The opinion of the court was delivered by: Hull , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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.
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 ...