Brown v. F. Rodgers Insulation

Filed 3/2/07 Brown v. F. Rodgers Insulation CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Dennis W. Brown filed an action against F. Rodgers Insulation, Inc. (FRI), his union, and another employer for age discrimination under the Fair Employment and Housing Act (FEHA) and under the common law. The trial court granted summary judgment in favor of FRI. It found there was no triable issue of fact that FRI had a discriminatory motive when rejecting Brown for a job. Brown appeals and we affirm the lower courts ruling.

BACKGROUND

FRI is an insulation contractor and it hires its insulators through dispatches from the International Association of Heat and Frost Insulators and Asbestos Workers Local 16 (union). FRI hires both apprentices and journeymen through the union. Both apprentices and journeymen are dispatched in the same manner; apprentices work with journeymen until they pass an examination to achieve journeyman status.

Once an employer requests workers, the union dispatches workers on a first in first out basis, which means the worker who has been out of work the longest is the first to be referred out for work. Pursuant to their collective bargaining agreement (CBA) with the union, employers have the option to accept or reject the dispatched worker without just cause.

Section 107 of the CBA, known as the turnaround provision, provides: The Individual Employer may reject any employee or applicant for employment referred to it by the Employment Office of the Union. In its right of rejection, no Individual Employer shall reject any individual who has never previously been employed by said Individual Employer. Any employee or applicant for employment so rejected shall receive One Hundred Dollars ($100.00) reimbursed expenses, plus travel expenses and subsistence . . . if applicable . . . . In the exercise of his or its right to reject any employee or applicant for employment, the Individual Employer shall not discriminate against any such employee or applicant for employment by reason . . . of age, race, color, religion, sex, or national origin.

According to Steve Steele, the business manager of the union, section 107 of the CBA allows individual employers to reject any employee or applicant for employment referred to it by the Employment Office of the Union. Under this Section, individual contractors are allowed to reject dispatched employees without just cause. . . .

Brown began the unions insulation apprenticeship program after working for many years primarily as an asbestos abatement worker. In 2001, a performance report by Official Insulation Co. Inc., rated Brown unsatisfactory in four categories. His apprentice performance rating in June 2002 stated that he met expectations, but could improve [his] technical skills. A June 2002 apprentice work evaluation report stated that he needs improvement: Results fall short of expectations. Has not demonstrated expected skills and competencies. Under the remarks category, it stated that he should not be a 4th year!

Brown first began working for FRI in 2002 as an apprentice at a power plant job near Moss Landing. He and others were laid off when the employment force was reduced. His termination form said, yes, for rehire. Following the Moss Landing job, FRI transferred Brown to a job in Visalia, California.

FRI again hired Brown on May 15, 2003, as a journeyman, when the union dispatched him for a job at the Mirant Power Plant in Pittsburg, California (Pittsburg job). The job was a time and material job and therefore the customer paid by the hour for the insulators and also paid for the materials used. Shortly thereafter, FRI reduced the workforce and laid Brown off. The lay off form dated May 22, 2003, stated that Brown was laid off due to a reduction in force and it stated, yes, for rehire.

Larry Ray, the supervisor at the Pittsburg job, but not an FRI employee, recommended that four people be laid off. Included in these names was Brown. These four people ranged in age from the early 20s to the late 60s. Ray testified that he did not make his recommendation based on age and that older workers remained on the job. Ray testified that he recommended to lay Brown off because [h]e wasnt performing as well as some of the others. He maintained that his recommendation was based strictly on job performance. However, Ray also testified that he did not recall ever telling anyone that he would not hire Brown or that he was a slower worker, and Ray insisted that he would have no problem hiring him, on larger jobs.

Brown testified that he had no complaints about his treatment by the FRI while working at the Pittsburg job. He also testified that he did not believe that his age was the reason for his being laid off.

In June 2003, two weeks after Brown had been laid off from the Pittsburg job, Brown was dispatched by the union to another FRI job (June 2003 job). The superintendent who received the dispatch, Darren Holguin, called Dave Papini, a superintendent with FRI, and asked him if he knew Brown or knew anything about him. According to Papini, he told Holguin that Brown had been laid off from the Pittsburg job. Papini stated that he was not asked and he did not say anything about Browns age. Holguin invoked the contractual right under section 107 of the CBA and, by telephone, he rejected Brown, turning him around.

Subsequently, Brown was dispatched to FRI in November 2005. Brown turned the job down because he did not want to drive that far. Brown was dispatched to FRI again in December 2005; he was not turned around and he worked for FRI.

On December 1, 2004, Brown filed a complaint for age discrimination under the FEHA and common law against FRI, the union, and another company.^[1] He filed a first amended complaint on March 4, 2005, which included the same causes of action and added an allegation that he had exhausted his administrative remedies under the FEHA by filing his complaint against FRI with the Department of Fair Employment and Housing (DFEH) on June 24, 2003. He also alleged that he had received his right-to-sue letter. He based his claim against FRI on his rejection for the June 2003 job.

On January 11, 2006, FRI filed a motion for summary judgment against Browns first amended complaint. On April 10, 2006, the court granted FRIs motion for summary judgment. The court found that Brown has failed to raise a triable issue of material fact suggesting that defendant FRIs decision to lay him off and/or to turn plaintiff around/reject him was motivated by unlawful discriminatory animus. As a result, plaintiff failed to introduce evidence in support of a prima facie case of age discrimination. . . . The court entered its judgment of dismissal as to FRI on June 1, 2006.

Brown filed a timely notice of appeal.

DISCUSSION

I. Standard of Review

Brown contends that the trial court erred in finding that he failed to establish a prima facie case of age discrimination. The court properly grants summary judgment if the record establishes no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc.,  437c, subd. (c).) [T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. . . . A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.] (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851, fns. omitted.) Although the burden of production shifts, the moving party always bears the burden of persuasion. (Id. at p. 850.) There is a triable 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. (Ibid.) We review the record de novo. (Id. at p. 860.)

II. The Test for Age Discrimination

The FEHA prohibits an employer from discriminating on the basis of age. (Gov. Code,  12940.)^[2] In California, courts employ the three-prong test set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas) to resolve discrimination claims, including age discrimination. (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 354 (Guz).) Under the McDonnell Douglas test, the plaintiff-employee must first set forth sufficient evidence to establish a prima facie case of discrimination. (Guz, supra, at pp. 354-356.) The burden of proof necessary to establish a prima facie case is not onerous. (Id. at p. 355.) To establish a prima facie case of age discrimination, the plaintiff must show that the plaintiff is a member in the protected class, that the plaintiff was performing competently, that the plaintiff suffered an adverse employment action, and that there is some other circumstance suggesting a discriminatory motive. (Ibid.)

Once the employee satisfies the prima facie burden, a presumption of discrimination exists, and the burden then shifts to the employer in the second prong to show that its action was motivated by legitimate, nondiscriminatory reasons. (Guz, supra, 24 Cal.4th at pp. 355-356.) A reason is legitimate if it is facially unrelated to a prohibited bias, and which if true, would thus preclude a finding ofdiscrimination. (Id. at p. 358.) In the third prong, if the employee seeks to raise a triable issue, then the employee must produce substantial responsive evidence the employers showing was untrue or pretextual. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735 (Martin).) Speculation does not constitute substantial responsive evidence. (Ibid.) Pretext may be demonstrated by showing that 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. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224.)

Courts have not settled how the McDonnell Douglas, three-pronged formula should apply under California law to an employers motion for summary judgment against a claim of prohibited discrimination. (Guz, supra, 24 Cal.4th at p. 356.) Code of Civil Procedure section 437c provides that on summary judgment, the moving party must establish entitlement to judgment as a matter of law. (Id., subd. (c).) A moving defendant may do so by show[ing] that the plaintiffs action has no merit because one or more elements cannot be established or there is a complete defense. (Id., subds. (a), (p)(2).) Only after the defendant has met that burden must the plaintiff respond with admissible evidence raising a triable issue. (Ibid.)

Our Supreme Court has pointed out that these relative burdens are less clear in the context of summary judgment proceedings. (Guz, supra, 24 Cal.4th at pp. 356-357.) 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 employers motion for summary judgment only by presenting, at the outset, triable evidence satisfying the prima facie elements of McDonnell Douglas. [Citations.] (Ibid.) In Guz, the Supreme Court refused to resolve the prima facie burden issue, because it concluded that the plaintiff had failed to present sufficient evidence that defendants legitimate reasons for its employment decision were pretextual. (Id. at p. 357.)

We also need not reach the question of prima facie burden because we conclude that FRI met its burden of presenting evidence that Brown could not make a prima facie claim of age discrimination.

III. Prima Facie Case

Since this case is before us as a summary judgment motion, under one line of cases (e.g., Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150-151; Addy v. Bliss Glennon (1996) 44 Cal.App.4th 205, 216), FRI must prove that one or more of the prima facie elements of the claim of age discrimination is lacking. As set forth, ante, the elements of a prima facie case of age discrimination are as follows: the plaintiff is a member in the protected class, the plaintiff was performing competently, the plaintiff suffered an adverse employment action, and there is some other circumstance suggesting a discriminatory motive. (Guz, supra, 24 Cal.4th at p. 355.) In the present case, there is no dispute that Brown was in a protected class, as he was over the age of 40. (Gov. Code,  12940, 12926, subd. (b).)^[3] The parties also do not dispute that FRI rejected Brown for the June 2003 job. FRI, however, maintains that Brown was not qualified for the job^[4]and that the evidence does not support an inference of any discriminatory motive.

Although it is rare that a plaintiff cannot produce evidence of an inference of any discriminatory motive, we conclude that this is one of those rare cases. We therefore affirm the lower courts ruling on the basis of no inference of discriminatory animus and need not consider FRIs argument that Brown was not qualified for the job.

In support of its motion for summary judgment, FRI presented evidence that it did not reject Brown based on any discriminatory motive; rather, it rejected him based on section 107 of the CBA. Section 107 permits FRI to reject any employee for any reason other than for age, race, color, religion, sex, or national origin. When FRI turned Brown around, nothing was said about Browns age. In his deposition, Brown testified that the person turning him around said, they could not use [him] at this time. When Brown asked why he was being turned around, he was told because of section 107. Brown did not recall any mention of his age. He also did not know whether Holguin, the person who turned him around by telephone, even knew his age. Moreover, Brown stated that he did not recall ever meeting Holguin.^[5]Further, FRI presented evidence that Brown had been turned around by it only one time and, subsequently, he received two other job offers from FRI. Although Brown rejected one of FRIs job offers because of the distance he would have to travel, he accepted and worked on an FRI job in December 2005.

Additionally, Brown testified that he had never heard any person state that FRI did not hire any person over the age of 50. The director of human resources for FRI reviewed employee records and determined that FRI hired 260 employees from the union during the 2001-2003 period. Of these employees, 52 percent (136) of the new hires were the age of 40 or older. Moreover, during this same period, there were 19 turnarounds. Of the turnarounds, 42 percent (8) were over the age of 40 and therefore a greater percentage, 58 percent (11) were under the age of 40. FRIs human resources director stated that, during this same period, 22 union workers were promoted to general foremen positions, and 67 percent of the people promoted were over the age of 40.

In his opposition to FRIs summary judgment motion, Brown does not dispute any of the foregoing evidence, but contends this evidence does not establish that he has no prima facie claim. He contends that he simply needs to show that he was rejected for a position. Brown maintains that the lower court improperly imposed on him the burden to establish a discriminatory motive. (See Warren v. City of Carlsbad (9th Cir. 1995) 58 F.3d 439, 441-442 (Warren).) He claims that under Warrenhe is only required to show that he was rejected, not that he was rejected because of his protected status. (See ibid.)

In arguing that being rejected for a job is sufficient to establish a prima facie case, Brown relies on Warren, supra, 58 F.3d 439. The Ninth Circuit in Warren explained that [t]he McDonnell Douglas test merely requires that a plaintiff raise an inference of disparate treatment to establish a prima facie case, not actual proof of such treatment. (Id. at p. 442.) To establish a prima facie case of discrimination the plaintiff need not prove that discrimination was the motivating factor in the adverse employment decision, but the plaintiff must raise an inference that such misconduct occurred. (Ibid.) Thus, if the plaintiff is rejected and the position thereafter remains open and the employee continues to seek applications from persons with similar qualifications (e.g., McDonnell Douglas, supra, 411 U.S. at p. 802), this is sufficient to raise an inference of discrimination.

Accordingly, under the holding in Warren, rejection unaccompanied by any evidence that establishes an inference of an illegal motivating factor for the rejection is insufficient to establish a prima facie case. Brown claims that he could not present any evidence of an illegal motivating factor for the rejection because FRI failed to maintain appropriate records and violated its duty under Government Code section 12946.^[6] During discovery, Brown asked FRI in an interrogatory request to provide the name, address, and phone number of the person selected instead of Brown. FRI responded that it does not maintain records of the order in which union workers are dispatched for a particular job or of whether a particular worker was hired for a particular job in order to take the place of a worker who is turned around or simply hired for a job because of the needs of the job, or otherwise.^[7]Brown argues that, since FRI failed to maintain proper recordseven after it knew that he had filed his complaint with the DFEH on June 24, 2003we should construe this failure as creating an inference against FRI. (See Evid. Code, 413; Cedars-SinaiMedicalCenter v. Superior Court (1998) 18 Cal.4th 1, 13.) Brown argues that [a]n employer should not be able to prevail through the simple ruse of avoiding discovery by unlawfully destroying records.

FRI argues that Government Code section 12946 does not require it to maintain records of the order in which unions installers were hired on a given day. It also asserts that the statute does not mandate that it maintain records of who was hired for a particular job after a worker is turned around.

We need not resolve the question of whether FRI failed to comply with Government Code section 12946, because this claim is not properly before us. Under California law, an employee must exhaust the administrative remedy provided by the FEHA by filing an administrative complaint with the DFEH (Gov. Code, 12960) and obtaining the DFEHs notice of right to sue (id., 12965, subd. (b)). To exhaust his or her administrative remedies as to a particular act made unlawful by the FEHA, the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts. (Martin, supra, 29 Cal.App.4th at p. 1724, italics added.) The scope of the written charge defines the permissible scope of the subsequent civil complaint (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1121-1123), and allegations in the civil complaint which fall outside the scope of the administrative charge are barred for failure to exhaust. (Rodriguez v. Airborne Express (9th Cir. 2001) 265 F.3d 890, 897.)

California courts have endorsed the like or reasonably related standard, under which the allegations in a civil complaint are deemed to come within the scope of the DFEH charge if the allegations would necessarily have been uncovered if the DFEH had conducted a reasonable investigation of the charge. (See, e.g., Okoli v. LockheedTechnical Operations Co. (1995) 36 Cal.App.4th 1607, 1614-1617.) Thus, where an administrative investigation would likely have encompassed the claim alleged in the civil complaint, there is no exhaustion of remedies bar. (Id. at p. 1616.)

In the present case, Brown in his DFEH charge does not assert any claim under the FEHA for violating Government Code section 12946. Rather, he alleges that FRI did not hire him for an open position for an insulator due to his age. Specifically, he stated that he was denied reinstatement to the position of Insulator . . . . He wrote that he believed this denial was due to his age because the union referred him to the company because they had an open position for an Insulator. He stated that he had previously worked for the company the year prior. Although [he] had experience, [he] was not rehired. He further alleged that he was aware of other persons in the protected age category who also were denied rehire into this position. ([N]ames [are] on file with DFEH[.])

Thus, Browns claim of failing to maintain records cannot be deemed to come within the scope of his DFEH charge, which only alleged age discrimination. Browns claim of age discrimination was not related to the charge of failing to maintain records. Additionally, his age discrimination claim would not require the FEHA to investigate and resolve on the merits the claim of failing to maintain proper records. Indeed, the situation before us is no different than the one in Hawkins v. Home Depot USA, Inc. (N.D. Cal. 2003) 294 F.Supp.2d 1119. In Hawkins, the court refused to consider a claim of violating Government section 12946 when the plaintiffs discrimination charge with the DFEH and the Equal Employment Opportunity Commission failed to mention any violation of section 12946. (Hawkins, supra, at p. 1122, fn. 1; see also Martin, supra, 29 Cal.App.4th at p. 1724.)

Although neither party raised the issue of Browns failure to exhaust his administrative remedy with regard to any violation of Government Code section 12946, we have recognized, in the context of the FEHA, that [t]he failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect. (Miller v. United Airlines, Inc. (1985) 174 Cal.App.3d 878, 890.) Thus, we have no jurisdiction to consider this issue.

Further, even if we presumed that violating Government Code section 12946 was reasonably related to Browns claim of age discrimination and we also presumed that FRI failed to maintain proper records, this would not raise an inference of discriminatory animus. Brown has presented absolutely no evidence that FRI destroyed any records.^[8] Nor has he presented any evidence that the failure to keep these data was related to any illegal purpose. Moreover, FRIs failure to maintain any record of whether it hired anyone in place of Brown did not prevent Brown from obtaining this information from an alternative source. For example, Brown could have obtained from the union the names of the people it dispatched for the June 2003 job and thereafter he could have questioned those individuals to determine whether they were hired or turned around. Additionally, Brown could have established an inference of a discriminatory motive by providing evidence of age-related remarks made by FRI employees or statistics that indicated a reluctance to hire or promote people over 40.^[9] Thus, even if we presume that FRI failed to keep records as mandated by the statute, Brown has failed to establish that such a failure raises an inference of a discriminatory motive for turning Brown around in June 2003.

Accordingly, we conclude Brown has failed to submit any evidence that provides an inference of a discriminatory intent. Rather, he has simply produced evidence that he was turned around on one occasion and he is over the age of 40. Given that section 107 of the CBA permits FRI to turn a union member around for no reason combined with the undisputed evidence that Brown was told that he was being turned around based on section 107, the undisputed evidence that Brown did not hear any age-related remarks from FRI employees, the undisputed evidence that Brown did not even know whether the person turning him around even knew his age, the undisputed evidence that FRI twice offered Brown a job after rejecting him for the June 2003 job, and the lack of any of evidence of a discriminatory animus, we conclude as a matter of law that Brown cannot satisfy the elements of a prima facie case of discrimination.

DISPOSITION

The judgment is affirmed. FRI is awarded the costs of appeal.

_________________________

Lambden, J.

We concur:

_________________________

Haerle, Acting P.J.

_________________________

Richman, J.

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^[1] Brown claims in his brief in this court that he dismissed the union as a defendant. The dismissal is not in the record on appeal. According to both parties, the trial court denied the other companys motion for summary judgment and the company prevailed in a trial. Brown has filed a separate notice of appeal from that judgment.

^[2] Government Code section 12940, subdivision (a), provides, It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: [] (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.

^[3] Government Code section 12926, subdivision (b), provides: As used in this part in connection with unlawful practices, unless a different meaning clearly appears from the context: [] . . . [] (b) Age refers to the chronological age of any individual who has reached his or her 40th birthday.

^[4] Brown maintains that the fact that he was dispatched for the job establishes that he was qualified for the position and that he was performing competently.

^[5] Brown dismisses this evidence because FRI never produced a declaration or any statements from Holguin, a former employee of FRI.

^[6] Government Code section 12946 provides: It shall be an unlawful practice for employers, labor organizations, and employment agencies subject to the provisions of this part to fail to maintain and preserve any and all applications, personnel, membership, or employment referral records and files for a minimum period of two years after the records and files are initially created or received, or for employers to fail to retain personnel files of applicants or terminated employees for a minimum period of two years after the date of the employment action taken. . . . Upon notice that a verified complaint against it has been filed under this part, any such employer, labor organization, or employment agency shall maintain and preserve any and all records and files until the complaint is fully and finally disposed of and all appeals or related proceedings terminated. . . .

^[7] FRI points out that it may be that no one was hired after Browns turnaround, because FRI may have determined that no more workers were needed or another worker from another job filled the position.

^[8] Brown argues that under Evidence Code section 413 he is entitled to an inference of a discriminatory animus if FRI intentionally destroyed or suppressed the evidence. As already noted, other than the fact that FRI stated that it did not have a record of whether it hired any person instead of Brown for the June 2003 job, Brown has presented no evidence of a willful suppression of evidence. Further, Evidence Code section 413 provides that the nonproduction of evidence may give rise to an inference that it would have been adverse to the party who could have produced it. Thus, section 413 provides as follows: In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the partys failure to explain or to deny by his testimony such evidence or facts in the case against him, or his willful suppression of evidence relating thereto, if such be the case.

^[9] Brown argues that to prove a prima facie case he needed to discover the reasons for rejection, the characteristics of the replacement, comparative evidence, and statistical data. However, much of these data were available. The only information not kept was whether a person was hired instead of Brown and, if so, who that person was. This latter information could have been relevant to establishing a discriminatory motive but, as already stressed, Brown could have raised an inference of discrimination by providing other statistical evidence or age-related comments by FRI employees.