Martin v. Lockheed Missiles & Space Co.

Facts

Noreen Martin was “a long-term employee of Lockheed Missiles & Space Company, Inc.,” who “was laid off at age 65.” (Martin, supra, 29 Cal.App.4th at p. 1723.) She sued under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) and article I, section 8 of the California Constitution, pleading age discrimination, sex discrimination, sexual harassment, and retaliation for failure to grant sexual favors “alleged to have occurred over a considerable period of time prior to, and ultimately culminating in, termination of her employment.” (Id. at pp. 1723–1724.) Because it was uncontradicted that Martin “never complained of any of these things until after she was laid off,” both parties treated the case as what it was in substance: “an action for wrongful termination.” (Id. at p. 1724.)

Martin worked for Lockheed in Santa Clara County from 1966 to 1979, left in good standing, and was rehired in 1984 — at age 58 — with seniority credited from 1966. In 1991 Lockheed made her “available for reassignment,” which “meant that Martin would be removed from her position, that she was free to seek another position at Lockheed to which to be ‘reassigned,’ but that if she could not find such a position her employment at Lockheed would end.” She found no position and was laid off. (Martin, supra, 29 Cal.App.4th at p. 1724.)

The administrative chronology proved decisive. In April 1991 Martin filed an administrative charge of age discrimination with the federal EEOC; the EEOC apparently referred the charge to the DFEH, which notified Martin that the EEOC “will be responsible for the processing of this complaint,” that the federal agency “should be contacted directly for any discussion of resolution of the charge,” that the DFEH would close its case “on the basis of ‘processing waived to another agency,’” and — in the same document — that Martin had the right to file a private lawsuit in a California court. (Martin, supra, 29 Cal.App.4th at pp. 1724–1725.) In February 1992, Martin undertook to amend her administrative charge to add sexual discrimination, harassment, and retaliation theories — but she filed the amended charge only with the EEOC, on February 26, 1992, and appeared to acknowledge that she never separately filed it with the DFEH. The EEOC issued a right-to-sue notice two days later. So far as the record showed, the DFEH took no further action in the matter after April 1991. (Id. at p. 1725.)

On the merits side, Lockheed’s evidence described a documented reduction in force. Due to cutbacks in government contract spending, Lockheed had needed to shrink its active workforce “drastically” after the end of 1986. In February 1991, a manager named Edinger, supervising six positions — including two “manufacturing material cost schedule control system criteria (C/SCSC)” specialist positions occupied by Martin and a younger, less senior woman named Starling — was told he would be required to eliminate two of the six positions. Edinger determined “there was not enough ‘manufacturing material’ C/SCSC work available for two persons,” that in his judgment neither occupant was fully occupied, “so I decided one of them should be displaced.” (Martin, supra, 29 Cal.App.4th at p. 1731.) Lockheed maintained a detailed written procedure, “Layoff and Plant Closing-Salaried Employees,” requiring consideration of annual performance ratings and preparation of a specially weighted appraisal giving “positive credit to more senior employees”: “Thus, if one person is to be let go, the employees will be ranked based on performance and seniority. The employee with the lowest weighted score is made [available for reassignment].” (Ibid.) Documentary evidence submitted under protective order showed the weighted procedure was followed and that “even after Martin’s greater seniority was taken into account Martin’s weighted score was substantially lower than Starling’s.” Lockheed “categorically denied that Martin’s age had any bearing whatsoever on its decision,” and several employees declared they had tried to help Martin find another position. (Id. at pp. 1731–1732.)

Procedural history

Martin filed her superior court action in April 1992, affirmatively alleging claims under Government Code sections 12940 and 12941 and article I, section 8 of the California Constitution. (Martin, supra, 29 Cal.App.4th at p. 1725.) Lockheed moved for summary judgment on two fronts: that Martin had failed to exhaust her California administrative remedies as to every theory except the age-discrimination claim embodied in her initial charge, and that its reduction-in-force showing entitled it to judgment on the age claim itself. The trial court agreed on both, granting summary judgment “as to any claims for sexual harassment, retaliation, or sex discrimination that may be found in the complaint” and implicitly concluding that Lockheed had shown, without a material triable issue, entitlement to judgment as a matter of law on the age claim under Code of Civil Procedure section 437c, subdivision (c). (Id. at pp. 1725, 1730.) Martin appealed from the ensuing judgment; the Sixth District affirmed, awarding Lockheed its costs on appeal. (Id. at pp. 1723, 1735.)

Issue

Two questions. First, exhaustion: could Martin maintain FEHA claims for sex discrimination, sexual harassment, and retaliation when those theories were added by an amended charge filed only with the federal EEOC — never with the DFEH — after the DFEH had closed its file on her original age-only charge and deferred processing to the EEOC? (Martin, supra, 29 Cal.App.4th at pp. 1724–1725.) Second, the summary judgment standard: how do the McDonnell Douglas trial-stage burden-shifting rules operate on a defense motion for summary judgment under Code of Civil Procedure section 437c — and did Lockheed’s documented reduction-in-force showing, met by Martin’s package of policy memoranda, stray remarks, statistics, and opinion, leave a triable issue of material fact on age discrimination? (Id. at pp. 1730–1732.)

Holding

Reasoning

Exhaustion is jurisdictional, and it is claim-specific. The court began from the settled propositions that a FEHA plaintiff must file an administrative complaint with the DFEH and obtain a right-to-sue notice “before bringing suit on a cause of action under the act,” and that the claimant “must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts.” (Martin, supra, 29 Cal.App.4th at p. 1724, citing Rojo v. Kliger (1990) 52 Cal.3d 65, 88 and Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1121–1123.) Because “[t]he failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect,” non-exhaustion is a proper ground for defense summary judgment. (Martin, at p. 1724.) Notably, Martin did not argue that her non-age theories might survive as common-law claims not subject to exhaustion — a route Rojo had left open — so the court had no occasion to address it. (Id. at p. 1726.)

An EEOC right-to-sue notice does not exhaust a FEHA claim. Martin argued that state courts have concurrent jurisdiction over discrimination actions based on EEOC right-to-sue notices, making her federal notice sufficient. The court observed it is “by no means clear that California courts have concurrent jurisdiction even over title VII actions,” but found the premise beside the point: “on its face, and under the federal statute it implements (42 U.S.C. § 2000e-5(f)(1)), an EEOC right-to-sue notice satisfies the requirement of exhaustion of administrative remedies only for purposes of an action based on title VII.” Martin had elected to sue under the FEHA, not title VII, so the federal notice “technically did not satisfy the jurisdictional requirement.” (Martin, supra, 29 Cal.App.4th at p. 1726.)

DFEH inaction cannot excuse a filing the DFEH never received. Martin invoked Government Code section 12965’s provision entitling a complainant to sue if the department fails to act within 150 days of “the filing of a complaint.” The “short answer” was textual: the DFEH’s duty to act “is triggered by ‘the filing of a complaint,’ which plainly means the verified complaint in writing which, under Government Code section 12960, an aggrieved person is entitled to ‘file with the department . . . .’” (Martin, supra, 29 Cal.App.4th at pp. 1726–1727.) Martin had gestured in the trial court toward “a dual filing agreement between” the EEOC and DFEH, but did not renew the point on appeal, and the court’s own research gave “no substance to the implication.” Absent any showing that the amended charge was filed with the DFEH or that the DFEH had actual notice of it from any source, its inaction proved nothing. (Id. at p. 1727.)

Love v. Pullman does not condemn the state-filing requirement as a “procedural technicality.” Martin leaned on Love v. Pullman Co. (1972) 404 U.S. 522, where the United States Supreme Court refused to require a claimant to re-file a charge the EEOC already had in hand, calling a second filing “an additional procedural technicality.” (Martin, supra, 29 Cal.App.4th at pp. 1727–1728.) The court held Love was neither controlling nor analogous: it construed title VII, “which (by virtue of Martin’s own election of procedural theories) is wholly inapplicable to this case,” and it involved an agency that already had notice of the grievance. “Here, in contrast, so far as the record shows the DFEH never did learn of Martin’s assertion” of harassment, retaliation, and sex discrimination — and thus never received the opportunity to pursue the FEHA’s “vital policy interests . . . , i.e., the resolution of disputes and elimination of unlawful employment practices by conciliation.” Requiring Martin to make each theory known to the DFEH “was thus by no means ‘an additional procedural technicality’ in this case.” (Id. at p. 1728.)

A DFEH deferral to the EEOC is claim-specific, not a standing delegation. The court accepted that the DFEH may, in an appropriate case, itself defer to the EEOC — but explained that a deferral “amounts in necessary effect to a decision that the DFEH will not itself immediately pursue conciliation,” and so “should be based on a preliminary determination by the DFEH that (for whatever reason) it cannot effectively seek conciliation in the particular case.” (Martin, supra, 29 Cal.App.4th at pp. 1728–1729.) That is what happened in April 1991 — as to the age claim, the only claim then before the department. “We cannot know how the DFEH would have reacted to the additional claims Martin made nearly a year later, because so far as we are aware those additional claims never reached the DFEH.” The court therefore refused to “treat the DFEH’s decision to defer an age discrimination claim as an effective delegation to the EEOC for the purpose of any further claim the aggrieved person may later make”: “If Martin wished to avail herself of state judicial remedies for her additional claims, it was essential that she undertake by reasonable means to make the additional claims known to the DFEH. In our view she did not do so, and therefore she did not exhaust her state administrative remedies.” (Id. at pp. 1729–1730.)

Trial burden-shifting does not govern a defense MSJ — the moving employer goes first. Turning to the exhausted age claim, the court recited the familiar order of proof Martin would have borne at trial: “[T]he employee must first establish a prima facie [showing] of wrongful discrimination. If she does so, the burden shifts to the employer to show a lawful reason for its action. Then the employee has the burden of proving the proffered justification is mere pretext.” (Martin, supra, 29 Cal.App.4th at p. 1730, quoting Gonzales v. MetPath, Inc. (1989) 214 Cal.App.3d 422, 426, and citing St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, and McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.) “But these rules of trial procedure have no direct application to a defendant’s motion for summary judgment.” Under section 437c, the defendant “must bear the initial burden of showing that ‘the action has no merit,’” and “the plaintiff will not be required to respond unless and until the defendant has borne that burden.” (Martin, at pp. 1730–1731.) “In this sense, upon a defendant’s summary judgment motion in an employment discrimination action ‘the burden is reversed . . . .’” (Id. at p. 1731, quoting University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1036.)

The employer’s two paths — and why the legitimate-reason path was Lockheed’s “better argument.” Lockheed argued both that Martin could not make “so much as a prima facie showing of age discrimination” and that it had affirmatively established a nondiscriminatory reason. The court’s treatment maps the two routes a moving employer may take: attack an element of the plaintiff’s case, or come forward with evidence of a legitimate reason for the decision. “But for purposes of summary judgment Lockheed’s better argument is that it has made a sufficient showing that its decision to make Martin ‘available for reassignment’ was the result of a nondiscriminatory reduction in force dictated by adverse economic conditions and that Martin’s inability to find a new position was not attributable to any wrongful act by a Lockheed employee, and that Martin has not raised a triable issue of fact material to this showing.” (Martin, supra, 29 Cal.App.4th at p. 1731.) After detailing the Edinger evidence and the weighted-ranking procedure, the court concluded: “On its face Lockheed’s carefully documented showing was sufficient to make a prima facie case for defense summary judgment as to Martin’s age discrimination claim.” (Id. at p. 1732.) A depressed business and a decision to reduce staff “can be good cause for discharging the employee” and “can also support an inference of good faith, and of the absence of an improper motive, in the discharge decision” (ibid., citing Malmstrom v. Kaiser Aluminum & Chemical Corp. (1986) 187 Cal.App.3d 299, 321); Lockheed’s showing demonstrated a reduction in force implemented “in a rational and methodical manner.” (Martin, at p. 1732.)

The plaintiff’s responsive burden: evidence material to the specific decision, not to the workplace at large. With Lockheed’s burden carried, Martin was required “to raise an inference of age discrimination at least sufficient to create a triable issue of fact material to the defendant’s assertion that their decision to discharge Martin had been legitimate.” (Martin, supra, 29 Cal.App.4th at p. 1732.) Her showing of years of praised performance missed the point: “the question was not whether Martin was good at the job she did but whether Lockheed rationally and fairly arrived at a conclusion that Starling was better.” Her assertions that Starling was less qualified and that Edinger lacked the data, time, and qualifications to compare the two proved “on analysis to be based on Martin’s opinions rather than on evidence.” (Id. at p. 1733.) The balance of her opposition sought to prove a long-standing anti-older-worker policy: a 1988 “Critical Skills Retention” memo referring to “a fund that permitted preferred treatment for young people with specific critical skills” (ibid.); a declaration from another lawsuit describing a 1986 management memo purportedly barring raises for workers over 60 and management positions for anyone over 40; her own recollections — that in 1975 a supervisor said she could not take leadership training because she was over 40, and that in 1987 another supervisor called her “well preserved” with a “beautiful bod”; unauthenticated termination statistics; and a former employee’s declaration that ranking decisions turned on whether a person was “liked.” (Id. at pp. 1733–1734.)

None of it was material — and speculation is not “substantial responsive evidence.” The court’s dispositive move was a materiality screen: “Whether or not a trier of fact would find any of this to be persuasive evidence on issues to which it was germane, it is apparent that none of it is material to the issue which was before the trial court and thus is before us, which is whether Martin had raised a triable issue of fact material to Lockheed’s showing that on a specific occasion in early 1991 Martin was found available for reassignment by means of valid and fair procedures validly and fairly applied without regard to her age.” (Martin, supra, 29 Cal.App.4th at pp. 1734–1735.) Repeated assertions that particular points were “the whole issue for the jury to decide” were “insufficient in and of themselves to forestall summary judgment.” Where the parties have had a full discovery opportunity, “we believe the correct rule to be that to meet an employer’s sufficient showing of a legitimate reason for discharge the discharged employee, to avert summary judgment, must produce ‘substantial responsive evidence’ that the employer’s showing was untrue or pretextual. For this purpose, speculation cannot be regarded as substantial responsive evidence.” (Id. at p. 1735, quoting University of Southern California v. Superior Court, supra, 222 Cal.App.3d at p. 1039.) In the court’s view, Martin’s trial-court showing “was insufficient to create more than speculation that Lockheed’s showing was pretextual or false,” and the judgment was affirmed. (Ibid.)

Significance

Martin is one of the load-bearing beams of California employment summary judgment law. Its two procedural insights — that McDonnell Douglas is a trial framework whose burdens must be re-sequenced on a defense motion, and that an employer’s documented legitimate-reason showing triggers the employee’s obligation to produce “substantial responsive evidence” of pretext — were adopted almost verbatim by the decisions that built the modern doctrine. Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798 cites Martin for both the moving employer’s initial burden and the “substantial responsive evidence” standard, and Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138 invokes Martin’s rule while showing its plaintiff-side application. The Supreme Court’s architecture in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317 — permitting an employer-movant to proceed directly to a competent showing of nondiscriminatory reasons without first disproving the prima facie case — is the mature form of the “better argument” sequence Martin modeled, and Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 supplied the general burden-of-production framework now read alongside it. (The subdivision Martin applied as former subdivision (n)(2), then (o)(2), of Code of Civil Procedure section 437c is today’s subdivision (p)(2).)

Two cautions about the decision’s current standing. First, the Lexis print of Martin carries a “Questioned” citator signal. The print itself does not disclose which holding has been questioned or by whom, and this analysis does not rely on Martin as good law for any exhaustion proposition. The likeliest candidate is not the summary judgment framework — which the Supreme Court’s own decisions absorbed — but the opinion’s administrative-exhaustion discussion, which describes an EEOC/DFEH landscape that has since evolved considerably. Martin expressly found “no substance” in the record before it for a dual-filing arrangement (29 Cal.App.4th at p. 1727); modern practice under EEOC–state worksharing agreements, and later case law addressing them, has made cross-filing commonplace, so Martin’s no-constructive-filing analysis should never be extended beyond its record without checking current authority. Second, the timeliness-adjacent rule that each discrete act must be specified in the administrative charge now operates alongside the continuing-violation doctrine of Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, which liberalized how related course-of-conduct claims are captured. What has not eroded is the core MSJ teaching: a plaintiff opposing a documented legitimate reason must respond with admissible, decision-specific evidence, and generalized “policy” proof untethered to the challenged decision will be screened out as immaterial — a materiality discipline later plaintiff-favorable decisions like Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 police from the opposite direction, against employer overreach.

Key quotes

“We have recognized, in the context of the Fair Employment and Housing Act, that ‘[t]he failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect,’ and thus that failure to exhaust administrative remedies is a ground for a defense summary judgment.” (Martin, supra, 29 Cal.App.4th at p. 1724, citing Miller v. United Airlines, Inc. (1985) 174 Cal.App.3d 878, 890.)

“But these rules of trial procedure have no direct application to a defendant’s motion for summary judgment. . . . In this sense, upon a defendant’s summary judgment motion in an employment discrimination action ‘the burden is reversed . . . .’” (Martin, supra, 29 Cal.App.4th at pp. 1730–1731, quoting University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1036.)

“[T]o meet an employer’s sufficient showing of a legitimate reason for discharge the discharged employee, to avert summary judgment, must produce ‘substantial responsive evidence’ that the employer’s showing was untrue or pretextual. . . . For this purpose, speculation cannot be regarded as substantial responsive evidence.” (Martin, supra, 29 Cal.App.4th at p. 1735.)

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Practice pointer

Open questions

Martin expressly left doctrinal ground uncovered. The court noted — without deciding — that it is “by no means clear that California courts have concurrent jurisdiction even over title VII actions” (Martin, supra, 29 Cal.App.4th at p. 1726), and it had no occasion to decide whether Martin’s non-age theories could have proceeded as common-law claims exempt from FEHA exhaustion, because “Martin does not assert” the point (ibid., citing Rojo v. Kliger, supra, 52 Cal.3d at p. 88). The opinion also declined to define what “reasonable means” of making additional claims known to the DFEH would suffice (id. at pp. 1729–1730), and its dual-filing analysis was expressly record-bound — the court found no substance for a worksharing-based constructive filing “[a]bsent any showing” in that record (id. at p. 1727), leaving open how a properly documented worksharing agreement changes the analysis. Finally, the opinion predates the continuing-violation framework of Richards v. CH2M Hill, Inc., so the interaction between Martin’s act-specific charging rule and course-of-conduct claims is governed by later law, not by Martin itself. Practitioners should also confirm the source and scope of the print’s “Questioned” citator signal, with an up-to-date citator, before relying on any of the opinion’s exhaustion holdings.