Reeves v. Kaiser Foundation Health Plan

Filed 4/6/07 Reeves v. Kaiser Foundation Health Plan CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

DAVID REEVES,

Plaintiff and Appellant, A113455

v. (AlamedaCounty

Super. Ct. No. RG04136022)

KAISER FOUNDATION HEALTH

PLAN, INC.,

Defendant and Respondent.

______________________________________/

Appellant David Reeves filed a complaint against respondent Kaiser Foundation Health Plan, Inc., alleging it had failed to hire him for an attorney position because of his age. Kaiser moved for summary judgment arguing it was entitled to prevail as a matter of law because appellants age did not play any part in the decision not to hire him. Rather, the person in charge of the decision had offered the job to another attorney before she even became aware that appellant had applied. The trial court agreed with Kaiser and granted the motion. Appellant now appeals contending triable issues of fact were presented. We disagree and will affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Kaiser is the largest nonprofit health plan in the United States serving over eight million members in California and elsewhere. Kaiser operates its own national legal department which is comprised of various practice groups, one of which is focused on labor and employment issues. Kathleen D. Aure, Kaisers assistant general counsel, is in charge of the labor and employment group. One of her duties is to hire new attorneys.

In July 2001, more than a year before the events that are at issue here, Aure interviewed Stacey Mufson for a different position with Kaisers labor and employment group. Mufson received positive evaluations from Aure and from other Kaiser attorneys and was one of two final candidates for the job. While Aure decided not to hire Mufson, Aure believed Mufson was a highly desirable prospect for any future positions that might become available.

In September 2001, Aure had lunch with Mufson and told her that Kaiser had decided to hire someone else. However, Aure told Mufson that she remained interested in having her join the labor and employment group if another position became available.

In the months that followed, Mufson contacted Aure several times to express her continuing interest in working for Kaiser and to inquire whether any positions were available.

On December 18, 2002, Kaiser posted on its website a vacancy for a Counsel II attorney position.^[1] The job posting stated Kaiser was seeking [a] lawyer with 5-7 years of practice experience in both traditional labor law and employment discrimination law, who has litigation experience in employment law, including complex disability issues, wage and hour issues and experience practicing before the NLRB, the EEOC and the DFEH.

Aure believed Mufson was a strong candidate for the new position. Mufson had approximately seven years of legal experience that included both employment law and traditional labor law litigation and advice. She had specialized in those practice areas since January 1999, while working as an associate at two major law firms in San Francisco, most recently, Morrison & Foerster. Mufson received positive recommendations from attorneys who were familiar with her work. She had outstanding academic credentials, having graduated from the University of Michigan Law School, and Tufts University, magna cum laude.

On December 18, 2002, Aure interviewed Mufson for the position. Aure decided to hire Mufson shortly thereafter. The decision was approved by Kaisers General Counsel, Kirk Miller.

On December 23, 2002, Aure sent Mufson a letter extending her an offer of employment. Mufson accepted the position.

During the time period in question, an external candidate could apply to Kaiser for a job using three methods: (1) by sending his or her resume directly to the hiring manager or recruiting department representative, (2) by pasting an electronic copy of his or her resume into a field on Kaisers website, and/or (3) by sending his or her resume by facsimile to Saztec International, a third party vendor that Kaiser used to process resumes.

Kaisers recruiting department used a computer database called KP Hires to track candidates who had applied. Saztec was responsible for processing applications in its database.

On December 19, 2002, appellant, who was 54 years old, applied for the attorney position at issue by transmitting his resume and a cover letter to Saztec.^[2] Appellant also submitted his application electronically through Kaisers website.

Appellants resume indicated that he had extensive experience in both traditional labor law and employment discrimination law. He had been a lawyer for nearly 30 years and had represented two corporations handling their union arbitrations, litigation, and proceedings before the National Labor Relations Board. Appellant had investigated more than 100 discrimination complaints and had represented the companies before the Equal Employment Opportunity Commission (EEOC) and Department of Fair Employment and Housing (DFEH). In addition, appellant had litigated approximately 25 employment discrimination cases in state and federal courts.

Aure did not know in December 2002, that appellant had submitted a resume. Indeed, Aure never accessed or entered the KP Hires database at any time for any reason, and she never reviewed in that database any resumes that had been entered.

At some point, appellant learned that Aure was the hiring manager for the attorney position at issue. On January 2, 2003, he faxed his resume and a cover letter (that was dated December 19, 2002), directly to Aure.

On January 17, 2003, Aure sent appellant a letter in response. She thanked him for his interest in Kaisers current opening noting that his resume showed he had extremely broad experience in the area of labor and employment . . . However, Aure went on to state: Unfortunately, the vacancy which currently exists is an entry level, Counsel II, position in the Department. While we are not staffed to hire recent law school graduates in the Labor and Employment Practice Group, we generally hire at the 5 to 7 year experience level. Aure said the opening was budgeted at that level. Aure closed by stating that if Kaiser should have an opening for a more experienced attorney, she would keep him in mind.

On January 21, 2003, appellant sent Aure an e-mail stating that he would be willing to accept whatever compensation is normally provided to attorneys in the 5 to 7 year experience range.

Apparently, Aure did not respond to appellants January 21, 2003 e-mail. Appellant sent her another e-mail on January 27, 2003. Appellant noted that while Aures January 17, 2003 letter referred to a vacancy that currently exists he had obtained information that an offer had been made as of January 14, 2003. He asked Aure to clarify the situation.

Aure responded by e-mail that same day. She clarified that the position was not filled on January 14, 2003, but that an offer was pending as of that date. According to Aure, the offer had been accepted subsequently.

On January 30, 2003, appellant sent a letter to Aure stating he intended to file a lawsuit against Kaiser alleging age discrimination. He characterized Aures January 17, 2003 letter as a smoking gun that proved discrimination.

In January 2004, appellant filed a complaint against Kaiser. As amended and as is relevant here, he alleged a single cause of action for age discrimination under Californias Fair Employment and Housing Act (FEHA). (Gov. Code,  12940 et seq.)

After what appears to have been extensive discovery, Kaiser filed a motion for summary judgment. It argued it was entitled to prevail, as a matter of law, because appellant (1) could not establish a prima facie case of intentional age discrimination, (2) it had a legitimate, nondiscriminatory reason unrelated to age, for not hiring appellant for the position, and (3) appellant could not satisfy his burden to produce specific and substantial evidence to demonstrate that its reasons were untrue.

The trial court agreed appellant could not establish a prima facie case of discrimination and ruled Kaiser was entitled to summary judgment as a matter of law. After the court entered a judgment in Kaisers favor, appellant filed the present appeal.

II. DISCUSSION

A. The Controlling Law

Appellant contends the trial court erred when it granted Kaisers motion for summary judgment.

A defendant moving for summary judgment must show either that the plaintiff cannot establish one or more elements of a cause of action or that it has a complete defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Code Civ. Proc., 437c, subd. (p)(2).) If the defendant makes such a showing, the burden shifts to the plaintiff to present evidence that shows there is a triable issue of material fact. (Code Civ. Proc.,  437c, subd. (p)(2).) There is a triable issue if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of plaintiff. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) All doubts as to whether there are any triable issues of fact are to be resolved in favor of the party opposing summary judgment. [Citation.] (Ingham v. Luxor Cab Co. (2001) 93 Cal.App.4th 1045, 1049.)

On appeal, we review a summary judgment ruling de novo. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) We independently determine whether the record supports the trial courts conclusion that plaintiffs discrimination claim failed as a matter of law, and we are not bound by the trial courts stated reasons or rationales. (Ibid.)

Here, appellant alleged age discrimination in violation of FEHA. Government Code section 12940, subdivision (a), makes it an unlawful employment practice to discriminate based on age.

A plaintiff alleging age discrimination bears the initial burden of establishing a prima facie case. (Guz, supra, 24 Cal.4th at p. 354.) To meet that burden, a plaintiff must show actions taken by the employer from which one can infer it is more likely than not that such actions were based on a prohibited discriminatory criterion. (Guz, supra, 24 Cal.4th at p. 355.) In general, to establish a prima facie case a 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.] (Ibid.)

If a prima facie case is shown, a presumption of discrimination arises and the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to support the conclusion that its action was taken for a legitimate, nondiscriminatory reason. (Guz, supra, 24 Cal.4th at pp. 355-356.) If the employer meets that burden, the presumption of discrimination raised by the plaintiffs prima facie case disappears, and the plaintiff must show the employers proffered reasons are pretextual. (Id. at p. 356.)

In Guz, our Supreme Court discussed how these standards apply in the context of a defense motion for summary judgment. The court noted that a split of authority existed over who has the burden to establish the existence or nonexistence of a prima facie case. Some courts had ruled that a plaintiff opposing summary judgment need not demonstrate a triable issue until the moving defendant has made an initial showing that the plaintiff could not establish a prima facie case. (Guz, supra, 24 Cal.4th at p. 356.) Other courts had held that a plaintiff can survive an employers motion for summary judgment only by presenting, at the outset, evidence sufficient to establish a prima facie case. (Id. at p. 357.) The Guz court declined to resolve that conflict because the defendant in that case had provided evidence that was sufficient to satisfy its burden under the second stage of the analysis: i.e., it presented evidence to show that it had a nondiscriminatory reason for acting as it did. (Ibid.) Our Supreme Court said this showing shifted the burden to the plaintiff to [point] to evidence which nonetheless raises a rational inference that intentional discrimination occurred. (Ibid.)

We will follow the same approach here. We will assume for purposes of our analysis the evidence was sufficient to establish a prima facie case. Nevertheless, even if it was, Kaiser presented evidence to show that it had a nondiscriminatory reason for not hiring appellant. Specifically, Aure who was in charge of the decision, had offered the job to another person, Mufson, before she even became aware that appellant had applied. Appellant concedes Kaisers evidence was sufficient to satisfy its burden of proof.

In light of Kaisers evidence, appellant was then obligated to [point] to evidence which nonetheless raises a rational inference that intentional discrimination occurred. (Guz, supra, 24 Cal.4th at p. 357.) A plaintiff may satisfy this burden by presenting either direct or circumstantial evidence. (Morgan v. Regents of University of California(2000) 88 Cal.App.4th 52, 67.) Direct evidence is evidence which, if believed, proves the fact of discriminatory animus without inference or presumption. (Id. at p. 67.) Very little direct evidence is required to move past the summary judgment stage. (Ibid.) Circumstantial evidence must be both specific and substantial in order to create a triable issue with respect to whether the employer intended to discriminate on an illegal basis. (Id. at p. 69.) An employer is entitled to summary judgment if, considering the employers innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employers actual motive was discriminatory. (Guz, supra, 24 Cal.4th at p. 361, fn. omitted.)

1. Direct Evidence of Discrimination.

Appellant contends he provided direct evidence of discrimination. He bases his argument on two pieces of evidence: Aures January 17, 2003 letter in which she stated that Kaiser generally hire[s] at the 5 to 7 year experience level, and Aures deposition testimony where she stated she would not place a highly experienced attorney in an entry level position because the attorney would find the work boring. As Aure stated: To hire someone who had 20 or more years experience, and then you give them very basic run-of-the-mill work, to me, is a recipe for an unhappy outcome. . . . I think it is a morale problem to bring someone in who has significant experience and have them just doing the very basic, some would say boring work.

We conclude the evidence appellant cites is not evidence of age discrimination as that term has been defined. In E.E.O.C. v. Insurance Co. of North America (9th Cir. 1995) 49 F.3d 1418,^[3]the court faced a similar issue. There the plaintiff who was over 40 years old, applied for a job for which the ideal candidate was described as having two years of property/casualty loss control experience. (Id. at p. 1419.) The plaintiff who had 30 years of such experience was not hired because the employer considered him to be overqualified. (Ibid.) The plaintiff sued for age discrimination, and the trial court granted the employers summary judgment motion. On appeal, the Court of Appeal affirmed ruling that the employers decision not to hire an applicant who was overqualified did not constitute age discrimination. (Id. at p. 1420.) The courts holding on this point is consistent with many cases. (See, e.g., Coleman v. Quaker Oats Co. (9th Cir. 2000) 232 F.3d 1271, 1284; Stein v. National City Bank (6th Cir. 1991) 942 F.2d 1062, 1066; Bay v. Times Mirror Magazines, Inc. (2d Cir. 1991) 936 F.2d 112, 118.)

Appellant contends his evidence was sufficient relying on Taggart v. Time, Inc. (2d Cir. 1991) 924 F.2d 43, 47-48, where the court said the term overqualified was a euphemism for too old. However, as other courts have recognized, [t]he defendants criterion in Taggart amounted to a label--overqualified--without any objective content. This criterion would allow the employer to shift the standard at its pleasure, raising the standard for some applicants and lowering it for others. (Stein v. National City Bank, supra, 942 F.2d at p. 1066; see also Bay v. Times Mirror Magazines, Inc., supra, 936 F.2d at p. 118.)

Here, by contrast, Aures deposition testimony showed she was concerned about appellants overqualification for an objective reason: Someone with the range of experience that appellant possessed might find the entry level job that Kaiser had available to be boring. We conclude the evidence upon which appellant relies is not direct evidence of age discrimination.

Appellant also contends that recent amendments to Government Code section 12941 demonstrate that an employers practice and policy of hiring attorneys at only the 5 to 7 year experience level is clearly unlawful under California law. We disagree. In Marks v. Loral Corp. (1997) 57 Cal.App.4th 30 (Loral), the court ruled that an employer could validly use salary for differentiating between employees when making employment decisions. The Legislature disagreed with Loral and amended Government Code section 12941 to state the use of salary as the basis for differentiating between employees when terminating employment may be found to constitute age discrimination . . . . Nothing in the record indicates Kaiser used salary when making an employment termination decision.

We conclude appellant failed to provide direct evidence of discrimination.

2. Circumstantial Evidence of Discrimination Exists

Appellant contends he provided circumstantial evidence of discrimination. His many arguments on this point can be divided into three categories. First, appellant argues a triable issue of fact exists as to whether Aure sent a letter to Mufson on December 23, 2002, offering her a position with Kaiser. Second, appellant argues a triable issue exists over whether Aure was aware that he had applied prior to the date on which she offered the job to Mufson. Third, appellant raises several of what we will characterize as miscellaneous arguments that he contends show a triable issue of fact exists.

a. Whether Aure Sent an Offer to Mufson on December 23, 2002

Appellant contends a triable issue of fact exists over whether Aure sent a letter to Mufson on December 23, 2002, offering her a job with Kaiser. We note first that appellant conceded this point in the court below. His separate statement of undisputed facts said it was Not Disputed that On December 23, 2002, Aure sent Mufson a letter extending her a formal offer of employment with Kaiser for this position. A judicial admission such as this is binding. (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1525, fn. 4; see also City of San Diego v. DeLeeuw (1993) 12 Cal.App.4th 10, 14-15.)

Furthermore, none of the arguments appellant makes convince us that a triable issue of fact exists. Pointing to various physical characteristics of the December 23, 2002 letter, such as its alignment on the paper, the relationship between the date and the footer, and its formatting, appellant contends the letter [m]ight be found to be a [c]omposite [f]orgery. Appellant has not presented any expert testimony to prove the letter is a forgery and to our untrained eye, nothing about it suggests that it is. To defeat a motion for summary judgment, a defendant must present evidence, not speculation. (Morgan v. Regents of University of California, supra, 88 Cal.App.4th at p. 69.) Appellant has failed to carry his burden.

Appellant claims that discrepancies contained in the December 23, 2002 letter suggest the letter is forged. For example, appellant notes the letter includes a salary offer, while a printout from the KP Hires database shows a salary offer was not approved until January 29, 2003. However, Kaiser submitted a declaration that shows the January 29, 2003 date listed on the printout is the date on which an event was entered into the database, not the date on which the event occurred. There is no real discrepancy to support an inference of forgery.

Next, appellant argues it is possible the December 23, 2002 letter is a forgery because that letter does not appear in the KP Hires database printout. This is incorrect. The KP Hires database does show that Kaiser extended an offer to Mufson. While the printout shows the offer was entered into the database on January 29, 2003, (one of eight of employment events that were entered that day) the undisputed evidence demonstrates that is not the date on which the event occurred.

Appellant argues the genuineness of the December 23, 2002 letter is in question because Aures January 17, 2003 letter describes the position with Kaiser as a current opening. We are not convinced. The e-mail correspondence between appellant and Aure indicates that Kaisers offer to Mufson was still pending as of January 14, 2003. While the record does not disclose the precise date on which the offer was accepted, Aures description of the position as a current opening simply does not contradict the evidence that shows an offer was made on December 23, 2002.

Next, appellant claims it is possible the December 23, 2002 letter is a forgery because Aure never mentioned to him during a conversation on January 6, 2003 that an offer had been made to another applicant. The precise interaction in question is set forth in a declaration appellant submitted. He stated: On or about January 6, [2003], I telephoned Ms. Aure to discuss my application. . . . I identified myself as having applied for the position and asked for the opportunity to discuss my candidacy for the position. Ms. Aure responded that she had answered the telephone personally because she was expecting an important call and could not talk to me at that time. I asked if it would be okay if I called in a few days to discuss this job opportunity. She responded Yes. We do not find it unusual that an employer who is awaiting an important call would not discuss every detail of a job opening with an applicant who has placed an unsolicited phone call. Even when this incident is construed in the light most favorable to appellant, it is not evidence that the December 23, 2002 letter is a forgery.

Appellant argues the genuineness of the December 23, 2002 letter is put into question by the fact that Kaiser considered another applicant for the position after that date. Appellant bases this argument on two entries from the KP Hires database. The first, dated December 27, 2002, indicates a candidate with the initials S.A. had applied. The second entry, dated January 27, 2003, states Candidate dropped and More Qualified Applicant Selected. We find nothing in these entries that indicates Kaiser considered S.A. for this position in any meaningful way, and we see nothing that indicates Aure, the person responsible for the position, considered hiring S.A. Appellants speculative argument is not substantial evidence of discrimination. (Morgan v. Regents of University of California, supra, 88 Cal.App.4th at p. 69.)

Finally, appellant contends the validity of the December 23, 2002 letter is called into question because Kaiser violated its own internal hiring procedures when hiring Mufson. Kaisers hiring procedures do state that job openings must be posted for five business days before they can be filled, and the record here indicates Kaiser sent an offer to Mufson without waiting the required length of time. However, this is not evidence of discrimination. A plaintiff cannot be permitted to manufacture a case merely by showing that the employer does not follow its employment rules with Prussian rigidity. (Walker v. Abbott Laboratories (7th Cir. 2005) 416 F.3d 641, 644; see also Randle v. City of Aurora (10th Cir. 1995) 69 F.3d 441, 454.)

b. Whether Aure was Aware that Appellant had Applied

Aure submitted a declaration in support of Kaisers motion for summary judgment in which she stated she did not know in December 2002, that appellant had applied. Aure said she never accessed or entered the KP Hires database at any time for any reason, and that she never reviewed in that database any resumes that had been entered. According to Aure, the first time she knew appellant was interested was when he faxed his resume and a cover letter to her on January 2, 2003.

Appellant now contends a triable issue of fact exists over whether Aure in fact was aware he had applied prior to the date on which she offered the position to Mufson.

First, appellant argues Aures knowledge is in question because Aure had access to the KP Hires database and she easily could have viewed his resume simply by using her computer. While it is true Aure could have accessed appellants resume through her computer at any time, it is also true that Aure said specifically that she did not do so. Appellants speculative arguments about what Aure might have done are not substantial evidence. Appellant suggests a triable issue exists because the jurors could simply elect not to believe Aure on this point. While a plaintiff can avoid summary judgment by showing an employees offered explanation is so weak and implausible, and so full of inconsistencies that it is unworthy of credence, (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005) the explanation Kaiser has offered is neither weak nor implausible nor full of inconsistencies.

Appellant argues there is a triable issue concerning Aures knowledge because Aures January 17, 2003 letter refers to appellants facsimile dated December 19, 2002. Appellant argues the jurors could infer from this that Aure received his facsimile on about December 19, 2002. However, this argument ignores the fact that on January 2, 2003, appellant faxed his resume and a copy of his December 19, 2002 letter directly to Aure. Thus, Aures January 17, 2003 letter, read in context, clearly was referring to the copy of the December 19, 2003 letter that appellant had faxed to Aure just days earlier on January 2. Any minor ambiguity that might exist on this point based on conflicting inferences does not raise a triable issue of fact as to whether Aure harbored an intent to discriminate illegally.

Appellant argues that even if Aure was not personally aware that he had submitted an application prior to offering the job to Mufson, Kaisers knowledge of appellants application should be imputed to Aure and she should be presumed to have been aware of it. This is so, appellant argues, because he submitted his resume to Kaiser, and under the laws of agency, Aure must be deemed to know what others at Kaiser knew. We reject this argument on procedural grounds. While appellant alluded to this argument briefly in his opening brief, he did not develop it with reasoned argument or citations to authority. We treat arguments that are made in this fashion as waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) Appellant tried to remedy this problem in his reply brief by expanding his argument significantly and by citing authority. However, we do not address arguments developed for the first time in a reply brief. (Williams v. City of Belvedere (1999) 72 Cal.App.4th 84, 92, fn. 2.)

Finally, appellant appears to argue we must presume Aure was aware he had applied before she offered the job to Mufson because an inference can be drawn that Kaiser destroyed evidence in its database that would help him prove his claim. Appellant makes this argument because a printout Kaiser produced from the KP Hires database did not list his name and resume, but only the names and resumes of Mufson and S.A. While Kaiser could not explain why appellants name was not in the KP Hires database printout, it did provide a declaration from an expert who stated that Kaiser did not have the ability to delete any information from the database. Thus, appellants argument is based on a false premise: that Kaiser could purge appellants application from its database and had this evidence not been destroyed, it would have likely established that Kaiser reviewed appellants application before December 23, 2002. We conclude the evidence does not support the presumption appellant urges in his favor.

c. Miscellaneous Argument

Appellant argues that even if Aure did not view his resume until January 2, 2003, a triable issue of fact of age discrimination is demonstrated by the fact that Aure did not immediately withdraw its offer to Mufson in light of his own vastly superior qualifications. Given that Kaiser was looking for an attorney with five to seven years experience, and appellant had considerably more than that, it is not at all apparent that appellant was more qualified than Mufson for the position Kaiser had available. In any event, the critical issue is whether discriminatory animus motivated the employer, not whether the employers actions were wise, shrewd, prudent, or competent. (Hersant v. Department of Social Services, supra, 57 Cal.App.4th at p. 1005.) Kaisers failure to withdraw its offer does not raise a triable issue of fact.

Next, appellant argues a triable issue of fact is demonstrated by the fact that Kaiser waited until discovery was underway to tell him it had offered the job to Mufson prior to seeing his resume. Appellant has not cited any authority that suggests Kaisers failure to disclose informally certain evidence is itself evidence of discrimination, and we are not convinced that it is. Indeed, given that appellant told Kaiser he would be filing a lawsuit only days after learning he would not get the job, we are not at all surprised that Kaiser declined to provide appellant with further information outside the formal litigation process.

Finally, appellant argues a triable issue of fact is demonstrated by inconsistencies in Aures deposition testimony about whether she knew the job would be posted online, and whether she had revised the language of the job description in that posting. However, even if we were to assume Aures testimony on these points is in dispute, that is not grounds for reversal. The pertinent statutes do not prohibit lying, they prohibit discrimination. (Guz, supra, 24 Cal.4th at p. 361.) An employer is entitled to summary judgment as a matter of law if the plaintiff created only a weak issue of fact as to whether the employers reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. (Id. at p. 362.) That is the situation here.

We conclude the trial court properly granted Kaisers motion for summary judgment.

III. DISPOSITION

The judgment is affirmed.

_________________________

Jones, P.J.

We concur:

________________________

Simons, J.

________________________

Gemello, J.

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^[1] The precise date that Kaiser posted the position is unclear. Some records indicate it occurred on December 18, 2002. Others suggest the job was posted on December 17, 2002. Consistent with the rules applicable on summary judgment, we will use the date that is most advantageous to appellant.

^[2] Again, the precise date appellant applied is unclear. We will use the date appellant set forth in his declaration.

^[3] Courts interpreting and applying FEHA frequently look to federal cases applying the federal anti-discrimination statutes because the language and objectives of the two statutory schemes are similar. (Guz, supra, 24 Cal.4th at p. 354.)