Yartzoff v. Thomas

• Decision Date: 06 February 1987
• Docket Number: No. 85-4073,85-4073
• Citation: 809 F.2d 1371
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: 42 Fair Empl.Prac.Cas. 1660, 42 Empl. Prac. Dec. P 36,795 Andrew G. YARTZOFF, Plaintiff-Appellant, v. Lee M. THOMAS, * Administrator, U.S. Environmental Protection Agency, Defendant-Appellee.

Page 1371

809 F.2d 1371

42 Fair Empl.Prac.Cas. 1660,

42 Empl. Prac. Dec. P 36,795

Andrew G. YARTZOFF, Plaintiff-Appellant, v. Lee M. THOMAS, ^* Administrator, U.S.

Environmental Protection Agency, Defendant-Appellee.

No. 85-4073.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 3, 1986.

Decided Feb. 6, 1987.

Andrew G. Yartzoff, in pro per.

James L. Sutherland, Eugene, Or., for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before WRIGHT, GOODWIN and NELSON, Circuit Judges.

NELSON, Circuit Judge:

Yartzoff appeals pro se from the district court's grant of summary judgment in favor of the Environmental Protection Agency ("EPA") in a Title VII suit alleging discrimination on the basis of national origin and retaliation for engaging in protected activities. He contends that genuine issues of material fact remain that should preclude summary judgment. We find that no genuine issue of material fact remains with respect to his national origin claims and some of his retaliation claims and that the EPA is entitled to judgment as a matter of law on those claims. The record indicates, however, that a genuine issue exists with respect to some of his retaliation claims. Accordingly, we affirm the grant of summary judgment in part, reverse in part, and remand for further proceedings.

I. BACKGROUND

Yartzoff, of Russian origin, worked as a chemist at the EPA's research laboratory in Corvallis, Oregon, from December 1972 until December 1983. He had previously worked as a GS-11 chemist for the Food and Drug Administration in the 1960s, and he obtained a Ph.D. in chemistry in 1970. After joining the EPA at GS-7 in 1972, his position was upgraded to GS-9 in 1975. In six administrative complaints and two actions brought in district court, which form the basis of this appeal, Yartzoff alleges that the EPA made a variety of adverse employment decisions between March 1979 and February 1981 because of his Russian national origin or his pursuit of Title VII grievances.

In early March 1979, Yartzoff sent letters to his supervisors stating that his qualifications and duties justified a reclassification of his position to GS-11 or GS-12. He sent a copy of the letter to an Equal Employment Opportunity (EEO) counsellor. The supervisors treated the letters as a request for a desk audit, a procedure in which job duties are assessed before a position can be reclassified to a higher GS level, and denied the request in late March 1979. A day after the denial of this request, the EPA administered a surprise quality assurance performance test to laboratory employees, including Yartzoff.

In April 1979, the EPA received authorization to hire six chemists at GS-11 and GS-12. Yartzoff wrote to his supervisor stating that he was qualified for these positions, but others were hired.

Yartzoff filed the first of six formal complaints with the EPA's Office of Civil Rights in May 1979. During the period August 1979 to February 1980, Yartzoff's supervisors transferred several job duties away from him. At a meeting held on April 4, 1980 between Yartzoff, two of his supervisors, and an EEO counsellor to discuss his grievances, Yartzoff's request for an immediate promotion to GS-11 was denied. The civil rights office investigated his charges in mid-April. In late April, Yartzoff's supervisors gave him an employment performance rating of below average in "cooperativeness" and average in other categories.

Later that year, an EPA personnel director in Las Vegas did not approve Yartzoff's written request for a self-improvement training program to improve his English, grammar, composition, and writing. The EPA's Office of Civil Rights investigated Yartzoff's administrative complaints at the Corvallis laboratory between December 2 and December 12, 1980. On February 9, 1981, Yartzoff's supervisors transferred additional job responsibilities away from him.

After the Office of Civil Rights did not render final determinations on his complaints within 180 days, Yartzoff filed two suits in federal district court seeking injunctive relief, back pay, fringe benefits, and general and punitive damages. Adopting a magistrate's findings and recommendation, the district court granted summary judgment in favor of the EPA on all of Yartzoff's national origin and retaliation claims. It held that Yartzoff failed to establish a prima facie case and that, even if he had on some of the claims, the EPA's evidence effectively rebutted it. Yartzoff timely appealed and argues that genuine issues of material fact exist that should preclude summary judgment. This court has jurisdiction under 28 U.S.C. Sec. 1291.

II. DISCUSSION

This court reviews the district court's grant of summary judgment de novo. Williams v. Edward Apffels Coffee Co., 792 F.2d 1482, 1484 (9th Cir.1986). We must determine whether, viewing the evidence and the inferences from that evidence in the light most favorable to the nonmoving party, there remains any genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Proctor v. Consolidated Freightways Corp., 795 F.2d 1472, 1477 (9th Cir.1986); Williams, 792 F.2d at 1484; Fed.R.Civ.P. 56(c).

At the outset, we note that Yartzoff's argument that Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976), provides an unqualified right to trial is mistaken. Chandler established that federal employees have the same right to de novo review of Title VII claims in district court that state and private-sector employees have. Yartzoff exercised this right by filing suit in federal district court. Once there, summary judgment rules apply. Nolan v. Cleland, 686 F.2d 806, 811 (9th Cir.1982).

A. National Origin Claims

Yartzoff alleges that the EPA discriminated against him on the basis of his Russian national origin under 42 U.S.C. Sec. 2000e-2(a) (1982). His complaint states [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 decision is a pretext for another motive which is discriminatory.

claims for disparate treatment, not disparate impact. The Title VII analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), follows three steps:

Lowe v. City of Monrovia, 775 F.2d 998, 1005 (9th Cir.1985), amended, 784 F.2d 1407 (9th Cir.1986).

To establish a prima facie case of disparate treatment, the plaintiff must offer evidence that "give[s] rise to an inference of unlawful discrimination." Texas Dep't 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 factors set forth in McDonnell Douglas are present: (1) the plaintiff belongs to a class protected by Title VII, (2) the plaintiff applied and was qualified for a job for which the employer was seeking applicants, (3) the plaintiff, despite being qualified, was rejected, and (4) after the plaintiff's rejection, the position remained open and the employer continued to seek applications from persons of comparable qualifications. Satisfaction of these criteria is sufficient to establish a prima facie case. Williams, 792 F.2d at 1485; Lowe, 775 F.2d at 1005. But failure to allege "specific facts" sufficient to establish the existence of a prima facie case renders a grant of summary judgment appropriate. Palmer v. United States, 794 F.2d 534, 536-39 (9th Cir.1986); see Celotex Corp. v. Catrett, --- U.S. ----, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(e).

Each of Yartzoff's five allegations of national origin discrimination fails because there is insufficient evidence to establish a prima facie case. The parties agree that Yartzoff falls within a class protected by Title VII. The claim based on his supervisor's refusal to perform a desk audit in March 1979, however, overlooks the fact that the EPA was then carrying out a reduction-in-force program. The program, announced in July 1978, imposed a freeze on promotions between February and July 1979. The second element of a prima facie case is absent because the EPA neither sought applicants nor was able to give promotions. See Palmer, 794 F.2d at 537-38.

The two claims concerning the EPA's failure to hire Yartzoff for one of the six openings in April 1979 and its refusal to promote him in April 1980 both fail for the same reason. Whether or not we agree with the district court's assessment that Yartzoff had not produced sufficient evidence on which a factfinder could infer that he was qualified for the positions he sought, Yartzoff admits that he failed to complete applications and otherwise comply with proper hiring and reclassification procedures. In unusual circumstances, failure to apply for a position may not vitiate a Title VII action. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 367-68, 97 S.Ct. 1843, 1870-71, 52 L.Ed.2d 396 (1977) (holding that a nonapplicant may pursue a Title VII action on a showing that he was deterred from applying by the employer's discriminatory practices). The record in this case, however, to say the least, does not show that Yartzoff was discouraged from applying. He simply failed to do so.

The claim concerning the denial of Yartzoff's request for a self-improvement training program fails because the Las Vegas personnel director lacked authority to implement unilaterally such a program. A prima facie case in this setting should include evidence that the employer's agent was in fact authorized to grant the request. Although the personnel director informed Yartzoff that a training program had...