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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1977%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 825

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1977%3A1. Public record. Not legal advice.