Levy v. Regents of University of California

• Decision Date: 31 March 1988
• Docket Number: No. A036046,A036046
• Citation: 245 Cal.Rptr. 576,199 Cal.App.3d 1334
• Court: California Court of Appeals Court of Appeals
• Parties: , 57 Fair Empl.Prac.Cas. (BNA) 252, 45 Ed. Law Rep. 1138 Robert A. LEVY, Plaintiff and Appellant, v. The REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

Page 576

245 Cal.Rptr. 576

199 Cal.App.3d 1334, 57 Fair Empl.Prac.Cas. (BNA) 252,

45 Ed. Law Rep. 1138

Robert A. LEVY, Plaintiff and Appellant, v. The REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

No. A036046.

Court of Appeal, First District, Division 3, California.

March 31, 1988.

Certified for Partial Publication. ^*

Rehearing Denied April 29, 1988.

Certiorari Denied Oct. 11, 1988. See 109 S.Ct. 231.

Robert A. Levy, in pro. per.

Michael J. Loeb, James C. Martin, Kathy M. Banke, Crosby, Heafey, Roach & May, P.C., Oakland, for defendants and respondents.

MERRILL, Associate Justice.

Appellant Robert A. Levy filed the instant employment discrimination action against the Regents of the University of California and some of its employees under the California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.) and the federal Age Discrimination in Employment Act (ADEA) (29 U.S.C. § 621 et seq.). Appellant claims discrimination in hiring based on age. A summary judgment was entered against appellant by the trial court on respondents' motion. Thereafter, appellant's motions for reconsideration and a new trial were denied. Appellant appeals from the summary judgment and the orders denying his motions for reconsideration and a new trial. ¹ We affirm.

I

Appellant was born in El Paso, Texas, on November 15, 1926. He received a Ph.D. in physics in 1955 from the University of California at Berkeley. After a series of jobs in the private sector, he secured a position as associate professor of physics at the University of Cincinnati from 1963 to 1969. However, upon being denied tenure in 1969, he left the university.

Three years before leaving the university, and shortly after turning 40, appellant began an ongoing effort to obtain a faculty position at another educational institution. His search included various campuses of the University of California. However, his efforts were without success. From the time he left the University of Cincinnati in 1969 to the time he filed the instant lawsuit in 1982, appellant remained unemployed in his chosen field.

The events giving rise to the litigation herein occurred in 1980 and 1981. In the spring of 1980, approximately 11 years after appellant left the University of Cincinnati, appellant's daughter, then a student at the University of California, Davis campus, approached the chairman of that school's physics department, Dr. Douglas McColm, and asked him to consider appellant for employment. Due to this request, McColm telephoned appellant who was living in Texas at the time, and discussed temporary lecturer positions with him. The qualifications for a temporary lecturer position included an advanced degree in physics, teaching experience and, usually, immediate availability. McColm explained the nature of such positions, that they were nonfaculty positions lasting only one quarter, that they came open on very short notice and were, thus, usually offered to members of the local physics community in Davis who were capable of going to work on short notice. Appellant indicated that he "might" be interested in such a position whereupon McColm invited him to give a one-hour lecture on campus the following month, a time when appellant planned to be on campus anyway to attend his son's graduation.

On the day of the lecture, in June 1980, appellant met with Dr. William Knox, who was about to succeed McColm as chairman of the physics department at Davis. Knox informed appellant that the earliest a temporary lecturer position would become available would probably be the winter quarter commencing in January 1981. According to Knox, he asked appellant if he would be interested in such a position on short notice and appellant, once again, indicated that he "might" be interested. Appellant claims that Knox "promised" him the position on the spot, before appellant had given his lecture and prior to Knox becoming chairman of the department.

Appellant's lecture apparently consisted of a review of two articles he had published 20 years earlier plus an informal theoretical analysis of a mileage device which he did in 1977. Neither Knox nor McColm were impressed by the lecture according to their later statements.

Following appellant's talk, appellant did not personally follow up on the temporary lecturer position which had been mentioned by Knox. Accordingly, Knox said he forgot about appellant as a possible candidate and when in November or December 1980 a sudden need arose for a temporary lecturer for the January 1981 quarter, he considered only applicants in the local physics community. Knox attached little importance to the fact that appellant gave a guest lecture in the physics department as such talks by visitors took place, on an average, three times a week. On December 22, Knox recommended that the position be filled by 30-year-old Michael Madison who had received his master's degree in physics from Davis and was a doctoral candidate in the department. Madison had also been a teaching assistant at the university the previous year and had received outstanding reviews on his skills as a lecturer.

In January 1981, appellant personally contacted Dr. Knox about the temporary lecturer position at which time he was informed that the position had been filled. Failing to get the temporary lecturer position at Davis, appellant continued to pursue other positions at the University of California. In May 1981, appellant saw an advertisement in Science magazine advertising the position of deputy director for the university-wide energy research group, headquartered in Berkeley. Qualifications noted by the advertisement included a Ph.D. or "equivalent" plus substantial research experience in an energy-related field. Additionally, the advertisement indicated that experience in the management of research programs and with information systems "is very desirable." The notice instructed potential applicants to send curriculum vitae and three letters of reference by June 1, 1981, to the university in care of Professor Jack M. Hollander. Appellant responded to the ad with a resume and letter wherein he stated that he would be unable to supply letters of recommendation by the June 1 deadline "primarily because I have been unemployed for the last dozen years and most of the people from whom I would ask letters of recommendation are retired." Appellant said he would comply with the "requirement" for letters "if you wish to consider my application."

Eighteen other individuals besides appellant applied for the deputy director position. The applications were reviewed by Dr. Hollander who ranked the applicants in five categories ranging from very strong to very weak. The three top ranked candidates were: Dr. Larry Icerman, Dr. Harvey Leff, and Dr. Michael Lederer. Icerman's qualifications included fourteen years of continuous professional academic experience including extensive experience in the field of solar and geothermal energy, co-authorship of three textbooks and authorship or co-authorship of fifty-six notes, papers and reports dealing primarily with energy resources. He currently held the position of director of the New Mexico Energy Institute. Dr. Leff, meanwhile, had eighteen years of continuous experience in physics and had authored or co-authored five energy-related works. Finally, Dr. Michael Lederer who was temporarily filling the deputy director slot while the application and selection process was pending, had twenty years of professional experience nearly all at the Lawrence Berkeley Laboratory, including experience as the department head for information and data analysis. Additionally, Lederer had authored or co-authored thirty-one publications. Of the five categories of candidates, appellant was ranked in the lowest category.

Dr. Hollander eventually recommended 43-year-old Dr. Lederer for the position. Dr. Hollander said that in addition to Lederer's superior credentials, he was impressed with the applicant's work as acting deputy director for the group. Hollander's recommendation was approved.

On June 19, 1981, appellant filed the first of two administrative complaints with the California Department of Fair Employment and Housing (DFEH). In this initial complaint, appellant alleged that the physics department at Davis had discriminated against him on the basis of age when it failed to hire him as a nonfaculty temporary lecturer for the winter quarter in January of 1981. Appellant based this charge on an alleged promise by both Drs. McColm and Knox to hire him for the winter quarter and on an earlier letter he received in 1979 from the statewide assistant vice president for academic personnel, Edward Blakely, wherein it was allegedly stated, "Apparently there is a real glut of young PhD. physicists and the competition for every post is intense." (Emphasis added.) Following an investigation into these allegations, the department advised appellant by letter that it would not be pursuing the matter because there was "[i]nsufficient evidence to prove a violation of the statute."

Appellant filed a second complaint with the DFEH on March 22, 1982, alleging that the University of California had discriminated against him on the basis of age by failing to hire him for the deputy director position. Appellant based this complaint on the fact that Dr. Hollander had not responded to his application and the fact that he had been unsuccessful in seeking employment at the university for the past 15 years, "since I first made application in 1966, just after my 40th birthday." Once again, the department found insufficient evidence to support the charge and advised appellant accordingly. ²

Following the DFEH's action on both complaints, appellant filed the instant lawsuit alleging discrimination in hiring based on age in violation of the FEHA (Gov.Code, § 12900 et seq. ³ ) and the federal ADEA (29 U.S.C. § 621 et seq. ⁴ ). The suit was filed against...