McCallum v. County of San Diego

Filed 8/11/06 McCallum v. County of San Diego 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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, Jacqueline M. Stern, Judge. Affirmed.

Carey McCallum appeals, in propia persona, a summary judgment entered against him in his employment discrimination action against the County of San Diego (County).^[1] McCallum contends under the California Fair Employment and Housing Act (FEHA) the County did not hire him for various positions based on his age, race or gender.

McCallum also appeals the denial of his request that the trial judge, the Honorable Jacqueline M. Stern, be disqualified for bias.

For reasons we shall discuss, we affirm the order granting summary judgment in favor of respondents. Further, McCallum's appeal from the denial of his motion to disqualify Judge Stern fails as that order is only reviewable by petition for a writ of mandate filed within 10 days of the decision.

FACTUAL BACKGROUND^[2]

During 2001 McCallum, a White male over 40 years of age, interviewed for several positions with the County. McCallum had previously been employed by the San Diego County Sheriff's Department (Sheriff's Department) in April 2000 for two weeks before he resigned.

In May 2001 McCallum interviewed for a payroll clerk position with the Sheriff's Department. The Sheriff's Department had an open senior payroll clerk position, but sought candidates who would meet the qualifications of a payroll clerk. On his employment application, McCallum did not list any full-time clerical experience.

A supervising clerk and personnel officer, both women, interviewed McCallum. During the interview, the supervising clerk, Catherine Johnson stated, "You [McCallum] would be a 'senior' payroll clerk." Within the County's job classification system, senior payroll clerks are the highest level in the series. McCallum was not hired because he lacked sufficient experience to fill the position. About two months later, the Sheriff's Department filled the position with a transfer candidate who had worked for County for 10 years. The personnel officer stated it was a lateral transfer and the candidate was selected based on her experience and abilities. McCallum later contacted County and learned all payroll clerks in the Sheriff's Department were women.

In April 2001 McCallum applied for a cadet position at the Sheriff's Department. McCallum scored well enough on an initial exam to be invited to an orientation and interview. The interviewer, Detective Joslyn, remarked, "I don't think you are going to make it because of your age and size." McCallum assumed the comment was made because he was overweight. McCallum completed the interview and left with a packet of paperwork he was required to complete to continue in the hiring process. McCallum did not complete the paperwork and approximately three weeks later informed the Sheriff's Department that he wanted to withdraw from the selection process.

During 2001 McCallum also applied and was not selected for intermediate account clerk and departmental clerk positions at the San Diego County Health and Human Services Agency, the Sheriff's Department, and the Treasurer's/Tax Collector's office. McCallum recalls being interviewed by various panels, some including women and minorities. In 2001 and 2002 McCallum was invited to, and waived, six interviews with County for similar clerk positions.

PROCEDURAL HISTORY

A. McCallum's Complaints

In December 2001 McCallum filed two administrative complaints with the California Department of Fair Employment and Housing (DFEH) claiming the Sheriff's Department discriminated against him based on his age, gender and race. He then filed a complaint against County in superior court in August 2002, alleging discrimination, fraud, and emotional distress for County's failure to hire him for various positions he was qualified to hold.

County demurred to the original complaint contending that McCallum failed to state valid claims or exhaust his administrative remedies prior to filing suit. The court sustained the demurrer with leave to amend on the ground that McCallum had failed to exhaust his administrative remedies. In July 2003 McCallum filed an amended complaint alleging discrimination and emotional distress. County again demurred.

In October 2003 the court sustained County's unopposed demurrer without leave to amend on the ground that McCallum failed to exhaust his administrative remedies. The court ordered the action dismissed with prejudice. McCallum appealed the order, and in the interim, the California Supreme Court issued a ruling that affected the grounds for demurrer on which the court relied. As a result, this court reversed the court's dismissal of McCallum's claims.

B. McCallum's Request for Judge Stern's Disqualification

The case was transferred to Judge Stern on September 30, 2003. On March 4, 2005, after this court reversed judgment of dismissal and the order sustaining County's demurrer to McCallum's complaint, Judge Stern held a status conference and disclosed she had worked for the Office of County Counsel for 14 years ending in March 1998. On July 6, 2005, McCallum requested that Judge Stern recuse herself because she previously worked for the Office of County Counsel and was biased in her rulings in favor of County. On July 11 Judge Stern denied his request as untimely.

On July 19 and July 22, 2005, McCallum sent letters to the presiding judge of the superior court who informed McCallum the only way to have the denial reviewed was through normal appellate and/or writ procedures. McCallum did not file a petition for a writ of mandate to have the decision reviewed.

C. Motion for Summary Judgment

In June 2005 County filed a motion for summary judgment. County claimed that McCallum's discrimination claims lacked merit and no triable issue of material fact existed. In support of its motion for summary judgment, County offered McCallum's deposition, his employment applications, affidavits from individuals who interviewed McCallum, his DFEH complaints, and a statement of undisputed material facts. County also alleged McCallum failed to exhaust his administrative remedies, and his tort claim for emotional distress was barred because he failed to file a claim under Government Code section 911.2.

On August 31, 2005, McCallum filed an opposition to County's motion for summary judgment. McCallum was required to serve County with the opposition by September 2, 2005, however County did not receive a copy until September 8, 2005. Additionally, McCallum did not include a response to County's statement of undisputed material facts.

The court granted County's motion. The court noted that McCallum did not comply with the requirement of filing a response to County's statement of undisputed material facts but nevertheless elected to reach the merits of his claims. The court found no triable issue of fact existed as to whether McCallum could establish a prima facie case of discrimination for the intermediate account clerk and payroll clerk positions. The court found McCallum failed to show a prima facie case of discrimination for the sheriff's cadet position because he withdrew from the selection process. Addressing the alleged discrimination in the nonselection for a departmental clerk position, the court found the claim jurisdictionally barred because McCallum failed to file an administrative complaint. The court dismissed McCallum's emotional distress claims due to a lack of evidence and for his failure to file a tort claim under Government Code section 905.

STANDARD OF REVIEW

We review the record de novo in determining whether the trial court's order for summary judgment was properly granted. The trial court's decision is reviewed "considering all the evidence in the moving and opposition papers except that to which objections have been made and sustained. [Citation.]" (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334; Code Civ. Proc.,^[3] § 437c, subd. (c).) Once the defendant shows one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action, the burden shifts to the plaintiff to show a triable issue of fact exists for that cause of action. (§ 437c, subd. (o)(2).) When a plaintiff relies on an inference rather than evidence, for the inference to be reasonable its existence must be more likely than its nonexistence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 857.) If all papers submitted by the parties show there is no triable issue of material fact, and the moving party is entitled to judgment as a matter of law, the court must grant the motion for summary judgment. (§ 437c, subd. (c); Aguilar, supra, 25 Cal.4th at p. 843.)

DISCUSSION

I. Summary judgment of McCALLUM'S FEHA claims

In order to survive a motion for summary judgment, McCallum must present evidence to establish a prima facie case of discrimination. The specific elements of a prima facie case may vary based on the facts. (Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 253, fn. 6.) Because inherent difficulties exist in showing intentional discrimination, courts have generally adopted a multifactor test to determine if a plaintiff was subject to disparate treatment. The plaintiff must provide evidence that: (1) he was a member of a protected class, (2) he was qualified for the position he sought, (3) he suffered an adverse employment action, and (4) some other circumstance suggests discriminatory motive. (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802; Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at p. 253, fn. 6; Guz v. Bechtel Nat. Inc., supra, 24 Cal.4th at pp. 354-355.)

A. McCallum's Failure To Provide a Response to the Statement of Undisputed Material Facts

In its order granting County's motion for summary judgment, the court reached the merits of McCallum's claims despite his failure to comply with section 437c, subdivision (b). Under section 437c subdivision (b), the party opposing summary judgment must respond to each of the material facts contended by the moving party and indicate whether the opposing party agrees or disagrees that those facts are undisputed. The response must also include any other material facts that the opposing party believes are disputed.

McCallum did not provide a response to County's statement of undisputed material facts and his failure to do so could have been a sufficient ground for the court to grant County's motion for summary judgment. (§ 437c, subd. (b); Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 734-735.) The court elected to reach the merits of McCallum's claims, as do we.

B. Intermediate Account Clerk Positions

McCallum asserts he was not hired for the intermediate account clerk positions because of discrimination based on his age, gender, or race. In his FEHA complaint, McCallum claimed many of the interviewers were women who did not want to hire an "older, white male." In his complaint he stated he was well-qualified and achieved high scores on placement exams. For the purposes of this opinion, we assume without deciding that McCallum has met the first three conditions to establish a prima facie case, that: (1) he was a member of a protected class, (2) he was not selected for the position, and (3) he was qualified for the position he sought. However, he has not provided any evidence to show the fourth prong was met─that County had a discriminatory motive in not selecting him for the position.

In its motion for summary judgment County submitted McCallum's deposition as evidence showing McCallum's claims lacked merit. In his deposition McCallum stated, "[M]y personal experience is that women seem to─at least for the positions that I've interviewed for, prefer to hire other women." McCallum's personal observations and generic assertions are not circumstantial evidence of discrimination. (Ibaria v. Regents of University of California (1987) 191 Cal.App.3d 1318, 1329.) Without providing any evidence of a particular policy or practice to discriminate against men, McCallum has not stated a valid discrimination claim. (Ibid.)

In McCallum's opposition to County's motion for summary judgment he failed to present any evidence of discrimination. He asserted, "Defendant's claim of legitimate business reasons for hiring someone other than plaintiff is a pretext to hide their discriminatory hiring practices, and the results prove[ ] it! They hired an Hispanic female." However, a vague, unsubstantiated assertion is not sufficient evidence to raise a genuine issue of material fact as to whether another person was chosen to affect a discriminatory practice of hiring. (Ritter v. Hughes Aircraft Co. (1995) 58 F.3d 454, 457.)

Merely stating that some other person outside of the protected group was hired is not evidence of discrimination. McCallum's thoughts or feelings on why he was not hired, unsupported by evidence, does not lead to an inference of discrimination.

C. Departmental Clerk Positions

In his amended complaint, McCallum claims he was discriminated against because County did not hire him for departmental clerk positions that he was well qualified to hold. In its order granting summary judgment, the court ruled that filing a DFEH administrative complaint is a jurisdictional prerequisite to filing suit. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.)

Without first specifying particular acts of discrimination in an administrative complaint, McCallum could not bring a statutory FEHA discrimination claim for the departmental clerk positions. (Rojo v. Kliger (1990) 52 Cal.3d 65, 88.) The court properly viewed his failure to file an administrative complaint as a jurisdictional defect that precluded him from filing suit.

D. Sheriff's Cadet Position

In his amended complaint, McCallum asserted he was not selected for a sheriff's cadet position based on his age. After a general information session for new candidates, McCallum interviewed with Detective Joslyn, who during the interview, remarked, "I don't think you are going to make it because of your age and size." In his opposition to the motion for summary judgment, McCallum asserted Detective Joslyn's comment was an "unquestionably discriminatory remark."

However, this remark, by itself, does not establish a discriminatory motive. In Mondero v. Salt River Project (2005) 400 F.3d 1207, 1212, the court found a supervisor's statement, "They bring a woman to do a man's job?", was not evidence of gender discrimination, particularly when the individual who made the comment did not have control over the hiring process. An off-hand remark from an interviewer, showing no relation to a hiring decision, is not evidence of a discriminatory intent or motive. (Id. at p. 1213.)

On a postinterview comment form, Detective Joslyn indicated that McCallum passed the interview, showing the comment was not intended to exclude McCallum from consideration. However, even if McCallum could show Detective Joslyn's comment was evidence of a discriminatory motive, he did not show he suffered an adverse employment effect.

McCallum voluntarily withdrew his application. After the interview, McCallum left with a packet of personal history information that he was required to complete to continue in the hiring process. When the Sheriff's Department called McCallum to ask if he intended to return the paperwork and continue interviewing, McCallum said he was no longer interested. A prima facie case of discrimination cannot be established if the application process was not completed. (Levy v. Regents of University of California (1988) 199 Cal.App.3d 1334, 1345; Ibaria v. Regents of University of California,, supra, 191 Cal.App.3d at p. 1329.) Because McCallum voluntarily withdrew his application, no material issue of fact exists as to whether he suffered a discriminatory impact.

E. Payroll Clerk Position

In his opposition to County's motion for summary judgment, McCallum claimed he was not hired for a payroll clerk position in the Sheriff's Department because of his gender, age, or race. To survive summary judgment, McCallum needed to show evidence of a discriminatory pretext in County's decision not to hire him for the position. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1003.)

To support his claim of age discrimination, McCallum pointed to the interviewer's comment that he would be filling a "senior" payroll clerk position. McCallum claimed that because he applied for an entry level position the "senior" comment was a reference to his age. According to the Sheriff's Department, however, the official job title for the position was a "senior payroll clerk" and the position was open to individuals who met the qualifications of a payroll clerk. When the interviewer stated McCallum would be "senior" payroll clerk, she was stating the official title of the position rather than referencing McCallum's age. McCallum presented no evidence showing the comment applied to him personally rather than the job classification.

In support of his gender discrimination claim, McCallum asserted in his opposition points and authorities that: (1) all the payroll clerks were women, and (2) the individuals who interviewed him were women. These generic assertions are not evidence County had a discriminatory motive in choosing not to hire McCallum. A discriminatory intent cannot be inferred if the plaintiff offers no evidence to refute the employer's legitimate explanation for its decision. (St. Mary's Honor Center v. Hicks (1993) 509 U.S. 502, 511; Hersant v. Department of Social Services,, supra, 57 Cal.App.4th at p. 1003; Ritter v. Hughes Aircraft Co., 58 F.3d at p. 458.) In Hersant, this court stated, "[T]o avoid summary judgment an employee claiming discrimination must offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual." (Hersant, supra, 57 Cal.App.4th at pp. 1004-1005.)

The personnel officer gave a legitimate explanation for the decision to hire another candidate. The candidate had worked for County for over 10 years and had relevant payroll and clerical experience. McCallum had no full time clerical experience listed on his application. He admitted that he had no reason to believe he was better qualified or had more relevant experience than the candidate selected. McCallum only offered unsupported personal observations that he believed women preferred to hire other women.

By showing sufficient nondiscriminatory reasons for County's decision to hire a candidate other than McCallum, the burden shifted to McCallum to present evidence that the reasons given by County were pretexts. By failing to do so, McCallum's claims were properly dismissed by summary judgment.

II. Denial of McCallum's disqualification request

McCallum contends the court improperly denied his request to disqualify Judge Stern. However, McCallum's challenge of the disqualification decision is not reviewable on appeal. A ruling on a motion to disqualify a judge is reviewable only by a petition for writ of mandate filed within 10 days of the decision. (§ 170.3, subd. (d); People v. Hull (1991) 1 Cal 4th 266, 273.) Accordingly, we need not reach the merits of this claim.

DISPOSITION

The judgment is affirmed.

NARES, Acting P. J.

WE CONCUR:

HALLER, J.

IRION, J.

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^[1] This is McCallum's second appeal from a judgment dismissing his claims. On his first appeal, we reversed a judgment of dismissal entered after the trial court sustained a demurrer without leave to amend on the ground McCallum had failed to allege exhaustion of administrative remedies. We concluded there was a reasonable possibility McCallum could cure the pleading defect by amending his complaint.

^[2] McCallum failed to cite to the record to support his contentions on appeal. Because of this fundamental defect we could summarily dismiss his appeal. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.)

^[3] All further statutory references are to the Code of Civil Procedure.