Petition for Writ of Certiorari — Gideon v. Riverside Community College District
Supreme Court brief1987
Ask Donna
What actually matters in this document.
Text
ee
—- en ae
No.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1987
SHEELA A. GIDEON,
Petitioner
vs.
RIVERSIDE COMMUNITY COLLEGE DISTRICT,
Respondent
On Writ of Certiorari to the Court of
Appeals for the Ninth Circuit
PETITION FOR WRIT OF CERTIORART
i DALE M. FIOLA
| Attorney for Petitioner
1678 West Broadway, Suite 214
Anaheim, California 92802
(714) 776-3840
QUESTIONS PRESENTED
1. Was disparate impact an
issue at trial?
2. Does it constitute
reversible error for the lower courts to
determine disparate impact was not an
issue at trial, when it was established
by the evidence?
3. Did the District Court
render a decision that was contrary to
the evidence?
4. Did the Court of Appeals
err in affirming the decision of the
District Court when there was a decision
contrary to the evidence?
5. Did the District Court
commit reversible error in admitting into
evidence subsequent employment records,
reports, memoranda and other negative
documents of employee beyond the scope of
Smallwood vs United Airlines, Inc.?
6. Did the Court of Appeals
err in affirming the decision of the
District Court when trial court admitted
into evidence subsequent employment
records, reports, memoranda and other
negative documents of employee beyond the
scope of Smallwood vs United Airlines,
Inc.?
7. Did the District Court
commit reversible error in excluding from
evidence investigative reports of the
EEOC and FEHP including progress reports.
8. Did the Court of Appeals err
in affirming the decision of the District
Court in excluding from evidence
investigative reports of EEOC and FEHP
including progress reports?
TABLE OF CONTENTS
PAGE
OPINIONS BELOW ......... coccccccccces 2
JURISDICTION wcccccsrccccsccssscscecseee 3
QUESTIONS PRESENTED ...... eae eccsenee 8
STATUTES INVOLVED ..cccccesccccccssee §
STATEMENT OF CASE .nccccccsccscccccee §
STATEMENT OF FACTS eeeeseeee#neee#ee#e#ee#8e#ee#eee##e# 8
REASONS FOR GRANTING WRIT
1. Trial Court abused its
discretion amounting to
prejudicial error in
concluding that disparate
impact was not an issue
SU ENE GbSbbodecenesseccocee 28
2. Ninth Circuit Court of
Appeals erred in affirming
the District Court decision
finding and concluding
that disparate impact
was not an issue
DCE Ghbcheeebeevescsesse 36
3. Trial Court abused its
discretion in rendering a
decision contrary to the
MUR cece stcccssccveccces 38
4. Ninth Circuit Court of
Appeals erred in affirming
-i-
PAGE
District Court decision that
was contrary to the evidence 44
5. Trial Court abused its
discretion amounting to
reversible error in admitting
evidence of prior and
subsequent employment
records, reports,
memorandum and other negative
evidence of employee ....... 45
6. Ninth Circuit Court of
Appeals erred in affirming
District Court decision
to admit evidence of
prior and subsequent employment
records, reports, memoranda
and other negative evidence
OF GRPLOVOR 2c cccncsvecnccce 56
7. Trial Court abused its
discretion amounting to
reversible error in
excluding evidence of the
investigative reports of the
EEOC and FEHP including the
Progress FeEPOrts ..ccscccceee 58
8. Ninth Circuit Court of
Appeals erred in affirming
District Court decision
to exclude evidence of the
investigative reports of the
EEOC and FEHP including the
progress reports ...cccccces 62
VIII. CONCLUSION ..cccccccccccescvecce 62
ime pM 2 2 1 joke aR ere ee eee eee ae 64
wi do
PAGE
Opinion and Judgment of the
United States Court of
Appeals for the Ninth
CARAS vesvcciesecnsexcesae Bm]
Findings of Facts and
Conclusions of Law of the
District Court of the
Central District of
CRASSORUEE 6eassteccscenccoce Be
Judgment of the District
Court for the Central
District of California .... A-45
-lii-
TABLE OF AUTHORITTES
Cases:
A'bemarle Paper Co. v. Moody,
ee ae ee ys ee ne
OP? +s eC Ramee eee eh we os eee
Casper v. City of Los Angeles,
eve 7.24 452, -140 GiA.2a 433
Ws
Chandler v. Roudebush, 425 U.s.
P40, O62 €307e) 465s chs bs ee
Chrapliwy v- ae 1mc., 458
© eM. 2Oe E4077) ks ie sie sees
Day v. Mathews, 520 F.2d 1083,
wes CORPORA TOTS) si Kida ewcus
Dickerson v. Metropolitan Dade
County, 659 F.2d 574, 579
(SGM ClPOuls, DEOL) seas eve cas
Dolton v. Green, 164 P.24 79358,
7a Bede Oe AE 6kne vee eek s he eee
Dothard v. Rawlinson, 423 U.S.
SPS PROT ee ros ss
Rast Texas Motor Freight v
Rodriguez, 421 U.S. 395,
ee Re ces ee er eee eee
E.E.O.C. v. E.I. Dupont du
Nemours Company, 445 F.suppo
ave (OeDbe Lee) bee sawn ho ees
-— T=
+
Farm Lamce Assoc., 225 P 291,
GS Cee FS cocverecevecsessvsecsese 54
Firefighters Institute for Racial
Equaiity v. City of St. Louis,
549 F.2d 506 (8th Cir., cert
denied, 434 U.S. 819 (1977) .....33
Franks v. Bowman Transportation
Company, 495 F.2d 398 (5th
+ & BO74) ceecccvccesocccceccc cee
Garcia v. Gloor, 618 F.2d 624,
272, (9180) Ey ae a ee ee ee ee
Garfield v. People's Finance and
Thrift Co. of Riverside, 24
CASE 284, 74 Fae LOGL ecsccccecrcdt
Hudson v. Becker, 56 P.2d 249,
12 C.A.24 743 ee oe ee ee eee
In re Moore's Estate, 300 P2d
110, 143, CA2d 64 hbo 6 6s we ees oe
In re Peter's Estate, 244 P.2d
88, 110 7 2a tae il ecb dee Oot eee
Jackson v. Seaboard Coastline
Railroad, 678 F.2d 992 (llth
Cir. 1982) a ee aa a der a a ee ee,
Johnson v. Uncle Ben's Inc.,
657 7.26 750 (Sth Cirs,. 1971) .--31
Los Angeles Dept. of Water and
Power v. Manhart, 435 U.S.
702, 98 S.Ct. 1370 (1978) .......39-40
Laine v. Weddell, 173 P.2d
-V—-
567, 76 CiA. 2G G12 cecvcsveceoccves 39
Leob v. Testron, 600 F.2d 1003,
LOLA (2STS) sce cccicevasersacorves 39
Lufkin v. Patten-Blinn Lumber Co.
59 2.264. 414, i5 C.As 2G 299 <0ce.035
McDonnell Douglas v. Green, 411i
Was. TOE C8 se aeaeseewene ous 29,30,39
Miller v. Pacific Pipeline
Construction Co., 291, P.2d
$34, 138 C.A.2G 167 esccvcessssees 44
Mount Healthy City Board of
Education v. Doyle, 429 U.S.
i Meo 3g re para aahy hae wi 47, 55
Murnane v. American Airlines, Inc.
482 F.supp.135, 148 (1979) ...... BA
Nashville Gas Co. v. Satty, 434
ea SO TED wico en dee deb p00 e ws 32
Nishi v. Igoguchi, 2 P.2d 864,
116 C.An 398 ceocccccecccsesccscces bo
Peters v. Jefferson Chemical Co.
$16 F.2d 447 (Sth Cir. 1975) ....60
Plummer v. Western International
Hotels Co., Inmc., 656 F.2d 502,
a Ee a eee 61
Ruddlieson v. Paules, 264 P. 1096
203 es 453 eeeeeseeee#eee#e#e#Ffee#ee#e#2##8#e8e# © @ @ @ 35
Smallwood v. United Airlines,
; em 2 RS rea eee
occcccce se 4, 45,46,47,48,49,50,51,52,56
ay’ «
Smith v. Universal Services, Inc.,
454 F.2d 154 (Sth Cir. 1972) ....89
Snokeiberg v. Crecelius, 280 P.2d
Aue s (Om Cimcse see bc tecdaccvdds 34
Teamsters v. United States, 431
Ves 32264, 3ES (1977) wccsccces 39,47
Texas Department of Community
Affairs v. Burdine, 450 U.S.
248 (1981) Serer eee essere e ee e 30,31
Trans World Airlines v. Thurston,
aGo @.CG. G13 (1988) wccccccscoee39
Turner v. Texas Instruments, Inc.,
555 F.2d 1251, 1254-55 (5th
eis, 1977) Tees ere eer? eToeT Tre Tere
United States v. City of Chicago,
549 F.2d 415 (7th Cir. Bett) osseda
Vice v. Thacker, 180 P.2d 4, 30
C.26 84 Tie hye Tee ee ee ee ee ae ee ee
Wells v. Comstock, 295 P.2d 961,
4C.3da 528 ere eee ce ei se ee eee ee ee
Wysock v. Borchers Brothers, 232
Pome: S31, 1064 CBSO S71 2c ccecs c Sh
STATUTES
28 Ves Gi Section 1254 rrr errr eee
42 U.S.C. SeCELON 200Ce ..ccccccccccd
42 U.S.C. Section 2000e-2(a) (1) ....6
-vii-
42 Ue8.G» Section 2000e-3 TREE LEE ©
Federal Rules of Evidence:
Rule 803 (8) ee eee ee ee eee
Federal Rules of Civil Procedure,
Section 41lb ere: eee eee eee ee ee fC
-viii-
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1987
SHEELA A. GIDEON,
Petitioner
vs.
RIVERSIDE COMMUNITY COLLEGE DISTRICT
Respondent
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
TO THE HONORABLE, THE CHIEF JUSTICE AND
THE ASSOCIATE JUSTICES OF THE SUPREME
COURT OF THE UNITED STATES OF AMERICA:
«le
The Petitioner, SHEELA A. GIDEON, prays
that a Writ of Certiorari be issued to
review the Judgment of the United States
District Court, Central District of
California, entered in the above-entitled
case on September 3, 1985, and the
decision of the United States Court of
Appeals for the Ninth Circuit entered and
filed on September 15, 1986.
OPINIONS BELOW
The Finding of Facts and
Conclusions of Law of the United States
District Court is unreported and is
printed in Appendix "A" hereto, infra.,
Page A 4-22. The Judgment of the United
States District Court is printed in
Appendix "A" hereto, infra, Page A 23-25.
The Memorandum of the United States Court
of Appeals for the Ninth Circuit is
=2—
unreported and is printed in Appendix "A"
hereto, infra, Page A 1-3.
JURISDICTION
The Judgment of the United
States District Court and the decision of
the United States Circuit Court for the
Ninth Circuit was entered on September 3,
1985 and September 15, 1986 respectively.
This Petition for Writ of Certiorari was
filed within ninety days of that date.
This Court's jurisdiction is invoked
under 28 U.S.C., Section 1254.
QUESTIONS PRESENTED
1. Was disparate impact an
issue at trial?
2. Does it constitute
reversible error for the lower courts to
determine disparate impact was not an
issue at trial, when it was established
=3-
by the evidence?
3. Did the District Court
render a decision that was contrary to
the evidence?
4. Did the Court of Appeals
err in affirming the decision of the
District Court when there was a decision
contrary to the evidence?
5. Did the District Court
commit reversible error in admitting into
evidence subsequent employment records,
reports, memoranda and other negative
documents of employee beyond the scope of
Smallwood vs United Airlines, Inc.?
6. Did the Court of Appeals
err in affirming the decision of the
District Court when trial court admitted
into evidence subsequent employment
records, reports, memoranda and other
negative documents of employee beyond the
scope of Smallwood vs United Airlines,
-4-
inc.?
7. Did the District Court
commit reversible error in excluding from
evidence investigative reports of the
EEOC and FEHP including progress reports.
8. Did the Court of Appeals err
in affirming the decision of the District
Court in excluding from evidence
investigative reports of EEOC and FEHP
including progress reports?
STATUTE INVOLVED
42 U.S.C. Section 2000e
Federal Rules of Evidence, Rule 803(8)
Al OF
Petitioner GIDEON filed an
employment discrimination action against
Respondent RIVERSIDE COMMUNITY COLLEGE
DISTRICT alleging that said school
district failed or refused to hire and/or
=-5—<
discharged her or otherwise discriminated
against her with respect to her
compensation, terms, conditions, or
privileges of employment because of her
national origin in violation of 42 U.S.C.
Section 2000e-2(a) (1). She also alleges
in her complaint that after she filed
charges of discrimination against
RIVERSIDE COMMUNITY COLLEGE DISTRICT with
governmental agencies, the school
district retaliated against her by
failing to reemploy or hire her for the
position which she had applied for and
was qualified for in violation of 42
U.S.C. Section 2000e-3. On November 2,
1984, orders were issued for Court trial
to commence on March 5, 1985. On
February 12, 1985, Petitioner submitted
both Findings of Fact and Conclusions of
Law an filed a Notice of Motion and
Motion in Limine: Motion to Exclude
~6-
Evidence and set the matter to be heard
on March 5, 1985. Opposition was filed
to said Motion in Limine. The Motion was
heard on March 5, 1985, and the trial
judge ruled that such Motion would be
addressed upon the conclusion of
Petitioner's Case-in-Chief. The first
witness was sworn and testimony commenced
on March 5, 1985. Trial was also
conducted on March 6, 7, 8, 13 and 14,
1985. At the conclusion of GIDEON's
Case-in-Chief, Respondent made a Motion
to Dismiss the case on the basis that
GIDEON had failed to establish a prima
face case of sex discrimination and
retaliation The district court denied
the Motion to Dismiss and stated that
GIDEON had met her burden of establishing
a prima face case. GIDEON's Motion in
Limine to Exclude Evidence was heard on
March 13, 1985 and the Court denied said
~ Pe
Motion in Limine and permitted into
evidence subsequent employment records,
reports, memoranda and other negative
documents of employee GIDEON. On
September 3, 1985, Judge Stotler signed
Findings of Fact and Conclusions of Law
finding no basis for discrimination or
retaliation on the part of RIVERSIDE
COMMUNTTY COLLEGE DISTRICT toward GIDEON.
A final judgment was entered September
26, 1985. On October 16, 1985, GIDEON
filed a Notice of Appeal.
STATEMENT OF FACTS
GIDEON applied for the 1977
full-time nursing instructor position and
was screened as to the minimum
qualifications set forth in the job
announcement. MS. GIDEON fulfilled all
minimum qualifications and was given an
oral interview before four individuals of
-8-
the selection committee. She was not one
of the three successful applicants sent
to the President of the College for an
interview. She possessed quantitatively
more practical nursing and teaching
experience than other applicants.
In the Findings of Facts and
Conclusions of Law, the District Court
found and concluded that disparate impact
was not an issue at trial and was raised
for the first time in GIDEON's written
summation. This conclusion of law is
inconsistent with the Findings of Fact
referred to in that same document.
Reference was made at Findings of Fact
Mose. AG, ad, &2, 43, BO, Bey 28. Bee aes
19, 20, and 21 that evidence was received
by the Court establishing the protocol
for screening and selective applicants
for full-time permanent teaching
positions with the District. The
=-9-
protocol was established by RIVERSIDE
COMMUNITY COLLEGE DISTRICT for a
particular purpose and that purpose was
to refute disparate impact theory of
discrimination. During the course of the
trial, reference was made to this
disparate impact theory when testimony
established that there was absence of an
objective criteria for ranking, rating,
and determining the appropriate responses
to questions asked during the interview
process, thereby rendering the entire
selection process subject to the
arbitrary and subjective discretion of
the selection committee members allowing
them to incorporate racial attitudes and
bias into the process. During open
statement of GIDEON, specific mention was
made to the absence of objective criteria
and guidelines at Riverside Community
College in selective candidates for
-10-
full-time teaching positions. Such
opening statement by GIDEON's counsel set
the stage for a disparate impact showing.
Evidence was produced by GIDEON at trial
upon direct and cross-examination of
witnesses that the absence of written or
oral guidelines and criteria in which to
rank, rate or grade applicants and their
responses leaves too much discretion to
selection committee members. Without
guidelines, performance at the oral
interview could be solely predicated on
applicant's speaking skills and
communication. A person of foreign
extraction would, as a general rule, not
have the same comparable speaking skills
as a United States citizen/applicant. |
The actual decision as to the correctness
of each applicant's response during the
selection process was within the
discretion of each particular committee
-ll-
member. There was no written policy that
the committee members must discuss prior
to the interview the correct responses to
each question asked during the interview.
There was no requirement that committee
members during or after the oral
interview must review the application
file and resume of the applicant or go
through that applicant's qualifications
before determining the best qualified
candidate. There is no written
requirement that selection committee
members review the application during the
interview. The affirmative action plan
that is in place with RIVERSIDE COMMUNITY
COLLEGE DISTRICT does not require the
interview team to utilize the application
packet during the interview process.
The selection committee is not required
to write out the verbal response of each
applicant to the series of questions
=-12<
asked during the interview process. The
committee member is only required to
submit the rating of the applicant during
the oral interview process. Testimony of
the former Superintendent of Riverside
City College shows that the affirmative
action plan in effect with RIVERSIDE
COMMUNITY SCHOOL DISTRICT did not set
down prescribed written or oral standards
or criteria for determining the
appropriateness or correctness of the
response given during the oral interview
process. Although the affirmative action
plan did not set down precise criteria
for determining who is the best qualified
candidate to be interviewed by the
President, sometimes the Dean of Academic
Services occasionally and verbally issued
instructions to committee members as to
who would be regarded as the best
qualified candidate. The interpretation
-13-
of the appropriateness of each response
and whether such response warranted a
superior, average or unsatisfactory
ranking, was solely within the discretion
of each committee member. There was no
written criteria for determining the
appropriateness or correctness of said
response. There never was any verbal
instructions given as to determining the
appropriateness of the response. There
were no verbal or written instructions
given that should a committee member feel
certain prejudice towards an applicant,
that he or she should disqualify
himself/herself from the committee. The
applicant could not employ any specific
process to challenge the constitution of
the committee if he felt that certain
committee members were prejudice toward
applicant or to take steps to have them
disqualified. Cross-examination also
«14
revealed the absence of an oral or
written charge requiring committee
members to review the qualifications and
application of each individual applicant.
There is no specific charge or
instruction given that committee members
must review the application at the Stage
4 process, the interview process.
Cross-examination of RIVERSIDE COMMUNITY
COLLEGE DISTRICT's witness, Howard B.
Larsen, supports the view that GIDEON did
not have a problem communicating, but
more of an enunciation problem associated
to her East Indian accent. Mr. Larsen
went on to testify that the speaking
ability of the applicant is a variable to
be considered in the interview process.
There are no instructions to selection
committee members that they are not to
hold the accent of any applicant against
him/her when applicant is before the
«of $=
interview committee. There was ample
evidence produced at time of trial to
support the disparate impact theory of
discrimination. Disparate impact arises
from a selection and screening process
that is devoid of objective criteria,
prescribed standards, and systematic
determination of the appropriateness and
correctness of responses given to
questions during the oral interview
process and of the overall ranking,
rating, and grading of applicant during
the selection process. Without an
affirmative action charge or instruction
given or guidelines to be followed, the
committee members were permitted
unconstrained license to transform the
oral interview into a speech tournament.
The issue of the speaking ability of the
applicant during the oral interview
process raises the disparate impact
«36-
issue.
The issue of disparate
treatment was fully developed at the time
of trial with evidence showing that
GIDEON was discriminated against because
of her national origin. Two of the
committee members sitting on the
selection committee during the oral
interview for the 1977 full-time
permanent nursing instructor position
exhibited prejudice and bias towards
GIDEON. One of the committee members by
the name of Ms. Rojakovick had on prior
occasions made certain derogatory and
discriminatory remarks concerning Ms.
GIDEON. Her remarks were made about Ms.
GIDEON's attire, namely, the wearing of
her sari on campus. Such dress is a
customary dress worn by East Indians.
Ms. Rojakovick had commented that the
sari GIDEON wore was ridiculous. Ms...
nt Fo
Rojakovick showed prejudice by writing a
letter of recommendation for another
applicant for the 1977 nursing instructor
position -- the same position GIDEON had
applied for -- yet failed to write a
recommendation for GIDEON after GIDEON
had requested her to write a
recommendation for her to that position.
Ms. Rojakovick did not write said letter
of recommendation for GIDEON. Testimony
developed showing Ms. Rojakovick was a
co-instructor with GIDEON at Riverside
City College and that she was the
coordinator of the nursing department.
She had a duty to keep GIDEON informed of
the grading policy. Because of
Rojakovick's failure to keep GIDEON
informed of that policy, a grading policy
dispute arose. Rojakovick employed a
systematic exclusion of GIDEON from the
other nursing instructors. Rojakovick
-18-
ET ee eT Te eT
showed prejudice to dark-complexioned
people. A student went to the Director
of Nursing and had complained that Ms.
Rojakovick was prejudiced against her
because of her race -- Black. Evidence
was adduced at time of trial that Ms.
Rojakovick would sit in the rear of Ms.
GIDEON's class secreted behind folding
doors, and take notes on the lecture
given by GIDEON, and then when her class
followed GIDEON's, she would go through
and correct GIDEON's lecture. Ms.
Rojakovick also treated Black students
differently from her other students.
She gave specific seating designation to
Black students, whereas Caucasion
students did not receive specific seating
assignments. She assigned Blacks
particular seats in her classroom. Black
students received failing grades from Ms.
Rojakovick whereas Caucasion students
-19-
received higher grades. There was
another selection committee member that
had exhibited pre-oral interview
prejudice toward GIDEON. Thelma Carey
stated directly to GIDEON that she does
not like Indians because they look alike
they do everything alike. Such
statement by Carey is direct evidence of
discrimination. It was stipulated by thi
parties that the three applicants
selected to be interviewed by the
President in 1977 were caucasion. It wa
further stipulated that GIDEON was not
selected for an oral interview with the
President. It is undisputed that the
selection committee for the 1977 full
time permanent nursing instruction
position consisted of James Duncan,
Dorothy Steck, Phyllis Rojakovick and
Thelma Carey. It is further undisputed
that the individuals selected for the
-20-
oral interview for the nursing instructor
position in 1977 were SHEELA GIDEON,
Helen Strutz, Ruth Sanders, Patricia Hora
and Thera Sass. Of the three individuals
selected, GIDEON was the best qualified
for the permanent full-time teaching
position in 1977. Testimony shows that
Ms. GIDEON had taught nursing from
1959-1968 on a regular basis. She taught
at Osmania University School of Nursing
from 1968-1973. She came to the United
States in 1972 and enrolled in a graduate
program at Loma Linda University Medical
School and became employed at Loma Linda
University Medical center as a registered
nurse. She further taught at Chaffey
College from 1975-1976 and started
teaching at Riverside City College in
approximately 1975. She worked at
Miloufer Hospital, India, from 1956 to
1968. The total teaching experience of
-21-
GIDEON amounted to, prior to 1977, 15
years and approximately 20 years of
practical nursing experience. GIDEON
possessed a B.S. degree in Nursing,
Medical/Surgical and a teaching minor and
a M.S. degree in Nursing. The
applications and resumes of the three
individuals selected to be interviewed by
the President, Thera Sass, Patricia Hora,
and Ruth Sanders, did not have practical
nursing experience or teaching experience
that would even closely equal GIDEON'S.
Upon the conclusion of Plaintiff's
Case-in-Chief, the Court found that
GIDEON had met her burden of establishince
a prima facie case and denied a Motion tc
Dismiss under Federal Rules and Civil
Procedures Section 4l1b. The finding by
the Court that GIDEON had established a
prima face case was not specifically
directed to a disparate treatment theory
w 2 Fas
of discrimination. Absent such a
statement by the Court there is a body of
evidence presented that support recovery
under both the disparate treatment and
disparate impact views.
Prior to trial, RIVERSIDE
COMMUNITY COLLEGE DISTRICT sought to
introduce Exhibits 237-271 dealing with
prior and subsequent employment history
of GIDEON. GIDEON filed a Motion in
Limine to exclude such evidence. (See
Motion in Limine/Motion to Exclude
Evidence). Such matter was noticed to be
heard on March 5, 1985, but was heard by
the Court on March 13, 1985, and such
motion was denied. Supplemental
memoranda was submitted by both parties
on this motion. The District Court Judge
cited the Smallwood vs. United Airlines
case as to permitting such inquiry and
allowed into evidence, over objection,
-23-
the prior and subsequent employment
histories of GIDEON. Such Exhibits wer
introduced and admitted into evidence an
involved, among other things,
disciplinary, personnel matters, packets
of employment records with previous and
subsequent employers and negative aspect
arising form that relationship.
The District Court excluded
from evidence the Fair Employment Housin
Commission's progress report that had
been identified as GIDEON's Exhibit 129
for identification. The District Court
denied the admission of the progress
notes of the Fair Employment Housing
Commission and such exclusion from
evidence has defeated Plaintiff's attemp
at showing facts surrounding the
investigation that was conducted by the
FEHC, the statistics utilized in
determining the strength of GIDEON's
=u
case, statements and other documents
supporting the discrimination and
retaliation. Based on the foregoing
statement of facts, GIDEON set forths the
reasons for granting this Writ:
REASONS FOR GRANTING THE WRIT
AMOUNTING TO PREJUDICIAL ERROR IN
CON ING DISP A WAS N
It was expressed throughout the
trial that the candidate selection
process in effect at Riverside Community
College District was without precise
standards and guidelines as to ranking,
grading and rating individual applicants
for full-time permanent nursing
instructor positions at Riverside City
-25-
College. Selection committee members
were not given any charge or instruction
as to the correctness of individual
applicants' responses during the oral
interview or what criteria were to be
employed by each committee member to
determine the ranking or rating of each
applicant with others. Testimony was
received by RIVERSIDE COMMUNITY COLLEGE
DISTRICT's witness that the speaking
ability of the applicant is an important
variable at the oral interview.
Testimony was also received that MS.
GIDEON did not have a communication
problem, but one more in line with an
enunciation difference associated to her
accent. In the absence of precise
standards and guidelines to determine the
correctness of the response given by each
applicant, and in the absence of criteria
and guidelines to determine how to rank,
~26=
rate and grade the individual responses,
the speaking ability of the applicant
became the primary issue at the oral
interview. Evidence was also received at
trial that selection committee members
were not charged or instructed to review
the application and resume of the
applicant prior to, at the time of the
oral interview, or up to the time a
decision which three applicants were to
be sent to the President of the college
for a second oral interview. GIDEON has
made a prima facie showing of
discrimination based on a disparate
impact theory of recovery. This
disparate impact showing is partially
reflected in the Findings of Facts made
by the trial judge. Findings of Fact
Numbers 10 through 20 articulate the
steps involved in the hiring process.
Finding Number 12, subparagraph (b)
a2Fa
states that a select number of
candidates, as a result of the initial
screening are interviewed by the same
screening committee. The screening
committee selects three candidates to be
interviewed by the Superintendent.
Finding Number 18 states each committee
member fills out his or her evaluation of
the candidate's answer to each particular
question during the interview. Finding
Number 19 states that after all the
interviews are completed, the committee
members will discuss who they will choose
for the Superintendent to interview.
They are to reach a consensus on the two
or three candidates to be interviewed by
the Superintendent based upon their
individual interview evaluations and
collective decision. What those findings
have left out are serious questions
regarding the evaluation process. There
-28-
was a substantial body of evidence
received at trial that there were no
guidelines to determine the
appropriateness and correctness of each
response or the ranking, rating or
grading of those responses. The Findings
of Fact are deficient in this regard and
essentially ignore the important issues
of disparate impact that were raised.
The four elements of the McDonnell
Douglas vs. Green, 411 U.S. 792, are not
necessary for GIDEON to prove ona
disparate impact case. That four-prong
test applies simply to disparate
treatment cases. It has been held that
the McDonnell Douglas test is irrelevant
in a disparate impact case. The
McDonnell Douglas court itself
emphasized, "the facts necessarily will
vary in Title VII cases, and the
specification above of the prima facie
=-29—
proof required from Plaintiff is not
necessarily applicable in every respect
differing factual situations." 411 U.S.
at 802. The burden of production of
evidence is also different in a disparate
impact case. The trial judge in
Conclusion of Law Number 2 recites the
prima facie showing of discrimination of
the McDonnell Douglas test as referenced
in Texas Department of Community Affairs
vs. Burdine, 450 U.S. 248 (1981). The
trial judge then recites that upon the
meeting of a prima facie showing of
discrimination, the inference of
discrimination can be rebutted by some
legitimate, nondiscriminatory reason for
the employer's conduct. Once a
legitimate reason is offered to rebut the
inference, then the employee must prove
that it is pretextual. That conclusion
of law as it pertains to the shifting of
-30-
<=“ lll
&
the burden of production does not apply
to disparate impact cases. The Fifth
Circuit recently held that the Burdine
standard for allocation of the burden of
proof in Title VII cases does not apply
to disparate impact cases. Johnson vs.
ncle Ben's e., 657 F.2d 750 (Fifth
Circuit, 1971). In that case, the Court
held that the Plaintiff does not have the
burden to prove that the employer did not
have a legitimate business reason for the
challenge to discriminatory practices.
It has been held in disparate impact
cases that the employer must provide
evidence charging that the challenge test
or requirement bear a manifest relation
Oo the employment in question. Dothard
vs. Rawlinson, 433 U.S. 321 (1977). The
burden of production in disparate impact
cases requires the employer to show a
business necessity to rebut the inference
=31-
of discrimination. The business
necessity defense has been generally
"narrowly construed and confined to those
unusual instances where segregative
policy is absolutely essential to the
achievement of a legitimate business
need." Chrapliwy vs. Uniroyal, Inc..
458 F.supp 252 (1977). See Nashville Gas
Company vs. Satty, 434 U.S. 136 (1977),
(Defendant failed to prove that policy of
denying cumulated seniority to female
employees returning from pregnancy leave
was justified by the business necessity) ;
Jackson vs. Seaboard Coastline Railroad,
678 F.2d 992 (Eleventh Circuit 1982)
(test requires overriding legitimate
business purpose); United States vs. City
of Chicago, 549 F.2d 415 (Seventh
Circuit), cert denied, 434 U.S. 875
(1977). The burden of production is on
the Defendant to establish such business
=-32-
Bo.
necessity defense. Turner vs. Texas
nstrument ne, 335 F.24 i251, 1254-55
(Fifth Circuit 1977(; Firefighters
Institute for Racial Equality vs. The
City of St. Louis, 549 F.2d 506 (Eighth
Circuit), cert denied, 434 U.S. 819
(1977); E-E.9O.C. vs. E.f. Dupont du
Nemours Company, 445 F. supp. 223 (D.
Del. 1978).
The disparate impact theory was
raised at the time of trial and was
referenced and inferred to in the
Findings of Facts and Conclusions of Law
and it amounted to reversible error for
the Court to state at Conclusion of Law
Number 15 that disparate impact was not
an issue at trial. It has been held that
errors of law, which will result in
reversal, exist, if the fact findings or
conclusions are manifestly or clearly
wrong of erroneous, contrary to the
-33-
evidence, obviously or clearly against
the weight of the evidence, without
support in the evidence, as where it is
manifest that the findings are so plainly
unjustified, by the evidence when the
interests of justice necessitates their
nullification. Garfield vs. People's
Finance and Thrift Company of Riverside
24 CA2d 144, 74 P2d 1061; Casper vs. City
of Los Angeles, 295 P2d 452, 140 C.A.2d
433, Vice vs. Thacker, 180 P2d 4, 30
C.2d 84. Snokelberg vs. Crecelius, 280
P.2d 109, 131 CA2d 136. An error at law
requiring reversal may exist where the
findings or conclusions are due to, or
colored by, an error or in misconception
of law, or a capricious disbelief in the
disposition of the case or an abuse of
discretion, on the part of the trial
judge. Furthermore, the judgment should
be reversed when the facts found by the
-34-
court, supplemented by those he should
have found, will support a judgment for
the Petitioner. Lufkin vs. Patten-Blinn
Lumber Company, 59 P2d 414, 15 CA2d 259.
By the case law, the Petitioner Court
will always review to determine whether
findings made support the judgment
rendered, or the ultimate conclusion
drawn. Hudson vs. Becker, 56 P.2d 249,
12 C.A.2d 743. Conclusions or ultimate
findings are subject to review and
correctness where they have been reached
by way of deduction and inference from
probative or subordinate facts, or where
the findings are deduced or inferred from
facts found by the Court and will be set
aside if the inference or conclusion was
erroneous or entirely unwarranted. Wells
vs. Comstock, 295 P.2d 961, 4 C3d 528.
Ruddleson vs. Paules, 264 P 1096, 203 C.
453. Laine vs. Weddell, 173 P.2d 567, 76
-35-
CA2d 613. This reversible error was
committed when the trial judge concluded
that disparate impact was not an issue at
trial when the Findings of Fact support
directly and by way of inference a
disparate impact theory.
2. NINTH CIRCUIT COURT OF APPEALS ERRED
IN AFFIRMING THE DISTRICT COURT DECISION
FINDING AND CONCLUDING THAT DISPARATE
IMPACT WAS NOT AN ISSUE AT TRIAL.
The Ninth Circuit Court of
Appeals erred in concluding that Gideon
failed to establish that Riverside's
hiring practices had a substantial
adverse impact on a group protected) by
Title VII. The Court did not wrestle
with the primary issue: Was disparate
impact an issue at trial? The issue was
not to what degree did it impact upon a
protected group. The District Court
-36-
simply concluded that disparate impact
was not an issue at trial without further
reason given. It was established at
trial that the oral interview before the
selection committee was tantamount to a
speech contest when selection committee
members were not given any instructions
or guidelines as to what they were
suppose to do during the interview or
what or how they were suppose to grade
applicants. It was also established at
trial that foreign born applicants with
English as a second language could and
would not perform as well as their
American English-speaking counterparts.
Thus, disparate impact was an issue at
trial and it was error for the Ninth
Circuit to affirm the District Court and
state that even if disparate impact was
properly raised a trial, it would have
been harmless error. The Ninth Circuit
-37-
was wrong. If disparate impact was
established at trial, it would have been
reversible error for the District Court
to determine it was not an issue.
Je TRIAL COURT ABUSED ITS DISCRETION IN
RENDERING A DECISION CONTRARY TO THE
EVIDENCE. |
The trial judge attached little
or no weight to the evidence that Ms.
Rojakovick had exhibited discrimination
toward Black students in her class by the
setting up of specific assigned seating
for Blacks and no assigned seating for
Caucasian students. Evidence as to
discrimination of another selection
committee member, who states she did not
like Indians, had little or no affect
upon the decision of the trial judge.
Such evidence raises a strong evidence of
-38-
disparate treatment. Case law supports
the principle that the McDonnell Douglas
test does not apply to direct evidence of
discrimination. ans World A ines vs.
Thurston (1985) 105 S.ct. 613. e ters
vs. United States 431 U.S. 324, 358
(1977). The shifting burdens of proof
set forth in McDonnell Douglas are
designed to assure that Plaintiff has his
day in court despite the unavailability
of direct evidence. Leob vs. Textron 600
F.2d 1003, 1014 (1979). In the TWA case,
the court stated that "there is direct
evidence that the method of transfer
available to a disqualified captain
depends upon his age. Since it allows
captains who become disqualified for any
reason other than age to bump less senior
flight engineers, TWA's transfer policy
is discriminatory on its face. Los
Angeles Dept. of Water and Power vs.
-39-
Manhart 435 U.S. 702, 98 S.Ct. 1370
(1978), (employer's policy requiring
female employees to make larger
contributions to pension fund than male
employees is discriminatory on its
face)." Two of the four selection
committee members had exhibited prejudice
toward GIDEON in the past. They were
allowed to sit on the selection committee
although there is evidence to show that
there is an absence of policy or
procedure requiring committee members to
disqualify themselves if they felt
certain prejudices or bias toward any
individual applicant. An interview
selection committee should be free or
purged of any implied bias toward an
applicant. There should be standards in
place that would promote impartiality
relative to race and national origin
discrimination that would be tantamount
-40-
to the selection of impartial jury in
removing all possible prejudice from the
process. Absent sufficient guidelines
for disqualification or ferreting out
implied bias, a disparate impact case has
merit. It is undisputed by the testimony
that there are no steps employed in the
disqualification or committee members if
they felt bias or had exhibited prejudice
toward applicants. The affirmative
action plan in effect at RIVERSIDE
COMMUNITY COLLEGE DISTRICT is of little
use if the selection committee members
have complete arbitrary discretion in
determining what applicant is qualified
and what applicant is not. If racial and
prejudicial influences have not been
completely eliminated from the firing
process, what good is the affirmative
action program. There was evidence to
show that Thelma Carey and Phyllis
@4]l-
Rojakovick had prior to the oral
interview manifested racial and national
origin bias toward GIDEON. In spite of
that, both committee members sat in
judgment of MS. GIDEON, not disqualifying
themselves because of bias toward GIDEON,
but instead chose not to send MS. GIDEON
on to interview with the President or
Superintendent. The trial judge did not
render any Findings of Fact or
Conclusions of Law as to the absence of
disqualification procedures in purging
the hiring process or racial and national
origin discrimination. RIVERSIDE
COMMUNITY COLLEGE DISTRICT did not
establish a legitimate business reason or
business necessity for not setting down
precise written guidelines for
disqualification of committee members
exhibiting bias, or for purging the
selection process of selection committee
-42-
members biased in areas of race and
national origin discrimination.
Compounded on top of this, RIVERSIDE
COMMUNITY COLLEGE DISTRICT has failed to
show a legitimate business reason or
business necessity for the absence of
specific precise standards, guidelines,
and objective criteria for determining
the correctness of responses given by
applicants to questions posited by the
committee and for the rating, ranking,
and grading of those responses. Based on
the foregoing facts and rationale, the
unrefuted evidence at trial tends to
support disparate treatment and disparate
impact discrimination based on national
origin. Without sufficient refutation,
the decision of the trial judge is not
supported by the evidence. The trial
judge has abused her discretion in so
deciding contrary to the evidence. It
-43-
has been held that in reviewing
sufficiency of findings to support
judgment, the reviewing court will regard
ultimate facts found and may disregard
findings as to evidentiary facts. In re
Moore's Estate, 300 P2d 110, 143, CA2d
64, Miller vs. Pacific Pipeline
Construction Co., 291 P2d 534, 138 CA2d
187.
Ninth Ciruit ruled that this
ground for appeal did not warrant
reversal, but offered no underpinnings to
support it ruling. Therefore, Petitioner
incorporates Reason No. 3 above hereat.
5. ZRIAL JUDGE ABUSED HER DISCRETION
AMOUNTING TO REVERSIBLE ERROR IN
-44-
The trial judge relied upon
wood vs. ite i S eo...
(1984) 728 F2d 614, in admitting into
evidence prior and subsequent employment
history records, reports, memoranda, and
other negative data of GIDEON. The court
stated that the evidence of the prior and
subsequent employment history of GIDEON
does not go to the
discrimination/liability portion of the
case but rather to the remedial phase.
(Reporter's Transcript, 3-13-85, Page 54,
Lines 15-16) At Findings Numbers 61, 62,
63, 64, and 65 show the court's reliance
on said prior and subsequent employment
history of GIDEON. The Findings of Fact
-45-
do not specifically mention evidence in
issue was admitted for evidentiary
purposes of discrimination or for the
remedial phase. To the contrary, it can
be viewed by the sequence of said
findings that the court placed emphasis
upon that evidence in finding no
discrimination or retaliation on either a
disparate treatment or a disparate impact
theory of discrimination. Such evidence
is highly prejudicial to GIDEON in that
it paints a negative profile of GIDEON to
her detriment. It is a difficult case to
establish discrimination by an employer,
and to that burden the employee should
not have to refute evidence of prior and
subsequent employment history, which is
entirely irrelevant to the issues at
large. The court in Smallwood vs. United
Airlines, Inc. permitted the introduction
into evidence of the prior employment
~46<
histories of employee. The rationale for
such introduction into evidence is rooted
in the Mount Healthy City Board of
Education vs. Doyle (1977), 429 U.S. 274.
at 285-287 which was later specifically
applied in the employment discrimination
context in the companion cases of
Teamsters vs. U.S., (1977), 431 U.S. 324,
326 and East Texas Motor Freight vs.
Rodriquez, 431 U.S. 395, 403-404, (1977),
that the company is entitled to prove at
trial that the employee had not been
discriminated against when there were
other factors to show that he was not
qualified or would not have been hired in
any event. The court in Smallwood
differentiates between the discrimination
or liability portion of the case from the
remedial or relief state of the case.
Rationale for the Mt. Healthy rule is
that the right to back pay does not exist
of Fu
if the employee would not have been hired
absent discrimination because such right
is authorized not as a punishment for the
employer or as a windfall for the
employee but only to put the employee in
the same position but in no better
position than he would have been had
there been no discrimination. The court
in Smallwood permitted such evidence to
show that upon the complete processing of
Petitioner's application, including all
inquiries, such negative prior employment
history would have been discovered in the
normal process of candidate selection and
investigation and that employee would not
have been hired based on those facts
later discovered. The court in Smallwood
at Page 626 specifically states: "The
question is whether the Plaintiff
(employee) would not have been hired had
the Defendant (employer) followed its
-48-
fer ch Es ca RS
normal procedure and processed the
Plaintiff's application as it did all
others. Such processing would have
included inquiries of the Plaintiff's
former airline employer as listed on his
application form. That inquiry would
have elicited the full evidence of the
circumstances of Plaintiff's discharge by
ONA. The information received from ONA
(prior employer) would have meant that
Plaintiff would never had been hired by
the Defendant as a flight officer".
Even, assuming arguendo, that the
employer would not have hired GIDEON
because of her prior employment history,
there was no evidence at trial to show
that there would have been any
post-interview inquiries of the
references contained on the application
submitted by GIDEON. Smallwood is
distinguishable from this case, in that
-49—
it was never proven by RIVERSIDE
COMMUNITY COLLEGE DISTRICT that there was
a usual and customary processing of the
application after the final interview
with the President or Superintendent of
the college. Moreover, GIDEON presented
sufficient evidence to rebut some of that
prior negative employment history. As it
pertains to the subsequent employment
history, the Smallwood case does not
stand for the proposition that the
employer can delve into subsequent
employment histories during the course of
the pending case to establish negative
aspects to justify why it would not have
hired the employee under those
circumstances. Respondent was permitted
to introduce into evidence the employment
histories from 1977 to 1981. The
introduction into evidence of the
subsequent employment history of GIDEON
-50-
interferes with the primary burden of
GIDEON's case of discrimination and
retaliation. The Murnane vs. American
Airlines, Inc. case (1979), 482 F.supp.
135, 148, dealt with incidences occurring
months after the employer had refused to
process employee's application because of
age. But Murnane does not apply to
subsequent employment history that occurs
years after the alleged discriminatory
act. Murnane specifically deals with
that time frame for the processing of the
entire application. Murnane and
Smallwood stand for the proposition that
although discrimination may have occurred
prior to the normal completion of the
application process, if other evidence
develops during the processing that would
have disqualified or would provide the
basis for not hiring an employee, that
evidence is admissible. The trial court
+e
has misinterpreted Smallwood in
permitting both the prior and subsequent
employment history to be introduced into
evidence because of the remedial phase of
this case. Policy of Mt. Healthy and
Smallwood is to permit evidence relative
to the back pay issue, not to carve out a
new exception to the rules of relevancy
and specific instances of misconduct. It
is a general rule that the finding of
violation of Title VII presumptively
entitles the victim of discrimination to
back pay and retroactive promotion or
reinstatement. Franks vs. Bowman
Transportation Company (Fifth Circuit
1974), 495 F.2d 398; em e e
Company vs. Moody (1975), 422 U.S. 405.
In accordance with the above presumption
of entitlement to back pay and
retroactive promotion or reinstatement,
an individual who prevails at the
-52-
liability stage should be awarded back
pay and retroactive promotion or
reinstatement unless the employer can
prove by clear and convincing evidence
that the employee would not have been
hired, promoted, even if there had been
no discrimination. Day vs. Mathews (D.C.
Circuit 1976), 530 F.2d 1083. It has
been held that a judgment will be
reversed where the ruling of the court
granting or denying a motion to strike
evidence is prejudicial to the party
complaining. It is undisputed that
GIDEON filed a motion to exclude such
evidence at the outset of the trial, but
later the trial judge denied said motion
and permitted the introduction into
evidence of the subsequent employment
history of GIDEON. Such employment
history is emphatically prejudicial.
Such judgment or decision should be
; -53-
reversed. In Re Peters' Estate, 244 P.2d
88, 110 C.A.2d 723. Wysock vs. Borchers
Brothers, 232 P.2d 531, 104 C.A.2d 571.
Such error constitutes grounds for
reversal where it results in substantial
prejudice. Bennett vs. Spagele, 113 P.2d
207. Where, during the trial of the
cause, evidence that is not germane to
the issues involved creeps into the
record, it becomes the duty of the
Appellate Court to determine whether the
error is prejudicial to any of the
parties involved. It has been said to be
well settled that the admission of
incompetent evidence is a prejudicial
error. Farm Lance Association, 225 P
291, 65 C.A. 727. Similarly, prejudicial
error results from the admission of
incompetent evidence where the reviewing
court cannot determine what weight and
influence such evidence had on the trial
-54-
i sath ~ th SEIN, eS NA A a PAE I lc
tates tiv
court. Dolton vs. Green, 164 P.2d 795,
72 C.A.2a 427. Nishi vs. Inoguchi, 2
P.2d 864, 116 C.A. 398. Where it has
been held that in all events, the
judgment of the trial court hearing a
case without a jury will ordinarily be
reversed for the admission of proper
evidence only where it appears that the
court was influenced by the improper
introduction of evidence or that the
evidence admitted was essential to the
findings, that the evidence affected the
decision, that the decision was based on
whole or in part on such evidence, or
that the Petitioner was harmed by the
error, or where the Appellate Court
cannot determine whether or not the trial
court was influenced by the evidence
erroneously admitted. The trial judge
has abused her discretion amounting to a
reversible error in admitting evidence of
-55-
the subsequent and prior employment
history, records, reports, memoranda, and
other data concerning GIDEON without a
specific finding that such evidence was
only considered for the remedial portion
of the case, and by admitting such
evidence in excess of the scope permitted
in Smallwood vs. United Airlines, thereby
carving out new exceptions to the
relevancy and specific instances of
misconduct rules.
6. NINTH CIRCUIT COURT OF APPEALS ERRED
IN AFFIRMING THE DISTICT COURT DECISION
TO EVIDENCE OF OR
EMPLOYMENT RECORDS, REPORTS, MEMORANDUM
AND OTHER NEGA’ EVIDEN OF YEE.
Ninth Ciruit erred in affirming
the District Court's decision to permit
subsequent employment records into
evidence for a limited purpose. The
-56-
error arises when the Ninth Ciruit states
it is permissible for the District Court
to examine Gideon's employment history if
discrimination or retaliation is
established for purposes of determining
remedy, but then it states that
discrimination or retaliation was not
established so it did not have to
consider that evidence. Yet, the Ninth
Circuit goes on to state that it was not
persuaded that such evidence may have
been referred to in the Findings of Fact.
The Ninth Circuit has missed the point.
The District Court considered such
subsequent employment history when remedy
had never come into play. It was
reversible error for the District Court
to give any weight to subsequent
employment history that was admitted for
the limited purpose of remedy.
aS Ja
7. #TRIAL COURT ABUSED ITS DISCRETION
AMOUNTING TO IBLE R
EXCLUDING EVIDENCE OF THE INVESTIGATIVE
REPORTS OF THE EEOC AND FEHP INCLUDING
THE PROGRESS REPORTS .
Federal Rules of Evidence, Rule
803(8) specifically permits "records,
reports, statements, or data
compilations, in any form, of public
offices or agencies, setting forth (A)
the activities of the office or agency,
of (B) matters observed pursuant to duty
imposed By law as to which matters there
was a duty to report, excluding, however,
in criminal cases matters observed by
police officers and other law enforcement
personnel, or (C) in civil actions and
proceedings and against the government in
criminal cases, factual findings
resulting from an investigation made
pursuant to authority granted by law,
-58-
unless the sources of information or
other circumstances indicate lack of
trustworthiness." The court in Smith vs.
iv ervices s» €Pifth Cireuit
1972) 454 F.2d 154 specifically permitted
the EEOC report, consisting of a summary
of the charges, a brief review of the
facts developed in its investigation, and
its finding of probable cause that
violations exist, and held that such
documents are admitted as exceptions to
the hearsay rule and admissible under the
Federal Business Records Act. The court
there held the report involved was
prepared by an investigator for the EEOC,
pursuant to its statutory mandate, and
was not prepared in anticipation of
litigation. The Commission is not a
party to the litigation and can have no
interest therein. The investigator had
no personal involvement in the situation.
-59-
There is no reason to suspect any lack of
trustworthiness. It was held in
Dickerson vs. Metropolitan Dade County,
659 F.2d 574, 579, (Fifth Circuit 1981)
"that the district court was obligated to
admit into evidence the EEOC
investigative report and findings because
the probative value outweighed any
possible prejudice to the employer." In
Peters vs. Jefferson Chemical Company,
(Fifth Circuit 1975), 516 F.2d 447, the
court stated that the trial court's
reluctance to admit introduction into
evidence of the EEOC investigative files
is plainly apparent and that such
reluctance was unwarranted. In Garcia
vs. Gloor (1980), 618 F.2d 624, 272, the
court held there that the district judge
was indeed in error in refusing to admit
the investigative report and
determinations of the EEOC. The policy
-60-
surrounding the introduction and
admission into evidence of the EEOC
determination and report is that such
report is prepared by professional
investigators on behalf of an impartial
agency, having highly probative
evaluation of an individual's
discrimination complaint. A civil rights
Plaintiff has a difficult burden of proof
and should not be deprived of what may be
persuasive. Plummer vs. Western
> te mpa 9
(1981) 656 F.2d 502, 505. In Plummer vs.
W atio ot
Inc., the court cited Chandler vs.
Roudebush (1976), 425 U.S. 840, 863 in
which that court held that a Civil
Service Commission report was admissible
in a federal employee's Title VII case
stating that prior administrative
findings made with respect to an
aGéi<
employment discrimination claim, may, of
course, be admitted into evidence at a
federal sector trial de novo. It was an
abuse of discretion amounting to
prejudicial error for the trial judge not
to permit the EEOC progress reports.
8. NINTH CIRCUIT COURT OF APPEALS ERRED
IN AFFIRMING THE DISTRICT COURT DECISION
TO EXCLUDE EVIDENCE OF THE INVESTIGATIVE
REPORTS OF THE EEOC AND FEHP INCLUDING
THE PROGRESS REPORTS.
Ninth Circuit ruled that this
ground for appeal did not warrant
reversal, bu offered no underpinnings to
support this ruling. Therefore,
Petitioner incorporates Reason No. 3
above hereat.
CONCLUSION
Based on the foregoing errors
-62-
of law that have constituted reversible
error in the above-entitled case, the
court should remand these proceedings to
the lower court for a new trial on the
merits and award reasonable attorney's
fees in the presentation of this Writ,
along with costs of suit incurred herein.
DATED: December 9, 1986
Respectfully sybmitted,
By: GY
DALE M. FIOLA
Attorney for Petitioner GINEON
1678 West Broadway, Suite 214
Anaheim, California 92802
(714) 776-3840
-6§3-
BEST AVAILABLE COPY
APPENDIX
-64-
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
TOR THE NINTH CIRCUIT
SHEELA A. GIDEON, No.: 85-6384
eG No.:
Plaintiff-Appellant, CV 82-4903
vs.
RIVERSIDE COMMUNITY
COLLEGE DISTRICT,
]
]
]
J MEMORANDUM*
]
Defendant-Appellee. j]
]
Appeal from the
United States District Court
for the Central District of California
Alicemarie H. Stotler
District Judge, Presiding
Argued and Submitted August 6, 1986
Pasadena, California
Before: ANDERSON, PREGERSON and
REINHARDT, Circuit Judges
Sheela A. Gideon, a native of India,
appeals from the district court's holding
that Riverside Community College District
neither discriminated nor retaliated
against Gideon due to her national origin
A-1-
as prohibited by 42 U.S.C. Sections
2000e-2(a) (1) and 2000e-3. We affirn.
*This disposition is not intended for
publication and may not be cited to or by
the courts of this circuit except as
provided by 9th Cir. R. 21.
A-2-
Two issues raised by Gideon merit
specific discussion. First, Gideon
argues that the district court erred in
ruling that disparate impact was not
properly raised at trial. We disagree.
Moreover, at trial, Gideon failed to
establish that Riverside's hiring
practices had a substantial adverse
impact on a group protected by Title VII.
Because a showing of substantial adverse
impact on a protected group is necessary
to establish a case of disparate impact,
Low v. City of Monrovia, 755 F.2d 998,
1004 (9th Cir. 1985), amended 784 F.2d
1407 (9th Cir. 1985), even if the
district court erred in ruling that
disparate impact was not properly raised,
such error would have been harmless.
Second, Gideon argues that the
district court erred in admitting
evidence of Gideon's prior and subsequent
A-3-
employment history. Gideon's employment
history established that employers other
than Riverside disciplined Gideon for
insubordination and threatening a
co-worker, and terminated Gideon on
unfavorable terms. Gideon argued that
such evidence should not be admitted,
because it was not available to Riverside
when it made its hiring decision.
However, the district court admitted the
evidence for use only in connection with
the issue of the appropriate remedy and
not in connection with the question
whether a violation of the statute had
occurred. We have held that admitting
evidence for a limited purpose, as the
district court did here, is permissible.
Mantolete v. Bolger, 767 F.2d 1416, 1424
(9th Cir. 1985).
Riverside established that an
applicant's employment history would
A-4-
routinely have been requested at a second
interview. If Gideon had established
discrimination or retaliation concerning
her first interviews, then the court
would have considered Gideon's employment
history in evaluating whether Gideon
would in any event have been refused
employment for non-discriminatory
reasons. Such a finding would have been
relevant to the question of what remedy
is appropriate. However, because Gideon
established neither discrimination nor
retaliation in connection with her
rejection after the first interviews, the
district court was not required to
consider the evidence relating to
Gideon's work history or to make any
finding of the type we have described.
That the district court included in its
findings of fact the evidence relating to
Gideon's work history does not change our
A-5-
view. The conclusions of law make it
Clear that the court's holding is not
based on that evidence.
We have review all of the other
issues raised by Gideon and conclude that
none of them warrants reversal of the
district court's decision.
AFFIRMED.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SHEELA A. GIDEON, No. CV-82-4903
AHS
Plaintiff,
FINDINGS OF FACT
Vv.
AND CONCLUSIONS
RIVERSIDE COMMUNITY
COLLEGE DISTRICT, OF LAW
Defendant.
‘
This cause came on for trial on
March 5, 6, 7, 8, 13, and 14, 1985,
before the Honorable Alicemarie H.
Stotler, Judge of the United States
District Court. Dale M. Fiola appeared
for and on behalf of plaintiff Sheela A.
Gideon. Melanie M. Poturica of Liebert,
Cassidy & Frierson appeared for and on
behalf of defendant Riverside Community
College District. Oral and documentary
evidence was introduced on behalf of the
respective parties, the evidence was
A-7-
closed and the parties submitted closing
arguments by way of written briefs filed
with the Court. The matter was submitted
to the Court for its consideration and
decision, and, after duly considering the
above, the Court states its findings of
fact and conclusions of law:
FINDINGS OF FACT
1. Plaintiff Sheela Gideon is a
woman of Indian national origin and has
resided within the Central District of
California at all times material to this
action. She was employed by defendant,
Riverside Community College District,
from on or about 1975 through on or about
1977.
2. Defendant, Riverside Community
College District is a public community
college diukiion in the Central District
of California. Defendant is an employer
within the meaning of 42 USC Section
A-8-
2000e(b) in that it is engaged in an
industry affecting commerce and employs
more than fifteen (15) persons.
3. This Court has jurisdiction over
the subject matter of this action
pursuant to Title VII of the Civil Rights
Act of 1964, as amended, 42 USC Section
2000e, et seg. ("Title VII") and 28 USC
Section 1343, which vest the federal
district courts with jurisdiction over
actions alleging unlawful discrimination
in employment.
4. Venue is properly placed within
this judicial district both because
plaintiff's employment and applications
for employment with defendant were at all
times material to this action within the
Central District of California, and
because the defendant is and was at all
times material to this action present
within the Central District of
A-9-
California.
5. Plaintiff filed a charge of
discrimination with the California
Department of Fair Employment and
Housing. That charge was automatically
filed with the Equal Employment
Opportunity Commission in a timely manner
as provided by law. Plaintiff alleged
that defendant discriminated against her
on the basis of her national origin.
6. The Department of Justice issued
plaintiff a "right to sue" notice and
within ninety (90) days from the date of
receipt, plaintiff filed her original
complaint.
7. Plaintiff filed a charge of
retaliation with the California
Department fo Fair Employment and
Housing. That charge was automatically
filed with the Equal Employment
Opportunity Commission in a timely manner
A-10-
as provided by law.
8. The Department of Justice issued
plaintiff a "right to sue" notice on her
retaliation claim and within ninety (90)
days from the date of receipt, plaintiff
filed her first amended complaint.
9. Riverside Community College
District employs certificated personnel,
i.e., instructors, in several different
categories pursuant to the provisions of
the California Education Code.
Certificated employees may be full-time
or part-time employees. Full-time
instructors may be permanent,
probationary, temporary, hourly or
substitute employees. Likewise,
part-time instructors may be permanent,
probationary, temporary, hourly or
substitute employees. Whether a
certificated employee is permanent,
probationary, ene inal hourly or
A- -
substitute depends upon the length of
time that employee has worked for the
District, whether the employee was hired
on a temporary or full-time basis and
other factors which are provided for in
the California Education Code.
10. Riverside Community College
District utilizes a formal, structured
procedure in hiring full-time,
non-substitute employees. In 1975 the
district adopted an Affirmative Action
Policy which set forth this procedure.
The policy was revised in February 1977
and April 1980.
ll. The stated goal of the
Affirmative Action Policy is to promote
employment opportunity in recruiting,
hiring, training, evaluating and
promoting persons without regard to race,
color, religion, sex, age, relationship
to a present employee, handicap or
P-12-
national origin.
12. In summary, Defendant's hiring
process requires the following:
a. Applicants are initially
screened to determine which candidates
will be invited for an interview. The
Screening Committee consists of the Dean
of Academic Services, Division
Chairperson and a minimum of two or three
tenured members of the division, and at
least one female and one ethnic minority
member. The Screening Committee is also
referred to hereinafter as the Selection
Committee or the Interview Committee.
b. A select number of
candidates, as a result of the initial
screening are interviewed by the same
Screening Committee. The Screening
Committee selects three candidates to be
interviewed by the Superintendent.
c. The Superintendent
A-13-
interviews the three recommended
candidates, makes a choice, informs the
Dean of Academic Services of his choice,
extends an offer of employment to the
successful candidate contingent upon
Board approval and submits the
recommendation to the Board of Trustee.
13. A Selection Committee normally
observes the following guidelines: The
initial paper screening is done on an
individual basis by each committee
member. Each member is provided with a
copy of the job announcement which
includes the requirements for the
position. The member must determine
whether an individual applicant meets
those requirements. Each Committee
member then evaluates each applicant in
writing on a candidate screening forn.
14. Not all applicants who meet th
paper screening requirements are
A -14-
interviewed. Likewise, an applicant who
may be questionable as to a particular
requirement may be interviewed. The
Committee looks at the applicant's
qualifications as a whole in terms of
that individual's suitability for a
particular position.
15. The members of the Committee
who are from the particular instructional
division, in this case Nursing, submit '
questions which they believe would elicit
responses useful in evaluating an
interviewee's qualifications for the
position. The questions are typically
discussed and modified and the final
questions are typed on the interview
sheets.
16. Each Committee member has an
interview evaluation sheet with him or
her during the interviews. The
evaluation contains the questions to be
A-15-
_ Le
asked with a grading section after each
one and space for comments. The grading
section typically contains an area to
check superior, above average, average,
below average and unsatisfactory. At th
end of the interview sheet is a section
to grade personal characteristics,
education and employment.
17. Prior to the interviews, the
Committee Chair, usually the Dean of
Academic Services, assigns one or two
questions to each Selection Committee
members. That person asks the same
questions of each candidate. During the
interview each candidate is asked the
same questions and each candidate is
interviewed for the same amount of time.
18. Each Committee member fills ou
his or her evaluation of the candidate's
answer to each particular questions
during the interview. Following the
A-16-
at
candidate's interview, the Committee
member fills out the last page of the
interview evaluation. The Committee
members do not discuss their grading of
the candidates while they are in the
process of completing each candidate's
interview evaluation. The Committee
members do not look at each other's
evaluations while they are grading the
individual candidates.
19. After all of the interviews are
completed the Committee members discuss
who they will choose for the
Superintendent to interview. They reach
a consensus on the two or three
candidates to be interviewed by the
Superintendent based upon their
individual interview evaluations and a
collective decision.
20. The three candidates who are
sent to the Superintendent to be
A -17-
interviewed are not ranked in order of
preference by the Selection Committee.
The Superintendent chooses which
candidate should ultimately be hired
based upon his evaluation of the
candidate.
21. In contrast to the process
utilized in hiring full-time,
non-substitute instructors, no formal
structure is followed in hiring part-tim
or temporary employees. Prior to 1981,
the hiring of part-time or temporary
employees was done through the part-time
instructional division. Once a
department head or division head selectex
someone from the part-time position they
communicated that information to the
Personnel Office. The Personnel Office
listed the part-time people who were
selected by the particular instructional
division on the Personnel Report. The
A-18-
Personnel Report was submitted to the
Board of Trustees and subsequently
ratified. The Superintendent did not
have a role in hiring part-time or
temporary employees.
22. The fact that an individual
previously worked part-time or as a
temporary instructor for the District did
not guarantee that person a full-time
position when he or she apnlied. Usually
when the District opened a full-time
permanent position it received a number
of applicants from outside the District.
23. Plaintiff applied for a
4 community college instructor credential
on January 31, 1975. She received a
temporary teaching certificate that same
date. On June 30, 1975 the Board of
Governors of the California Community
Colleges provided plaintiff a lifetime
community college instructor credential
A-19-
cabanas
in the subject area of nursing issued
effective January 31, 1975.
24. Plaintiff was initially
employed by defendant as a daytime hourly
employee from February 3 through March
28, 1975 to teach a course entitled
Nursing 3B.
25. On August 4, 1976 the Board of
Trustees of the District appointed
plaintiff as a long term temporary
substitute for Marie Donaldson from
September 13, 1976 to continue until Ms.
Donaldson was permitted by her physician
to resume her duties. Ms. Donaldson did
not return during that year. Plaintiff
consequently served as a long term
temporary substitute for the entire
1976-1977 academic year.
26. During the Summer of 1977,
plaintiff taught in the Vocational
Nursing Program.
A-20-
27. In the Fall of 1977 plaintiff
was employed as a part-time casual
employee.
28. In the Summer of 1977, the
District announced the opening of a
Nursing Instructor position. The
academic qualifications were (1) Master's
degree in nursing; (2) valid California
Community College credential; (3) current
license as registered nurse in
California. The announcement also stated
"Previous teaching experience at the
community college level is desirable as
is some practical experience in hospital
work."
29. Plaintiff applied for the
position. At the time of application,
plaintiff possessed all of the necessary
qualifications announced in the job
description.
30. Several other individuals
A-21-
applied for the position. Plaintiff,
Helen Strutz, Ruth Sanders, Patricia Hora
and Thera Sass were selected by the
Selection Committee for an interview.
The Selection Committee was composed of
the Associate Dean of Academic Services,
James Duncan, the Interim Director of
Nursing, Dorothy Steck, and two Associate
Professors of Nursing, Phyllis
Rojackovick and Thelma Cary. Ms. Cary
and Ms. Rojackovick represented the two
tenured members of the division. In
addition, Ms. Cary, who is Black,
represented the ethnic minority members
of the college community.
31. Plaintiff and Helen Strutz were
not recommended to be interviewed by
Foster Davidoff, the Superintendent at
the time. The decision not to recommend
plaintiff and Ms. Strutz for an interview
by the College President was made by the
A -22-
a
Interview Committee as a whole and not by
an individual member.
32. Helen Strutz had taught
previously at Riverside Community College
District as a part-time instructor. She
had several letters of recommendation in
her application packet.
33. Plaintiff received several
below average ratings from all of the
Committee members. Each member of the
Committee rated her as weak in the area
of language. Each Committee member
commented in writing on the interview
evaluation that they had difficulty
understanding her.
34. The Selection Committee
determined that Patricia Hora, Ruth
Sanders and Thera Sass were the
candidates best qualified to be
interviewed by the Superintendent.
35. Ruth Sanders had previously
A-23-
taught at Riverside Community College
District as a part-time instructor. She
had several Letters of Recommendation in
her application packet.
36. Thera Sass did not appear for
her interview with the Superintendent.
Superintendent Davidoff interviewed Ruth
Sanders and Patricia Hora. He selected
Patricia Hora for the position.
37. Ms. Hora receive very high
ratings from the Selection Committee.
While Ms. Hora had no paid teaching
experience, she taught Bachelor of
Science students in Community Health
Nursing. She had also done some
volunteer teaching. Additionally, she
had a considerable amount of practical
nursing experience.
38. Ms. Hora applied for her
Community College Instructor Credential
on July 22, 1977 and was issued a
A-24-
a! EE oF
Temporary Teaching Certificate that same
date. The Board of Governors of the
California Community Colleges provided
Ms. Hora with her Life Community College
Instructor Credential on September 23,
1977, issued July 22, 1977.
39. Plaintiff filed her original
charge of discrimination with the
Department of Fair Employment and Housing
on October 13, 9177. This charge was
simultaneously filed with the Equal
Employment Opportunity Commission as
Charge No. 093-78-0217.
40. On July 3, 1978 plaintiff filed
a Petition for Writ of Mandate against
Riverside Community College District and
Foster Davidoff, President of the
Riverside Community College District in
the Superior Court of the State of
California of the County of Riverside.
She contended that the interview panel
A-25-
was not properly constitute and one of
the members discriminated against her.
She requested that the teaching position
for which Patricia Hora was accepted be
declared vacant and that new interviews
be conducted.
41. The District filed an Answer, a
Memorandum of Points and Authorities in
Opposition to the Petition and a
Declaration fo Foster Davidoff. On
August 2, 1978 the Court denied
Plaintiff's Petition for Writ of Mandate.
Judgment was entered on September 15,
1978.
42. On December 27, 1977 Mary
Fiorentino, Director of Nursing at
Riverside Community College District,
wrote a letter to Sheela Gideon informing
her that the Nursing Division would not
be requiring her services because it was
reducing the number of part-time
A-26-
instructors. In that letter, Ms.
Fiorentino explained that as a result of
accreditation visits the Nursing Division
was reducing the number of students that
1% traditionally accepted into the
Registered Nursing Program.
43. The Nursing Division eliminated
all evening college laboratory hours,
shortened the Licensed Vocational
clinical hours and combined classes.
Consequently, the Division needed fewer
instructors. The Director determined
that the Division should utilize the
full-time faculty to its fullest and
provide continuity and cohesiveness to
the instructional progran.
44. On January 5, 1978 plaintiff
met with Howard Larsen,, Dean of Academic
Services, and requested that he inform
the Director of Nursing of the successful
work and service she had provided to the
A-27-
College in past semesters as a part-time
hourly employee or as a substitute
employee. Dr. Larsen informed her that
there had been a reduction in force and
that a decision had been made to more
fully utilize full-time faculty in
clinical experiences. He also told her
that there would be a further reduction
in reliance on part-time faculty in the
Nursing Division because of proposed
changes in the curriculum. Nevertheless,
Dr. Larsen requested Ms. Fiorentino to
examine Ms. Gideon's competencies and
determine whether her skills would permit
her future employment if opportunities
arose.
45. The Nursing Division records
reflect that the number of part-time
nursing instructors was reduced from the
Fall Semester 1977 and the Spring
Semester 1978. The faculty listed as
A-28-
part-time staff in the Registered Nursing
Program according to the Board of
Registered Nursing Annual Report in
October 1977 were Marie Colucci, Sharon
Evans, Sheela Gideon, Maureen Kane, Ruth
Sanders and Doris Sewer. That same
Report listed only Marie Colucci and
Maureen Kane as part-time faculty in
March 1978.
46. The District announced three
full-time Nursing instructor positions in
July, 1978. Plaintiff applied for all
three positions.
47. The District decided not to
fill the full-time temporary position
that it had advertised. The District
determined that it would not replace the
temporary position. Instead it used
hourly employees to fill the position.
48. Plaintiff was not interviewed
for either of the two remaining
A-29-
positions. The Selection Committee
members for these positions were not told
that plaintiff had filed a charge of
discrimination. Scme Selection Committee
members evaluated her as not meeting job
criteria, and other Committee members
determined that she did meet the
criteria.
49. Ruth Sanders was also not
interviewed for either of the positions.
She, too, had worked previously at
Riverside Community College District.
She worked part-time at the District
during the Fall of 1976, Spring of 1977
and Fall of 1977. She also had several
letters of recommendation.
50. The Selection Committee members
rated Ms. Sanders similar to plaintiff's
rating on the paper screening. That is,
some of the members rated her ass not
meeting the requirements and some of the
A-30-
ee 5s =
A era
members rated her as meeting the
requirements.
51. Sharon Evans was hired for the
Vocational Nursing Instructor position.
Ms. Evans was previously the Assistant
Director of Nursilig Education at
Riverside General Hospital, the Director
of Nursing at Knollwood Community
Hospital, part-time instructor at
Riverside City College during the Fall
1977 semester, and Inservice Instructor
at Knollwood Community Hospital. In
addition, she had several other types of
employment experience that were
pertinent.
52. Diana Hays was hired for the
other full-time Nursing instructor
position in 1978. That position was
advertised as "...lecture and laboratory
instruction in nursing courses with
emphasis on senior medical-surgical
A-31-
—————
nursing including ICU, CCU, team
leadership and research seminars."
53. Ms. Hays' background includes
the following experiences among others:
staff nurse in renal and CCU areas at
Mount Sinai Division of Cedars-Sinai
Medical Center; Instructor in
Medical-Surgical and Team Nursing at
Hollywood Presbyterian School of Nursing;
Part-time instructor in Medical-Surgical
and Critical Care Nursing at California
State University, Los Angeles; Instructor
in Medical-Surgical at Santa Ana College;
Instructor in Medical-Surgical at
Cerritos College and Cypress College.
54. The District announced a
full-time permanent Nursing Instructor
position in May, 1979. The position
description stated in relevant part,
"Responsible for lecture and laboratory
instruction in nursing courses with
A-32-
emphasis on psychiatric nursing. A
combined background of psychiatric and
pediatric nursing theory and experience
is preferred but will not exclude an
applicant with a strong psychiatric
background."
55. The Screening Committee met on
June 28, 1979 and reviewed nine
candidates' applications. It determined
that it had an insufficient pool to
invite persons for interviews. The
position was subsequently readvertised.
56. Following the readvertisement,
plaintiff, Helen Strutz and Tim Matthews
were selected to be interviewed.
Plaintiff received mixed interview
evaluations. She was rated Below Average
on several questions. Three of the five
committee members commented that she was
difficult to understand.
57. Helen Strutz was also not hired
A-33-
ee OOOeeerrr
for the 1979 position. She had
previously worked at Riverside Community
College as a Nursing Instructor and had
received several letters of
recommendation. Ms. Strutz had also
applied for the 1977 position and all
three 1978 positions. She was not hired
for any full-time teaching position at
Riverside Community College District.
58. Tim Matthews was hired for the
1979 position. His background included
serving as a Psychiatric Nurse Instructor
and Assistant to the Director of Nursing
Education for the Commonwealth of
Pennsylvania Department of Public Welfare
at Dixmont State Hospital; Psychiatric
Coordinator and Clinical Instructor and
Coordinator of the Rehabilitation Program
at Sewickley Valley Hospital School of
Nursing.
59. Plaintiff applied for the 1981
A -34-
Nursing Instructor Full-Time Permanent
position. The job announcement stated in
addition to other requirements, "Two
years' experience teaching in a stated
accredited, associate in arts/science
degree nursing program within the last
five years is required." Plaintiff did
not meet that requirement and was
consequently not chosen to be
interviewed.
60. Patricia Hora was selected for
the 1981 position. She had previously
been employed as a full-time nursing
instructor at the District for over two
years.
61. Plaintiff worked at Loma Linda
University from May 21, 1972 until
December 27, 1975. Her termination
notices states that she would not be
considered for re-hire because she was
adifficult to work with and she insisted
A-35-
on having a leadership position.
62. Plaintiff was employed by
Chaffey Community College District on
September 17, 1975. She received
unsatisfactory evaluations from Chaffey
community College District on November
15, 1975 and January 30, 1976. The
District terminated her from employment
on March 10, 1976 because of
unsatisfactory evaluations and the lack
of ability to communicate with students
and staff.
63. Plaintiff filed a complaint
with the Fair Employment Practice
Commission on April 7, 1976 against
Chaffey Community College District. She
subsequently filed for Writ of Mandate
against Chaffey Community College
District in the Superior Court of the
County of Riverside on May 21, 1976.
64. Plaintiff worked at Patton
A-36-
State Hospital from October, 1978 to
February, 1981. On or about September
ll, 1979 Patton State Hospital suspended
her for insubordination. On February 10,
1981 Patton State Hospital suspended her
for insubordination. On February 20,
1981 Patton State Hospital issued
plaintiff a Notice of Amended Punitive
Action. The hospital notified plaintiff
that she was dismissed for
insubordination and dishonesty.
65. Plaintiff was employed by
Riverside Community Hospital from
February, 1981 to April 1981. On April
29, 1981 the hospital terminated her for
continual failure to meet acceptable
levels of job performance.
66. Each and every Conclusion of
Law which may properly be a Finding of
Fact is incorporated herein as though
fully set forth.
A=-37-
CONCLUSIONS OF LAW
1. The Court has jurisdiction over
this case pursuant to Title VII of the
Civil Rights Act of 1964 as amended, 42
USC Section 2000e, et seg ("Title VII")
and 28 USC Section 1343 as an action
alleging unlawful discrimination in
employment.
2. To resolve a claim for
discriminatory treatment under Title VII,
the Court must apply a three-part test.
First, the plaintiff must establish a
prima facie showing of discrimination.
Plaintiff can meet this initial burden by
showing that (1) she is a member of a
group protected by Title VII, (2) she
applied for and was qualified for a
position, (3) her application was
rejected, and (4) another was hired for
the position. See Texas Department of
A-38-
Community Affairs v. Burdine, 450 U.S.
248 (1981). If plaintiff meets this
burden, the defendant must rebut the
inference of discrimination by
articulating some "legitimate,
non-discriminatory reason for its
conduct." Steckl v. Motorola, Inc., 703
F.2d 392, 393 (9th Cir. 1983). If
defendant successfully articulates a
legitimate reason, plaintiff finally must
show that the defendant's purported
non-discriminatory is, in fact, a
pretext, and that unlawful discrimination
was a determining factor. Id. at 393.
3. Plaintiff's burden of production
in establishing a prima facie case is
"not onerous." Burdine, 450 U.S. at 253.
Plaintiff has met that burden by showing
that she is a member of a class protected
by Title VII, that she was qualified to
be hired by defendant as a full~time
A-39-
instructor in each instance except 1981,
and that, in each instance, another
person was hired instead of her.
4. Defendant has shown that its
failure to hire plaintiff was justified
by legitimate business reasons.
Defendant is entitled to hire whomever it
considers to be the best candidate for a
nursing instructor position; the evidence
shows that skill in communicating in the
English language is an important factor
in considering an applicant's potential
efficacy as an instructor. The Selection
Committee's consideration of plaintiff's
English proficiency in selecting the best
candidates was legitimate and
non-discriminatory.
5. Plaintiff has not shown that
defendant's proffered business |
justification is pretextual. There
simply has been no factual showing that
A-40-
the Committee employed plaintiff's
national origin as a determining factor
in reaching its decision not to recommend
plaintiff for an interview with the
Superintendent.
6. Plaintiff was treated the same
as similarly situated applicants for the
1977 nursing instructor position.
7. Defendant's decision to not
re-employ plaintiff and other part-time
employees was a result of a reduction in
force, not retaliation.
8. Plaintiff failed to establish
the necessary causal link between the
filing of her national origin
discrimination complaint and defendant's
decision not to retain her as a part-time
employee. Plaintiff filed her complaint
in October of 1977. She was employed
from September 13 to October 7, 1977 and
November 8 to December 1, 1977.
A-41-
9. Plaintiff was treated the same
as similarly situated part-time
employees: four of the six part-time
employees employed during the Fall
semester 1977 were not rehired for the
Spring 1978 semester.
10. Howard Larsen's (Dean of
Academic Services) conduct in writing a
memo to Mary Fiorentino requesting that
she consider plaintiff for future
part-time employment if it became
available supports the determination that
defendant did not retaliate against
plaintiff.
11. Plaintiff did not sustain her
burden of proof that she was not hired in
1978 because of retaliation.
12. Plaintiff was treated the same
as similarly situated applicants for the
1978 nursing instructor position.
13. Plaintiff did not sustain her
A-42-
burden of proof that she was not hired in
1979 because of retaliation.
14. Plaintiff was treated the same
as similarly situated applicants for the
1979 nursing instructor position.
15. Disparate impact was not an
issue at trial and was raised for the
first time in plaintiff's written
summation.
16. Plaintiff would not have been
hired by defendant, even if
discrimination and retaliation are
assumed (although contrary to the Court's
findings), because defendant has shown by
clear and convincing evidence that
plaintiff's employment history would have
justifiably disqualified her from
employment with defendant.
17. Each and every Finding of Fact
which may properly be a Conclusion of Law
is incorporated nerees as though fully
-43-
set forth.
18. The Clerk is directed to file
and serve these Findings of Fact and
Conclusions of Law on all counsel by U.S.
mail. the Court further finds it
appropriate to order counsel for
defendant to prepare, serve, and lodge a
proposed Judgment in accordance with the
foregoing Findings and Conclusion.
Dated: September 3, 1985
Alicemarie H. Stotler
United States District Judge
A-44-
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SHEELA A. GIDEON, No. CV-82-4903
AHS
Plaintiff,
JUDGMENT
Vv.
RIVERSIDE COMMUNITY
COLLEGE DISTRICT,
Defendant.
]
]
]
]
]
]
]
]
]
]
]
This cause came on for trial on
March 5, 6, 7, 8, 13 and 14, 1985, before
the Court Honorable Alicemarie H.
Stotler, Judge of the United States
District Court, presiding. Dale M. Ficla
appeared for and on behalf of plaintiff
Sheela A. Gideon. Melanie M. Poturica of
Liebert, Cassidy & Frierson appeared for
and on behalf of Defendant Riverside
Community College District. Oral and
Cocumentary evidence was introduced on
behalf of the respective parties, the
A-45-
evidence was closed and the parties
submitted closing arguments by way of
written briefs filed with the Court. The
matter was submitted to the Court for its
consideration and decision, anda
decision having been duly rendered. In
accordance with the Findings of Fact and
Conclusions of Law rendered by the Court
It is ordered and adjudged
That the plaintiff Sheela A. Gideon
take nothing, that the action be
dismissed on the merits, and that the
defendant Riverside Community College
District recover of the plaintiff Sheela
A. Gideon its costs of action.
Dated at Los Angeles, California,
//
//
//
//
A-46-
this 23rd day of September, 1985.
Alicemarie H. Stotler
United States District Judge
A-4/-
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1987
SHEE™A A. GIDEON,
Petitioner
vs.
RIVERSIDE COMMUNITY COLLEGE DISTRICT,
Respondent.
CERTIFICATION OF SERVICE
The undersigned, DALE M. FIOLA, the
attorney for Petitioner, Sheela A.
Gideon, hereby certifies that on the llth
day of December, 1986, he served the
foregoing Petition for Writ of Certiorari
on all the perties hereto, by mailing
three copies by ordinary mail, postage
pre-paid, address as follows:
LIEBERT, CASSIDY & FRIERSON
ATTORNEYS AT LAW
6033 West Century Boulevard, Suite 890
Los Angeles, California ~90045
DATED: December ll, 19
dy,
DALE M. FIOLA
1678 West Broadway
Suite 214
Anaheim, CA 92802
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.