Cucuzza v. City of Santa Clara

• Decision Date: 23 December 2002
• Docket Number: No. H023698.,H023698.
• Citation: 104 Cal.App.4th 1031,128 Cal.Rptr.2d 660
• Court: California Court of Appeals Court of Appeals
• Parties: Sue CUCUZZA, Plaintiff and Appellant, v. CITY OF SANTA CLARA, Defendant and Respondent.

128 Cal.Rptr.2d 660

104 Cal.App.4th 1031

Sue CUCUZZA, Plaintiff and Appellant, v. CITY OF SANTA CLARA, Defendant and Respondent.

No. H023698.

Court of Appeal, Sixth District.

December 23, 2002.

Law Offices of Robert David Baker, Robert David Baker, for Plaintiff/Appellant: Sue Cucuzza.

Curiale Dellaverson Hirschfeld Kramer & Sloan, Linda A. Tripoli, San Francisco, Kimberly J. Wedding, for Defendant/Respondent: City of Santa Clara.

PREMO, Acting P.J.

Plaintiff Sue Cucuzza sued her employer, the City of Santa Clara (City) under the California Fair Employment and Housing Act. (Gov.Code, § 12900 et seq.) Plaintiff claimed that beginning in 1993 City had unlawfully discriminated against her by limiting her job duties to clerical and administrative tasks and assigning technical duties to less qualified men. City filed a motion for summary judgment on the ground that the statute of limitations barred any action on most of the adverse actions alleged and that it had a legitimate, non-discriminatory explanation for the conduct that occurred within the limitations period. The trial court granted the motion and entered judgment in favor of City.

Plaintiff argues on appeal that none of the incidents of which she complains are barred because City's conduct was a "continuing violation" of the Fair Employment and Housing Act as defined by Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 111 Cal.Rptr.2d 87, 29 P.3d 175 (Richards.) We find that the continuing violation doctrine does not apply in this case and that summary judgment was properly granted.

A. Facts

City hired plaintiff in 1988 as a purchasing utility worker in City's Automotive Services Department (Automotive Services). In 1990, City promoted her to the newly created position of service writer/parts manager. Automotive Services handled all the purchasing, maintaining, fueling and repairing of City's vehicles and other mechanical equipment. As service writer/parts manager, plaintiff was responsible for administrative tasks such as receiving and issuing equipment, overseeing the parts inventory, and scheduling repairs, as well as tasks that plaintiff characterizes as technical, such as making service calls to contractors, negotiating labor charges with outside vendors, and taking vehicle complaints. It was the technical duties that plaintiff most wanted to do. And she much preferred working in the shop area where the mechanics worked rather than in the administrative offices. Plaintiff gradually assumed responsibility for the technical tasks during her first year in the service writer/parts manager position. The shop foreman, the senior equipment mechanic, or others had performed the technical tasks before plaintiff began doing them around 1991.

In 1993, City hired Claude Edwards as the "As Needed" shop foreman.¹ Edwards immediately began performing the technical tasks that plaintiff had performed for the preceding two years and restricted her from working in the shop area. These changes did not reduce plaintiffs pay or benefits.

In February 1994, plaintiff filed a grievance against her immediate supervisor, Rick Teebay. Although her grievance does not mention sex discrimination or Claude Edwards, plaintiff now insists that she filed the grievance because she believed that Edwards was discriminating against her on the basis of her sex. She suspected discrimination because the only other women who worked in Automotive Services had clerical or administrative jobs and worked in the front office, and Edwards had told plaintiff to go work in the front office "where [she] belonged."

In response to plaintiffs grievance, Jerome Reynolds, Director of Personnel Services, offered her a position as meter reader in the Division of Municipal Services. Plaintiff asked Reynolds if the transfer was the only option she had to get out of the situation in Automotive Services and Reynolds told her that it was. Plaintiff accepted the transfer, but stayed in Municipal Services for only a year. She transferred back to the service writer/parts manager position in March 1995 and set up her workspace in Edwards's office, which was located in the shop area.

When she returned to Automotive Services in 1995, plaintiff had expected to be allowed to resume the technical duties she had lost in 1993. Her expectation was based on the fact that Robert Mortenson, Director of Public Works, had encouraged her to return to the service writer/parts manager position and, as far as plaintiff was concerned, the service writer job included the technical duties. Plaintiff had hoped Mortenson knew that to be so when he encouraged her to transfer back, but she admits she never discussed the issue with him.

Within two weeks of her return to Automotive Services, plaintiff realized that Edwards intended to continue performing the technical tasks. She immediately suspected that he was again discriminating against her based on her sex. Rather than trying to correct what plaintiff perceived as discrimination, she recalls: "I didn't talk to Bob [Mortenson] about it. I bided my time." When Edwards was promoted to Automotive Services Maintenance Supervisor in July 1995, he officially became plaintiffs supervisor. Plaintiff was concerned about having to report to Edwards, but she also kept this concern to herself.

For about a year and a half to two years after her March 1995 return to Automotive Services, plaintiff continually asked Edwards to be allowed to go out on the shop floor and work as a service writer. Edwards invariably told her that they did not need her to do the service writer tasks because the shop foreman did them. He told her that he needed her in the office to help him with the budget, among other things.

The Automotive Services Department was reorganized several times over the years. In 1996 plaintiffs service writer/parts manager position was reclassified. Her job title changed and her salary was increased by 2.3 percent. In her new position plaintiff was assigned a variety of administrative and clerical duties. Plaintiff was told that her old position had been reclassified because a service writer was not needed. The written job description for the new position included administrative and clerical duties but it also listed at least some technical job duties. Even so, Edwards or persons other than plaintiff continued to perform all the technical inshop duties.

Beginning around 1997, Edwards began writing the vehicle and equipment specifications and maintaining contact with vendors, tasks that plaintiff had been performing since 1995. And in late 1997, Edwards shoved plaintiffs desk out of his office and told her to "go find room up in the [front] office with the other women."

On March 23, 1998, City hired Art Vizcarra into the position of "As Needed" equipment mechanic/technician. Vizcarra immediately began performing the technical duties that plaintiff had performed from 1991 until 1993. In fact, Edwards introduced Vizcarra to the staff as the new service writer. Plaintiff asked Edwards why she wasn't given the job and Edwards told her she wasn't qualified. Plaintiff also complained to Richard Mauck, Director of Streets and Automotive Services, and Mauck's response was: "What do you mean you are the Service Writer?" Plaintiff tried to explain to Mauck her history as service writer and the fact that the position was supposed to have been phased out. Mauck told her he would investigate.

On September 22, 1998 plaintiff filed an administrative complaint with the Department of Fair Employment and Housing alleging that she had been denied the job of service writer "because my managers do not feel a woman should hold that position." Sometime after plaintiff filed her administrative complaint, City decided to downgrade the equipment mechanic/technician position and create a lower level position of fleet assistant. The job duties of the fleet assistant were essentially the technical job duties that plaintiff performed from 1991 through 1993 with the addition of certain computer based responsibilities that were not part of the job in 1993. Vizcarra was appointed to fill the fleet assistant position on an "As Needed" basis while City conducted a civil service examination to permanently fill it.

Plaintiff, Vizcarra, and two others applied for the permanent fleet assistant position. Edwards took no part in the recruitment, testing, recommendation or approval process. City formed a committee of three outside raters, who were neither related to nor employed by City, to conduct the oral examination. Vizcarra received the highest oral examination score of 90 percent. Plaintiff scored fourth overall with a score of 72 percent. Vizcarra also possessed an automotive/heavy duty truck technician certification and an ASE Parts Specialist certification, two "highly desirable" qualifications for the fleet assistant position that plaintiff did not possess. City chose Vizcarra for the job.

B. Discussion

1. Legal Framework

In this appeal from summary judgment, we begin with well settled rules. Any party may move for summary judgment in an action if it is contended that the action has no merit. (Code Civ. Proc, § 437c, subd. (a).) A defendant seeking summary judgment bears the initial burden of proving the cause of action has no merit by showing that one or more of its elements cannot be established or there is a complete defense to it, such as the statute of limitations. (Code Civ. Proc, § 437c, subds. (a), (o)(2); Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 213, 51 Cal. Rptr.2d 642; Martin v Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1730-1731, 35 Cal.Rptr.2d 181 (Martin ).)

The elements of a prima facie case of unlawful discrimination vary depending upon the facts. Generally, to prove her case, the plaintiff must provide evidence that (1) she was a member of a protected class, (2) she was qualified for the position she sought, (3) she suffered an adverse employment action,...