City of Santa Monica v. Superior Court CA2/2 ( 2022 )

Filed 10/26/22 City of Santa Monica v. Superior Court CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
CITY OF SANTA MONICA, B316941
Petitioner, (Los Angeles County
Super. Ct. No. 20STCV11832)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
BRIDGET CADE,
Real Party in Interest.
ORIGINAL PROCEEDING; petition for writ of mandate.
Michelle Williams Court, Judge. Petition granted.
Liebert Cassidy Whitmore, Jennifer M. Rosner and Jolina
Abrena for Petitioner.
No appearance for Respondent.
Equal Rights Law Group and Mika Hilaire for Real Party
in Interest.
___________________________________________________
Petitioner, City of Santa Monica (City), is the defendant in
a lawsuit brought by a longtime employee, plaintiff and real
party in interest Bridget Cade, for alleged discrimination,
retaliation, and related wrongs. In this writ of mandate
proceeding, the City properly challenges a trial court ruling
denying summary judgment. We conclude that, because the City
showed its reasons for subject employment-related decisions were
legitimate and nonretaliatory, and because Cade failed to counter
the showing, summary judgment should have been granted.
BACKGROUND
Underlying facts
Following the filing of the City’s petition for writ of
mandate we issued an alternative writ of mandate, directing the
trial court to either enter a new order granting summary
judgment or show cause why it should not be ordered to do so.
The trial court ultimately declined to grant summary judgment.
When the Court of Appeal issues an alternative writ or order to
show cause, the real party in interest may file “a return by
demurrer, verified answer, or both.” (Cal. Rules of Court, rule
8.487(b)(1).) Cade failed to file a return in this court, and the
petition’s allegations are therefore accepted as true. (Code Civ.
Proc., §§ 1089, 1094; Agricultural Labor Relations Bd. v. Superior
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Court (2016) 4 Cal.App.5th 675, 681-682; Bank of America, N.A.
v. Superior Court (2013) 212 Cal.App.4th 1076, 1084-1086.)1
Cade, who is African-American, has worked for the City
since 1999. She has held the same position, administrative
services officer in the City’s transportation department, since
2012.
In July 2017, Cade failed to report to the City’s human
resources department that another employee made a complaint of
sexual harassment. It was determined that reporting the
complaint fell within Cade’s scope of work duties, and, for failing
to make the report, Cade received a written reprimand. Cade did
not agree with the discipline and sent an internal appeal letter in
August 2017. That appeal was denied, and, in June 2018, Cade
(through her attorney) sent another letter making a similar
request. The reprimand appears to have never been rescinded.
Beginning in January 2018, Cade applied to four different
open positions in the City’s human resources department,
positions she characterized as potential promotions. She was not
chosen for any of the four positions. These denials formed the
basis of Cade’s lawsuit against the City.
1 Prior to issuance of the alternative writ, Cade filed a
preliminary opposition to the City’s writ petition in response to a
request by this court. Even if we were to consider this
preliminary opposition a valid substitute for a proper return
(which it is not), it would make scant difference. Our review of
the record—independent from the petition’s allegations—reveals
no material disputes relevant to the limited issues necessary to
resolve this petition.
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The City’s motion for summary judgment
Cade’s operative complaint against the City pled four
causes of action: (1) discrimination in violation of the California
Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900
et seq.), (2) retaliation in violation of FEHA, (3) a derivative claim
of failure to prevent discrimination and retaliation, and (4)
violations of the equal pay statute (Lab. Code, § 1197.5).
Cade eventually dismissed her equal pay claim, and so,
with the third cause of action being derivative, the City’s motion
for summary judgment (or, in the alternative, summary
adjudication) primarily focused on the first two causes of action.
With respect to the first cause of action, Cade alleged that she
was passed over for the four open positions because she is a
woman and African-American. (Although the record is not
entirely clear on this point, it appears that not one of the four
open positions was filled by an African-American candidate, and
three of the four were filled by men.) Cade’s second cause of
action alleged that the City retaliated against her because she
challenged the written reprimand she received in July 2017. The
retaliation that Cade allegedly suffered was not being hired for
any of the four open positions.
In moving for summary judgment, the City presented
evidence regarding the interview and selection process for the
four open human resources positions. This evidence included the
factors considered in filling each open position, including the
experience and qualifications deemed important. For each of the
positions, evidence was presented regarding why an individual
candidate was selected. The City’s reasons for choosing
applicants other than Cade focused on their respective
qualifications.
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According to the City’s evidence, one applicant was better
prepared for the employment interview than Cade, answered
interview questions more directly, was more familiar with
modern human resources trends, and incorporated prior human
resources experiences into proposed strategies for the division.
Another candidate had solid experience in a broad range of
human resources functions, including a strong knowledge of an
important recruiting software, and appeared to have good
supervisory skills. The candidate for another position, who
received the highest total score from the interview panel, had a
law degree and had served as lead negotiator in labor
negotiations. The candidate chosen for the fourth position
likewise received the highest total score from the interview panel
and had desired experience in classifications, compensation, and
staff development. In contrast, according to the City’s evidence,
Cade received lower scores, was less focused in interviews, and
did not have the breadth of relevant experience or educational
background. The City employees who ultimately decided whom
to hire for the four positions each declared that Cade’s race and
gender were not considered in the hiring process, nor were her
disciplinary history or related appeals.
In opposing the City’s motion, Cade failed to produce
substantive evidence. She provided no evidence refuting the
City’s stated reasons for its employment decisions or showing
that the decisions may have been pretextual. Instead, Cade flatly
asserted, without reference to supporting evidence, that the
hiring process was subjective, that her application was not
adequately considered, that she had relevant experience, and
that the rejections were due to her race and because she
challenged the written reprimand.
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In November 2021, the trial court granted summary
adjudication as to Cade’s fourth case of action, for violation of
equal pay requirements, but denied summary adjudication as to
the other three causes of action. Following the City’s timely writ
petition, we issued the alternative writ of mandate. In response,
the trial court amended its ruling in May 2022, in part, by
adjudicating the first cause of action, for discrimination in
violation of FEHA, in favor of the City. The court found that the
City “met its burden of showing a legitimate business reason for
the adverse employment actions,” and that Cade’s argument in
response lacked “evidentiary support.” The court, however,
declined to summarily adjudicate the second cause of action, for
retaliation, or the derivative third cause of action.
DISCUSSION
I. Writ review
Summary judgment must be granted if the papers show an
absence of triable issues of material fact and that the moving
party is entitled to judgment as a matter of law. (Code Civ. Proc.,
§ 437c, subd. (c).) A party challenging denial of summary
judgment may do so by writ petition. (Id., subd. (m)(1).) “‘Where
the trial court’s denial of a motion for summary judgment will
result in trial on nonactionable claims, a writ of mandate will
issue.’” (CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th
1255, 1259-1260.) We review a trial court’s decision on summary
judgment de novo, determining independently whether the facts
not subject to material dispute support summary judgment. (Id.
at p. 1260; Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.)
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II. Discrimination claim
In its revised May 2022 order, the trial court summarily
adjudicated Cade’s discrimination cause of action, leaving
retaliation as the last substantive claim. Because Cade’s
remaining retaliation claim rests largely on the same set of
material facts as her discrimination claim, we initially note that
summary adjudication of the discrimination claim was
warranted. As the trial court found, the City met its burden as
the movant by “set[ting] forth competent, admissible evidence
[citations] of its reasons, unrelated to . . . bias,” that it
demonstrated a legitimate business reason for the claimed
adverse employment action (see Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 357 (Guz)), which was declining to hire
Cade for any of the four open positions.
This showing shifted the burden to Cade. “[T]o avoid
summary judgment, an employee claiming discrimination must
offer substantial evidence that the employer’s stated
nondiscriminatory reason for the adverse action was untrue or
pretextual, or evidence the employer acted with a discriminatory
animus, or a combination of the two, such that a reasonable trier
of fact could conclude the employer engaged in intentional
discrimination.” (Hersant v. Department of Social Services (1997)
57 Cal.App.4th 997, 1004-1005 (Hersant).) As found by the trial
court, Cade failed to offer such evidence. The trial court,
therefore, properly granted summary adjudication of the
discrimination claim.
III. Retaliation claim
In denying summary adjudication on Cade’s retaliation
cause of action, the trial court, for unexplained reasons, did not
apply the same analysis it employed in deciding the
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discrimination claim. Cade based her retaliation claim on
allegations that the City retaliated against her for challenging
the written reprimand by not hiring her for any of the open
positions—the same claimed adverse actions as those underlying
the discrimination claim. This commonality should have
prompted the trial court to again determine whether the City
demonstrated its employment decisions were legitimate and
whether Cade then countered the showing.
Cade’s retaliation claim was brought under Government
Code section 12940. FEHA prohibits employers from
“discharg[ing], expel[ling], or otherwise discriminat[ing] against
any person because the person has opposed any practices
forbidden under this part or because the person has filed a
complaint, testified, or assisted in any proceeding under this
part.” (Gov. Code, § 12940, subd. (h).)
California courts follow a modified version of the burden-
shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411
U.S. 792 in resolving FEHA employment retaliation claims on
summary judgment. (Glynn v. Superior Court (2019) 42
Cal.App.5th 47, 55 (Glynn); Loggins v. Kaiser Permanente
Internat. (2007) 151 Cal.App.4th 1102, 1109 (Loggins).) “In the
first stage, the ‘plaintiff must show (1) he or she engaged in a
“protected activity,” (2) the employer subjected the employee to
an adverse employment action, and (3) a causal link existed
between the protected activity and the employer’s action.’
(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) If
the employee successfully establishes these elements and thereby
shows a prima facie case exists, the burden shifts to the employer
to provide evidence that there was a legitimate, nonretaliatory
reason for the adverse employment action. (Morgan v. Regents of
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University of California (2000) 88 Cal.App.4th 52, 68.) If the
employer produces evidence showing a legitimate reason for the
adverse employment action, ‘the presumption of retaliation
“‘“drops out of the picture,”’”’ (Yanowitz, supra, at p. 1042), and
the burden shifts back to the employee to provide ‘substantial
responsive evidence’ that the employer’s proffered reasons were
untrue or pretextual (Martin v. Lockheed Missiles & Space Co.
(1994) 29 Cal.App.4th 1718, 1735).” (Loggins, supra, 151
Cal.App.4th at p. 1109.)
We assume, without deciding, that Cade made an initial
prima facie case for FEHA retaliation. The burden thus would
have shifted to the City to provide evidence of legitimate,
nonretaliatory reasons for its employment decisions. (See
Loggins, supra, 151 Cal.App.4th at p. 1109.) As found by the
trial court in adjudicating the discrimination cause of action, the
City met its burden. The City produced substantial evidence
showing how the employment decisions at issue were made and
what factors were considered. The City’s reasons for its decisions
were, on their face, legitimate, and no retaliatory animus was
apparent.
The burden therefore shifted back to Cade to offer
substantial evidence that the City’s reasons were untrue or
pretextual. (See Loggins, supra, 151 Cal.App.4th at p. 1109;
Hersant, supra, 57 Cal.App.4th at pp. 1004-1005.) In opposing
summary judgment, the employee cannot “simply show the
employer’s decision was wrong, mistaken, or unwise. Rather, the
employee ‘“must demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them ‘unworthy of credence,’
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[citation], and hence infer ‘that the employer did not act for the
[. . . asserted] non-discriminatory reasons.’”’” (Horn v. Cushman
& Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807 (Horn),
quoting Hersant, at p. 1005.)
Cade failed to provide evidence demonstrating weakness or
incoherency in the City’s reasons for its hiring decisions. At
most, through a declaration she submitted on her own behalf,
Cade characterized the City’s hiring process as deficient because
it should have considered her a better candidate than it actually
did. But, even under her own narrative, Cade did not claim that
she was a top candidate for any of the four open positions.
Indeed, Cade failed to show that the City’s decisions were “wrong,
mistaken, or unwise” (Horn, supra, 72 Cal.App.4th at p. 807),
much less that they may have been pretextual. In short, Cade
failed to raise a triable issue of fact that the City retaliated
against her.
In Cade’s preliminary opposition to the mandate petition
filed in this court, Cade argues that the “temporal proximity”
between, on the one hand, her involvement in handling the
sexual harassment claim and the subsequent reprimand and
internal appeals, and, on the other hand, the City’s decisions not
to hire Cade for any of the four open positions, shows that the
City’s reasons were pretextual. This argument fails. While
temporal proximity, by itself, may be enough to initially place the
burden on the defendant to demonstrate legitimate reasons for an
employment action, once the defendant makes that showing,
temporal proximity is insufficient to raise a triable issue of fact
as to pretext or untruthfulness. (Loggins, supra, 151 Cal.App.4th
at pp. 1112-1113.) At most, temporal proximity can be a factor in
establishing pretext if combined with other evidence. (Arteaga v.
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Brink’s, Inc. (2008) 163 Cal.App.4th 327, 353-354.) That other
evidence was sorely lacking here.
Cade also argues that the City gave “shifting reasons” for
its decisions. While “shifting” justifications for an employment
action can also be a factor in determining whether the action was
untrue or pretextual (Guz, supra, 24 Cal.4th at p. 363), Cade did
not adequately show how the City’s reasons for its decisions
shifted. The evidence provided on summary judgment presented
a consistent narrative of the City choosing the applicants that it
deemed best qualified for the open positions. (See Horn, supra,
72 Cal.App.4th at p. 815, quoting Nidds v. Schindler Elevator
Corp. (9th Cir. 1996) 113 F.3d 912, 918 [reasons given by
employer “are ‘not incompatible, and therefore not properly
described as “shifting reasons,”’” when they involve the same
central theme].) Cade’s statements that she was also a worthy
candidate, and evidence that the City valued her as a longtime
employee, do not establish shifting reasons.
Having failed to provide evidence tending to show that the
City’s reasons for its decisions were untrue or pretextual, Cade
did not meet her burden in opposing summary judgment. The
trial court, therefore, erred by declining to adjudicate the
retaliation cause of action in favor of the City.
IV. Failure to prevent claim
Cade’s further remaining cause of action, for failure to
prevent discrimination and retaliation, is entirely derivative of
her discrimination and retaliation claims. (See Featherstone v.
Southern California Permanente Medical Group (2017) 10
Cal.App.5th 1150, 1166; see also Glynn, supra, 42 Cal.App.5th at
p. 56.) Cade does not argue otherwise. Thus, the trial court
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erred by failing to adjudicate the cause of action in favor of the
City and accordingly enter summary judgment.
DISPOSITION
The petition is granted. A writ of mandate hereby issues
directing the trial court to vacate its orders denying the City’s
motion for summary judgment and to enter a new and different
order granting the motion for summary judgment. This court’s
prior order staying trial court proceedings is dissolved. The City
is entitled to its costs incurred in this writ proceeding.
CHAVEZ, J.
We concur:
LUI, P. J.
HOFFSTADT, J.
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