Aguirre v. Chula Vista Sanitary Service and Sani-Tainer, Inc.

Decision Date23 September 1976
Docket NumberSANI-TAINE,No. 76-1039,INC,76-1039
Citation542 F.2d 779
Parties13 Fair Empl.Prac.Cas. 1436, 12 Empl. Prac. Dec. P 11,206 Manuel AGUIRRE et al., Plaintiffs-Appellants, v. CHULA VISTA SANITARY SERVICE ANDet al., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Sergio Luis Lopez (argued), of San Diego, Cal., for plaintiffs-appellants.

David C. Grant (argued), of Hill, Farrer & Burrill, Los Angeles, Cal., for defendants-appellees.

Before BROWNING and LAY, * Circuit Judges, and WATERS, ** District Judge.

PER CURIAM:

This is an appeal from the district court's order denying a motion for preliminary injunction in an employment discrimination action under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. We reverse and remand.

Appellants are Spanish-surnamed employees of a garbage disposal company. Their complaint alleged discrimination in wages, availability of work at overtime rates, availability of on-the-job training programs, and in the use of sanitary facilities. They allege that the filing of a complaint with EEOC was followed by harassment and the retaliatory discharge of appellant Primitivo Melendez. They sought a preliminary injunction prohibiting harassment and discriminatory treatment and requiring reinstatement of Melendez pending the outcome of the trial. The district court denied relief on the ground that appellants failed to show a probability of success on the merits.

The grant or denial of a preliminary injunction may be reversed only if the lower court abused its discretion or based its decision upon an erroneous legal premise. Douglas v. Beneficial Finance Co., 469 F.2d 453, 454 (9th Cir. 1972).

We think an error of law appears in the record. The district court confined its inquiry to whether appellants had established a probability of success on the merits. There is an alternative basis for granting a preliminary injunction. In Gresham v. Chambers, 501 F.2d 687, 691 (2d Cir. 1974), the Second Circuit held that a preliminary injunction should issue ". . . upon a clear showing of either (1) probable success on the merits and possible irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." This circuit has adopted the Gresham test. See William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 526 F.2d 86, 88 (9th Cir. 1975). On remand, the district court should balance the relative hardship to the parties that would result from granting or denying a preliminary injunction. If the balance tips decidedly toward plaintiffs, and if plaintiffs have raised questions serious enough to require litigation, the injunction should issue.

Appellant Melendez also argues that the district court erroneously refused appellants' offer of testimony to show that the reasons given for dismissing Melendez were pretext. The rules governing the order and allocation of proof in Title VII cases were laid out in McDonnell Douglas Corp. v. Green,411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). A showing by plaintiff that he was discharged following protected activities of which the employer was aware establishes a prima facie case of retaliatory dismissal. The burden then shifts to the employer to show legitimate nondiscriminatory reasons for the dismissal. If the employer makes such a showing, the employee then must be afforded a fair opportunity to show that the asserted reasons are in fact pretext. This rule applies at the hearing...

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  • Kelly v. Gilbert
    • United States
    • U.S. District Court — District of Montana
    • March 17, 1977
    ...that relief can properly be granted on the affidavits and depositions alone. See Aguirre v. Chula Vista Sanitary Service and Sanitainer, Inc., No. 76-1039, 542 F.2d 779, at 787 (9th Cir. 1976). All of those factors exist in the present Further justification for using the depositions produce......
  • McCarthy v. Cortland Cty. Community Action
    • United States
    • U.S. District Court — Northern District of New York
    • February 14, 1980
    ...2000e-3 by showing that she was discharged following protected activities of which her employer was aware, Aguirre v. Chula Vista Sanitary Service, 542 F.2d 779, 781 (9th Cir. 1976); Falkowski v. Perry, 464 F.Supp. 1016, 1020 (N.D.Ala.1978); Macey v. World Airways, Inc., 14 F.E.P. 1426, 143......
  • Zepeda v. U.S. I.N.S.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 26, 1985
    ...308, 314-15 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979); Aguirre v. Chula Vista Sanitary Service & Sani-Tainer, Inc., 542 F.2d 779, 781 (9th Cir.1976), or if, in applying the appropriate standards, the court misapprehended the law with respect to the ......
  • Nehring v. Ariyoshi, Civ. No. 77-0276.
    • United States
    • U.S. District Court — District of Hawaii
    • December 16, 1977
    ...I further find that the plaintiff has met the requirements for a preliminary injunction. See Aguirre v. Chula Vista Sanitary Service and Sani-tainer, Inc., 542 F.2d 779 (9th Cir. 1976). When a plaintiff's fundamental constitutional rights are being infringed upon, one can assume that irrepa......
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