Llamas v. Butte Comm. College Dist.

• Decision Date: 07 February 2001
• Docket Number: No. 99-16325,DEFENDANTS-APPELLEES,WESTCOAT-ANDE,PLAINTIFF-APPELLANT,99-16325
• Citation: 238 F.3d 1123
• Parties: (9th Cir. 2001) JUAN LLAMAS,, v. BUTTE COMMUNITY COLLEGE DISTRICT, THE BOARD OF TRUSTEES OF THE COMMUNITY COLLEGE DISTRICT, GREG STEVENS, BETTY M. DEAN, MARTHA
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1123

238 F.3d 1123 (9th Cir. 2001)

JUAN LLAMAS, PLAINTIFF-APPELLANT, v. BUTTE COMMUNITY COLLEGE DISTRICT, THE BOARD OF TRUSTEES OF THE COMMUNITY COLLEGE DISTRICT, GREG STEVENS, BETTY M. DEAN, MARTHA WESTCOAT-ANDES, DEFENDANTS-APPELLEES.

No. 99-16325

U.S. Court of Appeals, Ninth Circuit

Argued and Submitted December 14, 2000

February 07, 2001

[Copyrighted Material Omitted] Joseph Wells Ellinwood, Roseville, California, for the plaintiff-appellant.

J. Scott Smith, Angelo, Kilday & Kilduff, Sacramento, California, for the defendants-appellees.

Andrew J. Kleinfeld, Michael Daly Hawkins and Richard C. Tallman, Circuit Judges.

Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding D.C. No. CV-98-818-WBS

Opinion by Judge Tallman; Concurrence by Judge Hawkins

Tallman, Circuit Judge.

Juan Llamas sued the Butte Community College District ("District"), its Board of Trustees, and three of its employees ("defendants") for violating his civil and due process rights by terminating him from his part-time employment, barring him from future employment with the District, and denying him an adequate opportunity to rebut their conclusion that he had cheated in interviewing for a full-time janitorial position. We affirm the district court's grant of summary judgment in favor of defendants.

I. Background.

Llamas was hired by the District as a temporary, part-time, on-call custodian in 1996. One year later, he applied for a full-time position and was interviewed by an oral screening panel. The panel prepared a new list of job-related questions to ask the interviewees because the previous list had been used several times. The panel also created a list of model answers to facilitate objective scoring of the candidates.

When Llamas arrived for the interview, he and the other candidates were allowed to review the questions for a few minutes. Llamas's answers reportedly recited the language and sequence of the model answers verbatim. As a result, several panel members suspected that Llamas had obtained an advance, confidential copy of the model answers.

The panel chair and affirmative action representative reported their suspicions to Martha Westcoat-Andes, the Chief Business Officer for the District, who directed Greg Stevens, the Director of Human Resources for the District, to look into the matter. Stevens identified the location of all known copies of the model answers. He spoke with John Parker, the custodial supervisor, who could not find his copy. Stevens determined that on-call custodians had access to Parker' office. Defendants suspected that Llamas got access to the model answers in this way.

Stevens then sent Llamas a letter notifying him that he was disqualified from further consideration because his responses to the interview questions made it evident that he had obtained a confidential copy of the answers. The letter further noted that he was "removed from any District employment, and barred from all future employment with the District." The letter concluded by stating that Llamas could contact him if he could provide evidence that the District's conclusion was inaccurate.

Llamas wrote back denying the charges, explaining the steps he took to prepare for the interview, demanding to know why he was being singled out for excelling in his responses, and requesting an apology. Defendants did not reply to this letter, or to two subsequent letters from Llamas's attorney.

Llamas sued for violations of his civil and due process rights under both state and federal law. At the close of discovery, defendants moved for summary adjudication. Llamas cross-moved for summary adjudication of his due process claims against Stevens and Westcoat Andes. The district court granted summary judgment in favor of defendants on the federal claims and declined to exercise supplemental jurisdiction over the state claims. Llamas appeals the grant of summary judgment on the discrimination and due process claims, the dismissal of the complaint, and the order denying his motion for partial summary judgment.

II. Discussion.

We review a grant of summary judgment de novo. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). We must determine, viewing the evidence in the light most favorable to Llamas, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. See id.

A. Discrimination Under Title VII.

Llamas alleges that defendants' actions violated Title VII of the Civil Rights Act by causing him to suffer both disparate treatment and disparate impact on the basis of his ethnicity, Mexican-American. See 42 U.S.C. 2000e-5(f)(3) (1994). The district court granted summary judgment because it found that plaintiff failed to support these claims with sufficient evidence.

1. Disparate Treatment.

In a disparate treatment case, we apply the analysis set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-05 (1973). A plaintiff must first establish a prima facie case of discrimination. See id. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. See id. Then, in order to prevail, the plaintiff must demonstrate that the employer's alleged reason for the adverse employment decision is a pretext for a discriminatory motive. See id.

In order to establish a prima facie case of disparate treatment, the employee must offer evidence that "give[s] rise to an inference of unlawful discrimination." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Yartzoff, v. Thomas, 809 F.2d 1371, 1374 (9th Cir. 1987). If the employee fails to allege "specific facts" that establish a prima facie case, summary judgment is appropriate. Yartzoff, 809 F.2d at 1374; Palmer v. United States, 794 F.2d 534, 536-39 (9th Cir. 1986).

Llamas admits that he is only speculating as to the motives of the interview panel members. The only evidence that he offers to support his disparate treatment claim is 1) his assertion that another job candidate had equal access and motive to obtain the model answers; 2) the three job finalists were white; and 3) Llamas is Mexican-American. Viewing this evidence in the light most favorable to Llamas, his claim nonetheless fails because no reasonable fact finder could conclude on the basis of this evidence "that discrimination was the real reason for [his] discharge." Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918 n.2 (9th Cir. 1997).

2. Disparate Impact.

The legal standard for a disparate impact claim differs from disparate treatment. A disparate impact case involves a facially neutral employment practice that disproportionately disadvantages one group as against another. See Palmer, 794 F.2d at 538. To establish a prima facie case of disparate impact, Llamas was required to show that a specific employment practice had a significant adverse impact on the protected group of which he is a member, see id., but he was not required to show that his employer intended to discriminate against him, see Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1412 (9th Cir. 1987) (citing Griggs v. Duke Power Co., 401 U.S. 424 (1971)). He was also required to show some causal connection between the employment practice and the alleged disparate impact. See Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1482 (9th Cir. 1987) (en banc).

The district court granted summary judgment on Llamas' disparate impact claim because he failed to identify the "practice or policy" that allegedly caused any disparate impact. On appeal, Llamas also failed to identify a specific "practice or policy" for us to analyze. He merely presents the statistic that only 8.7% of the District's service and maintenance employees are Hispanic, whereas Hispanics constitute 16.3% of the local labor market. Even accepting Llamas's statistical assertion as true, without more, Llamas's claim of disparate impact fails as a matter of law. See id.

B. Due Process.

The district court's decision did not find that Llamas, in fact, cheated in interviewing for the full-time custodial position. Similarly, we make no finding as to whether he was dishonest in any way while interviewing for the custodial position. In light of the procedural posture of Llamas's appeal on his due process claim, we assume for purposes of this decision that his termination and disqualification from future employment was a mistake based on incorrect information. See Bishop v. Wood, 426 U.S. 341, 348 (1976) (accepting petitioner's version of the facts in light of district court's grant of summary judgment against him on due process claim).

1. Motion to Strike.

Before analyzing Llamas's legal theories for relief under the Due Process Clause, we must resolve an outstanding procedural motion. Defendants filed a Motion to Strike a Portion of Appellant's Reply Brief because Llamas has attempted to assert a novel legal theory to support his due process claim that was neither presented to the district court nor raised in his opening brief on appeal. In his reply brief, Llamas admits that the District's answering brief on appeal prompted him to conduct additional legal research which resulted in the submission of an additional legal theory relying on a state statute as an independent ground for a due process right.

In his reply brief, Llamas argues for the first time that a provision in the California Education Code establishes a liberty interest of community college employees in not having their employment status adversely affected by decisions based on derogatory materials without first having the right to inspect and comment on such materials. Llamas did not respond to defendants' Motion to Strike with an explanation for his failure to raise previously the new grounds for recovery. We have held that we "will not review an...