Melendez v. Los Angeles Unified School Dist. CA2/8 ( 2021 )

Filed 8/10/21 Melendez v. Los Angeles Unified School Dist. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JESUS E. MELENDEZ, B295052
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC635349)
v.
LOS ANGELES UNIFIED
SCHOOL DISTRICT,
Defendant and Appellant.
JESUS E. MELENDEZ, B298588
Plaintiff and Appellant
v.
LOS ANGELES UNIFIED
SCHOOL DISTRICT,
Defendant and Respondent.
APPEALS AND CROSS-APPEAL from a judgment and an
order of the Superior Court of Los Angeles County. Randolph M.
Hammock, Judge. Affirmed in part, reversed in part, vacated in
part, and remanded.
Hadsell Stormer Renick & Dai, Dan Stormer, Brian Olney;
Toni Jaramilla, Toni J. Jaramilla and May Mallari for Plaintiff
and Appellant.
Ballard Rosenberg Golper & Savitt, Linda Miller Savitt,
Elsa Bañuelos and John J. Manier for Defendant and Appellant
and for Defendant and Respondent.
_________________________
Beginning in 2009, Jesus E. Melendez, an assistant general
counsel in the Office of the General Counsel of the Los Angeles
Unified School District (LAUSD) applied for three positions
within the Office of the General Counsel and for the position of
Personnel Director. All would have been promotions. Melendez
was not selected for any of the four positions. He filed a second
amended complaint with eight causes of action, alleging he was
denied the promotions due to his age and his Mexican and/or
Latino origin. He alleged he was denied the promotions in
retaliation for a Department of Fair Employment and Housing
(DFEH) complaint he had filed in 2003 and correspondence he
had sent in 2008 to LAUSD’s General Counsel complaining about
the budgetary lay-off of a Latina attorney. Melendez also alleged
a violation of the Labor Code for being paid less than non-Latino
attorneys who performed the same work.
The trial court denied summary judgment but granted
summary adjudication in favor of LAUSD on all of Melendez’s
Fair Employment and Housing Act (FEHA) claims, except for his
claims LAUSD was motivated by retaliation in denying him the
Personnel Director position, his declaratory and injunctive relief
cause of action, and his failure-to-prevent cause of action. This
2
summary adjudication disposed of the first, second, and third
causes of action in their entirety.
As to the two causes of action alleging violations of Labor
Code section 1197.5, the court treated the summary judgment
motion as one for judgment on the pleadings and granted it
without leave to amend. The declaratory and injunctive relief
cause of action were also adjudicated against Melendez. Only
Melendez’s FEHA retaliation cause of action as to the Personnel
Director position went to trial, and a jury found in favor of
Melendez and awarded him $210,833.00 in damages. The trial
court also awarded him attorney fees.
LAUSD appeals from the judgment and from the trial
court’s denial of its motion for judgment notwithstanding the
verdict. Melendez cross-appeals from the order granting
summary adjudication and judgment on the pleadings. LAUSD
separately appeals the attorney fees award. The initial appeal
and cross-appeal have been consolidated with LAUSD’s attorney
fees appeal.
We affirm summary adjudication of the FEHA causes of
action and judgment on the pleadings of the Labor Code
retaliation cause of action. We reverse the judgment on the
pleadings of the Labor Code unequal pay cause of action and
remand it with leave to amend. As to the FEHA retaliation cause
of action that went to the jury, we hold the trial court erred in
instructing the jury that it could award non-economic damages.
We find it reasonably probable the jury made such an award. We
strike the damage award, but the judgment of liability otherwise
stands. In light of these rulings we vacate the attorney fees
award and remand the matter to the trial court to determine
whether Melendez is a prevailing party in this mixed motive case
3
and whether he is therefore entitled to attorney fees. After the
damage award, Melendez did not pursue declaratory or injunctive
relief as to the FEHA retaliation cause of action. We conclude he
has forfeited his right to seek such relief on remand.
FACTUAL AND PROCEDURAL BACKGROUND
A. Melendez’s Career Before Joining LAUSD
Melendez was born in Mexico and moved to the United
States with his mother at the age of 6. He graduated from the
University of Southern California and then, in 1971, from USC’s
law school.
After graduating from law school, Melendez worked as a
legislative assistant to United States Senator John Tunney for
about two years, working on the Equal Opportunity Act and the
Bilingual Courts Act. In 1973, Melendez began work as a staff
officer at the national office of the Mexican American Legal
Defense Fund (MALDEF). He was soon promoted to Director of
the Los Angeles office.
In 1974, Melendez was admitted to the California Bar.
From 1974 to 1979, he worked as a Deputy County Supervisor for
Los Angeles County. From 1979 to 1984, Melendez served as the
District Director of the United States Equal Employment
Opportunity Commission (EEOC) for Southern California,
Nevada, Arizona, Utah and New Mexico.
B. Employment at LAUSD
In 1984, Melendez went to work as a staff attorney for
LAUSD’s Office of the General Counsel (OGC). He was one of
only three staff attorneys. At the time, LAUSD attorneys were
“certificated” employees as opposed to “classified” employees.
4
Certificated employees must obtain certification to fill their
position; generally certificated employees are teachers, nurses
and school counselors, but professional administrative employees
may also be certificated. Classified employees are part of
LAUSD’s merit system. By 2000, staff attorneys numbered
between six and eight.
In 2001, OGC underwent a major expansion and
reorganization. Attorneys were divided into teams based on
specialties and practice areas. OGC established two higher level
positions for attorneys: Associate General Counsel I (AGC I) and
Associate General Counsel II (AGC II). At that time, all AGC I’s
were hired to and did work on the Facilities team to support
LAUSD’s multi-billion dollar new school construction projects.
The AGC II’s held higher level positions and acted as team
leaders for the various teams. All attorneys hired after that date
were “classified” rather than certificated employees. As classified
employees they operated under LAUSD’s merit system, which is
run by the Personnel Commission, and is governed by Education
Code sections 45240–45320. In contrast, certificated employees
fall under the purview of the Division of Certificated Human
Resources.
By 2003, there were 42 attorneys at OGC. Melendez
estimated there were only two Mexican-American attorneys at
OGC in 2003: himself and Robert Cuen. There were no Latino
attorneys in management positions. Melendez believed he and
Cuen, who was also a certificated employee, were paid less than
5
classified attorneys doing the same work but who were not
Mexican-American.1
On August 20, 2003, Melendez and Cuen wrote a letter to
the LAUSD Superintendent detailing the disparate pay and lack
of Mexican-Americans in management positions. On August 26,
2003 they filed a DFEH complaint. The Acting General Counsel
then undertook a review of the OGC compensation structure and
recommended that the pay disparity between Mexican-American
attorneys and other attorneys doing the same work be
eliminated. In September 2003, the LAUSD Superintendent
agreed.
At some point, probably in 2008, the title for entry level
attorneys changed from staff attorney or staff counsel to
Assistant General Counsel. Melendez’s title changed accordingly.
In 2008, LAUSD laid off Georgina Verdugo, a Mexican-
American attorney hired four years earlier as an AGC II for the
Government Services team. According to Melendez, the stated
reason for the lay-off was “budgetary reasons.” To Melendez’s
knowledge no one else was laid off at that time, and no one else
had ever been laid off from OGC for budgetary reasons.
Melendez sent an email to the General Counsel and members of
the LAUSD School Board protesting Verdugo’s removal and
claiming it was evidence of discriminatory animus towards
Mexican-Americans. There is nothing in the record on appeal to
show that the laid-off attorney herself made such claims.
1 Although Melendez had the option to convert to classified
status, he chose not to do so because he would lose the seniority
protection he enjoyed as a certificated employee.
6
1. First Promotion Denial: Labor and Employment
Services Team AGC I
In 2009, Melendez applied for a newly created AGC I
position on the Labor and Employment Services team. The
selection process for the position consisted of an oral examination
in the form of a technical interview of each applicant, conducted
by County Counsel attorneys to ensure objectivity. Applicants
were scored and LAUSD generated a ranked eligibility list.
Alexander Molina and James Hunt were tied for first. Melendez
was ranked second. LAUSD rules generally require that a
position be filled from the top three candidates. If a certification
is required, lower ranked candidates may be chosen. Molina and
Melendez had certifications in employment litigation; Hunt did
not.
General Counsel Roberta Fesler selected Molina for the
position. Fesler selected Molina for a number of reasons: he was
the top ranked candidate and had the appropriate legal
certification, and he was already on the Labor and Employment
Services team. Melendez was on the Business and Government
Services team at the time.
2. Second Promotion Denial: Personnel Director
In the summer of 2010, Melendez began the process of
applying for Personnel Director. Melendez advanced through
three stages of interviews. After the interview process, the top
three candidates were Janalyn Glymph, Kathleen Collins and
Melendez. All three candidates were interviewed by three
personnel commissioners: Joseph Paller, Mark Vargas and
Robert Manley. In June 2011, the commissioners selected
Glymph to be Personnel Director. In 2006, Glymph had
previously interviewed for the position. According to Paller,
7
Glymph would have been chosen for the position in 2006, but she
was unable to commit to the five-year term that the Commission
wanted.
At some point in the summer or fall of 2011, Melendez
obtained a copy of a due diligence report prepared about him in
connection with his application for the Personnel Director
position. It was undisputed LAUSD created this report and
provided it to outgoing Personnel Director Wendy Macy and
personnel analyst Anna Forsberg. The first page of the report
states that the Office of the Inspector General (OIG) has “found a
significant issue in the Media section on page 2. The OIG
encourages management to read the entire report and draw its
own conclusion.” The Media section contained an article about
Melendez’s 2003 DFEH complaint about unequal pay.
Melendez stated in a declaration that after he was not
promoted to Personnel Director, outgoing Personnel Director
Wendy Macy told him the personnel commissioners “had been
provided with information regarding my 2003 DFEH charge.”
Melendez testified more specifically at his deposition that Macy
contacted him and told him the report had been provided to the
personnel commissioners and they had read it.
3. Third Promotion Denial: Business and Government
Team
According to Melendez, he learned in August 2011 that
General Counsel David Holmquist had selected James Hunt to be
promoted to an AGC I position on the Business and Government
Services team, the same team Melendez was on. Holmquist used
the eligibility list for the 2009 AGC I position and did not conduct
new interviews. Although eligibility lists typically remain valid
8
for a year, they can be extended for up to three years. LAUSD
offered evidence that the 2009 list was still valid in 2011.
Melendez spoke with his team leader, Greg McNair, about
Hunt’s selection, and McNair said Holmquist had asked him if he
thought Hunt could do the job and McNair replied yes. McNair
stated that it was Holmquist’s decision to promote Hunt.
4. Fourth Promotion Denial: Labor and Employment
Services Team AGC II
In October 2011, Melendez applied for an open AGC II
position on the Labor and Employment Services team created by
Kathleen Collins’s departure from LAUSD. This position was
filled on an interim basis by Molina. It was a senior management
position and so would be filled from an unranked eligibility list.
The Personnel Commission reviewed applications, determined
that Molina, Cuen, Melendez and John Walsh were qualified for
the position and placed them on an unranked eligibility list.
Walsh withdrew shortly after the list was created. The three
remaining applicants were interviewed by three different panels
consisting of (1) OGC team leaders; (2) clients of the Labor and
Employment Services team; and (3) team members in the Labor
and Employment Services team. All three panels gave Molina a
“highly recommended” rating. The “team members” panel gave
Melendez a “not recommended” rating. The other two panels
gave Melendez a “recommended” rating. Holmquist selected
Molina for the position.
C. 2011 DFEH Complaint
On November 28, 2011, Melendez filed a DFEH complaint
alleging discrimination and retaliation in LAUSD’s promotion
decisions and unequal pay for equal work. In December 2011,
9
Melendez approached Holmquist, told him about the complaint
and asked for an out-of-class study to determine if he was doing
the work of an AGC I and was therefore entitled to additional
pay. According to Melendez, Holmquist said something like, “I’m
not in a position to provide you a promotion or more pay, because
otherwise every lawyer in OGC, all they’ll have to do is to file a
DFEH or discrimination complaint feeling that that’s the way
they’re going to get promoted.” Melendez replied he was not
looking for a promotion as he was already doing the work.
Holmquist replied he would let DFEH look into the matter.
D. Current Lawsuit
In 2012, Melendez entered into a tolling agreement with
LAUSD and filed this lawsuit in September 2016. In his first
amended complaint, Melendez alleged seven causes of action,
which expanded to eight when he filed his second amended
complaint during the pendency of LAUSD’s motion for summary
judgment.
His first cause of action alleged discrimination based on
race/national origin in violation of FEHA as set forth in
Government Code section 12940 et seq. He alleged his
race/national origin was a factor in LAUSD’s failure to promote
him and failure to provide equal pay for the duties he performed
at OGC. Melendez identified three failures to promote within
OGC: failure to promote to the positions of AGC I in May 2009,
and AGC I and AGC II in August 2011. Melendez identified a
fourth failure to promote him to Personnel Director of LAUSD in
June 2011. Melendez also alleged he had been performing the
duties and responsibilities of an AGC I since 2007, but was
denied the title and pay for that position.
10
The second cause of action was for age discrimination in
violation of FEHA. Melendez alleged the same set of failures to
promote him.
The third cause of action was for disparate pay based on
Melendez’s race/national origin in violation of FEHA. Melendez
alleged he had been performing the work of an AGC I but was
being paid less than non-Hispanics performing the same work.
He also alleged LAUSD had a policy of prohibiting certificated
employees (but not classified ones) from requesting out-of-class
work studies, disparately impacting Hispanic and minority
employees.
The fourth cause of action alleged retaliation in violation of
FEHA, based on Melendez’s protected activity of “complaining of
discrimination and engaging in other protected activities.” In his
common factual allegations, Melendez identified as “protected
activity” a DFEH complaint he filed in 2003 claiming disparate
pay and an informal complaint he made in 2008 to the General
Counsel about the removal of a female Hispanic team leader. He
also referred to the 2011 DFEH complaint he filed, which was the
precursor to this lawsuit. The acts of retaliation were the ones
“described earlier in [the] Complaint.”
The fifth cause of action alleged failure to take reasonable
steps to prevent harassment and discrimination in the workplace
in violation of FEHA, specifically Government Code
section 12940, subdivision (k).
The sixth cause of action sought declaratory and injunctive
relief to end LAUSD’s alleged violations of FEHA, “including but
not limited to [LAUSD] denying [Melendez] equal pay for
substantially similar or comparable work.”
11
The seventh cause of action alleged unequal pay based on
Melendez’s Mexican origins in violation of Labor Code
section 1197.5.
The eighth cause of action alleged retaliation in violation of
Labor Code section 1197.5, subdivision (k). Melendez alleged the
retaliation was prompted by his campaign for equal pay.
THE PRE-TRIAL RULINGS
A trial court may grant summary judgment or summary
adjudication upon a showing “that there is no triable issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)
The moving party bears the initial burden of showing that the
opposing party cannot establish “[o]ne or more of the elements of
[its] cause of action” or by showing a valid affirmative defense.
(Id., subds. (o)(1), (p)(2).) If that burden is met, the “burden
shifts” to the opposing party “to show that a triable issue of one
or more material facts exists as to the cause of action or [an
affirmative] defense.” (Id., subd. (p)(2).) “ ‘There is a triable
issue of material fact if, and only if, the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the
party opposing the motion in accordance with the applicable
standard of proof.’ ” (Burgueno v. Regents of University of
California (2015) 243 Cal.App.4th 1052, 1057, quoting Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
We review a trial court’s grant of summary judgment or
summary adjudication de novo to determine whether there are
triable issues of material fact. (Wiener v. Southcoast Childcare
Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) Like the trial court,
we strictly construe the moving papers and liberally construe the
opposing papers. We view the moving papers in the light most
12
favorable to appellants. All doubts about the propriety of
granting the motion are resolved in favor of denial. (Wilson v.
21st Century Ins. Co. (2007) 42 Cal.4th 713, 717.)
“The rules of law that define the role of inferences in
creating a triable issue of material fact are contained in
subdivision (c) of Code of Civil Procedure section 437c. When
reviewing a motion, the court shall consider the evidence set forth
in the papers and ‘all inferences reasonably deducible from the
evidence.’ [Citation.] Generally, when conflicting inferences can
be reasonably drawn from the evidence, a triable issue of fact is
deemed to exist.” (Pierson v. Helmerich & Payne Internat.
Drilling Co. (2016) 4 Cal.App.5th 608, 627.)
Although we review the trial court’s ruling de novo, it is
appellant’s burden to affirmatively demonstrate error. (Denham
v. Superior Court (1970) 2 Cal.3d 557, 564.) “The appellant may
not simply incorporate by reference arguments made in papers
filed in the trial court, rather than briefing them on appeal.”
(Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656 (Keyes).)
A. All Claims Based on the 2009 Promotion Denial Are
Time-Barred.
The trial court granted summary adjudication in favor of
LAUSD on all of Melendez’s FEHA claims based on LAUSD’s
decision not to promote Melendez to the AGC I position in 2009.
The trial court found they were barred by the statute of
limitations. These causes of action require that a DFEH
complaint be filed within one year of the discriminatory act.
(Gov. Code, § 12960, subd. (e).) It is undisputed Melendez did not
file a DFEH complaint until late in 2011, after the statute of
limitations had run on the 2009 promotion decision. The court
rejected Melendez’s argument that the continuing violation
13
exception to the limitations period applied; the court found the
promotion decision had acquired permanence in May 2009 when
Melendez did not attempt to have the decision overturned.
Melendez contends summary adjudication was not
warranted on this limitations defense because a continuing
violation may consist of either a series of related acts against an
individual or “ ’a company[-[wide policy or practice.’ ” (Morgan v.
Regents of University of California (2000) 88 Cal.App.4th 52, 64
(Morgan).) Melendez contends a jury could have reasonably
inferred a continuing policy or practice by LAUSD of not
promoting Latino attorneys to supervisory or management
positions. He further contends that when such a policy exists,
individual violations which occur outside the limitations period
remain viable.2 Put differently, Melendez contends that the
permanence bar does not apply in company-wide policy cases.
We do not agree.
Melendez relies on a Ninth Circuit decision, Williams v.
Owens-Illinois, Inc. (9th Cir. 1982) 665 F.2d 918 (Williams), as
well as Morgan, for the proposition that a continuing violation
may be established by demonstrating the existence of “a
2 Melendez claims this exception applies to “all claims”
arising out the 2009 failure to promote. However, he alleged only
that LAUSD had a continuing policy of racial discrimination.
Melendez has not cited any cases which hold that age
discrimination or retaliation claims are to be treated as timely
when an employer has a continuing policy of racial
discrimination. Thus, even if the continuing violation exception
could save his racial discrimination claims, it would not apply to
his age discrimination and retaliation claims arising from the
2009 promotion decision.
14
company-wide policy or practice” and that individual violations
which occur prior to the limitations period are actionable while
the policy is ongoing. Both cases were decided before Richards v.
CH2M Hill, Inc. (2001) 26 Cal.4th 798 (Richards), the California
Supreme Court’s seminal decision on the continuing violation
doctrine. Nevertheless, Melendez contends Richards endorsed
four different approaches to the continuing violation doctrine,
including the “policy” approach discussed in Morgan and
Williams. We read Richards differently.
The Richards court began its discussion of the continuing
violation doctrine by stating: “A review of federal case law
regarding the continuing violation doctrine reveals the doctrine
to be, as one leading treatise has noted, ‘arguably the most
muddled area in all of employment discrimination law.’
[Citation.]” (Richards, supra, 26 Cal.4th at pp. 812–813.) The
Richards court identified four approaches to the continuing
violation doctrine. The “first approach” described by the court is
the one advanced by Melendez. Under this approach, “a
continuing violation is found when a corporate policy is initiated
before the limitations period but continues in effect within that
period.” (Id. at p. 813.) The Richards court acknowledged the
Ninth Circuit’s decision in Williams articulating this approach
and also acknowledged, without mentioning Morgan, that some
California Courts of Appeal had adopted this approach.
(Richards, at p. 813.)
After surveying the four approaches taken by federal courts
(and some California courts), the Richards court chose to “adopt a
modified version” of the test set forth in Berry v. Board of
Supervisors of L.S.U. (5th Cir. 1983) 715 F.2d 971 (Berry).
(Richards, supra, 26 Cal.4th at p. 823.) The Richards Court
15
explained: “As in Berry, we hold that an employer’s persistent
failure to reasonably accommodate a disability, or to eliminate a
hostile work environment targeting a disabled employee, is a
continuing violation if the employer’s unlawful actions are
(1) sufficiently similar in kind—recognizing, as this case
illustrates, that similar kinds of unlawful employer conduct, such
as acts of harassment or failures to reasonably accommodate
disability, may take a number of different forms [citation];
(2) have occurred with reasonable frequency; (3) and have not
acquired a degree of permanence. (Berry, supra, 715 F.2d at
p. 981.) But consistent with our case law and with the statutory
objectives of the FEHA, we further hold that ‘permanence’ in the
context of an ongoing process of accommodation of disability, or
ongoing disability harassment, should properly be understood to
mean the following: that an employer’s statements and actions
make clear to a reasonable employee that any further efforts at
informal conciliation to obtain reasonable accommodation or end
harassment will be futile.” (Richards, at p. 823, italics added.)
This discussion does not simply adopt the Berry test for
claims that an employer failed to accommodate an employee’s
disability or to eliminate a hostile work environment targeting a
disabled employee only. Nor does it “reaffirm” the three other
approaches to the continuing violation for other types of claims.
We understand the Richards court as holding that the modified
Berry test applies to all California FEHA claims.
In any event, whatever ambiguity might be found in the
Richards opinion was subsequently clarified in Yanowitz v.
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028 (Yanowitz). The Court
explained: “Nothing in Richards or Romano limited application
of these principles to only harassment claims, rather than
16
discrimination or retaliation claims. (See Birschtein v. New
United Motor Manufacturing, Inc. (2002) 92 Cal.App.4th 994,
1004 [112 Cal.Rptr.2d 347] [remarking that in Richards, the
‘foundation of the court’s rationale supporting application of the
continuing violation doctrine in FEHA discrimination litigation is
not so much accommodation itself as a process of conciliation’
(italics omitted)].) Indeed, in Richards, we expressly applied the
continuing violation doctrine to the plaintiff’s disability
discrimination claim, as well as to her disability harassment
claim.” (Yanowitz, at pp. 1057–1058.) “Thus, we reiterate that in
a retaliation case, as in a disability accommodation or
harassment case, the FEHA statute of limitations begins to run
when an alleged adverse employment action acquires some
degree of permanence or finality. (Richards, supra, 26 Cal.4th at
p. 823.)” (Yanowitz, at p. 1059.)
Here LAUSD’s 2009 failure to promote Melendez acquired
finality in 2009, as the trial court so ruled. By the time the
DFEH complaint was filed in 2011, the statute of limitations had
run.
Even assuming for the sake of argument that the
permanence rule does not apply when an employer had a
company-wide or corporate policy of discrimination (as opposed to
a series of related acts against an individual),3 Melendez’s 2009
3 We see no basis for such an exception. The facts of
Richards involved a continuing violation which consisted of a
series of related violations against one individual. However, the
Richards court described the first approach to a continuing
violation as involving corporate policy and did not reject the
approach because the case before it did not involve a corporate
policy.
17
claims would still be barred because he has not raised a triable
issue of fact as to whether such a corporate policy existed within
the limitations period for the 2009 claim. (See Richards, supra,26 Cal.4th at p. 813 [noting that under Williams “a continuing
violation is found when a corporate policy is initiated before the
limitations period”].)
Melendez points out that he “alleged a policy of
discriminatory animus against Latinos that prevented them from
advancing into supervisory or management positions” and then
points to statistics for 2017 to argue that “the lack of
representation” continues. In order to defeat summary
adjudication, Melendez had to raise a triable issue of fact
concerning the existence of such a policy, not simply allege its
existence. Statistics for 2017 cannot show whether a policy
existed before the limitations period for his 2009 claim.
We recognize Melendez provided additional statistics
earlier in the background section of his brief and later argued
they show discriminatory intent as to LAUSD’s individual
decisions involving him. It is not this court’s responsibility to
analyze the statistics from Melendez’s background section to
determine whether they can support a reasonable inference that
a discriminatory policy existed prior to 2010, or to do so using
authorities cited in later argument sections of his brief involving
a different use of the statistics. (United Grand Corp. v. Malibu
Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 (United Grand)
[we are not obliged to make arguments for appellant].) We
briefly address some general points about Melendez’s statistics.
Any arguments not discussed below are deemed forfeited. (Ibid.)
18
“Although statistics have a place in a disparate treatment
case, [citation], their utility ‘depends on all of the surrounding
facts and circumstances,’ International Bhd. of Teamsters,
431 U.S. [324,] 340, 97 S.Ct. at 1857.” (Sengupta v. Morrison-
Knudsen Co., Inc. (9th Cir. 1986) 804 F.2d 1072, 1075
(Sengupta).) Further, “ ‘ “statistical evidence derived from an
extremely small universe” . . . “has little predictive value and
must be disregarded.” ’ ” (Ibid. [sample of 28 is too small]; see
also International Bhd. of Teamsters, at p. 340, fn. 20
[considerations such as small sample size may detract from the
value of statistical evidence]) In small samples, “slight changes
in the data can drastically alter appearances.” (Sengupta, at
p. 1076) The EEOC long ago concluded that statistics from small
groups such as a pool of 30 applicants “are not dispositive.”
(Ibid.)
The statistics provided by Melendez involve very small
numbers. The number of management positions is tiny, ranging
between 13 and 19 positions, including the General Counsel and
Deputy General Counsel. Further, while the statistics from 2003
and 2011 show no Latinos in management positions, the
statistics are offered without context and do not account for other
factors. In particular, Melendez does not account for the fact that
his baseline statistics from 2003 reflect a major reorganization
and expansion which occurred within OGC in 2001, and all the
new AGC I positions were filled with attorneys for the Facilities
team to support LAUSD’s massive school expansion project.
These additional attorneys could only have been outside hires.4
4 Melendez estimated there were six to eight attorneys before
the expansion and 42 after it. Thus 34 to 36 of the attorneys
must have been outside hires. Melendez has not shown that any
19
Melendez also fails to account for a 32 percent drop in the
number of AGC I positions by 2011. It is not reasonable to infer a
discriminatory policy from a general lack of increase in Latinos in
management positions when the number of such positions has
drastically decreased. For purposes of the continuing violation
doctrine, Melendez was required to show a discriminatory policy
beginning before 2010, and he has not done so. His claims based
on the 2009 failure to promote are time-barred.
B. Melendez Did Not Create a Triable Issue of Fact As
to Whether LAUSD Denied Him Three Promotions in
2011 on the Basis of Race, National Origin or Age.
The trial court granted summary adjudication on the
claims in Melendez’s first and second causes of action for age and
racial discrimination which were based on the three promotion
denials in 2011.5 The court found LAUSD offered legitimate non-
discriminatory reasons for selecting someone other than
Melendez for the positions, specifically that LAUSD found the
other candidates better qualified than Melendez.
pre-expansion attorneys applied for any of the newly created
AGC I Facilities positions or the newly created AGC II positions.
The lack of Latinos in management positions in 2003 was thus
attributable to decisions about new outside hires, not internal
promotions. Melendez’s statistics are not sufficient to support an
inference of a discriminatory policy in hiring Latino attorneys for
management positions because the statistics are not accompanied
by evidence of the composition of the applicant pool.
5 This ruling, together with the limitations ruling,
completely disposed of the first and second causes of action.
20
Melendez contends summary adjudication was improper
because the evidence showed that he was the “clearly superior”
candidate for each of the three positions, and that fact alone
raises a triable issue concerning whether LAUSD’s explanation
for hiring another candidate was pretextual. In the alternative,
he contends that even if he was not “clearly superior,” he was
more qualified than the other candidate and that fact plus
statistics and other evidence supporting an inference of pretext
are enough to raise a triable issue of fact. The other evidence he
identifies relates to LAUSD’s failure to follow its own procedures
in filling the AGC I position, contradictory explanations by
LAUSD personnel over who selected Hunt for the AGC I position
and direct expressions of animus by Holmquist, one of the
decision-makers for the AGC I and AGC II positions.
1. Application of Summary Judgment Procedures to
Claims of Discrimination
California has adopted the three-stage burden-shifting test
established by the United States Supreme Court for trying claims
of discrimination based on a theory of disparate treatment,
commonly referred to as the McDonnell Douglas test. (Guz v.
Bechtel National Inc. (2000) 24 Cal.4th 317, 354 (Guz).) “At trial,
the McDonnell Douglas test places on the plaintiff the initial
burden to establish a prima facie case of discrimination. This
step is designed to eliminate at the outset the most patently
meritless claims, as where the plaintiff is not a member of the
protected class or was clearly unqualified, or where the job he
sought was withdrawn and never filled.” (Ibid.) “Generally, the
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
21
suffered an adverse employment action, such as termination,
demotion, or denial of an available job, and (4) some other
circumstance suggests discriminatory motive.” (Id. at p. 355.) If,
at trial, the plaintiff establishes a prima facie case, a
presumption of discrimination arises. (Ibid.) “[A]t this trial
stage, 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.
[Citations.] [¶] If the employer sustains this burden, the
presumption of discrimination disappears. [Citations.] The
plaintiff must then have the opportunity to attack the employer’s
proffered reasons as pretexts for discrimination, or to offer any
other evidence of discriminatory motive.” (Id. at pp. 355–356.)
“The Courts of Appeal have pondered how the McDonnell
Douglas formula should apply, under California law, to an
employer’s motion for summary judgment against a claim of
prohibited discrimination.” (Guz, supra, 24 Cal.4th at p. 356.)
We need not consider the “prima facie burden” issue when as
here, the employer does not rely solely on the employee’s failure
to demonstrate a prima face case, but instead proceeds directly to
the second step of the McDonnell Douglas formula. (Id. at
pp. 356–357.) In such instances, when the employer sets forth
competent, admissible evidence of its reasons for the adverse
employment action, unrelated to the claimed age or race bias, the
burden shifts to the employee to show there was nonetheless a
triable issue that decisions leading to the adverse employment
action were actually made on the prohibited bases of age or race.
(Id. at p. 360.)
22
Here, LAUSD effectively proceeded to the second step of
the McDonnell Douglas formula, offering evidence of legitimate
nondiscriminatory reasons for its decision not to promote
Melendez to the three positions at issue. In essence, LAUSD
offered evidence that the selected candidate was better qualified
than Melendez for the position. This shifted the burden to
Melendez to show there was a triable issue that LAUSD’s
decisions were in fact made on the prohibited bases of age or race.
Put differently, Melendez had to show that LAUSD’s reasons for
not promoting him were pretextual.
2. Melendez Did Not Offer Evidence That His
Qualifications Were “Clearly Superior” To Those of
the Promoted Applicants.
Melendez contends the evidence showed that he was
“clearly superior” to the other applicants for the three positions,
and this is sufficient to raise a triable issue of fact on pretext.
When an employer’s reason for not selecting a plaintiff for a
position is that it selected the best qualified candidate, pretext
may be inferred from evidence that the plaintiff had superior
qualifications. (Ash v. Tyson Foods, Inc. (2006) 546 U.S.
454, 457.) Qualifications standing alone may establish pretext
where the plaintiff’s qualifications are “ ‘clearly superior’ ” to
those of the selected job applicant. (Raad v. Fairbanks North
Star Borough School Dist. (9th Cir. 2003) 323 F.3d 1185, 1194.)
a. Qualifications for the 2011 AGC I Position
(Hunt)
James Hunt was promoted to the 2011 AGC I position.
Hunt ranked higher than Melendez on the eligibility list for the
2011 AGC I position. Melendez contends that the candidate
23
ranked highest on the list is not necessarily the most qualified
overall. While other factors might outweigh the ranking, a
candidate’s ranking has relevance, if only to show that the person
scored higher on the competitive exams and interviews for the
position, and thus displayed a higher level of the knowledge or
skills of the sort measured by the exam.
Melendez contends that notwithstanding Hunt’s higher
ranking, there is a triable issue of fact whether Melendez was
more qualified because he had been at LAUSD for 27 years and
Hunt had only been there 8 years. This position was not filled on
the basis of seniority. The men’s examination scores indicate
that Hunt had comparable, if not slightly superior, technical
knowledge and skills than Melendez, despite Melendez’s longer
service with LAUSD. Melendez’s longer work experience thus
does not raise a triable issue of fact as to whether his
qualifications were clearly superior to Hunt’s for this position.
Melendez also points out that he had two certifications while
Hunt had none. No certifications were sought or required for this
particular position, and so Melendez’s certifications do not raise a
triable issue of fact as to whether Melendez’s qualifications were
clearly superior to Hunt’s for this particular position. Finally,
Melendez contends he had oversight of LAUSD’s entire tort
liability program, while Hunt was only the point person for a
group of cases seeking to recover overpayments to some teachers.
Melendez fails to note that the overpayment cases involved a
high volume of cases with a large aggregate value of about $60
million. In terms of the two men’s responsibilities, Melendez is
comparing apples to oranges. Melendez supervised outside
counsel, not LAUSD attorneys. Hunt testified at his deposition
that he managed the recovery efforts, which involved about six
24
other OGC lawyers (and several employees from the payroll
department). Hunt characterized part of his work as “helping the
other lawyers who weren’t litigators litigate the case.” In
addition, Hunt personally handled about 100 to 200 of the
defendants (the same number as the other OGC lawyers).
Melendez has not shown that his work experience was a better
match for this particular position than was Hunt’s, let alone
raised a triable issue of fact as to whether his qualifications were
“clearly superior” to Hunt’s.
b. Qualifications for the AGC II Position (Molina)
Alexander Molina was selected for the AGC II position.
Melendez’s argument on appeal about his qualifications for this
position is less direct than for the other two positions. Melendez
contends his qualifications were clearly superior to those of
Molina for this position, but Melendez relies on a comparison of
their qualifications in 2009, when both men applied for an AGC I
position. Regardless of the two men’s qualifications in 2009, by
2011, Molina had been working as an AGC I for two years while
Melendez had not.6 More importantly, as Melendez
acknowledges, Molina been working as the interim AGC II for
this position and so had more recent relevant experience.
Melendez’s evidence does not raise a triable issue of fact as to
whether his qualifications were clearly superior to Molina’s
qualifications.
6 Melendez contends that he was doing the work of an AGC I
even though he did not have that formal title. As we discuss
below in connection with his disparate pay claim, he has raised a
triable issue of fact on this issue.
25
Melendez contends, however, that he was not selected for
the interim AGC II position because Holmquist was retaliating
for Melendez’s 2003 DFEH complaint. Melendez points only to
evidence that Holmquist was aware of the complaint through
news media accounts which Holmquist read in or about 2003.
Even if this were sufficient to show retaliation, it does not negate
the experience Molina acquired in the interim position. Further,
it would not raise a triable issue of fact as to whether LAUSD
discriminated against Melendez on the basis of race or age and so
would not defeat summary adjudication on these claims.
c. Qualifications for the Personnel Director
Position (Glymph)
Melendez contends there is a triable issue of fact as to
whether his qualifications were clearly superior to Glymph’s
because Melendez had significant supervisory and management
experience at the EEOC and extensive knowledge of the classified
personnel system acquired from handling personnel matters,
including Personnel Commission hearings, employment writs and
appeals, and policy drafting for the Personnel Commission. He
contends Glymph lacked such experience and knowledge.
Melendez’s work with the EEOC ended more than 25 years
before he applied for the Personnel Director position, and he had
not performed comparable management or supervisory roles
since beginning work for LAUSD in 1984. Glymph had
supervisory experience within LAUSD at its internal television
station. Their experiences are different and so not directly
comparable.
26
Melendez had appeared before the Personnel Commission,
and had done some policy work for the Commission. Glymph had
experience working for both the Personnel Commission and the
Division of Certificated Human Resources. These experiences are
not directly comparable, as Melendez encountered the Personnel
Commission as a lawyer handling legal matters. Glymph’s work
was more administrative and analytical. Each acquired
knowledge of LAUSD’s personnel system, but through different
means.
Both Glymph and Melendez passed a training and
experience evaluation and were assessed on their performance on
a simulated Board presentation. Both advanced to a
management interview by a panel of LAUSD employees. There is
nothing in the record to suggest that any of these individuals
were aware of Melendez’s 2003 DFEH complaint. At the
conclusion of the interviews, LAUSD generated an eligibility list
which shows Glymph, Kathleen Collins and Melendez as the top
three ranked candidates, with Glymph ranked first. Thus,
Melendez has not raised a triable issue of fact as to whether his
qualifications as a whole were clearly superior to Glymph’s
qualifications for the position going into the final interviews
where the selection occurred.
As Melendez acknowledges, the personnel commissioners
were impressed with Glymph’s “great people skills” and
“personality.” Although Melendez argues such subjective criteria
should be “closely scrutinized,” Melendez fails to offer any
evidence or argument that Glymph did not have great people
skills and personality. Melendez contends he had a good rapport
with his teammates and received “exceeded expectations” on his
job performance reviews involving interactions with clients and
27
coworkers. This, he says, created a triable issue of fact over
whether he or Glymph had superior interpersonal skills. Even
taking Melendez’s own description of his interpersonal skills at
face value, those skills are at best comparable to Glymph’s skills.
Melendez has not raised a triable issue of fact concerning
whether his interpersonal skills were clearly superior to
Glymph’s skills.
3. Melendez Did Not Offer Other Evidence Which Would
Reasonably Support an Inference of Pretext.
Melendez contends that even if he were not clearly superior
to the other candidates, he was qualified for the positions and
there was other evidence to support pretext. LAUSD does not
dispute that Melendez was qualified for the positions, but
Melendez’s evidence does not support a reasonable inference of
pretext.
a. Melendez’s Statistics Do Not Support a
Reasonable Inference of Pretext or
Discriminatory Animus.
Melendez points to statistics showing the number of Latino
attorneys within OGC in 2011 and 2017.7 He contends there was
a low number of Latino attorneys in management positions,
which shows a pattern and practice of discrimination. Such a
pattern may, in turn, “ ‘create an inference of discriminatory
7 Melendez contends that he has provided evidence showing
that the percentage of entry level Latino attorneys has been
17 percent to 20 percent since 2007. However, his supporting
record citations show data from 2011 and 2017. Accordingly, we
treat his reference to 2007 as a typographical error.
28
intent with respect to the individual employment decision at
issue.’ ” (Obrey v. Johnson (9th Cir. 2005) 400 F.3d 691, 694.)
We note these numbers are for OGC and have no relevance
to the Personnel Director position, which was not a part of OGC.
Further, Melendez provides no discussion of age-related statistics
at all.
Melendez’s statistics show 13 management positions in
2011 and 19 such positions in 2017. Statistics derived from a
small population have little to no probative value. (Sengupta,
supra, 804 F.2d at p. 1076.)
In analyzing the statistics, Melendez contends the number
of Latinos in entry-level Assistant General Counsel positions was
the “pool” of applicants for the management jobs, that Latino
attorneys have comprised 17 percent to 20 percent of the total
number of Assistant General Counsels since 2011 and that even
“ ‘accounting for possible nondiscriminatory variables,’ one would
expect to see an increasing number of Latino managers over
time.” Melendez has not in fact accounted for possible
nondiscriminatory variables. (See Sengupta, supra, 804 F.2d at
p. 1075 [utility of statistics depends on “ ‘surrounding facts and
circumstances’ ”].)
Melendez has not shown that all entry-level Assistant
General Counsels were the “pool” of applicants for all
management positions. Melendez has not shown that all entry-
level Assistant General Counsels could reasonably expect to
successfully apply to the upper level management positions of
AGC II, Deputy General Counsel or General Counsel which
comprised six of the 13 total management positions in 2011 and
six of the 19 total management positions in 2017.
29
Further, OGC was divided into teams with specialty areas.
Melendez has not shown that an Assistant General Counsel on
one team would be a qualified applicant for a management
position on a different team, let alone the most qualified
applicant. He has not shown which teams the Latino Assistant
General Counsels were on, how many management positions
were on each team, which teams had openings for managers
during this period, or what if any management positions the
Latino attorneys applied for.
Melendez contends an increasing number of Latino
attorneys in management positions could be expected “over time,”
but provides no evidence to show what that time frame would be.
Melendez has provided no evidence of the average or typical time
an attorney works as an Assistant General Counsel before
acquiring the knowledge and skills necessary for an AGC I
position or how long an attorney works as an AGC I before
gaining the necessary knowledge and skills to be qualified for an
AGC II position. Without this information, it is not reasonable to
infer that a proportionally smaller number of Latino attorneys in
all management positions than in entry level positions which
remained static for six years suggests discrimination in
promotion.
Melendez has also failed to provide any information about
the specific openings in management positions during the 2011 to
2017 period apart from the two positions for which he applied.
We can infer there were at least six openings, since the number of
AGC I’s increased from seven in 2011 to 13 in 2017. The number
of Latino attorneys in an AGC I position increased from zero to
one in this time period. Thus, of the six known openings, one was
filled by a Latino attorney. Put differently, about 17 percent of
30
the known AGC I management openings filled during this time
were filled with a Latino attorney, a number comparable to
Latino representation in entry-level positions. This refutes
rather than supports Melendez’s claim that Latino attorneys
were not moving into management positions in increasing
numbers.
b. Melendez Has Not Offered Evidence that
LAUSD Failed to Follow Its Own Policies or
Gave Inconsistent Reasons for Its Decisions.
Melendez contends that (1) LAUSD did not follow its own
policies and procedures and (2) LAUSD decision-makers gave
contradictory explanations for their choices, and that these facts
raise an inference of pretext.
An employer’s “failure to follow its own policies or
procedures may . . . provide evidence of pretext.” (Moore v.
Regents of University of California (2016) 248 Cal.App.4th
216, 239.) “A triable issue as to an employer’s veracity ‘may arise
where the employer has given shifting, contradictory,
implausible, uniformed, or factually baseless justifications for its
actions.’ ” (Reeves v. MV Transportation, Inc. (2010)
186 Cal.App.4th 666, 677.)
i. There Were No Deviations.
Melendez contends LAUSD deviated from its own standard
practices in selecting Hunt for the 2011 AGC I position “by
reusing an old eligibility list and not conducting interviews”
before selecting a candidate, and further deviated by failing to
show the eligibility list’s expiration date had been extended.
31
Melendez relies on the deposition testimony of Eva Segee,
the person designated by LAUSD as most knowledgeable about
the use of ranked eligibility lists, to show that the use of “old”
eligibility lists was a deviation from LAUSD practices. Segee’s
testimony as a whole, however, showed that ranked lists could be
extended for a period beyond a year in a number of situations,
including one where LAUSD would “end up with the same
candidates again.” An extension could also be approved
depending on “the number of vacancies we could potentially have
in the future.” Thus, using an “old” eligibility list was not a
deviation from standard practices.
LAUSD offered Holmquist’s declaration that a current
eligibility list based on the May 2009 was in place in or around
August 2011. Holmquist authenticated a copy of the eligibility
list which showed a three-year eligibility period for the
candidates, ending in May 2012. Melendez nevertheless argues
there is a triable issue of fact as to whether the list was extended
because LAUSD has not identified the specific person who
requested the extension. Melendez provides no reason in law or
logic to impose such an additional and specific requirement on
LAUSD. We see none.
Melendez also suggests LAUSD’s failure to re-interview
candidates for the position constituted a failure to follow
procedures. He has not provided any evidence that it was
LAUSD’s policy to re-interview candidates who were on a valid
eligibility list, or indeed that LAUSD had any specific interview
policy or practice.
We note that in the background section of his briefing,
Melendez states Holmquist moved the open AGC I position from
the Labor and Employment Services Team to the Business and
Government Services Team, and that Melendez had extensive
32
experience with labor and employment issues, while Hunt was on
the Business team. Melendez argues this demonstrates animus,
but does not offer any evidence that there was anything unusual
or improper about the move and does not cite any argument that
a reorganization or realignment of positions can show pretext.
Accordingly, he has forfeited this argument. (United Grand,
supra, 36 Cal.App.5th at p. 153 [“ ‘appellant must supply the
reviewing court with some cogent argument supported by legal
analysis and citation to the record.’ ”].) Holmquist explained that
he moved the position to the Business team because it did not
have an attorney in the AGC I position at the time.
ii. There Were No Contradictory Explanations.
Melendez contends that Holmquist and McNair gave
contradictory answers about who selected Hunt for the
promotion, and that these contradictions support an inference of
pretext.
Melendez testified at his deposition that McNair told him
that McNair did not select Hunt for the AGC I position and that
Holmquist selected Hunt. McNair similarly testified at his own
deposition that Holmquist selected Hunt but consulted with
McNair about Hunt’s selection to make sure that McNair had no
objections. Holmquist stated in his declaration that he
“consulted with McNair to determine if he was agreeable to
having Jim Hunt chosen as the first ranked candidate. McNair
agreed to have the interim position moved to his team, and
agreed to select Jim Hunt as the first ranked candidate.” In
context, Holmquist clearly made the initial decision to place Hunt
in the position and McNair agreed to this decision. McNair “was
agreeable to having Jim Hunt chosen” and “agreed to select Jim
Hunt,” that is, McNair agreed to implement Holmquist’s decision
33
to promote Hunt. Holmquist’s agreement with defense counsel’s
deposition question that “when Mr. Hunt was hired, Mr. McNair
selected Mr. Hunt; correct” is shorthand for this process, not a
contradiction of it.
iii. Holmquist Did Not Display Direct Animus.
Melendez contends Holmquist, who was the decision-maker
for the AGC II position, directly expressed discriminatory animus
toward Melendez’s claims of discrimination. Melendez describes
this expressed animus as Holmquist’s December 2011 statement
that “I’m am not in a position to provide you a promotion or more
pay, because otherwise every lawyer in OGC, all they’ll have to
do is to file a DFEH or discrimination complaint feeling that
that’s the way they’re going to get promoted.” When Melendez
responded that he was not asking for a promotion because he was
already doing the work, Holmquist responded that he would let
DFEH look into it. In context, Holmquist’s statement is most
reasonably understood as stating that he did not agree with
Melendez’s view of the situation and would let a third party
(DFEH) resolve the differences. This is not improper animosity.
Further, even if Holmquist’s statement did indicate some
animosity towards Melendez’s claim of discrimination in the
promotion process, Melendez filed his DFEH claim after Molina
was selected for the position. It is not reasonable to infer that
Holmquist had animus against Melendez at the time of the
selection, as Melendez had not yet filed a DFEH complaint.
4. Conclusion
Melendez has not shown that his qualifications were
“clearly superior” to the qualifications of the individuals hired for
the AGC I, AGC II and Personnel Director positions. Melendez
34
was certainly qualified for those positions, but that alone is not
enough to raise a triable issue. Melendez has not provided
statistics or any other evidence which would support an inference
of pretext or discriminatory animus. He did not raise a triable
issue of fact on his age and race discrimination claims.
C. Melendez Has Not Shown That LAUSD Subjected
Him or Any Other Latino Attorney to Disparate Pay
on the Basis of Race.
The trial court granted summary judgment on Melendez’s
third cause of action for disparate pay in violation of FEHA. The
trial court found Melendez had not shown discriminatory animus
because he had not shown that any individual at LAUSD had the
authority to alter his pay, which was set by LAUSD’s salary
schedule and Melendez’s specific salary step. LAUSD offered
evidence that employees could request out-of-class studies, which
might result in re-classification and thus higher pay, or back pay
for temporary/interim out-of-class work. It was undisputed
Melendez never formally made such a request, and thus any
disparity in pay was attributable to Melendez’s inaction. The
trial court further found that Melendez had not offered sufficient
statistical evidence to show that any LAUSD practice involving
out-of-class studies had had a disparate impact on Latino
attorneys.
Melendez contends the trial court erred in granting
summary judgment because Melendez offered evidence that
LAUSD treated non-Latino attorneys working out-of-class
differently than it treated him. Melendez contends he was
performing the work of Hunt, an AGC I, but receiving only the
pay of an Assistant General Counsel. He contends Hunt and
Molina were similarly situated to him, in that they performed
35
duties above their job classifications, and LAUSD paid them
outside the salary schedule after LAUSD determined they were
doing higher level work. He contends this disparate treatment of
these similarly situated non-Latino attorneys was sufficient to
permit a jury to infer a discriminatory motive as to Melendez’s
pay.8
Melendez did not offer evidence that he was performing the
work of an AGC I in general, or that he was performing the same
work as Hunt in particular. Melendez cited a document
providing a general class description for an AGC I, but that
document expressly states that it “is not a complete statement of
essential function, responsibilities, or requirements.” The list of
duties is entitled “TYPICAL DUTIES.” Attorneys in the position
may be required to perform other duties as assigned. Melendez
does not claim to perform all the duties included on that list, and
it is unlikely any one attorney would be able to perform all the
duties on that extensive list. Melendez has not shown the
number or nature of duties any AGC I apart from Hunt is
actually responsible for. And although Melendez claims that he
8 In his opening brief, Melendez contended a jury could find
discriminatory intent based on LAUSD’s provision of false
justifications for its failure to examine whether his pay was
unequal. In response, LAUSD pointed out that Melendez’s claim
was for intentional pay discrimination, not a failure to examine
such claims, which is not covered under DFEH (see Gov. Code,
§ 12940, subd. (a).) Melendez then clarified that his contention
was that a jury could find intentional discrimination based on
LAUSD’s refusal to request an out-of-class study for Melendez
even though Holmquist requested such studies for Hunt and
Molina, who are not Latino. Accordingly, we do not consider
Melendez’s claim of false justifications for failure to examine.
36
performed the same duties as Hunt, this is not accurate. Hunt
managed and assisted OGC attorneys who were litigating cases,
while Melendez had no such supervisory duties.9 Thus, a trier of
fact would have no basis to conclude Melendez performed the
duties of an AGC I.
Similarly, Melendez also failed to offer any evidence of the
duties of the other Assistant General Counsels in OGC. Thus,
there was no basis for a trier of fact to find that Melendez’s duties
were not typical of other Assistant General Counsels, and then to
perhaps infer that he was performing duties outside of his
classification.
Further, even if Melendez had been performing the duties
of an AGC I, he did not offer evidence that he was treated
differently than other similarly situated attorneys who were
performing out-of-class duties. The salary studies which LAUSD
undertook for Hunt and Molina at the request of OGC were for
the time Hunt and Molina were formally in interim positions.
LAUSD offered evidence OGC had a policy of asking the
Personnel Commission for a “non-routine salary payment” for the
period when an attorney was working in an interim position.
That was the case with Hunt and Molina. Melendez was not in
such a position. Thus, Melendez has not shown that he was
similarly situated to Hunt and Molina but treated differently.
Melendez has not shown that LAUSD had a policy or
practice of requiring supervisors to request out-of-class studies in
9 Melendez complains that supervision of attorneys is not
listed in the general class description of an AGC I. As we have
just explained that description does not purport to be a complete
statement of essential functions or responsibilities.
37
response to an employee’s claim that he is working out of class.
Thus, he has not shown that he was treated differently than
other non-Latino attorneys. Similarly, Melendez has not shown
that he requested such a study from the Personnel Commission
or the Division of Certificated Human Resources, but was denied.
It is undisputed Melendez was free to request such a study
himself, but elected not to do so on his own behalf.
Melendez’s annual job evaluation form asked if the
employee or his supervisor believed the employee’s assigned job
duties were within the scope of his classification. It was not until
the 2013–2014 evaluation that Melendez checked the box
indicating he believed his assigned job duties were outside the
scope of his classification. The evaluation form instructs an
employee who believes he is working out-of-class to “attach a
statement of the out-of-class duties to a copy of this form and
send it to the Personnel Commission.” (Italics omitted.)
Melendez did not do so.
D. Melendez Did Not Offer Evidence Refuting the Lack
of Causality Suggested by the Time Lapse Between
the Protected Activity and the 2011 OGC Promotion
Denials.
The trial court granted summary adjudication on the
retaliation claims involving the 2011 OGC promotions on the
ground that there was no temporal link between Melendez’s
protected activity and LAUSD’s actions. Melendez contends he
provided evidence from which a jury could infer a temporal link.
“Past California cases hold that in order to establish a
prima facie case of retaliation under the FEHA, a plaintiff must
show (1) he or she engaged in a ‘protected activity,’ (2) the
employer subjected the employee to an adverse employment
38
action, and (3) a causal link existed between the protected
activity and the employer’s action.” (Yanowitz, supra, 36 Cal.4th
at p. 1042.) The causal link may be shown by “ ‘ “the employer’s
knowledge that the [employee] engaged in protected activities
and proximity in time between the protected action and allegedly
retaliatory employment decision.” ’ ” (Fisher v. San Pedro
Peninsula Hospital (1989) 214 Cal.App.3d 590, 615.)
A causal link based on proximity alone requires the
employer’s knowledge of the protected activity and the employer’s
action to be very close in time. Three months may be too long to
support such a causal link and20 months “by itself [suggests] no
causality at all.” (Clark County School Dist. v. Breeden (2001)
532 U.S. 268, 273–274 (Clark County); Cornwell v. Electra Cent.
Credit Union (9th Cir. 2006) 439 F.3d 1018, 1035 [eight month
gap “was too great to support an inference that Cornwell’s
complaints caused his termination”]; Loggins v. Kaiser
Permanente Internat. (2007) 151 Cal.App.4th 1102, 1110, fn. 6
[noting the employee “cites no case holding that a nine-month
hiatus between protected conduct qualifies as a ‘relatively short
time,’ particularly when the protected conduct is first followed by
‘non-adverse’ actions [such as] a good performance rating”].)
Melendez implicitly acknowledges that the eight-year gap
between his 2003 DFEH complaint and the 2011 promotion
decisions would be too long to support an inference of retaliation
if considered alone.10 However, Melendez contends, correctly,
10 Although we have found Melendez’s claim based on the
2009 failure to promote time-barred, we note that this claim
would also fail based on the six-year gap between it and the 2003
protected activity.
39
that even when there is a gap of more than a few years, a causal
connection may be found if there is a pattern of conduct
consistent with retaliatory intent between the protected activity
and the adverse employment action. (Wysinger v. Auto Club of
Southern California (2007) 157 Cal.App.4th 413, 421 (Wysinger).)
Melendez has not offered evidence of a such pattern. He points
only to conduct surrounding the 2011 promotion itself and to his
request for a study on disparate pay that same year.
Melendez attempts to shorten the relevant time period by
contending a jury could infer Holmquist was retaliating against
him because former General Counsel Womack told Holmquist
about Melendez’s 2008 email/letter complaining about the lay-off
of Verdugo and claiming Latinos were excluded from LAUSD
management. We see no basis for such an inference. Melendez’s
reliance on Wysinger is inapt. In that case the employee filed an
EEOC complaint which resulted in the employer cancelling pay
reductions, and the Court of Appeal found it was reasonable to
infer that a senior manager would know about the EEOC
complaint because of its financial impact on the company.
(Wysinger, supra, 157 Cal.App.4th at p. 421.) Melendez did not
file a formal complaint in 2008, and has not shown any impact,
financial or otherwise, on LAUSD from his email.11 Further, the
three-year gap between the 2008 email and the 2011 promotion
denials is still too long to support an inference of retaliation.
(Clark County, supra, 532 U.S. at pp. 273–274 [20-month gap
suggests no causality at all].)
11 If the claim were not time barred, we would reach the same
conclusion about Fesler’s knowledge; Fesler was the 2009
decision-maker.
40
In his reply brief, Melendez attempts to shorten the time
period further by contending that the clock did not start to run
until Holmquist was in a position to deny him a promotion, and
that did not occur until Holmquist became General Counsel in
2009. We do not consider arguments made for this first time in a
reply brief. (Keyes, supra, 189 Cal.App.4th at p. 656.) We note,
however, that this argument still includes a two-year gap, which
is sufficient to defeat causality. (Clark County, supra, 532 U.S. at
pp. 273–274 [20-month gap suggests no causality at all].)
Melendez next contends there is a direct temporal link
between his 2011 DFEH complaint and Holmquist “denying Mr.
Melendez his requested investigation.” Melendez filed his 2011
DFEH complaint in November 2011, and it included allegations
of disparate pay. In December 2011, Holmquist told Melendez
that he intended to let Melendez’s claims be resolved through the
DFEH complaint process rather than conduct an investigation
himself. Melendez has not cited, and we are not aware of, any
authority holding that allowing a complaint to be adjudicated
equates to retaliation for filing the complaint. The two cases
cited by Melendez involve situations where an inadequate
investigation that resulted in the plaintiff’s termination was
treated as evidence the termination was pretextual. (Mendoza v.
Western Medical Center Santa Ana (2014) 222 Cal.App.4th 1334,
1344–1345; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th
243, 280.)
In Melendez’s factual background section of his briefing, he
also suggests that LAUSD retaliated against him by keeping the
number of AGC I positions artificially low on his team (one AGC I
for 11 staff attorneys) compared to other teams (two to five AGC
I’s for seven to eight attorneys) in order to reduce his chances of
41
promotion. Melendez has not offered any evidence suggesting
that the ratios should be the same on every team. Each team had
a different specialty and different area of responsibility. Thus,
Melendez has forfeited this claim. (United Grand, supra,
36 Cal.App.5th at p. 153 [“ ‘appellant must supply the reviewing
court with some cogent argument supported by legal analysis and
citation to the record.’ ”].)
E. Summary Adjudication was Proper on the
Dependent Failure to Prevent, Declaratory, and
Injunctive Relief Claims.
Melendez acknowledges that his causes of action for failure
to prevent harassment and discrimination, declaratory relief and
injunctive relief are based, in part, on his FEHA discrimination
claims. Because summary judgment or adjudication was properly
granted on those claims, it was property granted on the linked
failure to prevent, declaratory, and injunctive relief claims as
well.
F. Judgment on the Pleadings on the Cause of Action
Under Labor Code section 1197.5 for Unequal Pay
Should Not Have Been Granted.
While LAUSD’s motion for summary judgment was
pending, Melendez amended his complaint, which renumbered
his seventh cause of action for unequal pay in violation of Labor
Code section 1197.5 as the eighth cause of action and designated
his seventh cause of action as one for retaliation in violation of
Labor Code section 1197.5. LAUSD failed to amend its separate
statement of facts to track these changes, and the trial court
denied LAUSD’s motion for summary judgment due to these
deficiencies. On its own motion, however, the court elected to
42
treat LAUSD’s motion for summary judgment as a motion for
judgment on the pleadings, and then granted that motion.
Melendez contends the trial court erred in granting judgment on
the pleadings as to these two causes of action. We see no error in
granting judgment on the pleading for the seventh cause of action
for retaliation. We agree with Melendez that the eighth cause of
action for unequal pay should have gone forward.
Generally, “[t]he summary judgment procedure
‘presupposes that the pleadings are adequate to put in issue a
cause of action or defense thereto.’ ” (Leek v. Cooper (2011)
194 Cal.App.4th 399, 412.) However, a trial court may treat a
summary judgment motion as one for judgment on the pleadings
when the sufficiency of the pleadings is at issue. (White v. County
of Orange (1985) 166 Cal.App.3d 566, 569.)
“The standard for granting a motion for judgment on the
pleadings is essentially the same as that applicable to a general
demurrer, that is, under the state of the pleadings, together with
matters that may be judicially noticed, it appears that a party is
entitled to judgment as a matter of law.” (Schabarum v.
California Legislature (1998) 60 Cal.App.4th 1205, 1216.)
“ ‘Judgment on the pleadings does not depend upon a resolution
of questions of witness credibility or evidentiary conflicts. In fact,
judgment on the pleadings must be denied where there are
material factual issues that require evidentiary resolution.’ ”
(Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321–322.)
We review a trial court’s ruling on a motion for judgment
on the pleadings independently, accepting as true the plaintiff’s
factual allegations and giving them a liberal construction.
(Towery v. State of California (2017) 14 Cal.App.5th 226, 231.)
“ ‘While it is the duty of a reviewing court, in most cases, to
43
indulge in every reasonable presumption in favor of sustaining
the trial court, substantially the reverse is true when [the]
plaintiff appeals from a judgment on the pleadings.’ ”
(Lumbermens Mut. Cas. Co. v. Vaughn (1988) 199 Cal.App.3d
171, 178–179.)
Labor Code section 1197.5 prohibits retaliation for actions
an employee takes pursuant to that section. (Lab. Code, § 1197.5,
subd. (k)(1) [“An employer shall not discharge, or in any manner
discriminate or retaliate against, any employee by reason of any
action taken by the employee to invoke or assist in any manner
the enforcement of this section.”].) Prior to January 1, 2017
section 1197.5 did not prohibit unequal pay based on race, and so
Melendez could not have taken any action pursuant to section
1197.5 until January 1, 2017 or later. (Stats. 2016, ch. 856,
§§ 2.5, 3 [Assem. Bill No. 1676; Stats. ch. 866, §§ 1.5, 3 [Sen. Bill
No. 1063].) The only action Melendez took after that time was to
file his amended complaint in November 30, 2017. In his
amended complaint, Melendez did not identify any actions in
2017 and has not since identified any actions taken between
November 30, 2017 and February 2018 when the trial court
granted judgment on the pleadings. Accordingly, the trial court’s
ruling was correct.
However, the trial court did err in granting judgment on
the pleadings without leave to amend for Melendez’s unequal pay
claim. When Melendez filed his amended complaint on
November 30, 2017, he alleged ongoing unequal pay since 2007
due to race. Thus, Melendez did allege unequal pay after
January 1, 2017. We treat this factual allegation as true for
purposes of judgment on the pleadings. If the trial court believed
the question of unequal pay raised a question of fact, the court
44
should not have granted judgment on the pleadings. If the trial
court found the allegations unclear, the court should have
granted Melendez leave to amend his complaint to clarify that he
was seeking damages under Labor Code section 1197.5,
subdivision (b), for the period beginning January 1, 2017. (See
Los Angeles Unified School District v. Torres Construction Corp.
(2020) 57 Cal.App.5th 480, 493–494 [“ ‘The practical effect of
[treating a summary judgment motion as a motion for judgment
on the pleadings] is that in granting judgment on the pleadings,
the trial court may give the plaintiff the opportunity to amend
the complaint even when no motion to amend has been filed.’ ”].)
LAUSD contends that judgment on the pleadings was
nonetheless proper for the unequal pay claim because subdivision
(b) of Labor Code section 1197.5 does not apply when the unequal
pay is due to a merit system. (Lab. Code, § 1197.5, subd.
(b)(1)(B).) While LAUSD does have a merit system for many,
perhaps most, of its attorney positions, LAUSD has two types of
employees, certificated and classified. The record on appeal
shows that the merit system applies to classified attorneys.
Melendez was a certificated employee and whether any difference
in his pay was due to the merit system is a question of fact.
(Bezirdjian v. O'Reilly, supra, 183 Cal.App.4th at pp. 321–322
[judgment on the pleadings must be denied when there are
factual issues requiring evidentiary resolution].)
THE TRIAL FOR FAILURE TO PROMOTE MELENDEZ TO
PESONNEL DIRECTOR
Although the parties had earlier treated retaliation as the
single reason prompting LAUSD to deny Melendez promotion to
Personnel Director, by the time of trial both parties had proposed
jury instructions appropriate for a mixed motive case. The
45
parties agreed that Melendez could establish his retaliation claim
by proving that his protected conduct “was a substantial
motivating reason” for LAUSD’s adverse employment action.
Although LAUSD had not pled the affirmative defense of
“same decision” (i.e., that it would have made the same decision
absent retaliation, LAUSD offered an instruction raising that
defense.12 As ultimately given, the instruction told the jury that
if it found that retaliation was a substantial motivating factor for
denial of the promotion, the jury should consider “LAUSD’s
stated reason for not giving him the Personnel Director position.
[¶] If you find that LAUSD’s stated reason was also a substantial
motivating reason, then you must determine whether LAUSD
has proven that it would not have promoted Mr. Melendez to
Personnel Director in 2011 anyway at that time based on the fact
that he was not the most qualified applicant, even if it had not
also been substantially motivated by retaliation.”
LAUSD asked the trial court to instruct the jury with CACI
2512, the standard jury instruction for mixed motive/same
decision cases. That instruction tells the jury a plaintiff “will not
be entitled to reinstatement, back pay or damages” if the jury
finds the employer would have same the same decision absent the
improper motive; this instruction would have precluded both
economic and non-economic damages. Melendez requested a
12 “Because the burden is on a defendant to make a same-
decision showing, it should plead this defense. In other words, if
an employer wishes to assert the defense, it should plead that if it
is found that its actions were motivated by both discriminatory
and nondiscriminatory reasons, the nondiscriminatory reasons
alone would have induced it to make the same decision.” (Harris
v. City of Santa Monica (2013) 56 Cal.4th 203, 240 (Harris).)
46
modified version of the jury instruction which permitted the jury
to award non-economic emotional distress damages even if it
found LAUSD would have made the same decision absent the
improper motive. The trial court instructed the jury with the
modified instruction proposed by Melendez.13
During trial, the jury heard Melendez’s testimony that his
lost wages amounted to $289,991.89, which he calculated by
subtracting his pay during the six years since the promotion
decision from the pay for the Personnel Director position during
that time. LAUSD did not dispute this calculation. The jury
returned a verdict in favor of Melendez, and awarded damages in
the amount of $210,833.00. The jury used the general verdict
form provided by the court, which offered the jury only two
options: finding in favor of Melendez or finding in favor of
LAUSD. The form contained a single line for damages.14
13 The instruction given to the jury read in pertinent part: “If
you find that retaliation was a substantial motivating factor for
LAUSD’s decision not to promote Mr. Melendez to Personnel
Director in 2011, [but] you [also] find that LAUSD would not
have promoted Mr. Melendez to Personnel Director anyway at
that time because he was not the most qualified applicant, then
Mr. Melendez will not be entitled to any economic damages for
any lost wage differential (past, present, or future), although you
may still award emotional distress damages if you find that Mr.
Melendez suffered emotional distress as a direct result of
LAUSD’s retaliatory acts, as opposed to any emotional distress he
may have suffered as a direct result of not obtaining this
promotion.”
14 LAUSD requested a special verdict form which would have
had separate lines for past and future economic loss and non-
economic loss including emotional distress. The trial court
47
LAUSD moved for a new trial, and for judgment
notwithstanding the verdict. The trial court denied both motions,
and this appeal followed.
A. The Trial Court Erred Prejudicially in Instructing
the Jury that Emotional Distress Damages Were
Available in a Same Decision Case.
Although LAUSD objected to the modified instruction
permitting emotional distress damages on the ground that it was
contrary to the holding of Harris, the trial court decided to give
the modified instruction stating: “Did [Harris] ever specifically
say you don’t get noneconomic damages? He had testimony about
that. It’s very different because this is a different situation.
Unique. I really, not getting emotional distress because I didn’t
get the job, I have the emotional distress because the manner in
which I got denied the job was very upsetting to me and offended
me. [¶] Look at his history and background, it’s all about civil
rights and things of that nature. That’s understandable to me.”
When LAUSD pointed out that the court in Harris did say that
the plaintiff could not get emotional distress damages, the court
replied that it did not know what was in evidence about the
Harris plaintiff’s noneconomic damages and how they related to
discrimination or to not getting the position.
LAUSD contends the trial court erred prejudicially in
instructing the jury that it could award emotional distress
instead ultimately elected to give a general verdict form. LAUSD
contends the trial court abused its discretion in using the general
verdict form. It would have been preferable for the trial court to
give a special verdict since there is a dispute over the type of
damages which are permissible.
48
damages if it found LAUSD would have made the same decision
due to Glymph’s better qualifications. We agree.
1. The Reasoning of Harris Does Not Permit Emotional
Distress Damages in Same Decision Cases.
Nothing in Harris suggests that the Court’s ruling
precluding emotional distress damages in “same decision” FEHA
cases was conditioned on the plaintiff’s ability to separate the
various sources of her emotional distress or conditioned on the
plaintiff having or lacking a background which made
“understandable” her claim of emotional distress from the
discriminatory motive rather than the termination itself. The
Court established a clear rule that emotional distress damages
are not available in same decision cases.
The Harris Court summarily rejected the idea that a
plaintiff would be entitled to reinstatement, backpay or lost
future pay in a same decision case. (Harris, supra, 56 Cal.4th at
pp. 232–233.) The Court found such damages would give a
plaintiff “an unjustified windfall and unduly limit[] the freedom
of employers to make legitimate employment decisions.” (Id. at
p. 233.)
Turning to noneconomic damages, the court stated: “We
come to the same conclusion with respect to noneconomic
damages, although the issue is closer. There is no question that
an employment decision motivated in substantial part by
discrimination inflicts dignitary harm on the affected individual,
even if the employer would have made the same decision in the
absence of discrimination.” (Harris, supra, 56 Cal.4th at p. 233.)
The Court explained: “Although we do not doubt the stigmatic
harm that discrimination can cause, we are reluctant to find such
harm compensable in damages under the FEHA when other,
49
nondiscriminatory factors would have brought about the
plaintiff’s discharge. Theoretically, it may be possible to
distinguish, for example, between a plaintiff’s emotional distress
resulting specifically from discrimination and the plaintiff’s
emotional distress resulting from the termination itself.
Practically, however, as Harris’s counsel conceded at oral
argument, it is unrealistic to ask the trier of fact to parse the
plaintiff’s past mental state so finely and to award only the
quantum of damages that corresponds to the emotional distress
resulting specifically from discrimination rather than the
termination itself if the employer makes a same-decision
showing. When an employee is fired, and when discrimination
has been shown to be a substantial factor but not a ‘but for’
cause, we believe it is a fair supposition that the primary reason
for the discharged employee’s emotional distress is the discharge
itself.” (Ibid.) The court clearly stated: “Such distress is not
compensable under the FEHA—indeed, compensation for such
distress would be a windfall to the employee—if the employer
proves it would have fired the employee anyway for lawful
reasons.” (Id. at pp. 233–234.)
The Harris court pointed out that a plaintiff in a same
decision case could still recover damages for emotional distress if
she proved intentional infliction of emotional distress or
harassment under FEHA. “But given the inherent difficulties in
disentangling the possible sources of a plaintiff’s emotional
distress upon being fired, we conclude that a termination decision
substantially motivated by discrimination is not compensable in
damages under [Government Code] section 12940[, subdivision]
(a) when an employer makes a same-decision showing.” (Harris,
supra, 56 Cal.4th at p. 234, italics added.) The court also pointed
50
out that declaratory and injunctive relief were available to a
successful plaintiff in a same decision case, and that attorney fees
were also possible. (Ibid.)
The Harris court clearly referred to “the inherent
difficulties in disentangling the possible sources of a plaintiff’s
emotional distress upon being fired.” (Harris, supra, 56 Cal.4th
at p. 234, italics added.) “Inherent” means “existing in someone
or something as a permanent and inseparable element, quality,
or attribute.” ( [as
of Aug. 5, 2021], archived at https://perma.cc/5HWE-NEN3.)
Thus, the court’s statement about the “inherent” difficulties of
disentangling sources applies to all claims of emotional distress;
it does not vary by plaintiff.
Melendez contends that even if the trial court’s evidence-
dependent reasons for modifying the instruction were incorrect,
the instruction itself correctly states the law because Harris was
only focused on termination cases. Although the facts of Harris
involved a termination, there is nothing in the language or logic
of the opinion to suggest the Court intended it to be limited to
termination cases (or pregnancy discrimination cases, another
specific fact of the case). The Court in Harris frequently
discussed its reasoning with reference to the purpose of FEHA.
Further, Melendez has not made a cogent or compelling
argument for limiting the emotional distress rule of Harris to
termination decisions or creating an exception to the Harris rule
for promotion denials. Melendez contends that the practical
challenges of determining emotional distress mentioned in Harris
are much less in promotion denial cases than in termination
cases. Melendez believes that the bulk of emotional distress in
termination cases comes from the termination itself, not the
51
discriminatory reason, while in promotion denial cases the bulk
of the emotional distress comes from the discriminatory reason,
not the promotion denial itself. We do not understand how
flipping the damage proportions makes it easier to disentangle
the sources of the damages.15 Further, applying the no emotional
distress damages rule only to terminations would result in a
perverse outcome. A plaintiff who suffers the adverse
employment action which has the most serious financial impact
and which Melendez believes is the most traumatic (termination)
would not be able to recover any damages, while a plaintiff who
was subject to a less financially serious and, in Melendez’s view,
less traumatic adverse employment action (promotion denial)
would be able to recover emotional distress damages.
2. LAUSD Was Prejudiced by the Erroneous Instruction.
“When deciding whether an instructional error was
prejudicial, ‘we must examine the evidence, the arguments, and
other factors to determine whether it is reasonably probable that
instructions allowing application of an erroneous theory actually
misled the jury.’ [Citation.] A ‘reasonable probability’ in this
context ‘does not mean more likely than not, but merely a
reasonable chance, more than an abstract possibility.’ ” (Kinsman
v. Unocal Corp. (2005) 37 Cal.4th 659, 682.) “[W]e consider,
insofar as relevant, ‘(1) the degree of conflict in the evidence on
15 If it would be hard to disentangle the small amount of
emotional distress attributable to discrimination in termination
actions from the amount attributable to the termination itself, it
should also be hard to disentangle the small amount of emotional
distress attributable to the denial of promotion itself in a denial
action from the larger amount attributable to the discrimination.
52
critical issues [citations]; (2) whether respondent’s argument to
the jury may have contributed to the instruction’s misleading
effect [citation]; (3) whether the jury requested a rereading of the
erroneous instruction [citation] or of related evidence [citation];
(4) the closeness of the jury’s verdict [citation]; and (5) the effect
of other instructions in remedying the error [citations].’ ” (Soule
v. General Motors Corp. (1994) 8 Cal.4th 548, 570–571 (Soule).)16
In reviewing the evidence, what the California Supreme
Court said almost a hundred years ago “in O’Meara v.
Swortfiguer (1923) 191 Cal. 12, 15 [214 P. 975] [remains]
germane: ‘It is true that in determining whether or not a verdict
is supported by the evidence, we must assume that the jury
accepted the view most favorable to the respondent. However, in
determining whether or not the instructions given are correct, we
must assume that the jury might have believed the evidence
upon which the instruction favorable to the losing party was
predicated, and that if the correct instruction had been given
upon that subject the jury might have rendered a verdict in favor
of the losing party.’ (See also Clement v. State Reclamation
Board (1950) 35 Cal.2d 628, 643–644 [220 P.2d 897]; Oettinger v.
Stewart [(1944)] 24 Cal.2d 133, 140.)” (Henderson v.
Harnischfeger Corp. (1974) 12 Cal.3d 663, 674.)
16 The last three Soule factors are not relevant in the present
case. No other instructions were capable of remedying the error
in the modified version of CACI 2512. The jury did not request a
re-reading of any jury instruction, including the erroneous
instruction. The verdict was 9-3, and so was close, but there are
several possible ways the vote could have split.
53
a. The degree of conflict in the evidence on critical
issues
The significance of the erroneous jury instruction was that
it permitted the jury to find in favor of Melendez and against
LAUSD, even if LAUSD would have hired Glymph anyway.
Thus, there were two critical issues: (1) the strength of the
evidence of a retaliatory intent on LAUSD’s part compared to the
strength of the evidence showing LAUSD would have hired
Glymph in any event; and (2) the conflict in the evidence as to
the amount of damages to be awarded.
i. LAUSD’s Same Decision Evidence Was Very
Strong.
In a mixed motive case, the plaintiff must show “the
employer’s action was substantially motivated by [an improper
reason] before the burden shifts to the employer to make a same-
decision showing.” (Harris, supra, 56 Cal.4th at p. 241.) The
burden is on the defendant to show that a lawful reason was a
substantial motivating factor in its decision and that the
defendant would have made the same decision even if it had not
been motivated by the improper reason. (Id. at p. 240.)
“[A] same-decision showing by an employer is not a
complete defense to liability when the plaintiff has proven that
discrimination on the basis of a protected characteristic was a
substantial factor motivating the adverse employment action.”
(Harris, supra, 56 Cal.4th at p. 225.) Thus, even if a plaintiff
does not respond to a defendant’s stated legitimate reason with a
showing of pretext or a showing that the defendant would not
have made the same decision, the plaintiff will still be entitled to
appropriate declaratory and injunctive relief, and may be eligible
for reasonable attorney fees and costs. (Id. at p. 235.) If a
54
plaintiff does succeed in showing the defendant’s stated lawful
reason was pretextual or in disproving the defendant’s claim that
it would have made the same decision, the plaintiff may also
recover damages.
Melendez offered sufficient evidence to support a finding
that the personnel commissioners were aware of the contents of
the due diligence report. The jury could have chosen to believe
Melendez’s testimony that Macy “told me that it had been given
to the Personnel Commission members, [and] they had seen it.”
The jury could also have found that Macy was truthful and
accurate in her statement to Melendez. Macy’s statement was
supported by other circumstantial evidence. Anna Forsberg, a
senior human resources specialist who put together the
recruitment process for the position, testified that she requested
due diligence reports for the three finalists; such reports were
routine. A representative of the OIG, which prepared the report,
testified that the report was submitted to Macy, who was listed
as the requesting person, and a copy was sent to Forsberg.
Neither Forsberg nor Macy were decision makers for the
Personnel Director position, and it is reasonable to infer that one
or both of them would have provided the report to the people who
were the decision makers. There would be no point in requesting
the reports otherwise.17
Mere knowledge of protected activity is not sufficient to
prove retaliation. In appropriate cases, retaliatory intent may be
17 Forsberg testified that she just “glanced” at the report,
placed it in her file cabinet and did not share or discuss it with
anyone, even though the cover letter for the report stated that
the OIG had found “a significant issue” and “encourages
management to read the entire report.”
55
shown by evidence that the employer’s proffered reason was
pretextual or dishonest. (Guz, supra, 24 Cal.4th at p. 356.)
Pretext may be shown by “ ‘ “ “ ‘ “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,” . . . and hence infer “that the employer did not act for
the [asserted] non-discriminatory reasons.” ’ ” ’ ” ’ ” (Jumaane v.
City of Los Angeles (2015) 241 Cal.App.4th 1390, 1409.)
There was evidence from which a jury could infer that
LAUSD did not act for at least some of its asserted reasons.
Paller stated that even assuming Melendez was an “outstanding”
lawyer, they did not need a lawyer for the position. The previous
personnel director, however, was a lawyer from the OGC, and
Paller characterized her work as amazing and awesome. Of the
many candidates who applied, two of the top three ranked
candidates (Melendez and Collins) were lawyers from the OGC,
suggesting that being a lawyer was very good preparation/
background for the position. Similarly, according to Melendez,
Ford told Melendez he and Glymph were tied for the position and
the Commission selected Glymph because of her prior work as an
analyst for the Personnel Commission. The two personnel
commissioners denied making such a statement to Ford: Paller
expressly and Vargas implicitly.18 These implausible and
inconsistent statements, if believed by the jury, could support an
18 Vargas was not asked about any statements to Ford, but
implicitly denied Glymph and Melendez were tied for the job,
testifying that Glymph stood out “head and shoulders above the
others.”
56
inference of pretext, particularly when considered with other
inconsistent or implausible evidence related to the origins and
dissemination of the due diligence report.
In contrast, there was strong direct evidence that Glymph’s
better qualifications were a substantial motivating factor in
LAUSD’s decision to hire her instead of Melendez and that
LAUSD would have hired Glymph even if it had not been
motivated by retaliation. Glymph was ranked higher than
Melendez going into the final interviews. She had worked for the
Personnel Commission for 10 years as a personnel analyst and
had also worked in a number of other LAUSD positions, which
gave her very broad experience. She worked as LAUSD’s
Administrative Services Manager, Executive Officer for the
Board of Education, Director of Project Management and
Construction, Deputy Business Manager and General Manager of
LAUSD’s television station. By comparison, Melendez had only
worked in the OGC.
Paller and Vargas testified that Glymph’s performance
during the interviews was very impressive. Vargas testified that
she “present[ed] with incredible poise, knowledge and
confidence.” She “stood apart from everybody else.” Paller
testified that Glymph was a “superstar” in the interviews and
Melendez was not even close to her.
The trial court opined that Glymph was “one of the most
impressive witnesses I’ve ever seen.” Even plaintiff’s counsel
acknowledged that Glymph was impressive on the stand. While
the trial took place seven years after Glymph was hired for the
job and does not conclusively show Glymph’s personality when
she was hired, her personality in court is consistent with Paller’s
57
and Vargas’s description of her during her interview and
corroborates that testimony.
There was also undisputed evidence that the Personnel
Commission wanted to hire Glymph for the Personnel Director
position in 2006, but that she was unable to commit to a five-
year term. Paller directly testified that Glymph “was the one we
really wanted to land from Day 1” and “it was always [Glymph]
was going to be our first choice” if she applied. This is strong
evidence LAUSD would have hired her even if it had not been
substantially motivated by retaliation.
ii. The Amount of the Damages Award
Indicates the Jury Awarded Only Emotional
Distress Damages.
The second critical issue is the amount of economic
damages for past lost wages to be awarded to Melendez. There
was absolutely no conflict on this issue. The parties agreed on
the precise number for those damages: $289,991.89. Although
there was no formal stipulation, the jury was instructed that the
parties agreed on the calculations. And although the jury was
not bound by that number, there was no evidence to permit a
rational inference that Melendez should get less than that
number. Although Melendez did have treatment for cancer in
2016, he testified he missed only about two weeks of work.
Melendez was still working for LAUSD at the time of trial, and
testified he wanted to continue working for five more years.
b. Counsel’s Arguments Indicate the Jury
Awarded Only Emotional Distress Damages.
Melendez’s arguments did not directly contribute to the
effect of the erroneous instruction, but the arguments of both
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parties shed light on whether the instructional error actually
prejudiced LAUSD. Melendez argued that the agreed-upon
figure was appropriate for lost back pay, and he sought five years
of future lost pay (at an agreed-upon annual amount) in addition
to damages for emotional distress. LAUSD directly told the jury
during closing arguments that if Melendez prevailed, they should
award the $289,000 figure calculated by Melendez as economic
damages for the amount of past lost wages. LAUSD did not
dispute the amount per year that should be awarded for future
lost wages, although it did question the number of years
Melendez might continue to work.
The amount awarded by the jury was less than the amount
of the lost back wages alone. This is compelling evidence that the
jury award represented non-economic damages. Such damages
are compelling evidence that the jury found that while LAUSD
was motivated by retaliation, LAUSD would have hired Glymph
anyway. This conclusion is bolstered by the comparative
strength of the underlying evidence on these issues.
Melendez argues that non-economic damages are typically
awarded in round amounts, such as $210,000 rather than odd
amounts such as $210,833. He cites to no evidence or authority
to support this proposition.
Melendez contends the jury could have decided he would
have retired in 2015 or 2016 after his cancer diagnosis if he had
been earning the higher Personnel Director job salary. LAUSD
did not make this argument or any argument suggesting back
pay should be awarded in a reduced amount. Melendez testified
he took two weeks off after his cancer surgery. He was still
working for LAUSD at the time of trial, and testified that he
intended to work for five more years. Thus, it is highly unlikely
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that the jury awarded Melendez back pay but in a reduced
amount. Further, Melendez offers no explanation of how the jury
would have arrived at the $210,833 figure for back pay. If the
jury used a formula to reduce $289,991.89 to reflect early
retirement, it is not apparent from the amount actually
awarded.19
3. Conclusion
Weighing the factors together, there is a reasonable
probability that the jury awarded only emotional distress
damages, and that it did so because it believed LAUSD would
have denied Melendez the promotion even in the absence of a
retaliatory motive. Thus, LAUSD was prejudiced by the
erroneous instruction. The emotional distress damages are
unauthorized under Harris and are ordered stricken.
B. The Trial Court Properly Denied LAUSD’s Motion for
Judgment Notwithstanding the Verdict.
LAUSD contends the trial court erred in denying its motion
for judgment notwithstanding the verdict (JNOV) because there
was no substantial evidence to support the verdict.
We review a trial court’s denial of a JNOV motion “ ‘ “to
determine whether there is any substantial evidence,
contradicted or uncontradicted, supporting the jury’s conclusion
and where so found, to uphold the trial court’s denial of the
motion.” ’ ” (Shapiro v. Prudential Property & Casualty Co.
19 We can perform calculations based on Melendez’s post-trial
retirement theory, but none result in the figure of $210,833. For
example, $289,991.89 minus $74,937 (the identified lost wages
for 2017 and 2018) results in a figure of $215,054.89.
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(1997) 52 Cal.App.4th 722, 730.) We “ ‘ “resolve any conflict in
the evidence and draw all reasonable inferences therefrom in
favor of the jury’s verdict.” ’ ” (Hansen v. Sunnyside Products,
Inc. (1997) 55 Cal.App.4th 1497, 1510.) We do not “ ‘ “reweigh
the evidence [citation], or judge the credibility of witnesses.” ’ ”
(Ibid.)
As we explain in our discussion of the evidence in the
preceding section on the erroneous jury instruction, Melendez did
present evidence from which a jury could find that the personnel
commissioners had read the report. His testimony about Macy’s
statement establishes that fact. The report was created during
the hiring process and of logical necessity provided to the
commissioners during the selection process, which is sufficient
temporal closeness to establish a causal link between the report
and the decision. (See Fisher v. San Pedro Peninsula Hospital,
supra, 214 Cal.App.3d at p. 615.)
Melendez also presented evidence that the commissioners
gave an implausible explanation that Melendez was not selected
because the position did not need a lawyer and that the
commissioners lied about their reason for preferring Glymph over
Melendez. “[E]vidence of dishonest reasons, considered together
with the elements of the prima facie case, may permit a finding of
prohibited [motive].” (Guz, supra, 24 Cal.4th at p. 356.)
LAUSD contends Melendez’s evidence cannot support an
inference of intentional retaliation because that requires a desire
“to get back at somebody because they did something.” LAUSD
seems to believe that the personnel commissioners could not
possibly have intended to retaliate against Melendez because his
protected activity was directed at LAUSD and not the
Commission. No level of personal animosity or desire for revenge
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for wrongs to oneself is required for retaliation. The decision
maker might simply believe that a person who complained that
his employer discriminated against minorities was not suitable
for a leadership position. Such a decision still punishes the
applicant for engaging in protected activities and so is retaliation.
We conclude substantial evidence supports the jury’s verdict on
liability.
In discussing the trial court’s ruling on the JNOV motion,
LAUSD notes the Personnel Commission has statutory
independence from LAUSD and this “raises the question of how
LAUSD can be legally responsible for the Personnel Director
selection decision that the Commission had exclusive authority to
make.” An appellant must do more than raise questions to
demonstrate error. An “ ‘appellant must supply the reviewing
court with some cogent argument supported by legal analysis and
citation to the record.’ ” (United Grand, supra, 36 Cal.App.5th at
p. 153.) LAUSD has not provided such a cogent argument.
Finally, LAUSD acknowledges Melendez “could have”
obtained declaratory or injunctive relief if appropriate, but
contends he abandoned his separate cause of action for
declaratory and injunctive relief by submitting a final judgment
which made no mention of this relief. LAUSD relies on Davis v.
Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302 (Davis) to
support this claim. We agree Melendez failed to preserve his
claims for declaratory and injunctive relief.
Melendez addresses this issue only briefly, in a footnote in
his combined opening and respondent’s brief. He argues only
that he is not similarly situated to the plaintiff in Davis because
he “preserved a claim for declaratory and injunctive relief in his
operative Complaint.” Although Davis involves a pleading issue,
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the court also pointed out that before trial the plaintiff did not
“ask[] the court to resolve any equitable issues first, nor
suggested he intended to seek a court trial on any equitable claim
following the jury trial.” (Id. at p. 1326.) As the Davis court
summed it up: “In short, appellant did nothing to suggest he
intended to seek injunctive relief.” (Ibid.) Thus, the Davis
plaintiff’s failure to request declaratory or injunctive relief in the
trial court played a role in the court’s holding that the plaintiff
did not preserve his claim.
Melendez points to a footnote in his Opposition to LAUSD’s
Motion for JNOV as an indication he preserved his claims for
injunctive and declaratory relief. That footnote is virtually
identical to the one in his brief on appeal. In both footnotes,
Melendez offers no explanation for his failure to seek such relief
before or in a final judgment. Accordingly, we find he has
forfeited his right to seek declaratory and injunctive relief on
remand.
APPEAL OF ATTORNEY FEES AWARD
LAUSD filed a separate appeal challenging the trial court’s
order awarding attorney fees and costs to Melendez as the
prevailing party. In light of our ruling striking the damages
award only on the retaliation cause of action and remanding the
Labor Code unequal wage causes of action for adjudication, we
vacate the award of attorney fees and costs so that the trial court
can determine, at the conclusion of the action, whether Melendez
is still the prevailing party entitled to fees and costs. We express
no view on how the trial court should decide this issue.
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DISPOSITION
The order granting summary adjudication is affirmed. The
order granting judgment on the pleadings is affirmed as to the
cause of action for retaliation in violation of Labor Code section
1197.5 and reversed as to the cause of action for unequal pay in
violation of that section. The damage award on the retaliation
claim is ordered stricken, but the judgment as to liability is
affirmed. The matter is remanded to permit the trial court to
decide whether attorney fees and costs are still warranted for
Melendez, and to permit Melendez to pursue his Labor Code
claim for unequal pay. The award of attorney fees and costs is
vacated for redetermination by the trial court at the conclusion of
the action. Parties to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
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