Opinion
No. 02-5335 EDL
October 19, 2003
JUDGMENT
This action came before the Court for hearing, Magistrate Judge Elizabeth D. Laporte presiding, and the issues have been duly heard and considered and a decision having been fully rendered,
IT IS ORDERED AND ADJUDGED that Plaintiff take nothing, that in accordance with the Court's Order of October 14, 2003, Defendant's Motion for Summary Judgment is GRANTED and that Defendant recover of Plaintiff its costs of action.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Ricky Hopkins, acting pro se, brought this action against Defendant Blommer Chocolate Company, claiming that Defendant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., by failing to hire him as a Refiner Operator based on his race. Plaintiff, who is African-American, was employed by Ultimate Staffing Services, a temporary employment agency, through which he worked at Defendant's Union City plant from July 29, 2000 until April 1 2001, when he was terminated for failure to report to work. During that time, Plaintiff worked in various areas of Defendant's plant, including the refiner area, where he received some basic Refin Operator training.In February 2001, Defendant posted job listings for Refiner Operators on the employee bulletin board. Pursuant to the Defendant's hiring procedure, an applicant must fill out a written application, participate in the interview process with supervisors, be compared to other job candidates, have references and past employment checked and, in some cases, successfully complete a physical examination. Plaintiff saw the Refiner Operator listing, but did not fill out a written application form or go through any of the other hiring steps. Upon completing the hiring procedure, Defendant hired four Refiner Operators, one African-American man, one Hispanic man and two Asian-Pacific Islander men.
Subsequently, on August 1, 2001, Plaintiff filed a Complaint of Discrimination based on race with the California Department of Fair Employment and Housing ("DFEH") and the Equal Employment Opportunity Commission ("EEOC"). On July 26, 2002, the DFEH sent a letter to Plaintiff informing him of the case closure and providing a right-to-sue notice. On September 16, 2002, the EEOC sent a Dismissal and Notice of Rights to Plaintiff. On November 6, 2002, Plaintiff filed this action.
On September 4, 2003, Defendant filed this motion for summary judgment, urging the Court to grant summary judgment on the ground that Plaintiff had failed to meet his burden of showing intentional discrimination. Plaintiff has not filed an opposition to Defendant's motion. On October 14, 2003, the Court held a hearing on this matter. Charles Goldstein represented Defendant. Plaintiff did not appear, nor did he contact the Court in advance regarding his absence. Accordingly, the motion for summary judgment is unopposed and the facts set forth by Defendant, which are supported by declarations and deposition testimony, are uncontroverted. The Court grants summary judgment for the reasons set forth below.
DISCUSSION
1. Legal Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith 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 judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). The nonmoving party's evidence must be believed and "all justifiable inferences must be drawn in [the nonmovant's] favor." United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989) (en banc) (citing Liberty Lobby, 477 U.S. at 255).
The moving party bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, interrogatory answers, admissions and affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett. 477 U.S. 317, 323 (1986). Where the nonmoving party will bear the burden of proof at trial, the moving party's burden is discharged when it shows the court that there is an absence of evidence to support the nonmoving party's case. See id. at 325. A party opposing a properly supported motion for summary judgment "may not rest upon the mere allegations or denials of [that] party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Liberty Lobby, 477 U.S. at 250.
2. Plaintiff has failed to meet his burden of showing discrimination under Title VII
Motions for summary judgment in cases alleging failure to hire in violation of Title VII are analyzed under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, a plaintiff must first establish a prima facie case of discrimination. The burden of production then shifts to the defendant to show legitimate, non-discriminatory reasons for defendant's action. The burden then shifts back to the plaintiff to show that the defendant's reasons were pretextual. Despite this burden shifting, the ultimate burden of persuading the trier of fact that the employer intentionally discriminated remains at all times with the plaintiff. See Norris v. City and County of San Francisco, 900 F.2d 1326, 1329 (9th Cir. 1990) (citingTexas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
a. Plaintiff is unable to establish a prima facie case of discrimination
A plaintiff must first establish a prima facie case of discrimination by showing: "(i) that he belongs to a racial minority, (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." McDonnell Douglas, 411 U.S. at 802; see also Norris, 900 F.2d at 1329-1330 (finding that the McDonnell Douglas test should not be strictly applied, but that ". . . a Title VII plaintiff has established a prima facie case once he has offered sufficient evidence `to create an inference that an employment decision was based on a discriminatory criterion under the Act.'") (quoting Teamsters v. United States, 431 U.S. 324, 358 (1977)). The proof necessary for a plaintiff to establish a prima facie case is "minimal" and need not even rise to the level of a preponderance of the evidence. Wallis v. J.R. Simolot Co., 26 F.3d 885, 889 (9th Cir. 1994). The plaintiff need only offer evidence that "gives rise to an inference of unlawful discrimination," arising either under the McDonnell Douglas presumption or by more direct evidence of discriminatory intent. See Wallis, 26 F.3d at 889.
Despite this low threshold, Plaintiff has not established a prima facie case because he has not presented any evidence that he applied for the Refiner Operator position. See Taeupa v. Board of Directors, 633 F.2d 1309, 1312 (9th Cir. 1980) (noting, in a case brought under 42 U.S.C. § 1981 and 1983, that under Title VII, a plaintiff would be required to show that he completed a job application to meet his burden under McDonnell Douglas): see also Ibarbia v. Regents of the University of Cal., 191 Cal.App.3d 1318, 1328 (1987) (finding that the plaintiff failed to complete the application process and so did not meet the second prong of the McDonnell Douglas requirements). In fact, Plaintiff testified at several points in his deposition that he did not apply for the position.See Declaration of Charles Goldstein, Ex. A at 66:19-67:7; 69:3-20; Ex. B at 238:20-239:4; 241:17-25. In Plaintiffs DFEH complaint dated August 1, 2001, he stated that "I applied for the position of Refiner Machinist [sic] for which I am qualified." Id. at Ex. 2. In that same statement, however, Plaintiff stated that he was "denied the opportunity from applying for the Refiner Machinist position." Id In his deposition, Plaintiff specifically denied that he had applied for a Refiner Machinist or Operator position. Defendant's witnesses confirm that Plaintiff did not apply for any refiner area position. See Declaration of Leanne Hicks at ¶ 11; Declaration of Don Jones at ¶ 12; Declaration of Teri Blommer at ¶ 15; Declaration of Steve Ballard at ¶ 21.
In addition, Plaintiff has not met his prima facie burden of showing that he was qualified for the position. Defendant has provided undisputed evidence that Plaintiff was not qualified for the position because Defendant does not hire individuals with Plaintiffs extensive criminal history. See Blommer Decl. at ¶¶ 26, 27; Ballard Decl. at ¶ 22, 23. In March 1999, Plaintiff was charged with and later convicted of assault with a deadly weapon and second degree burglary. On November 16 and December 23, 2000, while employed with Defendant, Plaintiff was charged with and later convicted of driving while under the influence. Finally, in April 2001, Plaintiff was charged with and later convicted of soliciting drugs. Had Plaintiff completed Defendant's employment application, he would have been required to acknowledge these crimes. Goldstein Decl. Ex. A at 121:3-15. Further, Defendant presented undisputed evidence that Plaintiff was not qualified because his employment history was unstable. Specifically, with only two exceptions since the 1970's, Plaintiff had never been employed for longer than one year at any one place. See Ballard Decl. ¶ 21; Blommer Decl. ¶ 25. Defendant presented undisputed evidence that it would not hire applicants with unstable work histories.
b. Defendant has set forth legitimate, nondiscriminatory reasons for not hiring Plaintiff
Even assuming that Plaintiff had made a prima facie showing of discrimination, Defendant has met its burden of coming forward with legitimate, nondiscriminatory reasons for not hiring Plaintiff. McDonnell Douglas, 411 U.S. at 803 (once a plaintiff establishes a prima facie case of discrimination, the burden of production then shifts to Defendant to articulate a legitimate, nondiscriminatory business reason for the employee's rejection); see also Miller v. Fairchild Indus., Inc., 797 F.2d 727, 731 (9th Cir. 1986) ("To satisfy this burden [of production], the employer `need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus.'") (quotingBurdine, 450 U.S. at 257). Defendant states that, even if Plaintiff had applied for the position, it would not have hired Plaintiff as a Refiner Operator because: (1) Plaintiff was not qualified because his experience in the refiner area was limited to cleaning the area and to learning how to stop and start the machine and keep it filled with product; (2) the successful applicants, who had distinguished themselves with relevant machinery experience, more education, leadership experience and personal references (Ballard Decl. at ¶¶ 12, 13, 14, 15; Blommer Decl. ¶¶ 11, 12, 13, 14), were more qualified; (3) Defendant would have been concerned about Plaintiff's extensive criminal record and would not hire applicants with this type of criminal history out of concern for the safety of other employees and because a Refiner Operator uses heavy equipment which could be a problem for someone with a possible substance abuse problem (Ballard Decl. at ¶¶ 22, 23; Blommer Decl. at ¶¶ 26, 27); and (4) Defendant would have been concerned about Plaintiff's employment history and would not have hired Plaintiff because he did not have a stable work history (Ballard Decl. at ¶ 21).
c. Plaintiff has failed to establish that Defendant's reasons were pretextual
When an employer presents legitimate reasons for the employee's rejection, then the employee must "offer specific and significantly probative evidence that the employer's alleged purpose is a pretext for discrimination." Schuler v. Chronicle Broadcasting Co., 793 F.2d 1010, 1011 (9th Cir. 1986). A plaintiff may show pretext "either directly by persuading that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256. "When evidence to refute the defendant's legitimate explanation is totally lacking, summary judgment is appropriate even though plaintiff may have established a minimal prima facie case based on a McDonnell Douglas type presumption."Wallis, 26 F.3d at 890-91.
Because Plaintiff has failed to oppose this motion, he has provided no evidence of pretext to refute Defendant's legitimate, nondiscriminatory reasons for failing to hire Plaintiff. Moreover, the record does not reveal any pretext. Defendant hired four minorities, including one African-American, for the Refinery Operator positions. Moreover, Plaintiff testified that no one at Defendant's plant made a racist remark or statement to him. Goldstein Decl. at Ex. A at 141:22-24. He also admitted that he did not even apply for the position and that he had no direct evidence, other than his subjective opinion, of discrimination by Defendant against him. See Goldstein Decl., Ex. A at 178:18-179:15. The only evidence in the record of pretext is Plaintiff's subjective belief that Defendant discriminated against him, which by itself is not sufficient to raise a triable issue of fact. See Schuler, 793 F.2d at 1011 ("These subjective personal judgments [of competence alone] do not raise a genuine issue of material fact" for purposes of showing pretext.).
CONCLUSION
Because Plaintiff has not sustained his ultimate burden of establishing a triable issue of material fact as to employment discrimination, Defendant's motion for summary judgment (docket number 22) is GRANTED. Defendant's request for judicial notice (docket number 31) is GRANTED to the extent that the Court takes judicial notice of the documents, but not necessarily of the truth of the statements in them.
IT IS SO ORDERED.