Santa Clara University employed Conchita Franco Serri for 15 years as its Director of Affirmative Action.  Serri's duties included mediating or investigating discrimination and harassment complaints, providing sexual harassment training to University staff, and preparing the University's annual Affirmative Action Plan (AAP). 

In 2005, Serri sent a letter to Father Paul Locatelli, the University President, complaining about a disparity between her salary and that of Charles Ambelang, a male employee in the human resources department.  In June 2006, shortly after Serri returned from a medical leave of absence, the University increased her salary from approximately $104,000 to $118,000, retroactive to the date that Serri first informed the University of the alleged salary disparity. The University also provided Serri a 3.5% merit pay increase for the 2006-2007 academic year. 

On the same day as the University's equity adjustment to her salary, Serri filed a formal complaint against Father Locatelli and Robert Warren, the University's Vice President for Administration and Finance, alleging gender discrimination because she earned approximately $20,000 less than Ambelang, and because she felt "threatened" when Warren allegedly interfered with one of her sexual harassment investigations.  The University hired an outside investigator to investigate the claims.  The investigator found that Serri's claims were without merit, and the Board of Trustees affirmed.  Serri then filed a discrimination claim with the Department of Fair Housing and Employment (DFEH). 

Serri regularly met with her supervisor and the University's employment attorney to discuss the matters on which she was working, such as the sexual harassment trainings and investigations.  Five days after filing her DFEH complaint, Serri informed her supervisor at a regularly-scheduled meeting that the University "had not had a defensible Affirmative Action Plan" for several years.  Serri said that the entire time she had been Director of Affirmative Action, she had never received the data she needed to complete the AAPs. 

Serri was scheduled to meet with Father Locatelli on October 13, 2006 to discuss her cases. Father Locatelli asked Serri to bring the current AAP with her to the meeting, as well as all AAPs from the last ten years.  Serri brought two draft AAPs to the meeting- one covering the period February 2006 through January 2007, and one covering November 2006 through October 2007.  The University later learned that Serri had created both documents the day before the October 13 meeting.  At the meeting, Serri once again stated that the University did not have a defensible AAP and was likely to be audited by the federal government.  For the first time, Serri requested that the University hire a consultant to create a template for future AAPs.  When the University reassigned the AAP duties to Serri's supervisor, Serri filed another claim with the DFEH alleging retaliation.   

The University hired another outside investigator to investigate Serri's claims.  This investigator found that Serri had failed to prove her retaliation claims.  Two months later, the University terminated Serri's employment for failing to prepare an AAP for years 2003-2004, 2004-2005, and 2005-2006, for failing to disclose to her supervisors the nonexistence of the AAPs, and for her misrepresentations regarding the AAPs.  For instance, when the Director of Sponsored Projects asked Serri in 2006 for a copy of the AAP so that she could attach it to some grant paperwork, Serri did not inform the Director that the University did not have an AAP; she said that the University could not release it because it contained proprietary information. Warren believed that creating the AAP was one of Serri's critical job duties, and was concerned that the University could lose government funding because it did not have an AAP in place.  After the University fired Serri, a 54-year-old Puerto Rican woman, it hired a woman of the same age to replace her.     

Serri filed suit against the University, Father Locatelli, Warren, and other University employees for various claims including discrimination, harassment, and retaliation in violation of the Fair Employment and Housing Act (FEHA).  The defendants filed motions for summary adjudication and/or summary judgment, which the trial court granted.  Serri appealed, and the Court of Appeal affirmed. 

A plaintiff claiming discrimination typically must show that he or she is a member of a protected class, was qualified for his or her position, suffered an adverse employment action, as well as some other circumstance that suggests discriminatory motive.  If she shows all of the elements, the employer may dispel the presumption of discrimination by articulating a legitimate, nondiscriminatory justification for the action.  The plaintiff can then attack the proffered reason and attempt to show that it was false.  However, on summary judgment, the employer, as the moving party, has the initial burden of demonstrating either that the plaintiff failed to show an element of discrimination or that the action was based on legitimate, nondiscriminatory factors. 

The trial court, in granting the defendants' motions for summary judgment, determined that the University terminated Serri's employment because she failed to perform her duties competently.  This constituted a legitimate, nondiscriminatory reason.    

Serri argued that summary judgment was inappropriate because there was a disputed issue of fact regarding whether preparing the AAP was one of her primary job duties.  The Court of Appeal noted that, in a 2006 email to her supervisor, Serri described preparation of the AAP as "one of the roles that define my position."  Further, the Court of Appeal held that whether preparation of the AAP was the most important part of Serri's job was not a material fact and not at issue.  Both sides agreed that Serri's duties included preparing the AAP, which Serri had failed to do for three years. 

Serri argued that the trial court ignored her evidence that the University's failure to have an AAP for three years would not result in any sanctions, fines, or adverse consequences to the University.  In other words, Serri argued that the University's reason for terminating her employment was false because, according to her expert witness, her failure to prepare the AAP did not, and could not, cause the University harm.  However, the University never asserted that it suffered adverse consequences as a result of Serri's failure to prepare the AAPs, and the expert witness' declaration was insufficient to create a triable issue regarding whether the University was required to have an AAP.  It contradicted Serri's deposition testimony, in which she testified that federal regulations require the University to prepare an annual AAP, and her documentary evidence, which described the AAP as essential for obtaining and retaining federal grants. 

Serri also argued, relying on her expert witness's declaration, that the University knew any noncompliance with the AAP requirement was easily correctable and would not result in any adverse consequences.  However, Serri's expert's declaration was prepared four years after she was terminated, and Serri failed to present any evidence that the University knew, when it terminated her employment, that the lack of an AAP would not result in any adverse consequences.  To the contrary, Serri, the only person at the University with experience regarding AAPs, told her supervisor and Father Locatelli that the existing AAP was indefensible and that the University would likely be audited by the federal government.

Serri also argued that the University's reason for terminating her was false because she prepared partial AAPs for 2005 and 2006, and the University failed to provide data and a consultant so that she could prepare the AAPs.  However, the AAP consisted of two parts: a narrative portion that Serri was supposed to draft, and several statistical analyses that her assistant was supposed to prepare using data provided by the human resources department.  Serri failed to prepare the narrative portion for three years, and she prepared the partial AAPs the night before her meeting with Father Locatelli.  

Therefore, the Court of Appeal held that Serri had failed to provide substantial evidence that the University's reason for terminating her employment was false.  

Serri also claimed that the University, Father Locatelli, her supervisor, and the University's attorney harassed her on the basis of her national origin, age, and sex.  Under the FEHA, harassment focuses on situations in which the social environment becomes intolerable because verbal, physical, or visual harassment communicates an offensive message to the employee.  It is distinguishable from discrimination, which refers to bias in the exercise of official actions on behalf of the employer.   

While Serri disputed the defendants' declarations that they did not make any hostile or derogatory statements to Serri or any references to any protected status such as gender, she did not submit any evidence that would create a triable issue of fact.  Further, to the extent Serri complained about the parties who attended the meetings with her supervisor and how those meetings were conducted, the allegations did not involve harassment, only potential discrimination, a claim the Court already decided lacked merit.  The only harassment evidence Serri submitted involved three comments, none of which would have interfered with a reasonable employee's work performance.  (For instance, Serri alleged that Father Locatelli once told her that her shawl looked like a poncho.)  Further, the three comments occurred over a six-year period, which is not pervasive enough to support a harassment claim. 

The Court of Appeal similarly disposed of Serri's arguments regarding her remaining claims, including claims for retaliation, breach of contract and defamation.  It held that, because the trial properly granted summary adjudication as to each of Serri's claims, the grant of summary judgment was proper.

Note: 

While there are exceptions, courts generally want to know what motivated an employer's decision at the time the decision was made.  Here, the Court of Appeal was not concerned with whether the University was actually harmed by Serri's inaction or whether it believed it had been harmed by the time it submitted its motion for summary judgment, but whether the University believed when it terminated Serri's employment that her failure to prepare the Affirmative Action Plans put it at risk of audits and losing funding.  

Serri v. Santa Clara University (2014) __ Cal.App.4th __ [2014 WL 2213180].