NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
YEGAN, J.
Martin Hernandez, appellant, was employed by the Regents of the University of California, respondent. Appellant brought an action against respondent alleging age discrimination and retaliation in violation of the Fair Employment and Housing Act (FEHA). (Gov.Code, § 12900 et seq.) Appellant contended that respondent had discharged him because of his age and in retaliation for complaining that he had been subjected to age-related discrimination. The trial court granted respondent's motion for summary judgment, and appellant appeals from the ensuing judgment. We affirm.
Background
In 1995 respondent hired appellant as a Library Safety Officer (Safety Officer) at the Davidson Library (the library) at its Santa Barbara campus (UCSB). Appellant employed only one other Safety Officer at the library: Hibert Edell. Appellant and Edell worked opposite shifts. Appellant testified that the Safety Officers "basically made sure people in the library were safe and not being harassed or bothered." They also investigated "the thefts and sex crimes that took place in the library. In addition, they closed the library at night.
Appellant's and Edell's supervisor was Robert Crew. Crew's official position was Safety Office Coordinator. Appellant had a good relationship with Crew. Crew's supervisor was Eric Forte, the head of the Access Services Department in the library. Forte badgered and harassed appellant. He called appellant an "underachiever." Appellant was never disciplined by Crew or Forte.
Appellant and Edell supervised 12 to 25 student assistants. Each student assistant worked fewer than 20 hours per week and earned $8.00 per hour. Two student assistants "would generally be on duty at any one time in the library." According to appellant, the Safety Officers and student assistants "[p]retty much . . . all had the same duties." Appellant could not "really think of anything [the safety officers] did that [the student assistants] didn't." Detrice Bankhead, the Associate University Librarian for Human Resources, declared that "the Student Assistants and the full-time Safety Officers performed the same duties and worked the same shifts."
In May 2007 Crew left his position at the library. Appellant was not offered Crew's job. Forte told Crew that he was not going to offer the job to appellant because he "had no confidence" in him. Crew communicated Forte's statement to appellant, who "felt discriminated against."
Appellant testified that in July 2007 Crew's former position was retitled "Library Assistant," downgraded to a half-time position (20 hours per week), and filled by a former student assistant, Alfredo Martinez, who was 23 years old. Appellant did not want the half-time position because he "made more working full-time." It appeared to appellant that Martinez had the same duties as Crew except that Martinez did not supervise the Safety Officers. Martinez's hours were later increased to 30 hours per week.
Martinez testified that his main duties were to hire, train, and manage the student assistants. If an emergency occurred in the library, Martinez would help out. In addition, Martinez would do bookkeeping and would move tables and chairs in the library. Martinez and student assistants would close the library at night.
In May, June, or July 2007, appellant met with Gene Lucas, the Acting University Librarian at UCSB. Appellant wanted to voice his concern that he "was being discriminated against and not treated fairly." Appellant told Lucas "that [he] was being treated poorly in the library and [he] would like to know why, and why [he] wouldn't be offered [Crew's former] position of . . . safety coordinator . . . ." Appellant said that Forte had made "derogatory comments toward [him]." Appellant could not recall whether he had told Lucas that he thought his poor treatment "had something to do with [his] age." Appellant did not know whether he had actually said the word "discrimination." Lucas said that he would "[c]heck into" appellant's complaints. But Lucas did not do anything about the complaints.
At a meeting on August 1, 2007, appellant and Edell were informed that they were going to be laid off because "the University no longer needed two full-time safety officers for the Davidson library and . . . the University was streamlining its operations to match its needs." Appellant was 49 years old. Detrice Bankhead asked appellant if he wanted to retire. Appellant replied that he was too young to retire. Bankhead "strongly recommended that [appellant] take the severance package." The severance package would have given him 10 weeks of salary in a lump sum payment. The alternative was preferential rehire rights. Appellant decided to "take the preferential rehire [rights]" instead of the severance package. Edell retired and took the severance package.
Appellant subsequently applied for four positions at UCSB. He was interviewed for three positions but did not receive an offer. The positions did not fall within appellant's preferential rehire rights because they "had a higher salary range maximum than [appellant's] previous position." Appellant was not selected for the positions because he lacked the necessary skills and experience and because there were more qualified applicants. According to appellant, he was not informed of any open positions that fell within his preferential rehire rights.
Appellant claimed that, after he and Edell had been laid off, Martinez hired two younger men, Danny and Jason, who "took over" their jobs. But according to Martinez, Danny and Jason were student assistants whom he had promoted to a "lead" role. As a result of the promotion, they earned $1.00 more per hour. Danny's and Jason's employment was terminated when they graduated, since student assistants cannot continue to work after graduation. After Danny's graduation, Martinez did not promote anyone to a lead role because of budget cuts.
Patrick Dawson, the Assistant University Librarian for Information and Research Services, declared: "In 2007, the Library was facing yet another round of budget cuts and declining Library General Funds. Because of this, we were very concerned with the cost-effectiveness of our programs and many vacant positions in the Library were going unfilled." "We decided to eliminate the full-time Safety Office Coordinator position [after Crew left]. We determined that the duties of hiring, training, scheduling, evaluating and disciplining the Student Assistants, maintaining the Lost and Found, and reconciling time reporting — which had previously been performed by Mr. Crew — could be performed by a half-time administrative assistant within the Access Services Department." "We further decided that the existing Student Assistants working out of the Safety Office could perform the remainder of the Safety Office functions, by continuing to perform the same duties they had always performed. This would enable us to eliminate the two full-time Safety Officer positions." "After the full-time Safety Office positions were eliminated, there was no change in the Student Assistant program in the Safety Office. The Student Assistants continued to perform the same duties they had historically performed and the Safety Office did not increase the number of Student Assistants employed in the Safety Office beyond the typical variance in staffing levels that had existed in previous years."
Respondent estimated that the elimination of appellant's and Edell's positions would save the library about $100,000 per year. It is undisputed that their "salary and benefits were a factor in the layoff decision."
Detrice Bankhead declared that appellant's "age played no part in the decision to eliminate his Safety Officer position." Bankhead further declared: "Since the time that the two Safety Officers stopped working in the Library, Mr. Martinez has been the only staff (non-student) employee in the Safety Office. The Library has never recruited for any other staff positions to perform Safety Office duties."
Standard of Review
"The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A motion for summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A triable issue of material fact exists only if "the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850, fn. omitted.)
On appeal we conduct a de novo review, applying the same standard as the trial court. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064.) Our obligation is "`"to determine whether issues of fact exist, not to decide the merits of the issues themselves."'" (Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1228.) We must "`consider all of the evidence' and `all' of the `inferences' reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations] in the light most favorable to the opposing party." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.)
Age Discrimination Claim
The FEHA provides that it is an unlawful employment practice for an employer to discriminate against or discharge an employee because of his age. (Gov. Code, § 12940, subd. (a).) Respondent "offered extensive evidence of its reasons, unrelated to age, for eliminating" the two Safety Officer positions. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 353.) Respondent's "explanation of nondiscriminatory reasons was creditable on its face." (Id., at p. 357.) Because of budgetary constraints, respondent wanted to economize by shifting the duties of the Safety Officers performed by Martinez and the existing student assistants. In view of respondent's showing of nondiscriminatory reasons for its action, the burden was on appellant "to show there was nonetheless a triable issue that decisions leading to [appellant's] termination were actually made on the prohibited basis of his age." [Citations.]" (Id., at p. 360.) To meet his burden, appellant was required to point to "evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of [respondent's] actions. [Citation.]" (Id., at p. 361.)
"[S]ummary judgment for the employer may . . . be appropriate where, given the strength of the employer's showing of innocent reasons, any countervailing circumstantial evidence of discriminatory motive, even if it may technically constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred. Such is the case here." (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 362.) Appellant contends that "a disputed issue of fact exists regarding whether [appellant] was replaced in his position by a significantly younger person," Martinez. But the evidence does not indicate that Martinez replaced appellant. Martinez was appointed to a part-time position with duties similar to those performed by Crew. If Martinez replaced anyone, it was Crew, not appellant. It appeared to appellant that Martinez had the same duties as Crew except that Martinez did not supervise the Safety Officers. Appellant did not see Martinez "performing any other types of duties that Rob Crew didn't perform." In his separate statement of undisputed material facts, appellant alleged "that Martinez was hired to take over Crew's job."
Appellant argues that respondent's reasons for discharging him were pre-textual. Appellant's argument is based on several grounds. First, "under U.C. Santa Barbara's layoff, only one person was affected, [appellant]. No explanation was given why he, alone, was selected." But appellant was not the only person laid off. Respondent also discharged the other Safety Officer, Edell. Respondent provided ample justification for laying off the two Safety Officers: their work could be adequately performed by Martinez and the existing student assistants.
Second, "at the same time [appellant] was being laid off for budget reasons, U.C. Santa Barbara continued to advertise the availability of almost identical jobs. . . . It placed an advertisement seeking an Access Office Assistant . . . and several Library Assistant II positions . . . ." But appellant has not shown that these advertised positions were "almost identical" to the position of Safety Officer. Appellant does not even discuss the job responsibilities of these positions. Appellant maintains that he "even saw advertisements for two half-time employees for his former job." According to appellant, Danny and Jason were appointed to these half-time positions. But Danny and Jason were merely student assistants who were promoted by Martinez to a lead role. Bankhead declared that, since the discharge of appellant and Edell, "[t]he Library has never recruited for any other staff [non-student] positions to perform Safety Office duties."
Third, "at the layoff meeting, Personnel Director Bankhead repeatedly asked [appellant] whether he wanted to retire. . . . Repeated references to retirement, however, may permit a jury to infer discrimination, as the comments may reflect the employer's intention to rid itself of older workers by subtly pressuring them into retiring." In support of the third ground, appellant cites pages 734 and 827 of the Clerk's Transcript. The deposition testimony reported at these pages shows that Bankhead asked appellant whether he wanted to retire, but there is no indication that she "repeatedly" made this inquiry. Furthermore, there is no evidence that Bankhead was trying to get rid of appellant by pressuring him into retiring. Appellant had just been informed that he was going to be laid off. Bankhead was merely advising appellant that, in view of this development, he may want to consider retirement.
Fourth, "U.C. Santa Barbara['s] acknowledged reliance on [appellant's] salary and pension suggest[s] that its decision to terminate [appellant] was . . . based on his age." But it was only reasonable for respondent to consider appellant's and Edell's salaries and benefits in determining whether they should be laid off. The estimated annual savings of approximately $100,000 made it clear that the layoffs would significantly improve the library's finances.
Fifth, appellant "filed complaints with, among others Acting Librarian Lucas . . . . [Appellant] complained that he was being discriminated against on the basis of his age and that he was not being treated fairly. . . . Lucas' failure to investigate [appellant's] complaint is evidence of pretext for [appellant's] subsequent discharge." But there is no evidence that appellant "filed" a complaint with Lucas. Nor is there any evidence that appellant complained to Lucas that he was being discriminated against because of his age. Appellant told Lucas "that [he] was being treated poorly in the library and [he] would like to know why, and why [he] wouldn't be offered [Crew's former] position of . . . safety coordinator . . . ." Appellant could not recall whether he had told Lucas that he thought his poor treatment "had something to do with [his] age." "Employees often do not speak with the clarity or precision of lawyers. At the same time, however, employers need not approach every employee's comment as a riddle, puzzling over the possibility that it contains a cloaked complaint of discrimination." (Garcia-Paz v. Swift Textiles, Inc. (D.Kan. 1995) 873 F.Supp. 547, 560.)
Sixth, appellant asserts that he "was given shifting reasons for his termination." But the evidence shows that appellant was given a consistent explanation: the library no longer needed the services of two full-time Safety Officers.
"In sum, even without considering [respondent's] explanation, [appellant's] evidence raised, at best, only a weak suspicion that discrimination was a likely basis for his release. Against that evidence, [respondent] has presented a plausible, and largely uncontradicted, explanation that it eliminated [the positions of Safety Officer] for reasons unrelated to age. . . . [¶] Under these circumstances we conclude, as a matter of law, that [appellant] has failed to point to evidence raising a triable issue that [respondent's] proffered reasons for its actions were a pretext for prohibited age discrimination. [Respondent] is therefore entitled to summary judgment on this claim." (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 370.)
Retaliation Claim
"[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a `protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation `drops out of the picture,' and the burden shifts back to the employee to prove intentional retaliation. [Citation.]" (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)
An employee engages in protected activity when he complains to his employer concerning age discrimination. (Gov. Code, § 12940, subd. (h).) Appellant contends that respondent discharged him in retaliation for complaining that he was being discriminated against because of his age. "`The relevant question . . . is not whether a formal accusation of discrimination is made but whether the employee's communications to the employer sufficiently convey the employee's reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner.' [Citation.]" (Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at p. 1047.) "[C]omplaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct. [Citations.]" (Ibid.)
Appellant has failed to point to evidence raising a triable issue whether he sufficiently conveyed to respondent his reasonable concern that he was being discriminated against because of his age. As we discussed in the preceding part of this opinion, there is no evidence that appellant made an age-related complaint to Lucas. Furthermore, appellant testified that he had "[n]ot specifically" complained to any other employee that he was being harassed because of his age.
In any event, appellant has failed to point to evidence raising a triable issue whether respondent's nonretaliatory reasons for discharging him were pretextual. Respondent, therefore, is also entitled to summary judgment on the retaliation claim.
Disposition
The judgment is affirmed. Respondent shall recover its costs on appeal.
We concur:
GILBERT, P.J.
PERREN, J.
