Arega v. Bay Area Rapid Transit Dist.

83 Cal.App.5th 308

299 Cal.Rptr.3d 424

Nebiyat AREGA et al., Plaintiffs and Appellants,

v.BAY AREA RAPID TRANSIT DISTRICT, Defendant and Respondent.

A163266

Court of Appeal, First District, Division 3, California.

Filed September 14, 2022

Certified for Partial Publication.^*

Forthright Law, Dow W. Patten, Los Angeles, for Plaintiffs and Appellants.

Aleshire & Wynder, Ian P. Fellerman, Alameda; Office of General Counsel for San Francisco Bay Area Rapid Transit District, Sam N. Dawood, Oakland, for Defendant and Respondent.

Petrou, J. Plaintiffs and appellants Nebiyat Arega, Terry Carney, Darian Caston, and Erik Freeman (collectively "Plaintiffs") work as Cash Handlers for the Bay Area Rapid Transit District ("BART"). Each of them applied to the Cash Handler Foreworker position but were not promoted.

Plaintiffs sued BART under the California Fair Employment and Housing Act ("FEHA") ( Gov. Code, § 12900 et seq. ), alleging BART discriminated against them based on race (African American) by promoting other less qualified individuals over them. The trial court entered summary judgment on Plaintiffs’ complaint in BART's favor and entered judgment for BART. On appeal, Plaintiffs argue that the court erred in granting summary judgment because they presented sufficient evidence to create triable issues of material fact on their claims. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Cash Handler Foreworker Selection

BART Cash Handlers are responsible for collecting, sorting, and counting cash from and performing light maintenance of the automated fare collection equipment located at BART stations. Cash handlers are supervised by a Cash Handler Foreworker ("Foreworker"). Both Cash Handlers and Foreworkers are represented by SEIU Local 1021 ("the union").

There is a labor agreement between BART and the union that governs how BART selects Foreworkers. Pursuant to this Agreement, Foreworkers are selected by a Foreworker Evaluation Committee ("Evaluation Committee"), which is comprised of six persons: three union representatives and three management representatives. During the selection process, a silent observer from the union is also present. A Memorandum of Understanding ("MOU") specifies eight criteria to be used in Foreworker selection: (1) job-related experience [0-10 points]; (2) supervisory experience [0-10 points]; (3) education [0-5 points]; (4) technical knowledge [0-15 points]; (5) ability to read and write effectively [0-15 points]; (6) ability to effectively communicate verbally [0-15 points]; (7) ability to analyze problems, make decisions and direct a workforce [0-20 points]; and (8) dependability [0-10 points. Each of the foregoing criteria is allocated a certain number of possible points, with a total of 100 possible points.

Foreworker applicants are required to be BART employees and to have a minimum of three years of job-related experience to qualify to apply for the position. Each qualified applicant is required to take a written test and complete an oral interview with the Evaluation Committee. The questions in the interview and on the written test are the same for each applicant. The applicant with the highest total point score is appointed to the available Foreworker position. If there are two available Foreworker positions in a selection process, the two applicants with the highest total point scores are appointed.

B. Previous Litigation

Arega, Carney, Caston, and Freeman have worked for BART since 2003, 1990, 1996, and 1995, respectively. In September 2013, each was a Cash Handler and applied to an open Foreworker position but was not selected. In August 2014, Plaintiffs sued BART alleging discrimination based on race in violation of FEHA by not promoting them to Foreworker in favor of less experienced non-African Americans. In February 2016, Plaintiffs and BART entered into a settlement agreement whereby Plaintiffs waived and released all employment-related claims they had prior to February 2016 and BART paid Plaintiffs a certain sum. In the settlement agreement, BART admitted no liability. Plaintiffs dismissed the suit with prejudice in March 2016.

C. Current Litigation

After the 2016 settlement, each plaintiff again applied to be promoted to Foreworker.

In 2016, the Evaluation Committee presided over a selection process, and appointed one new Foreworker. Each plaintiff applied for this position but was not promoted. Another candidate was selected because she received the highest total point score.

In 2018, the Evaluation Committee presided over a selection process, and appointed two new Foreworkers. Arega, Carney and Caston applied for the position, though Caston subsequently withdrew. Neither Arega nor Carney was promoted. Two other candidates were selected because they received the highest total point scores.

In 2019, the Evaluation Committee presided over a selection process, and appointed one new Foreworker. Arega and Caston applied but neither was promoted. Another candidate was selected because he received the highest total point score.

Across the three Foreworker selections processes in 2016, 2018, and 2019, there were a total of 18 individuals who were members of the Evaluation Committee. Eight of the 18 members were African American, including 3 in 2016, 4 in 2018, and 1 in 2019.

In June 2019, Plaintiffs again sued BART, thus initiating the litigation underlying this appeal. As with their prior lawsuit, they alleged BART discriminated against them based on race in violation of FEHA by not promoting them to Foreworker. Their complaint alleged two causes of action under FEHA: (1) disparate treatment race discrimination; and (2) disparate impact race discrimination. They alleged that they met all the requirements for the Foreworker position but, despite having more experience and better qualifications, they were routinely passed over for promotion in favor of less experienced non-African Americans.

In July 2020, BART moved for summary judgment. In April 2021, the trial court granted BART's motion. In a three-page written order, the court explained Plaintiffs’ disparate treatment claim failed because BART submitted evidence of a non-discriminatory reason for not promoting Plaintiffs (i.e., none of them received the highest score in the selection process), and Plaintiffs failed to submit evidence that BART's stated reason for not promoting them was untrue or that racial bias against African Americans drove the promotion decisions. The court explained Plaintiffs’ disparate impact claim failed because, among other things, Plaintiffs did not present evidence of a statistically significant disparity between the percentage of qualified African American applicants for the Foreworker position and the percentage of African Americans promoted to Foreworker. Judgment was subsequently entered for BART. Plaintiffs later unsuccessfully moved to set aside the judgment.

Plaintiffs appeal the judgment. BART moved to dismiss the appeal. We deferred decision on BART's dismissal motion until our consideration of the appeal on its merits.

DISCUSSION

A. BART's Motion to Dismiss

As a threshold matter, BART contends Plaintiffs’ appeal must be dismissed as untimely. We disagree. As explained below, Plaintiffs’ valid but ultimately unsuccessful motion to set aside judgment extended the filing deadline for their appeal, and their notice of appeal was timely filed within this extended deadline.

The trial court issued its order granting BART's motion for summary judgment on April 7, 2021,¹ and entered judgment for BART on April 16. On April 20, BART filed and served a notice of entry of judgment.

Under California Rules of Court, rule 8.104(a)(1), Plaintiffs had 60 days from April 20, the date BART served notice of entry of judgment, to file their notice of appeal.² Thus, Plaintiffs had until June 21 to notice their appeal unless the deadline was extended based upon a recognized exception, including the filing of a motion to vacate judgment. (See Cal. Rules of Court, rule 8.108(b)–(e).)

On June 17, Plaintiffs filed their motion pursuant to Code of Civil Procedure section 473(b) (" section 473(b)") to set aside the judgment entered in BART's favor. The motion was based on inadvertence, surprise, mistake or excusable neglect. Plaintiffs’ counsel asserted that on April 6, the day before the hearing on the summary judgment motion, he was out of the office due to ill health (flu-like symptoms) and was unable to review the court's tentative ruling, which was "inadvertently not contested."

On July 7, the trial court issued an order denying the motion to set aside the judgment, noting that a motion for relief under section 473(b) must be made within a reasonable time and the moving party must show it acted diligently in seeking such relief. The court found Plaintiffs’ counsel failed to offer any reason why the motion for relief was not filed until more than 60 days after entry of judgment for BART, and more than 70 days after BART's summary judgment motion was granted. The court found counsel's lack of diligence barred Plaintiffs from any discretionary relief under section 473(b). On July 8, BART served notice of entry of the court's order on Plaintiffs.

California Rules of Court, rule 8.108(c) (" rule 8.108(c)") provides that "[i]f, within the time prescribed by rule 8.104 to appeal from the judgment, any party serves and files a valid notice of intention to move-or a valid motion -to vacate the judgment, the time to appeal from the judgment is extended for all parties until the earliest of: (1) 30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order; (2) 90 days after the first notice of intention to move-or motion-is filed; or (3) 180 days after entry of judgment." ( Cal. Rules of Court, rule 8.108(c)(1), emphasis added.) Under rule 8.108(c)(1), Plaintiffs had until August 6 – thirty days from July 7, the date the superior court clerk served the order denying...