Rivera v. Nibco, Inc.

• Citation: 364 F.3d 1057
• Decision Date: 13 April 2004
• Docket Number: No. 02-16532.,02-16532.
• Parties: Martha RIVERA; Mao Her; Alicia Alvarez; Eva Ariola; Peuang Bounnhong; Rosa Ceja; Chhom Chan; Bee Lee; Paula Martinez; Maria Domitilia Medina; Mai Meemoua; Margarita Mendoza; Bao Nhia Moua; Isidra Murillo; Maria Navarro; Vath Rattanatay; Ofelia Rivera; Sara Rivera; Maria Rodriguez; Maria Ruiz; Maria Valdivia; Sy Vang; Youa Xiong; See Yang; Xhue Yang, Plaintiffs-Appellees, v. NIBCO, INC., an Indiana corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

364 F.3d 1057

Martha RIVERA; Mao Her; Alicia Alvarez; Eva Ariola; Peuang Bounnhong; Rosa Ceja; Chhom Chan; Bee Lee; Paula Martinez; Maria Domitilia Medina; Mai Meemoua; Margarita Mendoza; Bao Nhia Moua; Isidra Murillo; Maria Navarro; Vath Rattanatay; Ofelia Rivera; Sara Rivera; Maria Rodriguez; Maria Ruiz; Maria Valdivia; Sy Vang; Youa Xiong; See Yang; Xhue Yang, Plaintiffs-Appellees, v. NIBCO, INC., an Indiana corporation, Defendant-Appellant.

No. 02-16532.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 16, 2003.

Filed April 13, 2004.

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Sara Hedgpeth-Harris, Sagaser, Franson & Jones, Fresno, CA, for the appellant.

Christopher Ho, The Legal Aid Society — Employment Law Center, San Francisco, CA, for the appellees.

Rebecca Smith, The National Employment Law Project, Olympia, WA, for amici curiae The National Employment Law Project, Mexican American Legal Defense and Educational Fund, American Federation of State, County and Municipal Employees, Asian American Legal Defense and Education Fund, Asian Pacific American Legal Center, Coalition for the Humane Immigrant Rights of Los Angeles, Equal Rights Advocates, New York Immigration Coalition, Immigrant Rights Network of Iowa-Nebraska, National Council of la Raza, National Interfaith Committee for Worker Justice, Puerto Rican Legal Defense and Education Fund, Pineros y Campesinos Unidos del Noreste, and Sweatshop Watch. Brendan D. Cummins, Minneapolis, MN, for amici curiae The National Employment Lawyers Association, California Women's Law Center, and The National Partnership for Women and Families.

Appeal from the United States District Court for the Eastern District of California; Anthony W. Ishii, District Judge, Presiding. D.C. No. CV-99-06443-AWI/SMS.

Before: REINHARDT, SILER,^* and HAWKINS, Circuit Judges.

REINHARDT, Circuit Judge:

Defendant NIBCO has brought this interlocutory appeal to challenge the validity of a protective order, fashioned by a federal magistrate and affirmed by the district court. The order prohibits NIBCO from using the discovery process to inquire into the plaintiffs' immigration status and eligibility for employment. Because NIBCO has failed to demonstrate that the protective order was either clearly erroneous or contrary to law, we affirm the district court's decision denying reconsideration of the order.

I. Factual and Procedural Background

The plaintiffs in this dispute are twenty-three Latina and Southeast Asian female immigrants once employed as production workers at NIBCO's factory in Fresno, California.¹ All of the plaintiffs are of limited English proficiency, yet all allegedly performed their respective duties successfully during their tenure with NIBCO. Although the plaintiffs' job descriptions did not require English proficiency, sometime in 1997 or 1998, NIBCO required them to take basic job skills examinations given only in English. The plaintiffs performed poorly on the exams. NIBCO allegedly responded with a range of adverse employment consequences. Some plaintiffs were demoted or transferred to undesirable job assignments; eventually, all plaintiffs were terminated in the period between July 30, 1998 and September 24, 1998.

The plaintiffs requested and received right-to-sue letters from the EEOC and California's Department of Fair Employment and Housing ("DFEH"). Subsequently, the plaintiffs filed an action in federal court, alleging disparate impact discrimination based on national origin in violation of Title VII, 42 U.S.C. § 2000e et seq., and the California Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code § 12940, et seq. The plaintiffs sought reinstatement (and front pay for those not electing reinstatement), backpay, compensatory and punitive damages, and attorneys fees, as well as injunctive relief enjoining NIBCO from, inter alia, continuing its English-language testing policy, and compelling it to expunge any record of wrongdoing from personnel files.

This interlocutory appeal arises out of a discovery dispute in the above action. During the deposition of plaintiff Martha Rivera, NIBCO asked where she was married and where she was born. Although Rivera had specified that she was of "Mexican ancestry" in her answers to interrogatories, Rivera's counsel instructed her not to answer any further questions pertaining to her immigration status. The plaintiffs thereafter terminated the deposition. The plaintiffs then filed for a protective order against further questions pertaining to immigration status. Their request was predicated on the claim that — because each plaintiff had already been verified for employment at the time of hiring and because further questions pertaining to immigration status were not relevant to their claims — additional questioning would have a chilling effect on their pursuit of their workplace rights.

The magistrate judge presiding over discovery issued a protective order. The order granted the plaintiffs some discovery protection for three types of questions NIBCO sought to ask. With respect to questions relating to the plaintiffs' places of birth, the magistrate judge found that "there appears to be no dispute that each plaintiff is a member of a protected class, and [thus that] further questions regarding where each plaintiff was born has no further relevance to this action."² Rivera v. NIBCO, Inc., 204 F.R.D. 647, 649 (E.D.Cal.2001). The magistrate judge did, however, allow NIBCO discovery concerning the plaintiffs' places of marriage, educational background, current and past employment, damages, date of birth, and criminal convictions, but limited disclosure of that information to the parties and their attorneys. Id. at 649. With regard to each plaintiff's immigration status, the magistrate judge barred all discovery into the matter, but did not preclude NIBCO from conducting its own independent investigation. She acknowledged that the "after-acquired" evidence doctrine could limit NIBCO's liability in the event that it discovered that some plaintiffs were not eligible for employment, but ruled that NIBCO under the circumstances did not have a right to use the discovery process to gain that information. Id. at 649-51(citing McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 362-63, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995)). Allowing NIBCO to obtain such information through the discovery process, she found, would unnecessarily chill legitimate claims of undocumented workers under Title VII.

NIBCO filed a motion under Fed. R. Civ. P. 72(a), requesting that the district court reconsider the magistrate's ruling. The court denied the motion. Rivera v. Nibco, Inc., 2001 WL 1688880 (E.D.Cal. Dec.21, 2001). It found that the defendant's various contentions misstated the magistrate's ruling, and held that it was neither clearly erroneous nor contrary to law. Id.

NIBCO subsequently filed a motion to certify the discovery ruling for interlocutory appeal. Before the district judge ruled on the motion, however, the United States Supreme Court issued its decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002) [hereinafter Hoffman]. Hoffman held that the National Labor Relations Board lacks the discretion to award backpay to undocumented workers seeking relief for an employer's unlawful employment practices under the National Labor Relations Act. Id. at 151-52, 122 S.Ct. 1275. NIBCO immediately filed a second motion to reconsider, claiming that after Hoffman, each plaintiff's immigration status was discoverable because of its direct relevance to potential remedies. In response, the plaintiffs proposed a proceeding bifurcated into liability and damages phases. Under the plaintiffs' proposal, the case would proceed to trial on liability first. If the plaintiffs were able to prove NIBCO's liability for the alleged disparate impact violation, the court would then hold an in camera proceeding designed to preserve the plaintiffs' anonymity, protect their statutory rights, and avoid prejudicing the defense. The proceeding would allow each plaintiff to testify regarding her immigration status, provide documents supporting her entitlement to backpay, and provide a formal certification from the Social Security Administration attesting that she was authorized to work throughout the backpay period. The judge would make deductions from the aggregate award backpay for any plaintiff who failed to prove eligibility. Once the aggregate award was thus reduced to encompass only eligible plaintiffs, plaintiffs' counsel would then have the responsibility of giving each eligible plaintiff her share of the total.

The district court postponed its decision on whether to bifurcate the trial, denied NIBCO's request to reconsider, and granted NIBCO's motion to certify the post-Hoffman order denying reconsideration of the interlocutory appeal pursuant to 28 U.S.C. § 1292(b). We granted the petition for interlocutory appeal.

II. Standard and Scope of Review

District courts review magistrate judges' pretrial orders under a "clearly erroneous or contrary to law" standard. Fed. R. Civ. P. 72(a). This court reviews "a district court's denial of a motion to reconsider a magistrate's pretrial[protective discovery] order under that same standard." Osband v. Woodford, 290 F.3d 1036, 1041 (9th Cir.2002). We may not overturn a protective order simply because we might have weighed differently the various interests and equities; instead, we must ascertain whether the order was contrary to law.³

We have jurisdiction to consider orders certified for interlocutory appeal under 28 U.S.C. § 1292(b). Our scope of review is broader than the specific issues the district court has designated for appellate review. "[T]he appellate court may address any issue fairly included within the certified order because `it is the order that is appealable, and not the controlling question...