NOT TO BE PUBLISHED

							Filed 5/8/01
                      CERTIFIED FOR PARTIAL PUBLICATION

                      COURT OF APPEAL, FOURTH DISTRICT

                                      DIVISION TWO

                                   STATE OF CALIFORNIA

WENDY SLATKIN,

        Plaintiff and Appellant,                         E027170

v.                                                       (Super.Ct.No. SCV46132)

UNIVERSITY OF REDLANDS,                                  OPINION

        Defendant and Respondent.


        APPEAL from the Superior Court of San Bernardino County. Carl E. Davis,

Judge. (Retired Judge of the San Bernardino Sup. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

        Law Offices of Barbara Metzger Kay, Barbara Metzger Kay and Judith K.

Williams for Plaintiff and Appellant.

        Musick, Peeler & Garrett, Steven D. Weinstein and Stuart D. Tochner for

Defendant and Respondent.

        Academic cat-fighting or anti-Semitism? Dr. Wendy Slatkin claims the University

of Redlands (the University) refused to grant her tenure because she is Jewish. The

University responds that it refused to grant her tenure because of perceived deficiencies in

her teaching. Unfortunately for the University, there was evidence that several of the




                                             1
people involved in the tenure decision were prejudiced against her. Fortunately for the

University, the same evidence showed they were prejudiced against her as a matter of

academic politics, rather than anti-Semitism. Dr. Slatkin introduced no admissible

evidence that anti-Semitism played any role in the denial of tenure. The trial court

granted the University’s motion for summary judgment. We will affirm.

                                              I

                                 FACTUAL BACKGROUND

       The following facts are taken from the papers filed in support of and in opposition

to the University’s motion for summary judgment. Consistent with the applicable

standard of review, we view the evidence in the light most favorable to the party opposing

the motion — i.e., in this case, to Dr. Slatkin. (Davis v. Marin (2000) 80 Cal.App.4th

380, 382, fn. 1.)

       As will be seen, there are issues regarding the admissibility of some of the

evidence Dr. Slatkin offered in opposition to the motion. For purposes of this statement

of facts, however, we assume all such evidence was admissible.

       In spring 1986, Dr. Slatkin first went to work for the University, teaching art

history part-time. In fall 1992, she began teaching full-time; however, this was not a

tenure-track position.

       In 1993, Philip A. Glotzbach, Dean of the College of Arts and Sciences, offered

Dr. Slatkin a tenure-track position as Associate Professor in the Art Department. In July



[footnote continued from previous page]
                                      Rules of Court, rules 976(b) and 976.1, this opinion
                  Pursuant to California
is certified for publication with the exception of parts III and V.

                                             2
1993, the University and Dr. Slatkin entered into an employment contract for the 1993-

1994 academic year, renewable for the 1994-1995 academic year; it provided that, in fall

1995, she would be considered for tenure.

       The University had three criteria for tenure decisions, which were set forth in the

Faculty Handbook: (1) teaching, (2) research, and (3) University (including

departmental) service.

       In spring 1994, Dr. Slatkin received a tenure-track review. Both Dean Glotzbach

and Dr. Penny A. McElroy recommended her enthusiastically, and her employment

contract was renewed.

       In the fall of 1995, Dr. Slatkin applied for tenure. The University’s deadline for

the submission of information pertinent to the tenure decision was October 30, 1995.

       On October 27, 1995, Dr. McElroy, who had become the Chair of the Art

Department, submitted a letter on behalf of the entire department supporting Dr. Slatkin

for tenure. She praised Dr. Slatkin’s research and her University service. Of

Dr. Slatkin’s teaching, however, she said:

       “In the classroom, Wendy is a lively and entertaining lecturer. In her student

evaluations she earns high praise for her knowledge and command of the subject.

Students respond to her sense of humor and appreciate her availability and willingness to

help them . . . . A majority of student evaluations express this judgment. Paradoxically,

there is also a pattern in the evaluations that characterizes the course as not very

interesting or stimulating. This pattern exists in evaluations [th]at are generally otherwise




                                              3
favorable as well as in those that are less positive overall.[1] Other observed patterns in

the evaluations include a desire on the part of some students for a more clear sense of

how they are being evaluated, and more opportunities to interact rather than passively

listen. Our visits to the classroom confirm the existence of this paradox. We honor and

rely upon Wendy’s strengths as a teacher, and hope that she will work on creating a more

interactive and stimulating classroom environment.”

       Regarding departmental service, she said: “The vigor that we observe in Wendy’s

work on University service also is apparent to us in our work in the department. . . . The

other side of all this energy and enthusiasm is a distinct lack of listening skills. . . .

[S]ometimes Wendy is so intent on pursuing her own solution to a problem, she doesn’t

appear to hear other opinions, sometimes talking directly over her colleagues.”

       Dr. McElroy testified that, while she supported Dr. Slatkin for tenure, she “had

reservations about her ability to interact harmoniously with others, accept criticism, and

achieve goals of excellence in her teaching by modifying her teaching methods to

increase the interest of her students.”

       At the same time, Raúl Acero, another Professor in the Art Department, was also

up for tenure. On October 30, 1995, Dr. Slatkin submitted a letter ostensibly supporting

Acero for tenure. However, she also said:

       “Unfortunately, Ra[ú]l has participated in generating an environment in

departmental meetings which makes frank and honest discussion difficult. He has


       1      Dr. Slatkin testified that there was no pattern of student evaluations
characterizing her as either unstimulating or uninteresting. “[T]here were a few sprinkled
here and there. But they were always embedded in a group that was very positive.”

                                                4
informed me that, in his opinion, I don’t ‘listen’ to him. Since I have made a concerted

effort to respect my colleagues’s [sic] opinions, I interprete [sic] this position as both an

inability to recognize genuine differences of opinion as well as his difficulty with clear

verbal articulation.”

       “Ra[ú]l’s geographical move to Redlands, from New York City, . . . has been very

disruptive for his career as a sculptor. He has consistently felt pressure to produce works

of sculpture, a time[-]consuming activity, in order to have new works to exhibit to rebuild

a professional life in this region.”

       “[T]he University has assisted his financial situation by hiring his wife . . . . The

commitment to employ [her] . . . came directly from the Dean’s office, and not through

‘normal’ departmental channels. [Her] performance as a ceramics instructor[] is clearly

not relevant to the decision on Ra[ú]l’s tenure. I mention this issue[] only because it is

another example of the institutional support Ra[ú]l Acero has enjoyed from this

University.

       “In return, Ra[ú]l has agreed to serve on several committees when invited to do so.

As far as I know, . . . he has not volunteered for any university service.”

       On November 2, 1995 — i.e., after the deadline — Acero submitted a letter in

which he refused to support Dr. Slatkin for tenure; he criticized her teaching and

departmental service.

       On November 6, 1995 — i.e., after the deadline — Dr. McElroy submitted a

second letter, this time recommending that Dr. Slatkin be denied tenure. She later

explained: “Ms. Slatkin’s letter made it clear to me that she would not be able to interact

effectively with her colleagues or achieve excellence in teaching, due to her inability to
                                               5
accept criticism. This incident tipped the balance against Ms. Slatkin in what had

previously been a decision to recommend her for tenure.”

       The Faculty Review Committee voted narrowly, 6 to 4, to award Dr. Slatkin

tenure. Dean Glotzbach, however, denied tenure.2 He explained: “[A]lthough her

student evaluations are generally favorable to strong and she receives support from some

colleagues who comment favorably on her teaching, sufficient questions concerning the

level at which classes are taught and her willingness to subject her teaching to critical

analysis to [sic] warrant an unfavorable tenure decision.”

       Dr. Slatkin appealed the denial. An Appeals Committee recommended that the

denial of tenure be reversed and that Dr. Slatkin be granted tenure. It found that

Dr. Slatkin’s letter regarding Acero “responded appropriately to the requirements for

faculty evaluation . . . .” Nevertheless, “the principal reason for [Dr. McElroy and

Acero’s] decision to change their recommendation was . . . Slatkin’s letter about . . .

Acero.” Dean Glotzbach, Dr. McElroy, and Acero had all applied “the unapproved

criterion of collegiality . . . .” The Appeals Committee concluded that Dean Glotzbach

had improperly placed more weight on Dr. McElroy’s second letter (“written after the

deadline in anger”) and Acero’s letter (by a still untenured professor) than on

Dr. McElroy’s first letter, the opinions of the remainder of the Art Department, and the

majority vote of the Faculty Review Committee.




       2      Nominally, Dean Glotzbach merely made a recommendation to the Board of
Trustees. In practice, however, his negative recommendation constituted the denial of
tenure.


                                              6
       Based on the Appeals Committee’s recommendation, James R. Appleton,

President of the University, overruled the denial of tenure. However, he did not grant

tenure. He explained: “ . . . I feel strongly about the faculty review process, and have

opted not to make a decision independent of a substantive review by the Faculty Review

committee and the Dean.” Rather, he advised Dr. Slatkin that she could apply for tenure

again in either 1996-1997 or 1997-1998.

       On May 6, 1996, Dean Glotzbach met with Dr. Slatkin to discuss how she could

improve her chances of obtaining tenure. He recommended that she teach for another

year before she reapplied for tenure, “so that she could demonstrate that she had

addressed the performance issues that [had been] raised . . . .”

       Instead, Dr. Slatkin reapplied immediately. She acknowledged that her tenure

packet was “fundamentally unchanged.”

       Dean Glotzbach held a “highly unusual” meeting with the members of the Art

Department to discuss Dr. Slatkin. She was not invited to the meeting nor given any

notice of it. Dean Glotzbach then summarized the meeting in a memo, which was highly

critical of Dr. Slatkin, and which he placed in her tenure dossier. He advised Dr. Slatkin

that she had a right to reply. She submitted a written reply, but it was never placed in her

tenure dossier.

       Once again, Dean Glotzbach denied tenure. He explained:

       “Some departmental colleagues . . . have serious concerns about Professor

Slatkin’s teaching, charging that she does not engage students in analytical, critical

thinking about art history and does not encourage independent thinking about the history

of art, but rather presents a narrow perspective and expects students to reiterate it. They
                                              7
complain that Professor Slatkin does not elicit thoughtful discussion in the classroom but

only responses reflective of her own or the texts’ perspectives. Finally, they suggest that

Slatkin has not shown herself capable of critical reflection about her teaching or effective

adjustment of her teaching methods.”

       “[W]hat changes she has made have not been sufficient to address the concerns

that have been raised, and other colleagues have expressed the worry that even these

recent changes may be merely cosmetic and not self-motivated.”

       “Some of her colleagues . . . complain that Professor Slatkin takes a self-interested

approach toward departmental affairs; they assert that she is volatile, does not listen well

to differing opinions, undermines the authority of the chair, and has not been dependable

in contributing her fair share to the resolution of departmental business.”

       Dr. Slatkin appealed again. Among her contentions was that Dean Glotzbach had

“creat[ed] a hostile work environment . . . .” Under this general heading, she contended

that “there is an element of anti-[S]emitic animus which is the subtext of these allegations

and mis-characterizations of my work.”

       This time, an Appeals Committee concluded “that the letter of the law was

sufficiently observed in Dr. Slatkin’s review that we do not find that her negative tenure

decision can be reversed on the basis of procedure or inadequate consideration.” It found

that most of the allegations Dr. Slatkin had made in her appeal had been refuted. It did

not address her “hostile work environment” allegations, however, because it concluded

these were “outside the scope of the Appeals Committee to consider.”

       At the same time, the Appeals Committee concluded “that Dr. Slatkin did not

receive a wholly fair and unbiased review . . . .” In a section entitled, “A prejudiced
                                              8
dean?,” it announced it was “uneasy” and “unhappy” about several incidents which

“could be construed to suggest that [Dean Glotzbach] did not work to create a strong

dossier on Dr. Slatkin’s behalf . . . .” Among these was the inclusion of Dean

Glotzbach’s critical memo, but not Dr. Slatkin’s reply, in the dossier. It therefore

recommended that Dr. Slatkin “should be allowed to try for tenure again in about three

years.”

          President Appleton accepted the Appeals Committee’s recommendation that the

denial of tenure should stand. He overruled its recommendation that Dr. Slatkin should

be allowed to seek tenure again, stating three reasons: “First, the Appeals Committee

addressed each of the bases for [the] appeal . . . and found there was no basis for

rehearing or reversal even if the Dean’s activities were inappropriate . . . . [¶] Second,

upon my independent review, I find the premise that the Dean’s role was prejudicial

cannot be substantiated. . . . [¶] Third, I do not find that the Dean’s actions were in

conflict with University procedures.” This was the first time President Appleton had ever

overruled an Appeals Committee’s recommendation.

                 Both Dean Glotzbach and Dr. McElroy testified that Dr. Slatkin’s religion

played no part in their recommendations that she be denied tenure.

                                                II

                               PROCEDURAL BACKGROUND

          Dr. Slatkin asserted four causes of action : (1) breach of implied contract, (2)

breach of implied covenant of good faith and fair dealing, (3) employment discrimination,

and (4) fraud. In her employment discrimination cause of action, she alleged that the



                                                9
University had violated the California Fair Employment and Housing Act (FEHA) (Gov.

Code, § 12900 et seq.) by denying her tenure because she was a Jew.

       The University moved for summary judgment on all causes of action. Dr. Slatkin

opposed the motion with respect to her first three causes of action, but not with respect to

her fourth (fraud) cause of action. The trial court granted the motion. Accordingly, it

entered judgment for the University and against Dr. Slatkin.

       In this appeal, Dr. Slatkin raises no issue with respect to her first two causes of

action. She challenges only the summary judgment on her FEHA cause of action.

                                             III

                                 EVIDENTIARY ISSUES

       The University contends Dr. Slatkin’s proffered evidence of anti-Semitic animus

consisted of “unsupported, unauthenticated, hearsay testimony.” Dr. Slatkin contends,

albeit briefly, this evidence was admissible.3

       A.     Additional Factual and Procedural Background.

       Dr. Slatkin’s proffered evidence of anti-Semitic animus included the following.

              1.     Documents.

       Dr. Slatkin’s counsel testified that the University had produced the following

documents in discovery:

       a.     A letter dated December 12, 1988, from Frank F. Wong, identified as Vice

President of Academic Affairs, to Dr. Jodye Selco. The letter stated, in part: “I do not


       3     Dr. Slatkin also contends that, to the extent this evidence was hearsay, she
should have been allowed a continuance so she could remedy the hearsay problem by
deposing knowledgeable witnesses. We deal with this contention in part V, post.

                                             10
dispute that we have a problem with overt and covert anti-[S]emitism. Our society has

this problem and we are presumptious [sic] to think that we would not have it as well.

But this problem cannot be resolved simply by administrative edicts. It involves attitudes

and assumptions of students, faculty and administrators alike.”

       b.     An undated anonymous letter to Dr. Selco. It stated: “Dear Obnoxious [¶]

If you seriously wonder what causes previously unprejudiced individuals to move in the

direction of becoming anti[-S]emitic, take a good, deep look at yourself in the mirror. It’s

obvious that you are a dramatically unstable woman and it is truly sad that you present

such an overwhelmingly negative Jewish image on campus. What’s your problem?”

       The letter bore a handwritten note dated March 14, 1989, from Dr. Selco to

President Appleton, stating, “For your information, this arrived in today’s campus mail.”

       The letter also bore a second handwritten note, undated, from President Appleton

to Dr. Selco. It stated: “I’m sorry this was sent to you. For what it’s worth, I never

worry about unsigned material because there is no way to respond intelligently.”

Dr. Slatkin testified this response showed anti-Semitism because it was not “proactive.”

       c.     A memo dated February 27, 1997, by Milton LaPointe, identified as

“Manager, Equal Opportunity Programs.” It stated that, in February 1997, Dr. Slatkin had

lodged a complaint to the effect that “she perceives a campus-wide climate of anti-

Semitic discrimination against Jewish professors.” She had named Dean Glotzbach and

Dr. McElroy as persons who discriminated, and herself and Dr. Harris Fogel as Jewish

professors who had been discriminated against.

       “Dr. Slatkin states that Dr. McElroy has distanced herself from Dr. Slatkin and that

Dr. McElroy rarely initiates professional, or otherwise, conversation with Dr. Slatkin; that
                                             11
Dr. McElroy shows no interest in Dr. Slatkin’s teaching or research activities; and that

Dr. McElroy avoids all but the most minimal contact with Dr. Slatkin.”

       “Dr. Harris Fogel was, according to Dr. Slatkin, on the most slender evidence,

accused by Dr. Penny McElroy of sexual harassment of students, of being insensitive to

veganism, incompetent, insubordinate and generally harassed.”

       Dr. Slatkin claimed that Dr. David Bragg and Dr. John Brownfield could

“corroborate her statements.” Dr. Bragg agreed that “ . . . Dr. Penny McElroy singled

Dr. Fogel out,” but he “was uncertain whether it was because of Dr. Fogel being Jewish.”

Dr. Brownfield said that “ . . . Dr. Slatkin’s allegations are baseless.”

       LaPointe had also interviewed a number of other people. On March 4, 1997,

however, Dr. Slatkin had asked him “to cease this investigation.” He concluded, “The

aborted investigation results do not support the allegations of Dr. Wendy Slatkin.”

       d.     A memo dated July 29, 1997, from LaPointe to Dr. Selco. It stated that

Dr. Selco had complained that “after repeated requests over 10 years to Dean Glotzbach’s

office [and others] not to do so, Chemistry Department meetings continue to be scheduled

on Jewish High Holidays. Dr. Selco believes these schedulings are deliberate.”

       It concluded: “The findings regarding meetings being scheduled on Jewish High

Holidays was substantiated. Dr. Selco has repeatedly brought this issue to the attention of

her Department, the Provost, . . . and the Dean . . . , before and after Dean Glotzbach’s

time at the University. Yet, meetings continue to be scheduled on Jewish High

Holidays.”




                                              12
               2.     Dr. Slatkin’s Testimony.

       a.      Dr. Slatkin testified: “In the past two years I am aware that there have been

at least three filings with the Department of Fair Employment and Housing, alleging

discrimination against Jews by the University of Redlands. All DFEH complaints allege

that Dean Glotzbach played some role in the discrimination.”

       b.      When asked, “Had anybody made any comments to you in a disparaging

manner regarding your being Jewish as of October of ’95?,” Dr. Slatkin responded:

“[T]here were clear comments about me being Jewish but in terms of I would be one of

the few people who wouldn’t have classes on the high holidays.”

       c.      Dr. Slatkin testified: “There was a big faculty retreat on Rosh Hashanah

that I did not attend . . . .” She also testified: “[T]hey didn’t cancel things that were

going on. The retreat . . . that was often on Yom Kippur, was not rescheduled.” “ . . . I

was involved with that program, and I should have been there, and it was Yom Kippur.”

       d.      Dr. Slatkin testified: “ . . . I know that the Science Department repeatedly

. . . had . . . meetings held on Rosh Hashanah and Yom Kippur and sometimes even social

events on those days.” “[T]he Science Department I wasn’t involved in. I am not a

member of the Science faculty, but I have a Jewish colleague on there who repeatedly was

having problems with them in terms of not scheduling.”

       e.      Dr. Slatkin testified that Dr. Selco had received “at least two” items of

“Jewish hate mail.”

       f.      Dr. Slatkin testified that a member of the Science Department had said to

her that Dr. Selco “[is] abrasive or . . . too defensive or . . . too volatile or aggressive



                                               13
. . . .” Other members of the Science Department had said to her, “‘Oh, [Dr. Selco] is

this. [Dr. Selco] is that. [Dr. Selco] is different. I don’t like her.’”

       g.     Dr. Slatkin testified that Mark Voldman, a math professor, believed he had

been discriminated against because he was Jewish. Voldman told her his belief was

based on “certain comments about his religion that were made in the tenure process . . . .”

       h.     Dr. Slatkin testified one Yash Owada told her that George Armacost, a

former president of the University, had said the Johnson Center was “one of the greatest

mistakes of his career” because it became “a haven for Jews on campus.”

              3.      Objections.

       The University objected to Dr. Slatkin’s testimony regarding DFEH complaints

(see part III.A.2.a, ante) as hearsay. It also objected to the Wong letter (see part III.A.1.a,

ante) as unauthenticated. Otherwise, it did not object to any specific item of evidence

listed above. In its reply, however, it did argue that Dr. Slatkin’s opposition was

“essentially the irrelevant, rumored hearsay of other persons, who are for the most part

unnamed and anonymous — and who provide no direct testimony herein.” It also argued

that Dr. Slatkin’s own deposition testimony was “pure hearsay.” Finally, it argued that

Dr. Slatkin’s allegations regarding other Jewish professors were “unsupported hearsay.”

              4.      The Trial Court’s Ruling.

       The trial court never specifically ruled on the University’s evidentiary objections.

At the hearing, however, it stated: “[A]ll of your evidence of pretext is in my judgment

based on hearsay and rumor . . . . [¶] So I’m really leaning toward granting summary

judgment on that basis.” Thereafter, its written order stated: “[T]he plaintiff . . . has

failed to offer substantial, admissible evidence of pretext.” (Emphasis in original.)
                                               14
       B.      Analysis.

       The University objected to Dr. Slatkin’s evidence as hearsay. Assuming, without

deciding, the University’s objections were inadequately specific, the trial court could

exclude evidence on its own motion. (Gherman v. Colburn (1977) 72 Cal.App.3d 544,

581, and cases cited.) The trial court ruled that “plaintiff . . . has failed to offer

substantial, admissible evidence of pretext.” This was a clear (albeit terse) ruling that

Dr. Slatkin’s proffered evidence of animus was inadmissible. We turn to whether this

ruling was correct.

       The Wong letter (see part III.A.1.a, ante), though hearsay, was potentially

admissible as an authorized admission. (Evid. Code, § 1222.) There was even some

evidence that Wong was authorized to speak for the University. (See generally O’Mary v.

Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563, 570-574.) The

University’s objection, however, that the letter was not properly authenticated was well-

taken. (Evid. Code, §§ 1400, 1401, subd. (a).)

       The anonymous letter to Dr. Selco was also hearsay. The text of the letter, of

course, was not offered for its truth; it was offered to show President Appleton’s reaction

to it. Like the Wong letter, President Appleton’s handwritten note was potentially

admissible as an authorized admission. Because the letter was not properly authenticated,

however, there was no evidence that President Appleton actually wrote the note.

       Much the same analysis also applies to the two LaPointe memos. It is arguable

that, had they qualified as authorized admissions, they would have been admissible

despite the fact that LaPointe had no personal knowledge of the facts stated in them and

was merely recounting what others had told him. (See Levy-Zentner Co. v. Southern Pac.
                                               15
Transportation Co. (1977) 74 Cal.App.3d 762, 787 [“The usual requirement of personal

knowledge is dispensed with in the case of admissions [citation]”]; 1 Witkin, Cal.

Evidence. (4th ed. 2000) Hearsay § 94, p. 797l; but see Breidert v. Southern Pac. Co.

(1969) 272 Cal.App.2d 398, 411-412.) This is equally arguable if they had qualified as

business records. (See Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 126.) Once

again, however, the necessary foundation was never laid.

       Rather surprisingly, it is not entirely clear whether a party can offer his or her own

deposition on a motion for summary judgment. (2 Cal. Civil Procedure Before Trial

(Cont.Ed.Bar 3d ed. 2000) § 44.38, at pp. 1497-1498; compare Code Civ. Proc., § 437c,

subd. (b), with Code Civ. Proc., § 2025, subd. (u); see also Gatton v. A.P. Green Services,

Inc. (1998) 64 Cal.App.4th 688, 693-696.) We therefore assume, without deciding,

Dr. Slatkin could do so.

       Even if so, however, Dr. Slatkin’s testimony, as evidence of discrimination, was all

inadmissible hearsay, with three exceptions: (1) Her testimony that she heard comments

that she was “one of the few people who wouldn’t have classes on the high holidays.”

(See part III.A.2.b, ante.) (2) Her testimony that she was unable to attend a faculty retreat

because it was scheduled for Rosh Hashanah and/or Yom Kippur. (See part III.A.2.c,

ante.) (3) Her testimony that one Science Department member had said Dr. Selco was

“abrasive,” “defensive, “volatile” and/or “aggressive,” and others had said Dr. Selco “is

different. I don’t like her.” (See part III.A.2.f, ante.) These items were all based on

Dr. Slatkin’s own personal knowledge.




                                             16
        We conclude that, with the exception of these three items, the evidence of animus

listed above was inadmissible. We will consider the effect of the admissible items in part

IV, post.

                                               IV

                                  SHOWING OF PRETEXT

        Dr. Slatkin contends there was a triable issue of fact as to whether the University’s

claimed reasons for denying her tenure were pretextual, and hence as to whether its actual

reason was religious discrimination.

        “ . . . California has adopted the three-stage burden-shifting test established by the

United States Supreme Court for trying claims of discrimination . . . based on a theory of

disparate treatment. [Citations.]” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317,

354, fn. omitted.) This is commonly known as the McDonnell Douglas test (ibid.), after

McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d

668].

        “‘First, the plaintiff bears the initial burden of establishing a prima facie case of

discrimination. The employer then must offer a legitimate nondiscriminatory reason for

the adverse employment decision. Finally, the plaintiff bears the burden of proving the

employer’s proffered reason was pretextual. [Citations.]’ [Citation.]” (Le Bourgeois v.

Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049, 1058, fn. omitted, quoting

Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236.)

        “However, like all other defendants, the employer who seeks to resolve the matter

by summary judgment must bear the initial burden of showing the action has no merit.

[Citation.] The employer carries its burden if, inter alia, it ‘establish[es] an undisputed
                                               17
legitimate, nondiscriminatory basis for [the employment decision.]’ [Citation.] Absent

‘substantial responsive evidence . . . of the untruth of the employer’s justification or a

pretext, a law and motion judge may summarily resolve the discrimination claim.’

[Citation.]” (Le Bourgeois v. Fireplace Manufacturers, Inc., supra, 68 Cal.App.4th at

p. 1058, quoting Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1051, and

University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1039;

accord, Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 357, 362.)

       Here, the University introduced evidence that it relied on legitimate,

nondiscriminatory reasons in denying Dr. Slatkin tenure. Some of this consisted of

evidence that Dean Glotzbach, Dr. McElroy, and others found Dr. Slatkin both

uninspiring as a teacher and uncooperative as a colleague; they also found her unable to

accept criticism, and hence unlikely to improve.

       Certainly there was evidence that the claimed reliance on Dr. Slatkin’s supposed

professional weaknesses was pretextual. For example, Dr. Slatkin introduced evidence

that student evaluations of her, on which Dr. McElroy purportedly relied, were actually

“very positive.” All such evidence of pretext, however, overwhelmingly indicated that

the real reason was lingering resentment over l’affaire Acero.

       Dr. Slatkin therefore argues that evidence of pretext is tantamount to evidence of

discrimination. As she puts it, “rejection of a defendant employer’s proffered

nondiscriminatory business reason as incorrect is ordinarily evidence the employer was

concealing an unlawful motive.” We disagree.

       First, Dr. Slatkin’s argument “impl[ies] that the employer’s ‘proffered

explanation,’ his ‘stated reasons,’ his ‘articulated reasons,’ somehow exist apart from the
                                              18
record — in some pleading, or perhaps in some formal, nontestimonial statement made

on behalf of the defendant to the factfinder. . . . Of course it does not work like that. The

reasons the defendant sets forth are set forth ‘through the introduction of admissible

evidence.’ [Citation.] In other words, the defendant’s ‘articulated reasons’ themselves

are to be found ‘lurking in the record.’” (St. Mary’s Honor Center v. Hicks (1993) 509

U.S. 502, 522-523 [113 S.Ct. 2742, 125 L.Ed.2d 407].) Here, the University

understandably might not want to argue that the tenure decision involved academic

politics. Nevertheless, we may treat academic politics as a “proffered” reason, not merely

as evidence that the University’s other “proffered” reasons were a pretext for

discrimination.

       Second, even if pretext is shown, “an inference of intentional discrimination

cannot be drawn solely from evidence, if any, that the company lied about its reasons.

The pertinent statutes do not prohibit lying, they prohibit discrimination. [Citation.]

Proof that the employer’s proffered reasons are unworthy of credence may ‘considerably

assist’ a circumstantial case of discrimination, because it suggests the employer had cause

to hide its true reasons. [Citation.] Still, there must be evidence supporting a rational

inference that intentional discrimination, on grounds prohibited by the statute, was the

true cause of the employer’s actions. [Citation.]” (Guz v. Bechtel National, Inc., supra,

24 Cal.4th at pp. 360-361; accord, St. Mary’s Honor Center v. Hicks, supra, 509 U.S. at

pp. 514-515 [“[N]othing in law would permit us to substitute for the required finding that

the employer’s action was the product of unlawful discrimination, the much different (and

much lesser) finding that the employer’s explanation of its action was not believable”].)



                                             19
       A personal grudge can constitute a “legitimate, nondiscriminatory reason” for an

adverse employment decision. “[I]f nondiscriminatory, [the employer]’s true reasons

need not necessarily have been wise or correct. [Citations.] While the objective

soundness of an employer’s proffered reasons supports their credibility [citation], the

ultimate issue is simply whether the employer acted with a motive to discriminate

illegally. Thus, ‘legitimate’ reasons [citation] in this context are reasons that are facially

unrelated to prohibited bias, and which, if true, would thus preclude a finding of

discrimination. [Citations.]” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 358,

fn. omitted.) The fact that the University prohibited the use of “collegiality” as a criterion

for tenure does not turn covert reliance on it into evidence of discrimination. To the

contrary, it shows why Dean Glotzbach and Dr. McElroy might have concealed their real

reason, even if it was not discriminatory.

       There was no evidence that any lingering resentment was, itself, a pretext for

religious discrimination. To the contrary, it seems to have been all too genuine. Both

Dean Glotzbach and Dr. McElroy supported Dr. Slatkin enthusiastically, until she wrote

her letter regarding Acero. It was Dean Glotzbach who offered her a tenure-track

position in the first place. During her tenure-track review, both Dean Glotzbach and

Dr. McElroy unreservedly supported the renewal of her contract. Dr. Slatkin admitted

that, before the Acero letter, her relationship with Dr. McElroy was “cordial and

collegial.” Likewise, before the Acero letter, Dean Glotzbach assured her “that he was

supporting [her] tenure bid.” “‘[W]here the same actor is responsible for both the hiring

and the firing of a discrimination plaintiff, . . . a strong inference arises that there was no

discriminatory motive.’ [Citations.]” (Horn v. Cushman & Wakefield Western, Inc.
                                               20
(1999) 72 Cal.App.4th 798, 809, quoting Bradley v. Harcourt, Brace and Co. (9th Cir.

1996) 104 F.3d 267, 270-271.)

       We recognize that “[i]n an appropriate case, evidence of dishonest reasons,

considered together with the elements of the prima facie case, may permit a finding of

prohibited bias. [Citations.]” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 356,

italics added.) We question, however, whether this is “an appropriate case.” Here, all the

evidence that the University’s claimed reasons were dishonest pointed equally to the

conclusion that its true reasons were nondiscriminatory.

       We even question whether Dr. Slatkin introduced sufficient evidence to establish a

prima facie case of discrimination. “Generally, the plaintiff must provide evidence that

(1) he was a member of a protected class, (2) he was qualified for the position he sought

or was performing competently in the position he held, (3) he suffered an adverse

employment action, such as termination, demotion, or denial of an available job, and (4)

some other circumstance suggests discriminatory motive. [Citations.]” (Guz v. Bechtel

National, Inc., supra, 24 Cal.4th at p. 355, fn. omitted; see also Texas Dept. of

Community Affairs v. Burdine (1981) 450 U.S. 248, 253 [101 S.Ct. 1089, 67 L.Ed.2d 207]

[“The plaintiff must prove by a preponderance of the evidence that she . . . was rejected

under circumstances which give rise to an inference of unlawful discrimination”].)

       Here, there was insufficient evidence of a discriminatory motive. The report of the

second Appeals Committee, which questioned whether Dean Glotzbach was “prejudiced”

against Dr. Slatkin based on certain “concrete examples of discriminatory behavior,” was

not properly authenticated. Hence, it was inadmissible hearsay. Even if admissible,

however, this evidence, like other evidence that University procedures were violated,
                                             21
showed, at most, that Dean Glotzbach, Dr. McElroy, and possibly President Appleton4

were “prejudiced” against Dr. Slatkin. It did not show why they were prejudiced. The

Appeals Committee did not consider, and did not make any findings on, Dr. Slatkin’s

charges of anti-Semitism. On this record, no reasonable juror could conclude that such

“prejudice” was based on her religion rather than on the Acero incident. (Guthrey v. State

of California (1998) 63 Cal.App.4th 1108, 1117-1118 [incident in which plaintiff’s

supervisor berated him loudly and aggressively showed “unwarranted hostility,” but

“mere fact [supervisor] is a female and plaintiff a male does not give rise to the inference

that her alleged aggressive conduct was motivated by a desire to discriminate on the basis

of gender”].)

       As we discussed in part III, ante, the trial court properly disregarded nearly all of

Dr. Slatkin’s proffered evidence of anti-Semitic animus as inadmissible. What little

remained was insufficient. First, there was evidence that Dr. Slatkin was unable to attend

a faculty retreat because it was scheduled on the Jewish high holidays. This was

insufficient to show religious discrimination. FEHA forbids “an employer . . . to

discriminate against a person in compensation or in terms, conditions, or privileges of

employment because of a conflict between the person’s religious belief or observance and

any employment requirement, unless the employer . . . demonstrates that it has explored

any available reasonable alternative means of accommodating the religious belief or

observance, including the possibilities of excusing the person from those duties that



       4    The fact that President Appleton had never previously reversed an Appeals
Committee’s recommendation was shown only by an unauthenticated hearsay document.


                                             22
conflict with his or her religious belief or observance . . . .” (Gov. Code, § 12940, subd.

().) Here, the University did in fact excuse Dr. Slatkin from her conflicting duties.

There was no indication that she was disadvantaged by her nonattendance.

       In Lawrence v. Mars, Inc. (4th Cir. 1992) 955 F.2d 902, cert. den. 506 U.S. 823

[113 S.Ct. 76, 121 L.Ed.2d 40], the employer scheduled an important managers’

conference during Rosh Hashanah. The plaintiff used two days of vacation time to

observe Rosh Hashanah. When he returned, a fellow employee told him, by way of

“friendly advice,” that there was no excuse for missing the conference. (Id., at p. 904.)

About six weeks later, he was terminated. (Id., at p. 905.) The federal appellate court

held the plaintiff had failed to present sufficient “direct or indirect evidence from which a

trier of fact could infer religious discrimination.” (Id., at p. 906.) We conclude that

scheduling a significant business event during the high holidays is not evidence of

discriminatory animus.

       Dr. Slatkin also did not teach on the high holidays. She did not claim that she

suffered any adverse consequences. She did testify that she heard “comments” about this,

but there was no evidence as to who made these comments. Similarly, Dr. Slatkin

testified that that a Science Department member had told her that Dr. Jodye Selco — a

Jewish chemistry professor — was “abrasive,” “defensive, “volatile” and/or “aggressive.”

There is no basis for concluding that any of these comments were anti-Semitic.5 This is



       5       LaPointe, the manager of the University’s Equal Opportunity Program,
found that Dr. Selco was “a colleague with whom it is difficult to interact without rancor,
unnecessarily confrontational,” and “generally inconsiderate with colleagues.” We in part
III, ante, held that his memorandum was both unauthenticated and inadmissible hearsay.
                                                                  [footnote continued on next page]
                                             23
all the more true of the comments that Dr. Selco was “different” or that the speaker did

not like her. In any event, an isolated remark by a person not involved in the adverse

employment decision “is entitled to virtually no weight in considering whether the firing

was pretextual or whether the decisionmaker harbored discriminatory animus.” (Horn v.

Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 809.)

        In summary, then, the evidence showed that the University denied Dr. Slatkin

tenure for one of two reasons (or both): either (1) she did not deserve it, or (2) her

colleagues could not forgive her for making negative comments about Acero. There was

no admissible evidence that the University actually denied Dr. Slatkin tenure based on

anti-Semitic bias against her. We conclude that the trial court properly granted summary

judgment.

                                               V

              DENIAL OF A CONTINUANCE TO COMPLETE DISCOVERY

        Dr. Slatkin alternatively contends the trial court erred by refusing to grant her a

continuance so she could take further discovery. (See Code Civ. Proc., § 437c, subd. (h).)

        A.       Additional Factual and Procedural Background.

        Dr. Slatkin filed this action on March 13, 1998. At some point, the trial court set a

discovery cutoff date of January 7, 2000, and a trial date of February 7, 2000.




[footnote continued from previous page]
It points up the problem, however, in concluding that Dr. Selco’s colleague was
expressing anti-Semitism rather than anti-Selcoism.


                                              24
        Dr. Slatkin took depositions of Dean Glotzbach and Dr. McElroy; Dr. McElroy’s

was not completed. The last date on which Dr. Slatkin took any deposition was April 16,

1999.

        Meanwhile, on March 24, 1999, Dr. Slatkin served interrogatories and a request

for production. On May 6, 1999, the University served its responses.

        On October 8, 1999, Dr. Slatkin filed motions to compel further responses to the

interrogatories and the request for production. On November 2, 1999, the trial court

granted the motions to compel, in part, and it gave the University 30 days to respond.

        On December 1, 1999, the University served more responses and produced more

documents. On December 2, 1999, it served its motion for summary judgment. The

motion was set for hearing on December 30, 1999.

        Meanwhile, on November 30, 1999, Dr. Slatkin’s attorney’s grandfather had been

hospitalized. She had noticed depositions of Dr. McElroy and President Appleton for

December 13 and 15, 1999, respectively. Due to her grandfather’s illness, however, she

was unable to review the University’s further responses, and she did not believe she

would be able to go forward with the impending depositions.

        On December 10, 1999, Dr. Slatkin filed an ex parte application to continue both

the hearing on the motion for summary judgment and the trial by approximately one

month.6 The grounds for the application were the illness of her attorney’s grandfather




        6     There was some confusion as to whether Dr. Slatkin also sought to continue
the discovery cutoff. She had given the University’s attorney notice that she would be
applying to continue the hearing and the trial. The caption, the opening, and the
conclusion of her written application all likewise stated that she was seeking to continue
                                                                [footnote continued on next page]
                                            25
and the need for her attorney to review the University’s further production of documents

and thereafter to depose Dr. McElroy and President Appleton. On December 13, 1999,

the trial court continued the hearing on the motion for summary judgment to January 13,

2000;7 however, it declined to continue the discovery cutoff or the trial.

        On January 3, 2000, Dr. Slatkin filed her opposition to the motion for summary

judgment. She argued, among other things, that the trial court should order a

continuance, under Code of Civil Procedure section 437c, subdivision (h), so she could

take depositions of Dr. McElroy, President Appleton, and LaPointe. The University

opposed a continuance, arguing she had been “dilatory.”

        The trial court took the motion under submission. Thereafter, it granted the

motion. Thus, it implicitly denied Dr. Slatkin’s request for a continuance.




[footnote continued from previous page]
the hearing and the trial. In the midst of her application, however, she mentioned that she
was also seeking a continuance of the discovery cutoff.

       During the hearing, the trial court stated five separate times that it did not have
before it any application to continue the discovery cutoff. Dr. Slatkin’s attorney never
disputed this. We conclude that Dr. Slatkin never effectively requested a continuance of
the discovery cutoff.
        7     Dr. Slatkin claims the application was granted solely on the condition that
she take no discovery during the two-week extension period. That is incorrect.

       Certainly counsel for the University asked the trial court to impose such a
condition. Moreover, Dr. Slatkin’s counsel expressly consented to the condition,
explaining that she would not be in a position to take any discovery during this period
anyway.

       Nevertheless, the trial court refused to make any order regarding discovery, and its
written order granting the continuance does not contain this condition.


                                             26
       B.     Analysis.

       Code of Civil Procedure section 437c, subdivision (h), as pertinent here, provides:

“If it appears from the affidavits submitted in opposition to a motion for summary

judgment . . . that facts essential to justify opposition may exist but cannot, for reasons

stated, then be presented, the court shall deny the motion, or order a continuance to permit

affidavits to be obtained or discovery to be had . . . .”

       “The affidavit[s] must show: (1) the facts to be obtained are essential to opposing

the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why

additional time is needed to obtain these facts. [Citations.]” (Wachs v. Curry (1993) 13

Cal.App.4th 616, 623.) The affidavits also must show why the necessary discovery could

not have been obtained earlier. (O’Laskey v. Sortino (1990) 224 Cal.App.3d 241, 251;

Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 129 [Fourth Dist.,

Div. Two]; Hartenstine v. Superior Court (1987) 196 Cal.App.3d 206, 221 [Fourth Dist.,

Div. Two], cert. den. (1988) 488 U.S. 899 [109 S.Ct. 245, 102 L.Ed.2d 234].)

       It has been said that, if the conditions of Code of Civil Procedure section 437c,

subdivision (h) have been met, a continuance is mandatory. (Mahoney v. Southland

Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170; Fisher v.

Larsen (1982) 138 Cal.App.3d 627, 648, cert. den. (1983) 464 U.S. 959 [104 S.Ct. 390,

78 L.Ed.2d 335].) We nevertheless review the grant or the denial of a continuance sought

under this statutory provision using an abuse of discretion standard. (FSR Brokerage, Inc.

v. Superior Court (1995) 35 Cal.App.4th 69, 72; Fisher v. Larsen, supra, 138 Cal.App.3d

at pp. 648-649.) This is particularly appropriate where a continuance has been denied



                                               27
based on lack of diligence. (See Danieley v. Goldmine Ski Associates, Inc., supra, 218

Cal.App.3d at p. 129.)

       In part III, ante, we held that nearly all of Dr. Slatkin’s proffered evidence of

discriminatory intent was hearsay. Dr. McElroy and President Appleton were in a

position to have personal knowledge of the University’s discriminatory intent, if any.

Although LaPointe was not, he could at least have authenticated his memos. Thus,

Dr. Slatkin adequately showed that, if only she could take their depositions, she might be

able to present “facts essential to justify opposition” to the motion.

       Dr. Slatkin, however, failed to show why she could not have taken these

depositions sooner. She argued that she needed the University to produce documents,

which it had not done (at least, not satisfactorily) until she filed and prevailed on her

motion to compel. The problem is that she failed to explain why she did not so much as

start this process by serving a request for production until the action had already been

pending for a year. She also failed to explain why it took her five months — from May 6

to October 8, 1999 — to bring a motion to compel. Ordinarily, such a motion must be

brought within 45 days after service of the response to the request. (Code Civ. Proc.,

§ 2031, subd. (m).) Dr. Slatkin’s earlier motion to compel may have explained this time

lapse. Her ex parte application for a continuance and her opposition to the motion for

summary judgment, however, which were all the trial court had before it, did not.

       At the hearing on the ex parte application, Dr. Slatkin’s attorney mentioned the

delay in bringing the motion to compel as follows: “We went back and forth for months.

And . . . part of the delay was due to his father’s passing in June. [¶] So all the months of

the summer there were letters going back and forth. I requested extensions of time to
                                              28
bring the motion because he was not providing me any further response.” This fell far

short of explaining why the motion was not brought until October 8. Additionally, this

explanation was not supported by an affidavit or declaration, as Code of Civil Procedure

section 437c, subdivision (h) would require.

       Dr. Slatkin was up against the discovery cutoff date and the trial date. Absent a

continuance of the discovery cutoff, a continuance of the hearing on the motion for

summary judgment would do her little good. However, she never actually sought a

continuance of the discovery cutoff itself. If she had sought such a continuance, the trial

court could properly have denied it, in its discretion, based on her lack of diligence, and

based on the imminence of trial. (Code Civ. Proc., § 2024, subd. (e).)

       Pursuant to the Trial Court Delay Reduction Act (Gov. Code, § 68600 et seq.), San

Bernardino County has set the goal that cases are to be tried or otherwise disposed of

within two years after they are filed. (Super. Ct. San Bernardino County, Local Rules,

rule 401.) As a result of Dr. Slatkin’s inaction early in the game, the two-year clock was

about to run. On March 13, 2000, the case would have become subject to discretionary

dismissal for failure to prosecute. (Cal. Rules of Court, rule 372(a).)

       We conclude that the trial court did not abuse its discretion by denying the

requested continuance. “The result we reach is harsh, but it is unavoidable. It was

[Dr. Slatkin]’s responsibility to prosecute h[er] case with diligence, to collect admissible

evidence and to conduct discovery in a timely fashion. It was [Dr. Slatkin]’s

responsibility to offer admissible evidence to defeat [the University]’s motion for

summary judgment.” (O’Laskey v. Sortino, supra, 224 Cal.App.3d at p. 251.) Because

she failed to do so, the trial court did not err.
                                                29
                                          VI

                                    DISPOSITION

      The judgment is affirmed. The University shall recover costs against Dr. Slatkin.

      CERTIFIED FOR PARTIAL PUBLICATION



                                                             RICHLI
                                                                                          J.

We concur:


RAMIREZ
                       P.J.


GAUT
                         J.




                                          30