Zivkovic v. Southern California Edison Co.

Decision Date12 September 2002
Docket NumberNo. 00-56867.,00-56867.
Citation302 F.3d 1080
PartiesMladen ZIVKOVIC, Plaintiff-Appellant, v. SOUTHERN CALIFORNIA EDISON COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Lillian Tomich, San Marino, CA, for plaintiff-appellant Mladen Zivkovic.

William D. Harn and John F. Guest, Rosemead, CA, for defendant-appellee Southern California Edison Co.

Appeal from the United States District Court for the Central District of California; Gary L. Taylor, District Judge, Presiding. D.C. No. CV-99-01360-GLT.

Before BROWNING, THOMAS and RAWLINSON, Circuit Judges.

OPINION

RAWLINSON, Circuit Judge.

Plaintiff-Appellant Mladen Zivkovic ("Zivkovic") appeals the district court's grant of judgment in favor of Defendant-Appellee Southern California Edison Co. ("Edison") after a bench trial on Zivkovic's claim of disability discrimination under the Americans with Disabilities Act ("ADA"). Zivkovic also appeals certain procedural rulings made by the district court. Zivkovic's appeal is timely and we have jurisdiction pursuant to 28 U.S.C. § 1291. The district court did not err when making its procedural rulings. However, the district court failed to make sufficiently detailed factual findings to allow for complete review of its decision on the merits. Accordingly, we vacate the district court's judgment and remand with the instruction that the district court make clear findings in accordance with Fed.R.Civ.P. 52(a).

BACKGROUND

On December 29, 1998, Zivkovic, filed a pro se two-page complaint in federal court alleging that Edison discriminated against him during the hiring process for a meter reader job. On February 12, 1999, Edison filed its answer denying discrimination. Thereafter, Zivkovic retained counsel who filed a substitution of attorney on May 11, 1999.

On June 14, 1999, the district court held a mandatory status conference where all parties were represented by counsel. At the conference, the district court scheduled a one-day trial to be held on January 11 2000. The court also established the following schedule: "Motions to amend pleading to join other parties must be filed by 7/14/99;" "Discovery must be completed by 10/25/99;" "All dispositive motions must be heard by 11/29/99;" and "The Pretrial Conference is set for 12/20/99 at 1:00 P.M."

On July 14, 1999, Zivkovic requested a jury trial. His request was denied on August 31, 1999. On October 20, 1999, Zivkovic moved for leave to file a first amended complaint. The motion was denied initially on November 18, 1999, and upon reconsideration on May 3, 2000. On March 3, 2000, Zivkovic moved to modify the scheduling order, to continue the trial date, and to reopen discovery. That motion was also denied on May 3, 2000.

After various continuances, the case was scheduled for a one-day bench trial, which began on August 31, 2000. At trial, the evidence showed that Zivkovic, who is hard of hearing, applied for the position of meter reader at Edison in 1991. Zivkovic passed the written qualifying test but no interview was scheduled. In 1993, Zivkovic filled out another application. In a letter dated July 21, 1993, Edison notified Zivkovic of another test but also indicated that if "you have taken this test previously, do not attend." The letter instructed that "if you have a disability that you feel requires special arrangements to take the tests, please contact us by telephone." Zivkovic retook the test and passed.

Zivkovic testified that he was interviewed by two Edison employees who intimated that he had passed the interview and would be given a job when there was an opening. Edison's recruiter, Todd Fagan ("Fagan"), testified that he had no record of that interview. Zivkovic further testified that he or his mother periodically inquired at Edison to see when an opening would become available. Zivkovic's mother testified that when she called Edison in January, 1997 and spoke with Fagan, he told her, "I am going to send [Zivkovic] to work." Zivkovic's mother further testified that Fagan indicated Zivkovic passed the interview and written test, but his application was missing and her son should mail in another application for the file. Zivkovic's mother also testified that Fagan needed Zivkovic to come to his office and "speak about the job a little bit." Zivkovic's mother did not indicate to Fagan that her son needed an interpreter.

Fagan testified that he informed Zivkovic's mother about Zivkovic's test scores, and committed to send out an application which Zivkovic needed to complete and return, but gave no assurances regarding the application process. Fagan further testified that he later met Zivkovic in the lobby of his office when Zivkovic was dropping off his application. Fagan explained the next step would be scheduling an interview. Fagan testified that Zivkovic did not tell him he was hearing impaired or that he needed an interpreter, but he realized that Zivkovic had a hearing problem from speaking with him and from his application.1 Nevertheless, Fagan believed that Zivkovic understood everything said.

Zivkovic testified that Fagan did not mention an oral interview. Instead, Zivkovic related that Fagan reassured Zivkovic not to worry because he would get the job "in about two weeks." Zivkovic recalled Fagan discussing a meeting that would take place, and testified that he told Fagan to call his mother about the date of the meeting. Zivkovic also stated that he told Fagan he was hard of hearing and knew sign language, to which Fagan responded, "No problem."

Zivkovic's mother then testified that she called Fagan two weeks later, whereupon Fagan informed her that Zivkovic should attend a meeting on April 16, 1997. She relayed this information to her son.

On April 16, 1997, Zivkovic met with Edison representatives Rudy Rea ("Rea") and John Ortega ("Ortega"). Rea admitted to reviewing part of Zivkovic's application but was not aware before the meeting that Zivkovic had a hearing problem. At the beginning of the meeting, Rea and Ortega informed Zivkovic that they would interview him. Zivkovic had difficulty understanding the questions, and Rea could tell he was hard of hearing. Rea and Ortega testified that they allowed Zivkovic to read the questions but he nevertheless failed to provide responsive answers. Zivkovic testified that no one showed him any of the questions during the interview. Zivkovic added that he had difficulty reading their lips, told the interviewers to repeat the questions because he could not understand them, and sometimes guessed at the answers. At the end of the interview, Zivkovic stated that he could have done better if an interpreter was provided. Both Rea and Ortega noted on their interview scoring sheets that Zivkovic may have done better on the interview if a sign language interpreter had been present.

After reviewing the interview notes, Fagan called Zivkovic's mother, offered to arrange a second interview, and asked if Zivkovic needed a sign language interpreter. Fagan testified that Zivkovic's mother replied that her son would not need an interpreter. Zivkovic's mother recalled that she responded by stating Fagan should ask her son. Zivkovic recollected that he told his mother to tell Fagan that he needed an interpreter. In any event, Fagan told Zivkovic's mother that a second interview would be set for June 19, 1997.

Zivkovic reported for the June interview and met with Fagan and Ed Sumpter ("Sumpter"), a project manager. Fagan and Sumpter testified that Fagan asked Zivkovic if he needed a sign language interpreter, to which Zivkovic responded, "no." Zivkovic related that at no time before or during the June interview did anyone ask if he needed an interpreter. Zivkovic admitted that he never asked for an interpreter, but expected an interpreter to be present based on his prior statements of being hard of hearing, knowing sign language, and that he could have performed better in the prior interview if an interpreter had been present.

Fagan and Sumpter testified that Zivkovic had no apparent difficulty understanding the questions even though they sometimes had to ask the questions twice to prod a response. However, Zivkovic recollected that he had difficulty understanding some of the questions, that the questions had to be repeated many times, and he would have done better if an interpreter were present. Zivkovic also testified that he asked to read the questions but that his request was denied. Sumpter recalled no request from Zivkovic to read the questions or have them repeated. Sumpter and Fagan testified that Zivkovic obtained a consensus interview score of "C." A score of "A" or "B" was necessary for further consideration. In a letter dated June 26, 1997 to Zivkovic, Fagan stated, "Although your qualifications are strong, we regret to inform you that another candidate was selected for the position for which you interviewed."

On September 14, 2000, the district court made oral findings of facts and conclusions of law. The district court concluded that "the surrounding evidence ... supports the defendant and not the plaintiff," but did not resolve material factual disputes required to support that conclusion. Instead, the district court found that "even under Plaintiff's version of the facts," the defendant did not fail to make an accommodation. The district court reasoned that Zivkovic's statement at the end of the first interview that he could have done better with an interpreter, at most, imposed upon Edison a duty to inquire about whether an interpreter was needed. The district court ruled that Edison satisfied that duty by asking Zivkovic's mother, who the court determined was Zivkovic's agent, whether he needed an interpreter. The district court found that the mother's response "to ask her son" was not a request for an interpreter. The court concluded that Zivkovic asked his mother to...

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