Williams v. Edward Apffels Coffee Co., 85-6204

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation792 F.2d 1482
Docket NumberNo. 85-6204,85-6204
Parties41 Fair Empl.Prac.Cas. 396, 41 Empl. Prac. Dec. P 36,509 Arnold B. WILLIAMS, Plaintiff-Appellant, v. EDWARD APFFELS COFFEE COMPANY, Bill Berry and J.C. Hill, Defendants-Appellees.
Decision Date01 July 1986

Arnold B. Williams, Los Angeles, Cal., in pro per.

Barry Bartholomew, Knapp, Petersen & Clarke, Universal City, Cal., for defendants-appellees.

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

Before WRIGHT and NELSON, Circuit Judges, and MARQUEZ, * District Judge.

NELSON, Circuit Judge:

Arnold B. Williams appeals pro se from the district court's grant of summary judgment in favor of Edward Apffels Coffee Company. He contends that the district court erred in finding that: (1) no genuine issue of material fact remained as to whether Apffels had discriminated against Williams on the basis of race and age; (2) Williams had not alleged sufficient facts to state a cause of action under the California Fair Employment and Housing Act; and (3) Williams had not alleged sufficient facts to support his action in tort for fraud and deceit. We find Williams' contentions are correct. Accordingly, we reverse the district court's grant of summary judgment, and remand for further proceedings.

I FACTS

Between 1979 and 1981, Arnold B. Williams, an elderly black male, worked intermittently, for a total of twenty-two months, as a temporary or "casual" employee of the Edward Apffels Coffee Company (Apffels). Williams made oral requests to be considered for available permanent jobs on at least three occasions, and Apffels acknowledges that it regarded Williams as an applicant. In each case, Apffels hired someone other than Williams for the permanent position.

Williams' last request for permanent employment occurred when he was hired to fill in for a regular employee who was dying of cancer. Williams contends that when J.C. Hill, the plant foreman, hired Williams, Hill told Williams he would eventually be hired on a permanent basis. Williams also states that Hill demanded a kickback from Williams in exchange for the promise of permanent employment. After the regular employee died, Apffels hired someone other than Williams as a permanent replacement.

Williams filed a complaint against Apffels with the California Department of Fair Employment and Housing (DFEH), alleging discrimination on the basis of race and age. The Equal Employment Opportunity Commission (EEOC), under its work-sharing agreement with the DFEH, investigated Williams' complaint, and found insufficient evidence to sustain the discrimination charge. The DFEH then terminated its involvement with Williams' case, and referred the complaint to the EEOC, which in turn terminated its involvement in the case Williams filed a complaint in the district court against Apffels, J.C. Hill, and Bill Berry (Apffels' former plant supervisor), alleging: (1) employment discrimination based on race and age, in violation of both 42 U.S.C. Sec. 1981 and Cal.Gov't Code Sec. 12920; and (2) fraud and deceit, under California tort law. Williams' subsequent motion for summary judgment was denied. Defendants then filed their own motion for summary judgment, and the district court, adopting the Magistrate's report and recommendation, granted the motion for summary judgment. Williams appeals pro se from that judgment.

and issued Williams a "Notice of Right to Sue."

II DISCUSSION
A. Standard of Review

A grant of summary judgment is reviewed de novo. Franklin v. Murphy, 745 F.2d 1221, 1235 (9th Cir.1984). An appellate court's review is governed by the same standard used by the trial court under Rule 56(c) of the Federal Rules of Civil Procedure. Twentieth Century-Fox Film Corp. v. MCA, 715 F.2d 1327, 1328 (9th Cir.1983). This court must first determine whether the complaint adequately states a claim upon which relief can be granted. In making that determination, the court must construe liberally the allegations of a pro se complainant. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595-596, 30 L.Ed.2d 652 (1972); Christensen v. C.I.R., 786 F.2d 1382, 1384 (9th Cir.1986); Franklin, 745 F.2d at 1235. If the complainant states a proper claim, the court must then determine whether, on the basis of the pleadings and affidavits, and viewing the facts in the light most favorable to the nonmoving party, there is any genuine issue of material fact and whether the substantive law was correctly applied. Amaro v. Continental Can Co., 724 F.2d 747, 749 (9th Cir.1984).

B. Williams' Federal Claims

Williams, citing 42 U.S.C. Sec. 1981, alleges that Apffels discriminated against him on the basis of race and age. Section 1981, however, redresses only discrimination based on race. Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir.1986). In the federal system, age discrimination is covered under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621-634 (1982 & Supp.II 1984). Construing Williams' pro se complaint liberally, we view it as including a claim under 29 U.S.C. Sec. 623(a)(1) (the ADEA statute prohibiting employers from failing to hire an individual because of the individual's age). 1

Williams claims disparate treatment rather than disparate impact. Disparate treatment claims under Sec. 1981 and the ADEA are analyzed according to the same standard used to analyze disparate treatment claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e to 2000e-17 (1982). Gay v. Waiters' and Dairy Lunchmen's Union, Local No. 30, 694 F.2d 531, 537 (9th Cir.1982) (Section 1981); Sutton v. Atlantic Richfield Co., 646 F.2d 407, 411 (9th Cir.1981) (ADEA). The Title VII analysis follows three basic steps:

[A] plaintiff must first establish a prima facie case of discrimination. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. Then, in order to prevail, the plaintiff must demonstrate that the employer's alleged reason for the adverse employment is a pretext for another motive which is discriminatory.

Lowe, 775 F.2d at 1004-05 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973)).

1. Williams' Prima Facie Case

The plaintiff in a disparate treatment case must offer evidence that "give[s] rise to an inference of unlawful discrimination." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). A common way to establish this inference is to show that the four requirements set forth in McDonnell Douglas are met:

1. that the plaintiff belongs to a class protected by Title VII;

2. that the plaintiff applied and was qualified for a job for which the employer was seeking applicants;

3. that, despite being qualified, the plaintiff was rejected; and

4. that, after the plaintiff's rejection, the position remained open and the employer continued to seek applications from persons of comparable qualifications.

See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. Satisfaction of the McDonnell Douglas criteria is sufficient to establish a prima facie case. Lowe, 775 F.2d at 1005; Furnco Construction Corp. v. Waters, 438 U.S. 567, 575, 98 S.Ct. 2943, 2948-49, 57 L.Ed.2d 957 (1978).

Williams easily satisfies three of the four McDonnell Douglas requirements. First, as a black person over forty, he belongs to classes protected by Title VII and the ADEA. Second, he applied to Apffels for available permanent jobs as a "packer" and as a "mechanic." 2 Apffels concedes that Williams was qualified as a packer. 3 It appears that Williams also was qualified for the mechanic's job. 4 Third, despite being qualified, Williams was rejected for both jobs.

The fourth McDonnell Douglas requirement is more troublesome, but Williams has satisfied it also. The Magistrate concluded that Williams was simply part of a pool of applicants from which Apffels chose a permanent employee, and that therefore the job did not "remain open" after Williams' rejection. However, the Supreme Court did not intend that the McDonnell Douglas requirements be read inflexibly; indeed, it has gone so far as to remark that the requirements are "not necessarily applicable in every respect to differing factual situations." McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13.

In a factual situation similar to the one here, the Court demonstrated the flexibility of the fourth requirement. Quoting the McDonnell Douglas language just cited, the Court in Burdine held that a Title VII plaintiff was able to make out a prima facie case by showing that she was a qualified applicant who sought an available position, even though the position was filled by a man at the moment of her rejection. See 450 U.S. at 254 n. 6, 101 S.Ct. at 1094 n. 6. Williams, then, does not have to show that any discrete period of time elapsed between the moment he was rejected and the moment someone else was hired; it is enough, for purposes of the fourth McDonnell Douglas requirement, that the position remained open after the qualified candidate applied for the job, and that someone else was ultimately selected.

Williams has shown that: (1) the packer's job was declared open on June 26, 1981, but not filled until August 10, 1981; and (2) he was considered an applicant for the job during that entire period. Thus, under Burdine, Williams has satisfied the fourth McDonnell Douglas requirement, and established a prima facie case.

2. Apffels' Articulated Nondiscriminatory Reason For Not Hiring Williams

Since Williams has established a prima facie case, the burden shifts to Apffels to "rebut the presumption of discrimination by producing evidence that [Williams] was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Burdine, ...

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