Williams v. Los Angeles Unified School Dist.

Filed 10/16/06 Williams v. Los Angeles Unified School Dist. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert L. Hess, Judge. Affirmed.

Law Offices of Jeffrey C. McIntyre, Jeffrey C. McIntyre, for Plaintiff and Appellant.

Ballard, Rosenberg, Golper & Savitt LLP, John B. Golper, John J. Manier, Eric C. Schwettmann, for Defendant and Respondent.

____

Plaintiff and appellant Jess Williams (plaintiff) appeals from the trial court’s summary judgment in favor of defendant and respondent Los Angeles Unified School District (the District), in plaintiff’s action for racial discrimination and harassment in violation of the Fair Employment and Housing Act. (Gov. Code, § 12940, et seq. (FEHA).)[1] We hold that the District provided a legitimate, non-discriminatory reason for the disciplinary action taken against plaintiff, and that plaintiff failed to meet his burden of proving that reason to be a pretext. We therefore affirm the judgment.

BACKGROUND[2]

Plaintiff is an African-American maintenance worker employed by the District since 1994. In August 1999, plaintiff was suspended from employment based on charges of insubordination, dereliction of duty, and discourteous, abusive, or threatening treatment of fellow employees. Plaintiff appealed the suspension, and following an evidentiary hearing, a neutral hearing officer concluded that plaintiff had refused to empty a trash can when his supervisor directed him to do so, and that plaintiff was inattentive during a cleaning demonstration, but that there was insufficient evidence that plaintiff had been discourteous, abusive, or threatening to other employees. Based on the hearing officer’s recommendations, plaintiff’s suspension was rescinded and plaintiff was awarded his lost wages during the period of suspension. Between August 1999 and February 2000, plaintiff took a medical leave of absence. Upon his return to work, plaintiff met with District personnel services manager Marcia Degl’Innocenti. According to plaintiff, Ms. Degl’Innocenti was hostile toward him, and told plaintiff that he must undergo a “fitness to return to work“ examination that included a drug test. Plaintiff passed the “return to work examination.”

In September 2001, plaintiff was assigned as a substitute maintenance worker to Lanterman High School, a special education school near downtown Los Angeles. In September 2001, Susan Niemeyer, a District human resources representative, began investigating the following alleged incidents of misconduct by plaintiff during his assignment at Lanterman: On September 4, 2001, Grace Moore, an African-American assistant at Lanterman, claimed that plaintiff had refused to sign in at the Lanterman main gate despite being asked to do so, and that plaintiff was rude and discourteous to her upon entering Lanterman; on September 11, 2001, plaintiff refused to move his car from the Lanterman staff parking lot after Donna Williams, an African-American assistant at Lanterman, asked him to do so, and plaintiff waved his hand at Ms. Williams in a dismissive manner and walked away; on October 4, 2001, plaintiff falsely accused Lanterman’s principal, Emma Byrd, of making a threatening comment to plaintiff.

Based on the results of Ms. Niemeyer’s investigation, the District sent plaintiff a notification recommending termination of his employment. In December, 2001, an administrative review of plaintiff’s case was conducted. Following that review, the District forwarded its recommendation of dismissal to the Board of Education, and on February 27, 2002, the Board terminated plaintiff’s employment. The notice of dismissal sent to plaintiff stated that the decision to terminate his employment was based on witness statements obtained in connection with the 2001 charges, and plaintiff’s “prior suspension for similar performance failures.”

Before plaintiff’s employment was terminated, plaintiff had received performance evaluations that indicated his work either met or exceeded expectations. Plaintiff had also taken and passed a promotional examination for an assistant plant manager position. By letter dated March 13, 2002, the District informed plaintiff that he was “permanently barred from competing in any classified employment examinations” because of his “record of unsatisfactory service and subsequent dismissal from service as a Building and Grounds Worker on February 27, 2002”. The letter further stated that plaintiff could “request an administrative review of this action” within seven days of the date of the letter and that “failure to file a request for review within the seven-day period will constitute a waiver of your right to review.” Plaintiff did not appeal the District’s action barring him from competing in future employment examinations.

Plaintiff did appeal the District’s decision to terminate his employment. At an evidentiary hearing held before a neutral hearing officer on October 18, 2002, the following evidence was presented: Donna Williams testified that she saw plaintiff drive into the Lanterman staff parking lot on September 11, 2001; she did not know plaintiff and thought he was one of the carpenters who was attending a meeting at the campus that day; because arrangements had been made for the carpenters to park in another designated area, Ms. Williams told plaintiff not to park in the staff lot because the lot was reserved for staff; according to Ms. Williams, plaintiff threw up his hands and asked who owned the parking lot; after Ms. Williams said it was a school district lot, plaintiff said he was a school district employee and walked away; Ms. Williams stated that plaintiff signed in when he entered the campus and that as a building and grounds worker, plaintiff was entitled to park in the Lanterman staff parking lot; Ms. Williams said she did not see any parking pass on plaintiff’s dashboard and that she thought he was one of the carpenters attending a meeting on campus. Emma Byrd testified that she saw plaintiff and Ms. Williams talking on September 11, 2001, but that she could not hear what was said.

Plaintiff testified at the October 18, 2002 hearing that he did not remember interacting with Ms. Williams, but that he had a plaque on his dashboard indicating he was a District employee and that he wore a badge that included his name, photograph, date of hire, and his classification as a building and grounds worker. Plaintiff further testified that on September 11, as he was walking on the Lanterman campus, he encountered Ms. Byrd, who asked plaintiff why he was there, and plaintiff identified himself as a substitute building and grounds worker. According to plaintiff, as Ms. Byrd walked away, she told him that she was going “to take care of his ass.” On September 12, 2001, plaintiff called a supervisor, Felix White, to report what Ms. Byrd allegedly said. Mr. White told him to notify the union, and plaintiff did so on September 24 by filing a grievance.

Marcia Degl’Innocenti testified that she attended an October 4, 2001 meeting concerning the grievance plaintiff had filed against Ms. Byrd. Ms. Degl’Innocenti testified that at the October 4 meeting, plaintiff said that Ms. Byrd had made the threatening comment in front of plant manager Walter Rodriguez. Ms. Byrd denied making any threatening comment to plaintiff.

Lawrence Phillips, an area facilities services director for the District, testified that at the time he approved plaintiff’s dismissal, he knew that plaintiff’s 1999 suspension had been rescinded; however, he thought that the previous incident put plaintiff on notice concerning the District’s position with regard to rude and discourteous conduct.

After the October 18, 2002 hearing concluded, the hearing officer issued written findings and a recommendation. In the written findings, the hearing officer stated that the charge concerning plaintiff’s alleged failure to sign in at the Lanterman front gate had been dismissed. With regard to plaintiff’s interaction with Ms. Williams in the Lanterman staff parking lot, the hearing officer noted that although plaintiff may have been uncooperative when he refused to move his car, there was insufficient evidence that he had behaved in a discourteous, abusive, or threatening manner. The hearing officer found that there was sufficient evidence that plaintiff had falsely accused Ms. Byrd of making a threatening comment, but that the transgression did not warrant terminating plaintiff’s employment. The hearing officer noted that plaintiff’s 1999 suspension, on which the District had relied in part in dismissing plaintiff, had been rescinded. The hearing officer concluded: “Since the dismissal was based upon rather minor allegations, some of which were not proven, and the District relied upon a suspension that had already been rescinded, I find that in the context of this case, the District’s decision was so flawed that the dismissal should not be sustained. The hearing officer recommended that plaintiff be reinstated and that the discipline be reduced to a 30-day suspension On April 16, 2003, the personnel commission adopted the hearing officer’s findings of fact and recommendation, and ordered that plaintiff’s employment be reinstated. Plaintiff was awarded back pay from March 2, 2002 to May 26, 2003, and he returned to work in June 2003.

On March 28, 2002, plaintiff filed a complaint of discrimination with the Department of Fair Employment and Housing alleging race discrimination in connection with the discipline issued by the District on September 11, 2001, and the January 24, 2002 notification of discharge. He obtained a right to sue letter and filed this action on March 27, 2003.

The District moved for summary judgment, or in the alternative, for summary adjudication, on the grounds that plaintiff could not establish a cause of action for harassment or race discrimination and that the District had a legitimate, non-discriminatory reason for its actions. The trial court granted summary judgment in the District’s favor, and this appeal followed.

DISCUSSION

A. Standard of Review

Summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

A defendant moving for summary judgment bears the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action, such as the statute of limitations. (Code Civ. Proc., § 437c, subd. (p)(2); Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.) If the plaintiff does not make such a showing, summary judgment in favor of the defendant is appropriate. In order to obtain a summary judgment, “all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action . . . . [T]he defendant need not himself conclusively negate any such element . . . .” (Id. at p. 853.)

On appeal from a summary judgment, an appellate court makes “an independent assessment of the correctness of the trial court’s 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.” (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.) In doing so, we “consider[ ] all the evidence set forth 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.)

B. Discrimination

Plaintiff’s claim for discrimination on the basis of race or national origin is governed by FEHA. That statute provides in relevant part: “It shall be an unlawful employment practice . . . . (a) for an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Govt. Code, § 12940, subd. (a).)

A prima facie case of race discrimination requires evidence of satisfactory job performance, an adverse employment action, and more favorable treatment of similarly-situated individuals outside the protected class. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1003 (Hersant).) An employer seeking summary judgment in a discrimination case meets its burden by showing that one or more of these prima facie elements is lacking, or that legitimate, non-discriminatory reasons existed for the adverse employment action. “‘[L]egitimate’ 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.“ (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 358.) Following such showing by the employer, the burden shifts to the employee to demonstrate that the reasons for termination are a pretext and that the employer acted with a discriminatory motive. (Id. at pp. 354-356.) To do so, the employee must present “‘substantial responsive evidence’ that the employer’s showing was untrue or pretextual.” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735.) Pretext may be demonstrated by showing “‘the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge. [Citation.]’ [Citation.]” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224.) “[A]n 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 v. Bechtel National, Inc., supra, 24 Cal.4th at p. 361.)

The District presented a legitimate, non-discriminatory reason for the disciplinary action taken against plaintiff -- his false accusation that Lanterman’s principal had made a threatening comment. In response, plaintiff argued that the District’s stated reason was a mere pretext and that the District’s facilities services director, Mr. Phillips, had engaged in a pattern of discriminatory conduct against African-American employees. Plaintiff offered the following evidence in support of this argument: a Hispanic supervisor received only a 10-day suspension for falsifying training program attendance records and falsely stating that a subordinate had attended a training program when the subordinate had not done so; a Caucasian employee received a one-day suspension for leaving work early; a Caucasian employee was demoted and suspended for 10 days for screaming racial epithets at and threatening a teacher; an African-American maintenance worker whose personal vehicle was disabled in an automobile accident was informed by Mr. Phillips that the worker could not return to work until he had a personal vehicle available; Mr. Phillips improperly relied on plaintiff’s previously rescinded 1999 suspension as a basis for recommending plaintiff’s dismissal, and the District failed to discipline Mr. Phillips for his erroneous recommendation; the District relied on a previously rescinded suspension in support of a 10-day suspension imposed on another African-American maintenance employee; the District permitted a Caucasian employee to return to work from an extended medical leave of absence in February 2003 without taking a drug test, whereas plaintiff was required to take a drug test when he returned from a leave of absence in February 2000; and after terminating plaintiff’s employment, the District improperly barred plaintiff from competing in classified employment examinations necessary to obtain job promotions within the District.[3]

None of the other employee disciplinary actions plaintiff cites involved conduct similar to plaintiff’s -- falsely accusing another employee of making threatening comments. That non-African-American employees received less severe disciplinary sanctions for different transgressions, and that plaintiff’s supervisor, Mr. Phillips, had some involvement in those disciplinary actions, are insufficient bases for concluding that Mr. Phillips disciplined African-American employees more harshly than other employees or that plaintiff’s disciplinary action was racially motivated. There was also evidence that the District dismissed four non-African-American maintenance employees and one Caucasian employee between January 2001 and May 2002 for reasons similar to plaintiff’s case. Moreover, unlike plaintiff, many of the employees in the disciplinary actions cited by plaintiff received a less severe disciplinary sanction after expressing sincere contrition for the transgression that resulted in the disciplinary proceeding.

Plaintiff argues that Mr. Phillips’ improper reliance on a rescinded 1999 suspension as a basis for recommending plaintiff’s dismissal, and the District’s failure to discipline Mr. Phillips for his erroneous recommendation, was evidence of the District’s discriminatory animus. That the District’s reasons for dismissing plaintiff were improper does not make the dismissal discriminatory. “It is not enough for the employee simply to raise triable issues of fact concerning whether the employer’s reasons for taking the adverse action were sound. What the employee has brought is not an action for general unfairness but for . . . discrimination. . . . [T]he fact an employee is the member of a protected class and has demonstrated triable issues concerning the appropriateness of the adverse action taken does not so readily demonstrate a discriminatory animus that it is alone sufficient to establish the fact of discrimination or alone sufficient to avoid summary judgment. . . . ‘The [employee] cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. [Citations.] Rather, the [employee] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence,” [citation], and hence infer “that the employer did not act for the [the asserted] non-discriminatory reasons.” [Citations.]’” (Hersant, supra, 57 Cal.App.4th at p. 1005.)

Plaintiff claims he presented evidence of “shifting justifications” for the District’s actions that render them “unworthy of credence.” He points to alleged inconsistencies in the testimony of Mr. Phillips, who initially claimed that he would not have relied on plaintiff’s rescinded 1999 suspension had he known of the rescission, but subsequently claimed that he kept the suspension in plaintiff’s file even though he knew it had been rescinded. He also questions the credibility of Ms. Degl’Innocenti, the District’s personnel services manager, who stated that she did not remember meeting plaintiff until 2001, contradicting plaintiff’s statement that he had met with Ms. Degl’Innocenti when he returned from an extended medical leave of absence in February 2000, and that she treated him with hostility at that time. Plaintiff’s evidence is not sufficient to support a reasonable inference of pretext. “‘To avoid summary judgment, [plaintiff] “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.” [Citations.]’” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807.)

Plaintiff did not request administrative review of the District’s action banning him from future promotional examinations, nor did he raise the issue in the charge of discrimination he filed with the Department of Fair Employment and Housing or in the complaint filed in this action. He therefore forfeited the right to raise the issue in this appeal. (§ 12960; Martin v. Lockheed Missiles & Space Co., supra, 29 Cal.App.4th at p. 1724; Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) Although the ban on future promotions was premised on the improper termination of plaintiff’s employment, plaintiff’s action “is not an action for general unfairness but for [racial] discrimination” (Hersant, supra, 57 Cal.App.4th at p. 1005), and plaintiff has failed to demonstrate any racial animus in the District’s implementation of the promotion ban.

The District presented a legitimate, non-discriminatory reason for disciplining plaintiff, and the burden shifted to plaintiff to present substantial evidence that the District’s reasons were pretextual. Plaintiff did not meet this burden. Plaintiff’s evidence is insufficient to establish a rational inference that the District engaged in a pattern of discriminatory conduct, that the District’s action in disciplining plaintiff was motivated by a discriminatory animus, or that its reasons for doing so were pretextual. We therefore need not determine whether plaintiff also failed to prove all of the elements necessary to establish a prima facie case of race discrimination.

C. Harassment

FEHA prohibits an employer from harassing any employee based on race or national origin. (Gov. Code § 12940, subd. (j)(1).) To establish a prima facie case of harassment, plaintiff must show that he was subject to a hostile work environment based on his race or national origin, and that the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment. (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1045.) Harassment is distinct from discrimination. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64-65 (Janken).)

Harassment may include racial epithets and racially derogatory comments; physical interference with normal work movement; and racially derogatory poster, cartoons or drawings. (2 Cal. Code Regs., § 7287.6, subd. (b)(1).) “[H]arassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory employee’s job.” (Janken, supra, 46 Cal.App.4th at p. 63.)

In contrast, “[m]aking a personnel decision is conduct of a type fundamentally different from the type of conduct that constitute harassment. . . . . . . commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment.” (Janken, supra, 46 Cal.App.4th at pp.64-65.)

Plaintiff has failed to show the existence of any harassing conduct based on race or national origin. The acts of which plaintiff complains--the initial termination of his employment and his subsequent suspension--were personnel actions and thus do not constitute harassment. (Janken, supra, 46 Cal.App.4th at pp. 64-65.) Plaintiff therefore failed to establish a prima facie case of harassment based on race or national origin.

CONCLUSION

The District provided a legitimate, non-discriminatory reason for the disciplinary action taken against plaintiff--his falsely accusing another employee of making a threatening comment--and plaintiff failed to demonstrate that this reason was pretextual and that the District acted with a discriminatory motive. There is no evidence of harassment based on race or national origin. Therefore, the trial court properly granted summary judgment in the District’s favor.

DISPOSITION

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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur.

ARMSTRONG, Acting P. J.

KRIEGLER, J.

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[1] All further statutory references are to the Government Code, unless stated otherwise.

[2] We state the facts in accordance with the general rule that the admissible evidence should be viewed in the light most favorable to the party opposing summary judgment. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)

[3] The trial court sustained evidentiary objections to certain of the evidence plaintiff presented concerning the District’s allegedly disparate treatment of Caucasian and African-American employees, and we do not consider evidence to which evidentiary objections were sustained. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 334.) Although plaintiff claims the trial court’s rulings were never filed, the superior court file contains the trial court’s evidentiary rulings, filed on June 25, 2003. By our own motion, we augment the record on appeal to include the trial court’s evidentiary rulings. (Cal. Rules of Court, rule 12(a).)