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Arthur R. Silen v. Regents of the University of California


January 27, 2011


(Super. Ct. No. CV08-91)

The opinion of the court was delivered by: Hull , J.

Silen v. Regents



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiff Arthur R. Silen is employed as a contract analyst by defendant The Regents of the University of California at its Davis campus. After plaintiff was passed over for a promotion that went to a much younger applicant, he brought this action against defendant claiming age discrimination in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). The trial court granted defendant's motion for summary judgment and entered final judgment for defendant. Plaintiff appeals, arguing issues of fact exist as to whether defendant's stated reasons for selecting the younger worker were a pretext for age discrimination. We agree and reverse.

Facts and Proceedings

On review of an order granting summary judgment, we construe the evidence in the light most favorable to the opposing party. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

Plaintiff was born on June 25, 1942. He has a law degree and an L.L.M. and is a member of both the California and Massachusetts bar associations. On May 29, 2001, plaintiff began working for defendant as a Contract Analyst IV in the Business Contracts Department (department) of the University of California at Davis (UCD).

On or about July 1, 2005, Andy Lamb was hired as the manager of the department and plaintiff's immediate supervisor. Ken Woodard, who had previously been plaintiff's immediate supervisor, became Lamb's supervisor.

Between 2001 and 2006, plaintiff received a number of performance evaluations from his supervisors, including Lamb and Woodard. Some of the evaluations were satisfactory, while others were unsatisfactory. Complaints about plaintiff included that he did not listen well, sometimes missed the forest for the trees by concentrating on minute legal issues while overlooking the larger structural issue, was untidy and disorganized, and had on occasion been argumentative and disagreeable. However, plaintiff's 2005-2006 evaluation by Andy Lamb concluded that he meets or exceeds expectations.

In 2005, plaintiff applied for an open Contract Analyst V position within the department, but the position went to another.

On two occasions in January 2006, Woodard entered plaintiff's office and spoke to him about retirement. On the first occasion, Woodard said, "You really ought to retire." Plaintiff did not respond, and Woodard departed. On the second occasion, Woodard came into plaintiff's office, saw a plaque on plaintiff's wall about plaintiff being certified as an arbitrator by the American Arbitration Association, and said, "You ought to retire and go and become an arbitrator [and] make a lot of money."

Following this second incident, plaintiff complained to Lamb about Woodard's comments. Plaintiff indicated he did not want Woodard talking to him about retirement. Lamb asked Woodard not to speak to plaintiff about retirement any more.

In 2006, the department again advertised for a Contract Analyst V position and plaintiff again applied, along with Kelly Gilmore. Gilmore had obtained a bachelor's degree from UCD in 2003 in political science and later took a job with the State of California as a contract analyst. She began working for defendant in the department as a Contract Analyst IV in 2005. Gilmore was the only contract analyst in the department without a law degree.

Lamb was in charge of the selection process, including interviews with the most promising candidates. Lamb selected a panel of interviewers, which included himself and Woodard. Both plaintiff and Gilmore were selected for interviews.

During plaintiff's interview, Woodard made slashing movements with his hand across his throat to signal that plaintiff should cut his answer short. This occurred numerous times. Woodard also made faces, gesticulated and interrupted plaintiff repeatedly. Woodard interrupted other candidates as well.

All but one of the interviewers gave Gilmore the highest score, with plaintiff a close second. The other interviewer scored plaintiff first and Gilmore second.

Lamb was responsible for making the ultimate selection, although Woodard could probably have overruled his choice. Lamb selected Gilmore. He based this decision on performance appraisals, scoring on interviews, the position description and an assessment of who better fit the position. Lamb found Gilmore to be superior to plaintiff in both customer service and procurement and bidding. During Gilmore's tenure in the department, Lamb had observed her processing her own work while helping others, including plaintiff, clear out their backlogs.

After making his decision, Lamb sought and obtained approval from both Woodard and Steve Frost, the Director of Materiel Management at UCD. Frost's approval was a necessary prerequisite to the promotion. Gilmore was thereafter offered and accepted the promotion to Contract Analyst V.

In January 2008, plaintiff filed this action alleging age discrimination, harassment, and intentional infliction of emotional distress. The trial court sustained a demurrer to the harassment claim, and plaintiff voluntarily dismissed the intentional infliction claim.

Defendant moved for summary judgment, asserting plaintiff cannot establish a prima facie claim for age discrimination and defendant had a legitimate, nondiscriminatory reason for promoting Gilmore over plaintiff. The trial court granted the motion, concluding defendant presented a nondiscriminatory reason for the employment decision and plaintiff failed to produce sufficient evidence either that this reason was a pretext or that it may reasonably be inferred the selection was based on age discrimination. The court thereafter entered judgment for defendant.



Standard of Review

The standard of review for summary judgment is well established. The motion shall be granted if the papers submitted show there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A moving defendant has met its burden of showing a cause of action has no merit by establishing that one or more elements of the cause of action cannot be established or that there is a complete defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850.)

We independently review an order granting summary judgment, viewing the evidence in the light most favorable to the nonmoving party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1001.) In performing our independent review of the evidence, "we apply the same three-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue." (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.)

In determining whether there is a triable issue of material fact, we consider all the evidence set forth by the parties except that to which objections have been made and properly sustained. (Code Civ. Proc., § 437c, subd. (c); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We accept as true the facts supported by the opposing party's evidence and the reasonable inferences therefrom (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 148), resolving evidentiary doubts or ambiguities in favor of the opposing party. (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 768.)

In employment discrimination cases under the FEHA, a plaintiff may prove his case either by direct or by circumstantial evidence. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 354.) "Direct evidence is evidence which, if believed, proves the fact of discriminatory animus without inference or presumption. Comments demonstrating discriminatory animus may be found to be direct evidence if there is evidence of a causal relationship between the comments and the adverse job action at issue." (DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 550.) For example, in DeJung, the Court of Appeal found comments by the chairman of a committee responsible for a particular hiring decision that "'they want somebody younger, maybe in their 40's'" (ibid., italics omitted) was direct evidence of age discrimination when coupled with evidence of the chairman's influence over the hiring decision. (Id. at pp. 550-552.)

Where the plaintiff relies instead on circumstantial evidence, this state utilizes the three-part test of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [36 L.Ed.2d 668] (McDonnell Douglas). "'"(1) The complainant must establish a prima facie case of discrimination; (2) the employer must offer a legitimate reason for his actions; (3) the complainant must prove that this reason was a pretext to mask an illegal motive." [Citation.]' [Citations.] 'This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.' [Citation.]

"Where a prima facie case is made relying on circumstantial evidence, the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to raise a genuine issue of fact and to justify a judgment for the employer, that its action was taken for a legitimate, nondiscriminatory reason. [Citation.] If the employer produces substantial evidence of a legitimate, nondiscriminatory reason for the adverse employment action, the presumption of discrimination created by the prima facie case '"'simply drops out of the picture'" [citation] and the burden shifts back to the employee to prove intentional discrimination. [Citations.]' [Citation.]

"If the employer has met its burden by showing a legitimate reason for its conduct, the employee must demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action. [Citations.]" (DeJung v. Superior Court, supra, 169 Cal.App.4th at pp. 552-553.)

"A defendant employer's motion for summary judgment slightly modifies the order of these showings. If, as here, the motion for summary judgment relies in whole or in part on a showing of nondiscriminatory reasons for the [action taken], the employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the [action taken]. [Citations.] To defeat the motion, the employee then must adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance that intentional discrimination occurred. [Citation.] In determining whether these burdens were met, we must view the evidence in the light most favorable to plaintiff, as the nonmoving party, liberally construing [his] evidence while strictly scrutinizing defendant's." (Kelly v. Inc. (2005) 135 Cal.App.4th 1088, 1097-1098.)


Evidentiary Matters

Defendant objected to several items of evidence submitted by plaintiff in opposition to the motion for summary judgment, and the trial court sustained the objections on nine of them. The court gave no explanation for its ruling. Plaintiff contends the court erred as to five of the nine objections.

Objection No. 7:

In Objection No. 7, defendant sought to exclude the following statement in plaintiff's declaration: "Mr. Woodard dominated the recruitment process . . . ." Defendant asserted plaintiff had no foundation for making this statement, as he "has offered no facts showing he had knowledge of the recruitment process, as opposed to the interview process, or Woodard's involvement therewith."

Defendant is correct as far as it goes. There is nothing in the record to suggest plaintiff had any knowledge of the overall recruitment process except as to what he observed in his own interview. Even if Woodard dominated plaintiff's interview, plaintiff cannot extrapolate from this alone that Woodard dominated the entire selection process. At any rate, plaintiff's statement is not evidence but a conclusion he draws from other evidence. Plaintiff asserts that throughout his declaration he sets forth the factual basis for his assertion. Inasmuch as this factual basis was available to the trial court, the conclusion plaintiff draws from that evidence adds nothing to the equation. There was no error in excluding the conclusory evidence.

Objection No. 9:

In Objection No. 9, defendant sought to exclude a portion of paragraph 27 of plaintiff's declaration. In paragraph 27, plaintiff states: "At my December 8, 2006 interview, I was seated at one end of the room and the panelists were seated in a semicircle around me. During my meeting [sic], Woodard made a throat-slashing gesture to indicate to cut an answer short numerous times. Woodard also made faces, gesticulated, and interrupted me repeatedly. The other panelists were able to see both Woodard and me throughout the interview." Defendant objected to the last sentence on the basis of lack of personal knowledge. According to defendant, "[t]he fact that panelists were seated in a semi-circle around [plaintiff] would allow the inference that the panelists were able to see him, but it does not lead to the inference that they could or did see Woodard."

Plaintiff argues that because he was present at the interview, "he is certainly able to testify as to whether the other panelists could see the gestures and faces made by Woodard throughout the process." We agree. Plaintiff is not required to describe exactly how each of the participants was situated in the room. His description that they were seated in a semicircle, coupled with the fact plaintiff was able to observe them in the room, suffices to create an inference that each panelist was able to see both plaintiff and Woodard. Of course, whether the panelists in fact did see Woodard is another matter. We conclude the trial court erred in sustaining Objection No. 9.

Objection No. 10:

Objection No. 10 sought exclusion of the following statement in plaintiff's declaration: "It became apparent to me that Woodard had manipulated my interview by gesticulating, making faces and interrupting me, and by providing responses that not only indicated his disdain and his contempt for me, but also indicated to each member of the panel that I should not be elevated to the Contract Analyst V position. Woodard's demeanor showed that he was highly displeased that I was interviewing for the Contract Analyst V position and it is hard to imagine that this would not affect the other panelists, including his subordinate, Andy Lamb." Defendant objected to the foregoing on the following bases: argumentative, conclusory, speculative, lack of personal knowledge, lack of foundation, vague and ambiguous.

Plaintiff contends that since he was present at the interview, "he is certainly able to testify as to the events that occurred in the room and any reasonable inferences that could be drawn therefrom." Yes, plaintiff is able to testify as to what occurred during the interview. However, that is not what is contained in the foregoing passage. Rather, it contains conclusions plaintiff draws from what occurred. Such conclusions are not evidence and are not helpful in resolving this dispute. As for inferences, it is for the court to determine what inferences may reasonably be drawn from the evidence.

Plaintiff further argues he "is permitted to testify regarding his own view of what occurred and how this affected his state of mind during the interview process." However, plaintiff's interpretation of what occurred and how it affected his state of mind are not relevant to the issue at hand, i.e., how the conduct may have affected the selection process.

Finally, plaintiff points out that, because he worked in the department, he knew Woodard was Lamb's supervisor and had witnessed Woodard and Lamb interacting at work. Plaintiff points out that Lamb told him Woodard had manipulated the process. However, these facts were already available to the trial court. Plaintiff's interpretation of those facts adds nothing. There was no error in sustaining Objection No. 10.

Objection No. 14:

In Objection No. 14, defendant sought to exclude paragraph 32 of plaintiff's declaration, in which he states: "On March 2, 2007, team leader Andrew Wolin told me that Woodard had kept him off the 2006 selection panel, stating that Woodard put people on the panel who would agree with him about who to appoint to the Contract Analyst V position. Wolin told me that I should have been hired for the Contract Analyst V position." Defendant objected on the basis of hearsay and that Wolin's opinion as to who should have been hired was irrelevant and improper opinion evidence.

Plaintiff argues that because Wolin works as a supervisor for defendant, his statements fall under the hearsay exception for party admissions. However, the record contains no response by plaintiff to defendant's objections and, hence, no evidence to establish that Wolin was in a position to speak for defendant. Thus, there is no basis on the record before us to find that the indicated hearsay exception applies.

As for Wolin's opinion as to who should have been selected, plaintiff asserts Wolin was the team leader of the contract analysts and was therefore in a position to judge who was better qualified for the promotion. However, inasmuch as Wolin was not involved in the selection process and therefore was not present at the interviews and was not involved in reviewing the other materials considered by Lamb in reaching his decision, Wolin's opinion in this regard has little if any relevance. We find no error in sustaining Objection No. 14.

Objection No. 15:

Prior to filing this lawsuit, plaintiff filed an age discrimination claim with UCD and UCD assigned Danesha Nichols to investigate. Nichols prepared a report of her investigation, which concluded that plaintiff's claim of age discrimination was unsubstantiated but his related claim of inappropriate conduct by Woodard during the interview process was substantiated.

In Objection No. 15, defendant sought to exclude the following statement contained in Nichols' investigation report: "Mr. Lacey felt that Ms. Gilmore clearly had less experience than Mr. Silen and he felt that she was not as thorough in her responses as Mr. Silen." Defendant objected on the basis of hearsay and lack of foundation.

Plaintiff contends there is clearly a foundation for Lacey's statements, inasmuch as Lacey participated in the interview process and had knowledge of the individuals involved. Plaintiff further contends the investigative report falls under the business records exception to the hearsay rule.

Assuming plaintiff is correct about the foundation for Lacey's statement, his hearsay argument is unavailing. Even if the investigation report qualifies as a business record, this does not mean all hearsay statements within the report are admissible. Plaintiff argues Lacey is a manager at UCD and therefore his statements fall within the hearsay exception for party admissions. However, plaintiff did not make this argument below and did not establish the facts necessary to support it. The trial court did not err in sustaining Objection No. 15.


Prima Facie Case

Plaintiff does not contend the record contains direct evidence of discrimination. Instead, he relies on the McDonnell Douglas three-part test. Regarding the first part of that test, plaintiff argues the evidence before the trial court established a prima facie case of age discrimination. In particular, plaintiff belonged to a protected class of those at least 40 years old, he was qualified for the promotion, he did not get the promotion, and the person promoted to the position was significantly younger than him.

Defendant argues plaintiff failed to establish a prima facie case. Defendant acknowledges that plaintiff "was more than 40 years old, failed to obtain the promotion he sought, was satisfactorily performing his job, and lost the promotion to a younger person." Defendant further acknowledges that while this might be a sufficient showing if plaintiff had been demoted or fired, it is not sufficient here, where plaintiff claims discrimination in connection with a denied promotion.

Defendant's argument is based on a misstatement of plaintiff's prima facie case. Plaintiff does not argue he established a prima facie case by establishing he was satisfactorily performing his job, as defendant asserts, but by establishing he was qualified for the promotion. In the context of this case, a prima facie case would consist of evidence that "(1) [plaintiff] was a member of a protected class, (2) he was qualified for the position he sought . . . , (3) he [was denied the position], and (4) some other circumstance suggests discriminatory motive." (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 355.) Here, the other circumstance would be the fact the position ultimately went to a much younger person with similar qualifications. (Accord Levy v. Regents of University of California (1988) 199 Cal.App.3d 1334, 1343 [The elements of a prima facie case under the federal Age Discrimination in Employment Act, which are similar to those under McDonnell Douglas, are "(1) he was a member of the protected age group of individuals between 40 and 70 years of age, (2) he applied for but did not receive the position in question, (3) another person of similar qualifications generally outside the protected age group, received the particular position, and (4) the claimant was qualified to fill the position he sought."].)

At any rate, defendant did not rely below on plaintiff failing to establish a prima facie case, and the trial court did not rule on that issue. Defendant proceeded to step two of the McDonnell Douglas test and presented evidence of a legitimate reason for the employment decision, i.e., that Gilmore was better qualified for the job. Plaintiff then proceeded to the third step of the McDonnell Douglas analysis by producing evidence on the issue of whether defendant's stated justification for promoting Gilmore was a pretext for unlawful discrimination. As we explain in the next section, defendant presented a legitimate reason for the employment decision to eliminate any presumption created by a prima facie case and shift the burden to plaintiff. Thus, the ultimate question is whether plaintiff presented sufficient evidence of pretext or discriminatory motive to withstand summary judgment.


Employer's Stated Reason for the Employment Decision

The second step in the McDonnell Douglas analysis is to determine if the employer articulated a legitimate business reason for the employment decision. Legitimate business reasons "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, italics omitted.)

Defendant made the following showing in favor of summary judgment: Lamb was responsible for setting up the selection process, selecting the interview panel, and making the final selection. In making his decision, Lamb considered performance appraisals, personnel files, the candidates' abilities, skills and knowledge, and the overall job description for the position. He ultimately concluded Gilmore was the best candidate for the promotion. Gilmore was judged to have done better in the interviews by all but one of the panelists. Lamb had supervised both plaintiff and Gilmore and was familiar with their work. Gilmore had helped plaintiff clear away some of his backlog of contracts and had been assigned more complex contracts. Gilmore had a history of solid job performance, whereas plaintiff had a history of performance issues. Gilmore was well liked by other university personnel and Lamb considered her superior to plaintiff in the area of customer support. Ultimately, Gilmore was chosen because of her superior customer support and background in procurement and bidding.

Plaintiff contends defendant failed to present evidence of a legitimate business reason for promoting Gilmore over him. He argues he was vastly more qualified for the promotion than Gilmore and the selection process used by defendant was a sham designed to award the promotion to Woodard's preferred candidate. However, as we shall explain, none of plaintiff's arguments in this regard address whether defendant articulated a legitimate business reason for the employment decision. Rather, plaintiff's arguments go to whether defendant's stated reason was a pretext for unlawful discrimination, an issue we address in the next section.

Plaintiff highlights a number of differences between his background and that of Gilmore. In particular, while both plaintiff and Gilmore have B.A. degrees in political science, plaintiff also has J.D. and L.L.M. degrees. Plaintiff is a member of both the California and Massachusetts bar associations and has published in legal journals. Plaintiff has worked in various government positions and in legal capacities for nearly 40 years, whereas Gilmore worked only seven months as a contract analyst for the state and one year as a contract analyst for defendant. According to plaintiff, "the difference in experience and knowledge related to the job is so vast that any attempt by [defendant] to prove a legitimate reason for hiring Gilmore over [plaintiff] is dubious at best, and more likely dishonest."

Plaintiff's argument is essentially that, in light of his vastly greater education and experience, defendant could not possibly have concluded Gilmore was more qualified for the promotion than him. However, this argument puts the cart before the horse. The question here is whether defendant articulated a legitimate business reason for choosing Gilmore over him. In the next section, we consider whether that articulated reason can withstand scrutiny.

Plaintiff next argues Gilmore is not qualified for the Contract Analyst V position, because the job description requires legal expertise, which Gilmore lacks. Plaintiff points out that 70 percent of the candidate evaluation was to be based on "the candidates' ability to analyze draft and execute contracts; to assess contractual risk; assess conflict of interest issues; author customized contracts; and similar tasks, all of which require a sophisticated knowledge of law and contracting." Plaintiff asserts a Contract Analyst V would be assigned more complex contracts than a Contract Analyst IV and "Gilmore, having no prior training or relevant experience in drafting business contracts, could not possibly have been expected to draft significant and complex agreements on her own." Plaintiff further argues defendant simply disregarded the job description requirement of a "thorough knowledge of business law and experience" in selecting Gilmore over the other candidates.

Plaintiff's argument simply presumes that Gilmore has no legal expertise in the area of contract drafting and analysis. However, the fact Gilmore did not go to law school and is not an attorney does not mean she has no knowledge of contract law. On the record before us, there is no basis for concluding plaintiff, by virtue of his law degrees and years of work in the legal field, is more qualified than Gilmore in analyzing, drafting and executing contracts, assessing contract risks, assessing conflicts of interest, and authoring customized contracts. That was for defendant to determine in light of all available information. Furthermore, plaintiff again is not challenging whether defendant articulated a legitimate business reason for its choice but whether that reason was a pretext.

Plaintiff nevertheless contends there is a serious question whether a non-attorney such as Gilmore could provide legal advice to defendant on contracting issues. Plaintiff cites Business and Professions Code sections 6125 and 6126, which make it unlawful for one to practice law without a license. Plaintiff further cites the following definition of the "practice of law" approved by the California Supreme Court in Baron v. City of Los Angeles (1970) 2 Cal.3d 535, at page 542: "'"[A]s the term is generally understood, the practice of law is the doing and performing services in a court of justice in any matter depending therein throughout its various stages and in conformity with the adopted rules of procedure. But in a larger sense it includes legal advice and counsel and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be depending in a court."'"

Plaintiff reads the foregoing definition too broadly. Not all contract drafting and negotiation constitute the practice of law. (See, e.g., Montebello Rose Co. v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, 32-33 [negotiations with a labor union over the terms of a labor contract may be conducted by non-attorneys].) Taken to its logical conclusion, plaintiff's argument would mean that only attorneys could perform the work of a Contract Analyst IV, inasmuch as they perform the same work as a Contract Analyst V but on less complicated contracts. It would also mean Gilmore violated the law when she worked as a contract analyst for the State of California for seven months before being hired by defendant.

Plaintiff next contends defendant failed to show that all those who contributed to the decision to promote Gilmore based their decision on nondiscriminatory motives. In particular, plaintiff argues there is no evidence the "decision-makers" reviewed all the available materials, such as performance reviews. Plaintiff further argues the interview process was tainted by Woodard's conduct, which was observed by the other panel members, and by the fact one panel member believed that Gilmore may have been coached by Lamb. According to plaintiff, "[i]f the process was unfair and disadvantaged [plaintiff], the reasoning that resulted from the unfair process cannot be legitimate."

Again, however, plaintiff is attempting to challenge the authenticity of defendant's stated rationale for promoting Gilmore rather than him. We address that issue in the next section. Furthermore, plaintiff's argument ignores the fact the only decision-maker here was Lamb. The other members of the interview panel were involved only in deciding how the candidates faired in their interviews. Lamb used the interview scores and other information available to him to make his choice. As for Lamb coaching Gilmore, this is refuted by the panel member who first suggested it. Lisa Williams stated in her declaration that she told defendant's investigator she thought Lamb may have coached Gilmore. By this, she "meant that Lamb used follow-up questions during the interview as prompts to elicit Gilmore's knowledge and skills." This in turn was based solely on the fact Gilmore "did a really good job of answering the questions asked." Williams clarified she had no information that Lamb had in fact coached Gilmore.

Plaintiff contends Woodard and Lamb deliberately manipulated the recruitment process in order to assure that Gilmore would be selected. According to plaintiff, "[b]y agreeing to do so, and by engaging in overt acts to accomplish that purpose," Woodard and Lamb are subject to prosecution under Penal Code section 182, subdivision (a)(5), which prohibits a conspiracy "[t]o commit any act injurious to the public health, to public morals, or to pervert or obstruct justice, or the due administration of the laws." (Pen. Code, § 182, subd. (a)(5).)

Plaintiff also contends the selection process violated Government Code sections 19680 and 19682. Government Code section 19680 reads in relevant part: "It is unlawful for any person: [¶] (a) Willfully by himself or in cooperation with another person to defeat, deceive, or obstruct any person with respect to his right of examination, application, or employment under this part or board rule. [¶] . . . [¶] (c) Willfully to furnish to any person any special or secret information for the purpose of either improving or injuring the prospects or chances of any person examined, certified or to be examined or certified under this part or board rule." Government Code section 19682, in turn, reads: "Every person who violates any provision of this chapter is guilty of a misdemeanor . . . ."

Finally, plaintiff contends the actions of Woodard and Lamb violated the merit principles contained in the State Constitution. According to plaintiff, "in the recruitment and interview process which resulted in the promotion of Gilmore, Lamb and Woodard conducted themselves without regard to the principles of honesty and integrity--inherent components of merit principle embedded in the due process protections of the California Constitution."

Plaintiff did not raise any of the foregoing statutory and constitutional arguments below. As a general matter, appellate courts will not consider issues or theories raised for the first time on appeal unless the question is one of law to be applied to undisputed facts. (Johanson Transp. Service v. Rich Pik'd Rite, Inc. (1985) 164 Cal.App.3d 583, 588.) Furthermore, the question here is not whether defendant's agents violated the law but whether they failed to choose plaintiff for the promotion because of his age.

Defendant satisfied its burden of demonstrating a legitimate business reason for selecting Gilmore over plaintiff for the promotion. In the next section, we consider whether plaintiff satisfied his burden of presenting sufficient evidence that defendant's stated reason was a pretext for age discrimination.



In order to satisfy the third part of the McDonnell Douglas test, plaintiff must "'[d]emonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the [] proffered legitimate reasons for [the] 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] [sic] non-discriminatory reasons." [Citations.]'" (Hersant v. Department of Social Services, supra, 57 Cal.App.4th at p. 1005, italic s omitted.) Plaintiff "'cannot simply show that [defendant's] decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated [defendant], not whether [defendant] is wise, shrewd, prudent, or competent . . . .'" (Ibid.)

Plaintiff's case against defendant is based on two categories of evidence. First, plaintiff relies on what he characterizes as his vastly superior qualifications for the promotion. As noted earlier, Gilmore has a B.A. degree, whereas plaintiff also has both J.D. and L.L.M. degrees. Plaintiff is a member of both the California and Massachusetts bar associations, has published in legal journals and has worked in various government positions and in legal capacities for nearly 40 years. Gilmore, on the other hand, worked only seven months as a contract analyst for the state and had been a contract analyst for the department for only a year before the promotion.

Plaintiff also relies on the two incidents in January 2006. According to plaintiff, in the first incident, Woodard came into his office and said, without any preamble, "You really ought to retire." In the second incident, Woodard entered plaintiff's office, saw the plaque on plaintiff's wall, and said, again without preamble, "You ought to retire and go and become an arbitrator [and] make a lot of money."

As to plaintiff's first category of evidence, his argument is essentially that, in light of his vastly greater education and experience, defendant could not possibly have concluded Gilmore was more qualified than him for the promotion. "'If a factfinder can conclude that a reasonable employer would have found the plaintiff to be significantly better qualified for the job, but this employer did not, the factfinder can legitimately infer that the employer consciously selected a less-qualified candidate--something that employers do not usually do, unless some other strong consideration, such as discrimination, enters into the picture.'" (Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 674-675, italics omitted, quoting from Aka v. Washington Hosp. Center (D.C. Cir. 1998) 156 F.3d 1284, 1294.)

On the other hand, plaintiff's argument presupposes that those portions of plaintiff's resume that he highlights are significant to the Contract Analyst V position. Yet, it is undisputed defendant did not require applicants to have a law degree. Nor, for that matter, did defendant require a bachelor's degree, although this was preferred. And while a law degree might be helpful, what is significant is whether the applicant has knowledge of contract law. One need not be an attorney to be knowledgeable on contract law, or any other area of the law for that matter. As for plaintiff's more extensive work history, this is significant only to the extent it made him a better contract analyst for the department.

Furthermore, plaintiff's argument ignores other factors that defendant might reasonably have taken into consideration in deciding who to promote, such as basic intellectual ability, effort, ability to work well with others and the like. As defendant points out, plaintiff has essentially singled out differences between himself and Gilmore that appear to favor him and then asks how anyone could have chosen Gilmore. There is nothing in the record to suggest the items cited by plaintiff necessarily played a part in the selection process. On the other hand, the question is whether a reasonable jury would have found plaintiff more qualified for the promotion than Gilmore, thereby inferring a possible discriminatory motive.

Regarding plaintiff's second category of evidence, one can reasonably debate whether a statement to an employee that he or she should retire, especially where the employee has reached what is commonly considered a retirement age, demonstrates age-related bias or simply concern over what is best for the employee. It is undisputed Woodard himself was planning to retire soon and so must have considered this to be in his own best interests. Furthermore, since Woodard was planning to leave defendant's employment, one might reasonably question what possible motive Woodard would have had for seeing that older workers are not given promotions.

Nevertheless, according to plaintiff's evidence, the comments were not made in connection with some larger discussion of retirement or future plans. Rather, Woodard simply walked into plaintiff's office and, without as much as a salutation, told plaintiff he should retire, and then walked back out again. This happened on two separate occasions. In our view, a reasonable jury could infer an age-related bias from this unusual conduct.

Plaintiff argues defendant's attempt to insulate its promotion decision by claiming the decision was made by Lamb alone is unavailing. Plaintiff argues the following evidence demonstrates that Woodard dominated the selection process: (1) Woodard was Lamb's immediate supervisor; (2) Lamb sought approval from Woodard on the candidates chosen to be interviewed; (3) Woodard was on the interview panel; (4) Woodard signaled to Lamb he did not want plaintiff selected by cutting off plaintiff's answers and making slashing gestures during plaintiff's interview; (5) Woodard gave Gilmore his highest score; and (6) Woodard had authority to override Lamb's choice.

One might reasonably dispute plaintiff's interpretation of Woodard's conduct during plaintiff's interview. In his declaration, Lamb stated that plaintiff had difficulty in the interview keeping his answers concise and focused. Another of the interviewers, Phill Lacey, agreed. Woodard, himself, stated plaintiff had problems keeping his answers concise and, when plaintiff's answers became too lengthy, he made a slashing gesture for plaintiff to cut the answer short. From the foregoing, it may reasonably be inferred Woodard was actually trying to help plaintiff to do better in the interview.

However, consistent with the rules applicable to summary judgment, we draw all reasonable inferences in favor of plaintiff. In this instance, there is clearly evidence from which a reasonable trier of fact could infer Woodard was substantially involved in the promotion decision. In particular, Woodard was Lamb's immediate supervisor, participated in selection of the interview panel and participated in the interviews themselves. Lamb, in fact, acknowledged that Woodard probably could have overruled his choice for the promotion.

As for Woodard's comments, these did not relate to and were not made in connection with the promotion decision. In Reid v. Google, Inc. (2010) 50 Cal.4th 512 (Reid), the California Supreme Court rejected the "stray remarks" doctrine, under which courts have deemed irrelevant for purposes of overcoming a summary judgment motion "any remarks made by non-decisionmaking co-workers or remarks made by decisionmaking supervisors outside of the decisional process . . . ." (Id. at p. 537.) Recognizing the inherent difficulty in proving discriminatory intent, the high court explained that "[a]n age-based remark not made directly in the context of an employment decision or uttered by a non-decision-maker may be relevant, circumstantial evidence of discrimination." (Id. at p. 539.) Such evidence must be considered in connection with all other evidence in assessing whether the plaintiff is entitled to have the issue of discriminatory intent decided by the trier of fact. (Id. at p. 538.) "Although stray remarks may not have strong probative value when viewed in isolation, they may corroborate direct evidence of discrimination or gain significance in conjunction with other circumstantial evidence. Certainly, who made the comments, when they were made in relation to the adverse employment decision, and in what context they were made are all factors that should be considered." (Id. at p. 541.) "A stray remark alone may not create a triable issue of age discrimination. [Citation.] But when combined with other evidence of pretext, an otherwise stray remark may create an 'ensemble [that] is sufficient to defeat summary judgment.'" (Id. at pp. 541-542, italics omitted.)

In this instance, the stray remarks of Woodard are made more significant by evidence of Woodard's participation in the employment decision. And while this evidence alone might not be enough to withstand a summary judgment motion, here we also have evidence that, at least on paper, plaintiff appeared to be much more qualified than Gilmore to do contract work for the department. Although defendant presented evidence that a law degree was not a prerequisite to the position, it is nevertheless undisputed that all of the contract analysts in the department except Gilmore were attorneys.

As explained earlier, in assessing whether defendant was entitled to summary judgment, we must "'view the evidence in the light most favorable to plaintiff[] as the losing part[y]' and 'liberally construe plaintiff['s] evidentiary submissions and strictly scrutinize defendant['s] own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff['s] favor.'" (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 96-97.) "Proof of discriminatory intent often depends on inferences rather than direct evidence. [Citation.] And because it does, 'very little evidence of such intent is necessary to defeat summary judgment.'" (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 283.)

Although the 1992 and 1993 amendments to summary judgment law were intended to move it closer to its federal counterpart in order to liberalize the granting of such motions (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 848), such amendments were not intended to provide a shortcut for resolving cases dependent on issues of fact. Employment discrimination cases, which often present issues of the intent or motive of particular actors, are rarely appropriate for disposition on summary judgment. (Nazir v. United Airlines, Inc., supra, 178 Cal.App.4th at p. 286.)

We conclude plaintiff presented sufficient evidence to establish an issue of fact on whether defendant's stated justification for promoting Gilmore instead of him was a pretext for age discrimination.


The judgment is reversed and the matter remanded to the trial court with directions to vacate its order granting and enter a new order denying defendant's motion for summary judgment. Plaintiff shall receive his costs on appeal.

We concur: RAYE, P. J. BLEASE, J.


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