Tarin v. County of Los Angeles

• Citation: 123 F.3d 1259
• Decision Date: 27 August 1997
• Docket Number: No. 96-55316,96-55316
• Parties: 156 L.R.R.M. (BNA) 2142, 79 Fair Empl.Prac.Cas. (BNA) 1284, 71 Empl. Prac. Dec. P 44,989, 134 Lab.Cas. P 10,031, 97 Cal. Daily Op. Serv. 6897, 97 Daily Journal D.A.R. 11,148 Dolores TARIN, Plaintiff-Appellant, v. COUNTY OF LOS ANGELES; Robert C. Gates, Irwin Silberman, Dr., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1259

123 F.3d 1259

156 L.R.R.M. (BNA) 2142, 79 Fair

Empl.Prac.Cas. (BNA) 1284,

71 Empl. Prac. Dec. P 44,989,

134 Lab.Cas. P 10,031,

97 Cal. Daily Op. Serv. 6897,

97 Daily Journal D.A.R. 11,148

Dolores TARIN, Plaintiff-Appellant, v. COUNTY OF LOS ANGELES; Robert C. Gates, Irwin Silberman, Dr., Defendants-Appellees.

No. 96-55316.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 1997.

Decided Aug. 27, 1997.

Laurence B. Labovitz, Los Angeles, CA, for Plaintiff-Appellant.

Calvin R. House, Gutierrez & Preciado, Pasadena, CA, for Defendants-Appellees.

Appeal from the United States District Court for the Central District of California; Richard A. Gadbois, Jr., District Judge, Presiding. D.C. No. CV 94-03658 RG (SHx).

Before: BROWNING, FLETCHER, and KOZINSKI, Circuit Judges.

FLETCHER, Circuit Judge:

This is an employment discrimination action brought by appellant, Dolores Tarin, an employee of the County of Los Angeles ("County") against the County, the Director of Health Services Robert Gates, and Tarin's supervisor Dr. Irwin Silberman (collectively "Defendants"). ¹ Tarin alleges that Defendants unlawfully denied her a promotion in violation of state and federal law. She alleges: (1) employment discrimination based on her race in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and the Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code § 12940 et seq.; (2) retaliation for filing administrative claims under the same three statutes; and (3) violation of veterans reemployment rights under the Veterans' Reemployment Rights Act ("VRRA"), 38 U.S.C. §§ 2021(b)(3) and 2024(b)(2), and Cal. Mil. & Vet.Code §§ 394-95. The district court granted summary judgment to Defendants on all claims. We have jurisdiction under 28 U.S.C. § 1291 and we affirm in part, reverse in part and remand.

I. FACTUAL BACKGROUND

Tarin, a Latina, is a registered nurse who has worked for the Los Angeles County Department of Health Services for eighteen years. She is also a Captain in the United States Army Reserve. In December 1990, she was recalled to active military status to serve in Desert Storm. Tarin spent several months working as a nurse at Fort Ord, California, and was released in July, 1991.

Immediately upon her reinstatement, Tarin took a three month leave of absence; County rules permit such leave for all persons returning from active military service. She returned to work on October 31, 1991. On November 21, 1991, Tarin applied for a promotion to the position as a "Program Specialist, Public Health Nurse." Tarin's supervisor, Janice Young, gave her a failing score of 60 out of a possible 100 on her Appraisal of Promotability ("AP"). Of 22 applicants, she was the only one given a failing score.

Tarin appealed this score to the Los Angeles County Civil Service Commission ("CSC"), alleging that she was given a low AP score because of her supervisor's animus toward her on account of her absence for service in the military. The CSC, in framing the scope of the hearing, considered three specific issues: whether the AP was properly scored, whether Tarin's military service affected her AP score, and what her appropriate AP score should be. The CSC heard testimony that Young had made negative comments about Tarin being away on military service. Tarin also presented the testimony of Dr. Irwin Silberman, who is the Director of Family Health Programs and Tarin's supervisor. Silberman admitted that Tarin had written him a letter describing Young's attitude and expressing concerns that she might be judged unfairly. However, Silberman said that when he talked to Young, she disavowed any negative attitude toward Tarin.

In November 1993, the CSC hearing officer concluded that Tarin's AP was not properly scored and that her military service disadvantaged her in the AP scoring. The CSC determined that Young had given Tarin a poor score because of her military service and related leave, and found that Tarin was entitled to an AP score of 95. The CSC, in its written opinion, stated that giving Tarin a 60 on her AP "was just as preclusive as if she hadn't been allowed to apply in the first place, contrary to her entitlement under the law." However, the CSC did not order her promotion; it noted that the question of whether she should have been promoted was not one of the three the parties had agreed were before the CSC. But, the CSC also added that had it been called upon to decide that issue, "the circumstances of this case" "[do not] justify requiring a promotion."

In addition to her claims of military discrimination, Tarin also alleges that Defendants denied her training opportunities based on her race in violation of Title VII and FEHA, and that they retaliated against her for filing administrative complaints of discrimination. Specifically, she alleged that she: 1) was not allowed to telecommute in the same manner as her co-workers; 2) received unfavorable performance evaluations; 3) was denied the opportunity to re-interview for a promotion; and 4) was denied two promotional opportunities.

II. STANDARD OF REVIEW

This court reviews de novo grants of summary judgment. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond pleadings and identify facts which show a genuine issue for trial. Id. at 324, 106 S.Ct. at 2553; Hopkins v. Andaya, 958 F.2d 881, 885 (9th Cir.1992) (per curiam).

III. DISCUSSION

A. Discrimination Based on Race

Tarin claims that she was discriminated against in that she was continuously denied job assignments and training opportunities which led to lower scores during the promotional examination process. She also alleges that the County promoted Clarice Pyles, Beverly Williams, and Sirocco Lopez-Kirk over her, even though they were less qualified than she was for the positions. Tarin attributes all these actions to racial animus.

In order to prove a prima facie case of discrimination under Title VII, ² a plaintiff may base her case on direct evidence of discriminatory intent, or on a presumption arising from the factors such as those set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). ³ Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994). Because Tarin has not provided any evidence of direct discriminatory intent toward minorities, we analyze her claim under McDonnell Douglas.

Once a plaintiff proves a prima facie case under McDonnell Douglas, a presumption of discrimination is created which a defendant may overcome by articulating a legitimate non-discriminatory reason for its actions. See Wallis, 26 F.3d at 889; see also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-256, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1980) (explaining shifting burdens of production of evidence in cases involving violations of Title VII). In order to survive summary judgment, plaintiff must then show that defendant's reason was merely a pretext. Wallis, 26 F.3d at 889.

Assuming arguendo that Tarin made a prima facie showing of discrimination under McDonnell Douglas--i.e., she belongs to a protected minority, applied for the position of Program Specialist, was qualified for the promotion, and the County hired other candidates with comparable qualifications--she failed to show that the County's reasons for not promoting her were based on race.

We accept that she was discriminated against, but the record supports the conclusion that such discrimination was based solely on her military service. The record is replete with her supervisor's indignation at her for applying for promotion immediately upon return from military service and permitted personal leave. Additionally, the department had minority employees and two of the three promotions Tarin challenges were filled by minorities. There simply is nothing in the record to suggest animus on account of race. We therefore affirm the district court's dismissal of all claims of racial discrimination based on Title VII, 42 U.S.C. § 1981, and FEHA.

B. Retaliation

Tarin alleges that Defendants took several courses of action in direct retaliation against her for filing administrative complaints. She alleged that she: 1) was not allowed to telecommute in the same manner as her co-workers; 2) received unfavorable performance ratings, 3) was denied the opportunity to re-interview for promotions, and 4) was denied two promotional opportunities.

To establish a prima facie case of retaliation under Title VII, "[t]he plaintiff must show (1) that she was engaging in a protected activity, (2) that she suffered an adverse employment decision, and (3) that there was a causal link between the protected activity and the adverse employment decision." ⁴ E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504, 1514 (9th Cir.1989). Once the employee has established a prima facie case of retaliation, "the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment decision." Id. If the employer is successful, "the plaintiff must then prove by a preponderance of the evidence that the proffered reasons are pretexts for retaliation or that a discriminatory reason more likely motivated the employer's action." Id.

We agree with the district court that Tarin has not shown a causal...