NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COFFEE, J.
Appellant John Cooper (Cooper) was employed as a machinist by Kavlico Industries (Kavlico) for 13 years. Beginning in 2008, Kavlico laid off one-half of its work force. Cooper was terminated in 2009. He filed a lawsuit against Kavlico, claiming that it had engaged in a pattern of discriminatory conduct. He asserted that the company-wide layoffs gave it the opportunity to terminate him under the pretext of a reduction in work force. Kavlico moved for summary judgment, which the trial court granted. He argues that he satisfied his burden of presenting substantial evidence to show that Kavlico had a discriminatory motive for terminating him. We affirm.
FACTS
Kavlico manufactures sensors for the automobile and aerospace industries. Both divisions had a separate machine shop which produced specialized tools for its manufacturing processes. Cooper was hired by Kavlico in 1996 and laid off in 2009. He was employed as a tool crib attendant in the machine shop in the aerospace division. His duties involved maintaining an inventory of tools, keeping track of tools, providing them to the machinists, and ordering tools as needed. Cooper worked the day shift, and a different tool crib attendant worked the night shift.
In 2004, Simon Gharassimian became Cooper's supervisor. In 2006, the tool crib attendant who worked the night shift in appellant's division left Kavlico. He was not replaced, and the machinists on the night shift, Arnold Alvarado and James Holland, assumed the tool crib duties.
On August 9, 2006, Gharassimian gave Cooper a verbal performance warning concerning logging tools in and out of a computerized system. Two days later, he asked human resources if he could give Cooper a final warning. In December 2006, Gharassimian wrote an 18-page "chronology" reciting the events leading up to the warning. Cooper claims that Gharassimian's claims were fabricated and made for the purpose of harassment. In 2007, Gharassimian chose Cooper to receive an award for his improved job performance.
Reduction in Work Force
Beginning in 2008, Kavlico laid off 771 of its 1,300 employees. The first round of layoffs occurred in 2008. A second layoff occurred in February 2009. Cooper was laid off along with 35 other people.
The process for the layoffs was as follows. The supervisors evaluated each employee on a scale of 1-20. Cooper received a score of 8 in 2007, prepared by his former supervisor, Dave Long. His subsequent supervisor, Simon Gharassimian, rated him at 14 in 2007 and 16 in 2008. Gharassimian provided these scores to the human resources upper management, who then identified the individuals who would be laid off.
The decisions by upper management were based upon the employee assessments, the necessity of the position and whether the work force could absorb an employee's duties. Kavlico asserted that any biases by Gharassimian were irrelevant to Cooper's discrimination claim because he had no direct role in the layoff decision. Rather, his role was limited to rating the employees under his supervision as a basis for the layoffs.
Complaint and Motion for Summary Judgment
On July 21, 2009, Cooper filed a lawsuit against Kavlico and Custom Sensors & Technologies (CST)1 alleging causes of action for racial discrimination, harassment, retaliation and wrongful termination. Kavlico moved for summary judgment, alleging that the layoff was nondiscriminatory because it was based upon numerical evaluations of an employee's skill, performance and versatility. It asserted that it had made a good-faith business decision by terminating Cooper. In this case, it noted that the machine shop had previously laid off two machinists.
Kavlico had also instituted an automated "Tool Boss" system which eliminated some of the crib attendant's duties. The system required machinists to swipe a badge to select the desired tool, and then retrieve it from the system. The crib attendant only had to keep track of tools too unwieldy for the system, and to order new tools as requested by the machinists.
In moving for summary judgment, Kavlico claimed that its decision was based upon retaining those employees with the greatest skill sets. It counted machinists as the most highly skilled employees whose skill sets could not be easily learned by other employees. Kavlico asserted that Cooper had not performed machinist duties during his employment and would have to be retrained to use the machines.
Holland, a non-African American employee, took over Cooper's duties the day after he was laid off. Kavlico asserted that Holland was an experienced machinist and had begun performing machinist work in the early 1970's. Cooper had not worked as a machinist in 13 years. Holland was also experienced working in the tool crib and had received higher employee assessment ratings than Cooper.
Opposition to Motion for Summary Judgment
In opposition, Cooper argued that Kavlico's nondiscriminatory reason for laying him off was pretextual. His position was not eliminated. Rather, he was replaced with a less experienced non-African American employee. Cooper alleged that Holland did no machining until 12 months after Cooper was laid off. Thus, Kavlico's explanation that a more versatile employee was needed was false.
Cooper's Evidence of Discrimination
Cooper presented evidence that, sometime in 2005, he found a note in his work area with the word "sambo" written on it. On several occasions a coworker called him a "nigger." Cooper alleged that he reported these incidents to Gharassimian and human resources, but no action was taken to address the discrimination.
Cooper provided evidence that Gharassimian would not allow air conditioning in his work area; he was constantly called into a supervisor's office for no reason; and his overtime hours were eliminated. Cooper also alleged instances of racism by Gharassimian against other African American employees.2
Trial Court's Ruling
The trial court took the matter under submission.3 It issued a minute order making certain evidentiary rulings and granting Kavlico's motion for summary judgment. The court determined that Cooper had not satisfied his burden of presenting substantial evidence that Kavlico's stated nondiscriminatory reason for termination was pretextual. It concluded that Cooper's proffered evidence showed that his coworkers experienced or witnessed racial discrimination and harassment, but did not create a triable issue that Cooper was terminated as a result of discrimination. The court also noted that Cooper's circumstantial evidence of discriminatory intent occurred in 2006 and 2007. The court concluded this was too temporally remote to raise an inference of discrimination as to his termination in 2009.
DISCUSSION
Summary judgment is properly granted only if all papers submitted show there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) On appeal, we conduct a de novo review of the record to "determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff's case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law. [Citations.]" (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 334.)
An employer moving for summary judgment bears the burden of showing that either one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate nondiscriminatory factors. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.) The burden then shifts to the employee to provide "substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination." (Hersant v. Dept. of Social Services (1997) 57 Cal.App.4th 997, 1005.)
Cooper claims he established triable issues of fact that (1) Kavlico used the reduction in work force as a pretext to lay him off and (2) his supervisor, Gharassimian, had discriminatory animus against African Americans. Cooper suggests that Gharassimian was seeking to terminate all African American employees and could only do so over time, as a pretext "developed" for each termination. He asserts that two to three years is not temporally remote because the incidents establish a history of discriminatory actions, which resulted in a hostile work environment for African American employees. Cooper also asserts that the trial court erred by failing to give any weight to evidence of discrimination that occurred in 2006 and 2007, two to three years before his termination.
The trial court did not err. Cooper presented evidence of discriminatory acts by coworkers; however, he was unable to specify a date upon which they occurred. Those he was able to document happened in 2006 and 2007. In 2008, Kavlico began laying off half its work force, terminating Cooper in 2009. Given the intervening economic downturn and the massive layoffs, the trial court was correct in determining that the events in 2006 and 2007 were too remote to be causally related to his 2009 termination. Moreover, this evidence is irrelevant because it does not demonstrate discriminatory bias by anyone involved with Cooper's layoff.
Kavlico's stated nondiscriminatory reason for Cooper's termination was two-fold: it had instituted company-wide layoffs for economic reasons; and it no longer needed an employee to perform tool crib duties exclusively. Kavlico met its burden to state a nondiscriminatory reason for Cooper's termination. Cooper, however, has failed to produce substantial evidence that Kavlico's reasons were a pretext for racial discrimination.
DISPOSITION
The judgment (order granting summary judgment) is affirmed. Costs on appeal are awarded to respondent.
GILBERT, P.J. and PERREN, J., concurs.
