Not Reported in Cal.Rptr.3d

Not Reported in Cal.Rptr.3d, 2004 WL 2651242 (Cal.App. 2 Dist.)

Not Officially Published

(Cal. Rules of Court, Rules 976, 977)

(Cite as: 2004 WL 2651242 (Cal.App. 2 Dist.))


Briefs and Other Related Documents


Only the Westlaw citation is currently available.


California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.


Court of Appeal, Second District, Division 4, California.

INTERNAL SERVICES DEPARTMENT OF the COUNTY OF LOS ANGELES, Plaintiff and

Respondent,

v.

CIVIL SERVICE COMMISSION OF the COUNTY OF LOS ANGELES, Defendant,

Cheryl Ivory, Objector and Appellant.

No. B165032.

(Los Angeles County Super. Ct. No. BS060327).


Nov. 22, 2004.

As Modified Dec. 6, 2004.

APPEAL from a judgment of the Superior Court of Los Angeles County, Dzintra Janavs, Judge. Affirmed in part, reversed in part and remanded.


Law Offices of Manuel H. Miller, Tracy Neal-Lopez, Catherine Starr, and Nyanza Shaw for Objector and Appellant.


Law Offices of Hausman & Sosa, Jeffrey M. Hausman, and Larry D. Stratton for Plaintiff and Respondent.


CURRY, J.


*1 Cheryl Ivory appeals from the granting of a petition for writ of mandate filed by the Internal Service Department of the County of Los Angeles (ISD). We affirm in part, reverse in part, and remand.


RELEVANT PROCEDURAL HISTORY

This is the second time that this case has come before us on appeal. We briefly summarize the procedural history culminating in our first opinion before describing the facts pertinent to the present appeal.


On April 12, 1994, Ivory filed a request for an administrative hearing before the Civil Service Commission of the County of Los Angeles (Commission), contending that she had experienced discrimination in her workplace, in violation of applicable civil service rules (Case No. 94-097). Her request alleged that prior to the creation of ISD, she had served in a managerial position, and that ISD had reduced her responsibilities and workload until she had no work to do, despite her experience and efforts to secure meaningful work. The request further alleged that she had been effectively demoted without proper notice, and that paying her salary for little or no work was a criminal "gift of public funds."


A hearing on Ivory's request began on October 18, 1994. On November 22, 1994, the hearing was taken off calendar so that the parties could explore an informal resolution of the matter.


Ivory filed a second request for an administrative hearing before the Commission on June 12, 1995 (Case No. 95-210). The second request alleged that she had been improperly rated regarding her application for a managerial position as a result of her claims of discrimination, de facto demotion, and " 'whistle blowing' " regarding the misuse of public funds.


On July 10, 1995, the hearing on Ivory's first request resumed, and was combined with the hearing on her second request. The hearing officer filed her recommended decisions on September 11, 1996. The hearing officer found that Ivory had been de facto demoted in violation of civil service rules, and that the examination given to Ivory "was not an appropriate vehicle for evaluating [her] promotability." The hearing officer recommended in both administrative actions that the Commission should "fashion a remedy intended to make Ivory whole," including ordering ISD to find or develop a position for Ivory commensurate with her skills, experience, and salary.


The Commission entered a final order adopting these findings and recommendations on February 19, 1997. On September 26, 1997, Ivory filed a civil action in superior court based on her claims, which was removed to federal court.


Following remand, the trial court ordered the Commission to clarify its final order with respect to the burdens of proof that it had imposed upon the parties, and the theories of discrimination upon which it had based its decision. In turn, the Commission directed the hearing officer to propose amendments to her findings and recommendation in compliance with the trial court's order. On April 30, 2002, the hearing officer proposed amended findings, which the Commission adopted on June 20, 2002.


*2 Following a hearing, the trial court concluded that the findings underlying the Commission's order failed for want of substantial evidence. On December 9, 2002, it issued a writ of mandate directing the Commission to vacate its prior orders, and to enter new orders denying Ivory relief in both administrative cases. Ivory filed her notice of appeal on February 4, 2003.


DISCUSSION

Ivory contends that mandamus was incorrectly granted with respect to her two administrative actions.


A. Notice of Appeal


At the threshold of our inquiry, we address ISD's contention that Ivory's notice of appeal limits her appeal to the trial court's judgment, insofar as it concerns her first administrative action (Case No. 94-097). ISD is mistaken.


We construe a notice of appeal liberally in favor of its sufficiency (Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 624, 12 Cal.Rptr.2d 741), and thus an ambiguous notice of appeal is generally interpreted as preserving the right of appeal (Kellett v. Marvel (1936) 6 Cal.2d 464, 471, 58 P.2d 649). However, "[t]he rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from only part of the judgment or one of two separate appealable judgments or orders. [Citation.]" (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47, 269 Cal.Rptr. 228.)


Here, Ivory's notice of appeal states: "[Ivory] hereby appeals from the judgment on petition of writ of mandate entered on or about December 9, 2002 in the above-referenced matter. The judgment on petition of writ of mandate directs the [Commission] to vacate the 'Order of Civil Service Commission' dated February 19, 1997 regarding the administrative proceeding entitled In re Cheryl Ivor [sic.], Case No. 94-097 (Los Angeles County Civil Service Commission) and further directs the Commission to enter a new and different order denying the administrative appeal of Cheryl Ivory."


Ivory's notice thus refers to the trial court's judgment and the underlying order of the Commission, which concerned both of Ivory's administrative actions. Although the notice cites only one of these actions (Case No. 94- 097) in connection with the Commission's order, nothing in the notice unambiguously limits the notice to decisions regarding this action. We therefore conclude that the notice encompasses the trial court's judgment insofar as it concerns her second administrative action (Case No. 95-210).


B. Mandamus


We now turn to Ivory's contentions regarding the grant of mandamus. In an action for ordinary mandamus, our review is limited to an examination of the administrative proceedings to determine whether the agency's actions have been arbitrary or capricious, entirely lacking in evidentiary support, inconsistent with required procedures, or devoid of proper notice. (Taylor Bus Service, Inc. v. San Diego Bd. of Education (1987) 195 Cal.App.3d 1331, 1340, 241 Cal.Rptr. 379.)


Here, the focus of our inquiry concerns the adequacy of the evidentiary support for the Commission's decisions. With respect to this matter, our function "is the same as that of the trial court, that is, to review the administrative decision to determine whether it is supported by substantial evidence." (Taylor Bus Service, Inc. v. San Diego Bd. of Education, supra, 195 Cal.App.3d at. p. 1340.) We review the findings of the agency, and not the determinations of the trial court. (Ibid.)


*3 "Substantial evidence has been defined as relevant evidence that a reasonable mind might accept as adequate support for a conclusion. [Citation.] A presumption exists that an administrative action was supported by substantial evidence. [Citation.]" (Taylor Bus Service, Inc. v. San Diego Bd. of Education, supra, 195 Cal.App.3d at pp. 1340-1341, 241 Cal.Rptr. 379.)


1. First Administrative Action (Case No. 94-097)


The crux of Ivory's first request for a hearing was that she was the victim of discrimination, in violation of rule 25.01 of the Los Angeles County Code, appendix to title 5, otherwise known as Los Angeles Civil Service Rules (Civil Service Rules). This rule provides that "[n]o person in the classified service ... shall be ... reduced, or in any way favored or discriminated against in employment or opportunity for employment because of race, ... or other non-merit factors, any of which are not substantially related to successful performance of the duties of the position."


Following the trial court's remand for clarification, the hearing officer found that Ivory had experienced racial discrimination solely on a theory of disparate treatment, that is, of intentional discrimination, and thus we limit our inquiry to these findings. The trial court determined that substantial evidence did not support these findings under the burden-shifting rules governing claims based on a theory of disparate treatment. Accordingly, the key issues concern the application of these rules.


As our Supreme Court explained in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (Guz ), "California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination ... based on a theory of disparate treatment. [Citations.]" Generally, California courts look to pertinent federal precedent in applying this test. (Ibid.)


"In most cases of disparate treatment, the plaintiff will not have direct evidence of the employer's discriminatory intent. Consequently, the United States Supreme Court has developed rules regarding the allocation of burdens and the order in which proof is presented to resolve the 'elusive factual question of intentional discrimination.' (Texas Dept. of Community Affairs v. Burdine [ (1981) ] 450 U.S. 248, 255, fn. 8, 101 S.Ct. 1089, 67 L.Ed.2d 207 ...; see also McDonnell Douglas Corp. v. Green [ (1973) ] 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668.) Thus, plaintiffs may demonstrate via indirect or circumstantial evidence that they were the victims of discrimination." (Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1749, 52 Cal.Rptr.2d 620.)


Under the rules for these so-called "pretext" cases, the plaintiff bears "the initial burden of proving unlawful discrimination.... '[T]he employee must first establish a prima facie [showing] of wrongful discrimination. If she does so, the burden shifts to the employer to show a lawful reason for its action. Then the employee has the burden of proving the proffered justification is mere pretext.' [Citations.]" (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1730, 35 Cal.Rptr.2d 181.) These rules concerning the burden of producing evidence do not affect the burden of persuasion, which remained on the plaintiff throughout trial. (St. Mary's Honor Center v. Hicks (1993) 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407.) Furthermore, if the plaintiff carries her burden of production, the three-tiered framework " 'drops from the case' and the trier of fact determines the ultimate question of whether the plaintiff has shown intentional discrimination. [Citations.]" (Heard v. Lockheed Missiles & Space Co., supra, 44 Cal.App.4th at p. 1750, 52 Cal.Rptr.2d 620.)


*4 Here, the hearing officer's amended findings were that (1) Ivory had presented a prima facie case of racial discrimination, and (2) notwithstanding ISD's attempt to state a legitimate business reason for its conduct, the evidence at the hearing, taken as a whole, established intentional discrimination against Ivory based on her race. We therefore examine the record for substantial evidence to support these findings.


a. Evidence


The principal witness at the hearing was Ivory, an African-American, who testified as follows: She began working for the County of Los Angeles in 1970, and she thereafter held several positions. In 1980, she became manager of the Court Trustee, a division of the Department of Collections. In that capacity, she supervised approximately 100 employees, and her division had a budget of $40 million. In 1984, she reported to Richard Dixon, who was then Treasurer Tax Collector, and later chief administrative officer.


During this period, an audit into the use of federal funds uncovered mismanagement of funds and misuse of computer services in County of Los Angeles departments. Ivory knew about these problems, and she was asked to attend a hearing on them. When she told a superior that she would answer questions honestly, she was told to keep her mouth shut. Later, she was told that she would have "to pay" for her conduct.


The County of Los Angeles began "contracting [the] Court Trustee out," and in 1988, Ivory became an executive assistant to Edgar Hayes, who was director of Data Processing. Ivory viewed this as a promotion. When Ivory took the position, she was warned that there was friction between Dixon and Hayes.


Ivory's classification was "data processing specialist-I/executive liaison," although she did not have any background in data processing. According to Ivory, her background was in "systems analysis for customers," but the minimal requirements for her classification encompassed management skills in lieu of technical computing skills.


Hayes resigned or retired in August or September 1988. Dixon became interim head of Data Processing, and Ivory reported to Ken Cable, its manager. Under Cable, Ivory lost her work and responsibilities, and she and her secretary were relocated. At one point, Bill Allen, who was then chief deputy, told Ivory, "The best thing for you to do is to go and find another place, or stay where you're at." Later, Allen told her that there was plenty of work to do, but when she asked for more work, he never got back to her.


Data Processing was merged into ISD, which was created in 1989, and which provided services to other departments. Ivory initially reported to Sue Isbell, a senior manager in ISD. According to Ivory, the work that she performed for Isbell was within the realm of her skills and knowledge, and it helped her to develop. She began working with Jan Pollard in 1991. Thereafter, she requested more meaningful work, but she did not get it.


*5 Before Ivory filed her first administrative action, she sought other positions, but ISD never offered her an alternative position. After she filed this action, ISD offered her three managerial positions, which she declined. In her view, they required technical skills or background that she lacked, and she believed that they were a set-up. If she had accepted one of the positions, in a few weeks, there would be complaints that she could not perform the work. She was interested in a fourth position, but it was ultimately offered to another person.


In addition, Ivory's supervisors and other ISD managers testified at the hearing. William Stewart testified that he had been ISD's director since it was created in 1989 out of six existing departments. When formed, it had slightly more than 4,000 employees.


According to Stewart, the creation of ISD reduced the number of managerial positions over those available prior to the merger. By late 1989, ISD had absorbed its employees, although their jobs were not necessarily commensurate with their titles. ISD continued to lose employees, which numbered 2800 in 1996. In addition, ISD was ordered to eliminate a level of management.


Stewart testified that he did not tolerate harassment or discrimination at ISD, and to his knowledge, neither he nor any ISD employee discriminated against Ivory. In 1989, Ivory was classified as an executive assistant, and Stewart did not understand her to be a manager. By memorandum, Ivory complained that she lacked meaningful assignments, and he sent Ivory to work for Sue Isbell. Isbell was satisfied with Ivory's work. In 1992, she was placed under the supervision of Jan Pollard, whose department had received additional responsibilities.


Isbell testified that she is director of administration and finance for ISD. According to Isbell, ISD has been compelled to downsize its staff since 1990. ISD tried to find a position suitable for Ivory, and she was offered alternative positions, which she declined.


Isbell did not consider Ivory to be a manager when she was Hayes's executive assistant, prior to the formation of ISD, and she did not regard Ivory's placement under her supervision to be a demotion. During the two-year period that Ivory was under her supervision, she did not assign Ivory "busy work." Isbell rated Ivory's overall performance from December 1989 to December 1990 as "competent +," and from December 1990 to December 1991 as "very good."


Pollard testified as follows: She is director of business development and customer service for ISD. While Ivory was under her direct supervision, Ivory was responsible for legislative analysis, and received other assignments from Fogelman. Pollard rated Ivory's overall performance from December 1991 to December 1992 as "competent plus."


In December 1992, Ivory told Pollard that she did not enjoy her work, and was uncomfortable with Pollard's management style. Pollard thought that she was not being sufficiently clear in asking Ivory to do things. She transferred Ivory to Fogelman's direct supervision because she believed that would help the situation.


*6 Fogelman testified that Ivory began to work for him in December 1992. While he supervised Ivory, he was a chief of program management and administrative manager for ISD, and he reported to Pollard, Joan Ouderkirk, and Stewart. He knew that Ivory wished to transfer away from Pollard.


Ivory's role for Fogelman was "staff analyst," and he did not consider her a manager. When Ivory arrived, she carried over some work from her previous reporting responsibilities, including legislative analysis and a study of vehicle use. He conceded that in the previous months, few bills had affected ISD.


Fogelman testified that he gave Ivory assignments as they came in, and denied that these were mere "busywork." Ivory was assigned to the employee recognition program, and she had some responsibility for handling customers and other matters. He rated her performance from December 1992 to December 1993 as "competent."


Fogelman conceded that Ivory asked him on numerous occasions for more work. He also admitted that he saw her reading books, and that he distributed job-related magazines to her. He did not ask her to stop reading.


Joan Ouderkirk testified that she is a chief deputy at ISD. According to Ouderkirk, the merging of the six departments that created ISD was "an evolutionary process," and changes continued after she arrived. Ouderkirk considered Ivory to be "high-level staff," rather than a manager.


In 1993, Ouderkirk met with Ivory to hear her complaints about her role in ISD and her relationship with Pollard. Ivory had asked for more meaningful assignments. As a result of the complaint, Ivory was reassigned to Arnold Fogelman. However, after this reassignment, Ivory continued to complain about lack of work.


After Ivory filed her first administrative action, Ouderkirk looked for alternative assignments for Ivory. Four positions were offered to her, all at her level of data processing specialist I and involving meaningful responsibilities. Ivory declined each position.


Finally, Mark Gascoigne, who is general manager of the information technology service for ISD, testified that when he selected the alternative positions offered to Ivory, he believed that she could carry out their duties.


The hearing officer also heard testimony regarding Ivory's situation at ISD in 1995 and thereafter. Koganti Rao testified that he managed an IBM computer center for ISD, and had two staff members, Ivory and Steve Dutton. Ivory had been in his division since February 1995, and was assigned to budget preparation, budget forecasting, and contracts management.


Rao rated Ivory's overall performance under his supervision as "competent." He denied that he had assigned Ivory to tasks requiring technical competence in computing, that he had imposed artificial deadlines on her work, and that she had too little work of a nonclerical nature. He also denied that he and Dutton had once laughed at Ivory after she had difficulties using a spreadsheet program.


*7 Steve Dutton testified as follows: He is classified as a data specialist I, and he supervises librarians for the County of Los Angeles. Regarding an incident in which Ivory had filed a complaint against Dutton, he denied that he had laughed at Ivory when she had difficulties with a spreadsheet program, and he denied that he had improperly grabbed her arm during the incident.


The principal evidence regarding the existence of intentional discrimination within ISD came from three African-Americans, Frank Work, John Golden, and Jason Williams. Work testified that he was senior deputy director of the Facilities Management Department (FMD) within ISD. According to Work, when ISD was created, a number of African-Americans in managerial positions in prior departments did not find employment within ISD. He also testified that the functions of some departments that tended to hire minorities were contracted out.


Work testified that he transferred out of ISD because he and Stewart did not get along. Nonetheless, he believed that his conflict with Stewart ultimately stemmed from "a racial situation" involving a systematic removal of African-Americans from ISD, together with the lack of promotions for qualified African-Americans.


Golden testified as follows: He was a deputy director for ISD until his retirement in January 1993. According to Golden, he reported directly to Stewart, and worked only on a single marketing project that was below his level of responsibility. He also testified that upon the creation of ISD, African-American managers from one department were not given positions consistent with their prior positions.


Golden believed that the treatment that he received at ISD was due to racism. When asked who had perpetrated the racist actions against him, he replied, "I-- it was systematic; it's systemic, in the system. It's--just goes around, and the players simply play ball. That's all."


Williams testified that he was an administrator for the Los Angeles County Department of Health Services. Until September 1987, he was an assistant director for FMD, which became part of ISD. Prior to the creation of ISD, he and several other African-Americans transferred to the Department of Health Services. While he was at FMD, he lacked significant work, and he filed a discrimination complaint, alleging that he was not being assigned any work due to his race. He acknowledged that he did not have any personal knowledge of discrimination against Ivory.


Finally, two witnesses provided statistical evidence regarding African-American employees within ISD. Sheila Johnson, a human resources manager for ISD, testified that ISD's highest level of management--which comprised the department head, five directors (or general managers), and three deputy directors--did not contain any African-Americans. Approximately 5 out of 40 division managers were African-Americans, including Johnson herself. Overall, 14.4 percent of its employees in management positions were African-Americans in 1993.


*8 Sandra Taylor testified as follows: While employed at ISD, she was a manager in human resources. According to Taylor, 22 managers in ISD took advantage of an early retirement program in 1992 and 1993. Of these, three were African-American, including Golden. Taylor also testified that the civil service commission found that Williams did not establish a prima facie case of discrimination in his administrative action.


b. Prima Facie Case Of Discrimination


The first issue is whether Ivory presented a prima facie case of discrimination. "The elements of a prima facie case of unlawful discrimination vary depending upon the facts. Generally, to prove her case, the plaintiff must provide evidence that (1) she was a member of a protected class, (2) she was qualified for the position that she sought, (3) she suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance that suggests discriminatory motive. [Citation.]" (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038, 128 Cal.Rptr.2d 660.)


The plaintiff can establish a prima facie case without necessarily producing enough evidence to permit a reasonable trier of fact to infer discrimination at trial. (Guz, supra, 24 Cal.4th at pp. 355-362, 100 Cal.Rptr.2d 352, 8 P.3d 1089.) As the court remarked in Heard v. Lockheed Missiles & Space Co., supra, 44 Cal.App.4th at page 1755, 52 Cal.Rptr.2d 620, "[t]he plaintiff's burden in this respect is not onerous. [Citation.]"


Here, Ivory submitted evidence that she falls within a protected class, and she was qualified to perform more substantial work than she was assigned. Furthermore, she points to the promotion of Caucasian employees to positions for which she was minimally qualified: shortly after ISD was recreated, Ron Mathis was brought in from outside ISD to serve as a deputy director in the finance department. This is sufficient to suggest a discriminatory motive.


Thus, the key issue is whether Ivory established the third element of a prima facie case, given there is no evidence that she experienced a loss of salary or a formal demotion or reduction of her rank and grade, as these are defined within the applicable civil service rules. There is no California case authority on point.


We find guidance in cases addressing retaliation claims due to discrimination complaints. In this context, California courts have adopted a flexible approach to the requirement for an adverse employment action, taken as an element of a prima facie case of retaliation. In Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 510-512, 91 Cal.Rptr.2d 770, the court surveyed federal authority regarding this element, and observed that although some circuits limit adverse employment actions to decisions such as discharge, demotion, and refusal to hire or promote, most circuits take a less rigid view of the matter. Noting the broad sweep of California's antidiscrimination statutes, the court in Thomas held that the key determination regarding employment actions is whether "they result in a material change in the terms of [the plaintiff's] employment, impair [his or] her employment in some cognizable manner, or show some other employment injury." (Id. at p. 511, 91 Cal.Rptr.2d 770.)


*9 Again, in Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1454-1455, 116 Cal.Rptr.2d 602, the court followed Thomas on this question. It concluded that an adverse employment action is not limited to " 'ultimate' employment acts, such as a specific hiring, firing, demotion, or failure to promote decision[s,]" and that the key determination is whether the employment action "had a substantial and material adverse effect on the terms and conditions of the plaintiff's employment." (Id. at p. 1455, 116 Cal.Rptr.2d 602.)


In Yartzoff v. Thomas (9th Cir.1987) 809 F.2d 1371, 1375-1376, the court indicated that under this approach, transfers of job duties and undeserved performance ratings, if proven, constitute adverse employment decisions in retaliation claims under federal law. Furthermore, in Chuang v. University of California Davis (9th Cir.2000) 225 F.3d 1115, the court applied this approach in the context of a prima facie case of racial discrimination. After a university reassigned the laboratory space of two Asian-American scientists to Caucasian scientists, the Asian-American scientists asserted a claim for racial discrimination under federal law. (225 F.3d at pp. 1121-1122.) In view of a showing that this reassignment disrupted research projects and delayed research grants, the court in Chuang concluded that the reassignment constituted an adverse employment action for the purposes of a prima facie case of discrimination. (Id. at pp. 1125-1126.)


Given this authority, we conclude that there is adequate evidence of an adverse employment action. During the pertinent period, Ivory's performance evaluations fell from "very competent" or "competent+" to "competent," and the record indicates that these performance evaluations were relevant for her prospects for promotion. Moreover, Ivory unsuccessfully sought meaningful work as ISD's work force shrank from 4,000 employees to 2,800 employees. Ivory testified that she rejected the three positions offered to her because they required technical skills that she lacked, and she feared that she was being set up for a layoff or termination. This evidence indicates that ISD's conduct "had a substantial and [material] effect on the terms and conditions of [Ivory's] employment," for the purposes of a prima facie case. (Akers v. County of San Diego, supra, 95 Cal.App.4th at p. 1455, 116 Cal.Rptr.2d 602.)


c. Legitimate, Nondiscriminatory Reasons


The second issue is whether ISD adequately demonstrated legitimate, nondiscriminatory reasons for its treatment of Ivory. The hearing officer suggested--but did not clearly state--that ISD did not meet its burden on this matter. We conclude otherwise.


Once a plaintiff establishes a prima facie case, a presumption of discrimination arises, and the burden shifts to the employer to produce "admissible evidence, sufficient to 'raise[ ] a genuine issue of fact' and 'to justify a judgment for the [employer],' that its action was taken for a legitimate, nondiscriminatory reason. [Citations.]" (Guz, supra, 24 Cal.4th at p. 355-356, 100 Cal.Rptr.2d 352, 8 P.3d 1089.) As the United States Supreme Court explained in St. Mary's Honor Center, supra, 509 U.S. at page 509, the determination that the employer has met its burden does not involve a credibility assessment, but only an assessment as to whether it has "introduce [d] evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action."


*10 Here, ISD denied that it acted with discriminatory motives with respect to Ivory. It submitted evidence that after ISD was created, its workforce was downsized and its organizational structure was in a state of flux. In addition, it pointed to evidence that after Hayes retired, it tried to find suitable positions for Ivory. Ivory was first placed under Isbell's supervision, where Ivory found productive work, and later under Pollard's, Fogelman's, and Rao's supervision, where Ivory was dissatisfied. Following Ivory's complaints, ISD offered Ivory three alternative positions, which she rejected. In our view, this evidence, if taken as true, would permit the inference that ISD lacked discriminatory motives for its treatment of Ivory.


The hearing officer apparently disagreed with this conclusion, reasoning that ISD did not establish that its decisions regarding Ivory were based on a serious consideration of her qualifications for available work. The key assumption of this reasoning is that ISD was required to make a particularized showing that Ivory was well suited for each of her assignments.


We reject this assumption. As the court in Guz explained, if an employer's reasons are not discriminatory, they "need not necessarily have been wise or correct. [Citation.] While the objective soundness of an employer's proffered reasons supports their credibility ..., the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Thus, 'legitimate' reasons [citation] in this context are reasons that are facially unrelated to prohibited bias, and which, if true would thus preclude a finding of discrimination. [Citations.]" (24 Cal.4th at p. 358, 100 Cal.Rptr.2d 352, 8 P.3d 1089, fn. omitted.) In making these remarks, the court in Guz rejected the suggestion that generally "the employers' reasons must stem from its actual consideration of 'particularized facts.' [Citation.]" (Id. at p. 358, fn. 22, 100 Cal.Rptr.2d 352, 8 P.3d 1089, quoting Smith v. Chrysler Corp. (6th Cir.1998) 155 F.3d 799, 806.)


In view of Guz, we conclude that ISD demonstrated legitimate, nondiscriminatory reasons for its treatment of Ivory.


d. Pretext


Because ISD carried its burden, the onus fell on Ivory to show that ISD's asserted reasons were pretextual, and that its underlying motives were discriminatory. (Guz, supra, 24 Cal.4th at p. 356, 100 Cal.Rptr.2d 352, 8 P.3d 1089.) At this point, the burden-shifting scheme effectively drops away, and we confront the sole remaining question: does substantial evidence support the finding that ISD engaged in intentional discrimination? For the reasons explained below, the evidence in the record, including Ivory's prima facie case, does not support the determination of intentional discrimination.


As the hearing officer noted, there was no evidence that anyone in particular in ISD disliked or held a bias against African-Americans, and thus the finding of intentional discrimination rested entirely on circumstantial or indirect evidence. Here, the hearing officer stated: "[T]he pattern of departures by African-Americans in upper-level operational positions, the way some of them were treated on the job, and the appointment and promotion of [C]aucasians, when added to [ISD's] persistent underutilization of Ivory offered indirect evidence of the presence of race as a cause."


*11 In Guz, the court clarified that the existence of discriminatory motives cannot be inferred solely from deficiencies in the employer's proffered reasons for its conduct, even when the evidence establishes that these reasons are lies. (24 Cal.4th at pp. 360-361, 100 Cal.Rptr.2d 352, 8 P.3d 1089.) It stated: "Proof that the employer's proffered reasons are unworthy of credence may 'considerably assist' a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons. [Citation.] Still, there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer's action. [Citation.]" (Id. at p. 361, 100 Cal.Rptr.2d 352, 8 P.3d 1089.)


On appeal, Ivory does not cite independent evidence that ISD's proffered reasons are lies, as opposed to indications that it acted unwisely regarding Ivory. Although she points to the promotion of Mathis as prima facie evidence of discrimination, the record establishes that Mathis had a background in technical computing skills required for the position in question that Ivory lacked. The record also contains references to other Caucasians and non-African-Americans who were hired or promoted at ISD, but the testimony regarding these individuals is generally sketchy, and does not to permit a reasonable inference that Ivory was qualified for the positions that they obtained.


Accordingly, the hearing officer's finding of intentional discrimination rests crucially on the cited circumstantial evidence regarding the departure and treatment of African-Americans in ISD's "upper-level operational positions." Here, the record establishes that no African-American then occupied any of the nine positions at the highest level of ISD's management, although African-Americans otherwise held approximately 14.4 percent of managerial jobs.


In this context, the hearing officer's findings appear to rely on the testimony of Work, Golden, and Williams. However, Williams acknowledged that he never worked at ISD, and that he transferred away from a predecessor of ISD two years before ISD's creation. In addition, Williams conceded that he had no personal knowledge of Ivory's circumstances. For this reason, his testimony about his own situation cannot support inferences about patterns of departure and treatment of African-Americans within ISD.


The record indicates that only Work held a position in ISD's highest level of management; although Golden held the title of "deputy director," the record indicates that he reported to a member of ISD's highest level of management. Thus, the "pattern of departures ... in upper-level operational positions" appears to rest primarily on one person (or at best, two persons). As the court in Guz cautioned, inferences of intentional bias cannot rest on such samples, which are "too minuscule to demonstrate a statistically reliable discriminatory pattern. [Citation.]" (Guz, supra, 24 Cal.4th at p. 367, 100 Cal.Rptr.2d 352, 8 P.3d 1089.) In this context, the Guz court cited with approval several cases in which the sample was deemed to be too small to support a reliable inference of discrimination. (E.g., Fallis v. Kerr-McGee Corp. (10th Cir.1991) 944 F.2d 743, 745-746 [sample of 51 employees]; Simpson v. Midland-Ross Corp. (6th Cir.1987) 823 F.2d 937, 942-944 [sample of 17 persons]; Sengupta v. Morrison-Knudsen Co., Inc. (9th Cir.1986) 804 F.2d 1072, 1076 [sample of 28 employees].)


*12 Nor does Work's and Golden's testimony about their own situations otherwise support a credible inference of discrimination against Ivory. Both stated that racial discrimination played a role in their treatment at ISD. However, when pressed for the evidentiary basis for their testimony, they did not point to any incidents directly betraying racial animus toward themselves or any other persons. Golden stated in conclusory terms that there was systemic racial bias at ISD, and Work offered inferences based on his observations about the failures of other African-Americans at ISD and predecessor departments to be promoted or hired at ISD. Although Work named three or four of these individuals and made general observations about others, he said little about their circumstances beyond their failure to be promoted or hired, and the overall size and composition of the group that Work was discussing was never clearly described. [FN1]


FN1. Williams also named two or three individuals that he thought should have been promoted, but he also provided little information about their circumstances. For the reasons explained in the text, this testimony is not substantial evidence of racial discrimination.


Thus, Work's and Golden's testimony itself rests on the sort of unreliable statistical inference proscribed in Guz. In our view, Guz precludes regarding Work's and Golden's inferences on these statistical matters as adequate evidence of discrimination.


In sum, the finding of intentional racial discrimination fails for want of substantial evidence.


2. Second Administrative Action (Case No. 95-210)


We now turn to Ivory's second request for hearing, which arose out of her application for a managerial position in late 1994, during the course of the hearings on her first request for a hearing. Ivory's second request contended that her application failed due to retaliation for her first request for a hearing.


The hearing officer declined to find retaliation, but determined that the mode of examination was inappropriate. The hearing officer made no recommendation beyond that applicable to Ivory's first administrative action, which included offering Ivory the position for which she had applied, if it had not been filled. In light of the unsupported findings in Ivory's first action, the trial court determined that the recommendation in her second action was arbitrary and capricious. We agree with the trial court on this matter, but conclude that the matter must be remanded to the Commission for the determination of a proper remedy.


a. Evidence


Regarding the second appeal, Ivory indicated that she applied for an administrative manager XI position in December 1994. She received an overall score of 71.25 (out of a possible 100). She also testified that in January 1996, she complained that Steve Dutton had improperly grabbed her arm and held her in place during a conversation.


Alfred Mori testified as follows: He is responsible for staffing matters within ISD, including examinations. According to Mori, the examination in question was intended to solicit candidates in automotive fleet operations, and was conducted in accordance with applicable civil service rules. Approximately 30 to 40 people competed in the examination in question, and only a few were rejected. The position ultimately went to a candidate who received an overall score of 100.


*13 Mori further testified that an applicant's overall score was determined by two factors: the applicant's record, and an appraisal of performance. The first factor determined 75 percent of the score, and the second factor determined 25 percent of the score. To receive a full score on the first factor, the applicant needed experience with automotive contracting, which Ivory lacked. Without such experience, an applicant would qualify for a grade of only 70 (out of a possible 100) on the first factor.


Fogelman testified that in January 1995, he appraised Ivory's performance in connection with her administrative manager XI examination. Pollard also signed his evaluation. According to Fogelman, the score that he assigned to Ivory's performance was determined by Ivory's past performance evaluations, the contents of her personnel file, and his recollection of her work under his supervision. He initially testified that Ivory once provided a report to him, which was returned to him as inadequate by Pollard. He subsequently changed his testimony, stating that he had forwarded Ivory's draft to Pollard for feedback. After Pollard returned it, he and Ivory rewrote the report, but Pollard rejected it in its revised form.


Joseph Sandoval testified as follows: He is manager of the physical security and internal affairs section within ISD. In February 1996, he investigated Ivory's complaint that Dutton had improperly touched her. He established that Dutton had grabbed Ivory's arm in an unsolicited manner, but not that it was an act of violence or sexual harassment. As a result, Dutton was required to undergo counseling. The record otherwise indicates that Dutton was disciplined for the incident, and he apologized to Ivory.


b. Analysis


Generally, mandamus does not lie to control the discretion of a public agency. (8 Witkin, Cal. Procedure (4th ed. 1997) Extraordinary Writs, 79, p. 865.) Nonetheless, " '[a]n important exception to the foregoing general rule is that if the facts as admitted or proved be susceptible of but one construction or conclusion the right to the writ becomes a matter of law and the officer may be compelled to act in accordance with the facts as admitted or established. [Citation.]....' " (Conroy v. Civil Service Commission (1946) 75 Cal.App.2d 450, 458, 171 P.2d 500, quoting Bank of Italy v. Johnson (1926) 200 Cal. 1, 31, 251 P. 784.)


Here, substantial evidence supports the determination that the examination procedure was not appropriate under the circumstances. Public employees are entitled to due process when they seek promotions, although the requirements of due process in this context involve "a weighing process, i.e., 'Against the importance of the benefit and the harm resulting from its deprivation must be weighed the government's interest in pursuing the existing procedures. [Citation.]' " (Fuchs v. Los Angeles County Civil Service Com. (1973) 34 Cal.App.3d 709, 715, 110 Cal.Rptr. 311.) In view of Ivory's circumstances, the hearing officer could properly determine that Fogelman and Pollard were unsuitable evaluators of her performance, given that shortly beforehand she had testified that they had repeatedly denied her requests for work in her then-unresolved administrative action.


*14 Nonetheless, the record unequivocally establishes that Fogelman's appraisal was wholly irrelevant to Ivory's failure to obtain the promotion that she sought. Mori's testimony indicates that (1) regardless of the score that Fogelman assigned to her performance, she could not obtain an overall score of 100 on the examination due to her lack of experience with automotive contracts, and (2) the position was offered to the sole candidate who achieved an overall score of 100. Mori's testimony on these matters is uncontroverted.


Given Ivory's failure to establish discrimination (see pt. B.1.d., ante ) or her entitlement to the promotion that she sought, the hearing officer's recommendation--briefly put, that Ivory should receive a managerial position-- is factually unsupportable, and thus arbitrary and capricious. However, the matter must be remanded to the Commission to determine the remedy (if any) for the improper evaluation of Ivory's performance, short of the erroneous remedy originally ordered by the Commission. In our view, this remedy could take the form of removing Fogelman and Pollard's appraisal from her personnel record, or having other evaluators appraise her performance.


DISPOSITION

The judgment is reversed to the extent that it directs the Commission to enter a new order in Case No. 95-210 denying Ivory's request for relief, and the matter is remanded to the Commission to vacate its prior order in Case No. 95-210 and determine the appropriate remedy in that action in accordance with this opinion. The judgment is affirmed in all other respects. Respondent shall recover its costs on appeal.


We concur: HASTINGS, Acting P.J., and GRIMES, J. [FN*]


FN* Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Not Reported in Cal.Rptr.3d, 2004 WL 2651242 (Cal.App. 2 Dist.) Not Officially Published, (Cal. Rules of Court, Rules 976, 977)


Briefs and Other Related Documents (Back to top)


2004 WL 2461040 (Appellate Brief) Appellant's Reply Brief (Aug. 16, 2004)Original Image of this Document (PDF)


2004 WL 2605973 (Appellate Brief) Appellant's Reply Brief (Aug. 16, 2004)Original Image of this Document (PDF)


2004 WL 1674950 (Appellate Brief) Respondent's Brief (Jun. 01, 2004)Original Image of this Document (PDF)


2004 WL 1080631 (Appellate Brief) Appellant's Opening Brief - Amended (Jan. 11, 2004)Original Image of this Document (PDF)


2003 WL 23193056 (Appellate Brief) Appellant's Opening Brief (Nov. 18, 2003)Original Image of this Document (PDF)


B165032 (Docket) (Feb. 04, 2003)


END OF DOCUMENT

2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.