Acquaah v. State Water Res. Control Bd.

Filed 10/19/06 Acquaah v. State Water Res. Control Bd. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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After plaintiff Kwame “Daniel” Acquaah was rejected during probation from his job with defendant State of California, State Water Resources Control Board, he filed a complaint charging defendant with unlawful discrimination and retaliation under the Fair Employment and Housing Act (FEHA). (Gov. Code, § 12940 et seq.) A third cause of action for defamation was later dismissed and is not at issue in this appeal. The trial court granted defendant’s motion for summary judgment, and this appeal is taken from the ensuing judgment.

Plaintiff contends triable issues of fact remain on his complaint. We disagree, and therefore affirm the judgment.

Summary Judgment Standard

As this court succinctly described, “[s]ummary judgment is properly granted if there is no question of fact and the moving party is entitled to judgment as a matter of law. [Citations.] We construe the moving party’s papers strictly and the opposing party’s papers liberally. [Citation.] The moving party must demonstrate that under no hypothesis is there a material factual issue requiring a trial, whereupon the burden of persuasion shifts to the opposing party to show, by responsive statement and admissible evidence, that triable issues of fact exist. [Citations.]

“However, ‘[f]rom commencement to conclusion, the moving party bears the burden of persuasion that there is no genuine issue of material fact and that [it] is entitled to judgment as a matter of law. . . . There is a genuine 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.’ [Citation.] On appeal, we exercise our independent judgment to determine whether there are no triable issues of material fact and the moving party thus is entitled to judgment as a matter of law.” (Thousand Trails, Inc. v. California Reclamation Dist. No. 17 (2004) 124 Cal.App.4th 450, 457; see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843-857.)

“For practical purposes, an issue of material fact is one which, in the context and circumstances of the case, ‘warrants the time and cost of factfinding by trial.’ [Citation.] In other words, not every issue of fact is worth submission to a jury. The purpose of summary judgment is to separate those cases in which there are material issues of fact meriting a trial from those in which there are no such issues.” (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1375-1376.)

Facts and Proceedings

The following facts are taken from the parties’ statement of undisputed material facts and from other materials submitted in conjunction with defendant’s motion for summary judgment.

Plaintiff is originally from the West African nation of Ghana. He began a job with the State of California in October 2001 and, while still on the probationary period for that position, took a job with defendant on June 24, 2002. Plaintiff’s new supervisor, Stuart Lott, had served on the interview panel and was responsible for hiring plaintiff. Lott agreed to count plaintiff’s eight months at his earlier job toward his one-year probationary period with defendant.

Plaintiff had no supervisory responsibilities in his previous position, but his new job involved managing a unit in defendant’s information technology office. On July 17, 2002, less than one month after being hired by defendant, plaintiff was told to enroll in a mandatory class for supervisors as soon as possible, but plaintiff did not request this training until more than one month later.

The staff in plaintiff’s unit did not get along well. On several occasions over the summer of 2002, plaintiff told his subordinates that they would be “written up” or that other adverse action would be taken if they did not cooperate with plaintiff. Lott told plaintiff several times that these types of comments were not appropriate and that he needed to take a different approach toward discipline.

On other occasions, plaintiff made comments to his staff and behaved in a manner that some perceived as sexist. Although plaintiff denied having a sexist attitude, Lott told him that, as a supervisor, plaintiff needed to be more aware of perceptions.

Despite these issues, Lott believed plaintiff was generally doing a good job. However, events on September 4, 2002, changed that opinion. One of plaintiff’s employees went to Lott to complain about plaintiff’s conduct, and Lott met with plaintiff to discuss this problem. Immediately afterward, plaintiff went into a meeting with his staff. Plaintiff angrily chastised the group and made comments that the employees perceived as threatening, including warnings of formal adverse actions. After this meeting, plaintiff left on his scheduled vacation.

One of the employees met with Lott to discuss her concerns about plaintiff’s behavior, leading Lott to have meetings on September 4 and 5 with the entire group. Lott was surprised by the intensity of the employees’ reactions and was dismayed to learn that the behavior he had repeatedly counseled plaintiff against was continuing.

Lott consulted with his superiors about how to handle the matter. Discussions centered on whether plaintiff could continue as a supervisor or whether he should be rejected from employment during this probationary period.

On September 10, 2002, at roughly the same time that these discussions were going on, one of plaintiff’s staff members filed a complaint alleging plaintiff posed a risk of physical violence in the workplace. Defendant placed plaintiff on administrative leave, and decided to wait until this complaint was resolved before making a final determination about plaintiff’s status.

In his response to the complaint of potential workplace violence, plaintiff charged defendant with discriminatory conduct, asserting that defendant was biased against him due to his race and national origin.

On September 20, 2002, the investigator determined that plaintiff’s remarks did not meet the definition of “threat” under defendant’s policies because “they did not create a reasonable perception that [plaintiff] is likely to commit a physical assault.” The report made no conclusions as to whether plaintiff made the comments attributed to him by his staff.

On September 26, 2002, defendant sent plaintiff a notice of rejection during probation, effective October 4, 2002. The notice, prepared by Lott, explained that plaintiff was rejected “for reasons relating to your qualifications, for failure to demonstrate merit and efficiency, and for the good of the service.” It stated that effective operation of plaintiff’s unit was critical to defendant’s functioning, and continued: “Supervision of the Unit requires the use of good judgment and the ability to work cooperatively and effectively with the staff. You have not demonstrated the qualifications necessary to successfully carry out your assigned duties.”

The notice outlined specific instances to support this conclusion. Lott noted that he had counseled plaintiff “not to threaten staff with adverse or administrative action either individually or in a group setting, in the abstract.” Lott described the comments plaintiff had made in the September 4 staff meeting and concluded that these remarks were “highly inappropriate, demonstrated poor judgment, and were contrary to the direction I gave you on several occasions.” Lott also outlined employee complaints about perceived gender bias and harassment. Some of these circumstances Lott had addressed with plaintiff earlier; others Lott learned about only after his September 4 meeting with staff.

Plaintiff appealed his rejection on probation to the State Personnel Board and filed a discrimination complaint with the Department of Fair Employment and Housing. After receiving a right-to-sue letter, plaintiff filed a complaint against defendant in superior court, alleging causes of action under FEHA for discrimination on the basis of race and/or national origin, and unlawful retaliation. The trial court granted defendant’s motion for summary judgment, and this appeal followed.

Discussion

I

Discrimination on the Basis of Race and/or National Origin

Plaintiff’s complaint alleged he was rejected from probation because of his race and/or national origin. On appeal, plaintiff contends triable issues of fact remain on this claim. We disagree.

California utilizes the three-stage burden-shifting test established by the United States Supreme Court for trying claims of intentional discrimination. Under this “McDonnell Douglas“ test, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 354 (Guz).) While this burden is not onerous, the plaintiff “must at least show ‘”actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were ‘based on a [prohibited] discriminatory criterion. . . .’ [Citation.]” [Citation.]’” (Id. at p. 355.)

“Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. [Citations.]” (Guz, supra, 24 Cal.4th at p. 355.)

If plaintiff establishes a prima facie case, “the burden shifts to the employer to rebut the presumption [of discrimination] by producing admissible evidence, sufficient to ‘raise[] a genuine issue of fact’ and to ‘justify a judgment for the [employer],’ that its action was taken for a legitimate, nondiscriminatory reason. [Citations.]

“If the employer sustains this burden, the presumption of discrimination disappears. [Citations.] The plaintiff must then have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. [Citations.] In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias. [Citations.] The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff. [Citations.]” (Guz, supra, 24 Cal.4th 355-356.)

However, these relative burdens are less clear in the context of summary judgment proceedings. “Several California decisions have suggested that because a plaintiff opposing summary judgment need not demonstrate triable issues until the moving defendant has made an initial no-merit ‘show[ing],’ the McDonnell Douglas burdens are ‘reversed’ on a defense motion for summary judgment against a claim of discrimination in employment. [Citations.] Other California cases, however, have indicated that the plaintiff can survive an employer’s motion for summary judgment only by presenting, at the outset, triable evidence satisfying the prima facie elements of McDonnell Douglas. [Citations.]” (Guz, supra, 24 Cal.4th at pp. 356-357.)

We need not weigh in on this debate, however. As in Guz, supra, 24 Cal.4th at page 357, defendant’s motion for summary judgment was not predicated solely on plaintiff’s failure to demonstrate a prima facie case of discrimination, but also included evidence outlining the legitimate business reasons for defendant’s decision to reject plaintiff from probation.

Here, defendant rejected plaintiff from probation “for reasons relating to [his] qualifications, for failure to demonstrate merit and efficiency, and for the good of the service.” The notice of rejection informed plaintiff that supervision of the unit “requires the use of good judgment and the ability to work cooperatively and effectively with the staff. You have not demonstrated the qualifications necessary to successfully carry out your assigned duties.” The notice described several instances to illustrate this conclusion.

Plaintiff’s method of supervising employees involved threatening or warning employees that if they did not cooperate, they would be “written up” or subjected to administrative action. On several occasions, defendant told plaintiff that such statements were unacceptable. Despite this explicit instruction, at his staff meeting on September 4, plaintiff once again threatened or warned employees that they would receive formal written reprimands if their behavior did not improve.

Similarly, after complaints by plaintiff’s staff, defendant had counseled plaintiff to avoid comments and behavior that staff perceived as sexist and offensive. This sage advice was ignored or forgotten: on September 4, 2002, Lott learned that plaintiff had continued to treat employees in a sexist and/or harassing manner.

The undisputed evidence established that plaintiff was unable to work cooperatively and effectively with his staff, and acted without regard for advice given to him by his superiors. In other words, defendant established a legitimate business reason for rejecting plaintiff from probation.

Plaintiff asserts triable issues of fact nonetheless remain because he introduced evidence to establish that defendant’s reasons were pretextual. We disagree.

“‘To avoid summary judgment, [appellant] “must do more than establish a prima facie case and deny the credibility of the [defendant’s] witnesses.” [Citation.] [He] must produce “specific, substantial evidence of pretext.” [Citation.]’ [Citation.] We emphasize that an issue of fact can only be created by a conflict of evidence. It is not created by speculation or conjecture.” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807 (Horn).)

The ultimate question we are faced with, therefore, is whether plaintiff has offered substantial evidence that defendant’s “stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.)

Defendant’s reasons for rejecting plaintiff from probation need not have been wise or correct. (Guz, supra, 24 Cal.4th at p. 358.) “While the objective soundness of an employer’s proffered reasons supports their credibility . . . , the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Thus, ‘legitimate’ reasons [citation] in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination.” (Ibid.; see also Hersant v. Department of Social Services, supra, 57 Cal.App.4th at p. 1005.)

We examine plaintiff’s evidence of pretext and/or discriminatory animus.

Plaintiff emphasizes that Lott had told him that he was doing a good job. But plaintiff ignores the fact that those comments were made before Lott learned of plaintiff’s behavior at the September 4 staff meeting. Comments made before these events came to light cannot establish pretext.

Plaintiff contends that pretext and discriminatory animus are apparent from the fact that defendant failed to complete a report assessing his performance on probation as required by state policy. Plaintiff misconstrues this requirement.

Before defendant hired him in June 2002, plaintiff was working as a probationary employee in another department, having been hired there in October 2001. Plaintiff persuaded defendant not to require another full year of probation but instead to count his time with this other department toward his probationary period with defendant. Plaintiff’s probationary period was therefore scheduled to end in October 2002, rather than June 2003.

Pursuant to defendant’s policies, a probation assessment report is required after the end of every four months of the probationary period. Contrary to plaintiff’s characterization, plaintiff did not begin to work for defendant on Day One of his probationary period. Instead, his probationary time with his previous agency transferred to his position with defendant, leaving him less than four months (from the end of June to early October) until his status became permanent. Defendant was not required to complete a report during this timeframe.

The remainder of plaintiff’s claims do not relate to material issues of fact. For example, plaintiff argues that his statements to staff regarding possible future administrative action should be characterized as “warnings,” not “threats.” This is a distinction without a difference. The fact remains that plaintiff continued to engage in conduct that Lott on several occasions explicitly told him to avoid. Plaintiff’s failure to comply with this counsel constituted a legitimate business reason for his rejection from probation.

Similarly, plaintiff places undue emphasis on one paragraph in the notice of rejection that relates incidents in which plaintiff described himself as a “warrior.” Plaintiff denies having made such statements, and contends that therefore triable issues of fact remain. We disagree. Defendant introduced evidence that different people on different occasions heard plaintiff describe himself in this fashion. Plaintiff’s self-serving denial is weak at best and does not create a triable issue of fact. (See Guz, supra, 24 Cal.4th at pp. 369-370.) More importantly, because this issue was peripheral to defendant’s decision to reject plaintiff from probation, plaintiff’s denial does not relate to an issue of material fact.

Plaintiff points to remarks allegedly made by another employee about the sexist attitudes of “all African men” as evidence of discriminatory animus. But the employee in question denied ever making such a comment and plaintiff presented no evidence to establish otherwise. An unfounded allegation does not create a triable issue of fact. (Horn, supra, 72 Cal.App.4th at p. 807.)

Likewise, to the extent that plaintiff suggests that Lott was motivated by discriminatory animus, we disagree. When the same person “‘is responsible for both the hiring and firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive.’ [Citations.]” (Horn, supra, 72 Cal.App.4th at p. 809.) Plaintiff introduced no evidence to support a contrary conclusion.

“[T]he great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Guz, supra, 24 Cal.4th at p. 361.) That is the case here.

II

Retaliation

Plaintiff’s complaint alleged that defendant rejected him from probation as retaliation for plaintiff’s claims of discriminatory treatment. On appeal, plaintiff contends summary judgment was improper because triable issues of fact remained on this cause of action. We disagree.

Under FEHA, it is unlawful for an employer “to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint . . . under this [Act].” (Gov. Code, § 12940, subd. (h).)

“‘”To establish a prima facie case of retaliation, a plaintiff must show that [he] engaged in protected activity, that [he] was thereafter subjected to adverse employment action by [his] employer, and there was a causal link between the two.”’ [Citations.] ‘The retaliatory motive is “proved by showing that plaintiff engaged in protected activities, that his employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter.” [Citation.] “The causal link may be established by an inference derived from circumstantial evidence, ‘such as the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.’” [Citation.]’ [Citation].” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69-70.)

Here, there is no causal link between plaintiff’s complaint and defendant’s decision to reject plaintiff from probation. The undisputed facts demonstrated that, after the September 4, 2002 staff meeting, Lott met with his superiors to discuss whether to retain plaintiff or to reject him on probation. They agreed that plaintiff could not remain as supervisor of the unit, and investigated whether there might be any alternatives to rejecting plaintiff from probation, such as moving plaintiff to a different position.

On September 10, 2002, one of plaintiff’s subordinates filed a complaint charging that plaintiff’s conduct posed a risk of physical threat. When plaintiff learned of this investigation, he filed a response alleging discriminatory treatment. This response was not written until September 16, 2002, nearly two weeks after the September 4 meeting. Defendant deferred its final decision about plaintiff’s continued status pending the outcome of this investigation.

In her report dated September 20, 2002, the investigator concluded that plaintiff’s comments to his subordinates did not constitute a threat of physical harm. Defendant notified plaintiff of his rejection from probation six days later, on September 26, 2002.

This chronology refutes any notion that the adverse employment decision was linked to plaintiff’s filing of a complaint. Defendant had already decided that plaintiff could not continue in his current position by the time plaintiff filed his complaint in response to the complaint of his coworker, and was looking into possible alternatives. The fact that defendant waited until the investigation was completed before notifying plaintiff of his rejection from probation was a matter of common sense and good business practice. It does not even hint at retaliation. Plaintiff reiterates the same claims of pretext he raised in the context of his discrimination cause of action. For the reasons already discussed, none of these claims raises a triable issue of material fact. The court properly granted defendant’s motion for summary judgment.Disposition

The judgment is affirmed. Defendant is awarded its costs on appeal.

HULL , J.

We concur:

SCOTLAND , P.J.

ROBIE , J.

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