Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2008-00088749-CU-OE-CTL, Charles R. Hayes, Judge.
AARON, J.
I.
INTRODUCTION
Felipe Agosto filed a complaint against his employer, the County of San Diego (County), in which he alleged that the County discriminated against him on the basis of race and age (Gov. Code, § 12940 et seq.), and retaliated against him for complaining about the discrimination (ibid.). The County filed a motion for summary judgment. The trial court granted the County's motion and entered a final judgment in favor of the County.
Unless otherwise specified, all subsequent statutory references are to the Government Code.
On appeal, Agosto claims that the County is not entitled to judgment as a matter of law on either his direct employment discrimination claims or his retaliatory employment discrimination claim. We affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Agosto's complaint
In July 2008, Agosto filed a complaint against the County alleging three causes of action: racial discrimination, age discrimination, and retaliation. Agosto stated that he was a 52-year-old Hispanic male employee of the County. Agosto further stated that he had been working in the employment classification of "Engineering Technician III" for some period of time, and that he had been attempting to "get reclassified as a Construction Technician which would allow him a $20,000 pay increase." Agosto claimed that he was on the eligibility list to become a Construction Technician from approximately 2004 through 2006. In approximately February 2006, Agosto learned that the County planned to phase out the Construction Technician classification and replace it with a classification entitled "Registered Engineer."
More specifically, the complaint alleged that the County had discriminated against Agosto on the basis of "race, color, national origin and/or ancestry."
Agosto alleged that he thought that phasing out the Construction Technician classification would negatively affect his "opportunity for career advancement, " since it appeared that he did not meet the education requirements to become a Registered Engineer. Agosto asked his manager, Derek Gade, and the director of his department, John Snyder, what their plans were for promoting current employees who were classified as Engineer Technicians III. Agosto alleged that both men laughed at Agosto, and that Snyder said, "Sometimes life isn't fair."
Although Agosto did not specifically identify in his complaint what position Snyder holds, it is undisputed that Snyder is the Director of the County's Department of Public Works.
Agosto claimed that he sought to be reclassified as a Construction Technician pursuant to applicable civil service rules. Agosto alleged that various employees of the Department of Human Resources failed to produce written reports concerning his reclassification request. Agosto claimed that he had a hearing before the Civil Service Commission, and that the Civil Service Commission denied his reclassification request because "his projects did not meet the vague criteria of being sufficiently 'large and complex.' " Agosto further alleged that the Civil Service Commission admitted that there were no written guidelines for determining the size and complexity of a project. Agosto claimed that after the Civil Service Commission hearing, "in an attempt to justify the [Civil Service Commission's] conclusion, " two of his projects were reassigned on the ground that the projects were too large for him.
The complaint did not delineate which of these facts formed the basis of Agosto's claims.
B. The County's motion for summary judgment
In May 2009, the County filed a motion for summary judgment, or in the alternative, summary adjudication. In its notice of motion, the County asserted that Agosto's claims had no merit because the County had legitimate nondiscriminatory reasons for its actions. In its supporting brief, the County argued that Agosto lacked evidence sufficient to create a triable issue of fact as to whether he had suffered either discrimination or retaliation. The County explained that in 2006, Snyder decided to phase out the Construction Technician classification. The work that had previously been performed by Construction Technicians would thereafter be performed by individuals classified as Civil Engineers. The Civil Engineer classification had higher educational and certification requirements than did the Construction Technician classification. For example, a Civil Engineer was required to be a registered professional engineer. The County determined that eliminating the classification of Construction Technician allowed more flexibility in work assignments and better served the operational needs of the department.
The County moved for summary judgment on the additional ground that Agosto had failed to timely file his complaint, and that Agosto had failed to exhaust his judicial remedies in connection with the proceedings before the Civil Service Commission. We need not discuss these aspects of the County's motion in light of our affirmance of the summary judgment on other grounds. (See fn. 13, post.)
The County stated that Agosto did not have the qualifications for the Civil Engineer position, and that he could no longer be promoted to the Construction Technician classification in light of the phase out of that position. The County noted that Agosto sought to become reclassified as a Construction Technician through the County's civil service reclassification process. The County explained that the reclassification process is governed by civil service rules that afford an employee the opportunity to demonstrate that he or she is working outside of his or her current classification. The County stated that the Civil Service Commission had held a hearing on Agosto's reclassification request and had found that Agosto failed to demonstrate that he was working outside of his classification. The County noted that Agosto had not sought judicial review of the Civil Service Commission's decision, and argued that Agosto was therefore barred from relitigating the merits of his reclassification request in this action.
The County also maintained that Agosto lacked other evidence to support his claims, citing Agosto's responses to the County's interrogatories that asked him to detail the factual bases of his claims of discrimination and retaliation. Specifically, the County argued that Agosto did not have "any evidence to show that the legitimate reasons for the County's actions were a pretext for discrimination based upon race/national origin or age."
In his opposition to the motion, Agosto argued that he was not required to seek judicial review of the denial of his reclassification request in order to bring his claims of discrimination and retaliation in this action. Agosto also claimed that the County had failed to articulate legitimate reasons for various adverse employment actions, including its decision to phase out the Construction Technician classification, its failure to follow certain civil service rules in connection with Agosto's reclassification request, and its failure to follow departmental policies that governed his complaints to supervisors concerning discrimination. Agosto also claimed that he had received an August 9, 2007, letter of reprimand for which the County had offered no legitimate reason.
In its reply, the County argued that Agosto was raising his contentions as to the County's alleged failure to follow certain procedures with respect to Agosto's reclassification request and his complaints of discrimination for the first time in opposition to its motion. The County argued that Agosto had not raised his complaints as to the reclassification process at the Civil Service reclassification hearing, and that he had prevented any further inquiry into his complaints of discrimination by stating during a meeting that was held to discuss the complaints that he declined to " 'elaborate or explain, ' " his complaints and that he " 'did not want to discuss [the matter] further.' "
The County also argued that Agosto had never previously asserted that he had received a letter of reprimand. The County maintained that the only evidence as to the letter in the record was Agosto's declaration that he had received the letter. This declaration was in conflict with Agosto's deposition testimony, in which he stated that he had not received any discipline within the past five years.
C. The trial court's ruling and Agosto's appeal
In July 2009, the trial court issued a tentative ruling granting summary judgment in favor of the County. The court concluded that the County "had legitimate nondiscriminatory reasons for not promoting [Agosto] or reclassifying [his] job position[]." In addition, the court concluded that "there is insufficient evidence to support [Agosto's] discrimination and retaliation claims."
The trial court also reached a number of conclusions that we need not review in resolving this appeal, including that Agosto failed to exhaust his administrative remedies by timely filing his complaints of discrimination with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing, and that Agosto failed to exhaust his judicial remedies in connection with the proceedings before the Civil Service Commission. (See fn. 13, post.)
After holding a hearing, the trial court confirmed its tentative ruling and entered a judgment in favor of the County. Agosto timely appeals.
III.
DISCUSSION
The trial court properly granted the County's motion for summary judgment
Agosto claims that the trial court erred in granting the County's motion for summary judgment.
A. Governing law
1. A trial court's determination of a defendant's summary judgment motion
A "motion for summary judgment shall be granted if all the papers submitted show 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).) "A cause of action has no merit if... [¶] [o]ne or more of the elements of the cause of action cannot be separately established.... " (Code Civ. Proc., § 437c, subd. (o)(1).) "A defendant... has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established.... Once the defendant... has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to that cause of action.... The plaintiff... may not rely upon the mere allegations... of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action...." (Code Civ. Proc., § 437c, subd. (p)(2).)
"In ruling on [a] motion [for summary judgment], the court must 'consider all of the evidence' and 'all' of the 'inferences' reasonably drawn therefrom [citations], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 857.) A trial court may not grant a motion for summary judgment that is based on an inference from the evidence that is contradicted by other inferences or evidence. (Id. at p. 856.)
2. Applicable employment discrimination law
a. Relevant statutory law
Section 12940, subdivision (a) generally makes it illegal "[f]or an employer, because of the race... [or] age... of any person... to discharge the person from employment... or to discriminate against the person in compensation or in terms, conditions, or privileges of employment." Section 12940, subdivision (h) prohibits an employer from "discriminat[ing] against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part."
b. The burden-shifting framework for resolving claims of employment discrimination under California law
In Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317 (Guz), the California Supreme Court explained that California courts have adopted the burden shifting framework first articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas) for resolving disparate treatment employment discrimination claims under California law:
"At trial, the McDonnell Douglas test places on the plaintiff the initial burden to establish a prima facie case of discrimination.... [¶] The specific elements of a prima facie case may vary depending on the particular facts. [Citations.] 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. [Citations.] [Fn. omitted.] [¶] If, at trial, the plaintiff establishes a prima facie case, a presumption of discrimination arises. [Citation.]...
"Accordingly, at 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. [Citations.] 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. [Citations.] The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff. [Citations.]" (Guz, supra, 24 Cal.4th at pp. 355-356.)
In Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 309 (Sandell), this court summarized the manner by which a trial court is to apply the McDonnell Douglas framework in the context of summary judgment proceedings:
" ' "[W]e must keep in mind that the McDonnell Douglas test was originally developed for use at trial [citation], not in summary judgment proceedings. 'In such pretrial [motion] proceedings, the trial court will be called upon to decide if the plaintiff has met his or her burden of establishing a prima facie case of unlawful discrimination. If the employer presents admissible evidence either that one or more of plaintiff's prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing. In short, by applying McDonnell Douglas's shifting burdens of production in the context of a motion for summary judgment, "the judge [will] determine whether the litigants have created an issue of fact to be decided by the jury." '... Thus, ' "[a]lthough the burden of proof in a [discrimination] action claiming an unjustifiable [termination] ultimately rests with the plaintiff..., in the case of a motion for summary judgment or summary issue adjudication, the burden rests with the moving party to negate the plaintiff's right to prevail on a particular issue.... In other words, the burden is reversed in the case of a summary issue adjudication or summary judgment motion...." ' " [Citation.]' [Citation.]
" ' "Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. These include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case...." [Citation.]' [Citation.]" (Italics omitted.)
3. The standard of review
On appeal, this court "independently review[s] a motion for summary judgment using the same legal standards that governed the trial court's determination of the motion." (Catholic Healthcare West v. California Ins. Guarantee Assn. (2009) 178 Cal.App.4th 15, 23.) More specifically, "We examine the pleadings to ascertain the elements of the plaintiff's claim; the moving papers to determine whether the defendant has established facts justifying judgment in its favor; and, if the defendant did meet this burden, plaintiff's opposition to decide whether he or she has demonstrated the existence of a triable issue of material fact. [Citations.]" (Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 805-806.)
B. Application
1. The trial court did not err in granting judgment as a matter of law in favor of the County on Agosto's discrimination claims
Agosto claims that the trial court erred in granting judgment as a matter of law in favor of the County on his race and age discrimination claims (§ 12940 et seq.). Specifically, Agosto contends that the County failed to articulate legitimate reasons for various alleged adverse employment actions that he suffered. In addition, Agosto maintains that he presented evidence that was sufficient to allow a fact finder to reasonably infer that the County discriminated against him in taking these adverse employment actions.
a. The record contains evidence of a nondiscriminatory reason for each alleged adverse employment action that Agosto cites on appeal
In his brief on appeal, Agosto claims that the County failed to present nondiscriminatory reasons for three allegedly adverse employment actions taken by the County.
We assume, for purposes of our analysis, that each of the actions that Agosto cites constituted an adverse employment action.
Agosto claims that the County failed to present evidence of a legitimate reason for the 2006 phase out of the Construction Technician classification. We disagree. In its motion for summary judgment, the County stated, "The County determined that eliminating Construction Technicians and focusing on recruiting more Civil Engineers allowed more flexibility in work assignments to more effectively support the operational needs of the department." With its motion for summary judgment, the County offered Synder's declaration, in which Snyder stated that he was responsible for making the decision to phase out the Construction Technician classification. Synder also stated that he had sent Agosto a letter that provided "[t]he essential reasons for [Snyder's] decision to phase out the Construction Technician classification...." The County lodged Snyder's April 14, 2006 letter to Agosto, which states in relevant part:
"This is in response to your letter dated March 28, 2006, regarding the future use of the Construction Technician classification. As you are aware, we decided to shift our recruitment efforts to fill Construction Technician vacancies with Civil Engineers. Utilizing the Civil Engineer classification instead of the Construction Technician increases flexibility in work assignments and more effectively supports the operational needs of this Department. Additionally, it mitigates the issue that these two positions are paid the same salary, but Civil Engineer requires the incumbent to be a registered Professional Engineer."
Agosto also claims that the County "failed to offer any reason" for the failure of the County's Director of Human Resources, Carlos Arauz, to cause a work assignment study to be performed and to issue a written report and findings in connection with Agosto's request to be reclassified. The County's failure to specifically address the lack of a formal work assignment study and written report of findings in its motion for summary judgment is understandable, since Agosto never referred to such a failure in either his complaint or in interrogatories in which the County requested that he describe each action that he contended was an act of discrimination. In any event, the record contains an explanation in the form of an October 20, 2006 memorandum from the Department of Human Resources to the Civil Service Commission. The document states in relevant part:
In his complaint, Agosto did refer to alleged failures of other members of the Department of Human Resources in processing his reclassification request. However, Agosto did not mention Arauz's alleged failure to direct that a work assignment study be performed or to issue a written report and findings thereon.
"Prior to the submission of the request by Mr. Agosto..., the Service Employees International Union, Local 2028 (SEIU 2028) requested the Department of Human Resources (DHR) to review the feasibility of combining technician classifications within the LUEG Group to a new Technician class series. Based on this request, DHR began a complete classification study of the Air Pollution Control Aide, Air Pollution Test Tech., Air Pollution Control Eng. Tech., Env. Health Tech., and Construction Technician classifications[, in] addition to the Env. Health Spec., Land Use Technician, Engineer Technician, and Civil Engineer classification series. The outcome of this [study] could affect up to 360 positions. [¶] The study is currently in progress and it would be unfair and inappropriate for DHR to proceed with the study of Mr. Agosto['s]... position[] when [it] could affect a number of employees. The study of the position[] encumbered by Mr. Agosto... cannot be done in isolation and must be incorporated into the comprehensive study requested by SEIU 2028."
In addition to the memorandum, the record also contains an October 5, 2006 letter from Arauz to Agosto in which Arauz provided the same explanation for the County's actions. The letter also informed Agosto that he could appeal Arauz's decision to the Civil Service Commission, thereby making it clear that Agosto would have to seek relief with the Civil Service Commission if he intended to continue to seek reclassification. Both the October 20 memorandum and the October 5 letter articulate a legitimate nondiscriminatory reason for the County's decision not to cause a work assignment study to be performed or to issue a written report and findings in connection with Agosto's request to be reclassified.
Finally, Agosto claims that the County failed to offer an explanation for its failure to investigate Agosto's complaints of discrimination. Specifically, Agosto claims that in January 2007, he told his supervisor, Glen Gundert, that he believed he was being subjected to "discrimination" and that in March 2007 he attended a meeting with Gade, Gundert, and Patty Cabello during which Agosto indicated that Gundert's action in reassigning a project to another worker was a "sign of discrimination and retaliation." Agosto claims that the County failed to explain why it had not followed a departmental policy that requires staff to inform the office of the Director of Public Works of employee misconduct, so as to allow the director to determine whether to order an internal investigation. As was true with respect to Agosto's complaints concerning the reclassification process, the County's failure to specifically address its alleged failure to investigate complaints of discrimination in its opposition is understandable, since Agosto never referred to such a failure in either his complaint or in interrogatories in which the County requested that he describe each action that he contended was an act of discrimination. In any event, as the County pointed out in its reply brief in support of its motion for summary judgment, the record contains a memorandum memorializing the March 2007 meeting, signed by Agosto, stating that Agosto "declined to elaborate or explain" his claims of discrimination. The memorandum also states, "[Agosto] did not want to discuss [the matter] further and said he would not make this comment [concerning discrimination] again." The County explained that it did not pursue the investigation further, in light of Agosto's comments.
Agosto also suggests that the County failed to provide a reason for issuing him a letter of reprimand. For reasons explained in part III.C.2., post, we conclude the trial court was free to disregard Agosto's declaration attesting to his having received such a letter in light of Agosto's deposition testimony in which he stated that he had not received any discipline within the last five years. Since Agosto failed to lodge the letter itself in the record, and the only evidence of the letter's existence is Agosto's declaration, Agosto is not entitled to reversal on this ground.
It appears from the record that Cabello is an employee of the County's Department of Human Resources. In his complaint, Agosto spelled her name, "Cabellos." However, in a memorandum memorializing the March 2007 meeting, her name is spelled "Cabello."
Specifically, the policy states: "The Department will review all complaints alleging misconduct by an employee in the performance of official duties. The staff person contacted by a complainant shall inform the Director's Office of Public Works." The policy also states, "The Director shall determine which situations should be resolved through a departmental internal investigation."
b. Agosto failed to present substantial evidence that the County undertook any adverse employment action against him for a discriminatory reason
Agosto contends that he presented substantial evidence that the County's reasons for each of the adverse employment actions that he claims to have suffered were pretextual. With respect to the County's decision to phase out the Construction Technician classification, Agosto cites Synder's actions at the initial meeting in February 2006, during which Synder announced the phase out. Agosto asserted in a declaration that Synder was unable to provide a rationale for the phase out and, when asked what would be done to accommodate those individuals who at the time were classified as Engineering Tech IIIs, Snyder laughed and said, " '[L]ife [is] tough.' " Agosto also claims that he presented evidence that it was not until approximately 60 days later, in April 2006, that Snyder stated that the phase out was based on a desire to fill the positions with Civil Engineers. In addition, Agosto argues that the fact that the County subsequently hired an individual named Monty Parrah as an "Assistant Engineer" constitutes evidence that Snyder's rationale for the phase out was pretextual, since Parrah did not hold an engineering license. We are not persuaded.
As an initial matter, with respect to the allegation that Snyder laughed in response to an inquiry as to what the County's intentions were with respect to those presently classified as Construction Technician, although such a response may be insensitive, it is of little probative value. Likewise, the comment that " 'life [is] tough, ' " although also possibly insensitive, reflects the reality that there is no evidence that anyone in that position had a legal entitlement to the County's maintaining the Construction Technician classification. We also see little or no probative evidence of pretext in the alleged "60[-day]" delay in failing to provide an explanation. The record indicates that Agosto wrote to Snyder on March 28, 2006, seeking an explanation for the phase out. In his March 28 letter to Snyder, Agosto wrote, "As you explained, you are looking for engineers with a higher education background." (Italics added.) Thus, the record indicates that Synder had already provided his explanation for the phase out at the time Agosto wrote to him in March. In addition, upon receiving Agosto's letter, Synder wrote back to Agosto just two weeks later and again explained that hiring civil engineers would "increase[] flexibility in work assignments and more effectively support[] the operational needs of this Department." (See pt. III.B.1.a., ante.) The "timing" of the explanation thus does not constitute evidence of pretext.
This case is clearly distinguishable from Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, which Agosto cites for the proposition that one may infer pretext from the timing of an adverse employment action. In Flait, an employee was terminated shortly after the employee told a superior to stop sexually harassing a subordinate. (Id. at pp. 479-480.)In this case, Agosto has presented no evidence that the timing of the alleged adverse employment action—the phase out itself—demonstrates pretext.
With respect to the hiring of Parrah as an Assistant Engineer, the record contains undisputed evidence that the County hires individuals into the Assistant Engineers classification only when there is an insufficient number of civil engineers available to hire. In addition, it is undisputed that the Assistant Engineer position for which Parrah was hired requires a bachelor's degree or an "Engineer-in-Training" certification from the State of California—qualifications that Agosto does not possess. Under these circumstances, the County's hiring Parrah does not constitute evidence that the County's stated reason for phasing out the Construction Technician classification—the desire to move to a more highly qualified workforce by relying on civil engineers who are registered professional engineers—was pretextual. In sum, we reject Agosto's contention that he has presented substantial evidence of " 'weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions' " in the County's reasons for phasing out the Construction Technician classification such that a reasonable fact finder could find the reasons to be a pretext for discrimination. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005, citation omitted.)
With respect to the County's actions in connection with Agosto's reclassification request, Agosto suggests that the County's decision not to conduct a work assignment study was illegitimate because the County had a "mandatory obligation" to direct that such a study be performed and to issue written findings thereon under the applicable civil service rules. Even assuming that Agosto is correct that the County had no flexibility under the applicable civil service rules to refuse to conduct a study on the ground that a related study was already being conducted, a reason is legitimate for purposes of resolving discrimination claims "if it is 'facially unrelated to prohibited bias, and which if true, would thus preclude a finding of discrimination.' [Citation.]" (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 520.) Thus, the allegation that performing a work assignment study and making findings thereon is mandatory does not constitute evidence of pretext.
Further, Agosto did not present any evidence that the County was not in fact conducting a related work study, or that its stated reason for refusing to conduct the study was a pretext for discrimination. Specifically, we reject Agosto's argument that Arauz's October 5 letter constitutes evidence of pretext. Despite Agosto's hyperbolic assertion that "Arauz lied" to him in stating that Agosto could appeal Arauz's decision to the Civil Service Commission, it is undisputed that Agosto was in fact afforded a classification review hearing before the Civil Service Commission. We also reject Agosto's argument that the County's failure to delay his civil service hearing until the completion of the related work study constitutes evidence of pretext, in light of the fact that Agosto does not claim that he objected on this ground in the reclassification proceedings.
Agosto claims that Arauz's statement was false because there is no authority within the civil service rules that would permit him to appeal Arauz's decision to refuse to conduct a work study to the Civil Service Commission. However, the gist of Arauz's letter was simply that Agosto would have to seek a hearing with the Civil Service Commission if he intended to continue to seek reclassification.
This case is also distinguishable from Spulak v. K Mart Corp. (10th Cir. 1990) 894 F.2d 1150, 1154, disapproved on another ground in Hazen Paper Co. v. Biggins (1993) 507 U.S. 604, 615-616, which Agosto cites for the proposition that pretext may be inferred from an employer's failure to follow its customary practices and procedures. In Spulak, an employee presented evidence that his constructive discharge was based on his violations of company policies, which, he claimed, had been "selectively enforced against him." (Id. at p. 1155.)In this case, in contrast, Agosto has presented no evidence that the County singled him out for disparate treatment by the manner in which it processed his reclassification request.
Finally, Agosto failed to present any evidence that the County failed to act reasonably in determining that Agosto did not want to pursue the complaints of discrimination that he raised to his supervisors in 2007. Thus, whether we consider the evidence that Agosto presented individually or cumulatively (see Horsford v. Board of Trustees of California State University (2005)132 Cal.App.4th 359, 374), we conclude that Agosto failed to present evidence sufficient to create a triable issue of fact as to whether the County discriminated against him because of race or age.
Agosto also cites the alleged August 9, 2007 letter of reprimand as evidence that the County discriminated against him. For reasons explained in part III.B.2., post, Agosto is not entitled to reversal on this basis.
c. Conclusion
We conclude both that the record contains evidence of a legitimate reason for each alleged adverse employment action that Agosto cites on appeal, and that Agosto failed to carry his burden of presenting substantial evidence that the County's stated nondiscriminatory reasons for its actions were pretextual or discriminatory. Accordingly, we conclude that the trial court did not err in granting the County judgment as a matter of law on Agosto's discrimination claims. (See Sandell, supra, 188 Cal.App.4th at p. 309.)
In light of our conclusion, we need not consider the County's arguments that the trial court's judgment should be affirmed on the ground that Agosto failed to exhaust his administrative and judicial remedies.
2. The trial court did not err in granting judgment as a matter of law in favor of the County on Agosto's retaliation claim
Agosto claims that the trial court erred in granting judgment as a matter of law in favor of the County on his retaliation claim (§ 12940). Specifically, Agosto argues that he "raised material questions of fact as to whether Snyder's August 9, 2007 letter of reprimand was an act of retaliation...." The August 9, 2007 letter of reprimand is the only alleged act of retaliation that Agosto cites in his opening brief on appeal in support of reversal on this issue.
In his reply brief, Agosto contends, "In its Respondent's Brief, the County completely ignores Agosto's Declaration stating that he contended that the reassignment of Project L14865 from Agosto to Chad Sweet, a non-Mexican Caucasian, was discrimination and retaliation...." (Italics omitted.) Agosto made no argument in his opening brief on appeal that the project reassignment constituted retaliation, and offers no reason for making such a claim for the first time in his reply brief. Thus, the County cannot be faulted for failing to address Agosto's argument in its brief, and we decline to consider it, as well. (See Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10, citations omitted [" ' "points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before" ' "].)
a. Factual and procedural history
In opposing the County's motion for summary judgment in the trial court, Agosto asserted that he received a letter of reprimand from Snyder dated August 9, 2007. The only evidence of the letter in the record is Agosto's own declaration in which he states that following his complaints of discrimination to Gade, Gundert, and Cabello in the spring of 2007, "I received a letter of reprimand from Snyder dated August 9, 2007."
In its reply brief in support of its motion for summary judgment, the County noted that Agosto had not referred to a letter of reprimand in either his complaint or in response to the County's special interrogatory that asked Agosto to list all of the facts upon which he based his retaliation claim. The County also observed that Agosto did not lodge the letter with his opposition. In addition, the County stated that when Agosto was asked at his deposition whether he had "received any discipline in the last... five years, " Agosto responded, "No." The County argued, "A party cannot rely on a declaration that is contrary to his deposition testimony."
In its order granting summary judgment, the trial court stated, "There is insufficient evidence to support [Agosto's]... retaliation claim[]."
b. Governing law
To establish a prima facie case of retaliation, a plaintiff must show that he engaged in a "protected activity, " that the employer subjected him to an adverse employment action, and that a causal link existed between the protected activity and the employer's action. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) "A declaration that is inconsistent with previous deposition testimony may be disregarded for the purposes of a motion for summary judgment." (Princess Cruise Lines, Ltd. v. Superior Court (2009) 179 Cal.App.4th 36, 40.)
c. Application
Agosto's declaration stating that he "received a letter of reprimand from Snyder dated August 9, 2007" is in conflict with his April 2009 deposition in which he indicated that he had not received any discipline in the last five years. Thus, the trial court was free to disregard the declaration. (Princess Cruise Lines, Ltd. v. Superior Court, supra, 179 Cal.App.4th at p. 40.) The declaration is the only evidence of retaliation that Agosto relies on in his opening brief in support of reversal. Accordingly, we conclude that the trial court did not err in finding that Agosto had failed to present evidence sufficient to support his retaliation claim.
IV.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P. J., McDONALD, J.