Sischo-Nownejad v. Merced Community College Dist.

• Decision Date: 13 June 1991
• Docket Number: No. 89-15874,SISCHO-NOWNEJA,P,89-15874
• Citation: Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104 (9th Cir. 1991)
• Parties: 56 Fair Empl.Prac.Cas. 250, 56 Empl. Prac. Dec. P 40,844, 67 Ed. Law Rep. 1109 Edyna Marielaintiff-Appellant, v. MERCED COMMUNITY COLLEGE DISTRICT; Board of Trustees of Merced Community College District; Bruce Pressly; Margaret Randolph; Richard Rodini; Robert Ohki; Richard Parker; Dr. E.W. Bizzini; James Edmonson; Walter Crawford; Anthony Rose; William C. Martineson; Dean Ron Williams; Luc Janssens; Alan Beymer, in their official capacity as members of the Board of Trustees and Administrators of Merced Community College District, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1104

934 F.2d 1104

56 Fair Empl.Prac.Cas. 250,

56 Empl. Prac. Dec. P 40,844, 67 Ed. Law Rep. 1109

Edyna Marie SISCHO-NOWNEJAD, Plaintiff-Appellant, v. MERCED COMMUNITY COLLEGE DISTRICT; Board of Trustees of Merced Community College District; Bruce Pressly; Margaret Randolph; Richard Rodini; Robert Ohki; Richard Parker Dr. E.W. Bizzini; James Edmonson; Walter Crawford Anthony Rose; William C. Martineson; Dean Ron Williams Luc Janssens; Alan Beymer, in their official capacity as members of the Board of Trustees and Administrators of Merced Community College District, Defendants-Appellees.

No. 89-15874.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 10, 1990.

Decided June 13, 1991.

Katherine Hart, Fresno, Cal., for plaintiff-appellant.

Benjamin L. Ratliff, Eldridge, Anderson & Weakley, Fresno, Cal., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of California.

Before TANG, FLETCHER and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Edyna Sischo-Nownejad, an art instructor at Merced Community College on Merced campus, brought suit against the college and college officials alleging age and sex discrimination. Her complaint alleges that because of her age and sex, the defendants harassed her and subjected her to different treatment regarding class assignments and other working conditions. During the period in question, Sischo-Nownejad was 52-58 years of age. At the time, she was the only female, and one of the oldest, full-time faculty members in the art department.

The district court granted summary judgment for the defendants. The court held that Sischo-Nownejad had failed to prove a prima facie case of intentional discrimination pursuant to Title VII, the Age Discrimination in Employment Act, and 42 U.S.C. Sec. 1983, and that no triable issue of material fact existed regarding her second Sec. 1983 claim and her related state law claims. Sischo-Nownejad appeals from the grant of summary judgment. ¹ We affirm in part and reverse in part.

I. FACTS ²

Sischo-Nownejad has been employed as a faculty member in the Merced College art department since 1968. The college ordinarily bases the assignment and scheduling of classes on the input of faculty members, and senior faculty who have developed particular courses are normally given the first choice of teaching them. Further, division chairpersons customarily consult with faculty members regarding their need for supplies. The college followed these practices with regard to the other faculty members throughout the period in question, but did not do so with regard to Sischo-Nownejad. Instead, from 1981 to 1986, division chairpersons failed to consult with her about which courses she wanted to teach, gave her teaching assignments that she did not want, and reassigned courses that she had developed and taught for many years. From 1982 to 1988, they also failed to consult with her regarding her need for supplies and--although the other faculty members received all the supplies necessary--she received none. Moreover, from 1981 to 1983, the division chairpersons monitored the enrollment of her classes but not the enrollment of classes taught by others.

In March 1981, Sischo-Nownejad protested to defendant Williams, a college dean, regarding her class assignments. She stated that defendant Janssens, her division chairperson, had reassigned some of her high-enrollment courses to himself, regardless of the fact that she had developed the classes. Williams took no action. Sischo-Nownejad then wrote to Williams and sent a copy of the letter to the president of the college and the board of trustees. Janssens responded by filing a complaint with the faculty ethics committee that accused Sischo-Nownejad of charging him with unprofessional conduct in a widely disseminated letter, violating department procedure by the copying and sale of art department works, and physically abusing another art department teacher. He did not send Sischo-Nownejad a copy of the complaint. The ethics committee then violated its own policies by conducting an investigation that involved the entire faculty senate, rather than merely the ethics committee, with no advance notice to Sischo-Nownejad. Janssens's complaint resulted in an admonishment against Sischo-Nownejad, which was included in her personnel file.

In 1982, Sischo-Nownejad took a leave of absence for medical reasons. When she returned to work, she found that large file cabinets had been moved into her office during her absence. College officials criticized her for allowing her daughter to use her faculty parking space and said that if the use continued, the space would be taken away. Sischo-Nownejad responded that she was on crutches and that her daughter was providing transportation; the defendants took no further action regarding the parking space. The defendants also criticized Sischo-Nownejad for not being on campus enough hours to fulfill her contractual obligation, for failing to attend division meetings, and for being absent during her office hours. Sischo-Nownejad denied the allegations.

In February 1983, Sischo-Nownejad submitted a written request for a leave of absence. The defendants denied her request, stating that the semester had already progressed too far to grant the leave. Sischo-Nownejad sought reconsideration and defendant Martineson, president of the college, asked for clarification on the type of leave requested. After soliciting information on the types of leave available, Sischo-Nownejad requested a paid sabbatical leave or an unpaid professional development leave. The letter that her attorney wrote to Martineson requesting the leave stated that Sischo-Nownejad was under no medical restrictions and that, unless advised to the contrary by her doctors, she would continue to fulfill her contractual obligations. Martineson did not rule on the request for reconsideration, and Sischo-Nownejad withdrew the request seven months later.

Throughout the period in question, the defendants made numerous statements indicating age and gender bias. These statements include a reference to Sischo-Nownejad as "an old warhorse" and a characterization of her students as "little old ladies [who] have their own art studio." Janssens once stated, "There she is with her little group of women." He also made sarcastic remarks regarding "you women's libbers." Martineson twice urged Sischo-Nownejad to retire, a suggestion repeated by the dean of personnel.

II. PROCEDURAL HISTORY

Sischo-Nownejad's complaint contains several claims for relief. She alleges that the defendants discriminated against her on the basis of sex, in violation of Title VII of the Civil Rights Act; that they discriminated against her on the basis of age, in violation of the Age Discrimination in Employment Act; and that they deprived her of equal protection and the right to privacy, in violation of 42 U.S.C. Sec. 1983. She further alleges that the defendants deprived her of equal protection in violation of Article I, Sec. 7 of the California Constitution. She claims that their alleged age and sex discrimination constitutes a violation of the California Fair Employment and Housing Act, as does their alleged refusal reasonably to accommodate her handicap of high blood pressure by granting her a leave of absence. Finally, she alleges that the defendants breached an implied covenant of good faith and fair dealing in her employment contract.

The district court granted the defendants' motion for summary judgment on all claims. The court held that Sischo-Nownejad had failed to establish a prima facie case of intentional age or sex discrimination pursuant to Title VII, the Age Discrimination in Employment Act, and Sec. 1983. It further held that no triable issue of material fact existed pursuant to Sec. 1983 on the question whether the defendants had violated Sischo-Nownejad's right to privacy. ³ Because of its holding that Sischo-Nownejad had failed to demonstrate age or sex discrimination pursuant to Title VII and the Age Discrimination in Employment Act, the district court also held that she had failed to demonstrate age or sex discrimination pursuant to Article I, Sec. 7 of the California Constitution ⁴ and the California Fair Employment and Housing Act. The court held that no triable issue of material fact existed pursuant to the Fair Employment and Housing Act on the question whether the defendants had failed reasonably to accommodate Sischo-Nownejad's high blood pressure by granting a leave of absence. Finally, the court held that Sischo-Nownejad could not recover for breach of an implied covenant of good faith and fair dealing because California law limits the application of tort damages in employment situations. ⁵

The district court denied the defendants' request for attorney's fees pursuant to 42 U.S.C. Sec. 1988. The defendants do not appeal this ruling. They do, however, request that we exercise our discretion and award them their costs and attorney's fees on appeal.

III. TITLE VII AND AGE DISCRIMINATION IN EMPLOYMENT ACT CLAIMS

A.

Title VII of the Civil Rights Act makes it illegal for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." 42 U.S.C. Sec. 2000e-2(a)(1). The Age Discrimination in Employment Act forbids the identical conduct when the discrimination is "because of such individual's age." 29 U.S.C. Sec. 623(a)(1). A plaintiff may show violations of these statutes by proving disparate treatment or disparate impact, or by proving the existence of a hostile work environment. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977); Jordan v. Clark, 847 F.2d 1368, 1373 (9th Cir.1988), cert. denied, 488 U.S. 1006, 109 S.Ct. 786, 102 L.Ed.2d 778 (1989); Equal Employment...