Filed 5/29/14 Feng v. Office of Statewise Health, Planning and Development CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


BING-NAN FENG,                                                        B248519

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC475805)
         v.

OFFICE OF STATEWIDE HEALTH
PLANNING AND DEVELOPMENT,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Joseph R. Kalin, Judge. Affirmed.
         The Law Offices of Craig T. Byrnes and Craig T. Byrnes for Plaintiff and
Appellant.
         Kamala D. Harris, Attorney General, Celine M. Cooper, Bruce W. Reynolds,
and Michael Yi, Deputy Attorneys General for Defendant and Respondent.




                                  ________________________________
                                 INTRODUCTION
      Bing-Nan Feng appeals from a judgment dismissing his complaint of age
discrimination, after the superior court entered a directed verdict in favor of
respondent Office of Statewide Health Planning and Development (OSHPD).
Feng contends there was sufficient evidence showing that his age was a substantial
motivating factor in the decision not to hire him, as the decisionmaker expressed
concern that Feng recently had retired and would retire again soon. We conclude
that it was not improper for the decisionmaker to consider Feng’s prior retirement,
as his retirement status was not a proxy for age under the circumstances of this
case. Accordingly, we affirm.


                            PROCEDURAL HISTORY
      On February 3, 2012, Feng filed a complaint for monetary damages, alleging
(1) age discrimination in violation of the Fair Employment and Housing Act
                                                             1
(FEHA), Government Code section 12940, subdivision (a), and (2) failure to
prevent age discrimination in violation of section 12940, subdivision (k). In his
complaint, Feng alleged that he worked as a senior structural engineer for OSHPD
for 12 years and retired in December 2004. In 2009, at the age of 68, he decided to
return to work. He applied for an open position as a senior structural engineer.
Allegedly in substantial part due to his age, however, OSHPD decided to hire a
much younger individual (Nicholas Strenk, who was 40) for the job, even though
Feng was far more qualified.
      On March 2, 2012, OSHPD filed an answer, generally denying the
allegations and raising eight affirmative defenses. On January 22, 2013, OSHPD

1
       All further statutory citations are to the Government Code, unless otherwise
stated.

                                           2
filed an amended answer adding the affirmative defense that it would have made
the same hiring decision based on legitimate, nondiscriminatory reasons.
      A jury trial began March 12, 2013. On March 19, 2013, Feng dismissed his
second cause of action for failure to prevent age discrimination. That same day,
the parties completed their presentation of evidence. OSHPD then moved for a
directed verdict pursuant to Code of Civil Procedure section 630, arguing that Feng
had not shown that age was a substantial motivating factor in the hiring decision,
and that OSHPD had legitimate, nondiscriminatory reasons to hire Strenk. The
trial court granted the motion, and on April 25, 2013, entered a judgment in favor
of OSHPD. Feng timely appealed.


           FACTUAL BACKGROUND AND TRIAL TESTIMONY
      OSHPD is one of 13 departments under the State of California’s Health and
Human Resources Agency. OSHPD has six divisions, including the facilities
development division (FDD). FDD is responsible for plan review and construction
of healthcare facilities, including skilled nursing facilities throughout the state.
FDD is organized into different work regions. At all relevant times, Ramin Sadr
was the regional supervisor for the North Los Angeles region of FDD.
      In 2009, due to pending deadlines for seismic retrofitting of healthcare
facilities, the Legislature provided FDD with funding for 31 positions. However,
the Governor imposed a freeze on hiring and promotion, and required FDD to
eliminate retired annuitant and student assistant positions and suspend FDD’s
contracts with outside vendors. However, FDD was able to get a time-limited
freeze exception for a senior structural engineer in Sadr’s region. Individuals
interested in the position were required to take an initial exam and send their
applications to OSHPD’s human resources office in Sacramento for screening.


                                            3
Under applicable state laws, only applicants scoring in the first three ranks on the
initial exam could be hired. As a former senior structural engineer with OSHPD,
Feng was automatically eligible to be hired for the position without having to take
the initial exam. He could apply and compete for the position, but had no
entitlement to it.
       As chairperson, Sadr selected the candidates who would be interviewed by
the hiring panel. The panel consisted of Sadr, two structural engineers, Brett
Beekman and David Neou, and a human resources person, Linda Janssen.
Although the other panelists could provide their input, Sadr had sole discretion on
whom to hire. Sadr selected seven candidates, including Feng and Strenk. During
the job interview, Feng did not state that he had made a mistake retiring. Nor did
he explain why he wanted to return to OSHPD.
       Feng had the highest aggregate score on the interview, and Strenk had the
second highest aggregate score. It was not uncommon for someone other than the
highest scoring applicant to be hired. Based upon the panelists’ personal
experience, the highest-scoring candidate did not receive a job offer 25 percent to
50 percent of the time. Nor was the chairperson restricted to hiring the top three
candidates. Janssen, who had participated in approximately 30 job interviews,
recounted an instance where the 12th ranked person was hired.
       After the interview was completed, the panel members discussed the
candidates. Beekman and Neou thought that Strenk had greater potential than all
the other candidates because of his education and work experience. Strenk
graduated from Cornell University, which had a prestigious engineering program.
Unlike Feng, Strenk also had an MBA and a minor in geotechnical engineering.
The expertise of geotechnical engineers, who analyze and address the impact of
soil conditions on structures, was highly valued by FDD.


                                          4
      Strenk had worked for John A. Martin and Associates (JAMA), a major
contractor for FDD, from 2000 to 2008. From his time at JAMA, Strenk was
familiar with OSHPD and FDD, and their systems and procedures. Strenk also had
experience in all phases of building design and construction, including field work
to ensure the work was constructed according to the design plans.
      After leaving JAMA, Strenk worked for iCrete, a startup company focused
on producing concrete mixes. He was at iCrete for five months, before being laid
off when the company experienced financial difficulties. Strenk then worked for
the City of Santa Monica’s maintenance management division. The division had
responsibility for maintaining the city’s facilities, which included a pier and an
airport. Strenk was let go -- “separated on probation” -- after nine months because
the city eliminated his position due to budget shortfalls. Sadr testified he
confirmed this account by calling the city supervisor.
      Sadr found Strenk very pleasant and open, and thought he communicated
well during the interview. Sadr believed that he would work better with Strenk
than Feng. Strenk was also the only candidate who received recommendations.
Both Beekman and “Traylor” Martin, the president of JAMA, had recommended
Strenk for the position. Strenk was interested in working for OSHPD, and had
previously applied. He planned to work at FDD until he retired.
      As to Feng, Sadr expressed concern that Feng, who had retired from OSHPD
in 2004 and had returned as a part-time retired annuitant from 2004 to 2007, would
retire again and soon. Sadr was concerned that if Feng retired, he would have to
go through the very costly and lengthy hiring process again. Sadr also was
concerned that he would not be able to fill the position vacated by Feng’s
retirement if the hiring freeze persisted. Even were the freeze lifted, it could take




                                           5
up to six months to replace a senior structural engineer, and in the interim, FDD’s
projects would be delayed due to the lack of structural engineers.
      Sadr did not know the ages of the candidates, and he testified he never
considered their ages in determining whom to hire. Their applications and resumes
did not contain their ages or birthdates. Sadr never expressed to the other panelists
concern that Feng’s age made it more likely that he would retire again. Nor did
Sadr say that he would not hire Feng because of his age. Although Sadr expressed
concern that Feng might retire again soon, he did not consider that fact a bar to
hiring Feng. Indeed, on the list of Sadr’s preferred candidates for the position,
Feng was ranked second. Had Strenk refused the job offer, Sadr was prepared to
offer the position to Feng.
      Sadr stated that based on Strenk’s qualifications and personal characteristics,
he would have hired Strenk even absent concerns about Feng’s retiring again.
When asked to explain why he initially had given a different answer during his
deposition, Sadr stated that he had misunderstood the question and had
subsequently corrected his answer during the deposition.
      Sadr supervised several engineers who were in their 60s. He recounted that
when one of the engineers he supervised, who was 85, wanted to retire, Sadr had
talked him out of it, as he was a highly valued employee.


                                   DISCUSSION
      A.     Standard of Review
      “A directed verdict may be granted only when, disregarding conflicting
evidence, giving the evidence of the party against whom the motion is directed all
the value to which it is legally entitled, and indulging every legitimate inference
from such evidence in favor of that party, the court nonetheless determines there is


                                          6
no evidence of sufficient substantiality to support the claim or defense of the party
opposing the motion, or a verdict in favor of that party. [Citations.]” (Howard v.
Owens Corning (1999) 72 Cal.App.4th 621, 629-630.) We review de novo
whether sufficient evidence was presented to withstand a directed verdict. (Magic
Kitchen LLC v. Good Things Internat., Ltd. (2007) 153 Cal.App.4th 1144, 1154.)


      B.     Age Discrimination
      Section 12940 prohibits an employer from refusing to hire or employ a
person on account, among other grounds, of his age. Here, there is no direct
evidence that Feng was not hired because of his age. Sadr’s uncontradicted
testimony was that he hired Strenk instead of Feng, based on Strenk’s impressive
credentials and personal characteristics. Moreover, Sadr did not know the ages of
the candidates, and he never told the other panelists that he would not hire Feng
because of his age. Nor is there any evidence that Sadr made remarks indicating
animus towards the elderly. (Cf. Reeves v. Sanderson Plumbing Prods. (2000)
530 U.S. 133, 151 [defendant not entitled to judgment as a matter of law on age
discrimination claim where decisionmaker told plaintiff he “‘was so old [he] must
have come over on the Mayflower’” and he “‘was too damn old to do [his] job’”].)
Indeed, Sadr supervised several engineers in their 60s, and persuaded an 85-year-
old engineeer to delay retirement and continue working for FDD.
      Feng’s evidence of discriminatory animus consists of (1) the fact that he was
not hired although he had the highest aggregate score on the job interview and was
qualified for the position, and (2) Sadr’s expressed concern that Feng had retired in
2004 and might retire again soon. It is undisputed, however, that the highest
scoring candidate frequently does not receive a job offer. More important, the
interview score is only one factor among many for the hiring manager to consider


                                          7
in determining who would be the best candidate for the job. No one disputes that
Strenk was qualified for the position. Strenk had impressive educational
credentials, varied work experience, familiarity with OSHPD and FDD, good
communications skills, recommendations from trustworthy individuals, and the
second highest aggregate score on the job interview. Feng’s qualifications,
including his prior service at OSHPD, were not so superior as to make the selection
of Strenk unreasonable. Thus, the selection of Strenk, standing alone, does not
raise an inference of discriminatory animus. (See Byrnie v. Town of Cromwell Bd.
of Education (2d Cir. 2001) 243 F.3d 93, 103 [for discrepancy in qualifications to
show unlawful discrimination, “the plaintiff’s credentials would have to be so
superior to the credentials of the person selected for the job that ‘no reasonable
person, in the exercise of impartial judgment, could have chosen the candidate
selected over the plaintiff for the job in question’”], quoting Deines v. Texas Dept.
                                                                               2
of Protective and Regulatory Servs. (5th Cir. 1999) 164 F.3d 277, 280-281.)
      As to Feng’s prior retirement, section 12940, which governs hiring
decisions, does not mention retirement status. (See § 12940 [employer prohibited
from considering race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, genetic information, marital status,
sex, gender, gender identity, gender expression, age, sexual orientation, or military
and veteran status].) Accordingly, there is no statutory prohibition against
considering retirement status in a hiring decision.



2
       Because the federal anti-discrimination legislation and the FEHA address
similar concerns, California courts may look to federal cases interpreting such
legislation to aid in the interpretation of the FEHA. (Hersant v. Department of
Social Services (1997) 57 Cal.App.4th 997, 1002, fn. 1 (Hersant).)


                                          8
      Feng contends, however, that his retirement status was used as a proxy for
his age. We disagree. In determining whom to hire, an employer may properly
consider legitimate, nondiscriminatory factors, even if that factor is correlated with
age. The United States Supreme Court’s decisions in Hazen Paper Co. v. Biggins
(1993) 507 U.S. 604 (Hazen Paper) and Smith v. City of Jackson (2005) 544 U.S.
228 (Smith) are instructive. In Hazen Paper, the court noted that the Age
Discrimination in Employment Act of 1967 (ADEA) was prompted by
Congressional concern that older workers were being deprived of employment on
the basis of “inaccurate and stigmatizing stereotypes.” The ADEA forbids
employers from relying on an employee’s age as a proxy for characteristics such as
productivity and competence. Rather, the employer must focus on those factors
directly. (Hazen Paper, at pp. 610-611.) The court held that when an employer’s
decision is motivated wholly by factors other than age -- even if the motivating
factor is correlated with age, such as pension status -- there is no liability under the
ADEA. (Id. at pp. 611-612 [employer’s decision to terminate older employee
solely because he had nine-plus years of service and therefore his pension was
about to vest not discriminatory treatment on the basis of age]; see also Kentucky
Retirement Systems v. EEOC (2008) 554 U.S. 135, 143-144 [employer’s pension
plan allowing vesting after 20 years of service or after the employee attained five
years of service and reached the age of 55 did not violate the ADEA, as “age” and
“pension status” are “‘analytically distinct’” concepts and “several background
circumstances eliminate[d] the possibility that pension status . . . nonetheless
serv[ed] as a ‘proxy for age’”].)
      Similarly, in Smith, the court held that an employer’s pay plan did not
violate the ADEA even though older workers received comparatively smaller pay
increases, because the decision to grant a larger raise to lower echelon employees


                                           9
was based on a “‘reasonable facto[r] other than age.’” (Smith, supra, 544 U.S. at
p. 242.) Although the plan was based on an employee’s seniority and position --
factors correlated with age -- the court found no liability, because the pay
differential was based upon a legitimate, nondiscriminatory reason, viz., the
employer’s “perceived need to raise the salaries of junior [employees] to make
them competitive with comparable positions in the market.” (Ibid.)
      Here, although retirement status is correlated with age, the record shows that
Feng’s retirement status was not used as a proxy for his age. Rather, the
uncontradicted evidence was that Sadr was concerned that Feng, who had
voluntarily left his senior structural engineer position with OSHPD in 2004, might
soon do so again. Sadr did not want to go through the costly and lengthy hiring
process again, was concerned that he might not be able to fill Feng’s vacated
position if the hiring freeze persisted, and did not want to delay FDD’s ongoing
projects due to the dearth of structural engineers. These are all legitimate,
nondiscriminatory reasons.
      At no time was Sadr’s consideration of Feng’s prior retirement untethered to
his concern that Feng, having voluntarily left OSHPD before, would soon do so
again. As Feng never expressed regret at retiring, nor explained why he wanted to
return to OSHPD, Sadr’s concerns were neither irrational nor unreasonable.
Moreover, Sadr never considered Feng’s retirement status per se. He never stated
that he would not hire Feng because Feng was a retiree; indeed, he was prepared to
offer the job to Feng if Strenk refused. Finally, Sadr made no comments about
retirees or Feng that could be interpreted as “inaccurate and stigmatizing
stereotyping” of the elderly. He did not suggest that retirees lacked the energy to
perform the duties of a senior structural engineer, or in any way imply that Feng’s
status as a retiree would compromise his ability to perform the job.


                                          10
      Feng’s reliance on EEOC v. Local 350, Plumbers & Pipefitters (9th Cir.
1992) 998 F.2d 641 is misplaced. There, a union had a policy of refusing to allow
retired members to seek work through the union’s hiring hall while receiving
pension benefits. (Id. at p. 643.) The Ninth Circuit found the policy violated the
ADEA because it discriminated based on a factor -- retirement -- closely related to
age, and “it frustrate[d] the ADEA’s goal of promoting the employment of older
persons based on their ability rather than age.” (Id. at p. 646.) In contrast, here,
OSHPD had no policy prohibiting retirees from seeking open positions. Indeed,
OSHPD made it easier for retirees to apply for open positions. For example,
OSHPD had a policy exempting Feng, who had been a senior structural engineer,
from having to take the initial exam for the position. OSHPD also hired retirees; it
hired Feng as an annuitant after he retired. More important, Sadr did not
categorically exclude retirees from consideration for the open position. Sadr
himself selected Feng as a candidate for the position, and ranked him second
overall. In short, nothing suggests that OSHPD as an organization, or Sadr as an
individual, discriminated against Feng or other retirees due to age-related concerns.
On this record, we conclude that Sadr’s consideration of Feng’s prior retirement
                                       3
was not discrimination based on age.
      As Feng’s retirement status was not a proxy for age discrimination, there is
no evidence of a discriminatory motive in the hiring decision. Accordingly, Feng’s
age discrimination claim is analyzed under the burden shifting test enunciated in
McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-804 (McDonnell

3
       As we conclude that Sadr could properly consider Feng’s prior retirement,
we need not address the admissibility and evidentiary weight of Sadr’s correction
to his deposition answer that Feng’s prior retirement was a “but for” reason for the
hiring decision.


                                           11
                                                                                4
Douglas). (Sandell v. Taylor-Lustug, Inc. (2010) 188 Cal.App.4th 297, 307.)
Under the three-stage test in McDonnell Douglas, (1) the plaintiff must first make
a prima facie case of employment discrimination; (2) the burden then shifts to the
employer to proffer a legitimate, nondiscriminatory reason for its employment
action; and (3) the plaintiff must then present substantial evidence that the
proffered reason was false, or present evidence of a discriminatory animus or a
combination of the two, such that a reasonable trier of fact could conclude that the
employer engaged in employment discrimination. (Hersant, supra, 57 Cal.App.4th
at pp. 1003-1004.) At trial, OSHPD did not dispute that appellant had made a
prima facie case for age discrimination, as (1) he was a member of a protected
class (over 40 years old), (2) he was qualified for the senior structural engineer
position, and (3) he was not hired. (See Guz v. Bechtel National, Inc. (2000)
24 Cal.4th 317, 355 [listing elements of an employment discrimination claim under
the FEHA]; Hersant, supra, at p. 1003 [listing elements of a claim for termination
due to age].)
      OSHPD, however, proffered several legitimate, nondiscriminatory reasons
for hiring Strenk instead of Feng. First, Sadr evaluated Strenk as having better
educational credentials (Cornell University engineering degrees, minor in
geotechnical engineering, MBA) and personal characteristics (pleasant, open, and
communicated better). Second, Sadr was concerned that if offered the position,

4
       Although the trial court used the “substantial motivating factor” test to
analyze Feng’s age discrimination claim, that test is applicable only to mixed
motive cases, viz., cases where the evidence demonstrates or a defendant concedes
that an employment decision was based in part on a discriminatory motive and in
part on a legitimate, nondiscriminatory motive. (Harris v. City of Santa Monica
(2013) 56 Cal.4th 203, 232.) As explained above, Sadr’s concern that Feng would
soon retire again did not evidence a discriminatory motive. Accordingly, this is
not a mixed motives case.

                                          12
Feng might voluntarily leave again as he had done before. He had no such concern
with Strenk.
                                                                              5
      Feng presented no substantial evidence that these reasons were false. He
contends his qualifications were so superior to Strenk’s that it was unreasonable
for Sadr to select Strenk as the top candidate. We disagree. It is uncontradicted
that Sadr had a high opinion of Cornell University’s engineering program, and that
he had no knowledge of Feng’s undergraduate institution. Similarly, it is
uncontradicted that Sadr observed the candidates during the interview and
                                                                     6
determined that Strenk had better communication skills than Feng. Sadr further
determined that both Feng and Strenk had valuable work experience, were familiar
with OSHPD’s procedures, and had knowledge of recent building codes. As both
men were qualified for the position, nothing about Sadr’s preference for Strenk
based on his perceived superior educational credentials and communication skills
was shown to be pretextual. Moreover, no evidence suggests that Sadr’s
consideration of education credentials and communications skills reflected

5
       Feng contends that the court improperly excluded the deposition testimony
of Doris Bloom, chief of human resources for OSHPD, that during her training, she
was told that discrimination against retirees constituted age discrimination. We
find no error, as Bloom’s deposition testimony is an improper opinion on a legal
issue. As explained above, discrimination against retirees is not always age
discrimination. In any event, there was no evidence that Sadr received similar
training.
       Feng also summarily contends that the trial court made other erroneous
evidentiary rulings that prejudiced him. As he failed to develop this argument, it is
forfeited. (Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1045, fn.1;
9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 701, p.769.)
6
       Feng’s reliance on Janssen’s scoring of the oral part of the job interview is
unavailing. Janssen did not rate the candidates’ communication skills. In any
event, Sadr was the sole decisionmaker.

                                          13
negative stereotypes of the elderly. Thus, Feng presented no substantial evidence
that OSHPD’s first reason for hiring Strenk -- his qualifications -- was false, much
less that the true reason was age discrimination.
      Similarly, Feng presented no substantial evidence that OSHPD’s second
reason for hiring Strenk -- that Strenk would stay and grow with OSHPD -- was
false. Feng’s only evidence of pretext was Strenk’s short time at his last two jobs.
He argues that Sadr’s concerns about losing a senior structural engineer and going
through the time and expense to hire a new engineer would apply equally to Strenk
if he also had an inclination to voluntarily leave his employment quickly after
being hired. However, Strenk’s uncontradicted testimony was that he did not leave
his last two jobs voluntarily. Rather, he was laid off from iCrete and let go from
the City of Santa Monica due to financial problems and budget shortfalls,
respectively.
      Finally, Feng presented no evidence of discriminatory animus. As
discussed, there is no evidence that Sadr discriminated on the basis of age. Nor is
there any evidence that other older workers or retirees experienced age
discrimination at OSHPD, or suffered an adverse disparate impact from OSHPD’s
hiring process. Thus, Feng has produced no evidence from which a reasonable
trier of fact could find that Sadr or OSHPD engaged in age discrimination.
Accordingly, the trial court did not err in granting OSHPD a directed verdict.




                                         14
                                 DISPOSITION
      The judgment is affirmed. Respondent is entitled to its costs on appeal.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                   MANELLA, J.


We concur:




EPSTEIN, P. J.




EDMON, J.*




________________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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