Ibarbia v. Regents of the University of California

Facts

The action was filed under the California Fair Employment and Housing Act (FEHA). (Ibarbia, supra, 191 Cal.App.3d at p. 1321.) The court summarized the statute’s core command: “The law establishes that freedom from job discrimination on specified grounds, including [national origin], is a civil right. (§ 12921.) It declares that such discrimination is against public policy (§ 12920) and an unlawful employment practice (§ 12940).” (Id. at pp. 1324–1325.) Section 12940 makes it “an unlawful employment practice, unless based upon a bona fide occupational qualification,” for an employer “because of the … national origin … of any person, to refuse to hire or employ the person.” (Id. at p. 1325, fn. 4.) Appellant Expedito Ibarbia, “a Filipino-American, claims employment discrimination based on his national origin.” (Id. at p. 1321.)

The dispute arose from Ibarbia’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.” (Ibarbia, supra, 191 Cal.App.3d at p. 1321.) The Cooperative Extension disseminates “practical agricultural information and services to farmers and residents throughout the state” through county “extension” offices and farm advisors who serve as “teachers, problem solvers and consultants.” (Id. at pp. 1321–1322.) In 1979 the Yolo County office had an opening “for a farm advisor on vegetable crops.” (Id. at p. 1322.)

A “search committee” of four was formed to screen applicants, and a closing date of October 15, 1979, was set. (Ibarbia, supra, 191 Cal.App.3d at p. 1322.) The office received 21 applications; “[a]ppellant’s application and cover letter were received on October 22, 1979” — after the deadline. (Ibid.) The committee evaluated applicants against criteria including “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,” and “affirmative action considerations constituted 10 percent of the weight” in the process. (Ibid.)

Although late, Ibarbia’s application “was considered by the committee along with the others.” (Ibarbia, supra, 191 Cal.App.3d at p. 1322.) The committee selected four finalists for interviews; “[a]ppellant was not among those selected,” and a letter dated November 26, 1979, advised him that, while the position had “not yet been filled,” he had not been chosen as a finalist. (Id. at pp. 1322–1323.) After interviews, the committee and the County Director agreed on Eugene Miyao — “an Asian-American of Japanese descent” and “a former tomato farmer from Yolo County” already familiar with the clientele and crop production — as the most qualified candidate. (Id. at p. 1323.)

Ibarbia protested by letter of November 29, 1979, calling his rejection “another instance of the University’s continuing discrimination against Filipino-Americans” and challenging the personnel administrator “to show me any finalist who has a better record than mine … in extension related areas.” (Ibarbia, supra, 191 Cal.App.3d at p. 1323.) The University then “initiated a review of the selection process.” (Ibid.) The review surfaced the committee’s recorded reasons for rejecting Ibarbia: “apparent unwillingness to live in the geographical area,” “lack of field and practical experience,” “no farm background or commercial vegetable crop experience, little if any knowledge of extension methods, and no indication of any economics training,” with his agricultural-inspector experience discredited as poor preparation for the “educational and consulting work of a farm advisor.” (Id. at pp. 1323–1324.) He had received “the full 10 percent credit for affirmative action consideration.” (Id. at p. 1323.)

Critically, the review “also disclosed a discrepancy” between the committee’s scoring criteria and the qualifications listed in the vacancy announcement. (Ibarbia, supra, 191 Cal.App.3d at pp. 1323–1324.) The assistant vice president directed the committee to conform the criteria to the announcement and re-evaluate every candidate, including Ibarbia. (Id. at p. 1324.) On re-evaluation, “appellant was determined to be the fourth-ranked finalist,” and on January 29, 1980, “appellant was offered an interview by phone,” which “he declined.” (Ibid.) He said he refused “in view of the fact that he had filed a complaint against the Cooperative Extension with the Equal Employment Opportunity Commission (EEOC) and did not believe that the interview would be fair.” (Ibid.) The committee then again recommended Miyao, “who accepted the job offer.” (Ibid.)

On October 27, 1980, the EEOC found “no reasonable cause to believe” the University had denied Ibarbia an interview or refused to hire him because of national origin, and on November 15, 1980, the Department of Fair Employment and Housing, “having ‘reviewed and accepted the determination made by the [EEOC],’” closed the case and advised him of his right to sue. (Ibarbia, supra, 191 Cal.App.3d at p. 1324.)

Procedural history

On November 6, 1981, Ibarbia “filed the instant action against the university, Siebert, Engelund and Schoner,” alleging discrimination based on national origin in the rejection of his application and, more broadly, “systematic discrimination on the part of respondents against Filipino-Americans in general, both historically and at the present time.” (Ibarbia, supra, 191 Cal.App.3d at p. 1324.) Respondents answered, denying discrimination. (Ibid.)

“Discovery proceeded until cross-motions for summary judgment were filed in 1985.” (Ibarbia, supra, 191 Cal.App.3d at p. 1324.) Ibarbia’s motion “was heard first and subsequently denied”; respondents’ motion “was then heard and granted.” (Ibid.) The Superior Court of Alameda County, Henry Ramsey, Jr., Judge, entered summary judgment for the University. (Id. at p. 1321.) Ibarbia, “in propria persona,” appealed. (Ibid.)

The Court of Appeal, First District, Division Three, in a unanimous opinion by Justice Merrill, affirmed. (Ibarbia, supra, 191 Cal.App.3d at pp. 1321, 1330.) The Supreme Court denied review on July 29, 1987. As a threshold matter, the court observed that although Ibarbia “couches his arguments in terms of title VII,” the case “was brought under the FEHA,” because the complaint attached a Department of Fair Employment and Housing right-to-sue letter and “state courts lack jurisdiction over title VII matters, said matters being the exclusive province of the federal courts.” (Id. at p. 1321, fn. 1.)

Issue

The court framed the appeal narrowly: “The sole issue on appeal is whether the trial court erred in granting respondents’ motion for summary judgment.” (Ibarbia, supra, 191 Cal.App.3d at p. 1324.) Embedded in that question were two substantive sub-issues, one for each theory of discrimination Ibarbia advanced: whether he had offered facts sufficient to establish a prima facie case of national-origin discrimination by disparate treatment, and whether he had done so by disparate impact. The standard governing both was the same: “To overcome defendant’s motion for summary judgment, under either theory, plaintiff has to offer facts sufficient to establish a prima facie case.” (Id. at p. 1327.)

Holding

Reasoning

The court began with the summary-judgment standard and the FEHA framework. Summary judgment is authorized by Code of Civil Procedure section 437c, subdivision (c), which provides that the motion “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.” (Ibarbia, supra, 191 Cal.App.3d at p. 1326.) Quoting the Supreme Court, the panel recited that “‘[t]he matter to be determined … is whether the defendant (or the plaintiff) has presented any facts which give rise to a triable issue,’” that “‘[t]he court may not pass upon the issue itself,’” and that the moving party’s affidavits “‘are strictly construed and those of his opponent liberally construed.’” (Ibid.) After “review[ing] all the pertinent papers,” the court found “no error.” (Ibid.)

Confronting a “dearth of decisional law” under the FEHA, the court turned to federal Title VII analysis. The panel observed “a dearth of decisional law on the subject of how one goes about establishing a case of employment discrimination under the FEHA,” and so began “with a look at federal law and how the same subject is broached under the FEHA’s federal counterpart, title VII.” (Ibarbia, supra, 191 Cal.App.3d at pp. 1326–1327.) It explained that claims “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.’” (Id. at p. 1327, quoting Furnco Construction Corp. v. Waters (1978) 438 U.S. 567, 582.) Under both, “plaintiff has to offer facts sufficient to establish a prima facie case.” (Ibid.)

The court set out the two prima facie tests side by side. For disparate treatment, the court adopted the four-part McDonnell Douglas showing: “‘(i) 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.’” (Ibarbia, supra, 191 Cal.App.3d at p. 1327, quoting McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802.) The burden is “‘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].”’” (Id. at pp. 1327–1328.) For disparate impact, by contrast, “plaintiff 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.” (Id. at p. 1328, citing Griggs v. Duke Power Co. (1971) 401 U.S. 424, 431.) The court then noted that the California Fair Employment and Housing Commission’s approach “resembles the federal approach,” having “adopted the disparate treatment/disparate impact theories,” and requires, for disparate treatment, a showing of “a causal connection … between his protected status and the adverse employment decision.” (Id. at pp. 1328–1329.)

Applying the disparate-treatment test, the court held Ibarbia never completed the application process. “[I]t is apparent that appellant has failed to make a sufficient showing of disparate treatment under either the federal approach or the one adopted by the Commission. He failed to complete the application process.” (Ibarbia, supra, 191 Cal.App.3d at p. 1329.) He therefore did “not meet the second prong of requirements under McDonnell Douglas — e.g., a showing that he ‘applied’ for the job,” and could not “establish a causal connection between his protected status and the adverse employment decision.” (Ibid.) The court anchored this in Tagupa v. Board of Directors (9th Cir. 1980) 633 F.2d 1309, where a plaintiff who sent only a resume and cover letter not tailored to the posted qualifications was held not to have “applied for the job” within the meaning of McDonnell Douglas. (Ibid.) Here, after the University revised its criteria, contacted Ibarbia to tell him he was a finalist, invited him to interview, and represented that “the position had not yet been filled” and would not be filled “until all finalists had been interviewed,” Ibarbia “declined the interview” and “thereby failed to complete the application process … as a matter of law.” (Id. at pp. 1329–1330.)

The court rejected the pretext excuse as purely speculative. Ibarbia argued he declined because the EEOC complaint was pending and “any interview would be unfair,” asserting “that the proffered interview was merely a pretext and that the selection of a candidate had already taken place.” (Ibarbia, supra, 191 Cal.App.3d at p. 1330.) The court was unmoved: “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.” (Ibid.)

Turning to disparate impact, the court announced the rule that defines the theory’s burden — the proposition for which the case is cited. Quoting Lowe v. City of Monrovia (9th Cir. 1985) 775 F.2d 998, 1004, the panel explained: “‘A “disparate impact” plaintiff, unlike a plaintiff proceeding on a “disparate treatment” theory, may prevail without proving intentional discrimination. … 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.’”’” (Ibarbia, supra, 191 Cal.App.3d at pp. 1329–1330.) Such proof “‘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.”’” (Id. at p. 1330.)

Measured against that standard, Ibarbia’s impact showing failed on three fronts. First, the court found his core allegation evidentially empty: he claimed 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,” but “[t]hese claims … are based on inconclusive and inadmissible evidence.” (Ibarbia, supra, 191 Cal.App.3d at p. 1330.) The supporting proof was “U.S. Census statistics from 1960 and 1980” about the general California population and “conversations he has allegedly had with various employees” plus his “own findings in examining certain university personnel directories” — none admissible “under the hearsay rule and/or the requirement for authentication of documents.” (Id. at p. 1330, fn. 7, citing Evid. Code, §§ 1200, 1400.) Second, applying the settled rule that “inadmissible evidence can neither support nor defeat a summary judgment,” the court disregarded that proof entirely. (Ibid.) Third, even setting admissibility aside, Ibarbia “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.” (Id. at p. 1330.) “Without this, appellant has not stated a valid claim of discrimination due to disparate impact.” (Ibid.)

The court closed: “In sum, we conclude that, as a matter of law, appellant has failed to present a prima facie case of employment discrimination. Summary judgment is affirmed.” (Ibarbia, supra, 191 Cal.App.3d at p. 1330.)

Significance

Ibarbia is an early and frequently cited California articulation of the structural difference between the two Title VII / FEHA theories of discrimination — a difference that CACI No. 2502 now codifies for juries. Disparate impact relieves the plaintiff of proving intent: he “need not show that the employer had a discriminatory intent” and instead must show that “a particular practice in actuality operates to exclude members of his race.” (Ibarbia, supra, 191 Cal.App.3d at p. 1328.) But the relief is a trade, not a discount. As the court stressed, the impact plaintiff’s burden is “‘in some respects more exacting,’” because he must affirmatively “prove the discriminatory impact at issue,” not merely raise an inference of it. (Id. at pp. 1329–1330.) This is the precise lesson CACI No. 2502 embodies: intent drops out, but impact must be proven, ordinarily by statistical comparison of selection rates to the pool of actual applicants.

The decision’s second contribution is its insistence on a properly framed statistical denominator. Ibarbia’s mistake was to compare a protected group’s share of the general population to its absence from a single job classification. The court demanded the correct measure — “what percentage of Filipino-Americans constitute the applicable pool of applicants” — and the identification of a specific, facially neutral “practice or policy” that produced the exclusion. (Ibarbia, supra, 191 Cal.App.3d at p. 1330.) Bare under-representation, untethered to both a relevant labor pool and a challenged practice, is not a disparate-impact case.

Third, Ibarbia reinforces that summary judgment in discrimination cases turns on admissible evidence. The court’s reliance on the rule that “inadmissible evidence can neither support nor defeat a summary judgment” (Ibarbia, supra, 191 Cal.App.3d at p. 1330) meant that hearsay census-and-conversation proof, however suggestive, carried no weight at the threshold. The holding’s limits are equally clear: the court decided only that this plaintiff’s prima facie showing failed as a matter of law on this record; it did not purport to set the precise quantum of statistical disparity that establishes impact, nor did it reach intent, because the case never advanced past the prima facie stage.

Key quotes

“To establish a prima facie case of employment discrimination through disparate impact, on the other hand, plaintiff 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.” (Ibarbia, supra, 191 Cal.App.3d at p. 1328.)

“A disparate impact plaintiff ‘must not merely prove circumstances raising an inference of discriminatory impact; he must prove the discriminatory impact at issue.’ … 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.’” (Id. at pp. 1329–1330.)

“[H]e 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.” (Id. at p. 1330.)

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Practice pointer

Open questions

Because the case was resolved at the prima facie threshold, the opinion leaves several questions undecided. The court never reached intent on the disparate-treatment theory, resolving that claim solely on the failure to “complete the application process” and the absence of a showing that Ibarbia “applied” for the job. (Ibarbia, supra, 191 Cal.App.3d at p. 1329.) It therefore expressed no view on whether the University’s stated reasons were pretextual — only that Ibarbia’s contrary assertions were “purely speculative and unsupported by the evidence.” (Id. at p. 1330.)

On disparate impact, the court did not fix the quantum of statistical disparity needed to establish a prima facie case, holding only that this plaintiff offered none of the requisite proof — neither a properly defined applicant pool nor an identified practice. (Ibarbia, supra, 191 Cal.App.3d at p. 1330.) The court also flagged but did not resolve a divergence between federal and FEHA doctrine, noting that the Commission’s approach differs from the federal one in a respect “that does not concern us in our case.” (Id. at p. 1328.) The precise contours of that state-law difference were left for another day. Finally, having found Ibarbia’s evidence inadmissible, the court did not decide whether admissible proof of the same under-representation could, standing alone, have raised a triable issue.