Morgan v. Regents of University of Cal.

• Decision Date: 30 November 2000
• Docket Number: No. A087591.,A087591.
• Court: California Court of Appeals Court of Appeals
• Parties: Adolphus Ray MORGAN, Plaintiff and Appellant, v. The REGENTS OF The UNIVERSITY OF CALIFORNIA, Defendant and Respondent.

105 Cal.Rptr.2d 652

88 Cal.App.4th 52

Adolphus Ray MORGAN, Plaintiff and Appellant, v. The REGENTS OF The UNIVERSITY OF CALIFORNIA, Defendant and Respondent.

No. A087591.

Court of Appeal, First District, Division 2.

November 30, 2000.

Dorothy Davis Guillory, San Leandro, CA, for Appellant.

John Leslie Beers, Fisher & Phillips LLP, Oakland, CA, for Respondent.

KLINE, P.J.

Adolphus Ray Morgan appeals from a summary judgment granted in favor of the Regents of the University of California (University) in his employment discrimination action.¹ He contends the trial court erred in granting summary judgment because he presented direct evidence that respondent's failure to rehire him after a layoff was in retaliation for his prior complaint about race discrimination; respondent failed to demonstrate legitimate reasons for not rehiring him; and he raised triable issues of material fact as to whether the reasons offered to justify the employment decision were pretextual. We affirm.

STATEMENT OF THE CASE AND FACTS

Appellant worked as an electronic technician in the University's mechanical engineering department from 1982 until June 30, 1995. His primary job duties included installation and maintenance of electrical equipment, electronic equipment and computers. He and one other employee were the only two African American electronic technicians in the University's college of engineering.

In August 1994, appellant filed an internal grievance claiming racial discrimination in that he had been docked for leaving work early one day while two other employees who left early that day were not docked. The administrative review of the grievance, conducted by Brenda Greenwood, concluded that the three employees should have been treated equally and that appellant should be restored his one and a half hours of leave without pay, but noted that appellant had an "ongoing attendance problem with heavy leave usage" and that appellant's failure to follow rules and procedures had led his supervisor "to impose different expectations" on him. Greenwood found no evidence of discrimination but noted problems with appellant's attendance and performance on the job as well as problems of communication and trust between appellant and his supervisor. Greenwood's report noted that during an informal meeting facilitated by the chairman of the department, appellant "apologized to Supervisor Shaw and indicated that the grievance was not based on racial discrimination." The University followed Greenwood's recommendation to restore appellant his leave time.

On May 1, 1995, Morgan was notified that he was to be laid off effective July 1, 1995, due to a permanent budget reduction for the department of mechanical engineering. The letter informing him of the layoff also informed him of his right to preferential rehiring in certain circumstances: Under the University's staff personnel policies, appellant had a right to recall to positions in the same class in the Department of mechanical engineering and to preference for employment elsewhere on campus at the same or a lower salary level, provided he was qualified for the jobs in question. According to the declaration of Karen Burke Johnson, a principal personnel analyst with the University, "[a]lthough two jobs may have the title "Electronic Technician," the qualifications/functions for each position may vary widely, depending on the needs of each Department." Burke Johnson stated that the preferential rehire program was implemented by sending the application of layoff job candidates to the hiring department ahead of other applications; the department would determine whether the candidate was qualified by reviewing the application and/or interviewing the candidate, then was required to offer the job if the candidate was qualified and could reject the application if the candidate was not qualified. The language of the University's "Preferential Referral Form" states that an interview is required for preferential rehire candidates.

On May 10, 1995, appellant filed a formal grievance challenging his layoff. Appellant stated that he believed the layoff was "partially in response to my filing a grievance last year" and that he was being discriminated against because of his race. The lay off took effect on July 1, 1995.

Appellant filed a complaint with the Department of Fair Employment and Housing (DFEH) and Equal Employment Opportunity Commission (EEOC) on August 30, 1995, and an amended complaint on October 26, 1995, alleging racial discrimination. The complaint identified the most recent discrimination as having occurred on May 1, 1995.

An arbitration hearing on appellant's grievance was held on November 9, 1995.² The arbitrator concluded that the budget crisis was legitimate, the decision to lay off the least skilled electronics technician in the department could not be second-guessed, and "[d]espite the inferences, there is no persuasive evidence supporting a finding of racial discrimination or reprisal in the decision to lay [appellant] off."³ The arbitrator did find that the department had failed to follow a requirement that the department head discuss layoffs with the personnel manager and the affirmative action officer, and for this violation awarded appellant one week's salary as damages.

After his layoff, appellant applied for some 25 jobs at the university in 1995 and seven jobs in 1996.⁴ He was hired for none of them. Appellant stated in a declaration that Burke Johnson, his work counselor, helped him choose positions for which he was qualified and advised him to apply for only positions that matched his education, background and experience. Appellant testified in a deposition in January 1999 that Burke Johnson told him when he began to consult with her that he would never get rehired because he had filed a grievance against the University. He testified that Burke Johnson also told him that prospective employers in the University would have his personnel file and his "filing a grievance and the retaliation stuff may come up." Appellant stated that another personnel representative, Ms. Kuroiwa, told him it was a waste of time to file a grievance and to file job applications.

Appellant was interviewed for three of the positions for which he applied in 1995. According to appellant, the selecting official for one of the jobs had reviewed appellant's personnel file and taken note of the fact he was in arbitration concerning his union grievance. The correspondence to which appellant cites, after listing four reasons appellant's application was rejected due to his lack of expertise, states: "Other concerns: Mr. Morgan arrived 20 min. late to the interview. I had given him specific instructions as to our location on the campus but he said that he was on the other side of the campus. After reviewing his personnel file, it was noted that Mr. Morgan has developed a pattern of attendance problems and is currently in arbitration pending a grievance. Given the half-time nature of the position we anticipated that time could become problematic."

In March 1996, a vocational rehabilitation counselor who had been asked to evaluate appellant's ability to obtain a "comparable position"⁵ in connection with appellant's claim for disability income indicated that a University compensation analyst had reported that "all electronics technicians with the position code of 8303 are expected to perform the same basic job duties" and concluded that there were positions at the University for which appellant was qualified and which he was medically able to perform.

In May 1996, appellant applied for a position as senior electronic technician in the "Information, Resources and Communications Department" of the office of the president. According to the declaration of employment officer Christine Nishida, this position was eliminated as part of a reorganization following the departure of the individual responsible for supervising the position, and none of the applicants for the position were interviewed or hired.

Also in May 1996, appellant applied for a position as electronic technician in the college of chemistry. Jolene Adams, a computing resource manager in the college of chemistry, was the person responsible for deciding not to hire appellant for this position. She stated in her declaration that she contacted appellant to schedule an interview for this position, but appellant was out of town during the interview process. Adams declared that she could not postpone the interview until appellant's return because the University had an urgent need to fill the position. She further stated that the individual who was offered the position was more qualified than appellant because he had "a broader experience base in repair and in troubleshooting in a network environment." At the time Adams decided not to hire appellant, she had no knowledge of his prior complaints of retaliation and/or discrimination.

In July 1996, appellant applied and was interviewed for a position as an electronic technician trainee in the electrical engineering and computer sciences department. Ferenc Kovac, an engineering manager in the department, made the decision not to hire appellant. According to Kovac's declaration, appellant was not qualified for the position because he was "considered weak in his understanding of basic electronic circuits and computer components," he "lacked knowledge of the concept of the MAC operating system, and the type of CPU systems in PCs," and he "couldn't describe the functionality of computer boards he had used, data acquisition or types of video cards." The person hired for the position was more qualified than appellant because he "demonstrated a thorough understanding of basic electronics and analog and digital circuits, and he showed enthusiasm and had strong interpersonal, customer service, and communication skills." At the time he made the decision not to hire appellant, Kovac had no knowledge of appellant...