The opinion
Filed 11/24/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
DAVID FOROUDI, B291302
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC555258)
v.
THE AEROSPACE CORPORATION,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Robert L. Hess, Judge. Affirmed.
Donna Bader and Joseph W. Klobas for Plaintiff and
Appellant.
Proskauer Rose, Kate S. Gold, Philippe A. Lebel and Cole
D. Lewis for Defendant and Respondent.
_____________________________
David Foroudi filed a complaint against his former
employer, The Aerospace Corporation (Aerospace), alleging he
was selected for a company-wide reduction in force because of his
age. A federal district court struck from his complaint disparate
impact and class allegations, finding he failed to exhaust his
administrative remedies with respect to such claims. After the
case was remanded to the superior court, Foroudi amended his
original administrative charges to include class and disparate
impact allegations. He then sought leave to amend his complaint
in order to reallege class and disparate impact claims. The trial
court denied the request after finding the administrative
amendments were untimely and unauthorized. The court
subsequently granted Aerospace’s motion for summary judgment.
On appeal, Foroudi contends the trial court erred in denying his
request for leave to amend and in granting Aerospace’s motion
for summary judgment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND1
Aerospace operates a non-profit Federally Funded Research
and Development Center. It is responsible for providing
technical analyses and assessments to the federal government on
launch, space, and related ground systems that serve the
national interest. It derives more than 90 percent of its funding
from federal defense and intelligence agencies.
Foroudi has degrees in mathematics and computer science,
industrial engineering and operations research, and computer
and information science. He was hired by Aerospace in 2007,
when he was 55 years old, to work as a senior project engineer.
In 2009, the program Foroudi had been hired to work on was
1 We grant Foroudi’s February 13, 2020 request for judicial
notice and motion to augment.
2
cancelled, and he was transferred to Aerospace’s Navigation
division. His position was a “Level 3” Senior Project
Engineer/Technical Lead for the GPS/OCX Program Office.
Over the course of his employment at Aerospace, Foroudi’s
supervisors counseled him regarding deficiencies in his
interpersonal and communication skills. He was warned that his
failure to improve his performance in these areas could result in
corrective action. Foroudi’s annual performance evaluations in
2010 and 2011 identified his interpersonal and communication
skills as areas for improvement, but noted he “meets
expectations” in those areas.2 Foroudi was also counseled for
failing to comply with Aerospace’s corporate travel policies and
procedures on several occasions, although no corrective action
was ever taken against him.
Per the terms of a collective bargaining agreement, each
year Aerospace management assigned all bargaining unit
employees, including Foroudi, a value ranking based on their
performance, the strength and breadth of their skills, and the
utility of their skills and performance to the company. The
managers would place the employees into five groups, known as
“bins,” with bin 1 containing the highest-ranked employees and
bin 5 containing the lowest. In 2010 and 2011, Foroudi was
placed in bin 5. His ranking reflected his managers’ assessment
of his deficiencies in interpersonal communication skills and
limited background in navigation relating to GPS, despite being a
technical lead on a GPS project.
2 The possible ratings were far exceeds expectations, exceeds
expectations, meets expectations, and significantly falls short of
expectations.
3
In late 2011, Aerospace learned that its funding would be
significantly impacted by projected Department of Defense
budget cuts. In response, Aerospace began implementing a
company-wide reduction in force (RIF). The pool of eligible
employees consisted of those ranked in bins 4 and 5 in 2011,
new employees that were unranked, and employees on displaced
status. Upper level management then used an “RIF Selection
Matrix” to rank RIF-eligible employees in their units based on
several criteria, including bin ranking, performance issues, and
skills and areas of expertise applicable to the unit’s anticipated
future workload.
Foroudi was placed in the RIF-eligibility pool given his
2011 ranking in bin 5. His managers then selected him for the
RIF purportedly because he was in the lowest ranking bin, he did
not have a strong background in scientific, algorithmic
applications for GPS navigation, and he had received prior
counseling regarding deficiencies in his interpersonal and
communication skills and failure to adhere to company travel
policies and procedures. In March 2012, Aerospace notified
Foroudi that he would be laid off as part of the RIF.
Aerospace’s revenue from government contracts decreased
by nearly $36 million in fiscal year 2012, and it laid off 306 of its
4,000 employees in connection with the RIF. Of the 96 employees
that remained in Foroudi’s former division, one was in his 80’s,
two were in their 70’s, 17 were in their 60’s, 46 were in their 50’s,
24 were in their 40’s, and six were in their 30’s.
Aerospace did not hire anyone to replace Foroudi. Instead,
his position was eliminated and his remaining duties were given
to an existing employee in the Navigation division, Van Nuth.
Nuth is 14 years younger than Foroudi and, at the time, was a
4
“Level 2” engineer. Nuth, who has a doctorate in geophysics with
a concentration in satellite geodesy, joined the Navigation
division about a year after Foroudi. According to one of Nuth’s
supervisors, Alexander Polack, he was specifically chosen to join
the division to “address the most critical configuration item” for
the OCX program, called the “navigation configuration item.”
Polack described this as the “jewel[] of OCX and GPS.” Polack
considered Nuth to be an expert in GPS technology.
Foroudi’s DFEH Complaint and EEOC Charge
In January 2013, Foroudi filed a complaint with the
California Department of Fair Employment and Housing (DFEH)
alleging he experienced discrimination, harassment, and
retaliation because of his age, association with a member of a
protected class, family care or medical leave, national origin, and
religion. Foroudi did not allege any specific facts to support these
claims.
The next day, the DFEH provided Foroudi a letter stating
it was closing his case. The DFEH also informed Foroudi that
the letter served as a “Right-to-Sue Notice,” and he could now
pursue a civil action against Aerospace under the provisions of
the Fair Employment and Housing Act (FEHA).
More than a year later, Foroudi filed an amended DFEH
complaint, which alleged as follows: “I believe I was laid off from
my position . . . because of my religion (Muslim), my age (60 years
old), ancestry/national origin (Persian) as other younger, non-
Muslim, and non-Persian employees were not laid off. Other
Muslim employees were also laid off. . . . Prior to the notice of
employees being subjected to layoff within the next eight (8)
months, I received excellent employee evaluation and
commendations. After the notice of pending layoffs, [my
5
managers] began telling me that I was not following directives,
denied me the ability to choose certain hotels when traveling and
gave me low ranking grade which resulted in me being laid off.
I believe the layoff was pretext and discriminatory and due to my
protected basis (religion, age and ancestry/national origin).”
According to Foroudi, he also filed a charge of
discrimination with the federal Equal Employment Opportunity
Commission (EEOC) in January 2013. The charge, however, does
not appear in the record on appeal. In May 2014, the EEOC
issued Foroudi a right-to-sue letter.
Foroudi’s Civil Complaint
In August 2014, Foroudi and four other former Aerospace
employees filed a civil complaint in superior court against
Aerospace, alleging age discrimination in violation of the FEHA,
wrongful termination in violation of public policy, failure to
prevent discrimination, and unfair competition. The complaint
alleged Aerospace used the RIF as a pretext to hide its true and
illegal motivation to terminate Foroudi because of his age.
Further, it alleged the RIF had a disparate impact on employees
over the age of 50.
In January 2015, Foroudi and the other plaintiffs filed a
first amended complaint (FAC) to add a cause of action under the
federal Age Discrimination in Employment Act (ADEA). The
FAC also added class allegations.
Based on the new federal cause of action in the FAC,
Aerospace removed the case to federal court. While in federal
court, Aerospace moved to strike the disparate impact and class
allegations from the FAC. The district court granted the motion
in April 2015, finding Foroudi’s EEOC charge and DFEH
complaint did not express an intention to sue on behalf of a class
6
or include disparate impact allegations. As a result, Foroudi
failed to exhaust his administrative remedies with respect to
those allegations. After the court’s ruling, Foroudi dismissed
with prejudice his federal ADEA claim, and the matter was
remanded to the superior court.
Foroudi’s Attempts to Amend his EEOC Charge and DFEH
Complaint
Sometime around June 2015, Foroudi requested the EEOC
reconsider its right-to-sue notice and amend his charge to include
class allegations based on age discrimination. Five months later,
the EEOC informed him it was reopening his charge based on an
“administrative error.” The same day, the EEOC issued a new
right-to-sue letter, which included a claim that “workers over the
age of 40 are being discriminated and laid-off as a class.”
About five months later, in April 2016, Foroudi contacted
the DFEH to request it “correct documents” to comport with the
EEOC’s new right-to-sue letter. He also filed an amended DFEH
complaint, which included the following new allegations: “I
believe that employees over the age of 40, including myself, were
discriminated against and laid-off as a class. I further believe
that other employees and I were laid-off as part of a facially
neutral employment policy or practice, . . . [which] had a
disparate and disproportionate impact on employees over the age
of 40 being laid-off.”
In June 2016, the DFEH provided Foroudi a letter
confirming he had filed a complaint and had been interviewed by
one of its representatives. The letter told Foroudi he had to
approve the changes to the complaint before it could investigate
the allegations, which Foroudi did. The DFEH took no further
7
action on the complaint, and it did not issue a new right-to-sue
notice.
Foroudi’s Motion for Leave to File a Second Amended
Complaint
In August 2016, Foroudi moved for leave to file a second
amended complaint to add class and disparate impact claims
similar to those previously struck by the district court. He
argued an amendment was warranted in light of the fact that,
subsequent to the district court’s order, the EEOC and DFEH
had allowed him to amend his original charges of discrimination
to include class and disparate impact allegations.
Aerospace opposed the motion on the basis that
amendment would be futile because Foroudi failed to exhaust his
administrative remedies with respect to the new claims. It
argued the amended EEOC charge and right-to-sue letter were
not sufficient because (1) EEOC notices cannot exhaust claims
under the FEHA and (2) the EEOC lacked authority to allow the
amendment and issue the amended right-to-sue letter. Further,
it argued the amended DFEH complaint was untimely and
unauthorized.
In his reply, Foroudi urged the court to permit amendment
under equitable considerations given it was an EEOC
“administrative error” that caused any failure to exhaust his
administrative remedies.
The court denied Foroudi’s motion “for the reasons set forth
in [Aerospace’s] Opposition and as set forth in the transcript of
the hearing” on the motion.
Aerospace’s Motion for Summary Judgment
Aerospace subsequently moved for summary judgment on
the basis that Foroudi could not establish a prima facie case of
8
age discrimination or provide substantial evidence that
Aerospace’s reasons for the RIF and his inclusion in the RIF were
a pretext for age discrimination. In support, Aerospace
submitted evidence establishing the facts summarized above.
In opposition, Foroudi argued Aerospace’s discriminatory
intent was evident from the fact that (1) he was more experienced
and qualified than the younger employee who took over his work,
(2) statistics showed the RIF had a disparate impact on older
workers, (3) Aerospace did not rehire him after he was laid off;
and (4) his managers gave “shifting” reasons for selecting him for
the RIF.
In a declaration attached to the opposition, Foroudi claimed
Nuth lacked the “breadth of knowledge or leadership skills to
perform my job, and in fact Mr. Nuth was a Level 2 Engineer,
below my Level 3 Senior Engineer status, and also with fewer
responsibilities and less pay.” Foroudi claimed he was
responsible for giving Nuth “technical direction and task
assignments,” and he explained that, when travelling on business
with Nuth, he took the “lead in project and program meetings”
with representatives of the Air Force and a key contractor.
Foroudi also attempted to explain away his purported
deficiencies in interpersonal and communication skills, as well as
his claimed failure to adhere to travel policies.
Foroudi additionally submitted a declaration from Mark
Simpson, who is an Aerospace employee and served as the
president of the union to which Foroudi belonged. According to
Simpson, based on information provided to his office by
Aerospace, it was clear the RIF had a severe impact on workers
over the age of 50. In support, he cited statistics purportedly
showing older employees were selected for the RIF at a
9
significantly higher rate than would be expected from their RIF
priority ranking.
The trial court granted Aerospace’s motion for summary
judgment and entered judgment in its favor. Foroudi timely
appealed.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion in
Denying Leave to Amend
Foroudi contends the trial court erred in refusing to grant
him leave to amend his FAC to add class and disparate impact
claims. The federal district court previously struck similar
claims from the FAC on the basis that Foroudi’s original EEOC
charge and DFEH complaints did not sufficiently exhaust his
administrative remedies. Foroudi does not meaningfully
challenge the district court’s ruling on that issue. Instead, he
contends the trial court should have permitted him to reassert
the claims based on his subsequent amendments to his EEOC
charge in 2015 and DFEH complaint in 2016. We disagree.
A. Relevant Law
We review the denial of a motion for leave to amend for
abuse of discretion. (Royalty Carpet Mills, Inc. v. City of Irvine
(2005) 125 Cal.App.4th 1110, 1124.) “Generally, motions for
leave to amend are liberally granted.” (Ibid.) However, “leave to
amend should not be granted where, in all probability,
amendment would be futile.” (Vaillette v. Fireman’s Fund Ins.
Co. (1993) 18 Cal.App.4th 680, 685; see Royalty Carpet Mills, Inc.
v. City of Irvine, supra, 125 Cal.App.4th at p. 1124 [“When
amendment would be futile . . . , the trial court does not abuse its
discretion in denying . . . leave to amend.”].)
10
B. The 2015 Amended EEOC Charge
Foroudi’s primary contention is that the trial court should
have granted him leave to amend because the 2015 amendment
to the EEOC charge and the resulting EEOC right-to-sue notice
effectively exhausted his administrative remedies for purposes of
his proposed class and disparate impact claims. He argues that,
at the very least, there were numerous factual issues related to
the EEOC charge and notice that precluded the court from
finding he failed to exhaust his administrative remedies as a
matter of law. Alternatively, he contends equitable principles
support allowing amendment because, to the extent he failed to
exhaust his administrative remedies, it was due to EEOC’s
administrative error.
All of Foroudi’s arguments related to the EEOC charge and
right-to-sue notice suffer the same fatal flaw: the exhaustion of
EEOC remedies does not satisfy the exhaustion requirements for
state law claims. (Martin v. Lockheed Missiles & Space Co.
(1994) 29 Cal.App.4th 1718, 1726 (Martin).) Here, Foroudi
sought to add class and disparate impact claims that were
premised exclusively on alleged violations of state law.3 As a
result, all of his arguments related to the EEOC, including his
equitable arguments, are irrelevant.
The court in Martin, supra, 29 Cal.App.4th 1718, rejected a
nearly identical argument to the one Foroudi advances here.
In that case, the trial court granted summary judgment in favor
3 In his reply brief, Foroudi insists his proposed SAC sought
recovery under both state and federal law. Foroudi did not make
such a contention in the trial court or in his opening brief.
Presumably, that is because the proposed SAC was clearly
premised exclusively on state law.
11
of a defendant on the basis that she failed to exhaust her
administrative remedies with respect to a claim for sex
discrimination under the FEHA. (Id. at p. 1723.) The plaintiff
had previously filed a charge of age discrimination with the
EEOC, which the EEOC then referred to the DFEH. (Id. at
pp. 1724–1725.) The DFEH, in turn, issued a right-to-sue notice.
(Id. at p. 1725.) About a year later, the plaintiff amended her
EEOC charge to include a claim of sex discrimination, and the
EEOC issued a right-to-sue notice on the amended charge. (Ibid.)
The plaintiff did not file an amended charge with the DFEH, nor
did the state agency take any further action or issue an amended
right-to-sue notice. (Ibid.)
On appeal, the plaintiff argued the EEOC right-to-sue
notice was sufficient to exhaust her administrative remedies for
the sex discrimination claim under the FEHA. (Martin, supra,
29 Cal.App.4th at p. 1726.) The court disagreed, explaining that
“an EEOC right-to-sue notice satisfies the requirement of
exhaustion of administrative remedies only for purposes of an
action based on [federal law]. Inasmuch as [the plaintiff] elected
to base her action not on [federal law], but on the Fair
Employment and Housing Act, the EEOC right-to-sue notice
technically did not satisfy the jurisdictional requirement that
[the plaintiff] have exhausted her administrative remedies as to
the asserted violations of the California statute.” (Ibid.) The
same is true here. (See also Alberti v. City & County of San
Francisco Sheriff’s Dept. (N.D. Cal. 1998) 32 F.Supp.2d 1164,
1174 [“An EEOC right-to-sue letter does not satisfy the
jurisdictional requirement of exhaustion of remedies as to FEHA
claims.”].)
12
Foroudi insists Martin is distinguishable because, unlike
the plaintiff in that case, he also filed an amended DFEH
complaint and was subsequently interviewed by the DFEH.
Foroudi fails to explain, however, why these distinctions render
the EEOC charge and notice sufficient to exhaust his state law
claims. At most, they are relevant to whether he exhausted his
remedies with the DFEH, an issue we consider in the next
section.
Foroudi’s reliance on Ware v. Nicklin Assocs. (D.D.C. 2008)
580 F.Supp.2d 158 (Ware), is also misplaced. In that case, a
federal district court held that, pursuant to a work-share
agreement between the EEOC and the District of Columbia
Office of Human Rights, the issuance of an EEOC right-to-sue
letter afforded the plaintiff the right to pursue claims under both
federal law and the District of Columbia Human Rights Act.
(Id. at p. 164.) Foroudi does not point us to any provisions in the
work-share agreement between the EEOC and the DFEH that
would have the same effect. Ware, therefore, is inapposite.
C. The 2016 Amended DFEH Complaint
Foroudi alternatively suggests, albeit in passing, that his
second amended DFEH complaint sufficiently exhausted his
administrative remedies for purposes of his proposed class and
disparate impact claims. We disagree.
Before pursuing a civil action asserting violation of the
FEHA, an employee must file an administrative complaint with
the DFEH and obtain a right-to-sue letter from the agency.
(McDonald v. Antelope Valley Community College Dist. (2008)
45 Cal.4th 88, 106 (McDonald); Romano v. Rockwell Internat.,
Inc. (1996) 14 Cal.4th 479, 492 (Romano).) “Exhaustion of these
procedures is mandatory; an employee may not proceed in court
13
with a FEHA claim without first obtaining a right-to-sue letter.”
(McDonald, supra, at p. 106; see Romano, supra, 14 Cal.4th at
p. 492 [“The timely filing of an administrative complaint is a
prerequisite to the bringing of a civil action for damages under
the FEHA”].) Moreover, claims in the employee’s civil complaint
that fall outside the scope of the DFEH complaint are barred.
(Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1123.)
Foroudi seems to concede that his original and first
amended DFEH complaints did not exhaust his administrative
remedies with respect to any class and disparate impact claims.
Nonetheless, he suggests he remedied this oversight when he
filed his second amended DFEH complaint in 2016. That
amendment, however, came more than three years after the
DFEH had permanently closed his case and nearly two years
after he filed his civil complaint.4 Foroudi fails to point us to a
single case in which a plaintiff was found to have exhausted his
administrative remedies under similar circumstances. Likely,
this is because “ ‘ “[t]he basic purpose for the exhaustion doctrine
is to lighten the burden of overworked courts in cases where
administrative remedies are available and are as likely as the
judicial remedy to provide the wanted relief.” ’ ” (Sierra Club v.
San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th
489, 501.) That purpose would not be served if a plaintiff could
exhaust his administrative remedies by adding substantive new
allegations to an administrative complaint after the
administrative case had been closed and the plaintiff had already
filed a civil complaint, as Foroudi attempted to do here.
4 DFEH regulations provide that when the agency amends a
complaint in a closed case, it does not reopen the case. (Cal. Code
Regs., tit. 2, § 10022, subd. (e).)
14
Even if we were to overlook this issue, we would still
conclude the class and disparate impact allegations in Foroudi’s
second amended DFEH complaint were untimely. Foroudi does
not dispute that he filed the 2016 amendment well after the
statutory deadline to file a complaint with the DFEH. (See
former Gov. Code, § 12960, subd. (d) (Stats. 2005, ch. 642, § 1)
[an employee must file a DFEH complaint within one year of the
allegedly unlawful practice].) He insists, however, the
amendment was timely and effective because it relates back to
his earlier DFEH complaints.
Although neither party points us to any California
authority on the issue, in Rodriguez v. Airborne Express (9th Cir.
2001) 265 F.3d 890, the Ninth Circuit held “the relation-back
doctrine is available in appropriate circumstances to render
timely an otherwise untimely amendment to a charge under
FEHA.” (Id. at p. 898.) The court explained that, under the
relation-back doctrine, an otherwise untimely amendment that
asserts a new theory of recovery may be considered timely, but
only if the factual allegations in the original DFEH complaint are
“able to bear the weight of the new theory added by amendment.”
(Id. at p. 899.) Moreover, the “mere acceptance of an amendment
by DFEH is [not] conclusive that the amendment relates back.”
(Id. at p. 898.) Instead, the court must conduct a de novo
analysis of the issue, giving no weight to the fact that the DFEH
accepted the amendment. (Ibid.)
Here, Foroudi’s second amended DFEH complaint
essentially asserted new class and disparate impact theories of
recovery. For these new theories to be timely under the relation-
back doctrine, the factual allegations in the original and first
15
amended DFEH complaints must be able to bear their weight.5
We conclude they cannot.
There is a “distinction between claims of discrimination
based on disparate treatment and claims of discrimination based
on disparate impact.” (Raytheon Co. v. Hernandez (2003) 540
U.S. 44, 52.) In a disparate treatment claim, the employer simply
treats the employee less favorably because of a protected trait,
and liability depends on whether the protected trait actually
motivated the employer’s actions. (Ibid.) “By contrast, disparate-
impact claims ‘involve employment practices that are facially
neutral in their treatment of different groups but that in fact fall
more harshly on one group than another and cannot be justified
by business necessity.’ [Citation.]” (Id. at pp. 52–53.)
The factual allegations in Foroudi’s original and first
amended DFEH complaints could not support a disparate impact
theory of recovery. Foroudi’s original DFEH complaint failed to
include any specific factual allegations, let alone allegations to
even suggest Aerospace had a neutral policy that fell more
harshly on older employees. While the first amended DFEH
complaint added factual allegations, its gravamen was that
Foroudi’s managers engaged in disparate treatment
discrimination by specifically targeting him for the RIF. It
alleged, for example, that the managers “began telling [Foroudi]
that [he] was not following directives, denied [him] the ability to
choose certain hotels when traveling and gave [him] low ranking
grade which resulted in [him] being laid off. [The RIF] was
pretext and discriminatory and due to [his age].” Like the
original complaint, the first amended DFEH complaint did not
5 We assume for the sake of argument that Foroudi’s original
and first amended DFEH complaints were timely.
16
allege or even suggest any facially neutral policy that fell more
harshly on older employees. As such, neither complaint could
support a disparate impact theory of recovery.
Foroudi’s original and first amended DFEH complaints
likewise could not support class claims related to age
discrimination. Neither complaint alleged that Aerospace
discriminated against anyone other than Foroudi based on age.
In fact, the complaints did not even allege that a single other
employee in the protected age group was laid off as part of the
RIF. Foroudi insists his first amended DFEH complaint
specifically alleged that “workers over the age of 40 are being
discriminated and laid-off as a class.” He appears, however, to be
quoting from his 2015 first amended EEOC charge, not his 2014
first amended DFEH complaint.
Because Foroudi’s original and first amended DFEH
complaints cannot support class and disparate impact theories of
recovery, the new allegations in his second amended DFEH
complaint are untimely. As a result, Foroudi cannot show he
exhausted his administrative remedies with respect to his
proposed class and disparate impact claims. The trial court did
not abuse its discretion in denying Foroudi’s request to amend
the FAC to add such futile claims.
II. The Trial Court Did Not Err In Granting Aerospace’s
Motion for Summary Judgment
Foroudi contends the trial court erred in granting
Aerospace’s motion for summary judgment. We disagree.
A. Standard of Review
A defendant moving for summary judgment or summary
adjudication must show “that one or more elements of the cause
of action . . . cannot be established, or that there is a complete
17
defense to the cause of action.” (Code Civ. Proc., § 437c, subd.
(p)(2).) Summary judgment is appropriate where “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.” (Id., subd. (c).) Our Supreme Court has made
clear that the purpose of the 1992 and 1993 amendments to the
summary judgment statute was “ ‘to liberalize the granting of
[summary judgment] motions.’ ” (Perry v. Bakewell Hawthorne,
LLC (2017) 2 Cal.5th 536, 542 (Perry); Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 854.) It is no longer called a
“disfavored” remedy. Rather, it is “now seen as ‘a particularly
suitable means to test the sufficiency’ of the plaintiff’s or
defendant’s case.” (Perry, at p. 542.)
On appeal from a grant of summary judgment, we review
the record de novo, considering all the evidence set forth in the
moving and opposing papers except that to which objections were
made and sustained. (Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 334 (Guz).)
B. The Court Properly Sustained Aerospace’s
Objections to Exhibits Q, R, and S
Before turning to the merits of Aerospace’s motion, we
must consider Foroudi’s challenges to the trial court’s evidentiary
rulings. Although we review a summary judgment motion de
novo, we review evidentiary rulings made in connection with the
motion for abuse of discretion. (Great American Ins. Cos. v.
Gordon Trucking, Inc. (2008) 165 Cal.App.4th 445, 449.)
Foroudi contends the trial court erred in sustaining
Aerospace’s objections to three exhibits—Exhibits Q, R, and S—
that he submitted in opposition to the motion for summary
18
judgment.6 The first, Exhibit Q, consists of numerous tables
containing statistics related to the RIF, including the ages,
genders, and bin rankings of employees who were subject to the
RIF, as well as “hypergeometric evaluations” of the data.
The two other exhibits, Exhibits R and S, consist of bar charts
purporting to visualize statistics related to the RIF.
Foroudi attempted to lay the foundation for Exhibit Q
through the declaration from Mark Simpson, who served as the
president of Foroudi’s union. According to Simpson, Aerospace’s
HR Department provided his union office data related to the RIF,
and Exhibit Q is a “tabulation” of that data.7 Simpson did not
identify who prepared Exhibit Q. Nor did he attempt to lay a
foundation for Exhibits R and S.
Aerospace objected to all three exhibits on numerous
grounds, including relevance, lack of foundation, and hearsay.8
6 In his reply brief, Foroudi insists the trial court did not
actually sustain Aerospace’s objections to Exhibits R and S. In
addition to being completely inconsistent with his opening brief—
in which he contends “the trial court erred and abused its
discretion in sustaining the objections to . . . Exhibit #Q, R and
S”—the argument is untimely. Accordingly, we decline to
consider it. (See Reichardt v. Hoffman (1997) 52 Cal.App.4th
754, 764–765.)
7 Foroudi and his attorney submitted declarations in which
they suggested Aerospace provided Exhibit Q to the union.
Neither Foroudi nor his attorney, however, provided a foundation
for such claims, which are inconsistent with Simpson’s
declaration.
8 Aerospace did not specifically object to Exhibit Q on
hearsay grounds. However, it did assert a hearsay objection to
19
The trial court sustained the objections, but it did not specify the
grounds on which it relied.
Foroudi now contends Aerospace waived its objections by
failing to request the trial court clarify the basis for its ruling.
We are aware of no authority, and Foroudi provides none, for
such a proposition. Foroudi cites Carnes v. Superior Court (2005)
126 Cal.App.4th 688, 694, in support of his argument, but that
case did not involve this issue. Accordingly, we reject Foroudi’s
claim that Aerospace waived its objections.
Turning to the merits, we conclude the trial court did not
abuse its discretion in sustaining Aerospace’s hearsay objections
to Exhibits Q, R, and S. Foroudi does not dispute that the
exhibits contain out-of-court statements offered for the truth of
the matters asserted therein. As such, they were properly
excluded under the hearsay rule. (Evid. Code, § 1200, subd. (a).)
We reject Foroudi’s brief suggestion that the exhibits
should have been admitted as party admissions because they
were based on data provided by Aerospace. Although Foroudi
may have been able to introduce the underlying data under such
an exception, it does not extend to the exhibits themselves, which
are statistical analyses of that data created by unidentified
persons.
C. Foroudi Failed to Create a Triable Issue of Fact
We now turn to the merits of Aerospace’s motion for
summary judgment.
California resolves employment discrimination claims by
applying a burden-shifting procedure. Under this test, the
plaintiff bears the initial burden of proving a prima facie case of
Foroudi’s Exhibit K, which is identical to Exhibit Q. Foroudi does
not raise this as an issue.
20
discrimination by presenting evidence showing: (1) he was a
member of a protected class, (2) he was qualified for the position
sought or was performing competently in the position held, (3) he
suffered an adverse employment action, and (4) some other
circumstance suggests a discriminatory motive. (Guz, supra, 24
Cal.4th at pp. 354–355.)
Once the employee sets forth a prima facie case, the burden
shifts to the employer to present evidence of a legitimate,
nondiscriminatory reason for the adverse employment action.
(Guz, supra, 24 Cal.4th at pp. 355–356.) If the employer does so,
the burden then shifts back to the employee to “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.” (Hersant v.
Department of Social Services (1997) 57 Cal.App.4th 997, 1004–
1005 (Hersant).)
“Although an employee’s evidence submitted in opposition
to an employer’s motion for summary judgment is construed
liberally, it ‘remains subject to careful scrutiny.’ [Citation.] The
employee’s ‘subjective beliefs in an employment discrimination
case do not create a genuine issue of fact; nor do uncorroborated
and self-serving declarations.’ [Citation.] The employee’s
evidence must relate to the motivation of the decision makers and
prove, by nonspeculative evidence, ‘an actual causal link between
prohibited motivation and termination.’ ” (Featherstone v.
Southern California Permanente Medical Group (2017) 10
Cal.App.5th 1150, 1159.) Moreover, the “stronger the employer’s
showing of a legitimate, nondiscriminatory reason, the stronger
21
the plaintiff’s evidence must be in order to create a reasonable
inference of a discriminatory motive.” (Ibid.)
We will assume, purely for the sake of argument, that
Foroudi met his initial burden of establishing a prima facie case
of discrimination. The burden, therefore, shifted to Aerospace to
demonstrate it had a legitimate, nondiscriminatory reason for
Foroudi’s termination to overcome the presumption of
discrimination.
Foroudi does not contest that Aerospace met its burden, nor
could he. Aerospace submitted evidence showing it instituted the
company-wide RIF after learning it faced potentially severe cuts
to its funding. Its evidence further shows that, using
standardized criteria, Foroudi’s managers selected him for the
RIF because he was one of the lowest ranked employees in his
division, he did not have a strong background in scientific,
algorithmic applications for GPS navigation, and he had received
prior counseling regarding deficiencies in his interpersonal and
communication skills and failure to adhere to company travel
policies and procedures. These are legitimate, nondiscriminatory
reasons explaining the termination and are sufficient to shift the
burden back to Foroudi. (See Martin, supra, 29 Cal.App.4th at
pp. 1731–1732 [employer met its burden by producing evidence
that an employee was terminated as part of a company-wide
reduction in force as a result of adverse economic conditions].)
In light of Aerospace’s showing, Foroudi could avoid
summary judgment only by offering “substantial evidence” that
Aerospace’s reasons were untrue or pretextual, or that it acted
with a discriminatory animus, or both, “such that a reasonable
trier of fact could conclude the employer engaged in intentional
22
discrimination.” (Hersant, supra, 57 Cal.App.4th at pp. 1004–
1005.)
Foroudi contends he met this burden by submitting
evidence showing his job duties were given to Nuth, who is
fourteen years his junior and less qualified to perform those
duties. Foroudi overlooks, however, that he was not simply
replaced by Nuth. Rather, the undisputed evidence shows
Aerospace eliminated Foroudi’s position and gave his duties to
Nuth. Aerospace, in other words, essentially created a new
position that combined Foroudi’s and Nuth’s former duties. It is
not enough, therefore, for Foroudi to show he was more qualified
than Nuth for his former position. Instead, to raise an inference
of discrimination, he must show, at the very least, that he was as
qualified as Nuth for the new, combined position. Foroudi makes
no attempt to do so.
Foroudi further suggests he raised an inference of
discrimination by showing Aerospace gave false reasons for
retaining Nuth. Specifically, he insists his evidence shows Polack
falsely claimed in a declaration that Nuth has a doctorate in
“GPS” as well as “technical and leadership experience in GPS.”
Even if that were true, which is far from clear,9 it is irrelevant
9 To support his claim, Foroudi points to Nuth’s testimony
that he has a doctorate in “geophysics with a concentration in
satellite geodesy,” and he did not lead certain tasks while
working in the Navigation division in 2011. Contrary to
Foroudi’s suggestions, Nuth’s testimony does not disprove
Polack’s assertions. Initially, it is not self-evident that it would
be inaccurate to describe Nuth’s doctorate as being in “GPS.”
Moreover, the fact that Nuth did not lead certain tasks in 2011
does not prove he categorically lacks “technical and leadership
experience in GPS.”
23
because Polack never claimed in his declaration that these were
the reasons Aerospace retained Nuth.
Foroudi next argues he met his burden by presenting
statistical evidence showing the RIF “had a severe impact
primarily on workers over 50 years of age.” Although far from
clear, we presume he is referring to Exhibits Q, R, and S, which,
as we discussed above, the trial court properly excluded. But
even if the statistical evidence were admissible, it is not sufficient
to raise an inference of discrimination.
Although statistical evidence may be utilized in disparate
treatment cases, “because discriminatory intent must be shown
in such a case, statistical evidence must meet a more exacting
standard. ‘[T]o create an inference of intentional discrimination
statistics must demonstrate a significant disparity and must
eliminate nondiscriminatory reasons for the apparent disparity.’
[Citation.]” (Life Technologies Corp. v. Superior Court (2011) 197
Cal.App.4th 640, 650 disapproved of on other grounds by
Williams v. Superior Court (2017) 3 Cal.5th 531.)
Here, the statistical evidence on which Foroudi relies
reflects the ages, genders, and bin rankings of Aerospace
employees before and after the RIF. It does not account for age-
neutral factors that were considered in connection with the RIF,
such as an employee’s experience, performance, and the
anticipated future need for the employee’s skills. As such, the
statistical evidence does not eliminate nondiscriminatory reasons
for any apparent disparities, and does not meet the more exacting
standard required to raise an inference of discrimination in a
disparate treatment case.
24
Foroudi further contends he met his burden by submitting
evidence showing his purported deficiencies in interpersonal
skills and communication—which his managers cited as a reason
for his inclusion in the RIF—were insignificant and did not lead
to any corrective action. Even assuming that were true, because
Foroudi was laid off as part of a company-wide reduction in force,
the fact that he was terminated for minor issues alone does not
raise an inference of age discrimination. Instead, he would have
to show that younger employees with comparable issues, and who
were otherwise similarly situated, were not selected for the RIF.
Foroudi does not even attempt to make such a showing.
Foroudi briefly asserts three additional arguments, all of
which lack merit. First, he contends he met his burden by
raising a triable issue as to whether the RIF was necessary.
In support, he relies on Simpson’s declaration that Aerospace’s
accounting information shows the company had enough funding
to support the workforce through fiscal year 2012. Simpson’s lay
opinion, based on undisclosed accounting information, is not
sufficient to raise a triable issue.10
Next, Foroudi points to evidence showing he was previously
employed by Boeing as the equivalent of a “Level 4” engineer, yet
no Level 4 engineers at Aerospace were subject to the RIF. It is
undisputed, however, that Foroudi was a Level 3 engineer at the
time of the RIF, and he does not claim Aerospace failed to
promote him due to his age. His position with a former employer,
therefore, is irrelevant.
Finally, Foroudi points to evidence that he never personally
observed an employee over 60 years of age being promoted at
10 Foroudi admits Simpson was not providing an expert
opinion.
25
Aerospace. Foroudi’s limited personal observations have minimal
probative value and are far too weak to raise an inference of
discrimination, even when considered with his other evidence.
(See McGrory v. Applied Signal Technology, Inc. (2013) 212
Cal.App.4th 1510, 1537 [employee’s evidence of discrimination
must be sufficiently probative to support a finding in his favor
based on more than mere speculation, conjecture, or fantasy].)
In sum, we do not find Foroudi’s evidence sufficient to
withstand summary judgment. “[G]iven the strength of the
employer’s showing of innocent reasons, any countervailing
circumstantial evidence of discriminatory motive, even if it may
technically constitute a prima facie case, is too weak to raise a
rational inference that discrimination occurred.” (Guz, supra, 24
Cal.4th at p. 362.)11
DISPOSITION
The judgment is affirmed. Aerospace is awarded its costs
on appeal.
CERTIFIED FOR PUBLICATION
BIGELOW, P. J.
We concur:
GRIMES, J. WILEY, J.
11 To the extent Foroudi attempts to identify additional
disputed issues of material fact or raises other new issues in his
reply brief, his arguments are untimely and we decline to
consider them. (See Reichardt v. Hoffman, supra, 52 Cal.App.4th
at pp. 764–765.)
26