Ramirez v. Sloss
| Decision Date | 07 April 1980 |
| Docket Number | No. 77-2628,77-2628 |
| Citation | 615 F.2d 163 |
| Parties | 22 Fair Empl.Prac.Cas. 768, 22 Empl. Prac. Dec. P 30,802 Mauro RAMIREZ, Individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. Jesse SLOSS, Individually and in his official capacity as City Manager of the City of Brownsville, Texas, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James A. Herrmann, Harlingen, Tex., for plaintiff-appellant.
Charles Willette, Jr., Brownsville, Tex., for defendants-appellees.
Appeal from the United States District Court for the Southern District of Texas.
Before SIMPSON, CHARLES CLARK and FRANK M. JOHNSON, Jr., Circuit Judges.
Appellant Mauro Ramirez, a lawfully admitted resident alien, sought and was denied employment as a laborer with the city of Brownsville, Texas. He brought suit in the district court, individually and as a class representative, against appellee-city officials in their individual and official capacities claiming violations of the Civil Rights Act of 1866, 42 U.S.C. § 1981, the Civil Rights Act of 1870, 42 U.S.C. § 1983, and the Ku Klux Klan Act, 42 U.S.C. § 1985(3). The central trial controversy concerned a provision of the city's personnel manual expressing an employment preference for United States citizens. Ramirez asserted that the provision was illegally applied to him and his class. Appellees acknowledged the facial illegality of the citizen preference policy but claimed the provision was not followed. The district judge found: that Ramirez failed to establish a prima facie case of employment discrimination by statistical evidence; that even if he had established a prima facie case under the four prong test established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), appellees rebutted that showing by proving a justifiable nondiscriminatory reason for rejecting Ramirez; and that it was not necessary to consider damages due the class because Ramirez failed to establish liability for the wrong charged. However, the court declared the citizen preference provision unconstitutional and ordered the appellees to "immediately implement a revised personnel manual and eliminate any unlawful preference in hiring granted to United States Citizens." App. at 35. Ramirez's motion for award of attorney fees was denied.
We conclude: that the trial court's factual finding that the citizen preference policy was not applied to Ramirez and other factual findings are clearly erroneous; that a prima facie case of employment discrimination under 42 U.S.C. §§ 1981 and 1983 was shown; that appellees failed to rebut that prima facie case; that the lower court's findings as to the class are incomplete; and that appellant is entitled to reasonable costs and attorney fees. Accordingly we reverse and remand for further proceedings.
The central factual dispute below was whether the following provision of the city's personnel manual was applied to Ramirez or his class:
That in addition to any and all other qualifications required, all employees of the City of Brownsville shall be citizens of the United States of America and during the course of their employment shall remain residents of the City of Brownsville.
The residential requirements above shall not apply in the case of skilled or technical personnel, now in the employment of the City or to be appointed where in the judgment of the City Manager personnel possessing the necessary qualifications including the qualification specified above, are not available and such personnel may continue in the employment of the City until they can be replaced by a resident or residents of the City so that there shall be no work stoppage until replacements having the necessary qualifications, including that set forth above may be found.
As in most employment discrimination cases, the facts are crucial to decision Appellant is a citizen of Mexico who has legally resided in the United States since 1955 when he came here as a twelve year old child. In early 1975 he traveled to Brownsville, Texas in search of employment. Eventually his quest led to the desk of Mr. Juan Hinojosa, the personnel technician for the city of Brownsville. Mr. Hinojosa was primarily responsible for interviewing prospective hirees. The district court made the following findings of fact concerning this first visit:
of the case. Rule 52(a) of the Federal Rules of Civil Procedure requires appellate courts to accept a district court findings of fact unless clearly erroneous. A finding of fact is clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766 (1948). See also East v. Romine, Inc., 518 F.2d 332, 338 (5th Cir. 1975). With these principles in mind we consider each factual error as it falls in the following sequence of events leading to the instant litigation.
Hinojosa asked Ramirez if he was a United States citizen and Ramirez replied that he was not. Ramirez immediately became irate and boisterous when identification was requested. It is not clear just exactly what was said between Plaintiff Ramirez and Hinojosa, but the Court is satisfied that Ramirez refused to furnish the City with any satisfactory identification as to his resident status. Ramirez asked for Hinojosa's name, stating he intended to file a discrimination suit. The attitude of Plaintiff indicated to this Court that he was more interested in taking issue with the City than in obtaining work.
App. at 27-28. These findings are not complete or accurate even when judged by the clearly erroneous standard.
Hinojosa's testimony established that he instructed Ramirez "it was city policy to hire U.S. citizens." Record, vol. 1 at 297. During a subsequent visit to the city's personnel office Ramirez completed a job application form. Hinojosa completed an applicant evaluation form based on the written application and Ramirez's first visit; he noted thereon: "not a U.S. citizen-city policy explained to him about requirement of U.S. citizenship arrogant and pushy made threats of law suit if not hired." App. at 278. After talking with Hinojosa, Ramirez filed a complaint with the Texas Employment Commission. The Commission official who investigated the complaint testified that Hinojosa told him "it is the policy of the city of Brownsville to hire only American citizens. . . ." Record, vol. 1 at 95. Ramirez testified to the same effect.
The completed puzzle made by the evidential pieces reveals that Ramirez went to the personnel office on April 11, 1975 to seek employment as a laborer. Hinojosa asked to see identification. Ramirez asked why. Hinojosa explained that it was city policy to hire only U.S. citizens. Ramirez became "arrogant and pushy" after he was told of the citizen preference policy. Hinojosa did testify that he does not discriminate against resident aliens in hiring. However, the evidence, including his own testimony, belies his words. In this case he at least told Ramirez and others that the city had a citizenship requirement.
The initial visit, which lasted only two minutes, broke down after Hinojosa informed Ramirez of the citizen preference policy. We accept the trial court's finding that appellant left without showing identification. Hinojosa testified he asked for identification to determine whether Ramirez was an illegal alien and to determine whether he was a resident of the city of Brownsville. These purported reasons were never explained to appellant.
On April 14, 1975 Ramirez returned to the city's personnel office. The district court found:
Plaintiff entered the office carrying a baseball bat, wearing a shirt completely opened, sandals, and an oversized hat. When he spoke to Arthur Garza he was arrogant, loud, and generally unpleasant.
However, Garza directed Plaintiff to fill out a "Request for Notification of Job Opportunity" card. On this form, Plaintiff indicated a desire to work as a laborer or in other outside work. It is easy to understand why Garza would raise the City's policy of hiring only United States citizens, even though the rule had not been adhered to in the past.
App. at 29. A secretary testified that Ramirez appeared in the attire described, but there is no evidence in the record that he was "arrogant, loud, and generally unpleasant." The district judge's opinion does not reveal his evidential foundation for this conclusion. Garza did not testify, but his deposition is stapled to some of the pleadings. The deposition was not admitted into evidence. A deposition that has not been admitted into evidence cannot support a finding of fact. 1
On May 6, 1975 appellant visited the personnel office for a third time. He spoke to Arnulfo Martinez, the director of the office and Hinojosa's immediate supervisor. At Ramirez's insistence, Martinez allowed him to fill out a job application form. 2
The lower court also held that Ramirez App. at 29. There is no evidence to support the conclusion. Hinojosa testified that Ramirez displayed verification of his resident alien status to Arthur Garza during the second visit. There was no contrary evidence.
The district court's conclusions of law are of course unfettered by the clearly erroneous rule. He held that a plaintiff "must" meet the four criteria set forth in McDonnell Douglas, supra, to establish a prima facie case of employment discrimination under the Civil Rights Act of 1964. 3 This suit was brought under the Civil Rights Acts of 1866 and 1871, 42 U.S.C. §§ 1981 & 1983, 4 not the 1964 act....
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