Motion Summary Judgment AdjudicationCal. Super. - 6th Dist.April 3, 2017SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Juan Castro v. City of Sunnyvale, et al Hearing Start Time: 9:00 AM Hearing Type: Motion: Summary 170/3092“ Judgment/Adjudication Date of Hearing: 08/16/2018 Comments: 6 Heard By: Pierce, Mark H Location: Department 2 Courtroom Reporter: - No Court Reporter Courtroom Clerk: Mai Jansson Court Interpreter: Court Investigator: Parties Present: Future Hearings: Exhibits: - No appearance. (Pltf's atty appeared via court call after 93m calendar concluded, told that tentative was adopted and judge will not recall the case) Tentaive adopted as follows: After full consideration of the evidence, the separate statements submitted by the parties, and the authorities submitted by each party, the court makes the following rulings: This is an action for wrongful failure to promote. According to the complaint, plaintiffJuan Castro ( Plaintiff) was an accountant in Treasury division at the Finance Department for defendant City of Sunnyvale ( City or Defendant ). (See complaint, 7.) In the summer of 2010, Plaintiff applied for the position of Budget Analyst | with the Finance Department. (See complaint, 9.) Plaintiff passed the first screening for the position, but he was not selected for an interview and was never given any feedback or explanation. (|d.) In 2011, once Plaintiff saw that he was being denied jobs for which he was qualified, and saw no willingness from management to meet with him about career advancement opportunities, he became more proactive by writing to his manager about his desire for advancement. (See complaint, 10.) In 2013, Plaintiff submitted a Career Development declaration to the HR department, stating his interest in career advancement related to his current job. (See complaint, 11.) After being told that the management and HR did not have a copy of the declaration, on August 13, 2014, Plaintiff submitted another such declaration, but did not receive any response to discuss any possible opportunities. (See complaint, 12.) |n June 2014, Plaintiff s manager falsely accused him of approving a credit card transaction even though he received approval from the Assistant Director of Finance to approve the transaction. (See complaint, 13.) When Plaintiff attempted to explain that the Assistant Director of Finance approved the transaction, his manager called him a no-body and did not listen to Plaintiff. (|d.) On November 19, 2014, Plaintiff requested in writing about the Treasury Manager position; however, despite Plaintiff s belief and explanation that he was well qualified and prepared for the position with prior experience of performing duties of the Treasury Manager position, three other non- Hispanic managers were assigned to assume those responsibilities. (See complaint, 14.) Plaintiff did assume some other duties but did not receive any change in pay or position. (|d.) On February 27, 2015, Plaintiff submitted a written request to HR to reclassify his position, and on March 4, 2015, requested a meeting to discuss reclassification. (See complaint, 15-16.) Later in March 2015, Plaintiff applied for the Finance Manager position to manage the Treasury division; however, Plaintiff was not selected and instead a non- Hispanic person was hired. (See complaint, 17.) On April 5, 2016, City denied Plaintiff s request for Printed: 8/16/2018 08/ 16/2018 Motion: Summary Judgment/Adjudication - 17CV309241 Page 1 of 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER reclassification. (See complaint, 18.) On April 3, 2017, Plaintiff filed a complaint against City, asserting causes of action for: 1) Race discrimination; 2) National origin discrimination; 3) Retaliation; 4) Harassment; and, 5) Intentional infliction of emotional distress. On November 28, 2017, the Court granted Defendant s motion for judgment on the pleadings as to the fifth cause of action without leave to amend. Defendant moves for summary judgment, or, in the alternative, moves for summary adjudication of each of Plaintiff s remaining causes of action. Defendant s burden on summary adjudication A defendant seeking summaryjudgment must show that at least one element of the plaintiff s cause of action cannot be established, or that there is a complete defense to the cause of action. The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue. (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted; emphasis added.) The tried and true way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff s claim. (Weil et a|., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) 10:241, p.10- 91, citing Guz v. Bechtel National Inc. (2000) 24 Ca|.4th 317, 334; emphasis original.) The moving party s declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff s claim in order to avoid unjustly depriving the plaintiff of a trial. (Id. at 102241.20, p.10-91, citing Molko v. Holy Spirit Assn. (1988) 46 Ca|.3d 1092, 1107.) Another way for a defendant to obtain summary judgment is to show that an essential element of plaintiff s claim cannot be established. Defendant does so by presenting evidence that plaintiff does not possess and cannot reasonably obtain, needed evidence (because plaintiff must be allowed a reasonable opportunity to oppose the motion.) Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action. (Id. at 10:242, p.10-92, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Ca|.4th 826, 854-855.) Law on employer s motion for summary judgment in discrimination cases Printed: 8/16/2018 08/ 16/2018 Motion: Summary Judgment/Adjudication - 17CV309241 Page 2 of 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER In reviewing motions for summary judgment or adjudication in discrimination cases, California courts employ the burden-shifting formula first articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (King v. United Parcel Service (2007) 152 Cal.App.4th 426, 433, fn.2; see also Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004.) Under McDonnell Douglas, the plaintiff bears the burden of establishing a prima facie case of discrimination, and the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action. (Mixon v. Fair Employment and Housing Commission (1992) 192 Cal.App.3d 1306, 1318.) A defendant employer s motion for summary judgment slightly modifies the order of these [McDonnell Douglas] showings. (Scotch, supra, 173 Cal.App.4th at 1005, quoting Kelly v. Stamps.com, Inc. (2005) 135 Cal. App. 4th 1088, 1097.) To prevail on its motion for summary judgment, the defendant employer is required to show either that (1) plaintiff could not establish one of the [prima facie] elements of the FEHA claim, or (2) there was a legitimate, nondiscriminatory reason for its decision to terminate plaintiff's employment. (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1247, citing Guz v. Bechtel National, Inc. (2000) 24 Ca|.4th 317, 355-356 and Kelly, supra, 135 Cal. App. 4th at 1097-1098.) The elements for a discrimination claim are: that (1) [the plaintiff] 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 employer has met its burden by showing a legitimate reason for its conduct, the employee must demonstrate a triable issue by producing substantial evidence that the employer s stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action. (DeJung v. Super. Ct. (2008) 169 Cal.App.4th 533, 553, citing Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038 and Guz, supra, 24 Cal.4th at pp.357-358 (also stating that the ultimate issue is simply whether the employer acted with a motive to discriminate illegally ) (emphasis original); see also Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861; see also Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003; see also Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806; see also Wills v. Superior Court of Orange County (2011) 195 Cal.App.4th 143, 170.) Speculation cannot be regarded as substantial responsive evidence. (Cucuzza, supra, 104 Cal. App. 4th at p.1038; see also Horn, supra, 72 Cal.App.4th at p.807 (stating that an issue of fact can only be created by a conflict of evidence [i]t is not created by speculation or conjecture ); see also Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735 (stating that the discharged employee, to avert summary judgment, must produce substantial responsive evidence that the employer s showing was untrue or pretextual speculation cannot be regarded as substantial responsive evidence ); see also Compton v. City of Santee (1993) 12 Cal.App.4th 591, 595-596 (stating that [a] party may not avoid summary judgment based on mere speculation and conjecture [citation], but instead must produce admissible evidence raising a triable issue of fact ).) In order to raise an issue as to the employer s credibility, the employee must set forth specific facts demonstrating such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence. (Cucuzza, supra, 104 Cal. App. 4th at p.1038, quoting Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005; see also Horn, supra, 72 Cal.App.4th at pp.806-807; see also Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 342 (stating that [t]he 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 ); see also Reeves v. MV Transp., Inc. (2010) 186 Cal.App.4th 666, 673-674.) Printed: 8/16/2018 08/ 16/2018 Motion: Summary Judgment/Adjudication - 17CV309241 Page 3 of 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER [T]he plaintiff may establish pretext either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer s proffered explanation is unworthy of credence. (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 68-69.) Circumstantial evidence of pretense must be specific and substantial in order to create a triable issue with respect to whether the employer intended to discriminate on an improper basis. (Id. at p.69.) With direct evidence of pretext, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial. (|d.) The plaintiff is required to produce very little direct evidence of the employer s discriminatory intent to move past summary judgment. (|d.) In Guz, the Supreme Court emphasized that the great weight of federal and California authority holds that an 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. (Serri, supra, 226 Cal.App.4th at p.861, citing Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 361.) It is not sufficient for an employee to make a bare prima facie showing or to simply deny the credibility of the employer s witnesses or to speculate as to discriminatory motive. (|d., citing Hersant, supra, 57 Cal.App.4th 1004; see also Hicks, supra, 160 Cal.App.4th at p.1003 (stating that [t]he plaintiff must do more than raise the inference that the employer s asserted reason is false ).) A reason cannot be proved to be a pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason. (Hicks, supra, 160 Cal.App.4th at p.1003, quoting St. Mary's Honor Center v. Hicks (1993) 509 U.S. 502, 515 (emphasis original); see also McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1531 (stating that there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer s actions ); see also St. Mary's Honor Center v. Hicks (1993) 509 U.S. 502, 514-519 (stating that [w]e have no authority to impose liability upon an employer for alleged discriminatory employment practices unless an appropriate factfinder determines, according to proper procedures, that the employer has unlawfully discriminated nothing in |aw would permit us to substitute for the required finding that the employer's action was the product of unlawful discrimination, the much different (and much lesser) finding that the employer s explanation of its action was not believable ; also stating that once the defendant has responded to the plaintiff's prima facie case, the district court needs to decide not whether defendant s response is credible, but whether the defendant intentionally discriminated against the plaintiff ); see also Schlaiffer v. Novartis Pharmaceuticals Corp. (C.D. Ca|., Aug. 28, 2008, No. CV 07-3155 AHM(VBKX)) 2008 WL 4069493, at *8-9.) If plaintiff produces no evidence from which a reasonable factfinder could infer that the employer s true reason was discriminatory, the employer is entitled to summary judgment. (Hicks, supra, 160 Cal.App.4th at p.1003.) [E]ven though we may expect a plaintiff to rely on inferences rather than direct evidence to create a factual dispute on the question of motive, a material triable controversy is not established unless the inference is reasonable. And an inference is reasonable if, and only if, it implies the unlawful motive is more likely than defendant s proffered explanation. (Cucuzza, supra, 104 Cal. App. 4th at p. 1038; see also McGrory, supra, 212 Cal.App.4th at pp.1529-1530 (stating that even though we may expect a plaintiff to rely on inferences rather than direct evidence to create a factual dispute on the question of motive, a material triable controversy is not established unless the inference is reasonable ).) If plaintiff fails to produce substantial responsive evidence to demonstrate a material triable controversy, summary judgment is properly granted. (|d.) Additionally, temporal proximity alone is not sufficient to raise a triable issue as to pretext once the employer has offered evidence of a legitimate, nondiscriminatory reason for the termination. (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 353 (also stating that [s]tanding alone against Defendant s strongly supported legitimate reason for terminating [Plaintiff], temporal proximity does not amount to more than a scintilla of evidence of discrimination ).) Printed: 8/16/2018 08/ 16/2018 Motion: Summary Judgment/Adjudication - 17CV309241 Page 4 of 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Plaintiff s opposition violate Rule of Court 3.1112 Plaintiff s opposition is 28 pages. Rule of Court 3.1112, subdivision (d) states that [i]n a summary judgment or summary adjudication motion, no responding memorandum may exceed 20 pages. (Rule of Court 3.1112, subd. (d).) Rule of Court 3.1112, subdivision (g) states that [a] memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper. (Rule of Court 3.1112, subd. (g).) Accordingly, Plaintiff s opposition is considered as a late-filed paper. Defendant City meets its initial burden Defendant City presents Plaintiff s deposition testimony in which he states that: he doesn t recall having a conversation with anyone from City s HR department about the fact that he s from Mexico (Def. s evidence in support of motion for summaryjudgment, exh. 40 ( Pl. s depo ), p.53:12-19); he does not recall any City employees making any negative comments about Hispanic people or the fact that he is from Mexico (id. at pp.60:15-25, 63:15-25, 64:1-25, 65:1-23); in 2006, Plaintiff had a conversation with his supervisor, Therese Balbo, regarding his annual evaluation when Plaintiff noted that he was interested in having his position reclassified without having to apply, and she mentioned that the City had a training program called Supervisory Academy, which he eventually completed (id. at pp.66:13-25, 67:1-25, 68:1-19); in the 2006 conversations, Plaintiff noted that other non-Hispanics have been promoted through reclassification (id. at pp.88:13-25, 89:1-19); in 2007, Plaintiff had another conversation with Balbo about the possibility for reclassification, but Balbo told Plaintiff that Plaintiff could apply when positions open (id. at pp.69:13-25, 7021-25, 71:1-22, 89:20-25, 9021-23); in 2008, Plaintiff had another conversation about career advancement reiterating the same (id. at pp.72:25, 73:1-25, 74:1-7, 90:24-25, 9121-8); in 2009, Plaintiff had another conversation with Balbo in which she asked in which positions Plaintiff was interested, to which Plaintiff identified budget analyst, auditing, senior accountant, management analyst and principal accountant (id. at p.7428-20); of those identified positions, Plaintiff did not apply for those positions because they were not open, but Plaintiff felt that he should get his position reclassified (id. at pp.81:22-25, 82:1-25, 83:1-25, 84:1- 25, 8521-6); in these conversations with Balbo, his race or nationality was never mentioned in the conversation (id. at pp.87:23-25, 8821-15, 95:21-25, 9621-25, 9721-7, 103:22-25, 10421-25); Plaintiff applied for a position in 2010 but did not receive the new position (id. at p.105210-11); Plaintiff did not talk with Balbo again about career advancement until 2013 in which she discussed the difference between a career development declaration and a career development plan, but race or national origin was not mentioned in this conversation (id. at pp.105:1-25, 10621-25, 107:1-25, 10821-8); in 2014, Plaintiff had another conversation with Balbo, in which he again indicated his desire for career advancement, and Balbo indicated that he should talk to the director, Grace Leung, and that Balbo was planning to retire (id. at pp.108:9-25, 109:1-8); in a|| the conversations with Balbo, Plaintiff does not recall Balbo bringing up Plaintiffs race or national origin (id. at p.109:9-17); other than Balbo, the only person Plaintiff talked to about career development was Grace Leung (id. at pp.109:25, 110:1-25, 11121-25, 112:1-25, 113:1); in the middle of November 2014, Plaintiff had a discussion with Grace Leung about his desire to take over Balbo s position, and Plaintiff does not recall his race or national origin being a subject (id. at pp.113:12-25, 114:1-25, 115:1- 25); Plaintiff does not recall anyone ever criticizing him for having conversations about his career advancement (id. at pp.123218-25, 124:1-15); Plaintiffdiscussed with Leslie in HR the difference between a career development plan and a career development declaration, and that the submission of a career development declaration does not guarantee any kind of promotion or that he will be considered more favorably for promotion, and that Plaintiff should not lose hope if he was at first unsuccessful (id. at pp.126:13-25, 127:1-25, 128:1-25, 129:1-25, 130:1-15); when Plaintiff told Leslie in HR that he was concerned that he was not being promoted because he was Hispanic, she told Plaintiff that he could make an Printed: 8/16/2018 08/ 16/2018 Motion: Summary Judgment/Adjudication - 17CV309241 Page 5 of 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER appointment with HR to discuss those topics if he wanted, but he did not make such an appointment (id. at pp.130:16-25, 131:1-19); Plaintiff is not aware that Leslie told anyone else in City that he made such a claim and he never heard anyone mention it (id. at pp.132:21-25, 133:1-4); at a meeting in early 2015, it was announced that rather than have one interim treasury manager for the division, the division would be split into three with three managers taking over Balbo s responsibilities (id. at pp.135:3-25, 136:1-25, 137:1); HR manager Delanie LoFranco wrote an April 5, 2016 memo to HR director Teri Silva regarding Plaintiff s request for reclassification in which it was recommended that Plaintiff s position not be reclassified and that Plaintiff admits that the information contained in the memo is accurate (id. at pp.153:11-25, 154:24-25, 155:1-13); Plaintiff asserts that the City did not follow its Classification Policy because it did not conduct a desk audit, did not ask him to provide work samples, did not interview the most appropriate personnel and did not review the organizational structure of the division or department, outside agencies, or internal organizations for comparable positions, however, the Policy does not require that HR use a|| or any of those listed tools (id. at pp.155:14-25, 15621-24, 157:1-25, 158:1-25, 15921-25, 160:1-17); Plaintiff asserts that the City failed to comply with the SEA MOU to give the employee the reasons for the denial [of his or her reclassification request] in writing; however, Plaintiff did receive a memo from LoFranco dated April 13, 2016 in which she stated Based on our review and study of your position, the Human Resources Department has determined that you are working within the scope of the Accountant classification Plaintiff feels that City nevertheless violated the SEA MOU because it says that it was denied but doesn t give the factors how they arrived to the conclusion (id. at pp.160:20-25, 161:1-25, 162:1-25, 163:1-8); in fact, Plaintiff requested further detail from City and received further written documentation (id. at pp.163z9-25, 16421-8); Plaintiff is not aware that anyone at City knew that he filed a DFEH charge (id. at p.166218-25); no one at City discussed his DFEH charge, criticized him for filing a DFEH charge, told him not to file a DFEH charge, was irritated or annoyed about Plaintiff s filing the DFEH charge, or otherwise spoke negatively or at all about the DFEH charge (id. at p.167:1-25); Plaintiff does not know if anyone at City knew he had filed an EEOC charge (id. at p.169:19-21); Plaintiff did not discuss the EEOC charge with anyone at City, Plaintiff did not discuss the EEOC charge with anyone, no one mentioned the EEOC charge negatively or otherwise, no one did not indicate that they were irritated or annoyed about Plaintiff s filing of the EEOC charge, or criticize or discourage him for filing the EEOC charge (id. at pp. 169:22-25, 170:1-25); on April 15, 2015, Plaintiff had a union representative deliver a letter from him to the city manager (id. at pp.17121-25, 172:1); no one at City criticized, discouraged, was irritated or annoyed, spoke to him or otherwise mentioned anything about the submission of this letter (id. at pp.172214-25, 173:1-4); Plaintiff submitted a grievance and only the union representative, Sharon Rogers, knew that Plaintiff submitted the grievance (id. at p.173:8-17); Plaintiff did not discuss this grievance with any City employee other than union representative Sharon Rogers (id. at p.173218-25); no one criticized, discouraged, was irritated or annoyed, spoke to him in a negative way about, or otherwise mentioned Plaintiff s submission of the grievance (id. at p.174:1-20); in 2010, Plaintiff applied for a budget analyst position, but did not receive an interview, and despite not knowing if Hispanic people were selected for an interview, not knowing who made the decision to select applicants for an interview or who made the screening decision at the department level, not knowing if there were any other Hispanic applicants for the position, and not knowing who made the ultimate hiring decision for the budget analyst position, Plaintiff is convinced that race or national origin played a ro|e in the decision to not hire him in the budget analyst position because he has never seen any Hispanics being hired at a higher level in management, and had not seen any Hispanics being promoted (id. at pp.174:22-25, 175:1- 25, 176:1-25, 17721-15); similarly, Plaintiff believes that he was not selected for the finance manager position in 2015 because of his race because he hasn t seen a single Hispanic being hired at a management level or seen a promotion for a Hispanic management level in the department (id. at p.179:2-12); in 2014, Balbo was upset that Plaintiff authorized a credit card transaction for a hotel payment for a transient occupancy tax payment at Tim Kirby s direction because she viewed it as undermining her authority, but race or national origin was not mentioned during the conversation (id. at pp.201:11-25, 20221-25, 203:1, 214:15-25, 215:1-25, 21621-21); Printed: 8/16/2018 08/ 16/2018 Motion: Summary Judgment/Adjudication - 17CV309241 Page 6 of 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Plaintiff believes that, on 10 occasions between 2006 and 2011, he was falsely accused of arriving late two to seven minutes because of clocks that were set ahead of the actual time (id. at pp.203:2-25, 20421-17, 205:12- 20); Plaintiff acknowledges that he has had tardiness issues with City independent of these ten times (id. at p.204218-23); Plaintiff has had to use accrued time to make up for the minutes for which he was late, and although he does not know if other employees were allowed to make up time instead of using their accrued leave, and although Balbo has not discussed Plaintiff s race or national origin when discussing his timeliness, he alleges that other similarly situated non-Hispanics were allowed to make up time when they were tardy because Balbo stated that every case regarding the treatment of tardiness is different and he was the only Hispanic for many years in the division (id. at pp.204:24-25, 205:1-25, 206:1-22); in late 2015 or early 2016, Plaintiff told Finance Director Grace Leung to reconsider her position to split up the division and assign only one manager to take over during the transition because, considering that the Utilities Division revenue was down, it was a bad idea to which Leung stated that he sounded negative and uncooperative and did not see her as giving a good reference for him (id. at pp.206:23-25, 207:1-25, 20821-25, 209:1-2); Plaintiff does not recall race or national origin being a part of the conversation (id. at p.209216-18); when he talked with Teri Silva weeks after he received the April 13, 2016 memo from LoFranco, he told Silva that he felt that they hadn t done a complete review of his responsibilities, did not talk to a|| the managers, and Silva indicated that she would take that into consideration but used an intimidating tone of voice and gestures, but Plaintiff does not recall Silva mentioning his race or national origin during the meeting (id. at pp.209:19-25, 210:1-25, 211:1-25, 21221-9); and, after this meeting, Silva followed up, responding that she reviewed the recommendation regarding the reclassification and concluded that it was done correctly and disagreed that there were flaws in the process (id. at p.p. 212:14-25, 213:1-25, 214:1-14). As to the Finance Manager position for which Plaintiff was not selected to interview, there were eight applicants who were selected to interview who held management positions in finance for public entities in some capacity, and, although Leung was unaware of race or national origin at the time of the selection, three of those eight candidates identified as Hispanic. (See evidence cited by PI. s separate statement in opposition to Def. s motion for summaryjudgment, undisputed material facts nos. ( UMFs ) 13-23.) An interviewing panel interviewed the eight candidates who selected three finalists for the final interview, one of whom was Hispanic. (See evidence cited by UMFs 23-24.) As to Plaintiff s request for reclassification, City presents evidence that demonstrates that it had a legitimate, nondiscriminatory basis to not reclassify Plaintiff s position and that race and/or national origin was not considered. (See evidence cited by UMFs 27-38.) City also presents evidence that demonstrates that Plaintiff cannot establish any nexus between protected activity and an adverse action. (See evidence cited by UMFs 39-63.) City also demonstrates that it did not harass Plaintiff. (See Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63 (stating that harassment consists of a type of conduct not necessary for performance of a supervisory job [i]nstead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives [w]hi|e harassment is not a type of conduct necessary to personnel management, making decisions is a type of conduct essential to personnel management ).) (See evidence cited by UMFs 64-70.) City meets its initial burden to demonstrate that Plaintiff cannot establish a prima facie case of discrimination based on race or national origin because there are no circumstances suggesting a discriminatory motive, and Plaintiff s discrimination and retaliation causes of action lack merit because City has a legitimate, nondiscriminatory basis for its actions. The burden thus shifts to Plaintiff to produce substantial responsive evidence to demonstrate a material triable controversy. Plaintiff s objections to City s evidence in support of its motion, numbers 1-3 are OVERRULED. Printed: 8/16/2018 08/ 16/2018 Motion: Summary Judgment/Adjudication - 17CV309241 Page 7 of 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Plaintiff fails to meet her burden to demonstrate the existence of a triable issue of material fact Despite exceeding the page limit, Plaintiff s opposition does not address City s argument that the purported conduct is not conduct that can form a basis for a hostile work environment causes of action, apparently conceding the issue. Accordingly, as Plaintiff fails to demonstrate the existence of a triable issue of material fact, the motion for summary adjudication of the fourth cause of action for harassment is GRANTED. In his overly long opposition, Plaintiff argues that he demonstrates circumstances suggesting a discriminatory motive because City s Civil Service Rules and Regulations state that it shall strive to reflect the demographic composition of the total workforce of the community at all job levels and in all segments of the work force, and that according to a 2010 Census report, the Hispanic population was a certain percentage and trending upwards. (See Pl. s memorandum in opposition to Def. s motion for summaryjudgment ( Opposition ), pp.15:16-28, 16:1-16, 20:13-27, 21:1-9.) However, the Census upon which Plaintiff relies in hearsay, and City s objection number 26 to the Census is SUSTAINED. (See Ibarbia v. Regents of University of California (1987) 191 Cal.App.3d 1318, 1330, fn. 7 (stating that U.S. Census statistics is inadmissible under the hearsay rule and/or the requirement for authentication of documents ).) Moreover, as City argues, the passage of Proposition 209 eliminated affirmative action programs in public employment. (See American Civil Rights Foundation v. Berkeley Unified School Dist. (2009) 172 Cal.App.4th 207, 220 (stating Proposition 209 was said to eliminate state and local government affirmative action programs in the areas of public employment, public education, and public contracting to the extent these programs involve preferential treatment based on race, sex, color, ethnicity, or national origin ).) Plaintiff s argument is without merit and for this reason, Plaintiff fails to meet his burden to produce substantial responsive evidence to demonstrate a material triable controversy by establishing a prima facie case of discrimination based on race or national origin, as Plaintiff fails to demonstrate circumstances suggesting a discriminatory motive. For this reason, the motion for summary adjudication of his discrimination causes of action is GRANTED. Plaintiff also argues that City s proffered legitimate, nondiscriminatory basis for failing to promote him or reclassify him are a pretext for discrimination because: he was initially told that he did not get an interview because he did not meet the minimum qualifications but was later told that he did meet the minimum qualifications; he was told that he lacked presentation experience in the executive/policymaker level, but the Finance Managerjob posting did not require presentation experience; Plaintiff was told that he lacked supervisory experience or experience doing performance evaluations, but one of the applicants who received an interview lacked such experience; Plaintiff was not given an interview because he lacked finance manager experience, but Plaintiff had received out-of-class pay for filling in at Treasury Manager when Balbo was on leave; after receiving approval to increase a budget to allow a new Finance Manager position, Leung hired another finalist for the other position without reposting the position so that others could apply; and, Plaintiff recalls Leung telling him that she would think about him as Interim Treasury Manager, and encouraged him to continue his work because the department was going to rely on him during the transition period. (See Opposition, pp.17:21-28, 18:1-28, 19:1-11.) Plaintiff also argues that with regards to his reclassification request, the interviewing of Kirby and Quick about Plaintiff s job duties and skills was inappropriate as City should have instead interviewed different staff who worked with Plaintiff more regularly. (See Opposition, p.22:3-7.) Plaintiff also argues that City did not evaluate his work samples, and HR did not look at other organizational structures (see Opposition, pp.21:10-28, 22:1-2, 8-18); however, he relies on his own speculation and City s objections numbers 13-15 are SUSTAINED. Moreover, as City notes, there must be more than inconsistent justifications for an employee s [alleged Printed: 8/16/2018 08/ 16/2018 Motion: Summary Judgment/Adjudication - 17CV309241 Page 8 of 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER adverse employment action] to support an inference that the employer s true motivation was discriminatory. (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1531.) The pertinent statutes do not prohibit lying, they prohibit discrimination. (|d.) [T]here must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer s actions. (Id. (emphasis original) (also stating [a]ccordingly, the great weight of federal and California authority holds that an 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 ); see also Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 673-674 (stating that [t]o avoid summary judgment the [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 Plaintiff was therefore required to [d]emonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [the] proffered legitimate reasons for [the] action that a reasonable factfinder could rationally find them unworthy of credence, [citation], and hence infer that the employer did not act for [the asserted] non-discriminatory reasons ), citing Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.) Here, Plaintiff is obviously upset that he did not receive an interview for the Finance Manager position or have his position reclassified. It is also clear that Plaintiff believes that he has relevant experience that he believes was not given proper weight for consideration in the selection process for the Finance Manager position or the reclassification of his position. However, Plaintiff fails to establish a reasonable inference that the reason that he was not selected for an interview, or that his position was not reclassified, was due to his race or national origin. For this additional and separate reason, the motion for summary adjudication of his discrimination causes of action is GRANTED. As to the retaliation cause of action, Plaintiff apparently relies on evidence not cited in his separate statement, allegations not within the scope of the pleadings as the complaint only alleges the denial of career advancement, and temporal proximity. As to new allegations, [i]t is well established that the pleadings determine the scope of relevant issues on a summaryjudgment motion. (Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74; see also Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258 (stating that [t]he complaint limits the issues to be addressed at the motion for summary judgment [t]he rationale is clear: |t is the allegations in the complaint to which the summary judgment motion must respond ); see also Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525, 536 (stating that [o]n summary judgment motions, the pleadings always define the issues ).) As to the evidence not cited by the separate statement (see City of Pasadena v. Super. Ct. (Mercury Casualty Co.) (2014) 228 Cal.App.4th 1228, 1235, fn. 4 (stating [t]his is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist )), cited in pages of the Opposition beyond the 20 page limit, such evidence nevertheless fails to demonstrate evidence of retaliation. City s objection number 8 is SUSTAINED. As to the temporal proximity of Plaintiff s asserted protected activity and the alleged retaliation, Plaintiff does not dispute or present evidence that City or Leung were aware of his 2015 complaints. Thus, Plaintiff solely relies on temporal proximity which is insufficient to demonstrate a triable issue of material fact. (See Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 353 (stating temporal proximity alone is not sufficient to raise a triable issue as to pretext once the employer has offered evidence of a legitimate, nondiscriminatory reason for the [adverse employment action] [s]tanding alone against Defendant s strongly supported legitimate reason for terminating [Plaintiff], temporal proximity does not amount to more than a scintilla of evidence of discrimination ); see also Smith v. Allen Health Systems, Inc. (8th Cir. 2002) 302 F.3d 827, 832 (stating that more than a temporal connection between the protected conduct and the adverse employment action is required to present a genuine factual issue on retaliation ).) Printed: 8/16/2018 08/ 16/2018 Motion: Summary Judgment/Adjudication - 17CV309241 Page 9 of 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER As Plaintiff fails t0 produce substantial responsive evidence t0 demonstrate a material triable controversy, City s motion for summaryjudgment is GRANTED. City s remaining objections are not the basis for the Court s ruling. Primfid: 8/16/2018 08/16/2018 Motion: Summary Judgmfint/Adiudication - 17CV309241 Page 10 0f 10