Petition for Writ of Certiorari — Burks v. Department of Arizona Economic Security, Employment Tax Audit Office-Mesa

Supreme Court, U.S.

) Fivier

001892 JUN 1 6 2001

GRACE OF THE-CLERIC

ee [ened

In the

Supreme Court of the Hnited States

Petitioner,

DEPARTMENT OF ARIZONA ECONOMIC SECURITY,

Employment Tax Audit Office -- Mesa,

Respondent.

On PETITION FOR Writ OF CERTIORARI TO THE

UNITED States Court OF APPEALS

FOR THE Nints Circurr

PETITION FOR WRIT OF CERTIORARI

ANTHONY GIAMMARCO MARINA TRAMONTOZZI

Attorney for Petitioner Counsel of Record

50 South Power Road c/o CURRY & TAYLOR

Mesa, AZ 85206 Suite 601-S

(480) 985-0580 815 15" Street, N.W.

Washington, D.C. 20005

(202) 393-1070

IE LSS

i

QUESTIONS PRESENTED

1. When circumstantial evidence was the only evidence

available to the Petitioner to prove defendant’s racial and

sexual discriminatory intent, did the Court of Appeals

Properly find that the circumstantial evidence submitted by

Petitioner was insufficient to permit her to meet the requisite

burden of proof, or refute the proffer of defendant,

particularly in view of the holding by this court in Village of

Arlington Heights vy. Metropolitan Housing Development

Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450

(1977)(holding that a court assessing an equal protection

claim based on race discrimination must engage in a

sensitive inquiry into such circumstantial and direct

evidence of intent as may be available).

2. Upon a finding that the District Court had

jurisdiction over Petitioner’s reasonably related claims of

both race and sex discrimination, which were alleged

through Petitioner’s amended EEOC charge and Federal

District Court complaint, did the appellate court reasonably

determine that Petitioner failed to establish a prima facie

case of sex discrimination upon the circumstantial evidence

available to her, again in keeping with this court’s holding

in Arlington Heights, Id.

il

TABLE OF CONTENTS

CT FN isi chicane ccesetinscy dass cenendanasaeins i

SA i iivsiiseisnikcichitiecdiptticn dma ii

SI FR siscsntctieaccee aa ae iii

CMI I iiss <itinicsccisiaisianbiisiapaiciiieiiths mei 1

PICHON stissinninisigivaiaaitsainuntetamiadumeeied a emecian |

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.... 1

SUT CP FT i ceseteceicis trcnicisididc etaenseds 3

REASONS FOR GRANTING THE WRIT .............0..cseceeeeeeees 7

CRI oi cscicntatontvinciiansee couse pada 13

APPENDIX

TTI, Bi sss nscadnunentiacabcianneveieenceane ns la

RINE Divinssstacinntinsitthmiaaans Ta

APPENDIX Eh: \iccin sensei buatenneneerieamtane 4 see lodging

TID aa iniasictircisichcenatiadiamaehitas see lodging

TI Bhi a sscisincisicanisineigneaetaeeae see lodging

TABLE OF AUTHORITIES

CASES

BURKS V. DEPARTMENT OF ARIZONA ECONOMIC SECURITY,

EMPLOYMENT TAX AUDIT OFFICE_ MESA, _ F.3D

sObenstbeseetebeensabnsprenccsensecnbantnenumbbdsiecenaéenes sik 1,3

PERSONNEL ADMINISTRATOR V FEENEY, 442 U.S. 256, 99

ee ee brctascecvesityaae tig Et 8

ST. MARY'S HONOR CTR. Vv. HICKS, 509 U.S. 502, 507

ty 6 ES LCRA OS TMA ILE Tee 9

TEXAS DEP'T OF COMMUNITY AFFAIRS V BURDINE, 450

reins oe eee hs, 3, RE ILE RENE Te 9

UNPUBLISHED DISPOSITION, 2001 WL 275071 (9TH Cir.

PUN ticnstbslthnicdbinimenieatancerscuin ec, 1,4

VILLAGE OF ARLINGTON HEIGHTS V. METROPOLITAN

HOUSING DEV. Corp., 429 U.S. 252, 97 S.CT. 555

es ERTS AIT RENTERS SEE Tee 8

WASHINGTON V. DAVIS, 426 U.S. 229, 96 S.CT. 2040

IE earn elmnieunihscetciinseiancac 8

STATUTES

cg RTL ae i 1

42 U.S.C.A. 8 eri 1

42 U.S.C.A. § 20008-2(M) .........eeccccceecececeeceeccs.... 2,8

1

OPINIONS BELOW

The unpublished opinion of the United States Court

of Appeals for the Ninth Circuit (“Court of Appeals”) is

reported at Burks v. Department of Arizona Economic

Security, Employment Tax Audit Office Mesa, _ F.3d

___, Unpublished Disposition, 2001 WL 275071 (9th Cir.

2001). The opinion of the District Court wes not published.

(Appendix A and B)

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals

for the Ninth Circuit was entered on March 19, 2001.

The jurisdiction of this Court is invoked under 28

U.S.C.A. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Section 703 of Title VII of thie Civil Rights Act of

1964, inter alia, makes it “an unlawful employment practice

for an employer - (1) to fail or refuse to hire or to discharge

any individual, or otherwise to discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such

individual’s race . . . sex. . .” 42 U.S.C.A. § 2000e-

2(aX(1).

42 U.S.C.A. § 2000e-2(a)(1)-(2) provides:

(a) Employer practices

It shall be an unlawful employment practice for an

employer __

2

(1) to fail or refuse to hire or to discharge

any individual, or otherwise to discriminate

against any individual with respect to his

compensation, terms, conditions, or

privileges of employment, because of such

individual's race, color, religion, sex, or

national origin; or

(2) to limit, segregate, or classify his

employees or applicants for employment in

any way which would deprive or tend to

deprive any individual of employment

Opportunities or otherwise adversely affect

his status as an employee, because of such

individual's race, color, religion, sex, or

national origin.

42 U.S.C.A. § 2000e-2(m) provides as follows:

Impermissible consideration of race, color,

religion, sex, or national origin in

employment practices

Except as otherwise provided in this

or national origin was a motivating factor for

any employment practice, even though other

factors also motivated the practice.

Federal Rule of Civil Procedure 56(b) and (c) provides:

(b) For Defending Party. A party against

whom a claim, counterclaim, or cross claim

is asserted or a declaratory judgment is

sought may, at any time, move with or

3

without supporting affidavits for a summary

judgment in the party's favor as to all or any

part thereof.

(c) Motion and Proceedings Thereon. The

motion shal! be served at least 10 days before

party prior to the day of hearing may serve

opposing affidavits. The judgment sought

shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, and

admissions on file, together with the

affidavits, if any, show that there is no

genuine issue as to any material fact and that

the moving party is entitled to a judgment as

a matter of law. A summary judgment,

interlocutory in character, may be rendered

on the issue of liability alone although there

is a genuine issue as to the amount of

damages.

STATEMENT OF THE CASE

The District Court granted the motion for summary

judgment against Burks filed by the Department of Arizona

Economic Security, Employment Tax Audit Office - Mesa

(“DES”) under Rule 65 of the Federal Rules of Civil

Procedure. By awarding DES summary judgment, Burks

was prevented from presenting to a jury probative evidence

related to racial and sexual animus. On appeal, a three judge

panel of the Ninth Circuit affirmed the District Court’s

order granting summary judgment. Burks v. Department of

Arizona Economic Security, Employment Tax Audit

Office Mesa, __ F.3d ___ Unpublished Disposition,

4

2001 WL 275071 (9th Cir. 2001). Petitioner’s request for a

writ of certiorari is based upon this adverse ruling.

The Tenure and Termination of Burks' Employment

In 1995, Petitioner Bonita Burks, a black female,

sought employment with the State of Arizona. Having been

informed of job openings in the Unemployment Insurance

Tax Section of DES, Burks interviewed for a job as Tax

Auditor. A panel consisting of Richard Barrey, Erik Gross,

and Kathy Whaley interviewed Burks and approved her

hiring. Burks accepted the position . Burks was one of six

(6) persons, all female, hired during that recruitment. She

and two of the other new hires, Alfreda Stanley (a Native

American) and Jessica Netzer (a Caucasian), were assigned

to the Mesa, Arizona field office. Burks and the others first

reported to work on Monday, October 30, 1995, although

Burks' official date of hire, as reflected on the DES

personnel documents, was October 28, 1995. DES

designated October 28 as the effective date of Burks' hire.

These three Mesa employees were supervised by Richard

Barrey.

In evaluating Burks' job performance as a

probationary employee, Barrey reviewed Burks’

performance during two periods within the six month

probationary period of her employment. The first evaluation

was conducted at the end of the first three months; the

second at the end of five months. At Burks' three month

review, she was rated as "standard." At her five month

review, Burks was rated at "below standard” and was not

recommended for permanent status.

Prior to her five month review, Barrey intentionally

altered the dates upon which Burks' efforts would be

When Burks received her five month review, the

FAAS Tating and score listed the period of evaluation’ ax

the evaluation Period unbeknownest to Burks, four

mese audits in compliance with the terms of the evaluatics

Period ending on April 30" which she Signed off on

¢valuation for her employment efforts. DES set Burks up to

fail, plain and simple.

6

Burks also presented testimonial evidence in support

of Barrey's potential for emotional outbursts, as well as

other negative comments directed to Burks regarding her job

performance. The harmful effect upon Burks was

heightened by Barrey's previous displays of his hostile

temperament.

Of particular significance was ari incident where

Barrey implied Burks was "out shopping" at a time when

she was required to conduct field audits. The insinuation

that Burks was shopping was directly related to the conduct

of a former black female employee who was also rumored

to have gone shopping during work hours. Through this

comment it was obvious that Barrey perceived Burks as just

another stereotypical black female. Barrey's actions

indicated his intent to lump Burks in a category of behavior

previously displayed by at least one other black female

employee. This could be characterized as Barrey painting all

black female employees with the same brush, even to the

point of linking Burks’ behavior to the historically racist

view of blacks as 'lazy" or slothful. This is conclusive proof

of the animus of racial and sexual discrimination, and more

so because Burks was required to spend approximately 50%

of her time in the field. For fully one half of her time on the

job, Burks suffered the potential of having to defend herself

against Barrey's prior implication that she had a propensity

for stereotypical laziness due to her race and gender.

Having observed Barrey's tendency to generalize the

behavior of black female employees, Burks was negatively

impacted by any further adverse and belittling comments

directed to her by Barrey. During her deposition Burks

recalled another incident where Barrey inquired about

rumors of employees desiring transfers from the Mesa

7

office.No one was transferred from the Mesa field office.

Further, Barrey's actions in response to a grievance filed by

Alfreda Stanley (regarding Barrey's comments about

Stanley's job performance) could at best be characterized as

retaliatory against Burks. As Burks noted in her deposition,

Barrey received a reprimand regarding his conduct with

Stanley, whereupon Burks felt Barrey was angered because

he lost the grievance and considered Burks a disloyal

employee worthy of his efforts to sabotage her.

EEOC Complaint

Upon her termination, Burks filed a charge with the

Equal Employment Opportunity Commission (hereinafter

"EEOC") on October 23, 1996, initially alleging racial

discrimination. Burks stated she based her claim upon racial

discrimination at the hands of Barrey largely upon his

determination that she did not meet the number of requisite

DES audit quotas, a determination ultimately based upon the

altered evaluation.

After its investigation the EEOC issued a right to sue

letter wherein it was determined that "the EEOC is unable

to conclude that the information obtained establishes

violations of the statutes." On January 11, 1999, Burks

timely amended her EEOC charge, which amendment

relates back to the original date of the filing of the charge.

Within this amendment Burks properly included the sexual

discrimination charge based on the conduct of her

supervisor Barrey. Such conduct was reasonably related to

the allegations in her EEOC charge.

REASONS FOR GRANTING WRIT

8

The Petition Should Be Granted Because The Opinion

Below Conflicts With the Opinions Of This Court And

Other Circuits And Has So Far Departed From The

Accepted And Usual Course of Judicial Interpretations, Or

Sanctioned Such a Departure By a Lower Court As To Call

For An Exercise of This Court’s Supervisory Power.

The petition for writ of certiorari should be granted

because the opinion below conflicts with this Court’s

previous rulings stating that discriminatory intent is

generally harder to prove because there is typically no direct

evidence of intent to discriminate. Washington v. Davis, 426

U.S. 229, 96 S.Ct. 2040 (1976); Village of Arlington

Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252,

97 S.Ct. 555 (1977); Personnel Administrator v. Feeney,

442 U.S. 256, 99 S.Ct. 2282 (1979). When there is no

direct evidence of discrimination, the courts are to look at

all the facts and circumstances to make a decision. Arlington

Heights, 429 U.S. 252, 97 S.Ct. 555. Factors to be

considered by the court include legislative history, disparate

impact, foreseeability/inevitability of disparate impact,

sequence of events, deviation from normal procedures and

historical background. Arlington Heights, Id. at 266_68, 97

S.Ct. at 563_65. (emphasis added).

Unless this Court exercises its supervisory power, the

decision of the Ninth Circuit will reduce the Civil Rights

Act of 1991, 42 U.S.C.A. § 2000e-2(M) and the remaining

precedent value of this Court’s important decisions

interpreting this statute to a meaningless mirage. The Ninth

Circuit’s interpretation of the amount and/or quality of

circumstantial evidence presented by Petitioner to show the

defendant’s discriminatory intent strips this Petitioner, as

well as other victims of race and sex employment

discrimination, of the ability to present only documented

9

circumstantial evidence to prove the discriminatory intent of

their employers.

Upon the Ninth Circuit’s finding that Petitioner

established a prima facie case of race discrimination, the

burden properly shifted to DES to show that Petitioner was

terminated “for a legitimate, nondiscriminatory reason.” St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993)

(quoting Texas Dep’t of Community Affairs v. Burdine, 450

U.S. 248, 254 (1981). The Ninth Circuit stated that it

agreed with the District Court’s holding that DES had met

its burden by demonstrating that Burks was terminated as a

result of her sub-par performance evaluations. Burks was

then required to show that DES’ proffered reason was

“pretextual” and not the true reason for the employment

decision, and that race was the true reason.

Since she possessed only circumstantial evidence of

race discrimination, as is typically the case, Burks properly

submitted the altered EPAS forms as the primary

circumstance upon which discriminatory intent could be

inferred. The EPAS are particularly unique in their

evidentiary form in that they exist as a written

memorialization of the conduct of DES.

The content of the written forms provides more

tangible evidence of DES’s conduct and intent, particularly

when compared to other forms of evidence proffered by

DES. Specifically, DES alleged that other probationary

employees with whom Burks was hired had their evaluation

periods changed, but were not terminated. Additionally ,

DES offered proof that a white employee who met her audit

quota was not terminated. DES did not produce

documentary evidence to show that it customarily alters

10

evaluation periods without communicating the change to the

employees.

The Ninth Circuit Court failed to give proper weight

to the EPAS forms, and the Court also failed to

acknowledge that DES could have essentially covered its

tracks, hiding its racially discriminatory intent by shortening

the evaluation period of other employees who would have

met the requisite audit quota even if their probationary

period was shortened. Finally, upon being presented the

altered EPAS forms, the Ninth Circuit failed to require DES

to provide a race neutral explanation of such alterations,

especially since the alterations fared negatively on Burks’

employment evaluation.

Both the Employee Performance Documentation

Forms and the Score Form included within the EPAS forms

show the weighing and rating of Burks’ performance (See

Appendix C and D). The four particular areas upon which

she and others were rated include work habits, relationships

with people, policy and procedures, and goals and

objectives. Each Employee Performance Documentation

Form indicates each category in the upper left, so there is a

form for each category.

To justify Petitioner’s termination, DES posted

Petitioner’s failure to meet goals and objectives required by

this first category. However, pursuant to the Score Form,

apparently signed by the Petitioner’s supervisors on April

10, 1996 and April 11, 1996, Burks received a score of

4.0, which is below the standard. Under the topic “Goals

and Objectives”, Burks’ rating was “1", because DES used

the wrong period of time in calculating the quotas

(Appendix E).

11

Burks never received the altered EPAS forms, which

clearly show on the first page that the evaluation dates were

altered from 10/30/95 - 1/30/96 to 10/28/95 - 1/27/96

(Appendix C and D). The second page of the "Work

Habits" EPAS was added on without her initials or

approval. One may also assume that the other "add ons"

were likewise included without her knowledge or approval.

The very last page, which covers "Goals and Objectives,"

gives her the "1" score because DES's calculation shows

that she completed 83.33% of the assigned audit quota (see

1" page of Appendix D).

This failure to make Burks aware of not only the

alterations, but the impact of the newly-imposed quota

review period would lead a reasonabie person to infer that

DES’s conduct was a deviation from its normal practices.

When viewing the sequence of events, such deviation cries

out for a race neutral explanation, particularly given the

history of conflict between Burks and her supervisor Barrey.

The District Court or the Ninth Circuit Court of Appeals

should have required DES to make such an explanation. In

finding that Burks’ claims of race and sex discrimination

were reasonably related, the Ninth Circuit properly accepted

jurisdiction over Burks’ claims. But the Court failed to place

the proper weight upon the documented circumstantial

evidence of DES’s conduct as shown through the EPAS

forms.

A review of the computer printout of Burks’

performance evaluation entitled “Burks Inventory/Audit

Findings: 5 Month EPAS Probationary Review” shows that

Burks completed 20 of 24 audits. However, this inventory

only goes through March 27, 1996 when it should have

gone through March 30, 1996 (Appendix F).

12:

On March 28, 1996, Burks completed three audits,

and on March 29th she completed another audit (Appendix

G). Had DES included these four additional audits then she

would have completed 24 of 24, making her percentage

100% and not 83.33%. In tum, her score on the EPAS

form entitled “Goals and Objectives” (Appendix D) would

not be “1", which is in the unacceptable range. Instead, she

would have fallen under the standard range at a minimum

and would have scored a “5" or “6", just like the EPAS

form contained in Appendix C. Extrapolating further by

reviewing the calculation method contained in the Score

Form on Appendix E, Burks’ score under paragraph 13,

“Goals and Objectives” would show a rating of “5" (4 X 5

= 20), thereby raising her weight/rate sum to 80 instead of

64. Dividing 80 by 16 equals 5, a period score that would

have granted Burks permanent status with DES.

Burks was hired on October 28, 1995, but her first

day of work was not until October 30, 1995, and therefore

the rating period should have started on October 30, 1995

and each successive probationary review should apply

through the 30” day of each month. For example, her third

month probationary review should be from October 30,

1995 through January 30, 1996, and her fifth month

probationary review should be through March 30, 1996.

DES not only failed to provide a non discriminatory

basis for this disparity, but it also failed to provide any

reason for its conduct, except to point out to the District

Court that a white employee was subjected to the same

shortening of the evaluation period and was not terminated.

This white employee was able, for whatever the reason, to

complete her evaluations within the shortened time period,

when Burks was not. If DES intends to use this so-called

“Objective” standard of counting audits, which supervisor

13

Barrey obviously placed much weight upon, then it should

not make any difference if one employee completes his or

her audit quotas before another employee does.

Given the burden of proof, it is incumbent upon DES

to prove that Burks not only had the opportunity to conduct

the requisite number of audits, but was aware that she must

complete them within the shortened period. At no time did

supervisor Barrey, or any other supervisor inform Burks

With regards to Burks’ failure to meet her quota for

the month of April, 1996, Burks had turned in two audits

earlier in April and the remaining 6 were on her desk and

about to be submitted. Subsequently, Burks was terminated

and unable to submit them. It would not have made any

difference whatsoever because on April 10, 1996, Barrey

already signed the score form indicating that Burks would

not be granted permanent status (Appendix E).

Burks did not meet the audit quotas for March

because of Barrey’s altering and tampering with the audit

evaluation period. His statement heightens the extent of the

trap he laid for Burks, by shortening the evaluation period

and ensuring that a white employee, whose evaluation

period was also shortened, had already acquired the

requisite quota of audits.

CONCLUSION

By granting the Petition for Writ of Certiorari, this

Court can correct the Ninth Circuit’s decision. In so doing,

this Court can prevent the loss of important ground gained

against prejudice and discrimination in the workplace.

4

Accordingly, Petitioner respectfully requests that her

Petition for Writ of Certiorari be granted.

Respectfully submitted

Marina Tramontozzi,

Counsel of Record

c/o Curry & Taylor

Suite 601

815 15" Street, N.W.

Washington, D.C. 20005

(202) 393-4141

la

(any footnotes trail end of each opinion)

No. 99-16688

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

BONITA A. BURKS,

¥.

DEPARTMENT OF ARIZONA ECONOMIC SECURITY ,

Employment Tax Audit Office -- Mesa,

Defendant-Appellee.

February 13, 2001, Argued and Submitted, San Francisco,

California

March 19, 2001, Filed

COUNSEL:

For BONITA A. BURKS, Plaintiff - Appellant: Anthony

Giammarco, Esq., Mesa, AZ.

For DEPARTMENT OF ARIZONA ECONOMIC

SECURITY, Defendant - Appellee: Michael Goodwin,

Esq., OFFICE OF THE ATTORNEY GENERAL,

Phoenix, AZ.

JUDGES:

Before: B. FLETCHER, FERNANDEZ, and PAEZ,

Circuit Judges. FERNANDEZ, Circuit Judge, concurring.

OPINION:

MEMORANDUM *

Plaintiff Bonita Burks appeals from the district court's

order granting summary judgment in favor of the State of

Arizona's Department of Economic Security ("DES") on

her Title VII claims alleging race and sex discrimination and

retaliation. Except as explained below, we have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

A. Race Discri. imation

We review the district court's order granting summary

judgment de novo, see, e.g., Botosan v. Paul McNally

Realty, 216 F.3d 827, 830 (9th Cir. 2000), viewing the

evidence in the light most favorable to Burks. Bradley v.

Harcourt, Brace & Co., 104 F.3d 267, 269 (9th Cir. 1996).

Under the familiar standard for analyzing a claim of race

discrimination under Title VII, the plaintiff first must

establish a prima facie case of race discrimination. St.

Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 125 L.

Ed. 2d 407, 113 S. Ct. 2742 (1993). The district court

assumed that Burks had met her burden, and so do we. The

burden of production then shifts to DES to show that Burks

was terminated “'for a legitimate, nondiscriminatory

reason.'" Id. at 507 (quoting Texas Dep't of Community

Affairs v. Burdine, 450 U.S. 248, 254, 67 L. Ed. 2d 207,

101 S. Ct. 1089 (1981)). The district court held that DES

had met its burden by demonstrating that Burks was

terminated as a result of her sub-par performance

evaluations. We agree. Lastly, to prevail, Burks must show

that DES' "'proffered reason was not the true reason for the

employment decision’ and that race was." Id. (quoting

Burdine, 450 U.S. at 256). This is referred to as a showing

that the defendant's justification was “pretextual.”

3a

Because Burks relies on circumstantial evidence of race

‘substantial’ [evidence of pretext] in order to create a triable

issue with respect to whether the employer intended to

discriminate . . . ." Godwin v. Hunt Wesson, Inc., 150

F.3d 1217, 1222 (9th Cir. 1998) (quoting Bradley, 104 F.3d

at 270). We agree with the district court that Burks cannot

meet this burden. Burks' primary allegation is that her

supervisor, Richard Barrey, shortened her probationary

period so that she could not complete her required number

of assignments. But both of the other i

periods changed as well. A white employee was not

terminated, but she had met her audit quota. Burks has not

demonstrated that she and that employee were treated

differently.

In her opposition to DES' motion for summary

judgment, Burks said she had a witness, a black woman,

who would testify that her review scores were also altered

by Barrey. But that witness was not deposed and did not

submit an affidavit. Burks' unsupported assertion about

what the woman would say if called to testify cannot be

considered "substantial" evidence. Next, the district court

was correct to reject Barrey's remarks to Burks as having

little probative value. The first comment, that Burks was

going to be unable to meet her audit quota, was little more

than an objective assessment of Burks’ position. The second

comment, that she was facing a transfer to another office,

was also addressed to a white employee. And with regard to

the third comment, that Burks had been shopping while on

duty, Burks has admitted that she has no evidence that any

prior African-American employee had been caught shopping

while on duty.

4a

Burks' subjective assessment of her performance carries

little weight. See Bradley, 104 F.3d at 270. And her

contention that she received positive feedback from other

supervisors, Mark Zimmerman and Julian Rodela, is belied

by those individuals’ own depositions. In sum, Burks has

failed to present specific and substantial evidence of pretext.

B. Retaliation and Sex Discrimination

To establish federal subject matter jurisdiction over an

employment discrimination claim, a plaintiff must exhaust

her administrative remedies by filing a charge with the

Equal Employment Opportunity Commission ("EEOC"),

before filing a federal court complaint. See, e.g., Paige v.

California, 102 F.3d 1035, 1041 (9th Cir. 1996). The

district court's conclusion that it lacked subject matter

jurisdiction is reviewed de novo. See Botosan, 216 F.3d at

830.

Burks never raised her retaliation claim in her EEOC

administrative charge. Because there is no evidence that the

incident that allegedly resulted in the retaliation, Alfreda

Stanley's grievance against Barrey, was motivated by racial

or sexual animus, we cannot find that the retaliation claim is

“reasonably related to the allegations of the EEOC charge. .

. ." Oubichon v. North Am. Rockwell Corp., 482 F.2d

569, 571 (9th Cir. 1973). We lack jurisdiction over this

claim.

After filing suit, Burks amended her EEOC charge to

include an allegation of sex discrimination. We need not

determine if that amendment was effective, because we hold

that the district court had jurisdiction over the sex

discrimination claim, which was "reasonably related to the

allegations in the EEOC charge." Id. A reasonably thorough

investigation of Burks' EEOC charge would have revealed

Sa

the allegation that Barrey accused Burks of shopping while

on duty because a prior black female employee had been

caught doing so. See Green v. Los Angeles County

Superintendent of Schs., 883 F.2d 1472, 1476 ("In

determining whether an allegation under Title VII is like or

reasonably related to allegations contained in a previous

EEOC charge, the court inquires whether the original

EEOC investigation would have encompassed the additional

charges."). The allegation involves a "combination of

factors," both race and sex discrimination. Lam v.

University of Hawaii, 40 F.3d 1551, 1562 (9th Cir. 1994).

Therefore, the two claims, race and sex discrimination, are

reasonably related, and we disagree with the district court

that it did not have jurisdiction over this claim.

However, we may affirm the district court's order

granting summary judgment on any ground fairly supported

by the record. Keyser v. Sacramento City Unified Sch.

Dist., 238 F.3d 1132, 2000 WL 33155487, *6 (9th Cir.

2001). Because Burks has failed to establish a prima facie

case of sex discrimination, we affirm. First, Burks was

replaced by another woman, and, therefore, she cannot meet

the test established by this court in Jones v. Los Angeles

Community College Dist., 702 F.2d 203, 205 (9th Cir.

1983). Second, Burks suggests that her sex discrimination

claim is also based on sexual harassment. But Barrey's stray

comments do not constitute evidence of "conduct. . . severe

or pervasive enough to create an objectively hostile or

abusive work environment . . . ." Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75, 81, 140 L. Ed. 2d 201,

1i8 S. Ct. 998 (1998). Furthermore, Burks presented no

evidence that Barrey made any comments that were sexual

in nature. Cf. Meritor Savings Bank v. Vinson, 477 U.S.

57, 65, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986).

AFFIRMED.

CONCURBY:

FERNANDEZ

CONCUR:

FERNANDEZ, Circuit Judge, concurring:

I concur in the result. While I do not agree that we have

jurisdiction over the sex discrimination claim, if we did the

majority's resolution of it is flawless.

* This disposition is not appropriate for publication and

may not be cited to or by the courts of this circuit except as

may be provided by Ninth Cir. R. 36-3.

Ta

No. 97-1337-PHX-RGS

UNITED STATES DISTRICT COURT FOR DISTRICT

OF ARIZONA

BONITA A. BURKS,

Plaintiff,

v.

DEPARTMENT OF ARIZONA ECONOMIC SECURITY,

Employment Tax Audit Office -- Mesa,

Defendant.

Filed 5/13/99

ORDER

Defendant moves for summary judgment on plaintiff's

claims of race and sexual discrimination, arid retaliation.

The motion has been fully briefed and the Court finds that

defendant is entitled to judgment as a matter of law.

Plaintiff obtained employment with the State of Arizona in

the Unemployment Insurance (“UI”) Tax Section of the

Department of Economic Security (“DES”) as a Tax

Auditor in October 1995. Five other women were among

the new hires with plaintiff. Their first day of work was

October 30, 1995 but the effective date of their employment

was October 28, 1995 because it was the beginning of new

pay period.

The new employees were supervised by Richard Barrey and

were under a six-month probationary period. As a

8a

probationary employee, an employee is terminable at will

Prior to the conclusion of the probationary period, the

probationary employee will either be offered a permanent

position or be dismissed. Two performance appraisals are

conducted during the probationary period. Mr. Barrey

reviewed plaintiff's performance at the end of the first three

_month period and at the five-month mark. At plaintiff’s

three-month review, plaintiff was rated as “standard” but

concer was expressed about plaintiff's productivity. DSOF

17. At her five-month review, plaintiff was rated as “below

standard” and was not recommended for permanent status.

Piaintiff filed a charge with the Equal Employment

Opportunity Commission (“EEOC”) on October 23, 1996

alleging racial discrimination. DSOF 35. The EEOC issued

a right to sue letter after its investigation and determined

that “the EEOC is unable to conclude that the information

obtained establishes violations of the statutes.” DSOF 36.

Plaintiff, appearing pro se, then filed this Title VII action

alleging race and sex discrimination, and retaliation. _

P Scope of the EEOC Charge

Defendant first contends that plaintiff's sex and retaliation

claims are outside the scope of her EEOC charge. Before

filing an action in federal court under Title VII, a private

litigant must first file a complaint with the EEOC. 42

U.S.C. § 2000e-5; Stache v. Int’] Union of Bricklayers, 852

F.2d 1231, 1233 (9th Cir, 1988), cert. denied, 493 U.S. 815

(1989) . To establish federal subject matter jurisdiction,

plaintiff is required to exhaust her EEOC administrative

remedies before seeking federal adjudication of her claims.

See Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir.1990)

(“The jurisdictional scope of a Title VII claimant’s court

action depends upon the scope of both the EEOC charge and

the EEOC investigation. ”)

9a

Charges before the EEOC are to be construed liberally, but

an employee may not bring suit for incidents not listed in

her charge unless they are “like or reasonably related to the

allegations of :he EEOC charge.” Id. at 1233-34 (internal

quotations omitted). "When an employee seeks judicial

relief for incidents not listed in his original charge, the

judicial complaint may encompass any discrimination like or

reasonably related to the allegations of the EEOC charge,

including new acts.” Oubichon v. North American

Rockwell Corp., 482 F.2d 569, 571 (9th Cir.1973). The

rationale behind Oubichon is to “avoid creating needless

procedural barriers.” Id. The exhaustion requirement can

lead to needless procedural barriers because, “[i]f closely

related incidents occur after a charge has been filed,

additional investigative and conciliative efforts would be

redundant.” Brown v. Puget Sound Elec. App. & Train.

Trust, 732 F.2d 726, 729-30 (9th Cir. 1984)

On the other hand, “[w]here claims are not so closely

related that agency action would be redundant, the EEOC

must be afforded an opportunity to consider disputes before

federal suits are initiated. . . . ‘It is only logical to limit the

permissible scope of the civil action to the scope of the

EEOC investigation which can reasonably be expected to

grow out of the charge of discrimination.’” Id. at 730

(quoting Serpe v. Four—Phase Systems,-Inc., 718 F.2d

935, 937 (9th Cir. 1983)).

Plaintiff's sex discrimination and retaliation claims are not

Closely related to her racial discrimination claim.

Accordingly, they are outside the scope of her EEOC

charge. Plaintiff contends, however, that on January 11,

1999, she amended her EEOC charge to include sex

discrimination.’ Plaintiff thus argues that her EEOC charga

10a

filed on October 23, 1996 was timely amended and that the

amendment related back to the filing of the charge. As

defendant

Plaintiff does not dispute that her ascended EEOC charge

failed to include a retaliation claim, correctly notes,

however, plaintiff's attempt to amend her EEOC charge

after the EEOC’s investigation has been completed is

maatactive when Gare & uo showing Ot the EEOC hus

reopened the investigation.

A charge may be amended to cure technical defects or

omissions, including failure to verify the charge, or to

clarify and amplify allegations made therein. Balacz v.

Liebenthal, 32 F.2d 151, 157 (4th Cir. 1994) . Although

amendments alleging additional acts which constitute

unlawful employment practices related to or growing out of

the subject matter of the original charge will relate back to

the date the charge was first received, plaintiff's purported

amendment is not related to her original charge of racial

discrimination. Instead, the amendment attempts to initiate a

new basis for finding discrimination, i.e., sex

discrimination.

Moreover, the attempted amendment followed the issuance

of a right to sue letter which divests the EEOC of

jurisdiction, and the institution of this suit. Id., see also,

Bacon v, Allstate Ins. 1995 WL 360736, *3 (N.D. Ill.

1995) . Plaintiff's amendment was not attempted until nearly

22 months had past since the right to sue letter was issued

and only after defendant filed its motion for summary

judgment. Under these circumstances, the amendment of

the EEOC charge was futile, Neither plaintiff's sex

discrimination nor retaliation claim can be considered in this

case because they fall outside the scope of her EEOC charge

lla

and her amendment was not effective.

r I Summary Judgment Standard

In evaluating a summary judgment motion, the inquiry is

whether, with respect to any dispositive issue, the pleadings

and supporting materials show there is no genuine issue of

material fact, and if not, whether viewing the evidence and

inferences which may be drawn therefrom in a light most

favorable to the non-moving party, the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. p. 56;

California Architectural Building Products, Enc. v.

Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.

1987), cert. den. 484 U.S. 1006, 108 S. Ct. 698 (1988).

The moving party must produce evidence establishing the

absence of a genuine issue of material fact. Celotex Corp.

v. Catrett., 477 U.S. 317, 106 S. Ct. 2548, 2553 (1986) .

The absence of a genuine issue of material fact may be

demonstrated by pointing out to the district court that “there

is an absence of evidence to support the nonmoving party’s

case” on issues where the nonmoving party bears the burden

of proof. Id. at 2554, Moreover, at the summary judgment

Stage, the court’s function is not to weigh the

evidence and determine the truth of the matter, but merely

to determine whether there is a genuine issue for trial.

Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2511

(1986),

If the non-moving party will bear the burden of proof at trial

as to any element essential to its case, that party can

withstand a motion for summary judgment only by making a

showing sufficient to establish a genuine issue of fact

regarding that element and a showing that the dispute

properly may be resolved only by the if fact finder because

12a

it could reasonably be resolved in favor of either party.

Celotex Corp., 477 U.S. at 321, 106 S. Ct. at 2552-53;

Anderson, 477 U.S. at 249, 106 8. Ct. at 2511.

In order to make such a showing, the party opposing the

motion oust present specific facts in support of its

contentions and must support these facts by proper

evidentiary material, which when coupled with undisputed

background and contextual facts, show that the fact-finder

could reasonably find in his favor; the non-moving party

cannot merely rest on his pleadings. Fed. R. Civ. P. 56(e).

See also T.W, Elec. Service, Inc. v. Pacific Elec.

Contractors Ass'n 809 F.2d 626, 631 (9th Cir. 1987)

(citations omitted)

Moreover, where the factual context makes the non-moving

party’s claim implausible, that party must come forward

with evidence even more persuasive than would otherwise

be necessary to show that there is a genuine issue for trial.

California Building Products, 818 F.2d at 1468 (citing

Matusushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586, 106 8. Ct. 1348, 1356 (1986)).

3. Racial Discrimination

The United States Supreme Court in St. Mary’s Honor

Center v. Hicks, 113 S. Ct. 2742 (1993), clarified the order

and allocation of proof required to show discrimination

under Title VII. First, a plaintiff must show a prima facie

case of discrimination by showing that (1) she belongs to a

protected group; (2) she applied and qualified for a job in

which the employer was seeking applicants; (3) despite her

qualifications, she was rejected; and (4) the employer hired

someone else outside of the protected group. Id. at 2747

(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,

13a

302 (1973); see also Hughes v. Derwinski, 967 F.2d

1168,1171 (1992) . Second, upon proper showing of a

prima facie case, the employer must rebut by producing

evidence that the adverse employment action was for a

legitimate non-discriminatory reason. Hicks, 113 U.S. at

2747. The employer must clearly set forth reasons for its

actions, “which if believed by the trier of fact would

support a finding that unlawful discrimination was not the

cause of the employment action.” Id. Although the burden

of production shifts to defendant at this point, the ultimate

burden of persuasion remains with the plaintiff throughout

this burden shifting scheme. Id. Third, if the employer

meets its burden of production, plaintiff must prove that the

employer’s articulated reason was a pretext for intentional

discrimination in violation of Title VII. Id. Thus, plaintiff

must show both that the reason given is false and that

discrimination is the real reason. Id. at 2752. Summary

judgment is appropriate where a plaintiff's evidence to

refute a defendant’s legitimate explanation is totally lacking,

even though the plaintiff may have established a prima facie

case. Callis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir.

1994) . In other words, plaintiff must produce a genuine

issue Of material fact as to pretext to avoid summary

judgment. Id. (citing Steck] T. Motorola, Inc., 703 F.2d

392, 393 (9th Cir, 1983). Dougl Corp. v. Green, 411 U.S.

792, 802 (1973).

Assuming that plaintiff has made a prima facie showing,

defendant has met its burden by articulating a legitimate

reason or discharge: documented poor performance both in

terms of quality and quantity. Thus, the presumption of

unlawful discrimination simply drops out of the picture,” id.

at 511, 113 S. Ct. at 2749, and plaintiff bears the ultimate

burden of persuading the court hat the stated reason for the

discharge was false and the true reason for the discharge

14a

was unlawful racial discrimination. Id. at 507-08, 113 S.

Ct. at 2747-48; Lindahl v. Air France, 930 F.2d 1434, 1437

(9th Cir. 1991) . To avoid summary judgment, plaintiff

“must do more than establish a prima facie case and deny

the credibility of the [defendant’s] witnesses.” Walliis v.

Plaintiff contends that her supervisor, Richard Barrey

altered the dates of her employment by two days to October

28 in order to lower her performance scores so as to justify

her termination. It is undisputed that the other new hires

with plaintiff had effective dates of October 28 as well.

Thus, plaintiff cannot show that she was singled out on the

basis of her race.

Additionally, plaintiff has not demonstrated that but for the

change in effective date of employment, the quality of

plaintiff's work would have been sufficient to raise her

evaluation to a Satisfactory level. It is undisputed that

evaluations were based not only on quantity but quality both

areas of concern in plaintiff's probationary period.

subjective personal judgments of her competence alone,

however, do not raise a genuine issue of material fact.

Schuler v. Chronicle Broadcasting Co., Inc., 793 F.2d

1010, 1011 (9th Cir. 1986) . Plaintiff has not pointed to any

instances in which a black employee who failed to meet

FEM eae Tne Ae ‘ aS Matty hice WE aE eeheeieiys ’ any

‘ aa tay ii TE act ve

SS REFS NAR a a aS

15a

performance standards was fired and a white employee who

also failed to meet standard was not. No reasonable juror

could find by a preponderance of the evidence that she is

entitled to relief. Anderson v. Liberty Lobby, 477 242, 242,

252 (1986)

It is undisputed that plaintiff was hired by a panel that

included Richard Barrey, the supervisor who subsequently

recommended that plaintiff not be hired as a permanent

employee. The Ninth Circuit holds that where the same

actor is responsible for both the hiring and the firing of a

discrimination plaintiff, and both actions occur within a

short period of time, a strong inference arises that there was

no discriminatory motive. Bradley, 104 F.2d at 270-71. See

Lowe v. J.B. Hunt Transp,, Inc., 963 F.2d

173 (8th Cir. 1992) (finding argument that company

developed aversion to older people less than two years after

hiring member of protected age group “simply incredible”);

Buhrmaster v. OZvernite Tranp. Cc., 61 F.3d 461, 464

(6th Cir. 1995) (“An individual who is wiliing to hire and

promote a person of a certain class is unlikely to fire them

simply because they are a member of that class.”), cart.

denied, 116 S. Ct. 785 (1996). But see Waldron v. SL

Indus., Inc., 56 F.3d 491, 495 n. 6 (3d Cir. 1995). Plaintiff

has not rebutted this inference. Bradley v. Harcourt, Brace

and Co., 104 F.3d 267, 270 (9th Cir. 1996) . Instead,

plaintiff states that “with proper discovery prove in a Court

of law that their hiring was not based upon a fair hiring

practice but they were hired only to show that they were

meeting some quota under affirmative action for minorities

and females - . . .“ Response at

f These unsupported allegations do not establish that

defendant terminated plaintiff because of racial

16a

discrimination. Nothing indicates that defendant preferred

plaintiff's co-workers because of their race rather than their

competence or performance, particularly in light of

plaintiff's inadequate performance during the same period.

Because plaintiff was terminated for failing to meet

performance standards of quantity and quality, she must

prove ;hat defendant does not terminate similarly situated

white employees. in other words, white employees who fail

to meet performance standards. McDonald v. Santa Fe Trail

Transp. Co.,, 427 3.8. 273, 283 (1976); Garrett v. City of

San Francisco, 818 F.2d

1515, 1519 (9th Cir. 1987) . Plaintiff has not come forward

with any evidence that defendant retains white employees

but fires black employees who fail to meet performance

standards. Without evidence of pretext, no reasonable juror

could find by a preponderance of the evidence that plaintiff

is entitled to relief. Anderson v. Liberty Lobby, 477 U.S.

242, 252 (1986) . Accordingly, defendant is entitled to

summary judgment.

Based on the foregoing,

IT IS ORDERED granting defendant’s motion for summary

_ Judgment. (doc, #641

FURTHER ORDERED directing the Clerk of the Court to

enter judgment in accordance with this Order.

COURT JUDGE