Daily Blast May 28, 2014

This case contains a comprehensive discussion of employment discrimination law and the summary judgment standard in employment cases. Although not citable for the propositions set forth in the unpublished section of the case, it also includes a good discussion of motions for continuance of summary judgment motions.

The California Court of Appeal, Sixth Appellate District (Santa Clara) issued an opinion in Serri v. Santa Clara University(May 28, 2014, H037534) ___ Cal.App.4th ___, analyzing “whether an employee who is terminated for failing to perform an important job function can avoid summary judgment by arguing, based on expert evidence obtained for the purpose of opposing a motion for summary judgment or summary adjudication, . . . that the failure to perform did not and would not result in any adverse consequences to the employer.” (Slip opn., p. 2.) The Court of Appeal held that “after-acquired expert evidence that there were no adverse consequences from an employee’s failure to perform does not create a triable issue of fact on the question of whether the employee failed to perform his or her job duties and thus has limited relevance, if any, to the question of discrimination.” (Ibid.)

Plaintiff, Santa Clara University’s Director of Affirmative Action, sued her employer and other individually named defendants after Santa Clara University (“University”) terminated her employment. The University terminated plaintiff’s employment “because she failed to produce Affirmative Action Plans (“AAP”) for three consecutive years, even though her job required that she produce an AAP annually,” and “because she made misrepresentations about the [AAPs] that she failed to prepare.” (Slip opn, p. 1.) Plaintiff alleged causes of action for breach of her employment contract, retaliation and harassment in violation of the California Fair Employment and Housing Act (“FEHA”), violation of the Federal Equal Pay Act, defamation, intentional and negligent infliction of emotional distress, and interference with prospective economic advantage. (Id. at pp. 1-2.) The trial court granted defendants summary judgment motion. (Id. at p. 2.)

The Court of Appeal affirmed. With respect to plaintiff’s causes of action for employment discrimination, tortious discharge, and retaliation in violation of FEHA, the Court of Appeal held that plaintiff did not meet “her burden of producing substantial evidence that the University’s reason for terminating her were pretextual or false and used merely to veil an unlawful act of discrimination.” (Slip opn., p. 48.) The appellate court rejected plaintiff’s argument that there was a disputed factual issue regarding “whether preparation of the AAPs was the most important part of her job.” (Id. at p. 45.) Plaintiff’s after-acquired expert evidence was prepared more than four years after the University terminated plaintiff. Plaintiff did not produce evidence that anyone at the University knew that the lack of an AAP would allegedly not result in adverse consequences. (Id. at p. 47.) To the contrary, defendants produced evidence, all of which was authored by plaintiff, that the preparation of the AAP was one of her primary job duties and the University was likely to be audited by the federal government for compliance with the AAPs. (Id. at pp. 45, 47.) Thus, the Court of Appeal concluded that “a trier of fact could not reasonably conclude that the University’s stated reasons for terminating [plaintiff] ‘were implausible, or inconsistent or baseless.’” (Id. at p. 48 quoting Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1009.) Therefore, plaintiff did not meet her burden of producing substantial evidence that the reasons for the termination were pretextual or false. (Ibid.)

The appellate court also rejected what it described as plaintiff’s “weak suspicion” of discriminatory motive based on three stray remarks as insufficient to defeat summary judgment. (Slip opn., p. 51.) The same stray remarks were deemed insufficiently pervasive to support a claim for harassment. (Id. at p. 56.)

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