Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County. James E. Oakley, Judge. Super. Ct. No. MCV12185
The Law Office of Jacob M. Weisberg and Jacob M. Weisberg for Appellant.
Auchard & Stewart and Paul Auchard for Respondent.
OPINION
HILL, J.
Appellant appeals from the judgment in an action based on a combined petition for writ of administrative mandamus and complaint for damages. The writ petition portion challenged respondent’s decision, after administrative hearing, to demote appellant from his employment as a bus mechanic and, when appellant did not accept the conditions of demotion, to terminate his employment. The complaint portion sought damages for wrongful termination and for racial discrimination under the Fair Employment and Housing Act (FEHA). The court bifurcated the writ petition from the remaining claims. After hearing, it denied the writ, finding that appellant had been properly terminated for incompetence and discourteous treatment of others. Respondent then filed a motion for summary judgment on the remaining claims, arguing that the ruling on the writ petition effectively disposed of the remaining claims. The motion was granted, and judgment was entered.
Gov. Code § 12900, et seq.
Appellant appeals the entire judgment, contending substantial evidence did not support the denial of the writ petition and summary judgment was improperly granted because triable issues of material fact remained, even after the denial of the writ petition.
FACTS AND PROCEEDINGS
Appellant was employed as a mechanic with the Madera Unified School District (District) for 16 years. In mid-1999, respondent issued warnings to him that his performance was unsatisfactory. In August 1999, appellant made comments to other employees that were perceived as threats. Respondent put him on leave and sent him to a psychiatrist for a fitness-for-duty evaluation. The psychiatrist reported appellant was suffering from depression, “severe with psychotic features,” and from alcohol abuse; appellant was also potentially violent and not psychologically fit to return to work.
Respondent notified appellant of its intent to terminate his employment and held a Skelly hearing. Respondent later served appellant with a formal notice of charges and recommendation for dismissal from position. Around the time of appellant’s Skelly hearing, appellant and other employees sent a letter to respondent, complaining that they were being discriminated against in their employment because of their race. Respondent notified appellant that, after investigation, it concluded no discrimination or harassment had occurred.
Skelly v. State Personnel Board (1975) 15 Cal.3d 194.
At appellant’s request, the appeal of the decision to terminate his employment and the appeal of the discrimination complaint were set for hearing before respondent’s governing board (Board) on May 11 and 12, 2000. On May 11, 2000, the Board held a hearing on the termination issue. At that hearing, appellant essentially conceded he had made at least some of the errors noted in the written warnings, but denied that he was incompetent or neglectful. He contended respondent had not followed its own established procedures for progressive discipline before notifying him that it intended to terminate his employment. He also argued that, rather than terminating his employment, respondent should have accommodated his disability and offered him a different position; he had indicated he was willing to accept a grounds position, with a cut in pay. On May 11, 2000, appellant withdrew his appeal of the decision on the discrimination and harassment complaint.
After the May 11, 2000, hearing, the Board found almost all of the charges true, and concluded there was good cause to dismiss appellant from his employment. Instead of terminating his employment, however, the Board determined appellant would be “deemed demoted for cause,” if he accepted a custodian position on stated conditions; otherwise, his employment would be terminated. Appellant did not accept the conditions, and his employment was terminated.
On February 8, 2000, appellant filed a complaint with the Department of Fair Employment and Housing (DFEH) alleging he had been discriminated against on the basis of race or national origin (Hispanic/Mexican-American), and had been retaliated against for complaining about such discrimination. On June 28, 2001, appellant filed a second DFEH complaint, alleging he had been terminated based on race or national origin discrimination, or in retaliation for complaining about unlawful discrimination.
Appellant subsequently filed his petition for writ of mandamus and complaint for damages and reinstatement, challenging the decision of the Board to demote or terminate him and seeking remedies for alleged unlawful discrimination and retaliation. After hearing on the writ petition, the court disagreed with the Board on a few of its findings, but agreed with the remainder and agreed that the Board was justified in imposing discipline, even termination.
Respondent then moved for summary judgment on the remaining claims. It contended the ruling on the writ petition was binding and precluded a finding that appellant’s termination was improper or based on discrimination. Respondent further contended that any other discriminatory conduct alleged did not constitute adverse employment actions actionable under the FEHA. The court agreed, and granted summary judgment.
Appellant appeals, contending substantial evidence did not support the trial court’s denial of the writ petition and triable issues of material fact remain, precluding summary judgment.
DISCUSSION
I. Denial of the Writ of Mandamus
A. Standard of Review
If the order or decision of a public agency substantially affects a fundamental vested right, the superior court must use the independent judgment standard of review and find an abuse of discretion if the findings are not supported by the weight of the evidence. (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 52; Code Civ. Proc. § 1094.5.) “Discipline imposed on [public] employees affects their fundamental vested right in their employment.” (Kazensky v. City of Merced, supra, 65 Cal.App.4th at p. 52.) Consequently, when a public employee challenges disciplinary actions taken against the employee, the superior court is required to exercise its independent judgment on the evidence and find an abuse of discretion if the agency’s findings of the employee's misconduct are not supported by the weight of the evidence. (Ibid.) In exercising its independent judgment, a trial court must afford a strong presumption of correctness to the administrative findings, and the burden rests on the party challenging the administrative decision to convince the court that the administrative decision is contrary to the weight of the evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.)
After the trial court reviews “an administrative decision under the independent judgment standard of review, the standard of review on appeal of the trial court’s determination is the substantial evidence test.” (Fukuda v. City of Angels, supra, 20 Cal.4th at p. 824.) The “appellate court must sustain the superior court’s findings if substantial evidence supports them”; it “must resolve all conflicts in favor of the party prevailing in the superior court and must give that party the benefit of every reasonable inference in support of the judgment.” (Kazensky v. City of Merced, supra, 65 Cal.App.4th at p. 52.) “‘Evidence is substantial if any reasonable trier of fact could have considered it reasonable, credible and of solid value.’” (Ibid.)
Thus, in reviewing the decision of the superior court on appellant’s writ petition, this court must to determine whether the decision is supported by substantial evidence.
B. Substantial evidence to support denial of writ of mandamus.
The notice of charges and recommendation for dismissal from position, which initiated the termination proceedings against appellant, charged him with (a) incompetence or inefficiency, (b) carelessness or negligence in the performance of duty or in the care or use of District property, (c) insubordination, and (d) discourteous treatment of the public, students, or other employees. All are recognized as cause for discipline in the District’s administrative regulations and the collective bargaining agreement.
The court found the charge of insubordination not to be true. It found the other charges to be true. It found both the charges of incompetence and the charges of discourteous treatment to be sufficient independent grounds for discipline, and concluded respondent was justified in terminating or demoting appellant.
Appellant contends the trial court’s decision to deny the writ is unsupported by the evidence because (1) respondent failed to follow its own policy of progressive discipline before giving appellant notice of its intent to terminate his employment, and (2) respondent violated FEHA and the Americans with Disabilities Act (ADA) by failing to make a reasonable accommodation for appellant’s known disabilities prior to terminating his employment.
42 U.S.C. § 12101, et seq.
1. Failure to follow procedures for progressive discipline before termination.
At the administrative hearing, appellant’s supervisor, Cliff Curtis, testified that, after a California Highway Patrol (CHP) inspection in May 1999 rated respondent’s transportation department unsatisfactory, a new disciplinary system was implemented, putting mechanics on “levels.” Level 1 was a letter of warning; if a mechanic had a deficiency in a bus that put it out of service, he was put on level 1. If within six months another out-of-service violation was found, the mechanic would go to level 2. If within six months another violation was found, the mechanic would go to level 3 for disciplinary action. Michael Burns, a representative of the California School Employees’ Association (CSEA), testified there was supposed to be training provided at each level, to identify deficiencies and train the mechanics to overcome them. He also stated the levels were not designed as a disciplinary device, but as a means of obtaining help for the mechanics. He acknowledged, however, that there was some consequence, such as a written reprimand, at each level.
At appellant’s request, the trial court took judicial notice of a document entitled “Procedure for Progressive Discipline of Mechanics for In-Proper [(sic)] Inspections of Buses.” Appellant asserted the document explained respondent’s policy on progressive discipline. The document outlines what is to be done at each level; it does not mention training. Respondent asserts that the trial court should not have taken judicial notice of the procedure document, because it was not an official policy or procedure of respondent. Whether or not it represents an official procedure of which the court should have taken judicial notice, however, the evidence supports the trial court’s conclusion that respondent substantially complied with the procedure.
The evidence presented at the administrative hearing included the following. In an evaluation dated May 28, 1998, covering the preceding year, appellant’s supervisor, Cliff Curtis, noted that appellant had problems with CHP inspections; out of eight buses assigned to appellant, only three passed their initial inspection and only one passed with no violations. Appellant’s evaluation for the next year, dated May 28, 1999, was “unsatisfactory.” It stated that appellant’s CHP inspections had not improved since the last evaluation; of the eight buses assigned to him, five were placed out of service and only one had no defects noted. The evaluation noted that the quality and quantity of appellant’s work were below standard. Attached to the evaluation is appellant’s response, in which he “strongly disagree[s] with the allegations” in it.
The CHP’s May 4, 1999, safety compliance report for its annual inspection of respondent’s school buses reflected an overall unsatisfactory rating. It placed 12 buses out of service, three of them appellant’s. On June 15, 1999, appellant was given three level 1 warnings for out-of-service violations reflected in the CHP report; appellant had performed preventive maintenance inspections on the three buses on February 10, February 19, and March 4, 1999, and the CHP inspector inspected them on March 3, March 2, and March 4, respectively. Curtis explained the reasons for the delay between appellant’s inspection of the buses and the issuance of the warnings: the CHP did not get its report to respondent until early May, he challenged the conclusions on two or three of the buses, and he was on vacation during May. Curtis was later directed to pursue the levels, and he gave the mechanics their warnings.
On June 15, 1999, appellant was also issued a level 2 letter of reprimand. It reflected that, on June 3, 1999, the lead mechanic, Louie Lopez, reinspected a bus on which appellant had performed a preventive maintenance inspection on June 1, 1999, and found two out-of-service violations which should have been detected in appellant’s inspection. On July 13, 1999, appellant was given a level 3 letter of reprimand and proposed disciplinary action. It reflected that, on July 6, 1999, Lopez reinspected a bus on which appellant had performed a preventive maintenance inspection on July 1, 1999, and Lopez found an out-of-service violation. The letter indicated the item had been noted on appellant’s preventive maintenance sheet, and should have been corrected.
Finally, on August 3, 1999, appellant was issued a level 3 letter of reprimand and proposed disciplinary action, which indicated Lopez reinspected a bus on July 16, 1999, the same day appellant had performed a preventive maintenance inspection on it; Lopez found out-of-service violations. The letter indicated appellant had noted two of the items on his preventive maintenance sheet.
At the administrative hearing, appellant did not seriously dispute that the out-of-service violations had occurred. He did dispute that some of the violations should have been detected during his preventive maintenance inspections, asserting that they did not exist when he made his inspection, but developed later, or that they could not have been discovered without a more in depth inspection. He also denied that he was incompetent or neglectful.
Appellant’s primary contention was that he was not given the benefit of the progressive discipline policy. He contended respondent should have given him notice of the violations, then training to address the deficiencies and time to improve, before moving him to the next level. Because the warnings were given close together in time, he contends respondent did not follow the letter or spirit of its disciplinary policy.
The written procedure for progressive discipline of which the court took judicial notice provides that, if a mechanic does a preventive maintenance inspection and an out-of-service violation is found during reinspection or CHP inspection, the following are to be done: document the reinspection; attempt to show the mechanic what was discovered in the inspection; complete a level 1 disciplinary form; meet with the employee and give him or her the opportunity to respond; give the employee the opportunity to have a union representative present at the meeting; present the employee with the level 1 form and have him or her sign it; and give the employee a copy of the level 1 form. If a mechanic who is on level 1 of the disciplinary process does a preventive maintenance inspection and an out-of-service violation is found during reinspection or CHP inspection, the same steps are to be followed, except the mechanic is to be given a level 2 disciplinary form. If a mechanic who is on level 2 does a preventive maintenance inspection and an out-of-service violation is found during reinspection or CHP inspection, the same steps are to be followed, except a level 3 form is given. Additional steps at level 3 include setting a meeting with the assistant superintendent - human resources, taking all documents to the meeting, and being prepared to recommend the level of discipline.
Appellant argues that respondent did not follow this procedure because no one showed appellant what was discovered in the inspection, no supervisor met with appellant to hear his side of the story, appellant was not given the opportunity to have a union representative present, and appellant did not sign the level 1 forms at the time the incidents occurred. Appellant does not cite any evidence in the record establishing that these things were not done.
Appellant also asserts respondent did not follow the progressive discipline procedure because, after he was given level 1 and level 2 notices, he was not given a program for correcting the errors, including additional training, and time to improve his performance. The written procedure does not mention providing programs for improvement or training. Burns, the CSEA representative, testified that, when the system of levels was designed, it was not intended to be used for discipline, but was to be used to identify deficiencies in the mechanics and provide training to overcome them. Burns conceded, however, that he did not know if the intent to provide training was written into the procedure, and the union did not demand a change in the system when it began to be used for discipline.
The evidence demonstrated appellant had worked for respondent as a mechanic for 16 years. Appellant asserted he knew how to repair the deficiencies noted in the disciplinary notices, but suggested he needed further training in inspecting vehicles. There was evidence appellant had received training, including training by the CHP inspector concerning what he looked for in an inspection. Additionally, two of the disciplinary letters noted that appellant had identified the violations in his inspection report, but had failed to correct them. The court implicitly found that appellant did not need, or would not have benefited from, further training.
The written procedure does not include any time periods that must pass between levels. It simply provides that, when an out-of-service violation occurs after a mechanic has been placed on a level, the mechanic is to be given the next level warning. Testimony indicated the move from one level to the next had to occur within six months of issuance of the previous level warning. There was no evidence that any particular length of time for improvement had to be allowed between levels.
The trial court agreed with appellant that level 1 and level 2 warnings should not have been given on the same day. It concluded the June 15, 1999, notices should have been designated level 1, the July 13, 1999, notice should have been designated level 2, and the August 8, 1999, was level 3. Thus, although the notices were not properly designated, appellant received three separate, successive notices as provided in the written procedure.
Sufficient evidence supports the trial court’s finding that respondent substantially complied with its procedure for progressive discipline. Appellant was given three successive disciplinary notices before he was notified of respondent’s intent to terminate his employment. There was no requirement respondent wait any particular length of time between notices; the written procedure authorized issuance of a next level warning when the next out-of-service violation was found during a re-inspection or a CHP inspection. Substantial evidence supports the court’s conclusion that further training was not likely to have improved appellant’s performance.
2. Insubordination and discourtesy.
Both the Board and the trial court found the charges of insubordination to be not true. Both found the charges of discourtesy to others, based on comments implying violent threats made by appellant to other employees, to be true. Appellant erroneously states that the charges of discourteous treatment were found untrue; he therefore does not discuss them. The trial court found discourteous treatment to be a separate, independent basis for the discipline of appellant.
In early August 1999, Lopez reported to Curtis that appellant had asked another mechanic, Tim Dias, how old he was; when Dias said “23,” appellant said, “I guess I will spare you then.” Appellant also commented, about a man in Georgia who went on a shooting spree, that the guy was all right, that he set a goal and accomplished it, and that he was appellant’s hero or appellant idolized him. Curtis reported the statements to Eva Chavez, Assistant Superintendent of Human Resources. Chavez met with appellant the same day; appellant did not deny making the statements, but said he was joking.
This evidence constituted substantial evidence to support the trial court’s finding that the charge of discourteous treatment of other employees was true and that it formed a sufficient basis for disciplining appellant.
3. Failure to make reasonable accommodation for plaintiff’s known disabilities.
Government Code section 12940, subdivision (m), makes it an unlawful employment practice "[f]or an employer … to fail to make reasonable accommodation for the known physical or mental disability of an … employee," unless the accommodation would produce undue hardship. Subdivision (n) of that section makes it an unlawful employment practice “[f]or an employer … to fail to engage in a timely, good faith, interactive process with the employee … to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee … with a known physical or mental disability.” “‘Reasonable accommodation’ may include … [¶] [j]ob restructuring, part-time or modified work schedules, reassignment to a vacant position, [or] acquisition or modification of equipment or devices.” (Gov. Code § 12926, subd. (n).) Failure to provide reasonable accommodation under section 12940, subdivision (m), is “a separate unlawful employment practice” from unlawful disability discrimination under section 12940, subdivision (a). (Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 357.) A plaintiff may file a civil action based on failure to accommodate, provided plaintiff has obtained a right-to-sue notice. (Ibid.)
Neither the petition/complaint nor appellant’s DFEH complaints included any allegations of disability discrimination or failure to accommodate appellant’s disabilities. Consequently, in this action appellant is not pursuing an affirmative claim of disability discrimination or failure to accommodate his disabilities.
Appellant’s contention that respondent failed to accommodate his disabilities or failed to engage in an interactive process to identify and implement appropriate reasonable accommodations for his disabilities was presented at the Board hearing as a defense to the charges that ultimately led to his termination. Appellant argued that he should not be terminated because respondent had not made a good faith effort to accommodate appellant’s disabilities.
A failure to accommodate an employee’s disabilities might be a viable defense in a proceeding to discipline the employee or terminate his employment if the proposed discipline or termination was based on the employee’s disability or shortcomings in the employee’s work performance caused by the disability. Here the disciplinary proceedings were based in part on appellant’s poor work performance and in part on his threats to other employees. While the psychiatrist’s report concluded appellant was suffering from mental disability and suggested the threats may have been the result of that disability, it did not suggest appellant’s poor performance on his preventive maintenance inspections was the result of this disability. Appellant has cited no evidence in the record demonstrating that his failure to conduct adequate preventive maintenance inspections was in any way connected to his mental disability. Appellant has cited no authority requiring respondent to accommodate appellant’s inability to perform the functions of his position by offering him a different position, where his inability to perform is unrelated to any disability.
Substantial evidence supported the trial court’s conclusion that the incompetence charges against appellant were true. There is no evidence the charged incompetence was related to appellant’s disability. Consequently, any failure to accommodate appellant’s disability did not excuse appellant’s poor work performance and was not a viable defense to the charges of incompetence and negligence in the performance of appellant’s duties.
4. Penalty
To the extent appellant contends termination was too harsh a penalty for appellant’s conduct and he should have been demoted or transferred to a different position instead, appellant has not established an abuse of discretion in the choice of penalty. “The penalty imposed by an administrative body will not be disturbed in mandamus proceedings unless an abuse of discretion is demonstrated. [Citations.] Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed.” (Barber v. State Personnel Board (1976) 18 Cal.3d 395, 404.) “‘“[C]ourts should let administrative boards and officers work out their problems with as little judicial interference as possible.”’” They are vested with a high discretion and “[j]udicial interference with the agency's assessment of a penalty ‘will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion by the administrative agency.’” (Kazensky v. City of Merced, supra, 65 Cal.App.4th at p. 54.) “In determining whether an agency abused its discretion in assessing a particular penalty, a court will look to ‘whether reasonable minds may differ as to the propriety of a penalty imposed.’” (Ibid.) If reasonable minds may differ, the appellate court finds no abuse of discretion. (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 46.)
The Board found true the charges of incompetence or inefficiency, carelessness or negligence in the performance of duty, and discourteous treatment of others; it found each charge independently justified dismissal of appellant from his position. Rather than terminating his employment, however, the Board stated appellant would be deemed demoted for cause to a custodian position if he accepted stated conditions. The Board’s decision also provided that, if appellant rejected any of the conditions, his employment would be deemed terminated. Appellant did not accept the conditions, and his employment was terminated.
The conditions included a suspension without pay from January 3, 2000 (the date of the Notice of Charges), through June 30, 2000 (ten days after the Board’s decision); a one year probationary period, with four evaluations at stated intervals and with the understanding that two unsatisfactory ratings would result in automatic resignation; avoidance of excessive absenteeism, with more than 10 days absence in a 365 day period to result in automatic resignation; drug and alcohol testing; and monthly verification of attendance at meetings of Alcoholics Anonymous.
Reasonable minds may differ as to the propriety of the penalty imposed by the Board. Accordingly, we find no abuse of discretion.
II. Summary judgment on discrimination and wrongful termination claims.
“Summary judgment is granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law.” (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1341.) On appeal, the court must independently apply a three-step analysis: identify issues framed by the pleadings, determine whether the moving party’s showing established facts negating the other’s claim and justifying judgment in its favor, and determine whether the opposition demonstrated the existence of a triable issue of material fact. (Id. at p. 1342.)
Summary judgment was granted on the remaining two causes of action of appellant’s first amended petition/complaint. The cause of action for discrimination in violation of the FEHA alleged discrimination on the basis of race and nationality, as set out in appellant’s DFEH complaints. His February 8, 2000, DFEH complaint alleged he was subjected to differential treatment on the basis of national origin or ancestry and in retaliation, in that he was placed on levels 1, 2, and 3 of the progressive disciplinary steps, and others not of Mexican-American ancestry were not held to the same standards; on December 17, 1999, a letter was submitted to Eva Chavez protesting the differential treatment; and on January 5, 2000, appellant was suspended and he believes this was in retaliation for having protested the discrimination. Appellant’s June 28, 2001, DFEH complaint alleged appellant was fired because of his race or national origin or ancestry and in retaliation. It alleged he was suspended without pay from January 5, 2000, until he was terminated on July 5, 2000. His supervisor, Cliff Curtis, treated the Mexican-American employees differently from the Caucasian employees in various specified ways. Appellant alleged he and other Mexican-American employees under Curtis’s supervision protested their disparate treatment in 1995 and again in 1999, and appellant was subjected to disparate treatment and termination in retaliation for those complaints.
The other remaining cause of action, for wrongful termination in violation of public policy, alleged appellant’s termination was in retaliation for filing grievances against his supervisor and filing the DFEH complaints.
In its motion for summary judgment on these causes of action, respondent argued that the court’s ruling on the writ petition was binding on appellant. Therefore, he was bound by the determination that there was good cause for his demotion and termination, and he was barred from claiming his demotion or termination was based on unlawful discrimination. Respondent also argued that the acts of discrimination alleged by appellant other than demotion or termination did not constitute actionable adverse employment actions and so could not be made the basis of a discrimination cause of action. The court agreed, concluding that the discrimination claims sought to vindicate the same primary right that was asserted in the proceedings before the Board and in the writ petition; therefore, appellant could not litigate the claims of wrongful or discriminatory termination after the court’s determination that appellant was demoted and terminated for good cause. The court also agreed that no actionable adverse employment actions, other than the demotion and termination, were alleged.
A. Res judicata and the primary right theory
In granting summary judgment, the trial court relied heavily on Takahashi v. Board of Education (1988) 202 Cal.App.3d 1464 (Takahashi). In Takahashi, a teacher was given notice that the board of education intended to dismiss her on the basis of incompetence. A hearing was held before the Commission on Professional Competence (Commission), and plaintiff defended on the ground she was not incompetent. (Id. at p. 1470.) The Commission determined there was cause for dismissal, and plaintiff was dismissed. She petitioned for a writ of mandamus, which was denied; the denial was affirmed on appeal.
Plaintiff subsequently filed a complaint in superior court alleging, among other things, that she was wrongfully terminated on the basis of race, ancestry, sex, and age. Defendants’ motion for summary judgment was granted on the ground of res judicata. On appeal, plaintiff argued that her current action was not precluded by the prior writ proceeding because she did not assert a violation of the same primary right in the two proceedings.
The court noted that the primary rights theory is used to determine the scope of a cause of action. “Under this theory, the underlying right sought to be enforced determines the cause of action. In determining the primary right, ‘the significant factor is the harm suffered.’ [Citation.]” (Takahashi, supra, at p. 1474.) Because all the causes of action alleged in the complaint under review arose in conjunction with or as a result of the alleged wrongful termination, the court concluded that they were all based on the same primary right – plaintiff’s contractual right to employment with the school district. (Id. at pp. 1475, 1476.) The court concluded:
“If violation of constitutional and civil rights had been alleged and proved in proceedings before the Commission to determine whether the district had cause to terminate plaintiff for incompetency, such violation would have made the termination wrongful. Plaintiff would then have been in a position to bring a lawsuit against defendants based on violation of her constitutional rights alleging the damages she suffered thereby, supported by the findings of the Commission. She would also have retained her position and mitigated any possible damages.” (Takahashi, supra, at p. 1477.)
Plaintiff asserted she had an absolute right to bring a civil action under the FEHA, and she could not have brought that action until after the resolution of her writ petition; therefore, she argued, the decision on the writ petition could not preclude her FEHA claim. (Takahashi, supra, at p. 1478.) Essentially, she argued that she could not file her civil action until she exhausted her FEHA remedy, and the time needed to exhaust that remedy ran beyond the time of the hearing on her writ petition. (Ibid.) The court concluded plaintiff could have filed her complaint with the DFEH earlier (it was filed one year after her termination) and she could have requested a right-to-sue letter immediately. (Id. at p. 1479.) She could then have filed her civil action prior to the termination hearing or at the same time she filed her writ petition. (Id. at p. 1480.)
The court observed: “It has long been the law in California that any available defense should be asserted at the earliest opportunity and certainly at an administrative hearing.” (Takahashi, supra, at p. 1481.) It concluded:
“Simply put, plaintiff cannot prevail against defendants on the basis that their conduct toward her that caused her termination was wrongful in the face of a final state court determination in the first action that the district had the right to terminate her for incompetency. That plaintiff elected not to litigate at the hearing before the Commission her claims that she was discriminated against in violation of her constitutional and civil rights does not detract from the finding by the Commission, and independently by the superior court, that the district had cause to dismiss her.” (Takahashi, supra, at p. 1482.)
Res judicata “‘prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.’” (Lincoln Property Co., N.C. , Inc. v. Travelers Indemnity Co. (2006) 137 Cal.App.4th 905, 912.) The doctrine is based on the primary right theory, under which the violation of a single primary right gives rise to a single cause of action. (Ibid.) “[I]f the first suit has terminated in a judgment on the merits adverse to the plaintiff, the defendant in the second suit may set up that judgment as a bar.” (Ibid.) The prior final judgment on the merits settles not only issues that were actually litigated but also every issue that might have been raised and litigated in the first action. (Getty v. Getty (1986) 187 Cal.App.3d 1159, 1173.)
The doctrine of res judicata does not apply to appellant’s claims, because there is no final judgment on the merits in a prior action that precludes relitigation of the same claims in the current action. Under California law, a judgment is not final while an appeal is pending. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 954, fn. 11, disapproved on another ground in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4.) Thus, while this appeal is pending, the decision on appellant’s writ petition is not final for res judicata purposes. Consequently, the determination in Takahashi that plaintiff was barred by res judicata from litigating her claims of discrimination because they were based on the same primary right as her claims in the prior internal administrative and writ proceedings and could have been litigated in those proceedings has no application in this case.
In Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1079-1080, the court determined that an employee with a claim of employment-related discrimination has a choice of exhausting either his FEHA administrative remedy or his employer’s internal administrative remedy before filing a FEHA discrimination action in superior court. Subsequently, in Williams v. Housing Authority of Los Angeles (2004) 121 Cal.App.4th 708,713, the court held that an employee could choose to exhaust either the FEHA administrative remedy or the employer’s internal administrative remedy for statutory FEHA claims and FEHA-related nonstatutory claims, resolution of which would have a preclusive impact on the FEHA claims, but was required to exhaust the employer’s internal remedies with respect to any non-FEHA-related nonstatutory claims.
Consistent with Schifando and Williams, appellant complied with the procedure suggested by the Takahashi court to avoid the res judicata issue. He chose not to litigate his FEHA and FEHA-related claims in the employer’s internal administrative proceedings. Instead, in the internal proceedings, he presented only non-FEHA-related arguments: that the dismissal was not justified by respondent’s stated reasons and that respondent had not followed its own progressive discipline procedures before demoting and terminating him. Separately, appellant filed DFEH complaints alleging discrimination and retaliation and obtained a right-to-sue letter. He then combined his civil complaint alleging discrimination and retaliation with a petition for writ of mandamus challenging the result of the internal administrative proceedings. Thus, he exhausted his FEHA administrative remedy for his FEHA and FEHA-related nonstatutory claims, and his internal administrative remedy for his non-FEHA-related claims, then presented all the claims together in one pleading in this action. Thus, to the extent appellant’s claims are based on the same primary right, they have been presented for adjudication in a single action.
Appellant was not barred by res judicata or the primary right theory from litigating his discrimination and retaliation claims in the trial court.
B. Effect of denial of writ petition on summary judgment issues
Although res judicata does not apply to the trial court’s decision on appellant’s writ petition, “[i]ssues adjudicated in earlier phases of a bifurcated trial are binding in later phases of that trial and need not be relitigated.” (Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 487.) Thus, the ruling on the motion for summary judgment was required to give effect to the decision on the writ petition.
Respondent contends appellant raised the issue of racial or ancestry discrimination in the internal proceedings, and therefore the discrimination issue was adjudicated in the writ proceeding and that decision precludes further litigation of the discrimination causes of action. Respondent cites two sets of questions asked by appellant’s representative in the hearing before the Board as indicating the discrimination issue was raised at the administrative hearing. Appellant’s representative asked Cliff Curtis whether the one person at the bus barn disciplined and terminated in the past few months had a Hispanic surname, and Curtis confirmed this; the representative then asked whether another employee, who had been subject to some form of discipline, had a name with a “Latin bent” to it, and Curtis agreed this was correct. The remainder of the testimony cited by respondent was elicited by respondent through questions about the ethnicity of mechanics hired by respondent. Appellant objected to those questions, asserting that there was another date set to try the discrimination complaint. Appellant did not argue in opening or closing argument that his dismissal was motivated by discrimination. Neither the decision of the Board nor the decision of the trial court mentions discrimination. The isolated questions by appellant’s representative do not establish that appellant’s discrimination claims were presented or adjudicated in the proceedings before the board or on the writ petition. Discrimination and retaliation were not “[i]ssues adjudicated in earlier phases of a bifurcated trial,” and appellant was not precluded from litigating them in his FEHA and wrongful termination causes of action. (Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co., supra, 47 Cal.App.4th at p. 487.)
The question remains: What effect did the finding that respondent had good cause to demote and terminate appellant have on the motion for summary judgment on the remaining causes of action?
“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.)
In disparate treatment cases, where it is alleged the employer treated an employee less favorably because of factors such as race, age, sex, religion, or national origin, an employee must show that the employer harbored a discriminatory intent. (Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1317.) An employee may prove discriminatory intent either by establishing that the employer's stated reason for the adverse employment decision is untrue or pretextual (a “pretext” case) or by establishing that unlawful discrimination was a substantial motivating factor in the adverse employment decision (a “mixed-motives” case).
In “pretext” cases, California has adopted a three-stage burden-shifting test. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 354; Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1748.) At trial, plaintiff has the initial burden to establish a prima facie case of discrimination; plaintiff must at least show actions taken by the employer from which one can infer, if the actions remain unexplained, that they were more likely than not based on a prohibited discriminatory criterion. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 355.) If plaintiff establishes a prima facie case, the burden shifts to defendant to produce evidence sufficient to raise a genuine issue of fact and justify a judgment for defendant that the action was taken for a legitimate, nondiscriminatory reason. (Id. at pp. 355-356.) If defendant sustains its burden, the presumption disappears and plaintiff has an opportunity to show the proffered reason was a pretext for discrimination or offer other evidence of illegal motive. (Id. at p. 356.) The court has applied the same three-part test in retaliation cases. (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95; Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138.)
In pretext cases, when defendant moves for summary judgment, it may proceed directly to the second step of the test, by presenting evidence of the nondiscriminatory reasons for its actions. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 357.) Plaintiff then has the burden to rebut defendant’s facially dispositive showing by presenting evidence raising a rational inference that intentional discrimination occurred. (Ibid.) Plaintiff must “offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.)
In a “mixed-motive” case, the employment decision resulted from a mixture of legitimate and illegitimate considerations. (Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679, 702 (Huffman).) In such a case, once the plaintiff establishes “‘that an illegitimate factor played a motivating or substantial role in an employment decision, the burden falls to the [defendant] to prove by a preponderance of the evidence that it would have made the same decision even if it had not taken the illegitimate factor into account.’” (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379.) Initially, the employer’s burden was treated as an affirmative defense; currently, it does not preclude liability, but merely limits plaintiff’s remedies. (Huffman, supra, at p. 702.)
Appellant cannot prevail on his discrimination and retaliation claims on a “pretext” theory. In a pretext case, plaintiff must prove that the alleged discrimination or retaliation was the true motive, the single motive, in the challenged employment action. (Huffman, supra, at p. 702.) The denial of the writ of mandamus established that respondent had good cause to demote or terminate appellant, and that conclusion was supported by substantial evidence. Essentially, the trial court determined that the reasons respondent articulated for demoting or terminating appellant were valid, not untrue. In the second phase of the bifurcated proceedings, that finding was binding on the court and the parties. In opposition to the motion for summary judgment, appellant could not raise a triable issue of fact by showing that the reasons given by respondent for its employment action were untrue or a pretext for unlawful discrimination or retaliation.
Appellant instead asserts this is a “mixed-motive” case, and respondent had both a legitimate motive and a discriminatory or retaliatory motive in disciplining him. In its motion for summary judgment, respondent essentially asserted the court had already determined it had a legitimate reason for disciplining appellant, and therefore appellant could not prevail in his claim that respondent acted with a discriminatory motive. The court’s decision on the writ application is not dispositive of a “mixed-motive” discrimination or retaliation claim, however. Even if respondent had a legitimate motive in disciplining appellant, appellant may still attempt to show that unlawful discrimination or retaliation also played a substantial motivating role in the decision to discipline appellant.
The analysis to be used in ruling on a motion for summary judgment appears to be the same in both pretext and mixed-motive cases. “[T]he construct of the shifting burdens … is an analytical tool for use by the trial judge in applying the law, not a concept to be understood and applied by the jury in the factfinding process.” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 202.) “‘[A]ssessing the burden of production helps the judge determine whether the litigants have created an issue of fact to be decided by the jury.’” (Ibid.) The issues raised by the shifting burdens are amenable to pretrial proceedings, such as a motion for summary judgment. (Ibid.)
“If the employer presents admissible evidence either that one or more of plaintiff's prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing. In short, by applying McDonnell Douglas's shifting burdens of production in the context of a motion for summary judgment, ‘the judge [will] determine whether the litigants have created an issue of fact to be decided by the jury.’ [Citation.]
“Indeed, this state's summary judgment law, Code of Civil Procedure section 437c, provides a particularly suitable means to test the sufficiency of the plaintiff's prima facie case and/or of the defendant's nondiscriminatory motives for the employment decision. Subdivision (o)(2) of that law sets forth the burdens of proof of the respective parties in a summary judgment motion, as follows: ‘A defendant … has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff … may not rely upon the mere allegations or denial of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.’ [Citations.] Thus, the burdens of proof for purposes of a defendant's motion for summary judgment are precisely the same as those mandated by McDonnell Douglas.” (Caldwell v. Paramount Unified School Dist., supra, 41 Cal.App.4th at p. 203, fn. omitted.)
Consequently, whether or not the three-step burden shifting test of McDonnell Douglas applies to a mixed-motive case, on summary judgment a moving defendant must show that one or more elements of plaintiff’s cause of action cannot be established or that defendant has a complete defense to it; to defeat the motion, plaintiff must then show that a triable issue of material fact exists as to that cause of action or defense.
McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.
Respondent filed its motion for summary judgment based on its showing that it had a legitimate reason for its employment decision. Appellant opposed by presenting evidence and arguing that respondent harbored an illegitimate motive in addition to the legitimate motive.
In considering a motion for summary judgment, the affidavits of the moving party are strictly construed and those of the opposing party, even if in conclusionary terms, are liberally construed. (R. D. Reeder Lathing Co. v. Allen (1967) 66 Cal.2d 373, 376.) The facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them are accepted as true. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805.) “Summary judgment is proper only if the affidavits in support of the moving party are sufficient to sustain a judgment in his favor and his opponent does not by affidavit show facts sufficient to present a triable issue.” (R. D. Reeder Lathing Co. v. Allen, supra, 66 Cal.2d at pp. 376-377.)
In opposition to respondent’s motion for summary judgment, appellant presented as facts in his separate statement that Curtis required Mexican-American employees to follow stricter rules than non-Mexican-American employees, and subjected them to harsher discipline. Appellant supported these facts with his own declaration and the declarations of Louie Lopez, Barry Fernandes, and Tony Garza, who were employees of respondent. Each declared, in substance, that Curtis, as supervisor of the Transportation Department for respondent, treated Mexican-American employees differently from non-Mexican-American employees. They declared Mexican-American mechanics were required to clock in on time and take their breaks at the scheduled times; they were not allowed to communicate directly with the bus drivers about the buses or to speak to anyone in other departments without prior authorization. The same restrictions were not placed on non-Mexican-American mechanics. Appellant and his co-employees also declared that appellant was placed on disciplinary levels for buses that were out of service while non-Mexican-American employees who had buses out of service were not placed on disciplinary levels, and some were later promoted.
Liberally construed, appellant’s declarations raised a triable issue of material fact concerning whether respondent applied its progressive disciplinary procedures in a discriminatory manner. Appellant was issued level 1, 2 and 3 notices prior to his demotion and termination, and these notices were relied on by respondent in justifying his demotion and termination. Thus, a triable issue of material fact remains concerning whether unlawful discrimination in the application of respondent’s disciplinary procedures was a substantial motivating factor in appellant’s demotion and termination.
Because triable issues of material fact remain, the summary judgment should not have been granted.
DISPOSITION
The denial of the petition for writ of mandamus is affirmed. The summary judgment in favor of respondent is reversed and the trial court is directed to deny it on remand. Each party is to bear its own costs on appeal.
WE CONCUR: LEVY, Acting P.J., CORNELL, J.