Batarse v. SEIU: Court of Appeal Affirms Summary Judgment in Race and Gender Discrimination Action

In Batarse v. Service Employees International Union Local 1000 (9/24/12) --- Cal.App.4th ---, the plaintiff, a former attorney who had resigned from the State Bar with charges pending, was employed by the SEIU as a union rep.  After his termination, he filed suit for racial and gender discrimination, retaliation, negligent supervision and retention, and wrongful termination in violation of public policy.  The trial court granted summary judgment on all counts, and the Court of Appeal affirmed. 

First, the trial court was justified in declining to consider the plaintiff's opposition without a separate statement that conformed to the requirements of the Code.  Slip op. at 7-14.  This was not a single-issue case that could be determined without a separate statement, but a complex case involving shifting burdens of proof.  Slip op. at 12.  The plaintiff's separate statement was insufficient in that it "merely disputed a few of SEIU's facts without including additional facts attempting to affirmatively show pretext or otherwise overcome SEIU's asserted reason for termination. Plaintiff's separate statement did not dispute any of the facts showing SEIU had a legitimate reason for terminating his employment; that is, it did not dispute any of the facts regarding plaintiff being disciplined by the state bar or concealing or making misrepresentations about the reasons for his resignation [from the State Bar]."  Slip op. at 13-14.  The defects in the separate statement were not merely procedural.  Plaintiff admitted that SEIU had legitimate business reasons for his termination (i.e., misrepresenting his reasons for resigning from the State Bar when he applied for his job) but failed to show that those reasons were untrue or pretextual.  Ibid.  

Second, even if the trial court erred in refusing to give the plaintiff additional time to correct his separate statement, the error was not prejudicial.  Slip op. at 14-19.  The facts that plaintiff stated in his points and authorities, even if properly stated in the separate statement, would not raise triable issues of fact.  Ibid.  The plaintiff could not "offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination."  Slip op. at 15.  

As direct evidence of intentional discrimination, plaintiff cites the following three facts: (1) “Plaintiff has asserted that he was replaced by a Hispanic individual … no more qualified than Plaintiff for the position.” Plaintiff cites no evidence that his replacement was Hispanic or that the replacement was no more qualified than plaintiff. (2) Sanchez “has shown a refusal to try and get along with the representatives that were assigned to her DLC, who happen to be Caucasian males.” The declaration of Angela Moralez, cited in support, states that Sanchez “has simply refused to attempt to get along with” males she worked with; Moralez identified two Caucasian males, one who resigned two months into his employment and another Sanchez “failed to get along with.” Other unidentified males (of unidentified race and ethnicity) left within months of employment “because of their inability to get along with Ms. Sanchez and Ms. Sanchez's refusal to attempt to [get] along with any of them.” Moralez states her belief that Sanchez used her influence to have plaintiff terminated, but admits she “cannot say for certain[] that it was because of [plaintiff's] race, gender, or in retaliation for his conduct.” The declaration of Tim Chaney, also cited in support of this statement, admits he has not personally heard Sanchez make derogatory remarks about Caucasians, but opines that “she has shown an inability or refusal to get along with Caucasian males.” (3) Within the first couple of weeks of plaintiff's employment, plaintiff's supervisor received a phone call from a member saying the member looked plaintiff up on the state bar website and did not want him to represent the member.

Slip op. at 17.  None of this constituted "direct evidence of discriminatory or retaliatory motive."  Ibid.  

The opinion is available here.