Estenos v. PAHO/WHO Federal Credit Union

SCHWELB, Senior Judge,

concurring in part 1 and dissenting in part:

The principal issue in this case, as framed by the court, maj. op. at 882, is whether, under the DCHRA, a claim of employment discrimination based on national origin may properly be founded upon the employer’s imposition of a requirement that its employees be proficient in English. 2 I do not doubt that there are *897 situations in which this question should be answered in the affirmative; inability to speak English may be a proxy for national origin discrimination where, e.g., it is used to exclude Latinos and to keep a work force all-Anglo or predominantly Anglo. See 29 C.F.R. § 1606.6 (b). In my opinion, however, no impartial trier of fact could reasonably find, on this record, and in light of the overwhelmingly Latino and non-Anglo composition of the credit union’s work force and of its numerous Latino customers, that plaintiff Juan R. Esteños was discharged because of his Peruvian (or Latino) national origin. Accordingly, I would affirm the award of summary judgment in the employer’s favor.

I.

The DCHRA makes it unlawful, inter alia, to discharge a person “wholly or partially” for a discriminatory reason based upon “the race, color, religion, [or] national origin .... of any individual.” D.C.Code § 2-1402.11 (2001). (Emphasis added.) “National origin” means “the state, country or nation in which a person or his or her ancestors were born.” 4 DCMR § 599. The stated reason for Esteños’ discharge was not his Peruvian or Latin-American national origin, but rather his lack of English fluency. It is undisputed that a Peruvian or other Latino who shares Esteños’ national origin, but who is sufficiently fluent in English, is acceptable to the credit union. In fact, ten days before Esteños was fired, the credit union hired an Operations Manager who, like Esteños, was born in Peru. Conversely, the record provides no reason to doubt that a Caucasian individual of purely European national origin — French, Swedish, German, or Czech — would be ineligible for employment with the defendant (just as Esteños is) if he or she were not fluent in English. Inability to speak English adequately is thus decisive, regardless of the national origin of the complainant. According the language of the statute its plain and literal meaning, it is difficult to comprehend how Esteños’ discharge could have violated the Act.

It appears from the record that when Esteños lost his job, the credit union was a very small office, with only nine employees. Esteños was discharged in August, 2000, and eight employees were hired between August 2 and November 14 of that year. The countries of birth of these eight employees were as follows:

Peru 2

Venezuela 1

Bolivia 1

Ecuador 1

El Salvador 1

Philippines 1

Iran 1

Thus, six of the eight employees were from Latin America, and none was European or Anglo. As previously noted, a Peruvian-American was hired as “operations manager” ten days before Esteños was discharged. Further, it appears to be undisputed that many of the credit union’s customers are Latino and speak Spanish. Given this scenario, the “man on the Clap-ham bus” — the personification, in days gone by, of the reasonable person — would find startling indeed the suggestion that Esteños was fired because he comes from Peru. Facts are stubborn things, and the ethnic composition of the work force, as well as the surrounding circumstances, are far removed from the facts in most conventional cases of discrimination based on national origin.

Perhaps the illogic of the plaintiff’s position can best be illustrated by following his theory to its logical conclusion. Suppose that all of the credit union’s employees were of Peruvian national origin and that *898 all of them spoke excellent English. Suppose, further, that the person who fired Esteños was also from Peru. At least at the summary judgment stage, under the plaintiffs theory, apparently agreed to by the court, the predominance of Latino employees and the virtual absence of Anglos makes no difference. Therefore, Esteños could successfully claim, even in the all-Peruvian situation that I have hypothesized, that based on the perceived close connection between language proficiency and national origin, the reason for his discharge was his national origin. He could avoid summary judgment, under the majority’s analysis, even though all of the other employees, as well as the person responsible for the challenged decision, were Peruvian-American. Surely, the law does not countenance such a counter-intuitive and (in my view) absurd result.

II.

Although the majority appears to accord little, if any, weight to the tale told by the statistics described above, the case law pays them greater heed. “ ‘In the problem of racial discrimination, 3 statistics often tell much, and Courts listen.’ ” Harris v. District of Columbia Comm’n on Human Rights, 562 A.2d 625, 632 (D.C.1989) (quoting State of Alabama v. United States, 304 F.2d 583, 586 (5th Cir.), aff'd, 371 U.S. 37 , 83 S.Ct. 145 , 9 L.Ed.2d 112 (1962)); 4 Burns v. Thiokol Chemical Corp., 483 F.2d 300, 305 (5th Cir.1973). Further, in Harris , we applied the statistically-oriented analysis utilized by the federal appellate courts:

Our wide experience with cases involving racial discrimination in education, employment, and other segments of society have led us to rely heavily in Title VTI cases on the empirical data which show an employer’s overall pattern of conduct in determining whether he has discriminated against particular individuals or a class as a whole.

Id. (quoting Burns, 483 F.2d at 305 ). So, too, in Arrocha v. City Univ. of New York, 2004 WL 594981 (E.D.N.Y.2004), in granting partial summary judgment in favor of the defendant against 'a Panamanian instructor’s claim of discrimination based on national origin, the court held that

the record fails to reasonably support a finding of prohibited national origin discrimination. Although there is no evidence regarding the number of Panamanians employed by MEC, five of the eight adjunct instructors reappointed are natives of South or Central American countries, including Argentina, Peru, Mexico, and the Dominican Republic. Diversity in an employer’s staff undercuts an inference of discriminatory intent.

(Citations omitted.) 5 The court’s reasoning in Arrocha applies a fortiori to the even more compelling statistics in this case.

III.

In reversing the award of summary judgment, the majority relies heavily on the Supreme Court’s decision in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 , 120 S.Ct. 2097 , 147 L.Ed.2d 105 (2000), a case involving a claim of age *899 discrimination in employment. My colleagues cite Reeves for two separate propositions: (1) that discriminatory intent may often be properly inferred if the trier of fact finds the employer’s explanation of the challenged action to be incredible; and (2) that the presence in the employer’s work force of managers in the same age range as the plaintiff does not warrant the direction of a verdict in the employer’s favor. The differences between Reeves and the present case, however, are striking. The Supreme Court’s analysis in Reeves must be considered in the context of the compelling evidence of discriminatory animus which was present in that case, but which is completely absent from the present record.

In Reeves , the plaintiff, who was fifty-seven years old, and who had worked for the employer for forty years, was discharged from his position. He brought suit against the employer, alleging, inter alia, that his supervisor, who was the husband of the company’s owner, told him that he was “so old [he] must have come over on the Mayflower” and that he was “too damn old to do [his] job.” 530 U.S. at 151 , 120 S.Ct. 2097 . There was disputed testimony regarding whether Reeves had performed his job satisfactorily and whether his discharge was warranted.

The jury returned a verdict in Reeves’ favor, but the United States Court of Appeals for the Fifth Circuit reversed, holding that although the jury could properly have found that the employer’s explanation for its discharge of Reeves was pretextual, such proof was insufficient, even in conjunction with the evidence of age-based animus, to support a verdict in Reeves’ favor. Reeves v. Sanderson Plumbing Products, Inc., 197 F.3d 688 (5th Cir.1999). The Supreme Court, however, reversed the decision of the Court of Appeals and reinstated the verdict and judgment. In the course of its opinion, the Court recognized that “[pjroving the employer’s [stated] reason [for discharging an employee] false becomes part of (and often considerably assists) the greater enterprise of proving that the real reason was intentional discrimination.” 530 U.S. at 147 , 120 S.Ct. 2097 . “[Ojnce the employer’s justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision.” Id. (citation omitted).

Significantly for the purposes of the present case, however, the Court made it clear that such a showing will not always be sufficient. On the contrary, it will be inadequate “if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.” Id. at 148, 120 S.Ct. 2097 (emphasis added). Further, if “the circumstances show that the defendant gave the false explanation to conceal something other than discrimination, the inference of discrimination will be weak or nonexistent.” Id. (internal citation and quotation marks omitted). The Court also stated that the fact the company employed many managers over the age of fifty, while relevant, “was not sufficient to conclusively demonstrate that [the employer’s] actions were not discriminatorily motivated.” Id. at 153 , 120 S.Ct. 2097 (emphasis in original) (citing Furnco Constr. Corp. v. Waters, 438 U.S. 567, 580 , 98 S.Ct. 2943 , 57 L.Ed.2d 957 (1978)).

IV.

In my opinion, the Supreme Court’s decision in Reeves does not support reversal here. First, the case cannot readily be wrenched from its context, and, in particu *900 lar, from the remarks of Reeves’ boss that Reeves must have eome over on the Mayflower and was “too damn old.” With such evidence in the record, it is difficult to understand how the United States Court of Appeals, which was obliged to view the record in the light most favorable to the plaintiff, could hold that the plaintiffs case was insufficient as a matter of law. Unsurprisingly, the Supreme Court’s decision reinstating the verdict was unanimous.

This case differs from Reeves, aside from the absence of proof of discriminatory animus, because there was only limited evidence in the present- record that the employer’s stated grounds for dismissal were false. Cf. Reeves, 530 U.S. at 148 , 120 S.Ct. 2097 . Esteños claims that his English was, in fact, good enough, especially given the nature of his job, and that a genuine issue of material fact is presented in that regard. Leonard Supchak, the credit union’s CEO, who does not speak Spanish, apparently told Esteños that he (Supchak) did not understand Esteños’ limited English and could not communicate with him effectively. Even if we were to assume, arguendo, that Supchak’s stated reason for Esteños’ termination was pre-textual, and that Supchak was concealing his true motive, there is simply no basis, on this record, for inferring that Supchak’s real motive for firing Esteños, however unwarranted that motive might be, was that Esteños is from Peru. In other words, even if Esteños’ English was better than Supchak claimed it to be, and even if it was sufficient to permit Esteños to do his job, one cannot reasonably infer from this alleged fact that Supchak fired Esteños because Esteños is of Peruvian national origin. Aside from the overwhelmingly Latino composition of the work force, a Peruvian-American was hired as a manager just ten days before Esteños’ was discharged. In my opinion, even if Supchak is disbelieved, the notion that Esteños’ Peruvian or Latino national origin played a role in the credit union’s action is entirely without foundation.

I recognize that the presence of other Latinos, including that of a Peruvian-American manager, does not automatically require a finding that Esteños was not a victim of discrimination based on national origin. In Reeves, the Court reiterated this point, 530 U.S. at 153 , 120 S.Ct. 2097 , and I would not dispute it even if I were free to do so. But the statistical evidence in this case differs from that in Reeves in that almost all of the credit union’s employees were of the same national origin as that which supposedly constituted the reason for Esteños’ discharge. 6 Of the eight *901 employees hired at or near the time that Esteños was fired, six (75%) were Latino, two (25%) were Asian, and not a single one was Anglo. 7 If Supchak was concealing some unknown malign motivation when he discharged Esteños for lack of proficiency in English, the remarkable statistics in this case demonstrate that Supehak’s motivation surely was not based on Esteños’ national origin.

y.

Ultimately, the question on summary judgment is whether, viewing the record in the light most favorable to Esteños, an impartial trier of fact could rationally find that Esteños was fired because he is of Peruvian (or Latino) national origin. Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 199 (D.C.1991) (“the test for deciding a motion for summary judgment is essentially the same as that for a motion for a directed verdict”) (citing, inter alia, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-53, 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986)). I am at a loss to understand how an impartial juror could reasonably so find. Accordingly, I respectfully dissent from the reversal of the judgment in the credit union’s favor.

. I agree, substantially for the reasons stated in Part II of the court’s opinion, that Esteños' action is not time-barred.

. My separate opinion addresses only this issue. The majority does not base its decision on a “disparate impact” analysis, see maj. op. at 889 n. 7 and accompanying text, and I would vote to affirm under that test as well.

. And, by analogy, discrimination based on national origin.

. In State of Alabama , the court added that "[h]ere, [the statistics] aré spectacular.” 304 F.2d at 586 . The same may fairly be said here.

. The court denied the University's motion for summary judgment with respect to the plaintiff’s claims of discrimination based on color and on retaliation.

. In Khiem v. United States, 612 A.2d 160, 164 (D.C.1992), we explained:

In Kraft v. Kraft, 155 A.2d 910 (D.C.1959), the court pointed out that:

It is well to remember that significance is given to broad and general statements of the law only by comparing the facts from which they arise with those facts to which they supposedly apply.

155 A.2d at 913 . See also Armour & Co. v. Wantock, 323 U.S. 126, 132-33 , 65 S.Ct. 165 , 89 L.Ed. 118 (1944), where the Supreme Court stated:

It is timely again to remind counsel that words of our opinions are to be read in the light of the facts of the order under discussion. To keep opinions within reasonable bounds precludes writing into them every limitation or variation which might be suggested by the circumstances of cases not before the Court. General expressions transposed to other facts are often misleading.

(Emphasis added in Khiem.)

There is nothing in Reeves to suggest that all or almost all of the employer's managers were roughly of the plaintiff’s age, or that there were few or no younger managers. Without the persuasive evidence of age-based animus directed at the plaintiff in Reeves, the Court might well have viewed the inclusion of managers in their fifties in the employer's work force as persuasive evidence that the plaintiff *901 was not discharged because of his age. Moreover, in the absence of the animus evidence, the jury might have reached a different verdict.

. Ordinarily, discrimination against one class or group is intended to favor a different class or group. In this case, the favored group has not been identified by the plaintiff or by the majority, but there is surely no evidence in this case of a preference for Anglos.