Judge: Bruce G. Iwasaki, Case: 20STCV26815, Date: 2023-05-09 Tentative Ruling


Case Number: 20STCV26815    Hearing Date: May 9, 2023    Dept: 58

Judge Bruce G. Iwasaki

Department 58

Hearing Date:              May 9, 2023

Case Name:                 Christopher Davis v. County of Los Angeles, et al.

Case No.:                   20STCV26815

Matter:                        Motion for Summary Judgment

Moving Party:             Defendant County of Los Angeles

Opposing Party:          Plaintiff Christopher Davis

Trial Date:                   July 31, 2023

Discovery c/o:             June 30, 2023

Tentative Rulings:    Defendant’s motion for summary judgment is granted.

 

Procedural and Factual Background.

 

Plaintiff Christopher Davis brings this employment action against Defendant County of Los Angeles.

 

Plaintiff is an African American veteran of the Los Angeles Fire Department (“the Department”). In 2018, Plaintiff applied for the position of Captain. As part of the promotion process, Plaintiff prepared a Promotional Resume Appraisal of Promotability (“PRAP”), which is essentially a book containing documents and information enabling the Department to evaluate a candidate’s qualifications. The Department scores each candidate’s PRAP by assigning points to various work activities performed. Work Activity #17 (“WA17”) in the PRAP catalogs a candidate's experience with developing Incident Action Plans, Emergency Action Plans (“EAPs”), and/or Training Action Plans.

 

Plaintiff alleges he submitted Form 74.1FC and a supporting memorandum showing he completed seven EAPs prior to applying for Captain. According to Plaintiff, the Department indicated that either document was enough to receive credit—and thus points—for WA17. Nevertheless, Plaintiff also submitted an amended page for his 2017 Performance Evaluation (“PE”), which reflected he had done seven EAPs. Plaintiff attests he submitted an amended page because Captain Williams—Plaintiff’s supervisor who is also African American—erroneously omitted six of the EAPs from Plaintiff’s original 2017 PE. However, the amended page allegedly prepared by Captain Williams never made it into Plaintiff’s personnel file. As a result of the discrepancy between Plaintiff’s PRAP and personnel file, the Department did not award Plaintiff points for the additional six EAPs, which Plaintiff alleges is the reason why he was not promoted to Captain in 2018. The complaint alleges that Plaintiff is unaware of any Caucasians who were not credited with the points to which they were entitled on the 2018 Captain's promotional examination, and that Caucasian and Hispanic candidates less qualified than Plaintiff were promoted to Captain.  Plaintiff was promoted to Captain in 2021.

 

Plaintiff asserts causes of action for: (1) discrimination on the basis of race in violation of FEHA; and (2) failure to prevent discrimination on the basis of race and/or harassment in violation of FEHA.

 

Defendant now moves for summary judgment, or in the alternative, summary adjudication of three issues: (1) Plaintiff cannot establish that there was any discriminatory motive for the adverse action; (2) any adverse action taken by the County regarding Plaintiff’s employment was supported by legitimate business reasons, and Plaintiff cannot establish pretext; and/or (3) there is no triable issue of fact on Plaintiff’s second cause of action for failure to prevent discrimination because no triable issue of material fact exists that Plaintiff was discriminated against. 

 

Request for Judicial Notice.

 

Defendant requests the Court take judicial notice of Judge Takasugi’s Minute Order, dated October 5, 2022, from Johnnie McGee v. County of Los Angeles, Los Angeles Superior Court, Case No. 21STCV22100.

 

“While courts take judicial notice of public records, they do not take notice of matters stated therein.” (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375, citing Love v. Wolf (1964) 226 Cal.App.2d 378, 403.)

 

Defendant asks the Court to take notice of the findings and conclusions from a minute order from another trial court matter, but trial court findings are not binding or persuasive authority on this Court.

 

The request is denied.

 

Evidentiary Objections.

 

            Plaintiff raises 3 objections to the compendium of evidence offered by Defendant in support of this motion. Plaintiff’s objections, nos. 1, 2, and 3, are overruled.

 

            Defendant raises a general objection and 9 specific objections to the declaration of Dawn Porter, Ph.D.

 

“[U]nder Evidence Code sections 801, subdivision (b), and 802, the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or 3) speculative…” Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771–772.) “[T]he gatekeeper's focus ‘must be solely on principles and methodology, not on the conclusions that they generate.’” (Id. at 772, citing Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 595.)

 

Defendant’s general objection is to Dr. Porter’s methods. While the analysis is incomplete, for reasons stated below, Dr. Porter’s methods are sound, as far as they went. Defendant’s general objection to the declaration of Dawn Porter, Ph.D., is therefore overruled.

 

Defendant’s specific objections are to Dr. Porter’s conclusions, and thus go to the weight of her testimony—not admissibility. Defendant’s objections to the declaration of Dawn Porter, Ph.D., nos. 1-9 are therefore overruled.

 

            Defendant raises a general objection and 8 specific objections to the declaration of Johnnie McGee. Defendant’s general objection to the declaration of Johnnie McGee is overruled. Defendant’s specific objections to the declaration of Johnnie McGee, nos. 1-8, are sustained. McGee’s circumstances are too dissimilar from Plaintiff’s for the statements to be relevant.

 

            Defendant raises 27 objections to Plaintiff’s declaration. Defendant’s objections to Plaintiff’s declaration, nos. 1-11, 15-19, and 21-27, are overruled. Defendant’s objection to Plaintiff’s declaration, no. 12, is sustained. The statements interpret and/or misstate deposition testimony. Defendant’s objection to Plaintiff’s declaration, no. 13, is sustained. The statement is speculative. Defendant’s objection to Plaintiff’s declaration, no. 14, is sustained. The statement is an improper legal conclusion. Defendant’s objection no. 20, as to the statement in Plaintiff’s declaration, “I was singled out and treated differently because I am an African American”, is sustained. The statement is speculative and is an improper legal conclusion.

 

Legal standard.

“A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c(a).) The motion shall be granted if there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Id. § 437c(c).)

Similarly, “[a] party may move for summary adjudication as to one or more causes of action within an action…if the party contends…that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action…”  (Code Civ. Proc. § 437c(f)(1).)  “A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.”  (Id. §437c(f)(2).)

 

            Discrimination under FEHA can be proven by disparate treatment—i.e., treating similarly situated individuals differently in their employment because of a protected characteristic. (Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal. 4th 317, 355.) “In particular, 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.” (Guz, supra, 24 Cal.4th at p. 354.)

 

The initial burden is on the plaintiff. (Ibid.) “While the plaintiff's prima facie burden is ‘not onerous’ [citation], he must at least show ‘actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a [prohibited] discriminatory criterion.... [Citation].” (Id. at p. 355.)  Courts have described the plaintiff’s initial prima facie burden as minimal.  (St. Mary’s Honor Ctr. v.. Hicks (1993) 590 U.S. 502, 506.) “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 suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz, supra, 24 Cal.4th at p. 355.)

 

If the plaintiff meets the initial burden and “establishes a prima facie case, a presumption of discrimination arises. [Citations.]” (Guz, supra, 24 Cal.4th at p. 355.) “[T]he 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.]” (Id. at pp. 355-356.) “A legitimate, nondiscriminatory reason is one that is unrelated to prohibited bias and that, if true, would preclude a finding of discrimination. [Citation.] The employer’s evidence must be sufficient to allow the trier of fact to conclude that it is more likely than not that one or more legitimate, nondiscriminatory reasons were the sole basis for the adverse employment action.”  (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1158.)  “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. [Citations.]” (Guz, supra, 24 Cal.4th at p. 356.)

 

The third stage shifts the burden back to plaintiff.  If the employer articulates a legitimate and nondiscriminatory purpose for its action, “the 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.’ [Citations.]” (DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 553.) “In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias.” (Guz, supra, 24 Cal.4th at p. 356.) However, once an employer has provided a legitimate reason for the adverse employment action, the “ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff.” (Ibid.)

 

            “The employee’s ‘subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.’ [Citation.]”  (Featherstone, supra, 10 Cal.App.5th at p. 1159.)  “To show that an employer’s reason for termination is pretextual, an employee ‘“cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent.”’  [Citation.]  To meet his or her burden, 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,’”’ and hence infer ‘“the employer did not act for [the asserted] nondiscriminatory reasons.”’ [Citations.]”  (Ibid.)  “[A]n employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.”  (Guz, supra, 24 Cal.4th at p. 361.) 

 

Discussion

 

            Plaintiff can make a prima facie case of discrimination.

 

Defendant contends that Plaintiff cannot establish a discriminatory motive for not promoting Davis in 2018 because Plaintiff was subjected to the same promotional process as the other candidates for the position of Fire Captain and therefore Plaintiff cannot show discriminatory intent. Defendant admits that Plaintiff did not promote in the 2018 Captain’s Exam, but points out Plaintiff promoted to Captain in January of 2021 and continues in the position of Captain today.

 

Defendant argues Plaintiff cannot meet his burden of proving discriminatory motive based on disparate treatment because Plaintiff admitted in his deposition that he was not treated differently from other candidates in having his WA17 credit denied. (Defendant’s Ex. A [Plaintiff’s Depo., pgs. 97:22-98:12].) However, Defendant’s characterization of Plaintiff’s testimony is taken out of context. Indeed, Plaintiff testified that there were problems with candidates receiving credit for the EAPs they had completed. (Id. at pgs. 96:16-98:12.) But Plaintiff’s point was that this was why he was allowed to submit memoranda as proof of completion. (Ibid.) In context, Plaintiff was not admitting a lack of disparate treatment.

 

Defendant next offers the testimony of Assistant Chief Duvally. The parties agree that Duvally reviewed Plaintiff’s PRAP. In his deposition, Duvally denied treating Plaintiff’s PRAP differently than any other candidates based on Plaintiff’s race.  Defendant also offers the deposition of Assistant Chief Errett who testified that he was unaware of Plaintiff’s race at the time he scored Plaintiff’s PRAP.

 

Plaintiff responds by offering the statistical analysis of Dawn Porter, Ph.D. Dr. Porter assessed the relationships between an applicant’s race and the points that applicant was credited for WA #17. (Porter Decl., ¶ 4.) Dr. Porter’s analysis found there was almost no statistical likelihood that the one African American who supported his WA17 with memoranda and additional documentation would receive no points for WA17. (Id., ¶ 6.) More broadly, Dr. Porter’s analysis found that race played a role in whether a candidate was granted points for WA17. (Id., ¶ 16.)

 

            Plaintiff meets the minimal burden of a prima facie case.  He is a member of a protected class – African American – and was qualified for the position.  He had a reasonable expectation of being promoted but was denied promotion. Moreover, Plaintiff maintains, candidates outside the protected class with lesser qualifications were promoted.  Accordingly, the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for not promoting Davis in 2018. 

 

            Defendant can show a legitimate, nondiscriminatory reason for its action.

 

            The employer’s burden to articulate a legitimate nondiscriminatory reason is also a minimal burden.  (Board of Trustees of Keene State College v. Sweeney (1978) 439 U.S. 24, 25.)  Legitimate reasons are ones that are factually unrelated to prohibited bias.  (Guz, supra, 24 Cal.4th at p. 358.)

 

Here, Defendant offers a legitimate, nondiscriminatory reason for Plaintiff not obtaining points for WA17, and ultimately not being promoted to Captain in 2018. Specifically, Plaintiff’s PRAP included an amended 2017 PE that did not match the PE in his personnel file. Whereas Plaintiff’s official 2017 PE indicated he had only created one EAP, the 2017 PE that Plaintiff submitted with his PRAP indicated he had created seven EAPs. (Id., Ex. C [Davis PRAP, pg. 205].) The discrepancy between the documents in Plaintiff’s PRAP and Plaintiff’s personnel file were noted on Plaintiff’s rating sheet and Plaintiff was denied points for the additional EAPs. (Id. at pg. 204.) Assistant Chief Errett reviewed and scored Plaintiff’s PRAP, and Errett testified that he did not know Plaintiff and was unaware of Plaintiff’s race when he scored his PRAP. (Id., Ex. E [Errett Depo., pgs. 8:6-10:17, 66:23-25, 67:1-11, 69:15-20].)

 

Defendant does not dispute that the Department’s failure to award Plaintiff points for WA17 was in error. However, the inquiry is not whether Defendant erred in not awarding Plaintiff enough points on his 2018 PRAP—or even whether Defendant’s failure to do so was unjust. The inquiry is whether Defendant’s failure to award Plaintiff points was motivated by discrimination on the basis of Plaintiff’s race. Because the County has offered a legitimate and nondiscriminatory reason for its action, Plaintiff must show that the offered reason is pretextual.

 

Plaintiff fails to show that Defendant’s reasons are pretextual.

 

To show pretext, Plaintiff offers his own declaration along with the statistical analysis of Dr. Porter. In his declaration, Plaintiff states that after preparing his PRAP he took it to Battalion Chief Leuck who signed off on it and said Plaintiff needed to take his PRAP to Duvally for review. (Davis Decl., ¶ 9.) Plaintiff states he was concerned because he had heard from other African Americans that Duvally purposefully made things harder on firefighters of color. (Ibid.) Plaintiff attests that when he took his PRAP to Duvally for review, Duvally unreasonably and excessively reviewed his paperwork, denying Plaintiff credit for the seven EAPs and thus points for WA #17 despite Plaintiff having included Form 574.1FC and memoranda as verification. (Id., ¶¶ 15-17.) As stated by Plaintiff, Duvally insisted on additional documentation which is why Plaintiff ultimately submitted the amended 2018 PE that did not match his personnel file. (Id., ¶ 17.) Plaintiff goes on to state that Duvally smiled and spoke to him in a demeaning and condescending voice, which made Plaintiff feel like Duvally was belittling him because he is African American. (Ibid.)

 

Plaintiff argues Duvally’s actions should be imputed to Errett and the Department. Plaintiff’s speculations, however, are self-serving and unsubstantiated. Despite stating that Duvally had a reputation of making things hard on African Americans, Plaintiff does not offer a single similarly-situated firefighter to corroborate his allegations. Plaintiff only offers the declaration of a civilian firefighter who was under different circumstances and an entirely different chain of command. As noted in the section on evidentiary objections, the declaration is irrelevant and inadmissible. Plaintiff’s declaration therefore fails to establish pretext.  

 

Dr. Porter’s analysis fares no better. As noted above, Dr. Porter’s conclusions establish Plaintiff’s prima facie burden of showing disparate treatment in general. But Defendant offers a legitimate reason for Plaintiff not being promoted to Captain in 2018—specifically, his PRAP did not match his personnel file—and thus the “presumption of discrimination disappears” and the “ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff.” (Guz, supra, 24 Cal.4th at 356.) Dr. Porter’s analysis does not help Plaintiff meet his ultimate burden of establishing pretext.

 

Dr. Porter does not conclude that Plaintiff was treated differently from other, non-African American, candidates who submitted PRAPs that did not match their personnel files. In fact, Dr. Porter’s analysis does even address this issue. Defendant contends in its reply that this is because the one other candidate who was disallowed points due to a discrepancy in their paperwork was Caucasian, and that candidate received a harsher penalty than Plaintiff. Dr. Porter’s analysis is incomplete. It concludes that, in general, African American candidates are statistically less likely to be granted points for WA17. But it does not conclude—nor could it conclude—that the reason offered by Defendant for Plaintiff not receiving points is mere pretext. Dr. Porter’s analysis cannot conclude this because it does not compare Plaintiff to other candidates who submitted PRAPs with discrepancies in their paperwork.

 

“Data showing a small increase in probability of discrimination cannot by itself get a plaintiff over the more likely than not threshold; it must be coupled with other evidence, which does most of the work.” (Baylie v. Federal Reserve of Chicago (7th Cir. 2007) 476 F.3d 522, 524.) Courts must review statistical evidence to determine if there are other explanations for the result. (Hazelwood School District v. United States (1977) 433 U.S. 299, 307-308.)

 

Here, the likely reason Plaintiff was not promoted to Captain in 2018 was the loss of points because documents in his PRAP that did not match his personnel file. This may have been unfair to Plaintiff considering the other documents he submitted in support of his case.  It certainly seems a rigid and cumbersome process. But the issue is whether Plaintiff has made out a claim for discrimination as a matter of law. As a matter of law, Plaintiff has failed to offer admissible evidence showing that the reason proffered by the Department for not promoting him to Captain in 2018—i.e., that he submitted a PRAP that did not match his personnel file—was pretext for discrimination.

 

Because Plaintiff fails to establish a claim for discrimination, his second cause of action for not preventing discrimination also fails.

 

The elements of a cause of action for failure to prevent discrimination are that the employee was subjected to discrimination, that the employer failed to take all reasonable steps to prevent the discrimination, and that this caused the employee harm. (CACI 2527.)

 

 

Conclusion.

 

Defendant County of Los Angeles’s motion for summary judgment is GRANTED.