Akuluze v. Oakland Unified School Dist

Filed 3/21/06 Akuluze v. Oakland Unified School Dist. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Matthew Akuluze appeals from a judgment in favor of his former employer, the Oakland Unified School District (OUSD), on Akuluze's claims for racial discrimination and retaliation. Akuluze contends the jury verdict was not supported by substantial evidence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Akuluze was employed as an evaluation assistant by OUSD's Department of Research and Evaluation in 1997, when three program evaluator positions became available.^[1] Akuluze applied for a position as program evaluator, although he did not meet the minimum qualifications posted for the job.^[2] After a paper screening procedure revealed that only two of the applicants met the posted minimum qualifications, Alma Williams, the director of the research and evaluation department, waived the minimum qualifications requirement and selected seven applicants to be interviewed, including Akuluze.

A five-person panel interviewed the seven applicants, and Akuluze was ranked sixth out of seven.^[3] Four of the panelists testified that race played no role in ranking the applicants.^[4] The positions were ultimately filled by the applicants ranked third, fourth, and fifth by the panel, after the first- and second-ranked applicants declined OUSD's offers of employment. Williams described the qualifications of each applicant, and suggested that Akuluze would have received the next offer if another higher-ranked candidate had declined.

Akuluze filed a grievance with his union, claiming he was entitled to promotion under the terms of the collective bargaining agreement (CBA).^[5] After various communications and meetings involving Akuluze, his union representative, and representatives of OUSD, the union representative advised Akuluze that they lacked a sufficient basis to further challenge OUSD's decision.

Several witnesses testified that after he was not offered a program evaluator position, Akuluze became tardy and absent from work more often, missed deadlines, failed to follow OUSD's procedures, and became belligerent and verbally abusive. Williams and others met with Akuluze repeatedly about his work performance.^[6] Akuluze's job performance and behavior continued to deteriorate, however, and Williams began the disciplinary process. In March 1999, Akuluze resigned his employment with OUSD.

Akuluze filed a complaint alleging failure to promote and retaliation, based on racial discrimination, as well as constructive discharge.^[7] The jury in the first trial found for OUSD. On appeal, this court vacated the judgment due to a legal error in the jury special verdict form. (Akuluze v. Oakland Unified School District (Aug. 29, 2003, A097485 & A097909 [nonpub. opn.].) This appeal followed the second trial, jury verdict, and judgment in favor of OUSD.

DISCUSSION

Akuluze claims there is no substantial evidence to support the jury's determinations that (1) race was not a motivating factor in OUSD's failure to promote him, and (2) OUSD did not retaliate against Akuluze based on his complaints of racial discrimination. It was his burden to prove his claims of discrimination and retaliation below, however, just as it is his burden to show error on appeal. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 356; Cochran v. Rubens (1996) 42 Cal.App.4th 481, 486.) We review the record in the light most favorable to respondent, resolving all evidentiary conflicts and drawing all reasonable inferences in support of the judgment. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) An appellate court may not substitute its deductions for those of the trier of fact. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)

On his racial discrimination claim, the parties agree that the only issue to be decided by the fact finder below was whether OUSD was motivated by discriminatory intent in making employment decisions adverse to Akuluze. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 205.) â€