Shah v. Mt. Zion Hosp. and Medical Center, No. 79-4271

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before SKOPIL and BOOCHEVER; BOOCHEVER
• Citation: 642 F.2d 268
• Parties: 27 Fair Empl.Prac.Cas. 772, 25 Empl. Prac. Dec. P 31,769 Gunvant D. SHAH, Appellant, v. MT. ZION HOSPITAL AND MEDICAL CENTER, a non-profit corporation, Appellee.
• Decision Date: 30 March 1981
• Docket Number: No. 79-4271

Page 268

642 F.2d 268 27 Fair Empl.Prac.Cas. 772,
25 Empl. Prac. Dec. P 31,769 Gunvant D. SHAH, Appellant,
v.
MT. ZION HOSPITAL AND MEDICAL CENTER, a non-profit
corporation, Appellee. No. 79-4271. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Jan. 13, 1981.
Decided Feb. 11, 1981.
As Amended March 30, 1981.

Page 269

Curtis G. Oler, San Francisco, Cal., on briefs, for appellant.

Michael J. Loeb, Crosby, Heafey, Roach & May, Oakland, Cal., on briefs, for appellee.

Appeal from the U.S. District Court for the Northern District of California.

Before SKOPIL and BOOCHEVER, Circuit Judges, and TAYLOR ^*, Senior District Judge.

BOOCHEVER, Circuit Judge.

Gunvant Shah sued Mt. Zion Hospital and Medical Center (Mt. Zion), claiming that the conditions of his employment and his termination after a short period of employment

Page 270

were discriminatory. Prior to trial, the district court granted partial summary judgment for Mt. Zion on Shah's 42 U.S.C. § 1981 claim, and dismissed his requests for a jury trial, emotional distress damages, and punitive damages. At trial, the court dismissed his Title VII (42 U.S.C. § 2000e et seq.) claims. Shah appeals from the pretrial orders and trial dismissal. We affirm. FACTUAL BACKGROUND

Mt. Zion hired Shah, an East Indian male, as a payroll clerk. The hospital hired him subject to a written ninety-day probationary period. Shah alleges that his co-workers, both female Filipinos, treated him in a discriminatory fashion by failing to train him adequately, and by speaking to him in Tagalog, their native language. Shah does not understand Tagalog. Shah further claims that this conduct was facilitated by his immediate supervisor, a male Filipino, who not only failed to remedy the situation but actually encouraged it.

Mt. Zion terminated Shah pursuant to the probationary agreement, because of his inability to get along with employees in several departments of the hospital. Shah contends that the termination was discriminatory, and also in retaliation for his complaints regarding discrimination. After the Equal Employment Opportunity Commission (EEOC) found no reasonable cause to believe that Mt. Zion discriminated against Shah, he filed suit in the district court requesting declaratory relief, injunctive relief, and damages. Shah contends that Mt. Zion discriminated against him because of his race, color, national origin, religion and sex. ¹

Prior to trial, Mt. Zion moved to dismiss Shah's race, color, and religious discrimination claims under Title VII because they were not raised in his EEOC claim. Mt. Zion also moved to dismiss the request for a jury trial, emotional distress and punitive damages as unavailable under Title VII. Finally, Mt. Zion moved to dismiss the section 1981 claim because Shah was alleging national origin discrimination in that claim and not racial discrimination. The court granted all of these motions in its order of October 21, 1977. After Shah amended his section 1981 complaint to allege that he was of the Black race, Mt. Zion requested partial summary judgment on the section 1981 claim, and moved to strike the other repetitive claims. In its order of December 14, 1977, the court granted partial summary judgment against Shah on his section 1981 claim and granted Mt. Zion's motions to strike the requests for a jury trial, punitive and emotional distress damages.

Because of the pretrial orders, when Shah's case finally came to trial in February 1979, the only theories he could proceed under were sex and national origin discrimination under Title VII. After Shah and two hospital employees testified, Mt. Zion moved for dismissal under Federal Rule of Civil Procedure 41(b). The court granted the motion, finding that Shah had not established a prima facie case of discrimination.

On appeal, Shah challenges all of the district court rulings, raising a number of issues. We find no merit to Shah's arguments. ²

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I. DISMISSAL UNDER RULE 41(B)

Federal Rule of Civil Procedure 41(b) allows a defendant to move for dismissal after the plaintiff has presented his evidence. In evaluating a 41(b) motion the court acts as a trier of fact, and a dismissal acts as an adjudication on the merits. Rutledge v. Electric Hose & Rubber Co., 511 F.2d 668, 676 (9th Cir. 1975). Factual findings of the trial court in a Title VII case will not be overturned on review unless clearly erroneous. Golden v. Local 55 of the International Association of Firefighters, 633 F.2d 817 at 820 (9th Cir., 1980). The evidence introduced at trial fully supports the trial court determination that Shah did not make a prima facie case of discriminatory training or retaliatory discharge.

To establish a prima facie case of discriminatory training, Shah was required to show that he was treated differently from other employees, and that Mt. Zion was aware of the discrimination and failed to remedy it. ³ The only evidence Shah points to as showing disparate treatment is the testimony of his successor, Woolsey. Her testimony, however, was introduced by Mt. Zion to show equivalent treatment. The substance of her testimony is that her co-workers provided training. Shah himself testified that he received the personnel manual, received assistance from his co-workers, and received written instructions in English. The trial court's determination that Shah did not establish disparate treatment is not...