Learned v. City of Bellevue
| Decision Date | 03 November 1988 |
| Docket Number | No. 87-3825,87-3825 |
| Citation | 860 F.2d 928 |
| Parties | 48 Fair Empl.Prac.Cas. 482, 48 Empl. Prac. Dec. P 38,423, 57 USLW 2391, 4 Indiv.Empl.Rts.Cas. 262 Stephen D. LEARNED, Plaintiff-Appellant, v. CITY OF BELLEVUE, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert Schmitt, Seattle, Wash., for plaintiff-appellant.
Richard L. Kirkby, Janet E. Garrow, City of Bellevue, Bellevue, Wash., for defendant-appellee.
Appeal from the United States District Court for the Western District of Washington.
Before FLETCHER and PREGERSON, * Circuit Judges, and GEORGE, ** District Judge.
Learned appeals the grant of summary judgment in favor of his employer, the City of Bellevue (Bellevue), on Learned's claims under the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983, Title VII of the Civil Rights Act of 1964, section 704(a), 42 U.S.C. 2000e-3(a), and the fourteenth amendment to the United States Constitution. We conclude that summary judgment was proper and affirm the judgment.
Learned has been employed by the City of Bellevue in the Parks and Recreation Department since 1975. In 1977, Learned was promoted to "crew leader" where he supervised three to ten persons responsible for the maintenance of street trees. Learned enjoyed favorable employment evaluations and a positive working relationship with his superiors.
In May 1978, Learned was stabbed by a co-worker while in the course of his employment. Learned suffered serious injuries requiring hospitalization and plastic surgery, for which he received industrial insurance medical benefits from the State of Washington. Learned returned to work in June 1978, and in October 1980, his industrial insurance claim was closed. In September 1982, however, Learned sought to re-open his claim. Learned sued his employer for "excess damages" under an industrial insurance statute. The action would have required proof of intentional injury on behalf of Learned's employer, but the suit was ultimately dismissed as untimely.
Soon after filing suit, Learned experienced "problems" at work. Learned was assigned a new supervisor who was dissatisfied with Learned's work. Learned was allegedly harassed with charges of negligence and misconduct and given special rules regarding breaks. His responsibilities as crew leader were dramatically decreased. Learned developed an ulcer and began to see a psychiatrist. His employer thereafter allegedly harassed him about his medical appointments and made a special rule for Learned regarding notice and documentation of all medical appointments. In addition, Learned alleged that his supervisors referred to him as "crazy" or "sick" when conversing with co-workers.
In October 1982, Learned filed a complaint with the Washington Human Rights Commission (HRC) alleging discrimination on the basis of physical and mental limitations in violation of state law. He also charged retaliatory conduct, but later withdrew that charge. At the bottom of the complaint, Learned checked a box that said:
"I also allege a violation of Title VII of the Civil Rights Act of 1964 and request that this Complaint be filed with the U.S. Employment Opportunity Commission."
When Learned's supervisors continued to "harass" him and treat him differently than they did other employees, Learned filed a second complaint with the state HRC alleging retaliatory conduct for Learned's having filed the first HRC complaint and his suit for excess damages. Again, Learned checked the box with the provision quoted above. In November 1983, Learned filed a third complaint with the HRC alleging retaliatory conduct and checking the box quoted above. Three months later, Learned "voluntarily" transferred to the ballfield maintenance division where his title and salary have remained the same, but his responsibilities have diminished.
In April 1984, following an investigation of the matter, the HRC found reasonable cause to believe that Learned's allegations were true. 1 Learned did not pursue the matter by filing a charge with the Equal Employment Opportunity Commission (EEOC), and apparently the HRC never forwarded a copy of Learned's complaint to the EEOC as requested on the HRC form complaint. Consequently, Learned never received a right-to-sue letter from the EEOC. Nevertheless, Learned thereafter Learned alleged that Bellevue discriminated against him in violation of section 704(a) of Title VII, 42 U.S.C. 2000e-3, 2 and deprived him of his civil rights under the fourteenth amendment in violation of 42 U.S.C. 1983. The district court granted Bellevue's motion for summary judgment because the court found that the evidence did not support a deprivation of due process or equal protection, or a viable claim under Title VII. Because the summary judgment pertained to all federal claims alleged in the complaint, the court dismissed Learned's pendent claims for relief. Learned does not challenge the dismissal of his pendent state claims.
filed this action in the United States District Court for the Western District of Washington.
We review a grant of summary judgment de novo. Salgado v. Atlantic Richfield Co., 823 F.2d 1322, 1324 (9th Cir.1987). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there is a genuine issue as to any material fact and, if not, whether the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Idaho v. Hodel, 814 F.2d 1288, 1292 (9th Cir.), cert. denied sub nom. Coeur D'Alene Tribe of Indians v. Idaho, --- U.S. ----, 108 S.Ct. 159, 98 L.Ed.2d 114 (1987).
Bellevue argued for the first time on appeal that Learned's Title VII claims are barred because Learned did not file a complaint with and did not receive notice of a right-to-sue from the EEOC as required under 42 U.S.C. section 2000e-5(e) and (f)(1). Learned's failure to comply with the statutory prerequisites may or may not affect jurisdiction under Title VII. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982) (); accord EEOC v. Nevada Resort Ass'n, 792 F.2d 882, 887 (9th Cir.1986); but see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973) (); Baldwin Co. Welcome Center v. Brown, 466 U.S. 147, 152 n. 6, 104 S.Ct. 1723, 1726 n. 6, 80 L.Ed.2d 196 (1984) (per curiam) (); see also Jones v. Truck Drivers Local Union No. 299, 748 F.2d 1083, 1086 (6th Cir.1984) (); Worrell v. Uniforms to You & Co., 673 F.Supp. 1461, 1462-64 & 1462 n. 3 (N.D.Cal.1987) (); accord Hrivnak v. First of Michigan Corp., 617 F.Supp. 990, 990-92 (E.D.Mich.1985); Bennett v. Russ Berrie and Co., 564 F.Supp. 1576, 1580 (N.D.Ind.1983); Perez v. Dana Corp., 545 F.Supp. 950, 952-53 (E.D.Penn.1982), aff'd on other grounds, 718 F.2d 581 (3d Cir.1983). While we may consider jurisdictional issues raised for the first time on appeal, Csibi v. Fustos, 670 F.2d 134, 136 n. 3 (9th Cir.1982), we need not decide the issue in this case because we determine in any event that Learned did not produce evidence of, much less allege, a cognizable claim under Title VII.
Learned contends that the district court erred in granting summary judgment on his "claim" under the anti-retaliation provision of Title VII, section 704(a), 42 U.S.C (a) It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
2000e-3. Section 704(a) provides in pertinent part:
42 U.S.C.A. 2000e-3 (West 1981). Learned contends that his employer's conduct violated both the "opposition clause" and the "participation clause" contained in section 704(a).
Although courts liberally construe the provisions of section 704(a) to effectuate the remedial purposes of the Act, see, e.g., Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir.1978), the opposition clause, by its terms, protects only those employees who oppose what they reasonably perceive as discrimination under the Act. An employee need not establish that the opposed conduct in fact violated the Act in order to establish a valid claim of retaliation. Id. That is, an employee may fail to prove an "unlawful employment practice" and nevertheless prevail on his claim of unlawful retaliation. However, the opposed conduct must fairly fall within the protection of Title VII to sustain a claim of unlawful retaliation. Silver v. KCA, Inc., 586 F.2d 138, 142 (9th Cir.1978) (); see also Sias, 588 F.2d at 695-96 (...
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