Hersant v. Department of Social Services

• Decision Date: 18 September 1997
• Docket Number: No. D026441,D026441
• Court: California Court of Appeals Court of Appeals
• Parties: , 78 Fair Empl.Prac.Cas. (BNA) 1065, 97 Cal. Daily Op. Serv. 7502, 97 Daily Journal D.A.R. 12,047 Tom HERSANT, Plaintiff and Appellant, v. CALIFORNIA DEPARTMENT OF SOCIAL SERVICES et al., Defendants and Respondents.

Page 483

67 Cal.Rptr.2d 483

57 Cal.App.4th 997, 78 Fair Empl.Prac.Cas. (BNA) 1065,

97 Cal. Daily Op. Serv. 7502,

97 Daily Journal D.A.R. 12,047

Tom HERSANT, Plaintiff and Appellant, v. CALIFORNIA DEPARTMENT OF SOCIAL SERVICES et al., Defendants and Respondents.

No. D026441.

Court of Appeal, Fourth District, Division 1, California.

Sept. 18, 1997.

Review Denied Jan. 14, 1998.

Alcala, Martinez-Senftner & Velez, Sacramento, Carlos M. Alcala, George P. Harris, Lawrence F. Salisbury, for Plaintiff and Appellant.

Daniel E. Lungren, Attorney General, Silvia Diaz and Jill P. Armour, Deputy Attorneys General, for Defendant and Respondent.

BENKE, Acting Presiding Justice.

Plaintiff and appellant Tom Hersant brought an action for age discrimination against his employer, defendant and respondent California Department of Social Services, and his supervisor, defendant and respondent Margaret Davis (jointly Department). Department sought, and the trial court granted, a motion for summary judgment finding no triable material issues of fact. Hersant appeals, arguing the trial court erred in so finding.

BACKGROUND

A. Complaint

On May 3, 1995, Hersant filed a form complaint against Department and his immediate supervisor, Davis, alleging he was demoted on the basis of his age in violation of the California Fair Employment and Housing Act. In an attachment to the complaint, Hersant alleged he was 52 years of age, had worked for the State of California since 1964 and had always received good work evaluations. He alleged he was demoted on June 28, 1994, one level from his Staff Service Manager II position and was removed as the manager of Department's Carlsbad regional child daycare licensing and monitoring office.

B. Motion for Summary Judgment

After answering the complaint, Department filed a motion for summary judgment. It argued the basis for Hersant's demotion was not his age but rather his unsatisfactory job performance. In general, Department alleged Hersant was insubordinate, inefficient, neglectful of his duties, dishonest and that he misused state property. More specifically, Department alleged Hersant was demoted for instituting policies at the Carlsbad regional office that resulted in a corruption of Department's computer data base by making its caseload appear larger than it was. Department alleged Hersant failed to notify his superiors of these policies. Further, Department alleged Hersant had indicated his intention not to follow Department policy concerning the termination of certain civil penalty proceeds and failed to follow the specific instructions of his superiors in conducting a promotional interview.

Department offered evidence that of the managers of the 21 regional licensing offices, the oldest of those managers was 66, the youngest 38. The average age of such managers in Davis's region was 46.5 years. After his demotion, Hersant's position was filled by a manager with 21 years in state civil service and who was 45 years of age at the time of his appointment.

In opposition, Hersant alleged he followed applicable procedures in conducting the work of his office, had done nothing that would corrupt departmental data base, followed all Department policies known to him, never indicated an intention to ignore policy with regard to the termination of certain civil penalty proceedings and properly conducted the subject promotional interview. Hersant alleged Department's stated reason for his demotion was false and pretextual and that the true reason for his demotion was the bias of his supervisor, Davis, against older employees.

C. Decision

The trial court found Hersant had failed to present evidence that his demotion was based on age discrimination. The court specifically concluded all of Hersant's bases for believing he was discriminated against on the basis of age were speculations.

DISCUSSION

Hersant argues since there were triable issues of fact concerning his claim of age discrimination, the trial court erred in granting Department's motion for summary judgment.

A. Law

Summary judgment is granted 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).) This court reviews de novo the trial court's decision to grant summary judgment and we are not bound by the trial court's stated reasons or rationales. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951, 62 Cal.Rptr.2d 142.)

In reviewing a motion for summary judgment, we accept as undisputed fact only those portions of the moving party's evidence that are uncontradicted by the opposing party. In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn therefrom are accepted as true. (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 148, 65 Cal.Rptr.2d 112.)

Both federal and state law prohibit employers from discriminating against employees on the basis of age. (Gov.Code, § 12941, subd. (a); 42 U.S.C. § 2000e et seq.; 29 U.S.C. § 621 et seq.) ¹

An employee alleging age discrimination must ultimately prove that the adverse employment action taken was based on his or her age. Since direct evidence of such motivation is seldom available, the courts use a system of shifting burdens as an aid to the presentation and resolution of age discrimination cases. (See St. Mary's Honor Center v. Hicks (1993) 509 U.S. 502, 505-506, 113 S.Ct. 2742, 2746-2747, 125 L.Ed.2d 407; Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 252-255, 101 S.Ct. 1089, 1093-1095, 67 L.Ed.2d 207; McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 800-803, 93 S.Ct. 1817, 1823-1825, 36 L.Ed.2d 668; Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 195-199, 48 Cal.Rptr.2d 448.) That system necessarily establishes the basic framework for reviewing motions for summary judgment in such cases. (Sada v. Robert F. Kennedy Medical Center, supra, 56 Cal.App.4th at p. 148, 65 Cal.Rptr.2d 112; Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 216, 51 Cal.Rptr.2d 642; Caldwell v. Paramount Unified School Dist., supra, 41 Cal.App.4th at pp. 201-205, 48 Cal.Rptr.2d 448.)

The burden shifting system requires the employee first establish a prima facie case of age discrimination. If the employee does so, the employer is required to offer a legitimate non-age-based reason for the adverse employment action. If it does not, then the employee prevails. (See St. Mary's Honor Center v. Hicks, supra, 509 U.S. at pp. 505-507, 113 S.Ct. at pp. 2746-2747; Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at pp. 252-255, 101 S.Ct. at pp. 1093-1095; McDonnell Douglas Corp. v. Green, supra, 411 U.S. at pp. 800-803, 93 S.Ct. at pp. 1823-1825; Sada v. Robert F. Kennedy Medical Center, supra, 56 Cal.App.4th at pp. 148-151, 65 Cal.Rptr.2d 112; Caldwell v. Paramount Unified School Dist., supra, 41 Cal.App.4th at pp. 195-199, 48 Cal.Rptr.2d 448.)

Given the varying nature of the problem, it is impossible to make an exact, all-inclusive statement of the elements of a prima facie age discrimination case applicable in all situations. (Ewing v. Gill Industries, Inc. (1992) 3 Cal.App.4th 601, 610, 4 Cal.Rptr.2d 640; 1 Lindemann and Grossman, Employment Discrimination Law (3d ed.) ch. 16, pp. 586-587.) The general requirement is that the employee offer circumstantial evidence such that a reasonable inference of age discrimination arises. The requirement is not an onerous one. (Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1751, 52 Cal.Rptr.2d 620.)

In the context of the present case, a reasonable inference, that is, a prima facie case, of age discrimination arises when the employee shows (1) at the time of the adverse action he or she was 40 years of age or older, ² (2) an adverse employment action was taken against the employee, (3) at the time of the adverse action the employee was satisfactorily performing his or her job and (4) the employee was replaced in his position by a significantly younger person. ³ (See Caldwell v. Paramount Unified School Dist., supra, 41 Cal.App.4th at pp. 195-200, 48 Cal.Rptr.2d 448; Nidds v. Schindler Elevator Corp. (9th Cir.1996) 103 F.3d 854, 858.)

When the employee has made this showing, the burden shifts to the employer to go forward with evidence that the adverse action was based on considerations other than age discrimination. When the employer offers evidence justifying the adverse action on a basis other than age, the burden shifts back to the employee to meet his ultimate obligation of proving that the reason for the adverse action was age discrimination. This ultimate issue is decided on all the evidence. (Heard v. Lockheed Missiles & Space Co., supra, 44 Cal.App.4th at pp. 1752, 52 Cal.Rptr.2d 620; Barber v. Rancho Mortgage & Investment Corp. (1994) 26 Cal.App.4th 1819, 1835, 32 Cal.Rptr.2d 906.)

The exact showing required by an employee to avoid summary judgment in the face of evidence by an employer of a non-age-based reason for an adverse action is a matter of disagreement. The disagreement stems from language in St. Mary's Honor Center v. Hicks, supra, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407, the United States Supreme Court's most recent opinion concerning the burden shifting procedure used in discrimination cases. (Lindemann and Grossman, Employment Discrimination Law, supra, ch. 2, pp. 23-25.)

In part, the court in Hicks emphasized that liability could not arise merely from a showing that the employer's stated non-discriminatory basis for the adverse action was false. It stated the ultimate issue was not whether the employer offered an unbelievable explanation for the adverse action but whether the employer acted for a discriminatory reason. (St. Mary's Honor Center v. Hicks, supra, 509 U.S. at pp. 514-515, 113 S.Ct. at pp. 2751-2752; Green v. Rancho Santa Margarita...