Filed 1/27/14 Messina v. Escondido Union High School Dist. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CONSTANCE J. MESSINA, D061487

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2010-00056390-

CU-WT-NC)

ESCONDIDO UNION HIGH SCHOOL

DISTRICT et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of San Diego County,

Jacqueline M. Stern, Judge. Affirmed.

The Law Firm of Shane C. Brengle and Shane Brengle for Plaintiff and Appellant.

Stutz Artiano Shinoff & Holtz, Daniel R. Shinoff and Paul V. Carelli IV, for

Defendants and Respondents.

Constance J. Messina appeals from summary judgment in favor of the Escondido

Union High School District (District) on her complaint for, among other causes of action,

age discrimination and failure to reasonably accommodate her disability in violation of California's Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.)

She contends the trial court improperly excluded certain evidence she offered in

opposition to the District's summary judgment motion. She further contends her evidence

raised triable issues of material fact as to (1) whether the District's stated reasons for not

rehiring her after her probationary period were pretextual, and (2) whether the District's

accommodations of her disability were timely. We agree the court erred in excluding

some of Messina's evidence. However, even after considering the improperly excluded

evidence, we conclude the court correctly determined the District was entitled to

summary judgment. We, therefore, affirm the judgment.

BACKGROUND1

Age Discrimination Claim

When Messina was 59 years old, the District hired her on a probationary basis as a

high school counselor. Under the terms of her employment, the District could discharge

her during her probationary period for any nondiscriminatory reason.

1 We base our factual summary on the evidence that was both admitted by the trial court and included in the appellate record. Except as noted in part I of our discussion, post, we did not consider any evidence excluded by the superior court or any of the exhibits Messina lodged with the superior court because Messina did not provide the exhibits to us. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2013) ¶ 4:4.2, p. 4-3 ["Appellant cannot argue that trial exhibits (whether admitted into evidence, rejected or lodged) undermine the judgment when those exhibits are not transmitted to the appellate court"], citing Hiser v. Bell Helicopter Textron Inc. (2003) 111 Cal.App.4th 640, 656-657; Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 291.)

2 Eight months after the District hired Messina, the head counselor sent then

principal Diego Ochoa a letter complaining about Messina's unprofessional and

aggressive behavior. Some of the behavior dated back to the beginning of Messina's

employment with the District. The head counselor stated Messina rudely interrupted her

during a counseling meeting, snapped her fingers at her and told her to rush through her

presentation. Messina stated in a declaration the head counselor's complaints were later

dismissed as unsubstantiated, but Messina admitted during her deposition she spoke to

the head counselor in an unpleasant tone and snapped her fingers during the presentation.

According to Messina, she was trying to express the concept of rapid succession and to

get the head counselor to move along the presentation. Messina believed the head

counselor felt disrespected because the head counselor was a former gang member and

was easily offended.

The same month, Ochoa evaluated Messina's performance. The performance

evaluation included both commendations and recommendations and rated Messina as not

meeting the District's standards. Messina agreed with the commendations, but not the

recommendations or the rating.

About eight months later, an employee complained to Ochoa's successor, Robert

Clay,2 that Messina had been taking extended lunch breaks. Clay sent Messina an e-mail

informing her of the complaint. He later gave Messina a formal written warning about

2 Clay was a named defendant below, but he was not a party to any of the causes of action at issue in this appeal.

3 taking extended lunch breaks. Messina denied taking extended lunch breaks, except on

one occasion for a doctor's appointment. She acknowledged, however, if the allegation

were true, it would not have been inappropriate for Clay to send the e-mail to her. She

also acknowledged Clay actually believed she had been taking extended lunch breaks.

A couple of months later, a special education administrator sent an e-mail to

Messina indicating Messina inappropriately referred a student to special education

without first utilizing lower level interventions as required by the school's policy. After

Messina made another inappropriate referral, the administrator sent an e-mail to Clay

expressing concern about Messina's professionalism and ethics. In particular, the

administrator believed Messina's actions "undermined the professional direction provided

by our professional school psychologist." Clay subsequently reprimanded Messina for

making inappropriate referrals. Although Messina believed her referrals were

appropriate because she followed protocol and because the students she referred were

extreme cases, she acknowledged Clay actually believed otherwise.

Around the same time, Clay evaluated Messina's performance. Like Ochoa's

evaluation, Clay's evaluation included both commendations and recommendations. It

also rated Messina as not meeting the District's standards. Messina agreed with the

commendations, but not the recommendations or the rating. Nonetheless, she

acknowledged Clay actually believed her performance was not moving "in an acceptable

and progressive manner."

A month later, Clay observed and evaluated one of Messina's counseling sessions.

The evaluation contained both commendations and recommendations. It also detailed

4 Clay's concerns about Messina's actions during the session. Among these concerns,

Messina did not recommend the student enroll in a second semester of English, which is

counter to the routine practice of the other counselors and the school administration's

expectations. In addition, Messina played loud, baroque music during the counseling

session and did not make any follow-up commitment to talk with the student's parent

after learning the parent had not received certain information in the mail. Messina agreed

with the commendations in the evaluation, but she thought the identified concerns were

nitpicking.

Three months later, near the end of Messina's probationary period and the day

before Messina turned 61, the District notified her it had decided not to rehire her for the

following school year. According to Messina, the stated reasons for the District's

decision were she was not a team player, she was hard to get along with, she did not

support the head counselor, and she had taken extended lunch breaks every day during

one month. Although Messina did not believe the stated reasons were true, she

acknowledged any of them would be grounds for not rehiring her if they had been true.

Messina believed the District's decision amounted to age discrimination because,

while the District elected not to rehire her, it elected to retain all of the younger

probationary counselors. Messina acknowledged, however, she did not know whether the

younger counselors had had any unfavorable performance evaluations or disciplinary

actions.

In addition, in Messina's view, Clay treated the younger counselors more amiably,

implemented more of their suggestions, and invited them to meetings from which

5 Messina and Vilma Everette, another older counselor, were excluded. He also gave them

additional responsibilities with additional pay.

Moreover, Messina believed age discrimination was implied in the various

remarks made about her job performance and ability to get along with others. She

explained throughout her deposition why she believed her superiors were mistaken in

their views about her performance and provided declarations to support her position.

She, nonetheless, acknowledged her superiors actually perceived she was not a team

player, was hard to get along with, and did not cooperate with other counselors.

As further support for her age discrimination claim, Messina provided a

declaration from Everette stating Clay referred to the other counselors as "the young

ones" when speaking to Messina and Everette. Everette additionally accused others

working for Clay of making ageist remarks, including the head counselor, who

purportedly blamed Everette's forgetfulness on Everette's age, and the vice principal, who

purportedly commented that older people could not do the same things as younger people

and the school needed to have younger people because the older people would not always

be around. Everette and a union representative also related anecdotes of older employees

being reassigned to less favorable positions ostensibly because of their age.

Failure to Reasonably Accommodate Claim

According to Messina, 90 percent of her work involved sitting and typing. During

her second year with the District, Messina complained about wrist pain and asked for

wrist supports. Within two weeks, the District performed an ergonomic assessment of

her workstation and raised her computer to eye level. The following month, the District

6 provided her with an ergonomic chair and sometime later it provided her with a document

tray. Messina testified at her deposition these were reasonable accommodations.

The same month the District performed the ergonomic assessment, Messina went

to a doctor who eventually diagnosed her with carpal tunnel syndrome. The doctor

restricted her typing to two hours in the morning and two hours in the afternoon. The

District accepted the restriction. Seven months after her doctor imposed the restriction,

Messina was required to work overtime some evenings and the District provided her with

clerical support. The clerical support continued for approximately a month until Messina

went on medical leave to have surgery. Messina testified at her deposition these were

reasonable accommodations as well.

DISCUSSION

"On appeal after a motion for summary judgment has been granted, we review the

record de novo, considering all the evidence set forth in the moving and opposition

papers except that to which objections have been made and sustained. [Citation.] Under

California's traditional rules, we determine with respect to each cause of action whether

the defendant seeking summary judgment has conclusively negated a necessary element

of the plaintiff's case, or has demonstrated that under no hypothesis is there a material

issue of fact that requires the process of trial, such that the defendant is entitled to

judgment as a matter of law." (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334

(Guz).)

7 I

Rulings on Evidentiary Objections

Preliminarily, we address Messina's contention the court erred in sustaining

objections to portions of declarations she and Everette submitted in opposition to the

summary judgment motion.3 "Evidence submitted for or against a motion for summary

judgment must be admissible if being offered at trial." (Kincaid v. Kincaid (2011) 197

Cal.App.4th 75, 82.) Although the California Supreme Court has not decided the matter

(Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535), the majority view is that an appellate

court reviews the trial court's evidentiary rulings on summary judgment for abuse of

discretion. (Kincaid v. Kincaid, supra, at pp. 82-83.) If we determine any evidence was

improperly excluded, we consider the evidence in reviewing the correctness of the court's

summary judgment ruling. (See, e.g., Nazir v. United Airlines, Inc. (2009) 178

Cal.App.4th 243, 257.)

A

Objections to Messina's Declaration

1

In reference to the complaint about her taking extended lunch breaks, Messina

stated in her declaration she was late coming back from a doctor's appointment one time.

She also stated it was the only instance during her entire employment with the District in

3 The District raised over 300 evidentiary objections below. The court sustained most of them, substantially narrowing the evidentiary record on appeal.

8 which she was late coming back from lunch. The District objected to statements on the

ground they contradicted Messina's deposition testimony, and the court sustained the

objection.

The parties agreed a court deciding a summary judgment motion may disregard a

party's declaration statement if the statement contradicts the party's deposition testimony.

(D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22 (D'Amico); Benavidez v.

San Jose Police Dept. (1999) 71 Cal.App.4th 853, 860.) However, Messina contends the

court erred in sustaining the District's objection in this instance because her declaration

statements were not inconsistent with her deposition testimony. The District concedes

the error.

2

Messina stated in her declaration that during her second year with the District,

"[m]any of the older staff members, including counselors, were replaced with younger

models." The District objected to this statement on the grounds it lacked foundation and

called for speculation. The District also objected to this statement on the grounds it was

vague, ambiguous, and unintelligible as to "many." The court sustained the objections on

lack of foundation, speculation, and relevancy grounds.

Messina contends the court erred in sustaining the District's objections because her

statement was based on her personal knowledge. We disagree.

Relevant evidence is evidence tending in reason to prove or disprove a disputed

material fact. (Evid. Code, § 210; People v. Lewis (2001) 25 Cal.4th 610, 639-640.)

Conversely, evidence is not relevant if it has a tendency to prove or disprove a disputed

9 material fact only by resort to speculative or conjectural inferences or deductions.

(People v. Parrison (1982) 137 Cal.App.3d 529, 539.)

As the District points out, Messina's statement suggests the District terminated

older employees to make way for younger ones. However, Messina's declaration

contains no foundational facts showing she had personal knowledge of older workers

being terminated or that their age was the reason for their termination (as opposed to

retirement, job changes, or other neutral circumstances). Absent such foundation, any

inference to be drawn from Messina's statement is speculative and irrelevant. Thus, the

court properly sustained the District's objections to the statement.

3

Messina stated in her declaration she had received what she considered to be

reasonable accommodations, but the accommodations did not happen right away and she

did not receive clerical support until more than seven months after she developed carpal

tunnel syndrome and her doctor restricted her typing. The District objected to this

statement on the grounds it was improper opinion testimony and contradicted her earlier

deposition testimony. The court sustained the objection on both grounds.

Messina contends the court erred in sustaining the objections as to the portion of

the statement dealing with the timing of the accommodations because this portion was

not an opinion and she never testified about the timing of the accommodations during her

deposition. We agree.

As previously noted, when deciding a summary judgment motion, a court may

disregard a party's declaration statement if the statement contradicts the party's deposition

10 testimony. (D'Amico, supra, 11 Cal.3d at p. 22; Benavidez v. San Jose Police Dept.,

supra, 71 Cal.App.4th at p. 860.) Sometimes referred to as the D'Amico rule, this rule is

"limited to instances where 'credible [discovery] admissions . . . [are] contradicted only

by self-serving declarations of a party.' [Citations.] In a nutshell, the rule bars a party

opposing summary judgment from filing a declaration that purports to impeach his or her

own prior sworn testimony." (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th

1510, 1521-1522.)

While Messina testified at her deposition she believed the accommodations the

District ultimately provided her were reasonable, it does not appear the District's counsel

ever asked her whether she believed the District provided the accommodations in a

timely manner, even though untimeliness was one of the bases for her failure to

reasonably accommodate claim. To the contrary, when she started to testify about how

long it took the District to provide the accommodations, the District's counsel redirected

the questioning away from the issue. Accordingly, we cannot conclude the challenged

statement in her declaration amounted to an impeachment of her deposition testimony.

Moreover, the District did not challenge and the court did not exclude other

statements in Messina's declaration about the timing of the District's accommodations.

Nonetheless, the court apparently ignored this evidence because the court did not discuss

it in its ruling and instead granted the District's summary judgment motion as to

Messina's failure to reasonably accommodate claim based solely on Messina's deposition

testimony. The D'Amico rule "does not countenance ignoring other credible evidence

that contradicts or explains that party's answers or otherwise demonstrates there are

11 genuine issues of factual dispute." (Scalf v. D.B. Log Homes, Inc., supra, 128

Cal.App.4th at p. 1525.)

Further, whether an employer failed to reasonably accommodate an employee is a

predominantly legal question because it "requires a critical consideration, in a factual

context, of legal principles and their underlying values." (Haworth v. Superior Court

(2010) 50 Cal.4th 372, 384.) The D'Amico rule does not control where the purported

contradiction involves a legal question. (See, e.g., R.J. Land & Associates Construction

Co. v. Kiewit-Shea (1999) 69 Cal.App.4th 416, 427, fn. 4; Niederer v. Ferreira (1987)

189 Cal.App.3d 1485, 1503.)

4

Messina stated in her declaration she "felt intimidated, harassed, and threatened

with job loss and humiliation in making special education referrals" during her

employment with the District. The District objected to the statement on the grounds it

lacked foundation and called for speculation. The District also objected on the ground

the statement was improper opinion testimony. The court sustained the objections on all

grounds.

Messina contends the court erred in sustaining the objections because the

statement was of her own perception and state of mind. The District counters the

statement lacks foundation and is speculative because it is merely an allegation of

harassment and not evidence of harassment. We need not address the matter because

Messina did not appeal the court's ruling on her harassment claim and she does explain

12 how this evidence relates to her age discrimination or failure to reasonably accommodate

claims.

B

Objections to Everette's Declaration

1

Everette stated in her declaration, "On at least one occasion, [Clay] stated that he

wants to bring in 'young blood.' " The District objected to the statement on the grounds it

was irrelevant, it was hearsay, and it was inadmissible character evidence. The District

also objected on the grounds the statement was vague, ambiguous, and unintelligible as to

"young blood." The court sustained the objection on the hearsay ground.

Messina contends the court erred in sustaining the objection because the statement

was not offered for its truth and, therefore, was not hearsay. However, in the context of

this case, the statement would have served little purpose if it was not offered for its truth.

Alternatively, Messina contends the statement falls within the "then existing state

of mind" exception to the hearsay rule. (Evid. Code, § 1250, subd. (a)(2).) We agree.

For purposes of this exception, "a statement of state of mind is one that (1) reflects the

declarant's mental state, and (2) is offered, among other purposes, to prove the declarant's

conduct (Evid. Code, § 1250, subd. (a)(2)), including the declarant's future conduct in

accordance with his or her expressed intent [citations], unless the statement was made

under circumstances indicating lack of trustworthiness (Evid. Code, § 1252; see id.,

§ 1250, subd. (a).)" (People v. Griffin (2004) 33 Cal.4th 536, 578, disapproved of on

another point by People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32.) Because the

13 statement reflects Clay's mental state and was offered to prove his conduct, and because

there is no indication the statement was made under circumstances rendering it

untrustworthy, the statement was admissible under the "then-existing state of mind

exception" and the court erred in sustaining the District's hearsay objection to it.

2

Everette stated in her declaration Clay would frequently refer to her and Messina

"as 'you and your buddy' and would make statements such as 'you and your buddy have

declared war.' " The District objected to the statement on the ground it was irrelevant.

The court sustained the objection.

Messina contends the court erred in sustaining the objection because the statement

showed Clay was hostile to two older workers. However, as the District points out, the

statement was without context and, on its face, it has nothing to do with Messina's age or

disability. At most, the statement shows Clay may have disliked Messina and Everette,

but it does not show the dislike was due to their age or Messina's disability. Any such

inference would be entirely speculative. The statement, therefore, had no tendency to

prove or disprove any material fact in this case (Evid. Code, § 210) and the court properly

sustained the District's objection.

3

Everette stated in her declaration that the head counselor "often spoke of the

counselors' ages and devalued them on the basis of their age. She continues to call me

old or ask me if I need glasses." The District objected to the statement on the grounds it

14 lacked foundation, called for speculation, and was irrelevant. The court sustained the

lack of foundation and speculation objections.

Messina contends the court erred in sustaining the objection as to the portion of

the statement accusing the head counselor of calling Everette old or asking her if she

needed glasses because the statement was within Everette's personal knowledge and

showed the head counselor's personal animus against older employees. The District did

not directly respond to these contentions and instead asserted this portion of Everette's

statement was irrelevant because there is no evidence the head counselor was a decision

maker as to Messina's employment. The court, however, implicitly overruled the

District's relevancy objection and correctly so. "An age-based remark not made directly

in the context of an employment decision or uttered by a nondecision maker may be

relevant, circumstantial evidence of discrimination." (Reid v. Google, Inc., supra, 50

Cal.4th at p. 539.) Thus, a court properly considers evidence of alleged discriminatory

remarks by decision makers and coworkers in determining whether a defendant is entitled

to summary judgment. (Id. at p. 545.)

II

Age Discrimination Claim

FEHA makes it unlawful for an employer to discriminate against an employee

who is 40 or older because of the employee's age. (Gov. Code, §§ 12926, subd. (b),

12940, subd. (a).) "California has adopted the three-stage burden-shifting test established

by the United States Supreme Court [in McDonald Douglas Corp. v. Green (1973) 411

U.S. 792, 802-805] for trying claims of discrimination, including age discrimination,

15 based on a theory of disparate treatment. [Citations.] [¶] This so-called McDonnell

Douglas test reflects the principle that direct evidence of intentional discrimination is

rare, and that such claims must usually be proved circumstantially. Thus, by successive

steps of increasingly narrow focus, the test allows discrimination to be inferred from facts

that create a reasonable likelihood of bias and are not satisfactorily explained.

"At trial, the McDonnell Douglas test places on the plaintiff the initial burden to

establish a prima facie case of discrimination. This step is designed to eliminate at the

outset the most patently meritless claims, as where the plaintiff is not a member of the

protected class or was clearly unqualified, or where the job he sought was withdrawn and

never filled. [Citations.] While the plaintiff's prima facie burden is 'not onerous'

[citation], he must at least show ' "actions taken by the employer from which one can

infer, if such actions remain unexplained, that it is more likely than not that such actions

were 'based on a [prohibited] discriminatory criterion . . . .' [Citation]." [Citation.]'

[Citations.]"

"The specific elements of a prima facie case may vary depending on the particular

facts. [Citations.] Generally, the plaintiff must provide evidence that (1) he was a

member of a protected class, (2) he was qualified for the position he sought or was

performing competently in the position he held, (3) he suffered an adverse employment

action, such as termination, demotion, or denial of an available job, and (4) some other

circumstance suggests discriminatory motive. [Citations.]

"If, at trial, the plaintiff establishes a prima facie case, a presumption of

discrimination arises. [Citations.] This presumption, though 'rebuttable,' is 'legally

16 mandatory.' [Citations.] Thus, in a trial, '[i]f the trier of fact believes the plaintiff's

evidence, and if the employer is silent in the face of the presumption, the court must enter

judgment for the plaintiff because no issue of fact remains in the case.' [Citations.]

"Accordingly, at this trial stage, the burden shifts to the employer to rebut the

presumption by producing admissible evidence, sufficient to 'raise[] a genuine issue of

fact' and to 'justify a judgment for the [employer],' that its action was taken for a

legitimate, nondiscriminatory reason. [Citations.] [¶] If the employer sustains this

burden, the presumption of discrimination disappears. [Citations.] The plaintiff must

then have the opportunity to attack the employer's proffered reasons as pretexts for

discrimination, or to offer any other evidence of discriminatory motive. [Citations.] In an

appropriate case, evidence of dishonest reasons, considered together with the elements of

the prima facie case, may permit a finding of prohibited bias. [Citations.] The ultimate

burden of persuasion on the issue of actual discrimination remains with the plaintiff."

(Guz, supra, 24 Cal.4th at pp. 354-356, fns. omitted.)

When moving for summary judgment, an employer may proceed directly to the

second prong of the McDonald Douglas test and present competent, admissible evidence

showing it took the challenged action for legitimate, not discriminatory reasons. (Guz,

supra, 24 Cal.4th at p. 357.) The employer's reasons need not have been wise or correct.

Rather, " 'legitimate' reasons [citation] in this context are reasons that are facially

unrelated to prohibited bias, and which, if true, would thus preclude a finding of

discrimination." (Id. at p. 358.)

17 The plaintiff then has the burden of rebutting the employer's showing "by pointing

to evidence which nonetheless raises a rational inference that intentional discrimination

occurred." (Guz, supra, 24 Cal.4th at pp. 357, 361.) "[A]n inference of intentional

discrimination cannot be drawn solely from evidence, if any, that the company lied about

its reasons. The pertinent statutes do not prohibit lying, they prohibit discrimination.

[Citation.] Proof that the employer's proffered reasons are unworthy of credence may

'considerably assist' a circumstantial case of discrimination, because it suggests the

employer had cause to hide its true reasons. [Citation.] Still, there must be evidence

supporting a rational inference that intentional discrimination, on grounds prohibited by

the statute, was the true cause of the employer's actions." (Id. at pp. 360-361.) "[A]n

employer is entitled to summary judgment if, considering the employer's innocent

explanation for its actions, the evidence as a whole is insufficient to permit a rational

inference that the employer's actual motive was discriminatory." (Id. at p. 361.) Thus,

"even after the plaintiff has presented prima facie evidence sufficient to establish an

inference of prohibited discrimination in the absence of explanation, and has also

presented evidence that the employer's innocent explanation is false, the employer is

nonetheless necessarily entitled to judgment as a matter of law unless the plaintiff

thereafter presents further evidence that the true reason was discriminatory." (Ibid.)

" 'Whether judgment as a matter of law is appropriate in any particular case will

depend on a number of factors. These include the strength of the plaintiff's prima facie

case, the probative value of the proof that the employer's explanation is false, and any

other evidence that supports the employer's case.' " (Guz, supra, 24 Cal.4th at p. 362.) A

18 court may grant summary judgment for an employer "where, given 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." (Id. at p. 362.)

In this case, the District presented competent, admissible evidence it declined to

rehire Messina after her probationary period because of performance concerns, including

that she was not a team player, was difficult to get along with, did not support the head

counselor, and took extended lunch breaks. These reasons, if true, are facially unrelated

to Messina's age and preclude a finding of discrimination. Accordingly, the District was

entitled to judgment as a matter of law unless Messina presented competent, admissible

evidence the District's true reasons were discriminatory.

Messina countered the District's evidence with evidence explaining her conduct

and why she disagreed with and believed her superiors were mistaken in their assessment

of her performance. She also presented evidence showing at least some of her coworkers

disagreed with her superiors' assessment of her performance. She did not, however,

present evidence the District's reasons for not rehiring her were "shifting, contradictory,

implausible, uninformed, or factually baseless" such that "an inference of dissembling

may arise." (Guz, supra, 24 Cal.4th at p. 363.) Rather, the evidence in the record

indicates the District's view of her performance remained constant throughout her

employment and its decision not to rehire her was based largely on specific complaints it

received from three different employees at three different levels of the organization, only

one of whom, the head counselor, was alleged to have any bias against older workers.

19 Moreover, an inference of pretext may not be drawn from evidence the employee

or the employee's coworkers believed the employee performed well. The relevant inquiry

is whether the decision makers genuinely believed the employee had performance

problems. (See Koski v. Standex Int'l Corp. (7th Cir. Wis. 2002) 307 F.3d 672, 677-678;

Gross v. Akin, (D.D.C. 2009) 599 F.Supp.2d 23, 31.)4 Messina repeatedly acknowledged

in her deposition her superiors actually perceived her performance to be poor. Thus,

while Messina's evidence, viewed most favorably to her, might show the District's

decision not to rehire her was unwise or based on incorrect information, the evidence

does not show the District's decision was a pretext for age discrimination.

Messina's reliance on our decision in Sandell v. Taylor-Listug, Inc. (2010) 188

Cal.App.4th 297 (Sandell) is misplaced because the case is factually distinguishable.

Unlike Messina, the plaintiff in Sandell did not concede the decision maker genuinely

believed the plaintiff's performance was poor. Instead, the plaintiff presented significant

evidence the decision maker could not have genuinely held such a belief. (Id. at pp. 315-

319, 324.) In addition, the plaintiff presented evidence the decision maker regarded the

plaintiff as old, repeatedly expressed a preference for firing older workers and replacing

them with younger, cheaper workers, and acted in accordance with this preference once a

worker turned 50. (Id. at pp. 325-326.) Messina has not presented any comparable

evidence in this case.

4 "Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes." (Guz, supra, 24 Cal.4th at p. 354.)

20 The alleged ageist remarks by Clay, the vice principal, and the head counselor,

while relevant, were also insufficient to create a triable issue of age discrimination.

Messina did not provide any evidence of the context of the remarks or that the remarks

were temporally or causally connected to the District's decisionmaking process. (Reid v.

Google, supra, 50 Cal.4th at p. 541 ["who made the comments, when they were made in

relation to the adverse employment decision, and in what context they were made are all

factors that should be considered" in determining whether ageist comments create a

triable issue of age discrimination].) Moreover, where, as here, there is a dearth of

evidence the employer's decision was pretextual, such remarks will not, by themselves,

create a triable issue of material fact. (Ibid.)

The anecdotal evidence of Clay's favoritism toward younger workers and the

District's adverse employment actions against other older workers was likewise

insufficient to create a triable issue of material fact because the evidence was not specific

enough and did not involve enough employees to demonstrate a statistically reliable

discriminatory pattern strong enough to overcome the District's evidence its reasons for

not rehiring Messina were unrelated to her age. (Guz, supra, 24 Cal.4th at pp. 367-368.)

Accordingly, Messina has not established the court erred by granting the District

summary judgment on her age discrimination claim.

III

Failure to Reasonably Accommodate Disability Claim

FEHA makes it unlawful for an employer to fail to reasonably accommodate an

employee's known physical or mental disability, unless the accommodation would

21 produce a demonstrable undue hardship. (Gov. Code, § 12940, subd. (m).) " 'The

elements of a failure to accommodate claim are (1) the plaintiff has a disability under the

FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and

(3) the employer failed to reasonably accommodate the plaintiff's disability.' " (Lui v.

City and County of San Francisco (2012) 211 Cal.App.4th 962, 971.)

" '[R]easonable accommodation' means 'a modification or adjustment to the

workplace that enables the employee to perform the essential functions of the job held or

desired.' [Citation.] ' "Reasonable accommodation" may include either of the following:

[¶] (1) Making existing facilities used by employees readily accessible to, and usable by,

individuals with disabilities. [¶] (2) Job restructuring, part-time or modified work

schedules, reassignment to a vacant position, acquisition or modification of equipment or

devices, adjustment or modifications of examinations, training materials or policies, the

provision of qualified readers or interpreters, and other similar accommodations for

individuals with disabilities.' ([Gov. Code,] § 12926, subd. (o); see Cal. Code Regs., tit.

2, § 7293.9, subd. (a); accord, 42 U.S.C. § 12111(9).)" (Furtado v. State Personnel Bd.

(2013) 212 Cal.App.4th 729, 745.)

Here, the District presented evidence that, when Messina complained about wrist

problems, it conducted an ergonomic assessment, adjusted aspects of her work space, and

provided her with a new chair and a document stand. When her doctor restricted the

number of hours she could type per day, the District immediately accepted the restriction

and, during a period several months later when she had to work overtime, the District

provided her with clerical help. At her deposition, Messina testified without qualification

22 the accommodations themselves were reasonable. She does not contend otherwise on

appeal. Rather, she contends the District failed to provide the accommodations in a

timely manner.

Some federal courts have held an unreasonable delay may amount to a failure to

provide reasonable accommodation. (Valle-Arce v. P.R. Ports Auth. (1st Cir. P.R. 2011)

651 F.3d 190, 200; Selenke v. Med. Imaging of Colo. (10th Cir. Colo. 2001) 248 F.3d

1249, 1262.) However, the parties have not cited nor are we aware of any published

California cases addressing whether such a delay amounts to a failure to provide

reasonable accommodation under the employment discrimination provisions of FEHA.

Assuming, without deciding, federal law and FEHA are identical in this respect, Messina

has not shown there is a triable issue of material fact on this point in this case.

Whether a delay is unreasonable and actionable depends on the circumstances,

including the length of the delay, the reasons for the delay, whether alternative

accommodations were offered while evaluating a particular request, and whether the

employer acted in good faith. (Velzen v. Grand Valley State Univ. (W.D. Mich. 2012)

902 F. Supp.2d 1038, 1046; West v. N.M. Taxation & Revenue Dep't (D.N.M. 2010) 757

F.Supp.2d 1065, 1123.) Because a "responsible government is entitled to take time to

evaluate alternatives before spending taxpayer money," we conclude the District's one- or

two-month delay in procuring the new chair and other items for Messina's workstation

was not unreasonable as a matter of law. (Cloe v. City of Indianapolis (7th Cir. Ind.

2013) 712 F.3d 1171, 1179; see also Terrell v. USAir, Inc. (M.D. Fla. 1996) 955 F.Supp.

1448, 1454.)

23 Moreover, an employer's delay in providing an accommodation is not actionable

where the employer has provided an interim reasonable accommodation. (Hartsfield v.

Miami-Dade County (S.D. Fla. 2000) 90 F.Supp.2d 1363, 1373; see also West v. N.M.

Taxation & Revenue Dep't, supra, 757 F.Supp.2d at pp. 1122-1126; Ungerleider v. Fleet

Mortg. Group of Fleet Bank (D. Conn. 2004) 329 F.Supp.2d 343, 354-355 & fn. 7.)

Here, the record shows that before the District provided Messina with clerical support, it

provided her with the interim accommodation of accepting the typing restrictions set by

her doctor. There is no evidence in the record the absence of clerical support ever caused

Messina to exceed these typing restrictions or to be unable to perform the essential

functions of her job.5 Messina, therefore, has not established the court erred in granting

the District's motion for summary judgment on her failure to reasonably accommodate

claim.

5 Messina's declaration states she "was in essence asked to do 7 or 8 hours of typing in the 4 hours per day" permitted by her doctor; however, it does not state she ever exceeded her doctor's restriction. To the contrary, she states in the same paragraph of her declaration that "[t]he pain in [her] hands and wrists further restricted [her] from typing even that 4 hours per day," suggesting she typed less than what her doctor permitted. 24

DISPOSITION

The judgment is affirmed. Respondents are awarded their appeal costs.

MCCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

O'ROURKE, J.

25