Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. C05-02513.
STEIN, J.
Alexis Boissiere (plaintiff), in propria persona, appeals from a judgment entered in favor of BNSF Railway Company (BNSF) (defendant) on his complaint alleging causes of action for racial discrimination and retaliation, in violation of the Fair Employment and Housing Act (FEHA), and for negligent and intentional infliction of emotional distress. The court entered judgment in defendant’s favor after it granted defendant’s motion for summary adjudication as to all causes of action, and to the claim for punitive damages.
On appeal plaintiff raises claims of error only with respect to summary adjudication of the causes of action for racial discrimination and retaliation. We shall find no error and affirm the judgment.
FACTS
On July 28, 2004, plaintiff filed an administrative complaint with the Department of Fair Employment and Housing (DFEH), alleging that on March 12, 2004, defendant did not hire him as a first line supervisor because he is African-American. The DFEH issued a right to sue letter with respect to this complaint on November 23, 2004.
On December 27, 2004, plaintiff filed a second charge with the DFEH, alleging that on March 4, March 12, April 1, and July 23, 2004, defendant did not hire and retaliated against him. The DFEH issued a second right to sue letter with respect to this charge on December 28, 2004.
On December 2, 2005, plaintiff filed a complaint alleging causes of action for racial discrimination and retaliation in violation of FEHA, and common law causes of action for intentional and negligent infliction of emotional distress.
Defendant filed a motion for summary judgment, or in the alternative for summary adjudication, based upon the foregoing procedural facts, and the following assertions of undisputed facts:
In March 2004, plaintiff applied for the position of first line supervisor at BNSF. An applicant must participate in the first line supervisor candidate assessment process. The assessment involves five steps: 1) A screening of resumés and applications to determine whether the applicant meets the minimum requirements for the job; 2) a leadership inventory; 3) an administrative simulation; 4) a supervisory role-play simulation; and 5) a structured panel interview. An applicant must pass all of these tests, and must be successful at each step, in order to progress to the next.
After plaintiff applied, he was called to attend a testing and interview session. He passed the leadership inventory test and took the administrative simulation test. Before the corporate office scored the administrative simulation test, plaintiff had a scheduled interview with Mark Lee, the Superintendant of Operations for the Northern California Division. Lee recommended plaintiff for the telecom or signal area. Soon after the interview, Jacqueline Gomez, a BNSF human resources officer, informed plaintiff that the results of the administrative simulation test had been received from the corporate office, and that he did not pass. He therefore was no longer a qualified candidate, and was not hired.
Of the four candidates who applied for the position, three, including plaintiff, failed one of the required tests. Defendant hired the fourth candidate, who successfully passed all the required tests. This candidate also had stronger educational credentials than plaintiff, because he had a postgraduate degree; specifically, an MBA.
In support of the foregoing assertions of fact defendant submitted the declaration of Jacqueline Gomez. Defendant also submitted copies of the first line supervisor candidate assessment process, and the resumé and other employment application materials of the successful applicant for the job plaintiff sought.
In opposition to the motion, plaintiff contended triable issues of fact existed on the question whether he was qualified for the position, and that defendant’s stated reason for not hiring him was pretextual. Plaintiff relied primarily upon circumstantial evidence that he argued supported a reasonable inference he in fact passed the administrative simulation test, and that defendant lied about the results. For example, plaintiff noted that defendant submitted only a declaration from a human resource officer that the corporate office scored the test and that he failed. He argued defendant’s failure to submit any documentary record of the test results was circumstantial evidence supporting an inference that he in fact passed the test. He also noted that, under defendant’s own rules, an applicant was not supposed to advance to the next step involving an interview unless he passed the test, yet he did have an interview. He asserted this too constituted circumstantial evidence that he must have passed the test, and that BNSF falsely informed him he failed. Plaintiff further relied upon what he characterized as direct evidence of discrimination consisting of evidence that, while he was sitting in the test room for the first line supervisor position, an unidentified BNSF employee told him he was in the wrong room because the room was for management testing. Finally, plaintiff also relied on a comment made to him by BNSF’s vice-president and general counsel, Mr. Hoferer, after BNSF informed plaintiff that he had not passed the test, that plaintiff was not qualified for any position.
The court denied summary judgment, but granted summary adjudication as to all causes of action, and the claim for punitive damages. The court determined that plaintiff’s claim for race discrimination based upon the failure to hire him on March 12, 2004, was filed outside the one-year limitation period established by Government Code section 12965, subdivision (b). It also ruled that the undisputed facts established plaintiff could not make a prima facie case of racial discrimination, because he did not pass a required test and because the person who was hired passed all the tests and had superior educational credentials. The court further found that these same facts constituted a legitimate nondiscriminatory reason not to hire him. The court also stated that plaintiff failed “to produce competent evidence” creating a triable issue that the stated nondiscriminatory reason was pretextual.
With respect to the retaliation cause of action, the court granted summary adjudication on the ground that plaintiff could not establish a causal link between the protected activity and an adverse employment action, because the alleged retaliation occurred on March 4, March 12, April 1, and July 23, 2004, before he engaged in the protected activity of filing the first charge with the DFEH on July 28, 2004. The court further determined that, in any event, the adverse action consisted of the failure to hire him, and defendant had submitted undisputed facts meeting its burden to show a legitimate nondiscriminatory reason for the failure to hire plaintiff, and plaintiff had failed to produce competent evidence of pretext.
The order stated that in ruling on the motion, the court exercised its discretion to consider plaintiff’s oversized brief (see California Rules of Court, rule 3.113(e)), but did not consider plaintiff’s opposition to defendant’s reply. Nor did it consider plaintiff’s objections made in his separate statement of undisputed facts. The court granted his request for judicial notice only as to exhibits 18-26.
After the hearing on defendant’s motion, the court announced its ruling granting summary adjudication as to all causes of action and the punitive damage claim in a minute order. Plaintiff filed a “notice of motion for new trial date/restoration to calendar.” The court construed this filing as a motion to reconsider, and denied it because plaintiff failed to present newly discovered evidence, or any other grounds for reconsideration.
We shall hereafter also refer to this motion as a motion to reconsider.
The court entered a judgment in defendant’s favor, and plaintiff filed a timely notice of appeal.
ANALYSIS
On appeal, plaintiff does not raise any claim of error with respect to the denial of his motion to reconsider. Nor does he challenge the court’s grant of summary adjudication with respect to the causes of action for negligent and intentional infliction of emotional distress, or the claim for punitive damages. He raises claims of error only with respect to summary adjudication of the causes of action for racial discrimination and retaliation in violation of the FEHA.
Since plaintiff offers no argument on appeal challenging the court’s grant of summary adjudication with respect to the causes of action for negligent and intentional infliction of emotional distress, or the claim for punitive damages, we need not address defendant’s arguments in support of the court’s ruling on these claims.
Whether reviewing an order granting summary adjudication or summary judgment, the standard of review is the same: “[W]e 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).)
1. Race Discrimination in Violation of FEHA
We shall uphold the court’s summary adjudication order as to this cause of action on the ground that the race discrimination claim was barred because it was filed more than one year after the DFEH issued a right to sue letter with respect to plaintiff’s complaint that BNSF refused to hire him based upon his race. We therefore need not reach the more complex question whether under McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (Green), the undisputed facts established plaintiff could not make out a prima facie case, or whether defendant met its burden to show it did not hire plaintiff for a legitimate nondiscriminatory reason, or whether plaintiff created a triable issue that the stated reason was pretextual.
“Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes. [Citation.] In particular, California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination, including age discrimination, based on a theory of disparate treatment.” (Guz, supra, 24 Cal.4th at p. 354.) The California courts therefore apply the burden-shifting framework set forth in Green, supra, 411 U.S. 792.
Government Code section 12965, subdivision (b) provides that a civil law suit alleging a violation of FEHA must be filed within one year of the issuance of the right to sue letter. It was undisputed that on July 28, 2004, plaintiff filed a complaint with the DFEH alleging that on March 12, 2004, defendant discriminated against him by not hiring him as a first line supervisor. It was also undisputed that the DFEH issued a right to sue letter, with respect to this race discrimination complaint, on November 23, 2004. Plaintiff did not file his civil action until December 2, 2005.
It is well established that the one-year limitations period set forth in FEHA applies to statutory claims, but not alleged common law causes of action that are independent of the act. (See Rojo v. Kliger (1990) 52 Cal.3d 65, 84 [Gov. Code, § 12965, subd. (b) and other provisions applicable to the FEHA administrative process apply to civil actions brought pursuant to FEHA, but not to common law claims or claim under Civ. Code, § 51]; see also Carmichael v. Alfano Temporary Personnel (1991) 233 Cal.App.3d 1126, 1131-1132.) The first and second causes of action for race discrimination and retaliation alleged only violations of “Government Code Section 12940 et seq.” The court therefore correctly concluded that the complaint alleged only statutory claims for violation of FEHA, and that the limitation period set forth in Government Code section 12965, subdivision (b) applied.
We note that, in the proceedings below, plaintiff also argued that Government Code section 12965, subdivision (b) did not apply because he had a factual basis for a claim under Code of Civil Procedure section 51.7 for racially motivated threats, violence, or intimidation, based upon the comment made by Mr. Hoferer that plaintiff was unqualified for any position. This contention is also unavailing because the complaint did not allege a violation of Civil Code section 51.7. The complaint alleged only statutory claims under FEHA, and common law causes of action for negligent and intentional infliction of emotional distress. Government Code section 12965, subdivision (b) therefore applies, and the racial discrimination claim encompassed in the July 28, 2004 charge was barred.
Plaintiff argues it was immaterial that the period specified in Government Code section 12965, subdivision (b) had run, because the DFEH issued a second right to sue letter with respect to his subsequent administrative complaint alleging retaliation, and his civil complaint was filed within a year of the second right to sue letter. Plaintiff argues that the retaliation complaint he filed with the DFEH revived or renewed his prior complaint of refusal to hire him based upon his race, and that therefore the second right to sue letter triggered a new one-year period that encompassed not only his retaliation claim, but also the prior complaint for discrimination based upon the failure to hire him. Yet, plaintiff cites no authority for the proposition that the filing of a subsequent complaint with the DFEH somehow nullifies the effect of issuance of a right to sue letter with respect to a prior complaint, and we have found none.
The foregoing undisputed facts established that the cause of action for racial discrimination in violation of the FEHA based upon the failure to hire plaintiff was filed outside the one-year period set forth in Government Code section 12965, subdivision (b). We therefore conclude that the court properly granted summary adjudication as to this cause of action.
2. Retaliation
On December 27, 2004, plaintiff filed a second charge with the DFEH alleging that on March 4, March 12, April 1, and July 23, 2004, defendant retaliated against him. The DFEH issued a second right to sue letter with respect to this charge on December 28, 2004. The court correctly found the cause of action based upon retaliation alleged in the second DFEH charge was not time-barred because plaintiff filed his civil complaint within one year of the issuance of this right to sue letter.
Instead, with respect to retaliation, the court granted the motion on the ground that, among other things, the undisputed facts established that plaintiff could not meet his burden to show a causal link between the protected activity, i.e., the filing of a DFEH complaint, and an adverse employment action.
The prohibition against discriminating against persons for engaging in protected activity set forth in Government Code section 12940, subdivision (h) applies not only to employees but also to job applicants. (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 159-161.) Here, although plaintiff was not a BNSF employee, he contended that BNSF retaliated against him for filing a DFEH complaint by not hiring him. “[T]o establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) The plaintiff’s prima facie case of a causal link may be established by circumstantial evidence such as a showing of “proximity in time between the protected action and the allegedly retaliatory employment decision.” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388 (McRae).)
It is undisputed that plaintiff filed the first DFEH complaint on July 28, 2004, alleging BNSF failed to hire him on March 12, 2004, based upon his race. Filing a complaint with the DFEH is protected activity. (McRae, supra,142 Cal.App.4th at p. 386). Plaintiff’s second DFEH complaint alleged BNSF retaliated against him and that the retaliation occurred on March 4, March 12, April 1 and July 23, 2004. All of these dates are prior to the protected activity of filing the July 28, 2004 complaint with the DFEH. Since the alleged retaliation preceded the filing of the first DFEH complaint, the court correctly concluded plaintiff could not met his burden to make a prima facie case of a causal link between the protected activity and the retaliation. (See Clark County Sch. Dist. v. Breeden (2001) 532 U.S. 268, 272-274 [no inference of causal link could be drawn based upon temporal proximity where the employer considered transferring the employee before learning she filed a discrimination lawsuit].)
Plaintiff asserts on appeal that the court erred in granting summary adjudication as to this cause of action because, in addition to the specific dates of retaliation he alleged in his second DFEH complaint, he applied for five other positions with BNSF between July 25, 2004, and December 23, 2004. He contends BNSF retaliated against him for filing the first DFEH complaint by refusing to hire him for any of these positions. He argues that since he applied for these other positions after he filed the first DFEH complaint, this evidence would support an inference of a causal link between the protected activity and the retaliation.
We assume, arguendo only, that these additional asserted retaliatory acts were sufficiently related to the retaliation alleged in the administrative complaint to avoid being barred by the requirement of exhaustion of administrative remedies. (See Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1121-1123.)
Yet, the evidence plaintiff cites in support of this argument is set forth in a separate statement of undisputed facts, supporting documents, and points and authorizes he filed in support of the motion to reconsider the order granting summary adjudication, and his supplemental declaration in opposition to defendant’s reply, which the court explicitly stated it did not consider in ruling on the motion for summary adjudication. It is plaintiff’s burden, as the appellant, to demonstrate error and provide appropriate citation to the record. It is also well established that our review of an order granting summary adjudication or summary judgment is limited to the evidence submitted in the supporting and opposition papers, except for evidence to which the court has sustained objection. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.) Evidence submitted in support of a subsequent motion to reconsider does not support a claim of error with respect to the court’s order granting summary adjudication.
For similar reasons, the documents plaintiff cites, which were included as exhibits to plaintiff’s supplemental declaration in opposition to defendant’s reply with respect to the motion for summary adjudication, also do not support the claim of error. In ruling on the motion for summary adjudication, the court explicitly exercised its discretion not to consider plaintiff’s supplemental filing, titled, “Opposition to Defendant’s Reply.” It was within the court’s discretion to refuse to consider this filing. The supplemental declaration was not necessary to respond to new material raised for the first time in defendant’s reply, and the court had already allowed plaintiff to file an oversized brief. Plaintiff had a full opportunity to present argument and evidence in opposition to the motion, and therefore refusal to consider plaintiff’s unauthorized reply to defendant’s reply was not an abuse of discretion. Properly excluded evidence does not, of course, create a triable issue of fact, and cannot form the basis for a claim of error on appeal with respect to the court’s grant of summary adjudication.
CONCLUSION
The judgment is affirmed.
We concur: MARCHIANO, P. J. MARGULIES, J.