IBARBIA v. REGENTS OF UNIVERSITY OF CALIFORNIA (1987)

The instant case is an employment discrimination action filed under title VII of the Civil Rights Act of 1964, section 701 et seq. (42 U.S.C. § 2000e et seq.).   Appellant Expedito Ibarbia, a Filipino-American, claims employment discrimination based on his national origin.   A summary judgment was entered against appellant below on respondents' motion.   Appellant filed this appeal in propria persona from the summary judgment.

I

The case stems from appellant's unsuccessful bid for the position of “farm advisor” with the Cooperative Extension, a part of the University of California's Division of Agricultural Services.

The Cooperative Extension was formed for the purpose of disseminating practical agricultural information and services to farmers and residents throughout the state.   It accomplishes this through the employment of county “extension” offices and farm advisors who work directly with the agricultural community as teachers, problem solvers and consultants.   Typically, a county extension office will have separate farm advisors for vegetable crops, field crops and livestock.

In 1979, the Yolo County Cooperative Extension Office had an opening for a farm advisor on vegetable crops.   County Director Carl Schoner and Assistant Director Roy Rauschkolb prepared a position vacancy announcement describing the position and listing qualifications required of applicants.   In August 1979, Agriculture and University Services Personnel Administrator Kendall Engelund circulated the announcement and formed a “search committee” for the purpose of screening applicants.   The committee consisted of Chairperson Thomas Kearney, the Yolo County farm advisor for field crops;  Robert Mullen, the San Joaquin County farm advisor on vegetable crops;  Marsha Campbell, the Stanislaus County farm advisor for field crops;  and Thomas Aldrich, the Colusa County Cooperative Extension director.

Closing date for receiving applications for the position was listed as October 15, 1979.   Engelund's office received a total of 21 applications.   Appellant's application and cover letter were received on October 22, 1979.

The search committee used a set of criteria as a basis for evaluating the applications.   Included in these criteria were such factors as farm experience, experience in commercial vegetable crop production, a master's degree, knowledge of statistics, knowledge of extension methods, knowledge of economics of farm management, letters of recommendation, and knowledge of California agricultural conditions.   Additionally, affirmative action considerations constituted 10 percent of the weight in the valuation process.

Although appellant's application was received after the closing date, it was considered by the committee along with the others.   On the basis of the above criteria, the committee selected four finalists for interviewes.   Appellant was not among those selected.   Appellant was notified by letter, dated November 26, 1979, that while the position had “not yet been filled,” he had not been selected as a finalist.

The four finalists were interviewed on November 19.   Following the interviews, the committee and County Director Schoner agreed on one applicant, Eugene Miyao (an Asian-American of Japanese descent), as the most qualified candidate for the position.   Miyao is a former tomato farmer from Yolo County, and thus was already familiar with the pertinent clientele and vegetable crop production.   Schoner and the committee recommended to Assistant Director Rauschkolb that Miyao be hired for the position.

By letter of November 29, 1979, appellant notified Personnel Administrator Engelund that he viewed the rejection of his application as “another instance of the University's continuing discrimination against Filipino-Americans.”   The letter repeated appellant's qualifications and challenged Engelund “to show me any finalist who has a better record than mine ․ in extension related areas.”   Engelund responded to the letter advising appellant that he had initiated a review of the selection process and that the position had not yet been filled pending resolution of appellant's inquiry.

A review of the selection process uncovered the reasons for appellant's rejection.   The reasons noted on the committee's report were appellant's apparent unwillingness to live in the geographical area in which the position was located, plus lack of field and practical experience.   The committee chairperson further pointed out that appellant's application listed no farm background or commercial vegetable crop experience, little if any knowledge of extension methods, and no indication of any economics training.   Additionally, appellant's most recent work experience as an agricultural inspector had been discredited by both the committee chairperson and Schoner who did not consider such law enforcement experience to be valuable preparation for the educational and consulting work of a farm advisor.   Appellant had, however, been given the full 10 percent credit for affirmative action consideration.

The review, however, also disclosed a discrepancy between the committee's criteria in evaluating the applications and the qualifications listed in the position vacancy announcement.   On the basis of this discrepancy, Dr. Jerome Siebert, then assistant vice president of the Cooperative Extension, directed the committee to reevaluate the criteria and make them conform more with the qualifications listed in the announcement, and then resubmit a recommendation with an analysis of all candidates including appellant.

After modifying the criteria to conform with the announcement, appellant was determined to be the fourth-ranked finalist.   Based on this turn of events, appellant was offered an interview by phone on January 29, 1980, but declined.   Appellant said he declined the interview in view of the fact that he had filed a complaint against the Cooperative Extension with the Equal Employment Opportunity Commission and did not believe that the interview would be fair.

Thereafter, Personnel Administrator Engelund wrote appellant telling him that since he had declined an interview, the search committee would proceed to recommend a candidate for the farm advisor position.   Once again the committee recommended Eugene Miyao who accepted the job offer.

On October 27, 1980, following its investigation of the case, the Equal Employment Opportunity Commission issued a finding that there was no reasonable cause to believe that the university denied appellant an interview and refused to hire him because of his national origin.   On November 15, 1980, appellant received a notice of case closure from the State of California Department of Fair Employment and Housing, advising him of his right to sue within a year of the notice.

On November 6, 1981, appellant filed the instant title VII action against the university, Siebert, Engelund and Schoner.   In his complaint, he alleges discrimination based on national origin in the rejection of his application for the Yolo County farm advisor position.   Additionally, he alleges systematic discrimination on the part of respondents against Filipino-Americans in general, both historically and at the present time.

Respondents answered the complaint denying any discrimination on their part.   Discovery proceeded until cross-motions for summary judgment were filed in 1985.   Appellant's motion was heard first and subsequently denied.   Respondents' motion was then heard and granted.

II

Appellant's sole contention on appeal is that the trial court erred in granting a summary judgment.   We disagree.

Summary judgment is authorized by Code of Civil Procedure section 437c, subdivision (c), which provides, in relevant part, that 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.”

The basis for our review has been stated by our Supreme Court as follows:  “We have summarized the well-established rules governing summary judgment procedure as follows:  “ ‘The matter to be determined by the trial court in considering such a motion is whether the defendant (or the plaintiff) has presented any facts which give rise to a triable issue.   The court may not pass upon the issue itself.   Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue.   The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial.   In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.   Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts.” ’ ”  (Empire West v. Southern California Gas Co. (1974) 12 Cal.3d 805, 808, 117 Cal.Rptr. 423, 528 P.2d 31.)

III

Claims of employment discrimination because of race or national origin may be pursued under title VII in two different ways.  “An individual may allege that he has been subjected to ‘disparate treatment’ because of his race, or that he has been the victim of a facially neutral practice having a ‘disparate impact’ on his racial group.”  (Furnco Construction Corp. v. Waters (1978) 438 U.S. 567, 582, 98 S.Ct. 2943, 2952, 57 L.Ed.2d 957.)

To overcome respondents' motion for summary judgment, under either theory, appellant has to offer facts sufficient to establish a prima facie case.   (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668;  Griggs v. Duke Power Co. (1971) 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158.)

To establish a prima facie case of employment discrimination through disparate treatment, appellant has to show:  “(1) that he belongs to a racial minority;  (ii) that he applied and was qualified for a job for which the employer was seeking applicants;  (iii) that, despite his qualifications, he was rejected;  and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.”   (McDonnell Douglas Corp. v. Green, supra, 411 U.S. at p. 802, 93 S.Ct. at p. 1824, emphasis added.)   This is not intended to be an inflexible rule.  “The facts necessarily will vary in [t]itle VII cases, and the specification above of the prima facie proof ․ is not necessarily applicable in every respect to differing factual situations.”  (Id., fn. 13.)   What is clear, however, is that “a [t]itle VII plaintiff carries the initial burden of showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were ‘based on a discriminatory criterion, illegal under the Act.’  [Citation.]”  (Furnco Construction Corp. v. Waters, supra, 438 U.S. at p. 576, 98 S.Ct. at p. 2949.)

 To establish a prima facie case of employment discrimination through disparate impact, on the other hand, appellant need not show that the employer had a discriminatory intent but need only demonstrate that a particular practice in actuality operates to exclude members of his race.  (Griggs v. Duke Power Co., supra, 401 U.S. at p. 431, 91 S.Ct. at p. 853.)

Here, it is apparent from an examination of all of the pertinent papers, that appellant has failed to make a sufficient showing of employment discrimination under either of the two theories designated above.   Appellant has failed to present a prima facie case of discrimination by disparate treatment in that he has not met the second prong of requirements under McDonnell Douglas—i.e., “that he applied” for the subject job.   Similarly, any claim by appellant of discrimination based on disparate impact, is equally faulty in that he has not shown any particular practice or policy on the part of the university which has a disparate impact on Filipino-Americans.

The need to complete the application process in order to state a claim of discrimination by disparate treatment, was clearly set forth in Tagupa v. Board of Directors (9th Cir.1980) 633 F.2d 1309.   In Tagupa, plaintiff, in response to a job advertisement, sent defendants his resume and a cover letter.   The resume was not prepared for the purpose of applying for the position and did not set forth those areas of plaintiff's background that fit the advertised qualifications.   Subsequently, defendants wrote plaintiff that while his resume was “impressive,” it did not adequately address those qualifications specifically noted in the job description.   Plaintiff sent a reply letter referring defendants once again to his resume and the references listed therein.   Thereafter, defendants notified plaintiff that he did not get the job.

Plaintiff brought an employment discrimination suit against defendants under 42 United States Code sections 1981 and 1983.   The trial court granted defendants' motion for summary judgment and the Ninth Circuit Court of Appeals affirmed.   Analogizing plaintiff's action to one brought under title VII, the Court of Appeals held that a necessary element in the case is that “the plaintiff have applied for the job.”  (Tagupa v. Board of Directors, supra, 633 F.2d at p. 1312.)   Concluding that plaintiff had not completed the application process “within the meaning of the guidelines laid down in McDonnell Douglas Corp. v. Green ․,” the Tagupa court affirmed the summary judgment.  (Id., at p. 1311.)

 As in Tagupa, appellant here failed to complete the application process and, thus, make a proper showing.   Subsequent to the initial rejection of his application for the position at issue, appellant wrote a letter of protest to the university.   Upon receipt of the letter, the university looked into why appellant's application had been turned down.   In doing so, it discovered that the criteria used by the search committee in screening the applications differed from the qualifications listed in the job announcement, whereupon it revised the criteria and reevaluated the applications.   At this point, the university contacted appellant by phone to inform him that he was a finalist for the position and to invite him for an interview.   The university told appellant that the position had not yet been filled and that it would not make a final selection of a candidate until all finalists had been interviewed.   Despite this, appellant declined the interview.   He thereby failed to complete the application process and to make the required showing as a matter of law.

Under the facts as presented by appellant, it simply is not possible to infer that the university's actions in regard to his application were “more likely than not” based on a discriminatory criterion illegal under the Act.   (Furnco Construction Corp. v. Waters, supra, 438 U.S. at p. 576, 98 S.Ct. at p. 2949.)   Accordingly, appellant has not met the required burden in presenting his case.

 Appellant asserts that he declined the interview because he had already filed a complaint against the university with the Equal Employment Opportunity Commission and was convinced, in view of this fact, that any interview would be unfair.   He claims that the proffered interview was merely a pretext and that the selection of a candidate had already taken place.   Such an assertion, however, does not relieve appellant of the burden of having to complete the application process where his claims are purely speculative and unsupported by the evidence.

Finally, as noted above, appellant has failed to present a prima facie case of discrimination by disparate impact as well.  “A ‘disparate impact’ plaintiff, unlike a plaintiff proceeding on a ‘disparate treatment’ theory, may prevail without proving intentional discrimination.  [Citations.]  However, the requirements a disparate impact plaintiff must meet ‘are in some respects more exacting than those of a disparate treatment case.   A disparate impact plaintiff ‘must not merely prove circumstances raising an inference of discriminatory impact;  he must prove the discriminatory impact at issue.’   [Citations.]  This is usually done by establishing ‘that an employment practice selects members of a protected class in a proportion smaller than their percentage in the pool of actual applicants.’  [Citations.]”  (Lowe v. City of Monrovia (9th Cir.1985) 775 F.2d 998, 1004.)

 Here, once again, appellant makes highly speculative allegations without any real substantiation.   He states that even though Filipino-Americans comprise the second largest group by national origin in the agricultural labor force, there are no Filipino-American farm advisors or specialists in the university's Cooperative Extension.   These claims, however, are based on inconclusive and inadmissible evidence.¹  Meanwhile, he offers no evidence of any particular practice or policy on the part of the university which has had a disparate impact on Filipino-Americans, nor any evidence of what percentage of Filipino-Americans constitute the applicable pool of applicants.   Without this, appellant has not stated a valid claim of discrimination due to disparate impact.

Summary judgment is affirmed.

FOOTNOTES

1.   To support his claim that Filipino-Americans make up the second largest group by national origin in the agricultural labor force, appellant cites U.S. Census statistics from 1960 and 1980 as to the percentage of Filipino-Americans in the general California population.   To support his allegation that there are no Filipino-American farm advisors or specialists in the Cooperative Extension, appellant points to conversations he has allegedly had with various employees of the Cooperative Extension and his own findings in examining certain university personnel directories.   As noted by respondents, none of this evidence is admissible under the hearsay rule and/or the requirement for authentication of documents.   (Evid.Code, §§ 1200 and 1400.)   As a general rule, inadmissible evidence can neither support nor defeat a summary judgment.  (Craig Corp. v. County of Los Angeles (1975) 51 Cal.App.3d 909, 915, 124 Cal.Rptr. 621.)

MERRILL, Associate Justice.

SCOTT, Acting P.J., and BARRY–DEAL, J., concur.