Villanueva v. City of Colton
Filed March 11, 2008, Fourth District, Division Two,
Cite as 2008 SOS 1480

Unchallenged Evidence Held Inadmissible in Discrimination Suit

Daniel Villanueva had worked for the City of Colton’s refuse operation from 1989 to 1996. In June 1996, he was laid off then rehired the following month as a probationary operator-in-training in the Wastewater Division. He was promoted to Lead Operator in 2000.

In 2002, Villanueva was suspended for five days without pay for improperly investigating a distress signal and concluding it was a false alarm. He was laid off in 2003 as part of a reduction in force due to budget shortfall, subject to so-called “bumping rights.”

Meanwhile, the city’s director of human resources rejected Villanueva’s claim that his private understanding with a former human resources director prior to his 1996 re-hiring protected his seniority rights. Following that, Villanueva exercised his bumping rights and moved into a lower-paying position.

Villanueva sued the city under the Fair Employment and Housing Act (FEHA) with the following allegations and complaints:

• that the city had engaged in discriminatory conduct in demoting him


• that he engaged in protected activity in complaining to a manager of the city


• that the city had discriminated against him on the basis of his race, national origin, ethnicity or skin color


• that the action is retaliation against him for informing the city that he believed he had been the victim of discrimination.

In response, the city moved for summary judgment based on the following grounds:

• it had legitimate non-discriminatory reasons for its actions, citing the negligent manner in which Villanueva had handled the alarm incident and the reduction in force due to a budget shortfall


• that Villanueva lacked evidence of pretext necessary to survive summary judgment

For his part, Villanueva offered declarations, including his own, and deposition testimony of various present and former employees of the city in opposition to the motion.

The city filed objections to the admissibility of the declarations and deposition transcripts and argued that there was no evidence of racial discrimination. The city also presented evidence that grievances lodged by Villanueva in 1998 and 2003 contained nothing about race discrimination of harassment based on race.

After hearing, the trial court sustained all the city’s objections. Based on its summary judgment, the court found that the city offered legitimate, nondiscriminatory reasons for Villanueva’s suspension and for the elimination of his position, and that Villanueva failed to present any substantial evidence that the city’s reasons were pretextual.

The trial court also granted the city’s motion for attorney’s fees and awarded the sum of $39,472.30.

Following that, Villanueva appealed, contending that he produced direct and circumstantial evidence sufficient to withstand summary judgment.

In review, the Fourth District court of appeals affirmed the judgment of the trial court. The court held that an employment discrimination plaintiff who failed to challenge on appeal the trial court’s adverse rulings on admissibility of evidence could not rely on that evidence to support an argument that he produced evidence sufficient to withstand summary judgment.

The court applied the test developed in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 to determine whether the evidence supported an inference of discrimination.

The court held that the city presented evidence of nondiscriminatory actions for both its suspension of Villanueva in 2002 and its elimination of his position as Lead Operator as part of its 2003 reduction in force which resulted from an anticipated multimillion dollar budget shortfall.

Further, the court held the Villanueva waived the correctness of the ruling when he did not challenge the trial court’s evidentiary rulings.

In short, the court concluded that Villanueva had failed to prevent proper argument and prove that the trial court’s evidentiary rulings were wrong. Therefore, the court would consider none of the evidence he had offered in the trial court.

Moreover, Villanueva’s claim of retaliation failed because there was no evidence he ever engaged in any protected activity related an employment practice proscribed by the Fair Employment and Housing Act (FEHA). There was no record or evidence that he ever complained to anyone about alleged racial discrimination or did anything to imply that racial discrimination was an issue.

Finally, the court rejected the city’s request for an award of attorney’s fees on appeal.

The Fourth Appellate District therefore affirmed a judgment. The court held that a discrimination plaintiff who failed to challenge on appeal the trial court’s adverse rulings on admissibility of evidence could not rely on that evidence to support the argument that he produced evidence sufficient to withstand summary judgment.