Odima v. Westin Tucson Hotel

• Decision Date: 08 November 1994
• Docket Number: No. 94-15839,94-15839
• Citation: 53 F.3d 1484
• Parties: 67 Fair Empl.Prac.Cas. (BNA) 1222, 63 USLW 2755 Peter ODIMA, Plaintiff-Appellee, v. WESTIN TUCSON HOTEL, a Delaware corporation, aka Westin Hotels, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1484

53 F.3d 1484

67 Fair Empl.Prac.Cas. (BNA) 1222, 63 USLW 2755

Peter ODIMA, Plaintiff-Appellee, v. WESTIN TUCSON HOTEL, a Delaware corporation, aka Westin Hotels, Defendant-Appellant.

No. 94-15839.

United States Court of Appeals Ninth Circuit.

Submitted Nov. 8, 1994 ^*.

Decided April 28, 1995.

Marshall W. Anstandig and Diane M. Dear, Bryan Cave, Phoenix, AZ, for defendant-appellant.

Carole A. Summers, Miller, Pitt & McAnally, Tucson, AZ, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: WIGGINS, O'SCANNLAIN, and FERNANDEZ, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We revisit a Title VII employment discrimination case which comes back to us after remand for further findings surrounding the plaintiff's six attempts to transfer out of a hotel laundry and into the hotel's accounting department.

I

Odima is a Nigerian-born black man who was employed in the laundry at the Westin La Paloma Resort in Tucson, Arizona. After six unsuccessful attempts to transfer out of the laundry, Odima filed suit claiming that Westin had discriminated against him on the basis of race and nationality in violation of 42 U.S.C. Sec. 1981, Title VII, and Arizona law. After a two-and-one-half day bench trial, the district court entered judgment in favor of Odima on his Title VII and section 1981 claims. The district court entered judgment in favor of Westin on Odima's claims for wrongful termination, constructive discharge, retaliation, and intentional infliction of emotional distress. Odima v. Westin Tucson Hotel, No. CV-89-360-TUC-WCB (D.Ariz. Mar. 29, 1991) ("Odima I ").

Westin appealed, and we reversed and remanded. In Odima v. Westin Tucson Hotel Co., 991 F.2d 595 (9th Cir.1993) ("Odima II "), we held that the district court improperly concluded that because one of the reasons Westin offered for not transferring Odima was false, that the other reasons Westin proffered were necessarily also false. Consequently, we instructed the district court to consider Odima's claim of discrimination with regard to each of the transfer decisions separately, setting forth specific findings of fact with regard to each of Westin's proffered explanations. Id. at 600.

On remand, the district court issued a lengthy memorandum opinion and order, again concluding that Westin had discriminated against Odima on the basis of race and national origin in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. Sec. 2000e et seq., the Arizona Civil Rights Act, A.R.S. Sec. 41-1461 et seq., and 42 U.S.C. Sec. 1981. Odima v. Westin Tucson Hotel, No. CV-89-360-TUC-WDB (D.Ariz. Feb. 22, 1994) ("Odima III "). This time, the district judge set forth detailed findings of fact regarding each of the positions Odima sought and Westin's proffered explanations for not transferring him. As for remedies, the district court ordered Westin to instate ¹ Odima in the first available position as a night auditor, accounts receivable clerk or purchasing/receiving clerk. The district court further ordered Westin to provide Odima with backpay, front pay, $10,000 in compensatory damages, and attorneys' fees and costs.

Westin challenges the district court's finding of discrimination, the imposition of liability under 42 U.S.C. Sec. 1981, the district court's choice of remedies, and its award of attorneys' fees.

II

Odima completed his high school education in Nigeria where classes are conducted in English, the country's official language. In 1977, Odima was permitted to immigrate to England because he was a good student. There he enrolled in the business studies program at the College of Printing in London where he studied business and accounting. He then enrolled at Hammerschmidt West London College where he studied accounting, economics, business law, computers and computer languages, sociology, psychology, math, and English. He then moved to Glasgow, Scotland where he enrolled in Reid Kerr College studying accounting, economics, law, marketing, purchasing and supply, English, and math.

While in England, Odima worked for one-and-one-half years at Sangas Pharmaceutical Company, where his duties included receiving, loading, unloading, pricing, sales, stocking and inventory controls. He also owned his own business which exported used cars to Nigeria until a 30% surcharge on imported used cars made the business unprofitable.

In 1982, Odima lawfully immigrated to the United States and settled in Detroit. There he enrolled in Wayne County Community College, completing 24 units of credits. Desiring to escape the cold winters of Detroit, Odima moved to Tucson where he attended Pima Community College and completed 77 units of credits. He qualified for an associate degree at Pima College; however, he elected to transfer his credits to the University of Arizona in pursuit of a bachelor's degree in finance. He completed 29 units at the University of Arizona. There came a time when he could no longer afford the tuition, so he audited classes without receiving academic credit. While at the University of Arizona, Odima worked for one year as a purchasing clerk in the University's medical and scientific storeroom.

By the summer of 1986, Odima was married and the father of three children. He was forced to leave the University to seek full-time employment in order to support his family. Consequently, in August 1986, he applied for an accounting position at the new Westin La Paloma Resort. He was told, however, that the only openings were in the laundry, which was staffed almost entirely by blacks and Hispanics, but that he could seek a transfer to the accounting department after six months. Odima accepted the position in the laundry.

In March 1987, Odima applied for a Night Auditor position in the accounting department. The position required a high school education and the ability to operate a 10-key calculator. Applicants with computer experience were preferred. Odima possessed all these qualifications. The interviewer for this position said that Odima was "acceptable, and would be considered in the future."

Kevin Dreke, a white male, got the job. Dreke was employed at Westin in grounds maintenance. Dreke had requested a transfer to Night Auditor in July 1986, but his request was not granted because Westin eliminated the position Dreke was seeking. According to Westin's policy, when a transfer request was not granted, that request was considered dead, and the applicant would be required to complete a new application. In contravention of that policy, Westin considered Dreke's 1986 transfer application.

Dreke had taken a two-year technical program which included two accounting classes and a three-week internship as a warehouse helper in an automotive warehouse. He had no accounting experience, although Westin's Accounting Division Supervisor, Helmer Dahle testified that Dreke was "a little bit more qualified" than Odima because Dreke had had "practical experience" in accounting in "a position he held in Wisconsin." The district court, noting that the experience was not reflected in the resume or cover letter Dreke submitted, found that Odima's qualifications were clearly superior to Dreke's and that Westin unaccountably disregarded its transfer policy by hiring Dreke without requiring him to reapply for a transfer.

In July 1987, Odima requested transfer to a Staff Planning position. Odima did not receive an interview for that position, and the district court found that he was not qualified for it.

In August 1987, Odima received his first annual performance evaluation by his laundry supervisor, Larry Garcia. Mr. Garcia wrote that Odima was "very experienced," "one of his fastest workers," that he had "knowledge of all positions," that his quality was "above standards," and that he was a very productive employee who "follows directions well."

Later that month Odima requested a transfer to an Accounts Receivable position in the accounting department. The position required a high school education and the ability to operate a 10-key calculator. Odima met these qualifications. Receivable experience was preferred and computer knowledge was helpful. Odima also had these qualifications. According to the district court, Odima was interviewed on August 26 and was told at that time that another candidate was more qualified. On September 8, two weeks after Odima had been told that another candidate was more qualified, Deanna Searer, a white female, got the job. The district court found that Ms. Searer was qualified but that she had not even applied for the position when Odima was rejected.

On September 16, 1987, Odima requested a transfer to a Purchasing/Receiving Clerk position in the accounting department. Odima's supervisor, Mr. Garcia, in approving the transfer request, noted that Odima exceeded Westin's standards in quantity and quality of work. The position required good organizational skills, good directive skills, two years of shipping and receiving experience, and accounting aptitude. There was occasional guest contact which amounted to 5% of the employee's time. The district court found that Odima "met or exceeded all of these qualifications."

Tim Turbine interviewed Odima for the Purchasing/Receiving position and stated that he had "very good related experience and education," presumably referring to Odima's one-and-one-half years of receiving, pricing, stocking, and inventory control at Sangas Pharmaceutical Company and his one year as a purchasing clerk at the University of Arizona's medical and scientific storeroom. However, Turbine rejected Odima for the reason that Odima had a "heavy accent [which] could inhibit communication."

Instead of Odima, Westin transferred Albert DeRego, a Pacific Islander into the position. The district court found that DeRego had not submitted a request for transfer to the position. The district court further found that DeRego had no experience in purchasing and receiving,...