A battalion chief worked for a county’s fire department. He tested for promotion to the rank of Assistant Chief four times over an eight-year period, passed the civil service test, but the fire chief did not select him for promotion. He was not given a temporary appointment as an Acting Assistant Chief until late in his career, something he contended would have been a springboard to a full time promotion. He sued his county employer, alleging that his failure to be promoted was because of age, disability, and ethnicity discrimination in violation of the Fair Employment and Housing Act (FEHA). LCW won a motion for summary judgment for the county in the trial court. The battalion chief appealed.
The California Court of Appeal affirmed LCW’s win for the county. First, the battalion chief ’s only evidence of age-related animus was a statement in his own declaration that certain superiors made comments that he interpreted to mean that he should retire. After the trial court sustained the county’s objections to the battalion chief’s declaration, he failed to claim any error in the Court of Appeal. The Court found that the battalion chief forfeited his age claims.
The Court noted that the disability claim was time barred, but continued to consider the claim on the merits. In that claim, the battalion chief claimed that the fire chief did not promote him because he wore a knee brace. The only admissible evidence of disability discrimination, however, was the battalion chief’s claim that the fire chief stopped smiling, stared at his knee brace, and told him to be careful walking. The Court found that a change in facial expression and/or an expression of concern, are not evidence of discriminatory animus.
Finally, as to the ethnicity discrimination claim, the battalion chief relied heavily on the declaration of a statistician expert to support his theory that the fire chief did not select promotional candidates in his racial-ethnic group at the same rate as the fire chief promoted members of other groups. Court sustained the county’s several objections to the battalion chief’s expert declaration on the grounds that it compared ethnicity data to an irrelevant population. In addition, the battalion chief’s only remaining evidence was based on a position paper that concerned a promotional system that was no longer in effect. The Court found that there was no relevant evidence of ethnicity animus.