Gould v. Cal. Dept. of Corrections and Rehabilitation CA4/1 (2015) · DecisionDepot
Gould v. Cal. Dept. of Corrections and Rehabilitation CA4/1
California Court of Appeal Jun 30, 2015 No. D067425Unpublished
Filed 6/30/15 Gould v. Cal. Dept. of Corrections and Rehabilitation CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
TIMOTHY GOULD et al., D067425
Plaintiffs and Appellants,
v. (Super. Ct. No. CIVRS1009426)
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Bernardino County,
Barr L. Plotkin, Judge. (Retired judge of the San Diego Sup. Ct.) Affirmed.
Law Offices of Sandra L. Noël and Sandra L. Noël for Plaintiffs and
Appellants.
Kamala D. Harris, Attorney General, Alicia M. B. Fowler, Assistant Attorney
General, Christine B. Mersten and Alice Q. Robertson, Deputy Attorneys General, for
Defendant and Respondent.
Appellants Timothy Gould, Alex Mihalkovitz, Dema Osborn, Annette Miles,
Deborah Castaneda, Ercell Sellers, Eric Newton, Frank Hernandez, Kip Brown, Marco
Leon and Oliver Aleta (collectively appellants or plaintiffs) appeal a judgment entered
after the trial court granted summary judgment in favor of their employer, the
California Department of Corrections and Rehabilitation (the Department), on their
Belmontez and DeYoung influenced Macomber's decision; (3) the Department's
shifting reasons for the policy change; and (4) nonstatewide implementation of the
policy. As we shall explain, appellants have failed to meet their burden of showing a
triable issue of material fact on pretext.
The Department presented evidence showing the chain of command in the
transportation unit. The southern hub has about 50 officers that are supervised by 10
sergeants. The sergeants are supervised by a lieutenant. DeYoung is the lieutenant for
the southern hub. The lieutenant is supervised by the captain of the southern hub.
From about May 2006 to April 2009, Belmontez was the captain of the southern hub.
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The captain reports directly to the chief of the southern hub, currently John Oliva.
Macomber was the chief of the entire transportation unit for the Department.
Appellants presented evidence that Belmontez referred to senior staff as
dinosaurs, O.G.s (Old Guys) and cancer. Belmontez, however, denied having any
discriminatory intent and generally explained that the terms he used were not intended
to be derogatory. Appellants argue these statements show discriminatory animus to
employees based on their age. Appellants also presented evidence showing DeYoung
may have harbored a discriminatory animus by advising sergeants to stop giving senior
officers above standard evaluations. In turn, appellants contend Belmontez and
DeYoung influenced Macomber's decision to change the policy under a "cat's paw"
theory.
Under a cat's paw theory, an innocent decision maker (Macomber) could be a
cat's paw doing the bidding of others (Belmontez and DeYoung) who possess a
discriminatory animus. (See Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th
95, 114-115, fn. 14.) Appellants' contention that Belmontez or DeYoung influenced
Macomber's decision to change the policy is pure conjecture that is not supported by
the evidence.
While the evidence is sufficient to create a triable issue of fact as to whether
Belmontez and DeYoung harbored a discriminatory animus, there is no evidence
showing these individuals influenced Macomber's decision to eliminate the seniority-
based policy. Rather, the evidence shows that when Macomber asked Belmontez for
feedback regarding the southern hub's seniority-based system, Belmontez informed
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Macomber that the seniority-based system worked well in the southern hub.
Belmontez stated that during the evaluation and input process, he supported use of the
seniority-based system and recommended it to Macomber because it was impartial and
easy to understand.
Appellants next argue that numerous contradictory explanations for the policy
change provided by management give rise to an inference that the change in policy
was a pretext for age discrimination. We disagree.
Macomber explained that he changed the work distribution system to
standardize procedures and increase efficiency. He noted complaints that the
seniority-based system was difficult to monitor, concentrated the workload within a
small group of senior employees and had few controls in place to detect or correct
inefficient or inequitable practices. He also saw a need to provide greater training
opportunities to less senior employees because under the seniority-based system, low
seniority employees had the least contact with the most experienced employees.
Appellants, however, presented no evidence that Macomber's reasons for altering the
policy ever changed. Rather, appellants presented evidence regarding what they were
told by others regarding the policy change. For example, Gould stated employees
were originally told the reason for the change was to make overtime more fair for all
officers. While appellants presented evidence showing they were provided differing
reasons for the policy change, they presented no evidence tracing any differing reasons
to Macomber.
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Appellants point to the face of Macomber's written policy which stated the
"purpose and objectives of this procedure [was] to provide a standardized method . . .
intended to provide fair and equitable distribution of assignments to staff." They
complain no reason existed for changing the policy because the original seniority-
based rotation policy was fair and equitable. However, where, as here, an employer
puts forth reasons for its employment decision that are "facially unrelated to
prohibited bias," its "proffered reasons, if 'nondiscriminatory on their face' and
'honestly believed' by [the] employer, will suffice even if 'foolish or trivial or
baseless'. . . ." (Guz, supra, 24 Cal.4th at p. 358.)
Finally, appellants complain the Department never implemented the new policy
statewide in 2007 and this shows that the Department's reason for changing the policy
was merely a pretext to discriminate against older employees. Appellants, however,
presented no admissible evidence supporting their assertion that when the Department
rolled out the new policy in 2007, it failed to implement it statewide.
To support their contention that the Department failed to implement the new
policy statewide, appellants cited to the deposition testimonies of Sergeants Wayne
Bennett and Arthur Valdez, showing these officers had spoken to unknown individuals
from the northern and central hubs at some unknown time and learned that these hubs
did not change to an alphabetic roster with Valdez stating that these hubs still used a
seniority system. The Department originally objected to these statements as hearsay,
lacking in personal knowledge, irrelevant and as improper opinion evidence. In its
resubmitted objections, the Department eliminated its improper opinion evidence
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objection, but otherwise objected to these portions of Bennett's and Valdez's
deposition testimony on the same grounds. The trial court sustained the objections.
Appellants assert the trial court erred in sustaining the objections because they
offered the statements by Bennett and Valdez as impeachment evidence and to show
the state of mind of the listeners, Bennett and Valdez. We disagree.
" 'Hearsay evidence' is evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove the truth of the
matter stated." (Evid. Code, § 1200, subd. (a).) "Under the Evidence Code, no
hearsay problem is involved if the declarant's statements are not being used to prove
the truth of their contents but are being used as circumstantial evidence of the
declarant's mental state." (Assem. Com. on Judiciary com., 29B pt. 4 West's Ann.
Evid. Code (1995 ed.) foll. § 1250, p. 281.) Here, the state of mind of Bennett and
Valdez (i.e., whether Bennett or Valdez believed Belmontez's stated reasons for the
policy change in the southern hub) is irrelevant. The Department's uncontroverted
evidence shows Macomber, not Belmontez, made the decision to change the policy in
the southern hub. Because Bennett's and Valdez's statements constituted inadmissible
hearsay, the trial court did not err when it sustained the Department's objection.
Appellants assert the hearsay statements of Bennett and Valdez were admissible
to impeach statements made by Macomber, Belmontez and DeYoung regarding the
policy change being implemented in all hubs. Evidence of a statement made by a
witness is not made inadmissible by the hearsay rule if the statement is inconsistent
with that witnesses' testimony. (Evid. Code, § 1235.) Appellants cited no authority
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that a declarant's hearsay statements become admissible if they impeach the testimony
of other witnesses, and we are unaware of any such authority. Even assuming the
admissibility of Bennett's and Valdez's hearsay statements that the new policy was not
implemented at all hubs, that the new policy may not have been implemented as
intended, standing alone, does not show Macomber created the policy to discriminate
against older employees.
Finally, appellants cited to the declaration of Adolfo Rivas, a correctional
officer who has worked at the central hub since 2001. Rivas stated that after
Belmontez transferred to the central hub in 2009, the central hub policy changed so
that overtime was earned based on hours worked and Belmontez made it difficult for
senior staff to earn overtime. Rivas also stated he felt Belmontez ostracized him and
other senior officers and "just tolerate[ed] the senior staff."
Appellants assert that based on Rivas's declaration, a reasonable juror could
conclude the reasons stated by the Department for changing the policy in 2007 were
not legitimate and were a pretext for discrimination. The Department objected to
Rivas's statements as lacking personal knowledge and improper opinion testimony.
The trial court, however, overruled these objections.
Assuming, without deciding, Rivas's statements were admissible, they fail to
create a triable issue of fact showing the Department implemented the policy change in
2007 as a pretext to discriminate based on age. While Rivas's statements exhibit
possible discriminatory age-based animus by Belmontez, there is no evidence showing
Belmontez influenced Macomber's decision to change the policy in 2007.
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Additionally, while Rivas complained about Belmontez's 2009 policy change at the
central hub connecting overtime to hours worked, this change is not at issue in this
action.
In summary, the statements cited by appellants were not substantial enough to
create a triable issue of fact of pretext for age discrimination.
DISPOSITION
The judgment is affirmed. Respondent is entitled to its costs on appeal.
MCINTYRE, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the plaintiffs failed to establish a triable issue of material fact regarding whether the employer's nondiscriminatory reason for changing its workload distribution policy was a pretext for age discrimination. Consequently, the trial court's grant of summary judgment in favor of the Department of Corrections and Rehabilitation was proper.
Issues
Did the trial court err in granting summary judgment on the plaintiffs' age discrimination claim?
Did the trial court err in its evidentiary rulings regarding the defendant's supplemental objections?
Did the plaintiffs establish a triable issue of material fact regarding pretext under a 'cat's paw' theory of liability?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The trial court correctly found that appellants failed to establish pretext.”
“Appellants' contention that Belmontez or DeYoung influenced Macomber's decision to change the policy is pure conjecture that is not supported by the evidence.”
“In summary, the statements cited by appellants were not substantial enough to create a triable issue of fact of pretext for age discrimination.”