Ware v. City of Long Beach CA2/7 ( 2023 )

Filed 6/28/23 Ware v. City of Long Beach CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ROBERT WARE, B319617
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 20STCV44216)
CITY OF LONG BEACH,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Daniel S. Murphy, Judge. Reversed and
remanded with directions.
Kyle Todd for Plaintiff and Appellant.
Dawn McIntosh, City Attorney, and Marsha M. Yasuda,
Deputy City Attorney, for Defendant and Respondent.
_________________________
Robert Ware appeals from the judgment entered after the
trial court granted summary judgment in favor of the City of
Long Beach (City). In 2020 Ware, who is Black, was employed as
a Special Services Officer (SSO) at the Long Beach Airport
(Airport). He contends that, despite having more on-the-job
experience in the role than any other candidate for a promotion,
he was passed over, while two non-Black candidates were
promoted. Ware filed this action, asserting causes of action
under the California Fair Employment and Housing Act (FEHA;
Gov. Code, § 12900 et seq.)1 for race-based discrimination
(§ 12940, subd. (a)) and failure to prevent discrimination
(§ 12940, subd. (k)). The trial court granted summary judgment
for the City, finding the City had provided legitimate reasons for
promoting other candidates over Ware in 2020, and Ware failed
to raise a triable issue of fact as to the City’s allegedly
discriminatory motive.
On appeal, Ware contends he raised triable issues of fact as
to the City’s discriminatory animus by presenting evidence
showing the City’s proffered reasons for not promoting him were
not worthy of credence, as well as some circumstantial evidence
of pretext, including the lack of any promotions of Black
candidates, a subjective interview process, and “me too” evidence
of discrimination against other Black employees. We agree and
reverse.
1 All further undesignated statutory references are to the
Government Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Ware’s Employment with the City2
Ware was initially hired by the City in November 2005 as a
field officer. In 2007 he attained the rank of SSO III-Armed,
while stationed at the Port of Long Beach. In November 2008,
after Ware completed his Police Academy training, he was
transferred to the Airport. SSO’s may be assigned to the Airport,
city jail, marine patrol, or Long Beach City College.3 Depending
on the assignment, an SSO’s duties include protection of
property; traffic regulation; law enforcement; issuance of
warnings, citations, and violations; and the apprehension and
detention of persons suspected of specified illegal activity. SSO’s
also interact with members of the public as needed.
Ware remained employed as an Airport SSO III during the
approximately 12 years leading up to his application for a
promotion in 2020. During this time, Ware consistently received
positive evaluations from his supervisors, along with regular
raises due to his “excellent work product.” However, Ware had a
series of encounters with senior Airport officials that he believed
showed the City had a “pattern of engaging in anti-Black
discrimination.” These encounters included a 2008 incident in
which a senior officer at the Airport, Bradley Lemmon, sent Ware
a comic strip that used the term “‘nigga.’” In 2011 or 2012 Long
2 The factual background is taken from evidence submitted
by the parties in connection with the City’s motion for summary
judgment. We note where the facts are in dispute.
3 The City’s Harbor Department also employs SSO’s;
however, the Harbor Department has a separate recruitment
process from the other branches.
3
Beach Police Sergeant Mark Coble, who was White (and in
charge of the Airport) told Ware in the context of a notice of
violation Ware had written, “‘[I]f you want to be a ghetto cop, I
can send you to the ghetto.’” Around the same time Coble singled
Ware out in connection with another notice of violation, telling
Ware he came off as “‘very intimidating’” compared to another
officer who was White. Ware declared the manner in which Coble
told him that he was intimidating, along with Coble’s prior
comment about Ware being a ghetto cop, “made it clear that my
race is what made me intimidating to him, not my conduct.”
Ware kept silent about the discrimination and harassment for
fear of retaliation.
From 2009 through 2021 Ware was frequently assigned to
serve as acting watch commander/sergeant on his shifts. As
acting watch commander, Ware performed SSO IV duties,
including daily scheduling, deploying resources and assigning
officers where needed, verifying that other officers were at their
assigned posts, overseeing the closure of runways, and notifying
the Federal Aviation Administration if there was an emergency
that would impact airport operations. He also coordinated with
local and state law enforcement, handled dignitary support,
ensured regulations were followed, responded to all emergency
calls, and ensured appropriate law enforcement action was taken
by officers.
Ware repeatedly applied for formal promotion to an SSO IV
position at the Airport. In 2012 Ware was one of five candidates
who interviewed before an all-White panel, which included
Lieutenant Michael Lewis from the Long Beach Police
Department (LBPD). The panel selected John Raedle, a White
officer, for promotion, and the selection was approved by Airport
4
Director Mario Rodriguez. Raedle was promoted despite the fact
he had previously pleaded guilty to driving under the influence
(DUI) and had less seniority than Ware.4 In 2013, while acting
as chief of security, Raedle was terminated and replaced by
Acting Chief Ronney Wong.
Ware next applied for an open SSO IV position at the
Airport in 2014. Two White officers were promoted to SSO IV,
Jefferey Litzinger and Rory Willieford.5 The panel was composed
of two White interviewers and one Hispanic interviewer.
Willieford, who previously worked in the City’s jail system, had
no training or experience in law enforcement at the time of his
promotion. After making racist remarks to Black employees at
the Airport, Willieford was transferred back to his previous
position.
Later in the summer of 2014 Ware applied for another SSO
IV opening at the Airport. The three-person, non-Black interview
panel included LBPD Lieutenant Lewis, Drew Schneider
(superintendent of safety and security for the Airport), and Dan
4 The City acknowledged in its interrogatory responses: “City
admits Court records reflect in 2007, John Raedle pled guilty to a
misdemeanor charge of driving with a blood alcohol content of
.08% or more, and he was selected for the promotional position to
SSO IV in 2012.” The City hired Raedle in June 2007,
approximately two years after it hired Ware.
5 The City disputed that Ware applied for this SSO IV
position. In discovery, the City stated, “Plaintiff did not apply
for the promotional/transfer position of SSO IV (Classified) for
which Jeffrey Litzinger was ultimately selected.”
5
McMullen (assistant director of harbor security).6 Out of seven
qualified candidates, the panel selected for promotion a non-
Black candidate, Rouen Khiev, who had less experience than
Ware.
In early 2015 another Airport SSO IV position became
available. Schneider decided to review the six remaining
applications, including Ware’s, for the prior open position instead
of soliciting another round of applications. Schneider, working
with the LBPD sergeant assigned to the Airport, prepared
revised “Rating of Promotability” forms for the remaining
candidates based on the panelists’ notes and interview rating
forms. Schneider and the sergeant decided to promote Joey
Stites, who was White, to SSO IV.
In 2019 the Airport reached an agreement with the LBPD
under which its armed SSO III and IV employees were
“integrated” into the LBPD, such that as of August 3, 2019,
Armed Airport SSO III’s and IV’s fell under the LBPD Support
Bureau, Security Services Division. Following this integration,
recruitment became the formal responsibility of the LBPD.
B. Ware’s 2020 Interview for SSO IV
In January 2020 the LBPD announced two SSO IV
openings: one for the Airport police section and another for the
marine patrol detail. Ware again applied, and was one of
14 qualified candidates. The interview panel was composed of
three LBPD officers: Lieutenant Omar Martinez (retired),
6 The City contends McMullen and Reginald Harrison (who
had final approval authority) were both Black, but in its response
to Ware’s separate statement, the City accepted as undisputed for
purposes of summary judgment that both were non-Black.
6
Sergeant Ryan Watson (who was assigned to the Airport police
detail), and Sergeant John McVay (who was assigned to the
marine patrol/port police division). McVay prepared the
interview questionnaire the panel used to assess the candidates.
McVay had not been trained in the preparation of interview
questions; however, he formulated the questionnaire with the
guidance of his lieutenant and commander, as well as the LBPD
personnel administrator. The questionnaire consisted of five
graded questions, each scored from one to five points, along with
a sixth unscored catch-all question that allowed the candidates to
make a closing statement and indicate their location preference.
The questions were:
(1) “Describe your work experience and educational
background as they relate to the current position[.]”
(2) “Tell us about a time you had a conflict in the work
place, or personal life, and how you resolved the
problem[.]”
(3) “What is the most difficult type of employee to
supervise and what strategies would you use to
effectively supervise them.”
(4) “As a supervisor, what would you do to boost the
morale and cohesiveness of the employees you
supervise?”
(5) “You observe a SSO III being dismissive and rude to
a citizen, how would you address the issue[?]”
(6) “Is there anything else you would like to tell us about
yourself, or any closing statements you would like to
make? Are you interested in working at Marine
Patrol and Airport, or do you have a preference?”
7
Although the City claims the panelists scored the
candidates independently, it is undisputed that certain candidate
scores were changed before they were finalized. Once the scoring
was complete, the three scores for each of the 14 candidates were
tallied, and the candidates were ranked based on their combined
scores. Two SSO III’s from the marine patrol detail received the
highest combined scores: Joseph Marino received a 71 (out of 75),
and Jonathan Vigil received a 62. Both officers had previously
been supervised by a member of the interview panel— Marino by
Watson, and Vigil by McVay. Ware came in sixth, with a score of
48.
The combined scores for the 14 candidates were provided to
the deputy chief of the LBPD support bureau, Alexander Avila,
who approved the promotions for Marino and Vigil. Avila later
testified that, from a review limited to the resumes of Marino and
Ware, Ware appeared to be the more qualified candidate to fill
the Airport SSO IV position. Avila also testified, however, that
after reviewing the resumes and screening interview scores he
continued to believe Marino was properly promoted over Ware.
C. Ware’s Complaint
On November 18, 2020 Ware filed this action against the
City. The operative first amended complaint filed December 16,
2020 alleged causes of action for race-based discrimination under
FEHA7 and failure to prevent discrimination. Ware alleged the
City repeatedly denied him promotions due to his race. Further,
7 Ware also alleged as part of his race discrimination cause of
action that the City had discriminated in the provision of benefits
pursuant to Labor Code section 4850 for work-related injuries he
sustained. Those allegations are not at issue in this appeal.
8
the City failed to provide adequate education, training, and
information to its personnel regarding discriminatory practices,
thereby failing to prevent discrimination.
On September 30, 2021 the parties stipulated to restrict the
discrimination cause of action to acts that had occurred on or
after October 13, 2017 (three years prior to Ware’s October 13,
2020 complaint filed with the Department of Fair Employment
and Housing).
D. The City’s Motion for Summary Judgment
On October 21, 2021 the City filed a motion for summary
judgment or in the alternative summary adjudication of both
causes of action in Ware’s operative complaint. The City argued
Ware’s claims had no merit and Ware failed to exhaust
administrative remedies for his cause of action for failure to
prevent discrimination. Regarding Ware’s racial discrimination
claim, the City did not dispute that Ware had presented a prima
facie case of intentional discrimination. Instead, it argued Ware
could not rebut the City’s legitimate nondiscriminatory reasons
for the failure to select him for promotion to SSO IV in 2020.
The City proffered four nondiscriminatory reasons for the
failure to select Ware: (1) The panelists independently assessed
the qualifications of each candidate using the same neutral
questionnaire; (2) the panelists all felt Ware needed more
development and did not provide sufficiently detailed answers to
the interview questions; (3) the two highest-scoring candidates
demonstrated they were better qualified for promotion than
Ware; and (4) the candidates’ race was not considered in scoring
their interviews.
9
In his opposition, Ware argued he was denied a promotion
because of race, not his qualifications, asserting: (1) He had a
long, positive track record at the Airport as an SSO III, including
multiple temporary assignments to serve as an acting SSO IV,
but he had been repeatedly passed over for promotion in favor of
less qualified non-Black candidates; (2) there was widespread
systematic anti-Black bias in the promotion process and Airport
and LBPD cultures; (3) the evidence that the interviewers
changed their scores created a rational inference there was
collective decisionmaking in the promotion process; (4) the
candidates’ qualifications and resumes were not evaluated with
objective criteria, leading to an inference that the 2020 scoring
procedure was implemented to facilitate discrimination; and (5)
expert statistical analysis from Dr. D.C. Sharp, a Managing
Director at Econ One Research, Inc., regarding the SSO IV
promotions at the Airport from 2012 to 2020 showed the
promotion process was not racially neutral.
Examining the period from 2012 to 2020 using publicly
available census data, Dr. Sharp calculated a “Black Candidate
Availability” of 40.79% reflecting the percentage of Black officers
out of all non-sworn protective service officers who live in the
City of Long Beach. Dr. Sharp determined in light of this level of
Black candidate availability that if promotions to SSO IV were
race-neutral, he would expect there to have been 2.45 promotions
of Black officers, out of six total promotions to SSO IV positions
in the 2012 to 2020 time period. Therefore, because there were
six total SSO IV promotions, with no promotions of Black
candidates, “there were approximately . . . 2 [rounded down from
2.45] fewer [B]lack promotions to SSO IV than we would have
expected if promotions were neutral with respect to race.”
10
Dr. Sharp further found “the probability that this shortfall could
have occurred by chance alone is less than 5%.” Dr. Sharp also
analyzed the number of SSO’s at the Airport in 2017 and found
only three out of 22 were Black, while based on the level of Black
candidate availability he would have expected to find
approximately nine Black SSO’s. Dr. Sharp declared, “The
probability that this shortfall could have occurred by chance
alone is less than 5%. In fact, at 2.59 standard deviations, the
probability that this shortfall could have occurred by chance
alone is approximately 1%.”
In support of his argument the City had an anti-Black
culture and bias, Ware submitted “me too” declarations from
three Black City employees who served as SSO’s at the Airport:
Tanaya Gaines, Arkeishanae Pink, and Dainell Woodbey, two of
whom had been denied promotions at the Airport. Gaines worked
at the Airport as an SSO II/Dispatcher from 2006 to 2011, when
she resigned. She knew Ware and commended his performance
as an SSO III at the Airport. She described the work
environment in the City as “segregated” with “a lot of nepotism”
and “favoritism.”
Pink was a current employee who began working for the
City in 2009. In 2010 she became an SSO II and was transferred
to the Airport, where she worked in various positions over the
next 10 years. Pink declared she was passed over for promotion
due to her race, partly due to the intervention of her White
supervisor, Brandon Kraus, who was the former acting manager
for safety and security; Pink lodged a discrimination claim
against him. Pink believed Ware was an excellent employee but
was passed over for promotion because of his race.
11
Woodbey, another current employee, had worked for the
City as an SSO since 2005 and was transferred to the Airport
along with Ware. According to Woodbey, no other Black officers
had been hired since 2005. Woodbey stated he experienced
discriminatory disciplinary proceedings orchestrated by the
Airport chief of security, John Blood. In addition, in
approximately 2013 a White LBPD sergeant who worked at the
Airport approached him at lunchtime. Woodbey was eating a
salad, and the sergeant asked if he was eating fried chicken.
Woodbey stated he and Ware had applied for the SSO IV position
in 2012 or 2013 (when Woodbey was also an SSO III), but they
were passed over for promotion because of their race.8 The City
did not dispute that Woodbey experienced racial stereotyping on
the job.
Ware argued that collectively the evidence supported a
rational inference of intentional discrimination on the basis of his
race. Ware also requested the trial court grant a continuance
under section 437c, subdivision (h), to permit resolution of Ware’s
pending motion to compel the City to produce additional
information to assist Dr. Sharp with his statistical analysis.
In its reply, the City argued Ware’s evidence of prior
instances of racial hostility or discriminatory promotion practices
was not relevant because in 2019 the Airport ceded authority
over the selection process for SSO IV’s to the LBPD. With regard
8 In its response to Ware’s separate statement, the City
disputed that Woodbey was passed over for a promotion in 2012
or 2013. According to the City’s records, a candidate with the
initials D.W. cancelled his interview two hours before the
scheduled time. For purposes of the motion, we consider this fact
disputed.
12
to inconsistencies in the 2020 candidate ranking process, the City
argued there was no affirmative evidence of any racial hostility or
discrimination. The City did not present a declaration from its
own expert but argued the analysis from Dr. Sharp had no
evidentiary value because the sample size was too small and
Dr. Sharp principally considered the time period prior to when
the LBPD formally took over the SSO IV selection process. For
the same reason, the information sought in Ware’s request for a
continuance was irrelevant, because Dr. Sharp’s analysis was
inherently unreliable. Finally, the City argued that, even if
credible, Ware’s “me too” declarants were not similarly situated
to Ware, and therefore, the declarations did not create a triable
issue of fact.
E. The Trial Court’s Ruling
After a hearing, on February 22, 2022 the trial court
granted summary judgment for the City, finding the City had
provided legitimate reasons for promoting other candidates over
Ware in 2020, and Ware failed to rebut this evidence by raising a
triable issue of fact as to the City’s allegedly discriminatory
intent. The second cause of action for failure to prevent
discrimination necessarily failed because it depended on the
underlying discrimination claim. The court also denied Ware’s
request for a continuance, finding Ware failed to show how
further discovery of statistical evidence would address the small
sample size, which rendered Dr. Sharp’s analysis defective and
insufficient to create a triable issue of fact. The court did not
reach whether Ware failed to exhaust administrative remedies
for the second cause of action.
13
In its final ruling, the trial court sustained six of the City’s
objections to Ware’s evidence, five of which pertained to the
statements in Ware’s declaration that he believed his race was a
motivating factor in the City’s decision not to promote him. The
sixth objection involved a statement by Gaines that the failure to
promote Ware was an example of ongoing discrimination at the
LBPD. The court overruled the parties’ remaining objections,
including the City’s objections to the “me too” declarations.9
On March 14, 2022 the trial court entered judgment for the
City. Ware timely appealed.
DISCUSSION
A. Standard of Review on Summary Judgment
Summary judgment is appropriate only if there are no
triable issues of material fact and the moving party is entitled to
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c);
Regents of University of California v. Superior Court (2018)
4 Cal.5th 607, 618; Doe v. Roman Catholic Archbishop of Los
Angeles (2021) 70 Cal.App.5th 657, 668.) “‘“‘“We review the trial
court’s decision de novo, considering all the evidence set forth in
the moving and opposing papers except that to which objections
were made and sustained.”’ [Citation.] We liberally construe the
9 Neither party on appeal challenges the trial court’s
evidentiary rulings, thereby forfeiting any challenge to the
correctness of the rulings. (Villanueva v. City of Colton (2008)
160 Cal.App.4th 1188, 1197; Roe v. McDonald’s Corp. (2005)
129 Cal.App.4th 1107, 1114.)
14
evidence in support of the party opposing summary judgment and
resolve doubts concerning the evidence in favor of that party.”’”
(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347;
accord, Doe, at p. 669; Sabetian v. Exxon Mobil
Corporation (2020) 57 Cal.App.5th 1054, 1068.)
A defendant moving for summary judgment has the initial
burden of presenting evidence that a cause of action lacks merit
because the plaintiff cannot establish an element of the cause of
action or there is a complete defense. (Code Civ. Proc., § 437c,
subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 853; Sabetian v. Exxon Mobil Corporation, supra,
57 Cal.App.5th at p. 1068.) If the defendant satisfies this initial
burden, the burden shifts to the plaintiff to present evidence
demonstrating there is a triable issue of material fact. (Code Civ.
Proc., § 437c, subd. (p)(2); Aguilar, at p. 850; Sabetian, at
p. 1069.) “The plaintiff . . . shall not rely upon the allegations or
denials of its pleadings to show . . . a triable issue of material fact
exists but, instead, shall set forth the specific facts showing that
a triable issue of material fact exists.” (Code Civ. Proc., § 437c,
subd. (p)(2); accord, Roman v. BRE Properties, Inc. (2015)
237 Cal.App.4th 1040, 1054 [“It is fundamental that to defeat
summary judgment a plaintiff must show ‘specific facts’ and
cannot rely on allegations of the complaint.”]; Regional Steel
Corp. v. Liberty Surplus Ins. Corp. (2014) 226 Cal.App.4th 1377,
1388.)
FEHA prohibits an employer from subjecting an employee
to an adverse employment action based on the employee’s
protected status. (§ 12940, subd. (a).) In evaluating claims of
discrimination under FEHA, California courts apply the burden-
shifting approach set forth in McDonnell Douglas Corp. v. Green
15
(1973) 411 U.S. 792. (Harris v. City of Santa Monica (2013)
56 Cal.4th 203, 214 (Harris); Guz v. Bechtel National, Inc. (2000)
24 Cal.4th 317, 354 (Guz).)
Under this approach, if the plaintiff establishes a prima
facie case supporting his or her discrimination claim, the burden
shifts to the employer to rebut the presumption of discrimination
by offering a legitimate, nondiscriminatory reason for the adverse
employment action. (Harris, supra, 56 Cal.4th at p. 214; Guz,
supra, 24 Cal.4th at pp. 355-356.) An employer may meet its
initial burden in moving for summary judgment or adjudication
of an employment discrimination cause of action by presenting
evidence that one or more elements of a prima facie case are
lacking, or the employer acted for a legitimate, nondiscriminatory
reason. (Zamora v. Security Industry Specialists, Inc. (2021)
71 Cal.App.5th 1, 32 (Zamora); Husman v. Toyota Motor Credit
Corp. (2017) 12 Cal.App.5th 1168, 1181; Soria v. Univision Radio
Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 591.) A legitimate,
nondiscriminatory reason is one that is unrelated to the
prohibited bias and, if true, would preclude a finding of
discrimination. (Guz, at p. 358.) “[I]f nondiscriminatory, [the
employer’s] true reasons need not necessarily have been wise or
correct. [Citations.] While the objective soundness of an
employer’s proffered reasons supports their credibility . . . , the
ultimate issue is simply whether the employer acted with a
motive to discriminate illegally.” (Ibid.)
If the employer satisfies its initial burden, the burden
shifts to the plaintiff to present evidence creating a triable issue
of fact showing the employer’s stated reason was a pretext for
unlawful animus in order to avoid summary judgment or
adjudication. (Zamora, supra, 71 Cal.App.5th at p. 32; Husman
16
v. Toyota Motor Credit Corp., supra, 12 Cal.App.5th at p. 1182;
Soria v. Univision Radio Los Angeles, Inc., supra, 5 Cal.App.5th
at p. 591.) In other words, the plaintiff has “the burden to rebut
[the employer’s] facially dispositive showing by pointing to
evidence which nonetheless raises a rational inference that
intentional discrimination occurred.” (Guz, supra, 24 Cal.4th at
p. 357.)
To meet this burden, the plaintiff may present evidence
showing the stated reason by the employer was “unworthy of
credence” as circumstantial evidence of pretext. (Guz, supra,24 Cal.4th at p. 361; see Reeves v. Sanderson Plumbing Products,
Inc. (2000) 530 U.S. 133, 147 (Reeves) [“In appropriate
circumstances, the trier of fact can reasonably infer from the
falsity of the explanation that the employer is dissembling to
cover up a discriminatory purpose.”];10 Serri v. Santa Clara
University (2014) 226 Cal.App.4th 830, 863 [“‘“the [employee]
must demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them ‘unworthy of credence’
10 California courts often look to federal decisions interpreting
federal antidiscrimination laws in interpreting FEHA. (Richards
v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 812 [“‘“Because the
antidiscrimination objectives and relevant wording of title VII of
the Civil Rights Act of 1964 (Title VII) [(42 U.S.C. § 2000e et
seq.)] [and other federal antidiscrimination statutes] are similar
to those of the FEHA, California courts often look to federal
decisions interpreting these statutes for assistance in
interpreting the FEHA.”’”]; Estrada v. City of Los Angeles (2013)
218 Cal.App.4th 143, 150 [same].)
17
[citation], and hence infer ‘that the employer did not act for the
[the asserted] non-discriminatory reasons.’”’”].)
To defeat a motion for summary judgment, therefore, a
plaintiff must present evidence to support a rational inference
that intentional discrimination, “on grounds prohibited by the
statute, was the true cause of the employer’s actions.” (Guz,
supra, 24 Cal.4th at p. 361, italics omitted; see Harris, supra,56 Cal.4th at pp. 229-232 [FEHA does not require proof that
discriminatory animus was a “‘but for’” cause of an adverse
action, only that it was a “substantial motivating factor”].)
B. Ware Raised a Triable Issue of Fact as to His FEHA Race
Discrimination Claim
To establish a prima facie discrimination claim, Ware
needed to show “(1) he was a member of a protected class, (2) he
was qualified for the position he sought . . . , (3) he suffered an
adverse employment action, such as . . . denial of an available job,
and (4) some other circumstance suggests discriminatory motive.”
(Guz, supra, 24 Cal.4th at p. 355.) The City does not dispute that
Ware established a prima facie case of race discrimination. Ware
showed: (1) he was Black; (2) he was qualified for promotion in
2020 to the SSO-IV position; (3) he was passed over for
promotion; and (4) his qualifications and repeated service as
acting SSO IV at the Airport suggested he was passed over for
discriminatory reasons.
The City argued it presented legitimate, nondiscriminatory
reasons for its failure to promote Ware, including that the two
selected candidates were better qualified than Ware; the
panelists used the same neutral criteria in making the decision;
and the panelists all felt Ware needed more “development” and
18
did not provide sufficiently detailed responses to the interview
questions. However, Ware presented evidence in response that
raised a triable issue of fact as to whether the City’s asserted
reasons for failing to promote Ware were legitimate, and Ware
presented sufficient evidence that supported a rational inference
the true reason was discrimination based on his race.
As discussed, an employee may raise a triable issue of fact
to avoid summary judgment by showing the employer’s proffered
nondiscriminatory reasons were unworthy of credence. (Reeves,
supra, 530 U.S. at p. 148 [“a plaintiff’s prima facie case, combined
with sufficient evidence to find that the employer’s asserted
justification is false, may permit the trier of fact to conclude that
the employer unlawfully discriminated”]; Furnco Constr. Corp. v.
Waters (1978) 438 U.S. 567, 577 [“[W]hen all legitimate reasons
for rejecting an applicant have been eliminated as possible
reasons for the employer’s actions, it is more likely than not the
employer, who we generally assume acts with some reason, based
his decision on an impermissible consideration”]; Zamora, supra,
71 Cal.App.5th at p. 34 [“‘“[T]he plaintiff may establish pretext
‘either directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by
showing that the employer’s proffered explanation is unworthy of
credence.’”’”]; Ewing v. Gill Industries, Inc. (1992) 3 Cal.App.4th
601, 614 [an employee may succeed in opposing summary
judgment “either directly by persuading the court that a
discriminatory reason more likely motivated the employer or
indirectly by showing that the employer’s proffered explanation is
unworthy of credence”].)
As the Guz court explained in the context of an employee
challenging the employer’s proffered reasons for terminating him
19
in light of a reduction in force, “in an appropriate case, an
inference of dissembling may arise where the employer has given
shifting, contradictory, implausible, uninformed, or factually
baseless justifications for its actions.” (Guz, supra, 24 Cal.4th at
p. 363; see Reeves, supra, 530 U.S. at pp. 147-149 [“Proof that the
defendant’s explanation is unworthy of credence is simply one
form of circumstantial evidence that is probative of intentional
discrimination, and it may be quite persuasive.”].)
Here, Ware presented evidence creating a triable issue of
fact whether the City’s proffered reasons for not promoting him
were worthy of credence, coupled with some circumstantial
evidence of pretext—that the real reason for not promoting him
was that he was Black. Although we agree with the trial court
that Ware’s evidence of discriminatory intent was weak, “[l]ike
most claims of race discrimination, the inquiry here involves
contested facts from which competing inferences could be drawn.
These kinds of claims are rarely suited for summary
adjudication.” (Mackey v. Trustees of California State University
(2019) 31 Cal.App.5th 640, 673.)
1. Ware presented evidence that created a triable issue of
fact as to whether the City’s proffered
nondiscriminatory reasons were legitimate
On appeal, the City relies, as it did in the trial court, on
four asserted nondiscriminatory reasons for its 2020 promotion
decisions: (1) the panelists independently assessed the
qualifications of each candidate using the same neutral
questionnaire; (2) the panelists all felt Ware needed more
development and did not provide sufficiently detailed answers to
the interview questions; (3) the two highest-scoring candidates
20
demonstrated they were better qualified for promotion than
Ware; and (4) the candidates’ race was not considered in scoring
their interviews. Ware created a triable issue of fact as to each of
these justifications.
a. Ware cast doubt on whether the members of the
review panel acted independently in the
promotion process, which was entirely
subjective
Ware presented evidence that raised a material question of
fact whether the three 2020 interview panelists (Watson,
Martinez, and McVay) acted independently in scoring the
candidates. The panelists stated verbatim in their declarations
in support of the City’s summary judgment motion: “I scored
each candidate independently. Each candidate’s score was purely
my own assessment, based on how I felt each candidate
performed in their interview.” However, Watson admitted “there
would be times that . . . if we had a question about a certain
candidate, [there] might be a discussion . . . [about] what score we
were thinking about giving.” He added that some of the scores
“were done independently and some were done with consensus.”
Similarly, Martinez recalled that “at one point there may have
been a tie on scores, and . . . some discussion on what to do about
the tie.” Further, Martinez recorded his scores in pencil “so that
if I wanted to revise it at the end, after kind of getting, you know,
a totality of the interview and thinking about it, . . . if I decided to
change my score, . . . it wasn’t going to look all, you know,
unprofessional.” And McVay admitted he relayed to the other
panelists his negative personal experiences with one of the
candidates who he believed did a poor job as an SSO III, although
21
McVay did not know whether this affected the panelists’ scoring
of the candidate.
We recognize that showing an evaluation process is
subjective does not by itself show intentional discrimination.11
(See Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994,
1005 [“[A]bsent some evidence that the [employer] made its
decisions based upon race, the mere use of subjective criteria does
not permit us to second guess the employer’s business
judgment.”]; Los Angeles County Dept. of Parks & Recreation v.
Civil Service Com. (1992) 8 Cal.App.4th 273, 281 [“The fact that
promotion decisions are traditionally left to the wide and
subjective discretion of supervisors who are familiar with the
employee applicants does not by itself raise an inference of
discriminatory conduct.”]; Coleman v. Quaker Oats Co. (9th Cir.
2000) 232 F.3d 1271, 1285 [“While a subjective evaluation system
can be used as cover for illegal discrimination, subjective
evaluations are not unlawful per se and ‘their relevance to proof
of a discriminatory intent is weak.’”].)
However, courts have long recognized that “subjective
evaluations may lend themselves to discriminatory abuse and
should, therefore, be closely scrutinized.” (Hicks v. KNTV
11 We are not aware of any published cases in which a
California appellate court has found a failure to guard against
implicit bias may itself be actionable under FEHA. (See
generally People v. McWilliams (2023) 14 Cal.5th 429, 451 (conc.
opn. of Liu, J.) [observing in context of officer’s parole search,
“Research confirms what is no surprise as a matter of common
sense: On-the-spot discretionary decisions are vulnerable to
implicit bias because they are neither constrained by a clear
rubric of relevant criteria nor preceded by extensive
deliberation.”].)
22
Television, Inc., supra, 160 Cal.App.4th 994, 1005; accord,
Jauregui v. City of Glendale (9th Cir. 1988) 852 F.2d 1128, 1136
[in considering whether there was discriminatory intent,
“‘subjective practices are particularly susceptible to
discriminatory abuse and should be closely scrutinized.’”]; see
ibid. [city’s inconsistency in reasons for promoting only White
male police officers as part of subjective promotion process
created inference of unlawful discrimination].)
Here, subjective criteria were the only criteria used in the
2020 promotional decisions to score eligible candidates, making
the City’s process susceptible to discriminatory abuse.
Candidates received no points for relevant experience or training
aside from those the panelists awarded based on their
assessment of the candidates’ performance during the interviews.
Notably, two of the three panelists wrote the same phrase on
Ware’s screening interview summary—“needs more
development”—while the third wrote, “not strong—more
development,” suggesting some coordination as to the scoring.
When coupled with Ware’s evidence that the panelists changed
some of their answers and at times discussed the scoring of
individual candidates before making the final tallies, this
evidence casts doubt on the credibility of the City’s proffered
explanation for its failure to promote Ware.
b. Ware raised a question of fact whether Marino
and Vigil were more qualified for promotion
Ware also presented significant evidence that he was the
most qualified candidate. Avila, the deputy chief of the LPBD
support bureau, testified that, from a review limited to the
resumes of Marino and Ware, Ware was the more qualified
23
candidate to fill the Airport SSO IV position. Stites, who was
promoted to SSO IV in 2015, testified that a candidate who had
worked at the Airport and served as an acting SSO IV, which
Ware had done, would be more qualified than someone who did
not have this experience. Further, according to Stites, “going by
training and experience,” Ware was more qualified than Marino
for the 2020 Airport SSO IV promotion. Yet none of the panelists
scored Ware higher than Marino on question 1, the only
interview question directed at work experience and educational
background. All three panelists rated Marino a “5” out of “5,” but
Ware was rated “4” out of “5” by two of the panelists (and “5” by
the third).
Ware also disputed whether he truly needed “more
development,” as the panelists stated in their scoring sheets, in
light of the fact that for more than a decade he had been working
at the Airport as an SSO III and was repeatedly assigned to serve
as acting SSO IV, while Marino had only spent approximately
three years as an SSO III in the marine patrol detail. And, as
Ware noted, despite the fact the duties of SSO IV included the
“[a]bility to write clear, accurate, and legible reports,” Marino did
not include a cover letter with his one-page resume, while Ware
provided both a cover letter and a detailed, two-page resume
outlining his extensive experience.
2. Ware presented some evidence of racial animus
The strongest evidence raising an inference of
discrimination is discussed above, namely, that Ware was on
paper the most qualified candidate, for over 10 years the City had
consistently assigned him to carry out SSO IV duties, the
interview panelists dissembled as to how they conducted the
24
scoring, and the scoring was in part done collectively as part of an
entirely subjective process. Moreover, “[b]ecause proof of
discriminatory intent often depends on inferences rather than on
direct evidence, very little evidence of such intent is necessary to
defeat summary judgment.” (Nadaf-Rahrov v. Neiman Marcus
Group, Inc. (2008) 166 Cal.App.4th 952, 991; accord, Nazir v.
United Airlines, Inc. (2009) 178 Cal.App.4th 243, 283.)
To bolster a rational inference of discriminatory intent,
Ware also presented evidence that supported an inference the
City harbored a culture of anti-Black animus. Although this
evidence was relatively weak, when combined with the evidence
disputing the legitimacy of the City’s proffered reasons, there was
a triable issue of fact as to whether Ware was passed over for
promotion because of his race. (See Johnson v. United Cerebral
Palsy/Spastic Children’s Foundation (2009) 173 Cal.App.4th 740,
758 [“Although we have set out several matters which by
themselves will not constitute substantial evidence that
defendant’s stated reason for firing plaintiff was pretextual or
that defendant acted with a discriminatory animus when it fired
her, there remains the question whether these matters, when
taken together, do constitute sufficient evidence to demonstrate a
triable issue of fact with respect to plaintiff’s contention that her
pregnancy was the true cause of defendant’s decision to fire her.
In our view, they do.”].)
First, Ware provided Dr. Sharp’s expert testimony that the
lack of any promotions of Black candidates in the six SSO IV
promotion decisions at the Airport from 2012 to 2020 was
statistically significant. The trial court discounted Dr. Sharp’s
analysis entirely, accepting the City’s argument the sample size
was too small and the promotion decisions prior to LBPD taking
25
control of the promotion process were irrelevant. Although we
agree the sample size of 22 total non-sworn protective service
employees at the Airport was small, there is some probative
value to the fact there were no promotions of Black candidates
despite the fact three of the SSO’s were Black and some (or at
least Ware) were qualified for promotion. (See Guz, supra, 24
Cal.4th at pp. 368-369 [observing Guz’s evidence that his
employer favored two younger employees was weakened by fact
there were only six employees in the disbanded unit but not
discounting that evidence completely]; Obrey v. Johnson (9th Cir.
2005) 400 F.3d 691, 697 [concluding district court abused its
discretion in excluding study that compared race of 10 applicants
for promotion to manager at shipyard to race of two who were
selected “[s]ince the defendant’s objections to the admission of
[the study] went to weight and sufficiency rather than
admissibility”].)
Foroudi v. The Aerospace Corp. (2020) 57 Cal.App.5th 992,
1009 and Aragon v. Republic Silver State Disposal (9th Cir. 2002)
292 F.3d 654, 663, relied on by the City, are not to the contrary.
The courts in those cases did not hold the statistical evidence was
inadmissible to show intentional discrimination, only that the
evidence did not alone meet the employees’ burden to raise an
inference of intentional discrimination. As the Court of Appeal in
Foroudi observed, the statistical evidence presented by the
plaintiff, which failed to account for age-neutral factors, did not
“eliminate nondiscriminatory reasons for any apparent
disparities,” and therefore, it was not sufficient to raise an
inference of discrimination. (Foroudi, at p. 1009; see Aragon, at
p. 663 [“[T]he fact that three of the four [employees] singled out
for lay off that night were white could constitute circumstantial
26
evidence of discrimination demonstrating pretext. [Citation.]
Yet, because the sample size is so small, we decline to give it
much weight.”]; see also Life Technologies Corp. v. Superior Court
(2011) 197 Cal.App.4th 640, 651 [“statistical evidence of a
company’s general hiring patterns, although relevant, carries less
probative weight than it does in a disparate impact case”], italics
added, disapproved of on other grounds by Williams v. Superior
Court (2017) 3 Cal.5th 531.)12
Ware also provided evidence of his own experiences at the
Airport, including the four prior times he was passed over for
promotion, the instance in which a supervisor at the Airport sent
him a racist comic strip,13 and the 2011 or 2012 incidents in
12 Other courts have considered statistical analysis to prove
intentional discrimination in disparate treatment cases. (See
Rosenfeld v. Abraham Joshua Heschel Day School, Inc. (2014)
226 Cal.App.4th 886, 896 [“[S]tatistical evidence may be utilized
to show either disparate treatment or disparate impact
discrimination.”]; Teamsters v. United States (1977) 431 U.S. 324,
334-343 [upholding use of statistics to prove pattern of
intentional discrimination in “purposefully” treating “Negroes
and Spanish-surnamed Americans less favorably than white
persons”]; Avenue 6E Investments, LLC v. City of Yuma (9th Cir.
2016) 818 F.3d 493, 507-508 [“The complaint’s statistics on the
disparate impact caused by the decision and the historical
background of the decision also tend to make the disparate-
treatment claims plausible.”].)
13 As Ware described in his declaration: “My experiences with
workplace racism while working for the City started early in my
career. In or about late 2008, around the election of President
Barack Obama, as I was leaving the police academy grounds, I
received a text from a senior officer at Long Beach Airport,
Bradley Lemmon (‘Lemmon’), containing a racist comic. In this
27
which a White LBPD sergeant talked to Ware about being a
“‘ghetto cop’” and, on another occasion, referred to Ware as “‘very
intimidating’” compared to a White officer. With respect to the
promotions, each time he was interviewed by a majority- or all-
White panel (with no Black panelists). And in all but one
instance the selected SSO had less experience or seniority than
Ware (Raedle in 2012; Willieford in 2014; and Khiev in 2014).
The City sought to minimize this evidence, pointing to the fact
the earlier promotions occurred prior to the integration under
which LBPD took over the promotion process for SSO IV’s at the
Airport, and the racist comments were not made by one of the
three decisionmakers in 2020 or otherwise related to the 2020
promotion decision. We agree some of the examples were distant
in time, lessening their weight, but they still have some probative
value. Moreover, as to the transfer of the promotion process to
the LBPD, it is uncontroverted that LBPD officers participated in
the earlier promotions.
Finally, Ware presented three “me too” declarations from
three Black employees at the Airport. While none of the
declarants described an instance of racism perpetrated by any of
the 2020 interview panelists, all three described examples of
comic, a black individual ascended to heaven. At the gates of
heaven, he is told by God that he will receive his wings. When
the black individual asks God if that makes him an angel, he is
told ‘no, nigga: it makes you a bat.’ This text was unprovoked. I
believe it was in response to confirmation that Obama had been
elected as President of the United States. As Long Beach Airport
sponsored my attendance at the police academy, I was on the
clock when I received this text. It was a sign of the racism I
would endure working for the City in years to come.”
28
what they perceived was racial animus by supervisors at the
Airport and a culture of anti-Black bias.
For example, Pink declared she was passed over for
promotion to a higher SSO rank based on her race, partly due to
the intervention of Kraus, her White supervisor, who was the
former acting manager for safety and security, resulting in her
lodging a discrimination complaint against him. And Woodbey
declared he applied for the SSO IV position in 2012 or 2013 (at
the same time Ware did), but he and Ware were both denied a
promotion. Further, the City had not hired any Black SSO’s
since 2005. Woodbey also described an incident in 2013 in which
a White LBPD sergeant who worked at the Airport approached
Woodbey at lunch while he was eating a salad and asked if he
was eating fried chicken.
These declarations may have been insufficient without
more to create a triable issue, especially given the lack of a direct
connection to the three decisionmakers in 2020 or the 2020
decisionmaking process. Nonetheless, in conjunction with Ware’s
other evidence, they suggest a culture of racial animus and
strengthen a rational inference of discrimination in the
promotion process. (See Meeks v. AutoZone, Inc. (2018)
24 Cal.App.5th 855, 871 [“‘Me-too’ evidence is therefore not
subject to any per se rule of exclusion, and may be admissible to
prove a defendant’s motive or intent even where the conduct
occurred outside the plaintiff’s presence and at times other than
when the plaintiff was employed.”]; Johnson v. United Cerebral
Palsy/Spastic Children’s Foundation, supra, 173 Cal.App.4th at
p. 767 [“Dissimilarities between the facts related in the other
employees’ declarations and the facts asserted by plaintiff with
regard to her own case go to the weight of the evidence, not its
29
admissibility.”]; Nadaf-Rahrov v. Neiman Marcus Group, Inc.,
supra, 166 Cal.App.4th at p. 992 [“Assuming for purposes of
argument that Neiman Marcus has satisfied its burden to
produce evidence of a legitimate nondiscriminatory reason for
Nadaf-Rahrov’s termination, Nadaf-Rahrov successfully rebutted
that showing with evidence of Neiman Marcus’s discriminatory
treatment of other Middle Eastern employees at Neiman Marcus.
. . . Admittedly, the link between these employees’ experiences
and Nadaf-Rahrov’s termination is tenuous, but very little
evidence of discriminatory intent is necessary to defeat summary
judgment.”]; Pineda v. Abbott Laboratories Inc. (9th Cir. 2020)
831 Fed.Appx. 238, 243 [“‘[M]e too’ evidence—here, declarations
by other employees, including two supervisors, alleging adverse
employment actions against other employees for discriminatory
reasons—may ‘constitute substantial evidence requiring reversal
of [summary] judgment.’”].)
The City relies on McCoy v. Pacific Maritime Assn. (2013)
216 Cal.App.4th 283, 297 and Sallis v. Univ. of Minn. (8th Cir.
2005) 408 F.3d 470, 478 to support its argument that Ware’s “me
too” declarations recounted anecdotes that were too attenuated to
have any probative value.14 However, as to statements made by
14 McCoy and Sallis are not quite on point. In McCoy, the
Court of Appeal concluded the trial court acted within its
discretion in excluding at trial “me too” evidence of harassment
or discrimination against other employees as not relevant to the
plaintiff’s retaliation claim. (McCoy v. Pacific Maritime Assn.,
supra, 216 Cal.App.4th at pp. 296-297.) However, the court
directed the trial court on remand to consider whether evidence
of retaliation against other employees presented “factual
scenarios involving other employees that are ‘sufficiently similar’”
30
supervisors (for example, the fried chicken comment), the
Supreme Court has rejected a strict application of the “stray
remarks” doctrine, which federal courts have relied on to discount
potentially damaging discriminatory remarks made by non-
decisionmakers. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512,
540-541.) As the Supreme Court in Reid explained, a
discriminatory “remark not made directly in the context of an
employment decision or uttered by a non-decision-maker may be
relevant, circumstantial evidence of discrimination.” (Id. at p.
539.) Reid continued, “Reeves indicates that even if
[discriminatory] comments can be considered stray remarks
because they were not made in the direct context of the decisional
process, a court should not categorically discount the evidence if
relevant; it should be left to the fact finder to assess its probative
value.” (Id. at pp. 539-540, citing Reeves, supra, 530 U.S. at pp.
153-154; see Reid, at p. 541 [“Determining the weight of
discriminatory or ambiguous remarks is a role reserved for the
jury.”].) Here too, although the “me too” evidence of remarks and
discriminatory conduct by supervisors not involved in the 2020
to those presented by appellant in her retaliation claim.” (Id. at
p. 298.) As discussed, on appeal the City does not argue the “me
too” evidence was inadmissible, instead asserting the evidence
did not provide substantial evidence of discriminatory animus.
In Sallis, the Eighth Circuit held the district court did not abuse
its discretion in limiting discovery relevant to the University of
Minnesota’s summary judgment motion to discrimination against
other employees in the department at the university where the
employee had worked for the prior 10 years. (Sallis v. Univ. of
Minn., supra, 408 F.3d at pp. 477-478.) Here, Ware submitted
“me too” evidence from the relatively narrow population of
Airport SSO’s.
31
decisionmaking process provides weaker evidence of
discriminatory intent with respect to the 2020 promotion
decision, the evidence has some probative value in considering
whether there is a rational inference the failure to promote Ware
was based on his race.
In light of the evidence submitted by Ware raising a triable
issue of fact with respect to the legitimacy of the City’s proffered
reasons for not promoting Ware, combined with the weaker
evidence of discriminatory animus, the trial court erred in
granting summary judgment.15
15 The City does not contend on appeal that even if we
conclude the trial court erred in finding there was no triable issue
of fact as to Ware’s underlying FEHA claim, we should still
affirm the grant of summary adjudication as to Ware’s second
cause of action for failure to prevent discrimination and
retaliation because Ware failed to exhaust his administrative
remedies. In the absence of any argument by the City on appeal
as to the exhaustion ground for summary adjudication, we
reverse as to both counts. We therefore do not reach whether the
trial court abused its discretion in denying Ware’s request for a
continuance under section 473c, subdivision (h).
32
DISPOSITION
The judgment is reversed. The trial court is ordered to
vacate its order granting the City’s motion for summary
judgment or in the alternative summary adjudication of both
causes of action and to enter a new order denying the City’s
motion. Ware is entitled to recover his costs on appeal.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
33