Opinion
C041183.
10-30-2003
ROSS SHADE, Plaintiff and Appellant, v. DEPARTMENT OF FINANCIAL INSTITUTIONS, Defendant and Respondent.
At the age of 73, plaintiff Ross Shade unsuccessfully sought a position as a financial institutions examiner with the Department of Financial Institutions. He appeals from the judgment in his age discrimination case after the trial court granted defendants motion for summary judgment. Shade contends it was improper to use an oral interview as the examination, the questions were not directed at determining the applicants qualifications, and the emphasis on recent experience showed ageism. We find that Shade has failed to show a triable issue of fact as to whether age discrimination occurred and affirm the judgment.
BACKGROUND
In June 2000, Shade applied for the position of financial institutions examiner with the Department of Financial Institutions (DFI). DFI responded that the written examination for the position had been waived and each applicants score would be based solely on a qualifications appraisal interview. Shades interview was scheduled for June 27, 2000.
The interview was conducted by Robbin Kleinsorge of the State Personnel Board and Jim Brodie, the Deputy Commissioner of Financial Institutions for Northern California. Marilyn Marcus, a new personnel officer, was present for observation. At the beginning of the interview, Shade expressed concern that he had not been provided opportunities because of his age. He wanted to be "provided the same thing as everybody else . . . ." When he told the interviewers he had a B.S., M.B.A., and J.D. degrees, as well as a C.P.A. certificate, Kleinsorge told him those were not all necessary and the examination was based on his competitiveness with other candidates.
In response to the question about what he had been doing, Shade said he had taken a real estate appraisal class, but did not want to sell houses. The course was self-study. He had helped with a start-up telephone company, preparing offering circulars and financial statements. He spent a day reading "the GAP report." He was not actively doing accounting work; he did not want to do that, he wanted to do auditing work. Shade explained he never passed the bar exam; he did not try to become an attorney. He was a C.P.A. for 36 years, but let the certificate expire in 1990. Within the five years before his retirement he took several continuing education courses.
Shade said he did not need to take computer classes as he had been playing with computers ever since the personal computer was introduced. He had a computer on his desk before his younger partners did. He typed and used Access software, but he did not use Quicken as he thought it was a terrible program. Kleinsorge then asked Shade the four examination questions. The first was: "You are part of an examination team, assigned to examine the books and records of a bank or credit union. The examiner in charge asks you to review a document and gives you specific instructions on what to look for. In your review, you notice something that you dont think is correct; however, this item was not included in the instructions given of you of what to look for. What would you do, and why?"
Shade responded that reminded him of a situation when he was helping with an inventory and noticed the plant had burned down. He wondered if anyone would have told him. He said if he found something he would note it and question it. When prompted for an additional answer he said he would ask the purpose of the examination and why he was looking at the particular document.
Kleinsorge read the question again. Shade responded he would ask the person who assigned that to him whether it was correct and if something should be done. Further, his law degree made him better qualified to review documents.
The second question was: "You are an examiner assigned to review a specific area of the banks operation. Upon finishing your examination of that area, you are ready to review and discuss with the manager of that department some deficiencies that you found. After discussing a particular deficiency, the manager says to you, `Ive been in banking for over 30 years and well-respected in the industry. He or she says that you are too new to know what you are talking about. How would you handle that situation?"
Shade answered he would explain he was there simply to point out deficiencies and if the managers response was that he would not cooperate, Shade would note that in his report. He would not get angry and he could not think of anything else he would do.
Question three was: "What knowledge and skills do you bring to the position of Financial Institutions Examiner? Give some examples of how you have applied your knowledge and skills, and tell us how they relate to the position."
Shade had participated in audits of savings and loans and helped write notes to the financial statements. He had even done cash counts. He explained that in reviewing home files, you have to determine what is the substance and only experience allows you to do that.[] He knew the meaning of most phrases in legal documents. He had learned more in his real estate course. The final question was: "You are part of a team conducting an examination of a credit union. You ask one of the credit union staff for some records that you feel are necessary to perform and complete your examination assignment. The credit union staff member refuses to give you the records. What do you do?"
In response to a request for admissions, Shade admitted the transcript of the interview was correct to the best of his recollection. He later suggested his dyslexia affected his speech and when he said "loan files" someone might think he said "home files."
Shade responded, "Im part of a team. Im not in charge of the team. I report to whoever is in charge of the team and ask them to solve the problem for me." When asked whether he would do anything else, Shade said there were probably other things he should be doing besides that particular item. Kleinsorge read the question again. Shade said he would not go to that persons superior. He would let someone else do that because he was not in charge of the team.
Brodie was not sure how Shade used the term audit and explained they conducted examinations; they did not do audits like a C.P.A. Kleinsorge explained they were running three panels, interviewing 80 candidates. She had some concern about Shades continuing education since he had been out of the field and would be competing against a lot of students coming right out of college. Shade offered one of his ex-partners as a reference. Kleinsorge said that would be more appropriate for the hiring interview. This portion was based strictly on how he answered the questions.
Shade was given a score of 70 on the examination. This was the lowest passable score. He did not place in the top three ranks and was not hired.
Representing himself, Shade filed suit against DFI for age discrimination. His second amended complaint alleged he met the experience and educational requirements for a financial institutions examiner. He was a member of a protected class as he was over 40. DFI considered his age in denying him employment and attempted to cover up the discrimination by relying on subterfuge. Those hired for the position were under the age of 40.
DFI moved for summary judgment. DFI contended Shade had not established a prima facie case of age discrimination because those who made the actual hiring decision, after interviewing only those in the top three ranks, did not know his age. Assuming Shade made a prima facie case, DFI provided evidence of a nondiscriminatory reason for its hiring decision. The decision was based on an evaluation of answers to four examination questions using objective criteria of critical class requirements.
In support of its motion, DFI submitted the declaration of Lynette Myhre, a former training officer at DFI. She stated she collected and reviewed questions for the examination to determine if they provided a sense of the applicants knowledge, abilities, and special personal characteristics. She provided a copy of the questions with good and poor responses and the critical class requirements for the position of financial institutions examiner.
In her declaration, Kleinsorge explained the examination process. She indicated Shade received a score of 70 because his answers lacked depth of knowledge and analysis of the problems presented, especially when compared to the other candidates. For example, in response to question No. four about the credit union staff member who refused to give certain records, Shades responded that he would let someone else handle the problem as he was only a member of the team. In Kleinsorges opinion Shades answer did not indicate any initiative on his part. The question was looking for a number of competitive rating factors such as interpersonal skills, adaptability, and competitive ability to apply his job knowledge effectively. It also tested the candidates ability to establish and maintain cooperative relations with those contacted on the job, to communicate effectively, to accurately analyze situations and take effective action. A better answer would have been to attempt to persuade the staff member to give the records by asking the staff member to explain why he would not or to explain to the staff member why he needed the records. Another better response would have been to talk to the staff members supervisor, which Shade said he would not do.
Kleinsorge stated the bulletin about the position and examination used the State Personnel Boards standard format and wording. Under interview scope, the bulletin stated:
"In appraising experience, more weight will be given to the breadth and recency of pertinent experience and evidence of the candidates ability to accept and fulfill increasing responsibilities than to length of his/her experience." Kleinsorge explained recent contemporary work, school or volunteer experience indicates familiarity with and ability to handle current issues, as well as acquaintance with prevailing technical procedures, information and information systems, and awareness of current business and management practices in financial institutions.
Kleinsorge declared she and Brodie rated Shade according to the State Personnel Board rating criteria based on his responses to the four questions. She denied he was given a score of 70 due to his age.
In his deposition, Shade could not recall anything in words that indicated a bias against him due to his age but there did appear to be an attitude. When asked about the attitude, he responded that Kleinsorge appeared anxious to be finished. Shade was upset after the interview; he thought it was a waste of time. The questions were not designed to determine his capabilities, but to determine the candidates maturity.
In opposition Shade argued DFIs motion was based on the state of mind of two people who might have been biased and concluded what they wanted to conclude based on his age. He claimed there was substantial evidence of age discrimination. The focus on recent experience was based on the presumption that older persons have forgotten what they learned. He asserted that DFI had a policy of ranking applicants without recent experience in the bottom ranks. This policy has resulted in a failure to hire older persons and is age discrimination. He argued the emphasis on recency of experience had a discriminatory disparate impact on older workers.
In response to DFIs statement of undisputed facts, Shade did not directly dispute any fact.[] Instead, he offered additional facts under penalty of perjury. He explained his dyslexia made it difficult to answer an open-ended question such as "what have you been doing?" He claimed DFI grossly understated his professional background and ageism caused a blatant misconception that he was not computer literate. He thought the "better" answer to question number four reflected a lack of knowledge about bank examinations and the need to maintain good relations with the clients clerical and accounting personnel. He claimed the examination interview was orchestrated to achieve results without outwardly indicating bias.
The failure to comply with the requirement of a separate statement responding to each material fact asserted by the moving party and indicating whether the opposing party agrees or disagrees the fact is undisputed may constitute a sufficient ground, in the courts discretion, for granting the motion. (Code Civ. Proc., § 437c, subd. (b).)
Shade moved to appoint a referee under Code of Civil Procedure section 639, subdivision (c), which provides for discovery referees, to determine if the examination questions were able to determine the best qualified candidate.
Shade offered a number of exhibits, including examples of open exam announcements from other states, articles on brain aging and memory loss, and an e-mail from AARP about a successful age discrimination case.
In reply, DFI noted Shade did not comply with the procedural requirements of Code of Civil Procedure section 437c, subdivision (b) to include a separate statement indicating whether he agreed or disagreed with each of DFIs undisputed facts. DFIs undisputed facts remained undisputed; Shade offered only additional or irrelevant facts. DFI objected to much of Shades evidence.
The trial court granted DFIs motion for summary judgment and sustained DFIs objections to Shades evidence.
DISCUSSION
Summary judgment is proper when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment must show that one or more elements of plaintiffs cause of action cannot be established or there is a complete defense. (Code Civ. Proc., § 437c, subd. (o)(2).) Once defendant has met its burden, the burden shifts to plaintiff to show a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.)
Shades sole cause of action is for age discrimination in employment. Because of the similarity between state and federal employment discrimination laws, California has adopted the federal three-stage burden shifting test of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 . (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) "This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained." (Ibid.)
Under the McDonnell Douglas test, at trial the plaintiff has the initial burden to establish a prima facie case. (Guz, supra, 24 Cal.4th at p. 355.) "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.]" (Id. at p. 355.)
Once plaintiff establishes a prima facie case, a presumption of discrimination arises. (Guz, supra, 24 Cal.4th at p. 355.) The burden then shifts to the employer to rebut the presumption by producing admissible evidence sufficient to show the action was taken for a legitimate, nondiscriminatory reason. (Id. at pp. 355-356.) If the employer sustains this burden, the presumption of discrimination disappears. (Id. at p. 356.) The plaintiff then has the opportunity to attack the proffered reasons as pretexts for discrimination or to offer any other evidence of a discriminatory motive. (Ibid.) The plaintiff has the ultimate burden of persuasion on the issue of actual discrimination. (Ibid.)
In moving for summary judgment DFI asserted both that Shade failed to show a prima facie case of age discrimination and that there was substantial evidence of a nondiscriminatory reason why he was not hired. The law is unsettled as to whether a plaintiff must establish a prima facie case to avoid summary judgment. (Guz, supra, 24 Cal.4th p. 357.) We need not determine whether Shade had to establish a prima facie case or whether he carried that burden. We can dispose of this case on the grounds that DFI offered an undisputed nondiscriminatory reason for not hiring Shade.
DFI provided evidence that Shade was not hired for the position of financial institutions examiner because he did not score well enough on the qualifications appraisal interview. During this interview he was asked four questions, as were all of the candidates. Shades responses to these questions were evaluated in a competitive process, using the critical class requirements of the financial institutions examiner position and State Personnel Board standards for scoring. Shades responses lacked the depth of knowledge and analysis of the problems posed as compared to the other candidates. For example, Shades response that he would let someone else handle a credit union staff members refusal to turn over needed documents indicated a lack of initiative and failed to demonstrate an ability to establish and maintain cooperative relations, communicate effectively, and accurately analyze situations and take effective action.
DFIs explanation for its employment action was credible on its face. Shade then had the burden to rebut this showing by offering evidence that raised a rational inference that intentional discrimination occurred. (Guz, supra, 24 Cal.4th at p. 357.) "[T]o avoid summary judgment, an employee claiming discrimination must offer substantial evidence that the employers 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." (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.)
Shade failed to carry this burden. He admitted no discriminatory words were spoken during the interview. He could point only to Kleinsorges anxiety to be finished as an attitude of discrimination. He fails to explain how this alleged anxiety shows age discrimination. Shade devotes much of his argument to an attack on the examination used by DFI. He faults DFI for using an oral examination at this stage of the selection process, asking subjective questions, and using more than one interview panel. The examination disregarded his education and experience. The questions were not properly developed; they tested the candidates maturity, not the candidates qualifications. He challenges DFIs "better" answers. Shade cannot show age discrimination simply by showing DFIs method of selecting employees was unsound. "What the employee has brought is not an action for general unfairness but for age discrimination." (Hersant v. Department of Social Services, supra, 57 Cal.App.4th at p. 1005.)
Shades main point is that DFIs emphasis on recent experience is ageism and shows an intent to discriminate against older applicants. He contends using recent experience as a criteria has no more validity than limiting applicants to those who graduated from designated colleges, a practice found discriminatory in Terry v. Civil Service Commission (1952) 108 Cal.App.2d 861. In Terry, the right to take a civil service examination for the position of playground director was limited to those who graduated from a college or university accredited by the Northwest Association of Secondary and Higher Schools. Petitioners attended a college accredited by the Southern Association of Colleges and Secondary Schools. The evidence established there was little or no difference in the standards used by the different regional accreditation associations and California state colleges and universities accepted students from any regional accredited school on an equal basis. (Id. at p. 865.) The appellate court upheld the trial courts decision that the rule limiting applicants to those from certain schools was arbitrary and unreasonable. (Id. at pp. 867-871.)
Terry is distinguishable. First, the employment rule challenged in Terry precluded those who did not graduate from certain colleges from taking the examination. Here, the examination was not limited to those with recent experience; recent experience was simply given more weight. Second, in Terry, the rule was unreasonable because the accreditation standards used by various regional associations were virtually the same. DFI offered evidence that the emphasis on recent experience had a legitimate job-related purpose. Recent experience indicated familiarity with and ability to handle current issues, as well as acquaintance with prevailing technical procedures, information and information systems, and awareness of current business and management practices in financial institutions. Shade offered no evidence to rebut this showing. Further, Shade has no evidence that giving more weight to recent experience discriminates against older applicants. An older person may have recent experience as easily as a younger one. Indeed, the older person is more likely to have experience. Shade failed to raise a triable issue of fact as to intentional age discrimination.
There are two types of illegal employment discrimination. In disparate treatment cases, the employee alleges the employer treated him less favorably than others due to some factor such as race, sex, or age, and the employee must prove a discriminatory intent or motive. (Harris v. Civil Service Com. (1998) 65 Cal.App.4th 1356, 1365.) "In `"disparate" cases, [by contrast,] the plaintiff alleges and proves, usually through statistical disparities, that facially neutral employment practices adopted without a deliberately discriminatory motive nevertheless have such significant adverse effects on protected groups that they are `in operation . . . functionally equivalent to intentional discrimination. [Citation.]" (Ibid.)
Shades complaint alleged only disparate treatment; he alleged DFI "considered Plaintiffs age [] in the denial of employment." Nonetheless, relying on Government Code section 12941.1, Shade contends the emphasis on recent experience has a disparate impact on older persons. In 2002, the Legislature renumbered Government Code section 12941.1 as section 12941. (2002 Stats., ch. 525, § 3.) Government Code section 12941 provides in part: "The Legislature declares its intent that the use of salary as the basis for differentiating between employees when terminating employment may be found to constitute age discrimination if use of that criterion adversely impacts older workers as a group, and further declares its intent that the disparate impact theory of proof may be used in claims of age discrimination." Since Shade neither alleged a theory of disparate impact in his complaint nor moved to amend his complaint to state such a theory, he cannot rely on disparate impact as a basis to deny summary judgment. (Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1019.)
Shades claim of disparate impact fails on the merits as well. To establish a prima facie case of discrimination under the disparate impact test, a plaintiff must show the employers policy or practice created a disparate impact on a protected class. (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1171.) Once this showing is made, the burden is on the employer to show the disputed practice or policy has a manifest relationship to the employment in question. (Harris v. Civil Service Com., supra, 65 Cal.App.4th at p. 1366.) If the employer succeeds in showing the disputed practice or policy is job related, then the burden shifts back to the employee to show it is a pretext for discrimination. (Ibid.)
Shade cannot carry his burden under the disparate impact test. He offered no evidence that DFIs employment practices, such as the emphasis on recent experience, had a disparate impact on those over 40. In reply to Shades opposition to summary judgment, DFI offered evidence that Shade did not request the age composition of the applicant pool to allow him to make a disparate impact showing. Further, as discussed above, as DFI showed the emphasis on recent experience was a job-related criteria. Thus, the burden was then on Shade to show it was a pretext for discrimination. Shade failed to offer evidence that would raise a triable issue of fact of pretext.
Since there was no evidence offered to raise a triable issue of fact as to age discrimination, the court did not err in granting DFIs motion for summary judgment.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P.J. and RAYE, J.