not a pretext for unlawful discrimination.

Hodge's reliance on the testimony of Peter Cypher, a custodian at Poway High School, is similarly misplaced. Cypher testified that during the fall of 2002 he wanted Hodge to work at Poway High School, and contacted Guerrero (the District's personnel commission director) and Karen Carlson (the District's lead custodian and an interview panel member for some school sites), requesting that Hodge be assigned to Poway High. According to Cypher, both Guerrero and Carlson advised that "there were issues that [he] was not aware of and that [he] would be better off if [Hodge] didn't work for [him]." Neither Carlson nor Guerrero recalled any such conversation. Cypher documented these conversations in a letter sent to Hodge.

There was no evidence that the District hired a custodian at Poway High School during the time that Hodge sought employment. Thus, Hodge could not establish, and made no attempt to claim, discrimination with respect to a Poway High custodian position. Hodge nonetheless attempts to use Cypher's testimony to show that the District had hidden discriminatory motives for refusing to hire her for other positions. However, the fact that Carlson and Guerrero had reasons for suggesting that Cypher would not want Hodge as an employee does not mean that the jury was required to find these reasons were related to discrimination. Rather, as the jury apparently concluded, District management was aware that Hodge was an employee who had had problems getting along with others and had an unstable job history, and thus was unlikely to be the most qualified person for the position.

II. Breach of Implied Contract Claim

In her amended complaint, Hodge alleged that the District breached an "implied in fact" contract because it failed to rehire her "upon her return to [the District] within 39 months from her resignation . . . ." Before trial, the court granted the District's motion for summary adjudication on this claim. Hodge challenges this ruling on appeal.

"In California, the terms and conditions of public employment are determined by law, not contract." (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1690; accord Miller v. State of California (1977) 18 Cal.3d 808, 813-814; Kim v. Regents of University of California (2000) 80 Cal.App.4th 160, 164.) Because Hodge was a public employee, her employment terms were defined by statute, not contract. Her claim for breach of implied contract thus fails as a matter of law. On appeal, Hodge urges us to construe her contract claim as a cause of action for violation of statutes and rules requiring the District to rehire her. In support, she cites Education Code section 45309 and the District's Personnel Commission Rule 60.600.3. These provisions do not support that the District was required to rehire Hodge.

Education Code section 45309 states that "Any permanent classified employee of a school district who voluntarily resigns from his permanent classified position may be reinstated or reemployed by the governing board of the district, within 39 months after his last day of paid service and without further competitive examination, to a position in his former classification as a permanent or limited-term employee . . . . If the governing board elects to reinstate or reemploy a person as a permanent employee under the provisions of this section, it shall disregard the break in service of the employee and classify him as, and restore to him all of the rights, benefits and burdens of a permanent employee in the class to which he is reinstated or reemployed." (Italics added.) Personnel Commission Rule 60.600.3 provides: "An employee who voluntarily resigns in good standing . . . may be re-employed to a position in his or her former classification for a period of 39 months . . . ." (Italics added.) Because the code section and personnel rule are discretionary, the District did not violate these provisions by failing to rehire Hodge.

Hodge argues that even if the provisions are discretionary, the District was obligated to rehire her once it exercised its discretion to find that she came within the 39-Month rule. However, the plain language of the cited provisions, and the undisputed evidence at the summary judgment proceedings, show that reinstatement into a permanent position was not mandatory under these circumstances. The District did not have a mandatory obligation to reinstate a former employee who sought employment within 39 months. At most, the District was obligated to permit Hodge to interview for applicable positions (for which she was qualified and had indicated an interest) without having to retake the competitive examination. This is precisely the process followed in this case.

In her reply brief, Hodge asserts that the District violated numerous other Education Code provisions. However, Hodge did not raise these issues in her opening appellate brief or in her opposition to the District's summary adjudication motion. She thus waived these contentions and cannot properly raise them for the first time in her reply brief. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.)

The court properly granted summary adjudication on the breach of the implied contract cause of action.

DISPOSITION

Judgment affirmed. Hodge is to bear District's costs on appeal.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O'ROURKE, J.

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^[1] More than 10 years ago, one California court specifically cautioned attorneys to raise McDonnell Douglas burden-shifting related issues before the jury has rendered its verdict: "If you hope to prevail in your discrimination claim, or choose to defend an employment discrimination case, solely on the basis of the other party's failure to satisfy one of the elements of McDonnell Douglas's intermediate burdens . . . you must seek a determination from the trial court, by means of any of the vehicles at a litigant's disposal, that you are entitled to judgment as a matter of law. If you do not do so, and the case is submitted to the trier of fact, the intermediate burdens set forth in McDonnell Douglas will fall away, and the factfinder will have only to decide the ultimate issue of whether the employer's discriminatory intent was a motivating factor in the adverse employment decision." (Caldwell, supra, 41 Cal.App.4th at pp. 204-205.)

^[2] This conclusion does not mean that the McDonnell Douglas analysis is never applicable on appeal after a trial. If the party unsuccessfully moved for a nonsuit or directed verdict on the basis that the opposing party did not meet an intermediate burden, and the opposing party to the motion prevails on a jury verdict, on an appeal challenging the denial of the nonsuit or directed verdict, the court may consider whether the intermediate burden was satisfied, and if not, reverse the judgment. (See, e.g., Quinn v. City of Los Angeles, supra, 84 Cal.App.4th at pp. 479-484.) In this case, Hodge did not move for a nonsuit or directed verdict on these grounds, and instead appeals solely from an order denying her motion made after the jury verdict.

^[3] These positions were filled by: Michael McMorran at Sunset Hills Elementary; Juan Lapitan at Rancho Bernardo High School; Maximo Laminoza at Sunset Hills Elementary; and Ponchito Ong at Canyon View Elementary.

^[4] In this regard, Hodge's repeated reliance on Dornan's reference to terms such as "karma" and "mannerisms" is misleading. Viewing her testimony in context, Dornan was merely attempting to respond to Hodge's counsel's repeated questions attempting to elicit Dornan's definitions of "personality" and "interpersonal skills." Hodge's attempt to characterize this portion of Dornan's testimony as the basis for the District's hiring decision is not accurate.

^[5] We reject the assertion by Hodge's counsel at oral argument that the District's written response to Hodge's FEHA claim was inadmissible hearsay. The response was relevant to show the District's claimed reasons for its employment decision and not for the truth of the matters stated.