Cucuzza v. City of Santa Clara

Facts

The City hired Sue Cucuzza in 1988 as a purchasing utility worker in its Automotive Services Department and promoted her in 1990 to the newly created position of service writer/parts manager. (Cucuzza, supra, 104 Cal.App.4th at p. 1035.) The job mixed administrative tasks — receiving and issuing equipment, inventory, scheduling repairs — with what she characterized as technical duties: service calls to contractors, negotiating labor charges with vendors, taking vehicle complaints. “It was the technical duties that plaintiff most wanted to do,” and she preferred working in the shop with the mechanics over the front office; by about 1991 she had gradually assumed the technical tasks. (Ibid.)

In 1993 the City hired Claude Edwards as the “As Needed” shop foreman — a temporary, non-civil-service designation — and Edwards “immediately began performing the technical tasks that plaintiff had performed for the preceding two years and restricted her from working in the shop area,” without reducing her pay or benefits. (Cucuzza, supra, 104 Cal.App.4th at p. 1035 & fn. 1.) In February 1994 Cucuzza filed a grievance against her immediate supervisor; the grievance did not mention sex discrimination or Edwards, but she later maintained she filed it because she believed Edwards was discriminating against her based on sex — the only other women in the department held clerical or administrative jobs in the front office, and Edwards had told her to go work in the front office “where [she] belonged.” (Id. at p. 1035.) The City’s response was to offer her a transfer to a meter-reader position; told the transfer “was the only option she had to get out of the situation,” she accepted, but returned to the service writer/parts manager job in March 1995. (Ibid.)

Her expectation of resuming the technical duties on return rested “only on her ‘hope’ ” that the public works director who encouraged the move understood the job to include them; she never discussed it with him, and within two weeks she realized Edwards intended to keep the technical tasks. Rather than complain, she recalled: “I didn’t talk to Bob [Mortenson] about it. I bided my time.” (Cucuzza, supra, 104 Cal.App.4th at pp. 1035–1036, 1043.) For a year and a half to two years she “continually asked Edwards to be allowed to go out on the shop floor and work as a service writer”; he invariably refused, saying the shop foreman handled those tasks and he needed her in the office. (Id. at p. 1036.) In 1996 her position was reclassified — new title, 2.3 percent raise, administrative and clerical assignments — and she was told a service writer was not needed, though Edwards or others kept performing the technical in-shop work. (Ibid.) Around 1997 Edwards took over the equipment-specification and vendor-contact work she had been doing, and in late 1997 he “shoved plaintiff’s desk out of his office and told her to ‘go find room up in the [front] office with the other women.’ ” (Ibid.)

On March 23, 1998, the City hired Art Vizcarra into an “As Needed” equipment mechanic/technician position, and he immediately began performing the technical duties Cucuzza had performed from 1991 to 1993; Edwards introduced him to the staff “as the new service writer,” and when Cucuzza asked why she was not given the job, Edwards said she was not qualified. (Cucuzza, supra, 104 Cal.App.4th at pp. 1036–1037.) On September 22, 1998, she filed a DFEH complaint alleging she had been denied the service writer job “because my managers do not feel a woman should hold that position.” (Id. at p. 1037.) The City thereafter downgraded the position to a new “fleet assistant” classification — essentially the 1991–1993 technical duties plus computer responsibilities — and filled it through a civil service examination. Edwards “took no part in the recruitment, testing, recommendation or approval process”; three outside raters conducted the oral examination; Vizcarra scored highest at 90 percent (Cucuzza fourth at 72 percent) and held two certifications the City deemed “highly desirable” that she lacked. The City chose Vizcarra. (Ibid.)

Procedural history

Cucuzza sued the City under the FEHA, alleging that beginning in 1993 it had discriminated against her on the basis of sex by limiting her to clerical and administrative tasks and assigning technical duties to less qualified men. (Cucuzza, supra, 104 Cal.App.4th at p. 1034.) The City moved for summary judgment on the grounds that the statute of limitations barred most of the alleged adverse actions and that it had legitimate, nondiscriminatory explanations for the conduct within the limitations period; the trial court granted the motion and entered judgment. (Ibid.) The court ruled before the Supreme Court decided Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798; when Cucuzza petitioned for rehearing after Richards came down, the trial court denied the petition as untimely “and also because it found that Richards did not warrant a different result.” (Id. at pp. 1040–1041.) On appeal she argued that none of the incidents was barred because the City’s conduct was a continuing violation as defined by Richards. The Sixth District agreed with the trial court and affirmed. (Id. at pp. 1034–1035, 1041, 1046.)

Issue

The pleadings framed a single FEHA sex-discrimination cause of action with two components — the continuous refusal from 1993 onward to let Cucuzza perform the technical service-writer duties, and the 1998 denial of the position given to Vizcarra. (Cucuzza, supra, 104 Cal.App.4th at p. 1039 & fn. 2.) The questions: first, under Government Code section 12960’s then-one-year administrative filing deadline, could conduct before September 22, 1997 be swept into the case as a “continuing violation” under Richards’s three-part test — or had the situation “acquired a degree of permanence” long before she filed? Second, as to the conduct inside the limitations period, did Cucuzza produce substantial responsive evidence that the City’s explanations were pretextual or that it acted with discriminatory animus — in particular, could her supervisor’s sexist remarks support the inference that the City’s hiring decisions “were influenced by plaintiff’s gender”? (Id. at pp. 1040, 1042–1043, 1045.)

Holding

Reasoning

The summary judgment framework, with the inference rule made explicit. The court restated the familiar structure: a defendant may prevail by negating a prima facie element or by showing the adverse action rested on legitimate, nondiscriminatory factors; the burden then shifts to the employee to produce “substantial evidence that the employer’s stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus.” (Cucuzza, supra, 104 Cal.App.4th at pp. 1037–1038, citing Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355, 357 and Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004–1005.) “[S]peculation cannot be regarded as substantial responsive evidence.” (Id. at p. 1038, quoting Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735.) The opinion’s most-quoted doctrinal sentence supplies the test for inference-based motive proof: because discrimination cases usually turn on inference rather than direct evidence, “a material triable controversy is not established unless the inference is reasonable. And an inference is reasonable if, and only if, it implies the unlawful motive is more likely than defendant’s proffered explanation.” (Ibid., citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 858.)

The limitations clock and Richards. Under the version of section 12960 then in force, “[n]o complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred. . . .” (Cucuzza, supra, 104 Cal.App.4th at p. 1040.) Cucuzza filed on September 22, 1998, so pre-September 22, 1997 conduct was barred “unless some exception to the one-year limitations period applies.” (Ibid.) The candidate exception was Richards’s continuing-violation doctrine, which “comes into play when an employee raises a claim based on conduct that occurred in part outside the limitations period.” (Id. at p. 1040, quoting Richards, supra, 26 Cal.4th at p. 812.) After tracing Richards’s rejection of both the Ninth Circuit’s broad relatedness test and the employer’s narrow equitable-tolling position, the court set out the governing standard: an employer’s conduct over time is a continuing violation “if the employer’s unlawful actions are (1) sufficiently similar in kind . . ., (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence.” (Id. at p. 1041, quoting Richards, at p. 823.)

Permanence is the doctrinal fulcrum. The court explained the balance the third prong strikes: the first two prongs protect an ongoing conciliation process from being short-circuited by the limitations pressure, while permanence “sets an outside limit on the length of time a course of conduct may continue.” (Cucuzza, supra, 104 Cal.App.4th at pp. 1041–1042.) Permanence attaches when “an employer’s statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will be futile” — the employer may “assert control over its legal relationship with the employee” either by granting requests “or by making clear to the employee in a definitive manner that it will not be granting any such requests, thereby commencing the running of the statute of limitations.” (Id. at p. 1042, quoting Richards, supra, 26 Cal.4th at pp. 823–824.) And although Richards arose from disability accommodation and harassment, “the high court’s rationale applies to plaintiff’s claim that City’s ongoing denial of her right to certain employment opportunities was a continuing violation” — the issue in either setting is whether outside-the-period conduct is “sufficiently linked to unlawful conduct within the limitations period.” (Ibid., citing Richards, at p. 812.)

Application: isolated decisions, and permanence no later than 1996. On the first two prongs the court was skeptical: “we find it difficult to perceive the alleged adverse actions as a continuing course of conduct. On this record they look much more like a collection of isolated employment decisions.” (Cucuzza, supra, 104 Cal.App.4th at p. 1042.) But it rested on permanence, assuming similarity and frequency arguendo. Three facts fixed the point of futility. First, the City’s answer to her 1994 grievance was an offer to transfer her out of the department: “We can conceive of little that would be a more definitive denial of plaintiff’s request to perform certain job duties than an offer to transfer her out of the job altogether,” and she admitted she accepted “because she was told that was her only choice.” (Id. at pp. 1042–1043.) Second, after her 1995 return her only effort at resolution was asking Edwards to let her onto the shop floor — and “[s]ignificantly, Edwards invariably and unequivocally denied her request.” (Id. at p. 1043.) Third, her own argument that the 1996 elimination of the service writer/parts manager title concealed the City’s need for a service writer was self-defeating: “the argument defeats application of the continuing violation doctrine because it is a concession that plaintiff knew that the situation had become permanent as to her in 1996.” (Ibid.) Conclusion: permanence “at least by the time her job title changed in 1996,” so pre-September 22, 1997 conduct could not support liability. (Ibid.)

The timely conduct: legitimate explanations, unrebutted. Two clusters of conduct survived the limitations ruling: the post-1997 erosion of her remaining duties (specifications and vendor contact) plus the desk relocation, and the Vizcarra hiring. (Cucuzza, supra, 104 Cal.App.4th at p. 1043.) For the first, the City showed Edwards had implemented procedures reducing the frequency of the tasks or reassigned them “for purposes of efficiency,” and moved her workspace on the human-resources director’s recommendation “to have privacy for meetings and confidential records.” (Id. at p. 1044.) For the second, the City showed the initial Vizcarra position was a temporary “As Needed” slot that longstanding policy closed to regular employees, and a mechanic’s position “for which plaintiff was admittedly unqualified”; and that the permanent fleet assistant position was filled through a neutral process — outside raters, top score to Vizcarra, superior certifications — in which “Edwards took no part.” (Ibid.) The City’s showing “was internally consistent and plausible. In short, it was credible on its face and sufficient to shift the burden to plaintiff to raise a triable issue of fact.” (Ibid.)

The rebuttal fails: separate-statement discipline and the entitlement fallacy. As to the duty erosion, Cucuzza “disputed some of City’s proffered explanation in her separate statement, but she provided no facts in support of her assertions.” (Cucuzza, supra, 104 Cal.App.4th at p. 1044.) Her core theory — that the City never really eliminated the service writer job but resurrected it for Vizcarra “as a subterfuge to keep her out” — foundered on the limitations holding: “if plaintiff had any legal claim to that position or the tasks it encompassed in 1993, she lost it by failing to assert her claim before the running of the statute of limitations. Therefore, the only way that City’s hiring of Vizcarra could serve as a basis for a gender discrimination claim is if City hired Vizcarra rather than plaintiff because Vizcarra was male and plaintiff was female.” (Id. at p. 1045.)

Biased remarks without decisional nexus. Cucuzza’s evidence of motive was three comments by Edwards: the 1997 instruction to find a place in the front office “with the other women”; a 1999 remark telling a technician, of the front-office women, not to “bother his harem”; and, in 1998 or 1999, “Women have their place in the pecking order along with all the other farm animals.” (Cucuzza, supra, 104 Cal.App.4th at p. 1045.) The court held the comments, “while insensitive and possibly demonstrative of his personal bias against women, are insufficient to support an inference that City’s hiring decisions were influenced by plaintiff’s gender” — for two record-specific reasons. (Ibid.) First, no evidence showed Edwards even knew of her interest in the job when Vizcarra was hired: she had not asserted her interest to Edwards for a full year beforehand, or to anyone else since 1994, and neither Edwards nor the department director knew she had ever performed the technical duties. (Id. at p. 1045 & fn. 3.) Second, she did not dispute the fairness of the examination process, Vizcarra’s higher score and superior qualifications, or Edwards’s absence from the decision: “Thus, regardless of Edwards’s personal opinions, no reasonable trier of fact could determine on these facts that City’s refusal to hire plaintiff into the fleet assistant job was more likely based upon gender bias than it was upon the fact that plaintiff was less qualified than the person City hired.” (Id. at pp. 1045–1046.) Summary judgment was therefore proper. (Id. at p. 1046.)

Significance

Cucuzza is one of the first published decisions to run employment-opportunity claims through Richards’s three-part continuing-violation test, and it remains a standard citation for two propositions. First, the doctrine’s rationale travels: although Richards arose from a reasonable-accommodation and disability-harassment course of dealing, Cucuzza extended its framework to the “ongoing denial” of job duties and promotional opportunity, confirming that the same similarity–frequency–permanence analysis governs across FEHA theories. (Cucuzza, supra, 104 Cal.App.4th at p. 1042.) Second, and more consequentially for practice, it shows how permanence is found against the employee: a transfer offer in response to a grievance, a supervisor’s unequivocal and repeated refusals, and a reclassification eliminating the coveted position each functioned as the employer “making clear . . . in a definitive manner” that the requests would not be granted. (Id. at pp. 1042–1043.) The employee’s own patience — “I bided my time” — became the evidence that conciliation had ended and the clock had started. (Id. at pp. 1035–1036, 1043.)

On the aggregation question that later dominated adverse-action law, Cucuzza sits on the skeptical side of the line: it declined to see “a series of closely related similar occurrences” (the plaintiff’s framing) and saw instead “a collection of isolated employment decisions” — an instinct that parallels the disaggregating analysis of McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377 in the retaliation context, and that contrasts with the aggregated “campaign” sustained in Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028. (Cucuzza, supra, 104 Cal.App.4th at pp. 1040, 1042.) The opinion is also frequently cited for its crisp restatement of Aguilar’s inference standard — unlawful motive must be more likely than the employer’s explanation — which gives defense counsel a quotable formulation of the plaintiff’s step-three burden. (Id. at p. 1038.)

Its treatment of Edwards’s remarks deserves careful reading rather than reflexive citation. The court did not announce a categorical “stray remarks” exclusion; it weighed the comments and found them unconnected to the challenged decisions — no knowledge, no participation, an undisputed neutral process. (Cucuzza, supra, 104 Cal.App.4th at pp. 1045–1046.) After Reid v. Google, Inc. (2010) 50 Cal.4th 512 rejected categorical exclusion of stray remarks, Cucuzza’s nexus-based weighing is the analysis that survives: discriminatory statements matter to the extent the speaker touches the decision. Finally, note the vintage of its limitations holding: Cucuzza applied the one-year DFEH deadline in the then-current text of section 12960; the Legislature has since lengthened that administrative filing period from one year to three years — Assembly Bill 9 (2019), effective January 1, 2020, amending Government Code section 12960 — so the case’s permanence analysis now operates against a longer clock — but the doctrine itself is unchanged.

Key quotes

An employer’s conduct over time is a continuing violation “if the employer’s unlawful actions are (1) sufficiently similar in kind . . ., (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence.” (Cucuzza, supra, 104 Cal.App.4th at p. 1041, quoting Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.)

“We can conceive of little that would be a more definitive denial of plaintiff’s request to perform certain job duties than an offer to transfer her out of the job altogether.” (Cucuzza, supra, 104 Cal.App.4th at pp. 1042–1043.)

“[A] material triable controversy is not established unless the inference is reasonable. And an inference is reasonable if, and only if, it implies the unlawful motive is more likely than defendant’s proffered explanation.” (Cucuzza, supra, 104 Cal.App.4th at p. 1038, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 858.)

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Practice pointer

Open questions

The court found it “difficult to perceive” a continuing course of conduct but expressly assumed similarity and frequency rather than deciding them — “even assuming the conduct was sufficiently similar and frequent enough to constitute a single course of conduct” — so Cucuzza offers no holding on how alike or how frequent duty-assignment decisions must be to satisfy Richards’s first two prongs. (Cucuzza, supra, 104 Cal.App.4th at p. 1042.) It likewise does not decide what employer conduct short of a transfer offer or reclassification suffices for permanence, nor whether an employer’s affirmative concealment of a position’s continued existence could ever defeat permanence — the court rejected that argument as “illogical” on this record “because plaintiff knew that someone was performing those job duties all along,” leaving the concealment theory open on different facts. (Id. at p. 1043.) Because the parties agreed the limitations period ran from the September 22, 1998 DFEH filing, the opinion also has no occasion to address delayed-discovery exceptions, which it noted were “not pertinent here.” (Id. at p. 1040.) Finally, the opinion predates both Yanowitz’s materiality standard for adverse actions and Reid’s stray-remarks holding; how its nexus-based treatment of supervisor bias interacts with Reid’s totality approach — particularly where the biased supervisor influences the decisionmaker indirectly — remains for later cases.