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Howard v. Regents of University of California2000 WL 424192 Sylvia Bufanda Courtney, Esq., Courtney & Courtney, San Francisco. Michael A. Laurenson, Esq., Gordon & Rees, San Francisco. ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ILLSTON, District J. *1 On April 7, 2000, this Court heard argument on a motion for summary judgment by defendant Regents of the University of California. Having carefully considered the arguments of the parties and the papers submitted, the Court hereby GRANTS defendant's motion for summary judgment BACKGROUND 1. Factual history In February 1997, Johnny Torrez, Director of Physical Plant-Campus Services ("PP-CS") at the University of California at Berkeley ("the University"), decided to restructure the PP-CS department. The reorganization was directed toward alleviating on-going problems stemming from the department's inability to collaborate effectively with on-campus clients, to complete low-cost maintenance work in a timely manner, and to provide greater accountability to customers. See Deposition of Vice Chancellor Horace Mitchell ("Mitchell Depo.") 16:6-19; Deposition of Millie Sanderford ("Sanderford Depo.") 43:9-21, 170; Deposition of George Howard ("Howard Depo.") 50:5-26. When clients began to express interest in contracting for services, rather than using PP-CS, the department became concerned that it would lose its client-base and, therefore, its operating budget. See Sanderford Depo. 43:9-21. Torrez requested that Gary Matteson, Associate Director of Energy and Engineering Services for PP-CS, prepare the "conceptual model" for the reorganization. See Deposition of Gary Matteson ("Matteson Depo.") 68:1-5. Matteson had previously structured four other large reorganizations. See id. 55:26--56:9. The goal of the new structure was to cultivate better relationships between the department and its clients, to direct more focus toward client needs and management skills, and to assure that PP-CS groups with similar or complementary resources collaborated to provide better client service. See Matteson Depo. 69:25--70:20; Sanderford Depo. 120:5--121:13; Deposition of Johnny Torrez ("Torrez Depo.") 234:13--235:14, 268:9-19. It was determined that the positions then defined as "Zone Manager" could not adequately meet the goals of the new organization. Accordingly, the new position of "Zone Supervisor" was created to assist the zone managers in their new tasks. See Torrez Depo 232:21--233:13. Furthermore, senior staff agreed that the number of "zones" should be reduced from eight to five. See Matteson Depo. 101:18--102:23. Based on a review of existing positions and interviews of current personnel, Matteson drafted the job descriptions for these new positions. See Matteson Depo. 107:2-20. Though the qualities necessary to succeed in each new position were debated, there was not a discussion of which current employees would be best suited for the positions. See Torrez Depo. 252:15-253:9. Torrez additionally assured employees there would be no lay-offs. See Torrez Decl., Exh. A. Policy 20 of the University's Personnel Policies for Staff Member ("PPSM") provides that if a position is filled by a "lateral transfer" from within the same departmental or organizational unit or when "an employee['s] responsibilities or title have changed as a result of a reorganization or reassignment of functions among positions within the same organizational unit," no outside recruitment for that position is necessary. See Sanderford Decl., Exh. A. In developing the selection process Torrez exercised his discretion under Policy 20 to appoint current employees of PP-CS. See Sanderford Depo. 112:13-19. Torrez also chose to evaluate candidates according to a newlydeveloped standard: the "Management Core Competencies," a set of qualities which are "critical for managers to have in terms of being able to provide the kind of managerial leadership that we were looking for ... [on] the Berkeley campus." Mitchell Depo. 39:3-7. Vice Chancellor Mitchell confirmed that the eventual goal was for each University department to utilize these Core Competencies "in their training and selection criteria." Id. 39:8-12. Additionally, candidates were evaluated by good performance in their current post, prior experience, personal observations, and ability to meet the goals of the reorganization. See Torrez Depo. 318-19, 329; Sanderford Depo. 190:24-- 191:19. All applicants were interviewed by an Assessment Recommendation Committee ("ARC"). After these interviews, senior staff members provided Torrez with their opinions of those chosen as finalists by the ARC. See Torrez Depo. 318-19, Sanderford Depo. 190:24--191:19. *2 In July 1997, plaintiff George D. Howard ("Howard"), a 53 year-old white male, was Zone Manager/Senior Superintendent in charge of Zone Three. See Howard Decl. 1-2, 5. He first began work at the University in July 1986. See id. 2. Plaintiff Bruce E. Costa ("Costa"), a 59 year-old white male was Zone Manager/Senior Superintendent for Zone Six. See Declaration of Bruce Costa ("Costa Decl.") 1-2, 4. He had worked for the University since July 1986. See id. 2. Plaintiff Robert O. Botts ("Botts"), also a white male, was 60 years old and Zone Manager/Senior Superintendent for Zone Two. See Declaration of Robert O. Botts ("Botts Decl.") 1-2, 4. Botts had been employed with the University since September 1961. See id. 2. In July of 1997, plaintiffs were provided with "Employee Performance Appraisals" for the period July 1, 1996 to June 30, 1997. See Torrez Decl., Exhs. D, E, G. Howard received a performance appraisal of "Improvement Needed." See id., Exh. D at 2. Plaintiffs Costa and Botts were given appraisal ratings of "Satisfactory." See Torrez Decl., Exhs. D, E, G. Although attention was given to positive job performance, [FN1] areas where improvement was needed were noted. For example, Howard's performance was characterized as deficient in three serious areas. See id., Exh. D at 2. His performance appraisal noted that he was known to engage in "heated outbursts in meetings" which were "detrimental to interdepartmental cooperation and productivity." Id. Though supervisor David Wenner believed some of the language he used in Howard's performance appraisal was "pretty harsh," he "thought the evaluation was accurate." Deposition of David Wenner ("Wenner Depo.") 72:13-21. Supervisors stated that Botts' "work group suffered a period of upheaval, dissension and dissatisfaction, due to [Botts'] lack of critical thinking and communication." Id., Exh. E, at 2. Finally, supervisors also observed that Costa needed to "be more collaborative in his efforts to solve maintenance problems ...." Id., Exh. F, at 2. Plaintiffs state that they had never before received negative performance criticism and they believe that the evaluations were conducted with an eye toward justifying a decision not to select them for zone manager or supervisor positions. See Howard Decl. 16-17; Costa Decl. 6; Botts Decl. 7. FN1. For example, Supervisor Wenner found that plaintiff Howard received "several complimentary letters," had "thorough knowledge" of his work, was "exceptional" at leading "the plumbing unit in ... day-to-day activities," and "demonstrated a cooperative and helpful attitude in budget planning." Howard Decl ., Exh. H, at 1-2. Plaintiffs were all informed of the impending PP-CS reorganization, and received information regarding the reorganization, the selection process and criteria for the positions of zone manager and zone supervisor. See Howard Decl. 7-8; Costa Decl. 7-8; Botts Decl. 5-6. Plaintiff Howard had been particularly opposed to the structure of the reorganization "for reasons of safety and adequate supervision." Howard Decl. 5. However, Howard, Costa, and Botts interviewed for the positions of zone manager. See id. 12-13; Costa Decl. 6; Botts Decl. 8. [FN2] Howard and Costa were both confident that they would secure the positions. See Howard Decl. 9; Costa Decl. 6. At the interviews, plaintiffs Howard and Botts read the statements that they had prepared and submitted previously along with their resumes. See Howard Decl. 12; Botts Decl. 6. Plaintiffs felt that the interviewers expressed little interest in their candidacies or that the interviewers did not have the level of familiarity with their job duties to effectively evaluate their abilities. See Howard Decl. 13; Costa Decl 8; Botts Decl. 6. FN2. Howard also applied for the position of Manager of Utilities and Infrastructure. See Howard Decl. 9. Botts also applied for a zone supervisor position. See Botts Decl. 8. However, plaintiff Costa applied only for the position of zone manager. See Costa Decl. 6. *3 Plaintiffs were not selected for the positions for which they applied. See Howard Decl. 15; Costa Decl. 10; Botts Decl. 8. The interviewees selected for the zone manager positions included Larnell ("Al") Taylor, 52, Black; John Rolle, 50, white; Roger Hines, 48, white; Peter Lin, 48, Asian American; Sylvester McBride, 43, Black. See Torrez Decl., Exhs. K, L. Those selected for the positions of zone supervisor were Wil Gilbert, 59, Black; Eddie Jackson, 57, Black; Paul Dimond, 52, white; Rosemary Means, 45, white; Linda Phillips, 39, Black. See Torrez Decl., Exhs. K, L. Of the individuals selected, only Sylvester McBride received fewer than two "finalist" votes from the ARC. See Torrez Decl., Exh. G. Rather Mr. McBride received two "finalist" votes and four "consider" votes. See id., Exh. G. Plaintiffs were among those given ratings of "do not" consider further. Id., Exh. G. Plaintiffs contend that they each suffered "discrimination," "retaliation," and humiliation subsequent to the selection of new zone managers and supervisors. Howard Decl. 10; Costa Decl. 16; Botts Decl. 8. For example, Botts believes that he was not invited to staff and training meetings in a deliberate attempt to humiliate him. See Botts Decl. 10. Costa was ridiculed, called a "peon," and equipment such as a desk, chair, computer, and transportation vehicles were not made available to him. See Costa Decl. 16. Torrez did not permit plaintiff Howard "to [perform] light duty work, although he assigned other individuals to light duty during the same time period," after plaintiff returned from disability leave for a back injury. Howard Decl. 8. Plaintiffs each filed grievances with the University pertaining to their failure to secure any of the positions for which they had applied. See Howard Decl. 25; Costa Decl 14; Botts 12. During the pendency of the grievances, plaintiffs were denied a merit pay increase "due to the fact that we had filed discrimination charges and grievances." Howard Decl. 22. However, these increases were eventually granted as a result of the grievance procedures. See id. At "Step II" of the grievance process, the fact-finder was not able "to confirm or deny that [Howard's and Botts'] allegations of age, sex, and race discrimination were deliberate actions on the part of PP-CS." Step II Report, at 26, attached as Exh. L to Howard Decl.; Step II Report, at 25, attached as Exh. C to Botts Decl. In regard to Costa's grievance, the fact-finder concluded that "the PPSM Policy and Procedure Sections 20 and 21 violations alleged by Mr. Costa in this grievance should be sustained." Step II Report, at 27, attached as Exh. C to Costa Decl. However, at Step III, Vice Chancellor Mitchell overturned the fact-finders' decisions as to plaintiffs Costa and Botts. See Costa Decl. 15 and Exh. D; Botts Decl. 12 and Exh. D; Mitchell Depo. 30:4--31:17. Though a Step III decision on plaintiff Howard's grievance was deferred because of Howard's disability leave, Mitchell contends that he would similarly overrule the Step II decision in Howard's case. See Howard Decl. 23; Mitchell Decl. 10. *4 Plaintiff Botts was assigned to the position of lead electrician. See Torrez Depo. 351:8-11. Plaintiff Costa became a project manager, and Howard was chosen for the post of lead utilities manager. See id. at 351:2-7; Torrez Decl. 13. However, as a result of a September 1998 heart attack, plaintiff Howard has been unable to return to work. See Howard Decl. 25. Plaintiffs Costa and Botts both retired from the University in the Fall of 1999. See Costa Decl. 16; Botts Decl. 13. 2. Procedural history After instituting the administrative grievance process at the University, on June 19, 1998 plaintiffs filed as a complaint in the Superior Court for Alameda County, alleging discrimination based on age and race discrimination, retaliation in violation of the California Fair Employment and Housing Act ("FEHA"), violation of due process, as well state law claims for intentional infliction of emotional distress and negligence. The Regents of the University of California and Johnny Torrez, the Director of Physical Plant/Campus Services were named as defendants. Defendants demurred on November 16, 1998. There was no ruling on defendants' demurrer. Rather, on February 16, 1999, plaintiffs filed an amended complaint adding claims for retaliation and age and race discrimination in violation of Title VII of the Civil Rights Act of 1964, violations of the Age Discrimination in Employment Act ("ADEA"), and claims under the California Constitution, Article I, §§ 7-8 for violation of due process and public policy. On March 18, 1999, defendants removed the action on the grounds that plaintiffs' First Amended Complaint raised a federal question. On May 18, 1999, this Court dismissed plaintiff's claims under the California Constitution and dismissed Johnny Torrez as a defendant to this action. Now before the Court is defendant's motion for summary judgment, or in the alternative, for partial summary judgment. LEGAL STANDARD The Federal Rules of Civil Procedure provide for summary adjudication when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In as a motion for summary judgment, "[if] the moving party for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact," the burden of production then shifts so that "the non-moving party must set forth, by affidavit or as a otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial." ' T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n., 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 317 (1986)). In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the nonmoving party. See T.W. Electric, 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348 (1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir.1991). The evidence presented by the parties must be admissible. Fed.R.Civ.P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49 (2d Cir.1985); Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979). Hearsay statements found in affidavits are inadmissible. See, e.g., Fong v. American Airlines, Inc., 626 F.2d 759, 762-63 (9th Cir.1980). DISCUSSION 1. Eleventh Amendment immunity from suit under the ADEA *5 Defendant states that the United States Supreme Court in Kimel v. Florida Bd. of Regents, ___ U.S. ___, 120 S.Ct. 631, 636) (2000) has held that the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621-43, did not abrogate the states' Eleventh Immunity from suit by private individuals. Defendant argues that, although it removed this action to federal court in 1999, because it "now asserts its immunity at the earliest appropriate time," plaintiffs' claims must be dismissed. Dft's Mtn for Summ. Judgmt, at 19. Plaintiffs respond that the Kimel action has been litigated for many years, and, therefore, defendant has had a long period of time in which to make an assertion of Eleventh Amendment immunity. Furthermore, plaintiffs argue that they have also asserted age discrimination claims under the FEHA. On January 11, 2000, the Supreme Court decided that Congress exceeded its authority in abrogating the States' immunity under the ADEA. See Kimel, ___ U.S.___, 120 S.Ct. at 637. The Court finds that defendant's assertion of immunity in its February 25, 2000 motion for summary judgment provided timely notice that it did not intend to waive its immunity under the Eleventh Amendment. Therefore, defendant's motion for summary judgment on plaintiffs causes of action under the ADEA is GRANTED. 2. Title VII and FEHA race discrimination, and FEHA age discrimination Plaintiffs state that, in the selection of new zone managers and zone supervisors, PP-CS used both procedures and criteria which differed from those used in the past. Plaintiffs further contend that the true motivation for the PP-CS' organization was to abolish the positions then held by older white men. Because the individuals who were selected were "disproportionately younger and less experienced females and/or racial minorities," and the number of "zones" was reduced from eight to five, plaintiffs argue that an inference of discrimination based on race and age, as well as issues of triable facts, exist in this case. Plff's Oppo., at 7. Defendants counter that plaintiffs have produced no evidence of discriminatory intent. A. Legal burdens The burden shifting analysis set forth in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981) applies to both race and age discrimination claims under FEHA and Title VII. See Scott v. Goodyear Tire & Rubber Co., 160 F.3d 1121, 1126 (6th Cir.1998) (ADEA); Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1109 n. 7 (9th Cir.1991) (Title VII); Flait v. North American Watch Corp., 3 Cal.App.4th 467, 475-476 (1992) (FEHA). First, the plaintiff must establish a prima facie case by introducing evidence that gives rise to an inference of unlawful discrimination. See Sischo, 934 F.2d at 1109. To show a prima facie case of discrimination, "a plaintiff must offer evidence that gives rise to an inference of unlawful discrimination." Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1110 (9th Cir.1991) (internal quotations omitted). The evidence used by the plaintiff to establish the prima facie case "may be either direct or circumstantial." Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir.1997). Circumstantial evidence mus be "specific and substantial." Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220-21 (9th Cir.1998). In addressing a FEHA cause of action for age discrimination, California courts have adopted the framework of the ADEA and the analysis developed in federal cases. See Stephens v. Coldwell Banker Commercial Group, Inc., 199 Cal.App.3d 1394, 1399-1400 (1988). To establish a prima facie case of age discrimination, plaintiffs must show that they were (1) members of the protected class (ages 40-70), (2) performing their jobs in a satisfactory manner, (3) suffered an adverse employment action, and (4) replaced by substantially younger employees with equal or inferior qualifications. See Rose v. Wells Fargo & Co., 902 F.2d 1417, 1421 (9th Cir.1990). [FN3] FN3. The ADEA covers all personnel actions affecting employees or applicants for employment who are at least 40 years of age and at most 70 years of age. See 29 U.S.C. § 631(a). *6 If the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the employment decision. See id. Should the defendant carry this burden, the plaintiff must then show that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. See id. B. Analysis The Court finds that plaintiffs have not offered direct or circumstantial evidence of discrimination by PP-CS, nor have they produced evidence that defendant's reasons were other than those stated. Although it is undisputed that plaintiffs are members of a protected class (employees aged 40-70), plaintiffs have not shown that but for their age they would have been selected from among the candidates for zone manager and zone supervisor, or that the reasons offered by defendant for the reorganization and its employment choices were mere pretext for discrimination based upon race or age. Plaintiffs assert that Torrez' statement that the purpose of restructuring PP- CS was to "build[ ] an organization for the future" provides sufficient evidence that defendant intended to oust older white male employees. However, it is not readily apparent that such a statement manifests an intention to discriminate on the basis of age or race. Furthermore, though plaintiffs contend that the reorganization, including the reduction of the number of zones, created an "opportunity" to demote plaintiffs, plaintiffs have failed to present evidence that the motivation for formulating such an "opportunity" was in fact the desire to discriminate. The fact that neither Torrez nor Matteson could remember exactly which staff member, if any, specifically suggested reducing the number of zones does not provide evidence of discriminatory intent. Plaintiffs also argue that defendant's failure to use more well-established personnel policies and selection criteria in selecting staff for the new zone manager and supervisor positions was a means to install disproportionately younger female and minority employees. However, the selection process and criteria used by Director Torrez were developed with the ultimate goal of University-wide application in employee training and selection. The University's Vice Chancellor concluded that neither the selection process nor the appointment qualifications were violative of other personnel policies. Moreover, though plaintiff Howard contends that the Core Competencies were the sole criteria used for selecting employees, the evidence shows that plaintiffs were informed of, and defendant used, additional standards to assess candidates. See Torrez Depo. 278:23--279:8, 318:18--319:19; Matteson Depo. 124:11--128:8; Howard Decl. 7, 10; Costa Decl. 5; Botts Decl. 5; Torrez Decl., Exh. B. Moreover, plaintiff Howard agreed that the Core Competencies constituted "[b]asic good management practices." Howard Depo. 1566-16. The Court may not infer discriminatory motive from the mere use of new, yet valid, employment criteria. *7 Plaintiffs further argue that they were qualified for the positions for which they applied, that they had not previously received negative performance evaluations, and that any poor evaluations were motivated by the desire to remove plaintiffs from their positions as zone managers. Moreover, plaintiffs assert that those selected for the disputed positions were much less qualified than they were. Defendants contend that comments regarding plaintiffs' work performances were legitimate, that plaintiffs' presentations during their interviews were disappointing, and that those selected for positions were in fact qualified for the jobs. The Court concludes that plaintiffs have failed to offer evidence that the negative evaluations of either their work performance or their interview presentation was tainted by a discriminatory motive, or that the employees appointed to those positions were less qualified than they. Plaintiffs Costa and Botts assert that they were performing satisfactorily in their positions as zone managers. This assertion is corroborated by the "satisfactory" 1996-1997 performance appraisal rating. Plaintiff Howard however "believe[s] that Director Torrez instructed [his] direct supervisor to give [him] a less than satisfactory performance review" for 1996-1997. See Howard Decl. 17. However, plaintiff Howard has not presented evidence that either Torrez or any PP-CS official directed Wenner to provide negative comments. Though Wenner did believe that the language in the review was somewhat "harsh," he confirmed that his evaluation of Howard was accurate. See Wenner Depo. 72:13-21. The Court therefore finds that only plaintiffs Costa and Botts have shown that they were performing their jobs satisfactorily. Plaintiffs also argue that, because "a disproportionate number" of the individuals selected for the zone manager and supervisor positions were either younger than plaintiffs, female, or people of color, the Court may infer that defendant's used the selection process as a means to discriminate against plaintiffs because they were older white men. However, defendants have produced evidence, and plaintiffs do not dispute, that John Rolle and Paul Dimond were selected to serve as zone manager and zone supervisor, respectively. Rolle and Dimond are both white men, aged 50 and 52. Roger Hines, a white male and 48 years of age, was also selected. Additionally, though Larnell Taylor and Wil Gilbert are Black men, they were 52 and 59 years of age, respectively, when appointed to their new positions. [FN4] Because other men (both white and Black) aged 52-59, the same ages as plaintiffs, were appointed to the positions for which plaintiffs applied, the Court does not infer that either discriminatory racial motive or age was a factor in the selection process. [FN5] FN4. Two women were also selected, each for the position of zone supervisor. See Torrez Decl. Exhs. K, L. Those appointed to other management positions included a 51 year-old white male, a 59 year-old white male, a 45 year-old white male, and a 38 year-old white female. See id., Exhs. K, L. FN5. Plaintiff Botts states that Wenner inquired as to when Botts was planning to retire. See Botts Depo. 156:20--170:19. However, the Court finds that this inquiry alone does not provide sufficient evidence of discriminatory motive based upon age, since during the interview process, plaintiff himself had raised the subject of his planned retirement by stating that: I should be retiring in less than three years. Your retirement monthly benefits is as a product of highest three-year salary times, I guess, your years of service. I need it to be as high as possible because it effects (sic) the monthly retirement allowance for the rest of your life. Botts Depo. 189:12-18. Additionally, plaintiff Howard states that, because, at some unspecified point in time, he either interviewed or worked with "[m]ost of the individuals who ... were selected for the positions," he is aware of the fact that "most of them had less experience and qualifications in management and supervision, and even in the trades" than he did. Howard Decl. 18. Defendants counter that each applicant was qualified for the position for which he or she was selected, and plaintiffs have failed to proffer evidence showing that those chosen for the new positions were in fact less qualified than they. For example, Torrez testified that Al Taylor was very active in making key recommendations in zone structure and had cultivated excellent client relationships. See Torrez Depo 371:171--372:8. John Rolle had recently completed a masters' degree and was previously director of another plant. See id. at 370:4--371:9, 372. Roger Hines was found to have a good record of completing tasks and pleasing the campus clients. See id . at 373, Torrez Decl., Exh. O. Sylvester McBride was found to have relevant management and technical skills, and had as a good awareness of customer needs. See Torrez Depo. 431-33. Peter Lin, who was previously Associate Director for Accounting, was demoted to the position of zone manager because it was believed that Lin's strong points would better serve PP-CS in that station. See Torrez Decl. 20. *8 In contrast the committee and senior staff felt that plaintiffs' interview presentations were disappointing and that they would not succeed in performing the duties of the new positions. Among the ARC's comments regarding plaintiff Botts was that he exuded a "take me or leave me" attitude and he "did not demonstrate flexibility." See Torrez Depo. 404:8--405:18, 411:20-23, Torrez Decl., Exh. I. Botts also appeared to be interested in the job mostly for the purposes of improving his position at retirement. See Botts Depo. 189:128. Costa reported that he became frustrated during the interview and "just gave them yes and no answers [in order to] get out" as quickly as possible. Costa Depo. 113:7-15. Howard's interview consisted solely of his reading prepared answers to questions from the Interview Assessment Questionnaire. See Howard Depo. 158:17-26. Accordingly, plaintiffs have failed to show that any of the candidates selected for the positions of zone manager or supervisor were substantially younger with inferior or equal qualifications. The Court therefore concludes that the outcome of the selection process does not offer sufficient evidence either to infer discriminatory motive or to show that the process itself was designed as a as a pretext for racial or age-related discrimination Plaintiffs also argue that there is a triable issue of material fact as to whether the positions of zone manager and zone supervisor were "new" "modified" or "different." Plaintiffs further assert that the fact that the ARC was "handpicked" by Torrez shows that the selection process was biased. See Howard Decl. 10. Defendant argues that these issues constitute a futile attempt to manufacture inconsistencies. The Court agrees with defendant. As to plaintiffs' argument regarding the "true" characterization of the zone positions, whether they are described as "new," "different," or "modified," the goals of the reorganization as well as the qualifications for each station provided that the positions were not identical to those that existed prior to the reorganization. The inability of Torrez, Sanderford, and Mitchell to agree to characterize the positions as either "new," "different," or "modified," therefore creates no genuine dispute of material fact. Additionally, plaintiffs have not presented evidence that there was indeed any "bias" for Torrez' alleged employee choices. Nor have plaintiffs shown that Torrez in fact had any particular individuals in mind for the positions. However, even had Torrez requested that the ARC choose specific individuals, and if the ARC was in fact biased in Torrez' favor, plaintiffs have failed to provide any evidence that the alleged bias was race- or age-related. Finally, the Court emphasizes that its purpose in reviewing employment actions under Title VII and FEHA is a narrow one. It is not the role of the Court to determine whether the decisions to reorganize PP-CS, to use certain selection procedures and criteria, and to appoint particular individuals to specific posts constituted good business judgment or reflected good personnel practices. See Mesnick v. General Electric Co., 950 F.2d 816, 825 (1st Cir.1991) ( "Courts may not sit as super personnel departments, assessing the merits--or even the rationality--of employers' nondiscriminatory business decisions.") (citing Furnco Construction Corp. v. Waters, 438 U.S. 567, 578, 98 S.Ct. 2943, 2950 (1978)). The Court may not second-guess the determinations made by defendant. Rather, federal court review under state and federal discrimination statutes is limited to determining whether plaintiffs' rights under such statutes have been violated. Here, plaintiffs have failed to meet their burden of either producing direct or circumstantial evidence to establish a prima facie case of discrimination or proffering sufficient facts to show that defendant's stated reasons were in fact a mere pretext for discrimination. Accordingly, the Court GRANTS defendant's motion for summary judgment as to plaintiffs' Title VII and FEHA claims of racial discrimination and FEHA claim of age discrimination. 3. Title VII & FEHA retaliation claim *9 Plaintiffs allege that subsequent to instituting grievance procedures with the University, they were "relegated to performing insignificant duties ...[, and] were harassed and treated disrespectfully by their supervisors." Defendants respond that plaintiffs have failed to present facts sufficient to create a prima facie case of retaliation. The Court finds that plaintiffs have not proffered evidence to establish a prima facie case of retaliation. To establish a prima facie case of retaliation under Title VII or FEHA, plaintiffs must show that (1) they engaged in protected activity, (2) they were, as a result, subjected to adverse employment action, and (3) there was a causal link between protected activity and the adverse employment action. See EEOC v. Hacienda Hotel, 881 F.2d 1504, 1514 (9th Cir.1989); Flait v. North American Watch Corp., 3 Cal.App.4th 467, 476 (1992). Further, plaintiffs must show that they had a " 'reasonable belief' that the conduct [they] protested was prohibited" under Title VII and FEHA. Trent v. Valley Assoc., Inc., 41 F.3d 524, 526 (9th Cir.1994). "[I]t is good faith and reasonableness, not the fact of discrimination, that is the critical inquiry in a retaliation case." Flait, 3 Cal.App.4th at 477 (quoting Rucker v. Higher Educ. Aids Bd., 669 F.2d 1179, 1182 (7th Cir.1982) (internal quotation marks omitted)). If the plaintiff makes out a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse action. See Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir.1988). The burden then shifts back to the plaintiff to show that the asserted reason is a pretext for retaliation. See id. Plaintiffs argue that defendant denied their scheduled merit pay increases, as well as failed to provide them with information regarding the status of their employment and description of their positions, in retaliation for their filing grievances with University. Plaintiffs further assert that they were not treated with the respect that they believed they were due as long-term employees. For example, Botts believes that he was not invited to staff and training meetings in a deliberate attempt to humiliate him. See Botts Decl. 10. Costa was ridiculed, called as a "peon," and equipment such as a desk, chair, computer, and transportation vehicles were not made available to him. See Costa Decl. 16. Torrez would not permit plaintiff Howard "to [perform] light duty work, although he assigned other individuals to light duty during the same time period," after plaintiffs returned from disability leave for a back injury. Howard Decl. 8. However, plaintiffs have offered no evidence that any of the treatment of which they complain was due to the filing of their grievances. Plaintiffs' mere belief that the alleged actions were related to the filing of their complaints is not sufficient to survive summary judgment. Additionally, Director Torrez asserted that he did not provide the scheduled salary increase, because the positions in which plaintiffs were placed were only temporary, and that he did not believe that pay increases were warranted until permanent positions were located. See Torrez Depo. 341:9--342:4. However, plaintiffs specifically pursued the matter of merit increases though the grievance process and were awarded the pay due to them. Plaintiffs have not presented to the Court any evidence that the failure to provide merit pay increases was based on the fact that plaintiffs were pursing complaints through the University. *10 Accordingly, because plaintiffs have failed to establish a prima facie case of retaliation, the Court GRANTS defendant's motion for summary judgment. 4. Intentional infliction of emotional distress Plaintiffs assert that subsequent to the selection of individuals for the positions of zone manager and supervisor, they were subjected to offensive treatment by supervisors and co-workers. Defendants argue that any conduct complained of does not rise to the level necessary to prove a claim of intentional infliction of emotional distress. The Court finds that plaintiffs have failed to meet their burden of providing sufficient evidence to prove this claim. The elements of as a prima facie case for the tort of intentional infliction of emotional distress [are]: "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard [for] the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." Miller v. National Broadcasting Co., 187 Cal.App.3d 1463, 1487 (1986). A plaintiff asserting a claim of intentional infliction of emotional distress must show that the conduct of which plaintiff complains is "so extreme and outrageous" that it "exceed[s] all bounds of that usually tolerated in a civilized society." Schneider v. TRW, Inc., 938 F.2d 986, 992 (9th Cir.1991). Plaintiffs argue that "[w]hether the conduct alleged [exceeds all bounds of decency] is a question of fact for the jury." However, the conduct alleged here, while perhaps "demonstrating poor judgment and manners," King AC & R Advertising, 65 F.3d 764, 770 (9th Cir.1995), and certainly "not exemplary," Trerice v. Blue Cross, 209 Cal.App.3d 878, 883 (1989), does not, as a as a matter of law, amount to conduct "so extreme and outrageous" as to "exceed all bounds of that usually tolerated in a civilized society ." Schneider, 938 F.2d at 992. Therefore, the Court GRANTS defendant's motion for summary judgment on plaintiffs' claim for intentional infliction of emotional distress. IT IS SO ORDERED. N.D.Cal.,2000. Howard v. Regents of University of California END OF DOCUMENT Copr. (C) West 2000 No Claim to Orig. U.S. Govt. Works Reproduction and use of this cite is with permission of WestGroup/Westlaw.
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