Messina v. Escondido Union High School Dist. CA4/1 ( 2014 )

Filed 1/27/14 Messina v. Escondido Union High School Dist. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CONSTANCE J. MESSINA, D061487
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2010-00056390-
CU-WT-NC)
ESCONDIDO UNION HIGH SCHOOL
DISTRICT et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Jacqueline M. Stern, Judge. Affirmed.
The Law Firm of Shane C. Brengle and Shane Brengle for Plaintiff and Appellant.
Stutz Artiano Shinoff & Holtz, Daniel R. Shinoff and Paul V. Carelli IV, for
Defendants and Respondents.
Constance J. Messina appeals from summary judgment in favor of the Escondido
Union High School District (District) on her complaint for, among other causes of action,
age discrimination and failure to reasonably accommodate her disability in violation of
California's Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.)
She contends the trial court improperly excluded certain evidence she offered in
opposition to the District's summary judgment motion. She further contends her evidence
raised triable issues of material fact as to (1) whether the District's stated reasons for not
rehiring her after her probationary period were pretextual, and (2) whether the District's
accommodations of her disability were timely. We agree the court erred in excluding
some of Messina's evidence. However, even after considering the improperly excluded
evidence, we conclude the court correctly determined the District was entitled to
summary judgment. We, therefore, affirm the judgment.
BACKGROUND1
Age Discrimination Claim
When Messina was 59 years old, the District hired her on a probationary basis as a
high school counselor. Under the terms of her employment, the District could discharge
her during her probationary period for any nondiscriminatory reason.
1 We base our factual summary on the evidence that was both admitted by the trial
court and included in the appellate record. Except as noted in part I of our discussion,
post, we did not consider any evidence excluded by the superior court or any of the
exhibits Messina lodged with the superior court because Messina did not provide the
exhibits to us. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The
Rutter Group 2013) ¶ 4:4.2, p. 4-3 ["Appellant cannot argue that trial exhibits (whether
admitted into evidence, rejected or lodged) undermine the judgment when those exhibits
are not transmitted to the appellate court"], citing Hiser v. Bell Helicopter Textron Inc.
(2003) 111 Cal. App. 4th 640, 656-657; Western Aggregates, Inc. v. County of Yuba
(2002) 101 Cal. App. 4th 278, 291.)
2
Eight months after the District hired Messina, the head counselor sent then
principal Diego Ochoa a letter complaining about Messina's unprofessional and
aggressive behavior. Some of the behavior dated back to the beginning of Messina's
employment with the District. The head counselor stated Messina rudely interrupted her
during a counseling meeting, snapped her fingers at her and told her to rush through her
presentation. Messina stated in a declaration the head counselor's complaints were later
dismissed as unsubstantiated, but Messina admitted during her deposition she spoke to
the head counselor in an unpleasant tone and snapped her fingers during the presentation.
According to Messina, she was trying to express the concept of rapid succession and to
get the head counselor to move along the presentation. Messina believed the head
counselor felt disrespected because the head counselor was a former gang member and
was easily offended.
The same month, Ochoa evaluated Messina's performance. The performance
evaluation included both commendations and recommendations and rated Messina as not
meeting the District's standards. Messina agreed with the commendations, but not the
recommendations or the rating.
About eight months later, an employee complained to Ochoa's successor, Robert
Clay,2 that Messina had been taking extended lunch breaks. Clay sent Messina an e-mail
informing her of the complaint. He later gave Messina a formal written warning about
2 Clay was a named defendant below, but he was not a party to any of the causes of
action at issue in this appeal.
3
taking extended lunch breaks. Messina denied taking extended lunch breaks, except on
one occasion for a doctor's appointment. She acknowledged, however, if the allegation
were true, it would not have been inappropriate for Clay to send the e-mail to her. She
also acknowledged Clay actually believed she had been taking extended lunch breaks.
A couple of months later, a special education administrator sent an e-mail to
Messina indicating Messina inappropriately referred a student to special education
without first utilizing lower level interventions as required by the school's policy. After
Messina made another inappropriate referral, the administrator sent an e-mail to Clay
expressing concern about Messina's professionalism and ethics. In particular, the
administrator believed Messina's actions "undermined the professional direction provided
by our professional school psychologist." Clay subsequently reprimanded Messina for
making inappropriate referrals. Although Messina believed her referrals were
appropriate because she followed protocol and because the students she referred were
extreme cases, she acknowledged Clay actually believed otherwise.
Around the same time, Clay evaluated Messina's performance. Like Ochoa's
evaluation, Clay's evaluation included both commendations and recommendations. It
also rated Messina as not meeting the District's standards. Messina agreed with the
commendations, but not the recommendations or the rating. Nonetheless, she
acknowledged Clay actually believed her performance was not moving "in an acceptable
and progressive manner."
A month later, Clay observed and evaluated one of Messina's counseling sessions.
The evaluation contained both commendations and recommendations. It also detailed
4
Clay's concerns about Messina's actions during the session. Among these concerns,
Messina did not recommend the student enroll in a second semester of English, which is
counter to the routine practice of the other counselors and the school administration's
expectations. In addition, Messina played loud, baroque music during the counseling
session and did not make any follow-up commitment to talk with the student's parent
after learning the parent had not received certain information in the mail. Messina agreed
with the commendations in the evaluation, but she thought the identified concerns were
nitpicking.
Three months later, near the end of Messina's probationary period and the day
before Messina turned 61, the District notified her it had decided not to rehire her for the
following school year. According to Messina, the stated reasons for the District's
decision were she was not a team player, she was hard to get along with, she did not
support the head counselor, and she had taken extended lunch breaks every day during
one month. Although Messina did not believe the stated reasons were true, she
acknowledged any of them would be grounds for not rehiring her if they had been true.
Messina believed the District's decision amounted to age discrimination because,
while the District elected not to rehire her, it elected to retain all of the younger
probationary counselors. Messina acknowledged, however, she did not know whether the
younger counselors had had any unfavorable performance evaluations or disciplinary
actions.
In addition, in Messina's view, Clay treated the younger counselors more amiably,
implemented more of their suggestions, and invited them to meetings from which
5
Messina and Vilma Everette, another older counselor, were excluded. He also gave them
additional responsibilities with additional pay.
Moreover, Messina believed age discrimination was implied in the various
remarks made about her job performance and ability to get along with others. She
explained throughout her deposition why she believed her superiors were mistaken in
their views about her performance and provided declarations to support her position.
She, nonetheless, acknowledged her superiors actually perceived she was not a team
player, was hard to get along with, and did not cooperate with other counselors.
As further support for her age discrimination claim, Messina provided a
declaration from Everette stating Clay referred to the other counselors as "the young
ones" when speaking to Messina and Everette. Everette additionally accused others
working for Clay of making ageist remarks, including the head counselor, who
purportedly blamed Everette's forgetfulness on Everette's age, and the vice principal, who
purportedly commented that older people could not do the same things as younger people
and the school needed to have younger people because the older people would not always
be around. Everette and a union representative also related anecdotes of older employees
being reassigned to less favorable positions ostensibly because of their age.
Failure to Reasonably Accommodate Claim
According to Messina, 90 percent of her work involved sitting and typing. During
her second year with the District, Messina complained about wrist pain and asked for
wrist supports. Within two weeks, the District performed an ergonomic assessment of
her workstation and raised her computer to eye level. The following month, the District
6
provided her with an ergonomic chair and sometime later it provided her with a document
tray. Messina testified at her deposition these were reasonable accommodations.
The same month the District performed the ergonomic assessment, Messina went
to a doctor who eventually diagnosed her with carpal tunnel syndrome. The doctor
restricted her typing to two hours in the morning and two hours in the afternoon. The
District accepted the restriction. Seven months after her doctor imposed the restriction,
Messina was required to work overtime some evenings and the District provided her with
clerical support. The clerical support continued for approximately a month until Messina
went on medical leave to have surgery. Messina testified at her deposition these were
reasonable accommodations as well.
DISCUSSION
"On appeal after a motion for summary judgment has been granted, we review the
record de novo, considering all the evidence set forth in the moving and opposition
papers except that to which objections have been made and sustained. [Citation.] Under
California's traditional rules, we determine with respect to each cause of action whether
the defendant seeking summary judgment has conclusively negated a necessary element
of the plaintiff's case, or has demonstrated that under no hypothesis is there a material
issue of fact that requires the process of trial, such that the defendant is entitled to
judgment as a matter of law." (Guz v. Bechtel National Inc. (2000) 24 Cal. 4th 317, 334
(Guz).)
7
I
Rulings on Evidentiary Objections
Preliminarily, we address Messina's contention the court erred in sustaining
objections to portions of declarations she and Everette submitted in opposition to the
summary judgment motion.3 "Evidence submitted for or against a motion for summary
judgment must be admissible if being offered at trial." (Kincaid v. Kincaid (2011) 197
Cal. App. 4th 75, 82.) Although the California Supreme Court has not decided the matter
(Reid v. Google, Inc. (2010) 50 Cal. 4th 512, 535), the majority view is that an appellate
court reviews the trial court's evidentiary rulings on summary judgment for abuse of
discretion. (Kincaid v. Kincaid, supra, at pp. 82-83.) If we determine any evidence was
improperly excluded, we consider the evidence in reviewing the correctness of the court's
summary judgment ruling. (See, e.g., Nazir v. United Airlines, Inc. (2009) 178
Cal. App. 4th 243, 257.)
A
Objections to Messina's Declaration
1
In reference to the complaint about her taking extended lunch breaks, Messina
stated in her declaration she was late coming back from a doctor's appointment one time.
She also stated it was the only instance during her entire employment with the District in
3 The District raised over 300 evidentiary objections below. The court sustained
most of them, substantially narrowing the evidentiary record on appeal.
8
which she was late coming back from lunch. The District objected to statements on the
ground they contradicted Messina's deposition testimony, and the court sustained the
objection.
The parties agreed a court deciding a summary judgment motion may disregard a
party's declaration statement if the statement contradicts the party's deposition testimony.
(D'Amico v. Board of Medical Examiners (1974) 11 Cal. 3d 1, 22 (D'Amico); Benavidez v.
San Jose Police Dept. (1999) 71 Cal. App. 4th 853, 860.) However, Messina contends the
court erred in sustaining the District's objection in this instance because her declaration
statements were not inconsistent with her deposition testimony. The District concedes
the error.
2
Messina stated in her declaration that during her second year with the District,
"[m]any of the older staff members, including counselors, were replaced with younger
models." The District objected to this statement on the grounds it lacked foundation and
called for speculation. The District also objected to this statement on the grounds it was
vague, ambiguous, and unintelligible as to "many." The court sustained the objections on
lack of foundation, speculation, and relevancy grounds.
Messina contends the court erred in sustaining the District's objections because her
statement was based on her personal knowledge. We disagree.
Relevant evidence is evidence tending in reason to prove or disprove a disputed
material fact. (Evid. Code, § 210; People v. Lewis (2001) 25 Cal. 4th 610, 639-640.)
Conversely, evidence is not relevant if it has a tendency to prove or disprove a disputed
9
material fact only by resort to speculative or conjectural inferences or deductions.
(People v. Parrison (1982) 137 Cal. App. 3d 529, 539.)
As the District points out, Messina's statement suggests the District terminated
older employees to make way for younger ones. However, Messina's declaration
contains no foundational facts showing she had personal knowledge of older workers
being terminated or that their age was the reason for their termination (as opposed to
retirement, job changes, or other neutral circumstances). Absent such foundation, any
inference to be drawn from Messina's statement is speculative and irrelevant. Thus, the
court properly sustained the District's objections to the statement.
3
Messina stated in her declaration she had received what she considered to be
reasonable accommodations, but the accommodations did not happen right away and she
did not receive clerical support until more than seven months after she developed carpal
tunnel syndrome and her doctor restricted her typing. The District objected to this
statement on the grounds it was improper opinion testimony and contradicted her earlier
deposition testimony. The court sustained the objection on both grounds.
Messina contends the court erred in sustaining the objections as to the portion of
the statement dealing with the timing of the accommodations because this portion was
not an opinion and she never testified about the timing of the accommodations during her
deposition. We agree.
As previously noted, when deciding a summary judgment motion, a court may
disregard a party's declaration statement if the statement contradicts the party's deposition
10
testimony. (D'Amico, supra, 11 Cal.3d at p. 22; Benavidez v. San Jose Police Dept.,
supra, 71 Cal.App.4th at p. 860.) Sometimes referred to as the D'Amico rule, this rule is
"limited to instances where 'credible [discovery] admissions . . . [are] contradicted only
by self-serving declarations of a party.' [Citations.] In a nutshell, the rule bars a party
opposing summary judgment from filing a declaration that purports to impeach his or her
own prior sworn testimony." (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal. App. 4th
1510, 1521-1522.)
While Messina testified at her deposition she believed the accommodations the
District ultimately provided her were reasonable, it does not appear the District's counsel
ever asked her whether she believed the District provided the accommodations in a
timely manner, even though untimeliness was one of the bases for her failure to
reasonably accommodate claim. To the contrary, when she started to testify about how
long it took the District to provide the accommodations, the District's counsel redirected
the questioning away from the issue. Accordingly, we cannot conclude the challenged
statement in her declaration amounted to an impeachment of her deposition testimony.
Moreover, the District did not challenge and the court did not exclude other
statements in Messina's declaration about the timing of the District's accommodations.
Nonetheless, the court apparently ignored this evidence because the court did not discuss
it in its ruling and instead granted the District's summary judgment motion as to
Messina's failure to reasonably accommodate claim based solely on Messina's deposition
testimony. The D'Amico rule "does not countenance ignoring other credible evidence
that contradicts or explains that party's answers or otherwise demonstrates there are
11
genuine issues of factual dispute." (Scalf v. D.B. Log Homes, Inc., supra, 128
Cal.App.4th at p. 1525.)
Further, whether an employer failed to reasonably accommodate an employee is a
predominantly legal question because it "requires a critical consideration, in a factual
context, of legal principles and their underlying values." (Haworth v. Superior Court
(2010) 50 Cal. 4th 372, 384.) The D'Amico rule does not control where the purported
contradiction involves a legal question. (See, e.g., R.J. Land & Associates Construction
Co. v. Kiewit-Shea (1999) 69 Cal. App. 4th 416, 427, fn. 4; Niederer v. Ferreira (1987)
189 Cal. App. 3d 1485, 1503.)
4
Messina stated in her declaration she "felt intimidated, harassed, and threatened
with job loss and humiliation in making special education referrals" during her
employment with the District. The District objected to the statement on the grounds it
lacked foundation and called for speculation. The District also objected on the ground
the statement was improper opinion testimony. The court sustained the objections on all
grounds.
Messina contends the court erred in sustaining the objections because the
statement was of her own perception and state of mind. The District counters the
statement lacks foundation and is speculative because it is merely an allegation of
harassment and not evidence of harassment. We need not address the matter because
Messina did not appeal the court's ruling on her harassment claim and she does explain
12
how this evidence relates to her age discrimination or failure to reasonably accommodate
claims.
B
Objections to Everette's Declaration
1
Everette stated in her declaration, "On at least one occasion, [Clay] stated that he
wants to bring in 'young blood.' " The District objected to the statement on the grounds it
was irrelevant, it was hearsay, and it was inadmissible character evidence. The District
also objected on the grounds the statement was vague, ambiguous, and unintelligible as to
"young blood." The court sustained the objection on the hearsay ground.
Messina contends the court erred in sustaining the objection because the statement
was not offered for its truth and, therefore, was not hearsay. However, in the context of
this case, the statement would have served little purpose if it was not offered for its truth.
Alternatively, Messina contends the statement falls within the "then existing state
of mind" exception to the hearsay rule. (Evid. Code, § 1250, subd. (a)(2).) We agree.
For purposes of this exception, "a statement of state of mind is one that (1) reflects the
declarant's mental state, and (2) is offered, among other purposes, to prove the declarant's
conduct (Evid. Code, § 1250, subd. (a)(2)), including the declarant's future conduct in
accordance with his or her expressed intent [citations], unless the statement was made
under circumstances indicating lack of trustworthiness (Evid. Code, § 1252; see id.,
§ 1250, subd. (a).)" (People v. Griffin (2004) 33 Cal. 4th 536, 578, disapproved of on
another point by People v. Riccardi (2012) 54 Cal. 4th 758, 824, fn. 32.) Because the
13
statement reflects Clay's mental state and was offered to prove his conduct, and because
there is no indication the statement was made under circumstances rendering it
untrustworthy, the statement was admissible under the "then-existing state of mind
exception" and the court erred in sustaining the District's hearsay objection to it.
2
Everette stated in her declaration Clay would frequently refer to her and Messina
"as 'you and your buddy' and would make statements such as 'you and your buddy have
declared war.' " The District objected to the statement on the ground it was irrelevant.
The court sustained the objection.
Messina contends the court erred in sustaining the objection because the statement
showed Clay was hostile to two older workers. However, as the District points out, the
statement was without context and, on its face, it has nothing to do with Messina's age or
disability. At most, the statement shows Clay may have disliked Messina and Everette,
but it does not show the dislike was due to their age or Messina's disability. Any such
inference would be entirely speculative. The statement, therefore, had no tendency to
prove or disprove any material fact in this case (Evid. Code, § 210) and the court properly
sustained the District's objection.
3
Everette stated in her declaration that the head counselor "often spoke of the
counselors' ages and devalued them on the basis of their age. She continues to call me
old or ask me if I need glasses." The District objected to the statement on the grounds it
14
lacked foundation, called for speculation, and was irrelevant. The court sustained the
lack of foundation and speculation objections.
Messina contends the court erred in sustaining the objection as to the portion of
the statement accusing the head counselor of calling Everette old or asking her if she
needed glasses because the statement was within Everette's personal knowledge and
showed the head counselor's personal animus against older employees. The District did
not directly respond to these contentions and instead asserted this portion of Everette's
statement was irrelevant because there is no evidence the head counselor was a decision
maker as to Messina's employment. The court, however, implicitly overruled the
District's relevancy objection and correctly so. "An age-based remark not made directly
in the context of an employment decision or uttered by a nondecision maker may be
relevant, circumstantial evidence of discrimination." (Reid v. Google, Inc., supra, 50
Cal.4th at p. 539.) Thus, a court properly considers evidence of alleged discriminatory
remarks by decision makers and coworkers in determining whether a defendant is entitled
to summary judgment. (Id. at p. 545.)
II
Age Discrimination Claim
FEHA makes it unlawful for an employer to discriminate against an employee
who is 40 or older because of the employee's age. (Gov. Code, §§ 12926, subd. (b),
12940, subd. (a).) "California has adopted the three-stage burden-shifting test established
by the United States Supreme Court [in McDonald Douglas Corp. v. Green (1973) 411
U.S. 792, 802-805] for trying claims of discrimination, including age discrimination,
15
based on a theory of disparate treatment. [Citations.] [¶] This so-called McDonnell
Douglas test reflects the principle that direct evidence of intentional discrimination is
rare, and that such claims must usually be proved circumstantially. Thus, by successive
steps of increasingly narrow focus, the test allows discrimination to be inferred from facts
that create a reasonable likelihood of bias and are not satisfactorily explained.
"At trial, the McDonnell Douglas test places on the plaintiff the initial burden to
establish a prima facie case of discrimination. This step is designed to eliminate at the
outset the most patently meritless claims, as where the plaintiff is not a member of the
protected class or was clearly unqualified, or where the job he sought was withdrawn and
never filled. [Citations.] While the plaintiff's prima facie burden is 'not onerous'
[citation], he must at least show ' "actions taken by the employer from which one can
infer, if such actions remain unexplained, that it is more likely than not that such actions
were 'based on a [prohibited] discriminatory criterion . . . .' [Citation]." [Citation.]'
[Citations.]"
"The specific elements of a prima facie case may vary depending on the particular
facts. [Citations.] Generally, the plaintiff must provide evidence that (1) he 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. [Citations.]
"If, at trial, the plaintiff establishes a prima facie case, a presumption of
discrimination arises. [Citations.] This presumption, though 'rebuttable,' is 'legally
16
mandatory.' [Citations.] Thus, in a trial, '[i]f the trier of fact believes the plaintiff's
evidence, and if the employer is silent in the face of the presumption, the court must enter
judgment for the plaintiff because no issue of fact remains in the case.' [Citations.]
"Accordingly, at this trial stage, the burden shifts to the employer to rebut the
presumption by producing admissible evidence, sufficient to 'raise[] a genuine issue of
fact' and to 'justify a judgment for the [employer],' that its action was taken for a
legitimate, nondiscriminatory reason. [Citations.] [¶] If the employer sustains this
burden, the presumption of discrimination disappears. [Citations.] The plaintiff must
then have the opportunity to attack the employer's proffered reasons as pretexts for
discrimination, or to offer any other evidence of discriminatory motive. [Citations.] In an
appropriate case, evidence of dishonest reasons, considered together with the elements of
the prima facie case, may permit a finding of prohibited bias. [Citations.] The ultimate
burden of persuasion on the issue of actual discrimination remains with the plaintiff."
(Guz, supra, 24 Cal.4th at pp. 354-356, fns. omitted.)
When moving for summary judgment, an employer may proceed directly to the
second prong of the McDonald Douglas test and present competent, admissible evidence
showing it took the challenged action for legitimate, not discriminatory reasons. (Guz,
supra, 24 Cal.4th at p. 357.) The employer's reasons need not have been wise or correct.
Rather, " 'legitimate' reasons [citation] in this context are reasons that are facially
unrelated to prohibited bias, and which, if true, would thus preclude a finding of
discrimination." (Id. at p. 358.)
17
The plaintiff then has the burden of rebutting the employer's showing "by pointing
to evidence which nonetheless raises a rational inference that intentional discrimination
occurred." (Guz, supra, 24 Cal.4th at pp. 357, 361.) "[A]n inference of intentional
discrimination cannot be drawn solely from evidence, if any, that the company lied about
its reasons. The pertinent statutes do not prohibit lying, they prohibit discrimination.
[Citation.] Proof that the employer's proffered reasons are unworthy of credence may
'considerably assist' a circumstantial case of discrimination, because it suggests the
employer had cause to hide its true reasons. [Citation.] Still, 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." (Id. at pp. 360-361.) "[A]n
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." (Id. at p. 361.) Thus,
"even after the plaintiff has presented prima facie evidence sufficient to establish an
inference of prohibited discrimination in the absence of explanation, and has also
presented evidence that the employer's innocent explanation is false, the employer is
nonetheless necessarily entitled to judgment as a matter of law unless the plaintiff
thereafter presents further evidence that the true reason was discriminatory." (Ibid.)
" 'Whether judgment as a matter of law is appropriate in any particular case will
depend on a number of factors. These include the strength of the plaintiff's prima facie
case, the probative value of the proof that the employer's explanation is false, and any
other evidence that supports the employer's case.' " (Guz, supra, 24 Cal.4th at p. 362.) A
18
court may grant summary judgment for an employer "where, given the strength of the
employer's showing of innocent reasons, any countervailing circumstantial evidence of
discriminatory motive, even if it may technically constitute a prima facie case, is too
weak to raise a rational inference that discrimination occurred." (Id. at p. 362.)
In this case, the District presented competent, admissible evidence it declined to
rehire Messina after her probationary period because of performance concerns, including
that she was not a team player, was difficult to get along with, did not support the head
counselor, and took extended lunch breaks. These reasons, if true, are facially unrelated
to Messina's age and preclude a finding of discrimination. Accordingly, the District was
entitled to judgment as a matter of law unless Messina presented competent, admissible
evidence the District's true reasons were discriminatory.
Messina countered the District's evidence with evidence explaining her conduct
and why she disagreed with and believed her superiors were mistaken in their assessment
of her performance. She also presented evidence showing at least some of her coworkers
disagreed with her superiors' assessment of her performance. She did not, however,
present evidence the District's reasons for not rehiring her were "shifting, contradictory,
implausible, uninformed, or factually baseless" such that "an inference of dissembling
may arise." (Guz, supra, 24 Cal.4th at p. 363.) Rather, the evidence in the record
indicates the District's view of her performance remained constant throughout her
employment and its decision not to rehire her was based largely on specific complaints it
received from three different employees at three different levels of the organization, only
one of whom, the head counselor, was alleged to have any bias against older workers.
19
Moreover, an inference of pretext may not be drawn from evidence the employee
or the employee's coworkers believed the employee performed well. The relevant inquiry
is whether the decision makers genuinely believed the employee had performance
problems. (See Koski v. Standex Int'l Corp. (7th Cir. Wis. 2002) 307 F.3d 672, 677-678;
Gross v. Akin, (D.D.C. 2009) 599 F. Supp. 2d 23, 31.)4 Messina repeatedly acknowledged
in her deposition her superiors actually perceived her performance to be poor. Thus,
while Messina's evidence, viewed most favorably to her, might show the District's
decision not to rehire her was unwise or based on incorrect information, the evidence
does not show the District's decision was a pretext for age discrimination.
Messina's reliance on our decision in Sandell v. Taylor-Listug, Inc. (2010) 188
Cal. App. 4th 297 (Sandell) is misplaced because the case is factually distinguishable.
Unlike Messina, the plaintiff in Sandell did not concede the decision maker genuinely
believed the plaintiff's performance was poor. Instead, the plaintiff presented significant
evidence the decision maker could not have genuinely held such a belief. (Id. at pp. 315-
319, 324.) In addition, the plaintiff presented evidence the decision maker regarded the
plaintiff as old, repeatedly expressed a preference for firing older workers and replacing
them with younger, cheaper workers, and acted in accordance with this preference once a
worker turned 50. (Id. at pp. 325-326.) Messina has not presented any comparable
evidence in this case.
4 "Because of the similarity between state and federal employment discrimination
laws, California courts look to pertinent federal precedent when applying our own
statutes." (Guz, supra, 24 Cal.4th at p. 354.)
20
The alleged ageist remarks by Clay, the vice principal, and the head counselor,
while relevant, were also insufficient to create a triable issue of age discrimination.
Messina did not provide any evidence of the context of the remarks or that the remarks
were temporally or causally connected to the District's decisionmaking process. (Reid v.
Google, supra, 50 Cal.4th at p. 541 ["who made the comments, when they were made in
relation to the adverse employment decision, and in what context they were made are all
factors that should be considered" in determining whether ageist comments create a
triable issue of age discrimination].) Moreover, where, as here, there is a dearth of
evidence the employer's decision was pretextual, such remarks will not, by themselves,
create a triable issue of material fact. (Ibid.)
The anecdotal evidence of Clay's favoritism toward younger workers and the
District's adverse employment actions against other older workers was likewise
insufficient to create a triable issue of material fact because the evidence was not specific
enough and did not involve enough employees to demonstrate a statistically reliable
discriminatory pattern strong enough to overcome the District's evidence its reasons for
not rehiring Messina were unrelated to her age. (Guz, supra, 24 Cal.4th at pp. 367-368.)
Accordingly, Messina has not established the court erred by granting the District
summary judgment on her age discrimination claim.
III
Failure to Reasonably Accommodate Disability Claim
FEHA makes it unlawful for an employer to fail to reasonably accommodate an
employee's known physical or mental disability, unless the accommodation would
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produce a demonstrable undue hardship. (Gov. Code, § 12940, subd. (m).) " 'The
elements of a failure to accommodate claim are (1) the plaintiff has a disability under the
FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and
(3) the employer failed to reasonably accommodate the plaintiff's disability.' " (Lui v.
City and County of San Francisco (2012) 211 Cal. App. 4th 962, 971.)
" '[R]easonable accommodation' means 'a modification or adjustment to the
workplace that enables the employee to perform the essential functions of the job held or
desired.' [Citation.] ' "Reasonable accommodation" may include either of the following:
[¶] (1) Making existing facilities used by employees readily accessible to, and usable by,
individuals with disabilities. [¶] (2) Job restructuring, part-time or modified work
schedules, reassignment to a vacant position, acquisition or modification of equipment or
devices, adjustment or modifications of examinations, training materials or policies, the
provision of qualified readers or interpreters, and other similar accommodations for
individuals with disabilities.' ([Gov. Code,] § 12926, subd. (o); see Cal. Code Regs., tit.
2, § 7293.9, subd. (a); accord, 42 U.S.C. § 12111(9).)" (Furtado v. State Personnel Bd.
(2013) 212 Cal. App. 4th 729, 745.)
Here, the District presented evidence that, when Messina complained about wrist
problems, it conducted an ergonomic assessment, adjusted aspects of her work space, and
provided her with a new chair and a document stand. When her doctor restricted the
number of hours she could type per day, the District immediately accepted the restriction
and, during a period several months later when she had to work overtime, the District
provided her with clerical help. At her deposition, Messina testified without qualification
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the accommodations themselves were reasonable. She does not contend otherwise on
appeal. Rather, she contends the District failed to provide the accommodations in a
timely manner.
Some federal courts have held an unreasonable delay may amount to a failure to
provide reasonable accommodation. (Valle-Arce v. P.R. Ports Auth. (1st Cir. P.R. 2011)
651 F.3d 190, 200; Selenke v. Med. Imaging of Colo. (10th Cir. Colo. 2001) 248 F.3d
1249, 1262.) However, the parties have not cited nor are we aware of any published
California cases addressing whether such a delay amounts to a failure to provide
reasonable accommodation under the employment discrimination provisions of FEHA.
Assuming, without deciding, federal law and FEHA are identical in this respect, Messina
has not shown there is a triable issue of material fact on this point in this case.
Whether a delay is unreasonable and actionable depends on the circumstances,
including the length of the delay, the reasons for the delay, whether alternative
accommodations were offered while evaluating a particular request, and whether the
employer acted in good faith. (Velzen v. Grand Valley State Univ. (W.D. Mich. 2012)
902 F. Supp. 2d 1038, 1046; West v. N.M. Taxation & Revenue Dep't (D.N.M. 2010) 757
F. Supp. 2d 1065, 1123.) Because a "responsible government is entitled to take time to
evaluate alternatives before spending taxpayer money," we conclude the District's one- or
two-month delay in procuring the new chair and other items for Messina's workstation
was not unreasonable as a matter of law. (Cloe v. City of Indianapolis (7th Cir. Ind.
2013) 712 F.3d 1171, 1179; see also Terrell v. USAir, Inc. (M.D. Fla. 1996) 955 F. Supp.
1448, 1454.)
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Moreover, an employer's delay in providing an accommodation is not actionable
where the employer has provided an interim reasonable accommodation. (Hartsfield v.
Miami-Dade County (S.D. Fla. 2000) 90 F. Supp. 2d 1363, 1373; see also West v. N.M.
Taxation & Revenue Dep't, supra, 757 F.Supp.2d at pp. 1122-1126; Ungerleider v. Fleet
Mortg. Group of Fleet Bank (D. Conn. 2004) 329 F. Supp. 2d 343, 354-355 & fn. 7.)
Here, the record shows that before the District provided Messina with clerical support, it
provided her with the interim accommodation of accepting the typing restrictions set by
her doctor. There is no evidence in the record the absence of clerical support ever caused
Messina to exceed these typing restrictions or to be unable to perform the essential
functions of her job.5 Messina, therefore, has not established the court erred in granting
the District's motion for summary judgment on her failure to reasonably accommodate
claim.
5 Messina's declaration states she "was in essence asked to do 7 or 8 hours of typing
in the 4 hours per day" permitted by her doctor; however, it does not state she ever
exceeded her doctor's restriction. To the contrary, she states in the same paragraph of her
declaration that "[t]he pain in [her] hands and wrists further restricted [her] from typing
even that 4 hours per day," suggesting she typed less than what her doctor permitted.
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DISPOSITION
The judgment is affirmed. Respondents are awarded their appeal costs.
MCCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
O'ROURKE, J.
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