Enlow v. Salem-Keizer Yellow Cab Co., Inc., 061004 FED9, 02-35881

Docket Nº:02-35881oa
Party Name:Enlow v. Salem-Keizer Yellow Cab Co., Inc.,
Case Date:June 10, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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David Enlow, Plaintiff-Appellant,

v.

Salem-Keizer Yellow Cab Co., Inc., An Oregon Corporation, Defendant-Appellee.

No. 02-35881

United States Court of Appeals, Ninth Circuit

June 10, 2004
       Argued and Submitted November 4, 2003—Portland, Oregon

       Amended November 2, 2004

       Appeal from the United States District Court for the District of Oregon, D.C. No. CV-00-01331-AS, Donald C. Ashmanskas, Magistrate Judge, Presiding[*]

       COUNSEL

       John S. Razor, The Law Office of John S. Razor, Salem, Oregon, for the plaintiff-appellant.

       Robert J. Custis, Kent Custis LLP, Portland, Oregon, for the defendant-appellee.

       Before: Arthur L. Alarcon, Warren J. Ferguson, and Johnnie B. Rawlinson, Circuit Judges.

       ORDER

       The court's opinion, filed June 10, 2004, is amended as follows:

       The second paragraph on slip op. 7621 that reads:

       We affirm the denial of his motion because we conclude that Yellow Cab presented sufficient evidence to raise a genuine issue of material fact regarding whether it terminated Mr. Enlow's employment temporarily without discriminatory intent. We reverse the order granting Yellow Cab's motion for summary judgment, however, because the district erred in concluding that Mr. Enlow failed to present prima facie evidence that Yellow Cab acted with a discriminatory motive or intent.

is deleted.

       The following paragraph shall be inserted on page 7621 and substituted for the deleted text.

       We affirm the denial of his motion because we conclude that Yellow Cab presented sufficient evidence to raise a genuine issue of material fact regarding whether, as asserted in its response to Enlow's motion for partial summary judgment, it terminated Mr. Enlow's employment temporarily based on a bona fide occupational qualification ("BFOQ") or because of reasonable factors other than age ("RFOA"). We reverse the order granting Yellow Cab's motion for summary judgment, however, because the district erred in concluding that Mr. Enlow failed to present prima facie evidence that Yellow Cab acted with a discriminatory motive or intent.

       On the sixth line of slip op. 7623, delete "seventy-two" and substitute "seventy-three" for the deleted text.

       On slip op. 7623, the second sentence of the second paragraph reads:

We discuss below the conflicting evidence presented by the parties regarding whether the termination of Mr. Enlow's employment was intended to be temporary or permanent, and whether Yellow Cab acted pursuant to a facially discriminatory employment practice to discharge employees over seventy years old.

is deleted.

       The following sentence shall be inserted on slip op. 7623 and substituted for the deleted text:

We discuss below the conflicting evidence presented by the parties regarding whether Mr. Enlow's employment was permanently terminated solely to save costs, or whether Yellow Cab intended to interrupt his employment temporarily in order to avoid losing its business license.

       In the fifth line of the last paragraph on slip op. 7623 delete "seventy-two years old" and substitute "seventy-three years old" for the deleted text.

       In the first paragraph under Part One on slip op. 7624 insert the words "in order to survive a motion for summary judgment" at the end of the second sentence.

       In the first line of the paragraph beginning on line 8 on slip op. 7627 insert "In his opposition to the motion for summary judgment," before the words "Mr. Enlow".

       On line 10 of slip op. 7627 delete "seventy-two years old" and substitute "seventy-three years old" for the deleted text.

       On line 11 of slip op. 7627 insert the following sentences after the word "seventy."

In an affidavit filed in support of his motion for summary judgment, Mr. Enlow declared that "[a]t no time did the defendant offer me an unconditional offer of re-employment." He further, stated that "[m]y understanding at the time of my termination was that I was terminated and would no longer be working for the Defendant."

       On lines 15 and 16 of slip op. 7628 delete the words "by an age discriminatory employment practice" and substitute "because he was over the age of seventy" for the deleted text.

       Beginning with line 16 of slip op. 7628 delete:

Mr. Enlow relied on the direct evidence that his employment was terminated because the Star Insurance policy did not cover employees who were older than seventy years of age. This evidence was sufficient to support an inference that by terminating his employment after purchasing the Star Insurance policy, Yellow Cab adopted a practice of intentionally discriminating against employees over seventy years of age.

       Beginning with line 28 on slip op. 7628 delete:

At trial, Mr. Enlow will bear the burden of persuading the trier of fact by a preponderance of the evidence that Yellow Cab's motive in terminating Mr. Enlow's employment was discriminatory. See Reeves, 530 U.S. at 143 (" 'The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’ ") (quoting Burdine, 450 U.S. at 253).

       Beginning with line 15 on slip op. 7629 delete the following text to line 16 on slip op. 7630.

Accordingly, Mr. Enlow's reliance on UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991) is misplaced. In Johnson Controls, the employer was aware of the discriminatory provision when it adopted an employment practice barring all women, except those whose infertility was medically documented, from jobs involving actual or potential lead exposure exceeding governmental standards. Id. at 198-99. Yellow Cab's temporary discharge of Mr. Enlow was in reaction to an unanticipated exigent circumstance that threatened the suspension of its license to conduct business.

       Likewise, City of Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702 (1978) is readily distinguishable. In Manhart, the Department of Water and Power knowingly and intentionally administered a retirement, disability and death-benefit program that required its female employees to make larger contributions to the pension fund that its male employees. Id. at 704. The decision to adopt an employment practice that treated men differently from women was carefully calculated, "[b]ased on a study of mortality tables and [the Department's] own experience." Id. at 705. Mr. Enlow has presented no evidence that establishes that Yellow Cab had any knowledge of the discriminatory provisions in the Star Insurance policy when it purchased the policy. Nor has Mr. Enlow presented any evidence that Yellow Cab deliberately adopted an employment practice or program in order to discriminate against persons over forty in violation of the ADEA. Thus, Mr. Enlow failed to establish, as required by the Supreme Court's more recent Hazen decision, that Yellow Cab "relied upon a formal, facially discriminatory policy requiring adverse treatment" of older employees when it purchased the Star Insurance policy. Hazen, 507 U.S. at 610 (emphasis added) (explaining that Manhart presented a case of disparate treatment because the employer "relied" on a "formal" policy requiring discrimination). Mr. Enlow has not demonstrated that his age "actually motivated [his] employer's decision" to purchase a new insurance policy. Id.

       On line 21 and 22 of slip op. 7630 delete:

"of a legitimate, nondiscriminatory reason for temporarily terminating Mr. Enlow's employment."

       On line 21 and 22 of slip op. 7630 substitute the following for the deleted text:

"that Mr. Enlow's employment was not permanently terminated."

       On line 22 of slip op. 7630 insert after "Mr. Haley" the following text:

       ", Yellow Cab's personnel manager,"

       One line 22 of slip op. 7630 delete the word "alleged" and substitute the word "declared" for the deleted word.

       On line 5 of slip op. 7631 delete "Mr. Anderson alleged". Insert "Mr. Gary Anderson, Yellow Cab's Secretary/ Treasurer, declared" and substitute for the deleted text.

       On line 20 of slip op. 7631 insert after the word "behalf.", "Mr. Anderson declared:".

       On line 25 of slip op. 7631, delete "of his termination from Yellow Cab" and substitute "of the termination of his employment with Yellow Cab" for the deleted text.

       On line 31 of slip op. 7631, delete "alleged" and substitute "declared".

       The paragraph on slip op. 7632 that reads:

       Viewed in the light most favorable to Yellow Cab, this evidence shows that it did not have an explicit facially discriminatory employment practice to terminate the employment of taxi cab drivers who were more than seventy years old. Instead, the evidence shows that Mr. Enlow was temporarily discharged to avoid termination of Yellow Cab's business license while it negotiated with Star Insurance to waive the age exclusion provisions in its policy. As a demonstration of its intent to protect Mr. Enlow's employment rights, Yellow Cab successfully obtained temporary employment for him with another cab company. Yellow Cab also obtained Star Insurance's tentative agreement to waive the age-based exclusion of coverage if Mr. Enlow would submit to a physical examination. Mr. Enlow rejected Star Insurance's willingness to consider waiving its age exclusion provisions if he could pass a physical examination. He also declined Yellow Cab's offer to reemploy him. The evidence offered by Yellow Cab presents a genuine issue of material fact regarding whether the termination of employment was temporary or permanent and whether Yellow Cab acted with discriminatory animus against employees over forty years of age. Accordingly, the district court did not err in denying...

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