Judge: H. Jay Ford, III, Case: 19SMCV01515, Date: 2022-09-22 Tentative Ruling

Case Number: 19SMCV01515    Hearing Date: September 22, 2022    Dept: O

  Case Name:  Garcia v. UCLA, The Regents of the University of California, et al.

SUBJECT:                MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Defendant The Regents of the University of California, erroneously sued as UCLA

RESP. PARTY:         Plaintiff Rocio Garcia

TENTATIVE RULING

            Defendant The Regents of the University of California’s Motion for Summary Judgment is GRANTED.

            Plaintiff alleges four causes of action for discrimination based on (1) race; (2) national origin; (3) sex; and (4) age.  Plaintiff alleges UCLA failed to hire her for any of the 23 positions to which she applied because of her race, national origin, sex and age.  Plaintiff alleges her Filipino coworkers at Sodexo who applied to UCLA were hired.  Plaintiff alleges UCLA’s hiring agent told her that she was not hired, because her supervisor at Sodexo, Norma De Jesus, told them not to hire her.  Plaintiff alleges UCLA’s agent agreed with her that De Jesus only told him not to hire her because she is not a Filipino male. 

I.  Applicable Law to Summary Judgment of Discrimination Claims

            “At trial, the McDonnell Douglas test places on the plaintiff the initial burden to establish a prima facie case of discrimination…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.  If, at trial, the plaintiff establishes a prima facie case, a presumption of discrimination arises.  This presumption, though rebuttable, is legally mandatory.”  Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354–56. 

            The burden then “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.  If the employer sustains this burden, the presumption of discrimination disappears”  Id. 

            Where a defendant employer moves for summary judgment, the initial burden rests with the employer to show that no unlawful discrimination occurred.  See Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 354-355; see Jones v. R.J. Donovan Correctional Facility (2007) 152 Cal.App.4th 1367, 1379.  “The burdens and order of proof therefore shift under the McDonnell Douglas test when an employer defendant seeks summary judgment.  An employer defendant may meet its initial burden on summary judgment, and require the employee plaintiff to present evidence establishing a triable issue of material fact, by presenting evidence that either negates an element of the employee's prima facie case, or establishes a legitimate nondiscriminatory reason for taking the adverse employment action against the employee.”  Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 966.

III.  Defendant UCLA satisfies its burden as an employer moving for summary judgment of a discrimination claim

            “An employer defendant may meet its initial burden on summary judgment, and require the employee plaintiff to present evidence establishing a triable issue of material fact, by presenting evidence that either negates an element of the employee's prima facie case, or establishes a legitimate nondiscriminatory reason for taking the adverse employment action against the employee.”  Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 966.

            Defendant UCLA satisfies its burden by negating an element of Plaintiff’s prima facie case of discrimination, as alleged in the TAC.  Plaintiff’s discrimination claims are based on her allegation that UCLA hired eight of her Sodexo colleagues who were Filipino males under the age of 40 were hired instead of her.  See Defendant’s SSUMF No. 14.  Defendant UCLA establishes that persons other than Filipino males were hired for positions that were available when Plaintiff applied.  See Defendants’ SSUMF Nos. 18-19.  Defendant also establishes that of the 23 positions for which Plaintiff applied, only one of the positions was filled with a Filipino male.  Id. at No. 19. 

            In addition, UCLA rebuts Plaintiff’s allegation that UCLA employee Gerardo Gutierrez told her UCLA did not hire her, because Norma De Jesus told him not to due to her race, sex, national origin or age.  Plaintiff admitted during deposition that she did not know if De Jesus told Gutierrez not to hire her.  See Defendant’s SSUMF No. 16. 

            Defendant also satisfies its burden on summary judgment by providing a legitimate, nondiscriminatory reason for not hiring Plaintiff.  Defendant establishes that statistically, it is highly unlikely that an applicant will get hired due to the number of applicants for available positions.  See Defendant’s SSUMF No. 21 (328,00 applications for about 1800 openings). 

Defendant establishes that of the 23 positions applied for by Plaintiff, Plaintiff withdrew her application for 6 of them.  See Defendant’s SSUMF No. 22.  Defendant establishes that Plaintiff admitted she was not qualified for 4 of the 23 positions.  See Defendant’s SSUMF No. 23.  Thus, Plaintiff was not hired for 10 of the 23 positions for legitimate non-discriminatory reasons. 

Defendant establishes that Plaintiff interviewed poorly in 2 out of 3 of her job interviews.  Defendant establishes that during on interview, Plaintiff disclosed that she was terminated from her position at the US Post Office.  See Defendant’s SSUMF No. 30.  Defendant establishes that Plaintiff did not disclose this fact on her job application.  Id.  The interviewer found she also lacked a team player attitude, overemphasized her management experience and provided extraneous, irrelevant information.  Id. at No. 31. 

Defendant establishes that Plaintiff’s second interview also revealed her unsuitability for the positions she was seeking.  Plaintiff indicated that obtaining a full time position with benefits was a priority for her, but the positions for which she was interviewing were either not a full time position or a limited term job.  Id. at No. 28. 

As to the third interviewer, Martin Cesar, UCLA presents an email from Cesar to DiMirez explaining that he “did not move forward with [Plaintiff] based on feedback from her current manager.”  Id. at No. 34; Ex. 2, Dec. of K. DiMirez, Ex. B.  UCLA relies entirely on this email to establish that Cesar had a legitimate, nondiscriminatory reason for not hiring Plaintiff.  See Defendant’s SSUMF No. 34; Defendant’s Compendium of Evidence, Ex. 2, Dec. of K. DiMirez, Ex. B.  The email does not corroborate Plaintiff’s allegation that Cesar did not hire her based her race, national origin, age or gender. 

Defendant UCLA satisfies its burden on summary judgment by negating Plaintiff’s allegations that (1) UCLA hired only Filipino males who were competing with her for the same position and (2) UCLA did not hire her because De Jesus told them not to due to her race, national origin, age or gender.  Defendant UCLA also presents legitimate, nondiscriminatory reasons for not hiring her.  The burden therefore shifts to Plaintiff to present facts indicating that these reasons are pretextual or raising a triable issue of fact as to a factual element of her discrimination claim.

III.  Plaintiff fails to present evidence that the nondiscriminatory reasons were pretextual or that triable issues of fact remain as to the facts negated by Defendant

            “To avoid summary judgment on the second of these two grounds [legitimate nondiscriminatory reason for adverse action], an employee claiming discrimination must offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.”  Swanson, supra, 232 Cal.App.4th at 966.

            “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.  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.  The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff.”  Guz, supra, 24 Cal.4^th at 354-355. 

“[T]he employee must produce substantial responsive evidence that the employer’s showing was untrue or pretextual thereby raising at least an inference of discrimination.  See Hersant v. Ca. Dept. of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.  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 that the employer did not act for the asserted non-discriminatory reasons."  See Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807. 

            In response to Defendant’s evidence (1) negating the factual predicates of Plaintiff’s discrimination claim and (2) establishing a legitimate non-discriminatory reason, Plaintiff submits (1) unauthenticated exhibits, none of which address the factual predicates of Plaintiff’s claims and (2) her declaration.  Plaintiff’s exhibits are not authenticated and inadmissible.  The exhibits also do not address whether UCLA’s legitimate, nondiscriminatory reasons were pretextual, nor do they raise an issue of fact as to whether Defendant only hired Filipino males. 

            Plaintiff’s declaration also fails to raise a triable issue of fact.  Plaintiff testifies under penalty of perjury that Martin Cesar interviewed her and verbally hired her.  See Opposition, Plaintiff’s Declaration, ¶3.  Plaintiff testifies that Martin Cesar told Plaintiff that Gutierrez told him not to hire her.  Id. at ¶4.  Plaintiff testifies that Gutierrez admitted that Norma De Jesus told him not to hire her.  Id.  Plaintiff does not testify that Gutierrez ever admitted that De Jesus told him not to hire her because of her age, race, national origin or gender.  The mere fact that UCLA chose not to hire her based on her supervisor’s recommendation is not evidence of discrimination.  In fact, unless UCLA knew De Jesus’s negative feedback was due to Plaintiff’s race, etc., a negative reference from a current or former employer would ordinarily be a legitimate, nondiscriminatory reason not to hire. 

            Plaintiff fails to raise a triable issue of fact.  Defendant’s Motion for Summary Judgment is GRANTED.