Gupta v. Trustees of California State University

Facts

The claim arose under the FEHA retaliation provision, which makes it unlawful “‘[f]or any employer … to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden [by FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under [FEHA].’” (Gupta, supra, 40 Cal.App.5th at p. 518, quoting Gov. Code, § 12940, subd. (h).) The decisive evidentiary fight was over whether the plaintiff could show retaliation in part by comparing her treatment to that of a colleague who had not complained.

Dr. Rashmi Gupta “is an American woman of Indian national origin and ancestry.” In 2006, San Francisco State University (SFSU) hired her as a “tenure track … assistant professor” in the school of social work. (Id. at pp. 512–513.) Under the university’s structure, “an assistant professor is hired to a six-year term and, during the sixth year, SFSU determines whether to promote the professor to associate professor and award lifetime tenure.” (Id. at p. 513.) Tenure turned on three areas: “teaching effectiveness, professional achievement and growth, and contributions to campus and community.” (Id. at p. 514.)

Gupta’s early years were uneven but improving. Her first three semesters produced student-evaluation (SETE) scores “lower than the department mean,” which her second-year review attributed in part “to the standards and expectations she sets for students,” praising her for “holding firmly to the principles and standards she establishes.” (Id. at p. 513.) By her third year she “received positive reviews from all three faculty members who conducted teaching performance evaluations,” her SETE scores “began to improve,” and SFSU “decided to retain her.” (Ibid.)

The protected activity began in November 2009, when Gupta “and several other women of color in the school of social work wrote a letter” to the provost requesting a meeting “to discuss ‘faculty concerns’” including “‘abus[e] of power and authority, excessive micromanagement, bullying, and the creation of a hostile work environment,’” and, “more generally, their concerns about discrimination against people of color.” (Id. at p. 513.) “Less than two months later,” Gupta received a fourth-year review “critical of her performance in all three areas,” which “criticized Gupta for several things, including purported defects in her syllabi, which turned out to be inaccurate,” “only briefly mentioned” her SETE scores — “all of which were significantly better than the department mean” — and “made no positive comments regarding her scholarship” despite her having “published enough articles to meet the requirements of tenure.” (Id. at pp. 513–514.)

The retaliatory animus crystallized around Dean Don Taylor. After Gupta sent e-mails complaining that the workplace was “hostile towards women of color,” Taylor confronted her at a March 2010 faculty meeting, saying “‘I know about [the e-mails]’” and “‘I’m going to get even with you.’” A witnessing professor testified Taylor was “‘red in the face’” and “‘pointing his finger,’” and that when Gupta characterized the e-mails as “‘part of bathroom conversation,’” Taylor replied that there are “‘consequences’” to “‘those sort of conversations.’” (Id. at p. 514.)

When Gupta came up for regular tenure in 2011–2012, her record was strong. Students praised her teaching; the departmental tenure committee called her scholarship “‘most impressive,’” noting she “had published 12 peer-reviewed articles, twice the number required,” plus book chapters, encyclopedia entries, “at least 30 conference papers,” and a 2012 Fulbright award. She “received universal support from her colleagues and departmental and campuswide tenure committees.” (Id. at pp. 514–515.) The interim director “‘enthusiastically support[ed]’” tenure. (Id. at p. 515.) That director, Dr. Eileen Levy, testified that Taylor told her he was “‘not going to approve [Gupta] for tenure’” because he “‘didn’t like [her] attitude’” and “‘really didn’t want people in the School of Social Work who were going to make the school look bad.’” (Ibid.)

Taylor recommended against tenure anyway, and the comparator emerged: “[t]he year after SFSU denied Gupta tenure, it granted tenure to Dr. J.H., a professor in the school of social work who had not previously filed a complaint against SFSU.” (Id. at p. 516.) The disparities were stark. “Gupta’s SETE scores were better than J.H.’s SETE scores and Gupta had more than double the minimum requirements for publication, while J.H. had not met the minimum publication requirements.” (Ibid.) SFSU ultimately denied Gupta tenure and “terminated her employment on June 2, 2014.” (Ibid.)

Procedural history

After receiving a right-to-sue letter on January 14, 2015, Gupta filed suit on February 10, 2015, “alleging SFSU discriminated and retaliated against her in denying her tenure and terminating her employment.” (Gupta, supra, 40 Cal.App.5th at p. 516.) “The matter went to trial and a jury found against Gupta on her discrimination cause of action, but found in her favor on her retaliation cause of action,” awarding “$378,461 in damages.” (Id. at pp. 516–517.)

Before trial, SFSU had “filed a motion in limine to exclude evidence of two comparator professors on the ground that Gupta’s qualifications were not ‘clearly superior’ to the qualifications of those professors.” (Id. at p. 517.) The trial court “granted SFSU’s motion as to one comparator” who “was in a different department and was therefore not similarly situated,” but “denied SFSU’s motion as to J.H.,” finding her “similarly situated to Gupta in all material respects.” (Ibid.) The court framed the point bluntly: “‘[I]n an employment case, it necessarily involves a comparison, doesn’t it? I mean, I don’t see how you can get around it.’” (Ibid.)

The trial court entered judgment for Gupta and later awarded her “$587,160.75 in attorney fees and costs.” (Id. at p. 517.) SFSU “timely appealed the judgment” and the fee order. On appeal, SFSU raised three errors: admitting the comparator evidence without a “clearly superior” showing, refusing a special jury instruction on comparator evidence, and improperly “‘interven[ing] in the questioning of witnesses.’” (Id. at p. 512.) The Court of Appeal, First District, Division Three, in a unanimous opinion by Justice Petrou, rejected all three contentions and affirmed. (Id. at pp. 512, 523.)

Issue

The central question was the admissibility threshold for comparator evidence at trial: whether SFSU was correct that “the trial court erred in allowing Gupta to present evidence of ‘comparator professor’ J.H. without requiring her to show that her qualifications were ‘clearly superior’ to J.H.’s qualifications.” (Gupta, supra, 40 Cal.App.5th at p. 518.) Two derivative questions followed: whether the court erred in refusing SFSU’s special instruction embedding the “clearly superior” standard, and whether the court abused its discretion in questioning witnesses and assisting with a timeline. (Id. at pp. 522–523.)

Holding

Reasoning

The court began with the settled framework for proving FEHA retaliation circumstantially. Plaintiffs “can prove their cases by presenting either direct evidence, such as statements or admissions, or circumstantial evidence, such as comparative or statistical evidence.” (Gupta, supra, 40 Cal.App.5th at p. 518, citing Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 816 and Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 591.) Comparative evidence is “‘evidence that [the plaintiff] was treated differently from others who were similarly situated’ but are outside the plaintiff’s protected class,” and evidence that an employer treated such employees “‘“more favorably”’ is probative of the employer’s discriminatory or retaliatory intent.” (Id. at p. 519, quoting Iwekaogwu, supra, 75 Cal.App.4th at p. 817 & Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 366.) To be probative, the data “must be directed at showing disparate treatment between employees who are similarly situated to the plaintiff in all relevant respects,” and “‘individuals are similarly situated when they have similar jobs and display similar conduct.’” (Ibid., quoting Vasquez v. County of Los Angeles (9th Cir. 2003) 349 F.3d 634, 641.)

The court then identified the dispositive concession: SFSU did not contest that J.H. and Gupta were similarly situated. “Here, the evidence amply supports the trial court’s finding that J.H. and Gupta were similarly situated in all relevant respects, and SFSU does not challenge that finding.” (Gupta, supra, 40 Cal.App.5th at p. 520.) SFSU’s “only argument” was that the court “should have required Gupta to show she was ‘clearly superior’ to J.H. before allowing her to present evidence regarding J.H.” (Ibid.) That argument, the court held, lacked any supporting authority: “it is well settled that for comparator evidence to be probative, and therefore admissible at trial, all that is required is for the comparator, who was treated more favorably, to be ‘similarly situated’ to the plaintiff ‘in all relevant respects.’” (Ibid., citing Evid. Code, § 351.)

The court dismantled SFSU’s reliance on Raad as a misreading. SFSU “inaccurately assert[ed]” that the Ninth Circuit in Raad v. Fairbanks North Star Borough School District (9th Cir. 2003) 323 F.3d 1185, 1194, “characterized the standard as ‘clearly superior.’” (Gupta, supra, 40 Cal.App.5th at p. 520.) Not so: “Raad … did not set a ‘clearly superior’ standard or requirement for the admissibility of comparator evidence at trial.” Rather, Raad held only that “‘evidence of superior qualifications, standing alone, is enough to prove pretext’” — a sword for plaintiffs, not a gate against them. (Ibid.) “There is nothing in Raad that supports SFSU’s proposed rule that comparator evidence is admissible at trial only where the plaintiff can show he or she is clearly superior to the comparator.” (Id. at pp. 520–521.)

The heart of the opinion is its clarification of Reeves v. MV Transportation. SFSU’s “reliance on Reeves … is similarly misplaced.” (Gupta, supra, 40 Cal.App.5th at p. 521.) The court explained that Reeves involved a 56-year-old attorney who lost a job to a 40-year-old, and that the Reeves court “concluded that pretext was not shown where the plaintiff’s qualifications were not ‘vastly’ or ‘“clearly superior”’ to those of the selected applicant.” (Ibid., quoting Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 675, 677.) That language operated in a narrow setting: “‘[i]n cases involving a comparison of the plaintiff’s qualifications and those of the successful candidate, … a reasonable juror … would not usually infer discrimination on the basis of a comparison of qualifications alone’” where there are only “‘small differences.’” (Ibid.) The Gupta court drove home the limiting principle: “In no way did the Court of Appeal in Reeves overturn the long-standing rule that comparator evidence is relevant and admissible where the plaintiff and the comparator are similarly situated in all relevant respects and the comparator is treated more favorably.” (Ibid.) Instead, Reeves “held that in a job hiring case, and in the context of a summary judgment motion, a plaintiff’s weak comparator evidence ‘alone’ is insufficient to show pretext.” (Ibid.)

The court neutralized the one sentence in Reeves capable of misreading. Candidly, it acknowledged “there is one statement in the Reeves opinion that may be misinterpreted to stand for the proposition that a plaintiff’s qualifications must be clearly superior for comparator evidence to be relevant” — namely, that “‘the precedents do consistently require that the disparity [in qualifications] be substantial to support an inference of discrimination.’” (Gupta, supra, 40 Cal.App.5th at p. 521, quoting Reeves, supra, 186 Cal.App.4th at p. 675.) The court confined that statement to its context: Reeves “addressed situations in which comparator evidence is the only evidence of pretext a plaintiff has shown in an effort to defeat summary judgment.” (Ibid.) It marshaled the very authority Reeves cited to prove the point: “‘slight differences in qualifications’ are insufficient to overcome summary judgment ‘“[i]n the absence of any other evidence that would allow a jury to infer that discrimination took place.”’” (Ibid., quoting Chappell-Johnson v. Bair (D.D.C. 2008) 574 F.Supp.2d 87, 100.) The synthesis: “where there is evidence other than comparator evidence to support an inference of pretext, the plaintiff is not required to show his or her qualifications are clearly superior in order to defeat summary judgment.” (Ibid.) A plaintiff “need not show she was ‘clearly superior’ if, ‘considering the evidence as a whole, there are … other bases upon which a trier of fact could infer pretext.’” (Ibid., quoting Hargrave v. University of Washington (2015) 113 F.Supp.3d 1085, 1099–1100.)

The court drew the three distinctions that rendered Raad and Reeves inapposite. Both cases “involved a job hiring, evaluated the evidence in the summary judgment context, and discussed situations in which comparator evidence was the only evidence of pretext.” (Gupta, supra, 40 Cal.App.5th at p. 521.) Gupta’s case differed on each axis: it “was about the denial of a job promotion, addressed the admissibility of evidence at trial after Gupta had already defeated summary judgment, and involved a situation in which Gupta presented ample evidence other than comparator evidence from which the jury could infer retaliation” — Taylor’s threats and Levy’s testimony chief among them. (Ibid.) The court “conclude[d] the trial court did not err in allowing Gupta to present evidence relating to comparator J.H. without showing her qualifications were clearly superior to J.H.’s.” (Id. at p. 521.)

The derivative rulings followed directly. Because Gupta “was not required to show her qualifications were clearly superior,” the court “also conclude[d] the trial court did not err in declining to give the proposed special instruction,” which had demanded proof that her qualifications were “‘not just better but were clearly superior.’” (Gupta, supra, 40 Cal.App.5th at pp. 521–522.) For the same reason, the court rejected SFSU’s contention that the trial court should have held a section 402 evidentiary hearing on clear superiority. (Id. at p. 521, fn. 6.)

Finally, the court upheld the trial judge’s active management of the testimony. Under Evidence Code section 775, and quoting People v. Carlucci (1979) 23 Cal.3d 249, 255, “‘it is not merely the right but the duty of a trial judge to see that the evidence is fully developed before the trier of fact.’” (Gupta, supra, 40 Cal.App.5th at p. 523.) The record showed “the court intervened to assist counsel in obtaining clearer responses when Gupta was having difficulty answering,” and its suggestion that counsel “‘write … down’” disputed dates produced “no evidence that any of the dates were in dispute or that it was prejudicial.” (Id. at pp. 523–524.) The court had told the jury “‘not to take any inference’” from its questions; SFSU “failed to show that the court’s questions or comments were improper or prejudicial.” (Id. at p. 524.)

Significance

Gupta takes its place in the comparator-evidence line running from Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803 and Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317 through Reeves, and its enduring contribution is a clean separation of two questions that litigants and courts had begun to conflate: the admissibility of comparator evidence at trial, and the sufficiency of comparator evidence to prove pretext on summary judgment. For admissibility, the standard is modest and singular — “similarly situated in all relevant respects” plus more favorable treatment. (Gupta, supra, 40 Cal.App.5th at p. 520.) A “clearly superior” showing is not a precondition to letting the jury hear the comparison.

The opinion’s real doctrinal service is its surgical treatment of Reeves. By reading Reeves as a summary-judgment, hiring case in which comparator evidence stood “alone,” Gupta forecloses the recurring defense move of citing Reeves’s “substantial disparity” language as a generalized evidentiary gate. (Id. at p. 521.) After Gupta, the “clearly superior” / “vastly superior” framing matters, if at all, only as a sufficiency yardstick when qualifications are the sole proof of pretext — and even then, it dissolves once a plaintiff adduces independent evidence of retaliatory motive.

The holding’s limits are worth marking. Gupta does not hold that any colleague treated more favorably is a permissible comparator; the “similarly situated in all relevant respects” requirement remains the gatekeeper, and the trial court here in fact excluded a second comparator from a different department. (Id. at p. 517.) Because SFSU never contested that J.H. and Gupta were similarly situated, the opinion offers little new guidance on how that similarity is measured — it assumes the predicate and resolves only the “clearly superior” overlay. (Id. at p. 520.)

Key quotes

“[I]t is well settled that for comparator evidence to be probative, and therefore admissible at trial, all that is required is for the comparator, who was treated more favorably, to be ‘similarly situated’ to the plaintiff ‘in all relevant respects.’” (Gupta, supra, 40 Cal.App.5th at p. 520.)

“In no way did the Court of Appeal in Reeves overturn the long-standing rule that comparator evidence is relevant and admissible where the plaintiff and the comparator are similarly situated in all relevant respects and the comparator is treated more favorably. … Rather, it held that in a job hiring case, and in the context of a summary judgment motion, a plaintiff’s weak comparator evidence ‘alone’ is insufficient to show pretext.” (Id. at p. 521.)

“[W]here there is evidence other than comparator evidence to support an inference of pretext, the plaintiff is not required to show his or her qualifications are clearly superior in order to defeat summary judgment.” (Id. at p. 521.)

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Practice pointer

Open questions

The opinion leaves the “similarly situated” standard largely untested on its facts. The court repeatedly noted that “SFSU does not challenge” the finding that J.H. and Gupta were similarly situated, so it had no occasion to refine how courts should measure that similarity in a tenure or promotion setting. (Gupta, supra, 40 Cal.App.5th at p. 520.) The trial court’s exclusion of a different-department comparator as not similarly situated is noted but not analyzed. (Id. at p. 517.)

The opinion also expressly declined to resolve a procedural request: SFSU asked the court to “‘dismiss [the reinstatement] part of SFSU’s appeal and state that the Reinstatement Order issue is moot,’” but the court “decline[d] to partially dismiss the appeal or make a declaration regarding mootness,” finding SFSU “cites no authority for its position.” (Id. at pp. 516–517 & fn. 5.) Whether reinstatement remained a live issue below was left for the trial court. Finally, because the verdict rested on retaliation and the jury found against Gupta on her discrimination claim, the opinion does not address how the comparator-admissibility rule would apply to a disparate-treatment discrimination theory tried alone. (Id. at pp. 516–517.)