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Court of Appeal, Fifth District, California.

Karen MOISI, Plaintiff and Appellant, v. COLLEGE OF the SEQUOIAS COMMUNITY COLLEGE DISTRICT et al., Defendants and Respondents.

No. F017075.

Decided: October 14, 1993

Carolyn D. Phillips, Patience Milrod, Milrod & Phillips, Fresno, for plaintiff and appellant. Linda Jenson, Edward B. Reitkopp, Liebert, Cassidy & Frierson, Los Angeles, for defendants and respondents.



On June 14, 1990, appellant Karen Moisi filed an action in Tulare County Superior Court against respondents College of the Sequoias Community College District (COS or District) and various individuals 1 alleging denial of reemployment rights, various violations of the Education Code,2 intentional and negligent infliction of emotional distress, and sex discrimination.   The prerequisite governmental tort claim was filed on March 6, 1990, and denied on March 19, 1990.   Respondents filed their answer on August 6, 1990.   An amended answer was filed on August 22, 1990.

On March 15, 1991, respondents moved for summary judgment.   Appellant filed a cross motion for summary judgment on April 4, 1991.   After extensive briefing and argument by the parties, the trial court ruled in favor of respondents and against appellant.   A proposed order was submitted and objections to the proposed order were received.   The trial court adopted the proposed order as its own.   The order granting summary judgment in favor of respondents was entered on October 3, 1991.   Judgment was entered on the same date.

Appellant filed her timely notice of appeal on December 5, 1991.


In 1980, COS advertised a full-time position—“Director of Campus Parking/Security.” 3  The notice of vacancy listed as a requirement for the position that the applicant hold a community college teaching credential.   Appellant applied for the position using a document entitled “Employment Application for Certificated Personnel” and was ultimately hired.   The confirmation letter reiterated the requirement that appellant hold a teaching credential.   Appellant was credentialed.   Appellant's initial annual employment contract, dated January 8, 1981, states:

“You are hereby notified of your election as Campus Parking Director and as a criminal justice instructor in the College of the Sequoias for the term ending on or before June 30, 1981․”

“You are placed on Class I Step 5 of the revised certificated salary schedule adopted March 17, 1980 by the College of the Sequoias Board of Trustees for 50% time, and you are placed on Range 39, Schedule A of the revised classified salary schedule adopted March 17, 1980 by the College of the Sequoias Board of Trustees for 50% time․”

Appellant's contract was renewed each year, using identical language, in 1982, 1983, 1984, 1985, and 1986.   Each year until 1985 appellant was evaluated as a certificated employee.   Dues for the teacher's union were deducted from her paycheck and contributions were made in her behalf to the teacher's retirement fund, both earmarks of certificated employment.   On the other hand, appellant received vacation benefits given only to classified, not certificated, employees.   In 1985, appellant was evaluated as a classified employee.   Appellant worked more than 40 hours a week.   Her classroom time amounted to three hours a week.

Respondents contend appellant's job consisted of two part-time positions, that of Director of Public Safety and that of criminal justice instructor.   The criminal justice instructor portion of the job consisted of teaching one 3–unit class.   Appellant contends she held a single job for which a credential was required and therefore was a full-time certificated employee irrespective of what her job duties were.   She contends her salary was calculated by taking 50 percent from the classified schedule and 50 percent from the certificated schedule but that she was a certificated employee.

On February 12, 1987, appellant received a “Notice of Discontinuance of Temporary Certificated Service” which notified appellant that the three-unit course previously assigned to her was no longer going to be offered.   As a result, COS intended to eliminate what it contended was the certificated portion of appellant's job, one-half of a full-time equivalent position (0.5 FTE).   The District contended that appellant held a temporary position.   Simultaneously, COS offered appellant a full-time position as a “classified manager.”   Appellant believed and was told by a representative of the District if she executed an acceptance of the proposed action she would lose benefits as a certificated employee.   She refused to sign the acceptance.

Appellant also challenged the District's classification of her position as temporary.   In response, COS offered appellant a hearing before an administrative law judge (ALJ) in accordance with sections 87740 and 87743.   Pending resolution of the dispute, appellant was assigned a full-time classified management position, without a reduction in salary or a change in job duties.  (Classified employees earn less than certificated employees, which is one reason offered for the bifurcated salary structure under which appellant was hired.   She would have received more pay under the certificated salary and less under the classified salary.)

The sole issue submitted to the ALJ for determination was whether cause existed to reduce appellant's certificated position by 0.5 FTE, i.e., eliminate the three-unit class from appellant's job assignment.   The ALJ did not decide appellant's employment status.   The parties stipulated for purposes of the hearing that appellant was a “permanent certificated employee” of the District.   The hearing was held on June 25, 1987.

After a hearing on the matter submitted, the ALJ concluded cause existed to give notice to appellant “that she will not be rehired for the 1987/88 school year for 0.5 FTE.”   The ALJ also concluded “[n]o teacher less senior tha[n appellant] is being retained to perform services [appellant] is credentialed to perform.”   The decision of the ALJ is dated July 8, 1987, and was adopted by the District's board of trustees on July 20, 1987.   Based on advice of counsel, appellant did not appeal the Board's action.

Appellant retained her position, now characterized as a full-time classified management position, and was paid under a unique salary schedule intended to prevent a reduction in salary despite the loss of her certificated position.

In March 1989, the District began considering the possibility of merging appellant's position with that of “Associate Dean” to be placed under the direction of the “Division of Instruction.”   Appellant had proposed the merger before but no action on the proposal occurred.   Various representatives of the District met with other community colleges that were operating under a similar setup.   In April 1989, it was recommended to the board of trustees that the two positions be merged, appellant be laid off, and the new position, “Director, Police Training/Public Safety,” be advertised.   The board accepted the recommendation.

On July 18, 1989, appellant received a “Notification of Layoff” pursuant to sections 88117 and 88127.   Soon thereafter, COS advertised for the position of “Director, Police Training/Public Safety,” a certificated full-time position.   The job duties for the position included both the job duties previously performed by appellant in her position as Director of Public Safety and those previously assigned to the “Associate Dean” position held by various individuals during appellant's employment at COS.   It is undisputed appellant possesses the minimum qualifications for the new position.   Appellant applied for the new position.

During the recruitment and selection process, all applications were sanitized as to age, sex, and race.   A selection panel comprised of an unknown number of men and two women ranked the applicants.   One of the women members was a student.   Appellant ranked 15 overall out of 57 applicants.   Initially only the top twelve applicants were to be interviewed.   In order to further the District's affirmative action goals, three additional applicants who fell within protected classes were added to the interview list.   Appellant was one of the three added.

Of the applicants interviewed, appellant ranked last in qualifications.   The top three candidates were a Black male, an Anglo male and an Anglo female.4  The job was first offered to the Black male who declined the offer.   Next, the position was offered to the Anglo male, Gary Kuncl, who accepted the position.   Kuncl had never been employed by the District.

The new position includes the supervision and development of the police training programs at COS as well as managing the public safety program.   Although appellant did not perform these duties as Director of Public Safety, she did serve on an advisory committee which provided input for the District's police training programs.   She believed she was fully capable of performing all of the duties of the new position.

Appellant contends she was denied the position because she is a woman.   She contends women who hold management positions are not taken seriously by COS.   She was told by an employee in the public safety department that Kuncl had praised appellant's running of the department but stated he could get things done she as a woman could not.   Appellant also argues she was laid off and denied reemployment in the new position because she and the District disagreed on how faculty members breaking the law, as opposed to students, should be treated.


I.–III.  Standard of Review ***

IV. Sex Discrimination Cause of Action

 Appellant contends the trial court erred in granting summary judgment with respect to her sex discrimination (sixth) cause of action.   She claims she has established a prima facie case and raised triable issues of fact sufficient to allow the case to go to jury.   Respondents contend they have established a nondiscriminatory reason for appellant's discharge, and appellant has presented nothing but hearsay evidence to the contrary.

A. Applicable standards

Appellant's cause of action for unlawful employment discrimination on the basis of sex is brought under the California Fair Employment and Housing Act (Gov.Code, § 12900 et seq.).   The objectives of the state act are identical to those of title VII of the Federal Civil Rights Act (42 U.S.C. § 2000e et seq.), and California courts have therefore adopted the same legal standards when deciding discrimination cases, including the basic order of proof and various burdens and presumptions applying to these cases.  (Walker v. Blue Cross of California (1992) 4 Cal.App.4th 985, 997–998, 6 Cal.Rptr.2d 184;  Levy v. Regents of University of California (1988) 199 Cal.App.3d 1334, 1343, 245 Cal.Rptr. 576.)

 A plaintiff in a discrimination action may prove discrimination by direct, circumstantial or statistical evidence of discrimination or indirectly under the standards set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668.   (Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207, citing McDonnell Douglas Corp., supra.)   Under the McDonnell Douglas standard, the plaintiff first proves a prima facie case of discrimination by establishing that 1) he/she is a member of a protected class, 2) was qualified for the job from which he/she was discharged and/or applied, 3) was discharged and/or rejected despite sufficient qualifications to perform the duties of the position, and 4) the position from which he/she was discharged and/or rejected remained open and was ultimately filled by someone who was not a member of a protected class.   The prima facie case creates a presumption that the employer unlawfully discriminated against the employee.   It requires a conclusion of discrimination in the absence of an explanation.  (St. Mary's Honor Center v. Hicks (1993) 509 U.S. 502 [113 S.Ct. 2742], 125 L.Ed.2d 407.)

 Once a prima facie case is established, the burden of coming forward with evidence shifts to the employer to provide an explanation for the action challenged, i.e., the challenged action was taken for legitimate nondiscriminatory reasons.   This rebuts the prima facie case made by the employee.   Once this happens, the presumption goes away.   The employee then must persuade the factfinder the employer's stated nondiscriminatory reasons are pretextual and are actually motivated, in whole or in part, by an intent to discriminate.  (St. Mary's Honor Center v. Hicks, supra, 509 U.S. at p. –––– – –––– [113 S.Ct. at pp. 2747–2748];  see also Williams v. Williams Electronics, Inc. (7th Cir.1988) 856 F.2d 920, 924;  Merrick v. Farmers Ins. Group (9th Cir.1990) 892 F.2d 1434, 1437.)   Even when the presumption is invoked, however, the ultimate factual issue presented in any employment discrimination case is whether the plaintiff was a victim of intentional discrimination because he or she was a member of a protected class.  (St. Mary's, supra, 509 U.S. at p. –––– [113 S.Ct. at p. 2749].)

Prior to the recent decision in St. Mary's Honor Center v. Hicks, supra, several California appellate courts and numerous federal appellate circuits have granted summary judgment in favor of an employer who came forward with nondiscriminatory reasons for the challenged conduct which were not then rebutted by specific evidence offered by the plaintiff attacking the reasons given as pretextual.  (University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1039, 272 Cal.Rptr. 264, and cases cited therein;  Walker v. Blue Cross of California, supra, 4 Cal.App.4th at p. 996, 6 Cal.Rptr.2d 184;  Mitchell v. Peralta Community College Dist. (N.D.Cal.1991) 766 F.Supp. 834, 837;  Steckl v. Motorola, Inc. (9th Cir.1983) 703 F.2d 392, 393;  see also Mason v. Continental Ill. Nat. Bank (7th Cir.1983) 704 F.2d 361, 364–367;  Gonzales v. MetPath, Inc. (1989) 214 Cal.App.3d 422, 427–428, 262 Cal.Rptr. 654;  Medina–Munoz v. R.J. Reynolds Tobacco Co. (1st Cir.1990) 896 F.2d 5.)   In other words, when faced with a motion for summary judgment, the court hearing the motion refused to allow the plaintiff to rest on an assertion that the nondiscriminatory reasons given were untrue or pretextual without evidence placing the reasons given at issue.  (See Walker v. Blue Cross of California, supra, 4 Cal.App.4th at p. 996, 6 Cal.Rptr.2d 184;  University of Southern California v. Superior Court, supra, 222 Cal.App.3d at p. 1039, 272 Cal.Rptr. 264.)   However, our reading of the Supreme Court's decision in St. Mary's compels us to conclude these earlier decisions are no longer valid.

In St. Mary's, the Supreme Court reiterates the McDonnell Douglas presumption is one affecting the production of evidence and not one ultimately affecting the burden of proof.   In St. Mary's, the plaintiff was a Black man who was discharged from his position as shift commander at St. Mary's Honor Center, a correctional institution.   The plaintiff alleged discrimination on the basis of race.   After a full bench trial, the United States District Court for the Eastern District of Missouri found for the employer.   On appeal to the United States Court of Appeal for the Eighth Circuit, the case was reversed and remanded.   The Supreme Court granted certiorari.   At trial, the district court concluded that the reasons given for the termination were not the real reasons for termination, i.e. they were pretextual.   Nonetheless, the district court concluded the employee had not established the termination was racially motivated.   The appellate court reversed stating that because the employee had 1) invoked the presumption by establishing a prima facie case of discrimination under McDonnell Douglas, and 2) had effectively rebutted the nondiscriminatory reasons given for termination, the employee was entitled to judgment as a matter of law.

The Supreme Court in St. Mary's rejected this analysis.   Instead, it instructed that once the employer meets its burden of producing nondiscriminatory reasons for the challenged action, the presumption goes away and is no longer relevant.   This is consistent with what we previously understood the law to be in these types of cases.   However, the Supreme Court goes on to state as follows:

“The defendant's ‘production’ (whatever its persuasive effect) having been made, the trier of fact proceeds to decide the ultimate question:  whether plaintiff has proven ‘that the defendant intentionally discriminated against [him]’ because of his race, [McDonnell Douglas v. Green, supra, 450 U.S. at p. 253, 101 S.Ct. at 1093].   The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination.   Thus, rejection of the defendant's proffered reasons, will permit the trier of fact to infer the ultimate fact of intentional discrimination, and the Court of Appeals was correct when it noted that, upon such rejection, ‘[n]o additional proof of discrimination is required,’ 970 F.2d [487] at 493 (emphasis added).”   (St. Mary's Honor Center v. Hicks, supra, 509 U.S. at p. –––– [113 S.Ct. at p. 2749] first emphasis added, fn. omitted.)

 The above language states clearly that the truth or falsity of the employer's proffered reasons for the challenged action is for the trier of fact and that mere disbelief of the reasons offered together with the elements of the prima facie case and any inferences which might be drawn by the trier of fact is enough to prove intentional discrimination.   In other words, an employer's production of evidence of a nondiscriminatory reason for the challenged action at the summary judgment stage does not remove the issue of credibility.   Under the rule in St. Mary's, even though an employer has come forward with legitimate nondiscriminatory reasons for discrimination which have not been specifically rebutted by the plaintiff, the plaintiff is entitled to a full and fair opportunity to demonstrate, through the presentation of her own case and through cross-examination of the employer's witnesses, that the reasons proffered are not the true reasons for the challenged action but that an unlawful discriminatory reason is.  (St. Mary's Honor Center v. Hicks, supra, 509 U.S. at p. –––– [113 S.Ct. at pp. 2749, 2753].)

 We recognize that the holding and analysis in St. Mary's, as we understand it, will preclude summary judgment in most employment discrimination cases, at least in those where the employee has established a prima facie case and there are no legal defenses (such as failure to comply with statutory prerequisites or file within the applicable statute of limitations) available to the employer.   Nonetheless, in California we have consistently reserved summary judgment for those cases in which there exists no triable issue of fact and in which the moving party can demonstrate an entitlement to judgment as a matter of law.   Credibility issues may not be resolved at summary judgment but are left to the trier of fact.   If appellant has established a prima facie case under McDonnell Douglas, she is entitled to challenge the credibility of respondent's proffered reasons for terminating her and for refusing to rehire her at trial.

B. Appellant's showing in this case

 Contrary to respondents' assertions, appellant did establish a prima facie case of discrimination.   She is a member of a protected class.   She had been employed by the District for nine years and had received good evaluations.   There is no evidence the District was unhappy with appellant's performance—just the contrary.   Respondents concede appellant was qualified to perform the duties of the new position, many of which were the duties she had performed well in her previous position.   Appellant was a long-term employee of the District.   She had excellent evaluations and apparently there was no problem with her job performance.   There may have been some problems between her and her most recent supervisor, but none which had risen to the level of discipline.   She was a tried and true employee.   There is no question a significant portion of the new position consisted of duties which appellant had performed very well in the past.   The additional duties were duties she was qualified to perform.

There is also evidence appellant was not unfamiliar with the police academy:  She had served on the advisory committee for the academy.   She had been a criminal justice instructor and supervised students serving internships.   She was familiar with the District's policies, had connections with outside agencies, and had shown herself to be a self-starter when she created the campus security department which had not previously existed.   Appellant did not receive the position:  a man did.   Appellant met her burden of producing evidence of a prima facie case under McDonnell Douglas.  (See Steckl v. Motorola, Inc., supra, 703 F.2d at p. 393;  Williams v. Williams Electronics, Inc., supra, 856 F.2d at p. 923.)

 Respondents have presented evidence sufficient to rebut the prima facie case.   Their affidavits,18 if believed by the trier of fact, establish a legitimate nondiscriminatory reason for hiring someone other than appellant for the new position—they found a more qualified applicant.   This degree of proof has been widely accepted as sufficient to rebut a prima facie case of discrimination.  (Komel v. Jewel Companies (7th Cir.1989) 874 F.2d 472, 474–475;  Steckl v. Motorola, Inc., supra, 703 F.2d at p. 393;  Williams v. Williams Electronics, Inc., supra, 856 F.2d at p. 923;  Bell v. Bolger (8th Cir.1983) 708 F.2d 1312, 1317;  Mason v. Continental Ill. Nat. Bank, supra, 704 F.2d at p. 367.)

Nonetheless, under the rule set forth in St. Mary's, the truthfulness of the proffered nondiscriminatory reasons for terminating appellant and refusing to hire her into the new position remains an issue for the trier of fact.   Given the elements of the prima facie case, it is possible a reasonable jury could conclude respondents' reasons are pretextual.   It was error to grant summary judgment on the sixth cause of action.

Because we conclude it was error to grant summary judgment on this issue, we do not address appellant's contention that the trial court erred when it refused to allow her an opportunity to present further evidence of intentional discrimination.

V. Sufficiency of Trial Court's Order ††


Judgment is reversed.   The matter is remanded to the trial court with directions to vacate its previous order granting summary judgment and to proceed consistent with the views expressed herein.

Costs are awarded to appellant.



1.   The named individual defendants are Lincoln H. Hall, president of COS, Mike Flaherty, vice-president of COS, Ned F. Baker, Lee M. Lockhart, Robert Lyman, Luther Khachigian, and Louis E. Sweet, members of the COS Board of Trustees, and Victor R. Collins, COS director of personnel.   These individuals were named both as individuals and in their official capacity.   They are referred to, along with COS, collectively as respondents unless otherwise indicated.

2.   All further references are to the Education Code unless otherwise noted.

3.   The name of the department of which appellant was director (sometimes called manager or chief) changed over the years and was at various times the “Department of Public Safety,” “Department of Safety Services,” “Parking/Security Department,” or “Campus Police Department.”   For purposes of this opinion, we will refer to the department as the Department of Public Safety and to appellant's job title as Director.

4.   Appellant contends she would be able, with further discovery, to prove the top-ranking interviewee was the female applicant who nonetheless was not offered the position.

FOOTNOTE.   See footnote *, ante.

18.   Appellant contends Collins's declaration is inadmissible because it fails to state it is made upon personal knowledge.   We disagree.   Collins's declaration states he was “personally involved” in the decision to merge the two positions and in the selection procedure to fill the new position.   The information about the process is somewhat limited, presumably because he did not participate in the actual evaluation process.   What he did know, however, he competently set forth in his declaration.  (See Roy Brothers Drilling Co. v. Jones (1981) 123 Cal.App.3d 175, 182, 176 Cal.Rptr. 449.)

FOOTNOTE.   See footnote *, ante.

BIANCHI †, Associate Justice, Assigned. FN† Retired judge of the Kern County Superior Court, sitting under assignment by the Chairperson of the Judicial Council.

BEST, P.J., and MARTIN, J., concur.