DeJung v. Superior Court

Facts

The FEHA makes it “an unlawful employment practice, unless based upon a bona fide occupational qualification … [¶] (a) For an employer, because of the … age … of any person, to refuse to hire or employ the person … , or to bar or to discharge the person from employment … .” (Gov. Code, § 12940, subd. (a); see DeJung, supra, 169 Cal.App.4th at p. 545, fn. 7.) The statute defines “employer” to include “the state or any political or civil subdivision of the state, and cities.” (§ 12926, subd. (d); see DeJung, at pp. 545–546.) A superior court is such a public entity.

Theodore DeJung was born on August 23, 1939, and admitted to the California Bar in 1972. (DeJung, supra, 169 Cal.App.4th at p. 539.) After four years in private practice he became a Sonoma County traffic referee in 1976, and in 1982 took a full-time position as a Municipal Court commissioner, which he held for roughly 14 years. (Ibid.) From 1996 through the spring of 2004, DeJung and Judge Gail Guynup split a single full-time commissioner position, each working alternating two-month stints; during the same period DeJung also filled in for absent judges and took calendar overflow. (Ibid.)

In December 2003, Guynup told DeJung she would not work past April 1, 2004. (DeJung, supra, 169 Cal.App.4th at p. 540.) DeJung approached Allan Hardcastle, the presiding judge of the now-consolidated Superior Court, hoping to find a replacement and continue the split arrangement. (Ibid.) In early January 2004, Hardcastle told DeJung that the Superior Court’s executive committee — which Hardcastle chaired — had decided not to continue splitting the position; DeJung replied that he would then like to return to the post full time. (Ibid.) About a week later, at a meeting concerning that request, “Hardcastle told DeJung that ‘they want somebody younger, maybe in their 40’s.’” (Ibid.) Distressed, DeJung repeated the remark to several attorneys in the courthouse coffee shop, one of whom responded, “They can’t do that.” (Ibid.) A day or two later, DeJung returned and asked Hardcastle to confirm both that he had relayed DeJung’s request to the committee and that the committee wanted someone younger; “Hardcastle confirmed both statements with a nod.” (Id. at pp. 540–541.) When DeJung asked whether anyone had complained about his work, Hardcastle said there were only “two written complaints from litigants unhappy with the result of their cases.” (Id. at p. 541.)

A second witness corroborated the animus. Steve Rigg, a 24-year sheriff’s-department veteran who had been DeJung’s bailiff from 1995 to 2003, asked Hardcastle, “What’s going on with Ted?” (DeJung, supra, 169 Cal.App.4th at p. 541.) Hardcastle answered, “Ted’s a great guy, but we’re looking for someone younger.” (Ibid.) Hardcastle denied making either statement, but on summary-judgment review the court assumed the comments were made. (Id. at p. 550 & fn. 11.)

The Executive Committee then established a screening panel and an interview panel — the latter comprising Judges Raima Ballinger and Robert Boyd and Hardcastle. (DeJung, supra, 169 Cal.App.4th at p. 541.) DeJung applied on March 13, 2004; the screening panel (which Hardcastle did not sit on) reviewed 53 applications and selected 12 candidates, including DeJung, for interviews. (Ibid.) None of the interview panel ranked DeJung among its top choices; at a judicial business meeting on May 7, 2004, Hardcastle said he had rated DeJung seventh and called his interview “terrible.” (Id. at pp. 541–542.) The court ultimately appointed Larry Ornell, age 43 — the next-to-youngest interviewee and among the six youngest of the entire pool, and a candidate the interview panel had ranked only fourth. (Id. at p. 542.) The interview panel’s top three choices were 62, 56, and 50 years old. (Id. at p. 541.)

Procedural history

DeJung filed his complaint alleging age discrimination in hiring on April 19, 2005. (DeJung, supra, 169 Cal.App.4th at p. 542.) On December 6, 2006, the trial court issued a 17-page ruling granting the Superior Court’s motion for summary judgment, concluding (1) that the Superior Court “enjoyed discretionary immunity against suits for employment discrimination under FEHA when selecting candidates for commissioner positions,” and (2) in the alternative, that DeJung “had not raised a triable issue of fact with regard to his discrimination claim.” (Ibid.) Judgment for the Superior Court was entered January 23, 2007. (Ibid.)

DeJung appealed. The Court of Appeal, First District, Division Four, reversed the judgment and remanded for further proceedings, holding both that statutory immunity does not protect against direct public-entity liability under the FEHA and that triable issues of fact existed on the discrimination claim. (DeJung, supra, 169 Cal.App.4th at pp. 538, 554–555.) The opinion was unanimous; there was no dissent.

Issue

Two questions framed the appeal. First, an immunity question the Supreme Court had expressly left open: does a public entity — here a superior court — enjoy discretionary-act immunity under Government Code sections 820.2 and 815.2, subdivision (b), against a direct FEHA claim challenging its selection of a subordinate judicial officer? Second, a summary-judgment question: did DeJung raise a triable issue of fact on age discrimination, where the only decision-maker shown to have voiced age bias participated in a multilevel hiring process alongside others not shown to share that animus?

Holding

Reasoning

The immunity framework and Caldwell’s reserved question. The Tort Claims Act applies to all public entities and their employees, “including judges and other employees of the superior courts.” (DeJung, supra, 169 Cal.App.4th at p. 543.) Section 815.2, subdivision (b), provides that, “[e]xcept as otherwise provided by statute,” a public entity is not liable where its employee is immune, and section 820.2 grants employees discretionary-act immunity. (Id. at pp. 543–544.) The Superior Court argued that, read together, these provisions immunized it from FEHA claims arising out of its judiciary’s discretionary selection of commissioners. (Id. at p. 544.) Both parties took as their starting point Caldwell v. Montoya (1995) 10 Cal.4th 972, where the Supreme Court held that section 820.2 immunizes individual officials from FEHA suits challenging a “basic policy decision,” such as terminating a school superintendent. (DeJung, at p. 544.) But Caldwell “expressly declined … to decide the question we face,” namely “whether a government employer as an entity is amenable to suit under FEHA despite the discretionary act immunity.” (Id. at p. 544, quoting Caldwell, at p. 989, fn. 9.)

The FEHA creates direct entity liability that immunity does not reach. The court found the answer foreshadowed in Caldwell’s own dictum. In footnote 9, the Supreme Court had observed that section 815.2 “simply applies principles of vicarious entity liability,” whereas “FEHA creates direct statutory rights, obligations, and remedies between a covered ‘employer,’ private or public,” and so “provides a basis of direct entity liability independent of the derivative liabilities addressed in section 815.2.” (DeJung, supra, 169 Cal.App.4th at pp. 544–545, quoting Caldwell, at p. 989, fn. 9.) The Supreme Court reiterated the point in Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1014–1015. (DeJung, at p. 545.) Building on that distinction, the court held that the FEHA’s express inclusion of public entities within “employer” is a “clear indication of legislative intent that immunity … be withdrawn in the particular case.” (Id. at p. 546, quoting Caldwell, at p. 989.)

Two construction canons reinforced the result. The court added that, even assuming a conflict between the FEHA’s “employer” definition and the general immunity of section 815.2(b), the specific statute governs: “‘[A] special statute dealing with a particular subject constitutes an exception so as to control and take precedence over a conflicting general statute on the same subject.’” (DeJung, supra, 169 Cal.App.4th at p. 546, quoting McLaughlin v. State Bd. of Education (1999) 75 Cal.App.4th 196, 224–225.) Section 815.2(b) is “clearly the more general,” and itself “contains an express exception for situations governed by other statutes.” (Id. at pp. 546–547.) The court also invoked the later-enacted-statute rule: the Tort Claims Act dates to 1963 and the FEHA’s public-entity “employer” provision to 1980, so the Legislature is presumed to have understood the scope of discretionary immunity and “intended to limit that immunity” when it brought governmental entities within the FEHA. (Id. at p. 547.)

Rejecting the “judicial prerogative” defense. The trial court and the Superior Court had argued that discretionary immunity was necessary to protect “the constitutional and statutory right of the judiciary to appoint subordinate judicial officers.” (DeJung, supra, 169 Cal.App.4th at p. 547.) The court acknowledged that trial courts have the power to select commissioners (Cal. Const., art. VI, § 22; Gov. Code, § 71622, subd. (a)), but found “no authority for the proposition that in making this determination, courts may apply invidiously discriminatory criteria upon which other employers … are forbidden to rely.” (Id. at pp. 547–548.) Indeed, the suggestion was “inimical to the core governmental responsibility entrusted to the courts: to provide for a public justice system that is unfailingly unbiased and impartial,” such that “it is unimaginable that state law could be interpreted correctly as legally empowering the Superior Court itself to discriminate.” (Id. at p. 548.) The Superior Court has “no discretionary act immunity against suits under FEHA.” (Ibid.)

Direct evidence makes McDonnell Douglas unnecessary. Turning to the merits, the court explained that FEHA plaintiffs may prove their cases by direct or circumstantial evidence, and that the McDonnell Douglas burden-shifting test “is inapplicable where the plaintiff presents direct evidence of discrimination.” (DeJung, supra, 169 Cal.App.4th at pp. 549–550, quoting Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1144.) “Direct evidence is evidence which, if believed, proves the fact of discriminatory animus without inference or presumption,” and comments may qualify “if there is evidence of a causal relationship between the comments and the adverse job action.” (Id. at p. 550.) Here, “if a jury believed that Hardcastle made the comments attributed to him by DeJung and Rigg, Hardcastle’s statements would plainly qualify as direct evidence of discriminatory animus.” (Ibid.) This is no “stray remark”: Hardcastle made the “somebody younger” statement at least three times, twice to DeJung and once to Rigg, each time tied to the very position at issue. (Id. at pp. 550–551.)

The “cat’s paw”: a significant participant’s animus taints the whole. The court squarely engaged the Superior Court’s strongest argument — that even if Hardcastle was biased, the hiring decision “involved a multilevel process conducted by multiple individuals,” so his was at most a “stray … remark[]” by one participant. (DeJung, supra, 169 Cal.App.4th at pp. 550–551.) The court rejected the premise that a plaintiff must show every decision-maker shared the animus: “‘[A]n individual employment decision should not be treated as a … watertight compartment, with discriminatory statements in the course of one decision somehow sealed off from … every other decision.’” (Id. at p. 551, quoting Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 74.) “Thus, showing that a significant participant in an employment decision exhibited discriminatory animus is enough to raise an inference that the employment decision itself was discriminatory, even absent evidence that others in the process harbored such animus.” (Ibid.) The court traced this “cat’s paw” doctrine to Shager v. Upjohn Co. (7th Cir. 1990) 913 F.2d 398, 405 — where a committee that “acted as the conduit of [the biased supervisor’s] prejudice—his cat’s paw” could not shield the employer — and noted that “[a]ll but one of the federal circuits” and the California courts have adopted it. (Id. at pp. 551–552.) Applying it, the court found Hardcastle was “a direct and important participant,” “personally involved at three pertinent levels: the Executive Committee, the interview panel, and in the final decision made by the full court,” and that the multilevel process let his early influence carry forward. (Id. at p. 552.) “[I]t would be entirely reasonable for a trier of fact to infer that Hardcastle’s discriminatory animus influenced the process.” (Ibid.)

Pretext supplied an independent ground. Even setting direct evidence aside, the court held DeJung raised a triable issue under the third McDonnell Douglas step. (DeJung, supra, 169 Cal.App.4th at pp. 552–553.) It accepted that the Superior Court had articulated legitimate reasons — interview performance, reputation, and the strength of other candidates — but disagreed that DeJung failed to show pretext. (Id. at p. 553.) “[T]he same evidence can be used both to set forth a prima facie case … and to demonstrate the existence of a triable issue of fact on the issue of pretext,” so the trier of fact could weigh Hardcastle’s “somebody younger” statements. (Id. at pp. 553–554.) It could also weigh that, in all DeJung’s years of service, only two complaints — both from “disgruntled litigants” — had been lodged, supporting an inference that “by any objective standard, DeJung’s background and experience should have placed him among the top candidates.” (Id. at p. 554.) And the court chose the 43-year-old Ornell — ranked fourth — over DeJung and the top three candidates, who were 62, 56, and 50. (Ibid.) That the appointee was himself over 40 did not defeat the claim. (Id. at p. 554, fn. 13, citing Begnal v. Canfield & Assocs. (2000) 78 Cal.App.4th 66.)

Significance

DeJung resolved a question the Supreme Court had pointedly reserved. Caldwell v. Montoya shielded individual officials from FEHA suits over discretionary policy decisions but, in footnote 9, “expressly declined” to decide whether the public entity could likewise claim immunity. (DeJung, supra, 169 Cal.App.4th at pp. 544–545.) By holding that the FEHA’s definition of “employer” withdraws discretionary-act immunity for public entities, DeJung converted Caldwell’s dictum into a holding and closed off a recurring defense: a public employer cannot launder a discriminatory personnel decision through the discretionary-immunity statutes. The point lands with particular force because the defendant was itself a court, and the panel was unwilling to read state law to “empower[] the Superior Court itself to discriminate.” (Id. at p. 548.)

The opinion is equally important as one of the leading California articulations of the “cat’s paw” or subordinate-bias theory in the summary-judgment posture. It crystallizes the rule — later codified in pattern instruction CACI No. 2511 (“Adverse Action Made by Decision Maker Without Animus (Cat’s Paw)”) — that a plaintiff need not prove animus in the ultimate decision-maker, only that a “significant participant” harbored it and influenced the outcome. (DeJung, supra, 169 Cal.App.4th at p. 551.) Coupled with its direct-evidence holding — that age-coded remarks causally tied to the decision take the case outside McDonnell Douglas altogether (id. at p. 550) — DeJung gives plaintiffs two independent routes past summary judgment and is routinely cited for both.

Key quotes

“[T]he inclusion of ‘the state or any political or civil subdivision of the state’ within FEHA’s definition of ‘employer’ constitutes an express declaration of the Legislature’s intent to subject public entities to liability for violations of FEHA, and is a ‘clear indication of legislative intent that immunity [under sections 820.2 and 815.2(b)] be withdrawn in the particular case.’” (DeJung, supra, 169 Cal.App.4th at p. 546.)

“[S]howing that a significant participant in an employment decision exhibited discriminatory animus is enough to raise an inference that the employment decision itself was discriminatory, even absent evidence that others in the process harbored such animus.” (Id. at p. 551.)

“[I]f a jury believed that Hardcastle made the comments attributed to him by DeJung and Rigg, Hardcastle’s statements would plainly qualify as direct evidence of discriminatory animus.” (Id. at p. 550.)

Read the full opinion (Justia) →

Practice pointer

Open questions

The decision is a summary-judgment reversal, not a merits adjudication: the court “emphasize[d] that our analysis is confined to evaluating inferences which may, but need not, be drawn from this record,” disclaiming any view of “the best or only inferences” and leaving the ultimate questions of animus and causation for trial. (DeJung, supra, 169 Cal.App.4th at p. 539.) The court also declined to resolve an evidentiary dispute, holding that summary judgment “could not properly have been granted even if the Superior Court’s reply declarations and consolidated separate statement were taken into account,” and so “need not reach the issue whether the trial court erred in striking them.” (Id. at p. 554, fn. 14.) And it denied DeJung’s request to reassign the case to a different trial judge on remand, finding no showing that “the interests of justice would best be served by such an order” — leaving for the trial court how a Sonoma County FEHA action against the Sonoma County Superior Court proceeds in practice. (Id. at p. 555, fn. 15.)