Petition for Writ of Certiorari — Acosta v. City of Phoenix, Arizona (No. 08-1292)
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Supreme Court, U.S.
FILED
081292 APR 15 2009
K
In The OFFICE OF THE CLER
Supreme Court of the United States
¢
LUIS ACOSTA,
Petitioner,
V.
CITY OF PHOENIX,
Respondent.
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
*
PETITION FOR A WRIT OF CERTIORARI
S
*BRUCE TYLER WICK
Attorney‘at Law
19443 Lorain Road
P.O. Box 26165
Fairview Park, OH 44126
440-331-9425
Counsel for Petitioner
*Counsel of Record
April, 2009
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
Whether in Mr. Acosta’s case, EEOC complaint pro-
ceedings proved a ruse, depriving them and court
proceedings based upon them, of all legitimacy.
Whether a “disparate treatment” test is even possible
in a segregation case.
Whether Title VII retaliation is often a form of dis-
crimination itself.
Whether Phoenix’s employees are a priceless resource
in a time of economic adversity.
ii
PARTIES TO THE PROCEEDINGS
Parties to the proceedings in the U.S. Court of
Appeals for the Ninth Circuit were the plaintiff-
appellant, Luis Acosta, an individual; and the defen-
dant-appellee, City of Phoenix, Arizona, a municipal
corporation.
There were no other parties but the two named
above.
ill
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ..................ccecc0sesssceees i
PARTIES TO THE PROCEEDINGS ...........0.0.00... re
I A ON EE EO coe. ncscnonservecssesctesscrsaseecaess ii
py ee bey 80 Ay | Vv
I Fo cncocécccnsecnsessnsssncvenscnsccesesscnsiene 1
dss ecgcphinnshackeunssandessnennvsns 1
CONSTITUTIONAL PROVISIONS, TREATIES,
STATUTES, RULES AND REGULATIONS
eas sis cayesibcesrpnetswondeverssesnconeedssssees 2
SiAtemens OF THE CASE......................c000000. 2
REASONS FOR GRANTING THE PETITION..... 8
APPENDIX
Memorandum Opinion, U.S. Court of Appeals,
9th Cir., 20 October 2008, affirming judg-
ment of U.S. District Court, D. Ariz................ App. 1
Order, U.S. District Court, D. Ariz., 4 Decem-
ber 2006, granting City’s Motion For Sum-
ni pces id inuhaveiauereschoasaskexsse App. 4
Judgment of U.S. District Court, D. Ariz., 5
EERE App. 30
Order, U.S. Court of Appeals, 9th Cir., 15
January 2009, denying Petition For Rehear-
ur cds a cdenucinbabseieisnavesbesrases App. 31
1V
TABLE OF CONTENTS —- Continued
Page
Statutes Involved
ED Fa SD ive ven vdsnsendésccasesaceranconenconies App. 32
GD UF Re. BG isa svesccitvescrdcsccossecccaseerszeces App. 32
Appellant’s Petition For Rehearing En Banc,
U.S. Court of Appeals, 9th Cir., 3 November
ae ie ee App.
Appellant’s Motion To Stop Continuing Dis-
crimination Against Luis Acosta, U.S. Court
of Appeals, 9th Cir., 1 December 2008 .......... App.
Follow-up To Appellant’s Motion To Stop Con-
tinuing Discrimination Against Luis Acosta,
U.S. Court of Appeals, 9th Cir., 18 December
SRR ane ete e NaN Meet RROIN Ree Tee et App.
EEOC Charge of Discrimination, by Luis Acosta
Against City of Phoenix, 11 March 2005....... App.
City of Phoenix Internal Memo, from Carole
Coles Henry, Director, Equal Opportunity
Dept. to Mark Leonard, Director, Public
Works Dept. re: Luis Acosta EEOC Charge,
allewinig segremation ............ccccssscsecrssesessreseees App.
Diagram and notations by Luis Acosta re:
segregated work area, presented to USS.
Court of Appeals, 9th Cir., 31 July 2007,
wh Jotional Reply Briel «...65.0ci60050cscecenssecscernnes App.
34
45
53
56
59
61
TABLE OF AUTHORITIES
Page
CASES
Crawford v. Metropolitan Government of Nash-
ville and Davidson County, 06-1595 (2009)........... 12
National Railroad Passenger Corporation v.
PEOTBAM, GOB UD. TOU (BOOZ) «.ccsccsssscsscesccssonccsescnssss 11
STATUTES
SN gio sicictssnovsssasuchidadidaitesidadsiotaadpeouand 1
Re A te ID ce pisnsnsnsersecherencerocsnaense 2, 7, 9, 10, 11
se os. ches scsanduiesesidssnasevasevatasanvaen 2, 12
OTHER AUTHORITIES
City of Phoenix, Ethics Handbook, II(E), “Dis-
al a al ces a 14
The Great Financial Crisis: Causes and Conse-
quences, by John Bellamy Foster and Fred
Magdoff, Monthly Review Press, New York
1
OPINIONS BELOW
The Memorandum Opinion of the U.S. Court of
Appeals for the Ninth Circuit, filed 20 October 2008,
is reproduced at App. 1-3.
The Order of the Court of Appeals, Ninth Circuit,
denying the Petition For Rehearing En Banc, filed 15
January 2009, is reproduced at App. 31.
The Order of the U.S. District Court, granting
summary judgment to the City of Phoenix, dated 4
December 2006, is reproduced at App. 4-29.
The Judgment of the U.S. District Court for the
District of Arizona, filed 5 December 2006, is repro-
duced at App. 30.
Each of the above-mentioned opinions, orders or
judgments is unreported.
+
JURISDICTION
The Memorandum Opinion of the U.S. Court of
Appeals, Ninth Circuit, was filed 20 October 2008.
[App. 1-3]. A timely Petition For Rehearing En Banc
was denied by Order filed 15 January 2009. [App. 31].
By this Petition, Luis Acosta invokes the jurisdic-
tion of this Court, pursuant to 28 U.S.C. § 1254(1).
¢
2
CONSTITUTIONAL PROVISIONS,
TREATIES, STATUTES, RULES
AND REGULATIONS INVOLVED
The questions presented involve the prohibitions
against discrimination and retaliation in employ-
ment, as contained in the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e-2; and 42 U.S.C. § 2000e-
3.
Both statutes are reproduced in the Appendix at
32-33, as indicated in the Table of Contents.
4
Vv
STATEMENT OF THE CASE:
Luis Acosta, age 56, is an honorably discharged,
Vietnam-era Air Force veteran. With the exception of
Mr. Acosta’s U.S. Air Force service, he has lived and
worked in Phoenix, Arizona all his life. Before going
to work for the City of Phoenix in December 1995, Mr.
Acosta operated his own TV repair and parts busi-
ness, serving the public.
Mr. Acosta’s mother and father were also born in
the US, and like Luis Acosta himself, are of Mexican
extraction and Hispanic ethnicity — as are perhaps
the majority of Arizona residents. Hispanic or Latino
culture is still highly significant to both Phoenix and
Arizona as a whole, even if no longer dominant. So,
too, is rural or agrarian culture, its habits, mores,
modes of thought and behavior.
3
Earlier in Mr. Acosta’s own lifetime, Arizona was
covered with cotton fields; watermelon, cantaloupe,
corn and sugar beets were also plentiful.
Both Hispanic and rural culture, which tended to
be the same, was profoundly respectful of the land, as
that which sustains human existence. In an urban,
industrial setting, this reverence for the land trans-
lated into an equal concern for the health and physi-
cal safety of workers and others, no longer engaged in
agricultural pursuits.
Likely the same cultural sources shaped Mr.
Acosta, as had shaped his father, who had also
worked for the City of Phoenix — providing both men
with a different view of public service. For the Acos-
tas, public service is a responsibility, which springs
from citizenship and residence (i.e., from the place,
from the land) — quite independent of whether one
holds public office or is employed by some govern-
ment entity. In this view, public office is simply a
heightened form of that public service every citizen
owes his or her community and nation.
Accordingly, Mr. Acosta has been as active in
Phoenix civic affairs after he began his City employ-
ment, as he was before. He led efforts to secure
adequate compensation for homeowners displaced by
the most recent airport expansion. He attends city
council meetings religiously — even taking time off
from work, when these are scheduled during his work
hours. No passive observer, Mr. Acosta speaks at
4
nearly every such council meeting, during the public
comment section.
The City of Phoenix, Department of Public
Works, employs Mr. Acosta as a Trades Helper, mean-
ing he assists the skilled tradesmen and -women who
work for that department. Mr. Acosta’s various social
roles — as an Hispanic, interested in environmental
and safety issues; Phoenix citizen and resident; and
city employee — have brought Mr. Acosta into occa-
sional, or even frequent, conflict with city managers,
unaccustomed to any relationship which sticks out
over the edges of basic top-down, employer-employee.
For such managers, it would not be unfair, or even
unkind, to say their ideal city employee would come
from another planet — or at least be a transplant from
another section of the country, with no roots in Arizo-
na and only slight experience.
On 11 March 2005, Mr. Acosta complained to the
Phoenix Office of the EEOC, that,
“
... ’m being subjected to harassment in
the form of being segregated in my position
of Trades Helper.” [App. 57].
Mr. Acosta had other complaints, as well:
“IT have no Employee performance review
goals (EPAR) in my current position of eight
months. I’m being supervised by a non-
traditional supervisor who oversees the City
planners only.” [Id.].
5
Both the “segregation” and the other forms of discrim-
ination complained of were said to be,
“
. retaliation for reporting a half million
dollars of mishandled product not in the best
interest of the public good.” .. . and “because
of my national origin (Mexican-American)
... and because of my Intelligence in the
work place.” [App. 57-58].
In a later filing, in the Court of Appeals, Mr. Acosta
described his “segregation”:
“I replaced Duke French, a white man, in the
City’s HVAC program [Heating-Ventilation-
Air Conditioning]. The HVAC unit had a
locker room, a spacious office, work stations
and meeting room for its ten members, in-
cluding its foreman. Despite the fact I was
replacing Duke French; I was stationed out-
side the HVAC unit, all by myself, in a se-
cured CAGED area of a WAREHOUSE!
To further drive home the point I was not a
member of the HVAC unit, despite my re-
placing a member of it; I reported — not to
the HVAC foreman, but to the Building Su-
perintendent for all the various trades
housed in the building (almost 100 em-
ployees).” [App. 38-39, emphasis in the origi-
nal].
Mr. Acosta submitted photos to the Court of Appeals
of what looks suspiciously like confinement, and also
a diagram [App. 61] of his “work station,” complete
with desk.
6
The response of officialdom, to Mr. Acosta’s
charge of workplace segregation and humiliation, has
been instructive. By formal or informal arrangements
between the EEOC and the City of Phoenix, Mr.
Acosta’s Charge of Discrimination [App. 56-58] was
referred to City’s Equal Opportunity Department,
which in turn referred it to the Director of the Public
Works Department, where Mr. Acosta worked.
However, the referral between City departments
makes clear Mr. Acosta’s complaints will not be taken
seriously, either by the EEOC or by the City of Phoenix:
“At this time no response is necessary. How-
ever, the department should gather and
maintain all information relevant to the al-
legations in the event that a response is re-
quired in the future.” [App. 59].
Apparently, there was no request, from EEOC to
the City, for a response to Mr. Acosta’s charge of
segregation in the workplace; nor was one provided
without a request. The City’s own Equal Opportunity
Department, which received the EEOC Charge, hardly
saw that Charge as a opportunity to investigate, on its
own, the circumstances that gave rise to Mr. Acosta’s
seeking federal assistance and intervention.
Similarly, the lower federal courts have treated
Mr. Acosta’s charge of segregation in the same off-
hand, even care-free, way. The District Court suggests
variously that (1) segregating Mr. Acosta was justified
by co-worker complaints and a petition from five
years ago — a co-worker petition possibly prompted
7
by management itself [App. 5-6]; or (2) segregation
was part-and-parcel of the job, and in any event
beneficial (or at least not harmful) to Mr. Acosta.
[App. 9-13, 23-25].
Although the co-worker petition is irrelevant to
the segregation issue, Mr. Acosta is prepared to
demonstrate at trial the petition’s falsity, whoever
may have prepared that petition.
Following the lead of the District Court, the
Court of Appeals held that even with workplace
segregation, Mr. Acosta had,
be
... failed to demonstrate an adverse em-
ployment action and therefore failed to make
a prima facie case of discrimination or retali-
ation.” [App. 2].
Significantly, neither lower federal court will use
the word “segregate” or “segregation,” except in two
instances. First, the District Court quotes the statu-
tory language prohibiting segregation in the
workplace. [App. 21]. 42 U.S.C. § 2000e-2. [App. 32].
The statute uses the verb, “to segregate.” [Id.] Second,
the District Court quotes a union grievance filed by
Mr. Acosta, in which Mr. Acosta says he was “segre-
gated, intimidated, as well as stressed about being
ostracized.” [App. 13].
Mr. Acosta has included his Petition For Rehearing
En Banc, as part of the Appendix to this Petition. [App.
34-44]. He respectfully incorporates it by reference
8
into this Statement of the Case, with the request the
Court consider it as part of his Statement.
¢
REASONS FOR GRANTING THE PETITION
1. In Mr. Acosta’s case, EEOC complaint pro-
ceedings proved a ruse, depriving them
and court proceedings based upon them, of
all legitimacy.
Mr. Acosta filed a Charge of Discrimination with
the EEOC, alleging among other things, segregation
in the workplace. [App. 56-58]. EEOC sends Mr.
Acosta’s Charge of Discrimination to the City of
Phoenix, but never demands a response to it, much
less conducts an investigation! [App. 59-60].
With only Mr. Acosta’s unanswered Charge of
Discrimination before it, the EEOC then,
“denied the charge because [according to the
District Court] it could not conclude that a
violation had occurred. A right-to-sue letter
was issued on March 31, 2005.” [App. 14].
Was the District Court aware, or for that matter
the Court of Appeals, that EEOC’s “conclusion” was
completely arbitrary — without the slightest legal or
factual support?
2. A “disparate treatment” test is impossible
in a segregation case.
The District Court correctly quotes the statute
prohibiting segregation in the workplace:
Title VII makes it unlawful for an em-
ployer to “limit, segregate, or classify his
employees nor applicants for employment in
any way which would deprive or tend to de-
prive any individual of employment oppor-
tunities or otherwise adversely affect his
status as an employee because of such indi-
vidual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(2). [App. 21].
Having quoted the pertinent statute successfully,
the District Court then uses a “disparate treatment”
test in applying it. [App. 21]. The practical effect of
applying this test: workplace re-segregation of the
protected class is no longer even presumptively
illegal! [App. 21].
Employers wishing to re-segregate their work-
forces, along lines of race or national origin, will no
doubt be delighted to learn they now have impeccable
legal sanction for doing so. In the District Court’s
view evidently, such re-segregation would not “ad-
versely affect [one’s] status as an employee.” 42
U.S.C. § 2000e-2(a)(2), emphasis added. Nor appar-
ently, does segregation in the workplace adversely
affect “terms, conditions, or privileges of employ-
ment.” 42 U.S.C. § 2000e-2(a)(1). Whatever became of
construing civil rights statutes liberally, to give full
10
effect to their obvious, even stated, purposes? At least
construe them, according to their plain meaning!
A moment’s reflection should convince a “dispa-
rate treatment” test cannot possibly work in a segre-
gation case. To pick a simple example, once an
employer re-segregates the firm’s black employees, it
automatically re-segregates the white employees, as
well. Hence, everyone is treated the same under a re-
segregated regime!
But the District Court goes even further by, in
effect, carving out very flexible exceptions to segrega-
tion in the workplace — any segregation which is
arguably beneficial, or at least not harmful, to em-
ployees. [App. 9-13, 23-25].
In fact, the City did not pay Mr. Acosta at the
same rate as the man he supposedly replaced, for a
period of about six months. So, in addition to the
segregation, there was a financial component to the
overall discrimination in Mr. Acosta’s case. [App. 39].
But even forgetting about “status,” or “terms,
conditions, and privileges”; the “employment oppor-
tunities” 42 U.S.C. § 2000e-2(a)\(2) contemplates
extend far beyond a paycheck:
<< “We have repeatedly made clear that
although [Title VII] mentions specific em-
ployment decisions with immediate conse-
quences, the scope of the prohibition ‘is not
limited to “economic” or “tangible” discrimi-
nation,” Harris, [510 U.S., at 21] (quoting
Meritor Savings Bank, FSB v. Vinson, [477
11
U.S., at 64], and that it covers more than
‘terms’ and ‘conditions’ in the narrow con-
tractual sense.” Faragher v. Boca Raton, 524
U.S. 775, 786 (1998) (quoting Oncale v. Sun-
downer Offshore Services, Inc., 523 U.S. 75,
78 (1998)).
As the Court stated in Harris, “[t]he phrase
‘terms, conditions, or privileges of employ-
ment’ [of 42 U.S.C. § 2000e-2(a)(1)] evinces a
congressional intent ‘to strike at the entire
spectrum of disparate treatment of men and
women’ in employment, which includes re-
quiring people to work in a discriminatorily
hostile or abusive environment.” 510 U.S., at
21 (some internal quotation marks omitted)
(quoting Meritor, 477 U.S., at 64, in turn
quoting Los Angeles Dept. of Water and Pow-
er v. Manhart, 435 U.S. 702, 707, n.13
(1978)).
“Workplace conduct is not measured in isola-
tion... .” Clark County School Dist. v. Bree-
den, 532 U.S. 268, 270 (2001) (per curiam).
Thus, “[w]hen the workplace is permeated
with ‘discriminatory intimidation, ridicule,
and insult,’ that is ‘sufficiently severe or per-
vasive to alter the conditions of the victim’s
employment and create an abusive working
environment,’ Title VII is violated.” >> Har-
ris, 510 U.S. at 21 (internal citations omit-
ted). [National Railroad Passenger Corporation
v. Morgan, 536 U.S. 101, 115-116 (2002)].
12
3. Title VII retaliation is often a form of dis-
crimination itself.
In Crawford v. Metropolitan Government of
Nashville and Davidson County, 06-1595 (2009), this
Court reinvigorated Title VII’s anti-retaliation provi-
sion’s “Opposition Clause,” by affirming its operation
independent of official proceedings:
The Title VII anti-retaliation provision has
two clauses, making it “an unlawful em-
ployment practice for an employer to discri-
minate against any of his employees ... [1]
because he has opposed any practice made
an unlawful employment practice by this
subchapter, or [2] because he has made a
charge, testified, assisted, or participated in
any manner in an investigation, proceeding,
or hearing under this subchapter.” 42
U.S. C. §2000e-3(a). The one is known as the
“opposition clause,” the other as the “partici-
pation clause,” and Crawford accused Metro
of violating both. ...
The opposition clause [of Title VII's anti-
retaliation provision] makes it “unlawful ...
for an employer to discriminate against any
. employele] ... because he has opposed
any practice made ... unlawful ... by this
subchapter.” §2000e-3(a). The term “oppose,”
being left undefined by the statute, carries
its ordinary meaning, Perrin v. United
States, 444 U.S. 37, 42 (1979): “to resist or
antagonize ... ; to contend against; to con-
front; resist; withstand,” Webster’s New In-
ternational Dictionary 1710 (2d ed. 1958).
13
Although these actions entail varying ex-
penditures of energy, “resist frequently im-
plies more active striving than oppose.” Ibid.;
see also Random House Dictionary of the
English Language 1359 (2d ed. 1987) (defin-
ing “oppose” as “to be hostile or adverse to,
as in opinion”).
Mr. Acosta’s EEOC Charge of Discrimination
moves easily between the various legal concepts,
related as they are. He speaks of “harassment in the
form of being segregated in my position of Trades
Helper”; of having received “no employee performance
review goals (EPAR) in my current position of eight
months”; and “of being supervised by a _ non-
traditional employee who oversees the City planners
only.” [App. 57].
The foregoing, Mr. Acosta charges, was simple
“retaliation for reporting a half million dollars of
mishandled product not in the best interest of the
public good.” [Id.]. But the deeper ca ise of all the
discrimination, retaliation and harassment is “my
national origin (Mexican-American), “because of my
Intelligence in the work place....” [App. 58]. Evi-
dently, Phoenix has a quota, perhaps even a ban, on
intelligent Hispanics in the workplace — or at least on
Hispanics using their native or acquired intelligence!
4. Phoenix’s employees are a priceless re-
source in a time of economic adversity.
“The equality of opportunity ... is a central
factor in achieving efficient public service
14
and good morale. It is the responsibility of all
City employees, members of boards, commis-
sions and committees and the City Council,
to help create an environment, where all
members, employees and citizens are res-
pected and valued.” [City of Phoenix, Ethics
Handbook, IIE), “Discrimination,” “Com-
ment (last two sentences)” J.
Achieving and maintaining “efficient public
service and good morale” should be easier in good
economic times than bad. So, too, should be “creat[ing]
an environment, where all members, employees and
citizens are respected and valued.”
So, as City of Phoenix officials meet with City
employees and residents, in an endless round of
budget cuts and facility closings, urging them to
“shared sacrifice” and “to do more with less”; what
goes unsaid is that all concerned, including the
managers themselves, will need to make up the
shortfall in cash by giving more of themselves, in
time, attention, and thought directed at collective
problems.
This time, some believe half-measures will simp-
ly not suffice. In The Great Financial Crisis: Causes
and Consequences, by John Bellamy Foster and Fred
Magdoff, Monthly Review Press, New York (2009), the
authors quote the economist, John Kenneth Gal-
braith, writing in 2004:
“The one wholly reliable remedy for recession
is a solid flow of consumer demand. Failure
in such a flow is a recession. In the United
15
States especially with stagnation and reces-
sion, the lower income citizen has an acute
need for education, health care, a basic fami-
ly income in one form or another.” [Great Fi-
nancial Crisis, at 22].
The authors then ask, “Would a concerted spend-
ing program devoted to these ends bring the crisis to
an end?” Even their short answer “is complex.” [Id.].
“Nevertheless, if such a movement for radi-
cal reform [a new New Deal, carried out in a
radical spirit, such as the Works Progress
Administration in the late 1930s] were
actually tried and yet failed (we think in-
evitably) to remove the injustices and irra-
tionalities of the system, there wou'd be no
need to go back to square one. Rather the
population would be fully justified in such a
case in pushing forward and concluding that
the entire political-economic structure should
be replaced, brick by brick, with another that
would meet their genuine needs and be un-
der their democratic control: a system of so-
cial use rather than private gain.” [Great
Financial Crisis, at 18].
So, power will return to popular hands, as it
always does in time of crisis, before being given out
again. But given out to whom?
Perhaps it is time the City of Phoenix began
“valuing and respecting” men such as Luis Acosta.
16
This Court could encourage the process by granting
the Petition.
Respectfully submitted,
*BRUCE TYLER WICK
Attorney and Counselor at Law
19443 Lorain Road
P.O. Box 26165
Fairview Park, Ohio 44126
Counsel for Petitioner
*Counsel of Record
April, 2009
App. 1
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS ACOSTA, No. 07-15195
Plaintiff-Appellant, D.C. No.
m CV-05-01810-NVW
CITY OF PHOENIX, MEMORANDUM*
a municipal corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Submitted October 16, 2008.**
(Filed Oct. 20, 2008)
Before: LEAVY, RYMER, and THOMAS, Circuit
Judges.
Luis Acosta appeals pro se from the district
court’s summary judgment in his action alleging
employment discrimination and retaliation in viola-
tion of Title VII of the Civil Rights Act of 1964. We
have jurisdiction pursuant to 28 U.S.C. § 1291. We
* This disposition is not appropriate for publication and is
not precedent except as provided by 9th Cir. R. 36-3.
** The panel unanimously finds this case suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
App. 2
review de novo, Peterson v. Hewlett-Packard Co., 358
F.3d 599, 602 (9th Cir. 2004), and may affirm on any
basis supported by the record, Valdez v. Rosenbaum,
302 F.3d 1039, 1043 (9th Cir. 2002). We affirm.
The district court properly granted summary
judgment on Acosta’s discrimination and retaliation
claims relating to his transfer to Salt River Service
Center because he failed to make any reference to
that transfer in his Equal Employment Opportunity
Commission (“EEOC”) Charge of Discrimination. See
Green v. Los Angeles County Superintendent of Schs.,
883 F.2d 1472, 1475-76 (1989) (explaining that the
court could not consider a Title VII claim when the
plaintiff did not exhaust his administrative remedies
for an incident that was not “like or reasonably
related to” the allegations in his EEOC Charge of
Discrimination).
The district court properly granted summary
judgment on Acosta’s discrimination and retaliation
claims relating to his transfer to the Metro Facilities
Division and his work-station assignments because
he failed to demonstrate an adverse employment
action and therefore failed to make a prima facie case
of discrimination or retaliation. See Peterson, 358
F.3d at 603 (explaining that the plaintiff alleging
discrimination has the burden of showing that he
experienced an adverse employment action); Porter v.
Cal. Dep’t of Corr., 419 F.3d 885, 894 (9th Cir. 2005)
(same, retaliation case).
App. 3
We do not consider Acosta’s contention that the
City violated his First Amendment rights. See Smith
v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“As a
general rule, we will not consider arguments that are
raised for the first time on appeal.”).
We deny the City’s motion to strike Acosta’s reply
brief.
AFFIRMED.
App. 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Luis Acosta, an individual, ) No.
Plaintiff, CV-05-1810-PHX-NVW
a ORDER
City of Phoenix, a )
municipal corporation,
Defendant. :
Pending before the court is Defendant’s Motion
for Summary Judgment (Doc. # 34).
I. Background
This case is the latest in a long and diverse line
of actions brought by Plaintiff Luis Acosta (“Acosta”)
against Defendant City of Phoenix (“City”). In De-
cember 1994, Acosta, a Mexican American, began
employment as a “trades helper” at the Skunk Creek
Landfill, a facility maintained by the City’s Depart-
ment of Public Works. Acosta’s job required him to
handle plumbing repairs at the landfill and assist
carpenters, mechanics, and other skilled trades
workers in the performance of their duties.
Between May and July 2001, Acosta submitted to
the United States Environmental Protection Agency
and the Arizona Department of Environmental Quali-
ty several notices of alleged City violations of federal
App. 5
environmental laws. Acosta sought the support of his
co-workers in filing these actions.
For a variety of reasons, Acosta’s behavior
created an atmosphere of hostility between himself
and other landfill employees. On July 12, 2001,
sixteen of Acosta’s co-workers submitted a signed
statement to the Department of Public Works calling
for disciplinary action against him. The statement
read:
We, employees of the City of Phoenix Skunk
Creek Landfill, feel that Luis Acosta is creat-
ing a non-conducive work environment. His
behavior toward his fellow co-workers is not
only making us feel like we are walking on
eggshells, but is also making us feel we have
to continually look over our shoulders due to
his constant distractions and accusations.
We find this demeaning toward all the em-
ployees at the landfill.
His attitude toward his fellow co-workers
does not demonstrate a team environment or
a healthy work atmosphere. Not only is this
annoying, it has created morale, production
and work ethic problems.
We are respectfully requesting that the City
of Phoenix take appropriate action toward
Mr. Acosta’s behavior to correct the hostile
environment he has created at the landfill.
Doc. # 35, Exhibit 1. On July 25, 2001, four additional
co-workers signed a joint statement which read:
App. 6
We the undersigned have requested the Fore-
men at Skunk Creek Landfill not to assign
us to work with Mr. Luis Acosta for the fol-
lowing reasons:
1. Mr. Acosta treats us with lack of mutual
respect when we are assigned to work
with him.
2. Mr. Acosta has requested personal in-
formation from us on numerous occa-
sions for a purpose unknown to us.
3. Mr. Acosta continues to tell us to partici-
pate in actions with the landfill and
management in which we do not agree
with or wish to partake in. Despite our
requests for him to stop he continues to
tell us to participate in these actions.
Doc. # 35, Exhibit 1. All of the employees who signed
these statements were male; several were also His-
panic.
Problems persisted after the submission of these
complaints. On July 26, 2001, Acosta filed notice of an
alleged safety hazard with the Industrial Commission
of Arizona’s Division of Occupational Safety & Health.
The notice alleged that safety rails on a machine used
for trash extraction at Skunk Creek were missing,
causing the machine to be unsafe. Acosta requested
that his identity as the filer of the notice not be
revealed to the City because he “want[ed] protection,”
and because “disparate treatment already exist[ed] in
[his] work place.” Doc. # 40, Exhibit 3.
App. 7
In August 2001, Acosta was transferred to the
Salt River Service Center and informed that he was
being investigated for creating a hostile work envi-
ronment at Skunk Creek. Acosta performed tasks at
Salt River not typically assigned to trades helpers
and considered his new position a demotion. City
Public Works Director Mark Leonard, who was in-
volved in the decision to transfer Acosta, explains
that the action was taken because of “safety concerns”
and a “petition/complaint .. . received from numerous
co-workers of Mr. Acosta.” Doc. # 35, Exhibit 3 at 2.
No City employee ever stated that Acosta was trans-
ferred to Salt River because of the claims he had filed
against the City or because he is Hispanic.
Upon completion of its investigation, the City
filed a disciplinary notice on October 5 that sus-
pended Acosta from his employment for October 8-9,
2001. The notice articulated several justifications for
the suspension. First, it explained that Acosta had
violated City personnel rules against insubordination
and the “incompetent or inefficient” performance of
job duties by failing to repair broken toilets at Skunk
Creek facilities. Doc. # 40, Exhibit 4. The notice also
stated that Acosta had committed a “gross violation of
established procedures” by neglecting to notify man-
agement of hazardous materials suspected of being
dumped at the landfill. Jd. The notice further stated
that Acosta had shown “continuing negative beha-
vior” by raising unfounded complaints of safety
violations against the City and “creating a hostile
work environment” for his co-workers. Jd. In support
App. 8
of the latter conclusion, tke notice cited the memo-
randum filed with Skunk Creek’s management by
Acosta’s
co-workers on July 25, 2001. It was found that Acos-
ta’s behavior violated a City personnel rule against
“abusive or threatening” conduct toward fellow em-
ployees. Id. Acosta signed the statement describing
these violations, but below his signature added, “I
don’t agree with above statement and sign under
protest.” Id.
The City’s Civil Service Board upheld the discip-
linary action on February 25, 2002. The Board found
that Acosta had been “suspended for several incidents
of inapprepriate and disruptive conduct contributing
to creating a hostile work environment for some of his
coworkers; negligence in carrying out his job duties;
reporting false safety and hazardous dumping viola-
tions without first notifying his supervisor; and
inappropriately soliciting coworkers and contractors
to take action to discredit the City.” Doc. # 40, Exhibit
5.
In April 2002, Acosta filed a grievance with the
City’s Equal Opportunity Department, complaining
that his transfer to the Salt River Service Center
manifested discrimination on the basis of national
origin. The Department’s investigative summary
found otherwise, explaining that, based on the pre-
liminary information and documentation it had
received, “there [was] no identifiable basis for con-
ducting an investigation into Acosta’s allegation.”
App. 9
Doc. # 35, Exhibit 2. The summary concluded as
follows:
A preliminary review of the evidence sup-
ports a reasonable inference that Mr. Acosta’s
relocation was due to his coworker’s [sic]
complaints. The nineteen [sic] coworkers
whose signatures are found on the grievance
against Acosta represent a diverse gruup in
several protected categories. In fact, three of
the coworkers who lodged a complaint
against Acosta are members of the same pro-
tected groups.... There is no evidence to
suggest that Acosta’s gender (male), age (42),
or national origin (Hispanic) are related to
his transfer.
Doc. # 35, Exhibit 2.
Acosta was suspended a second time on January
2, 2003. The basis for this action was that Acosta had
violated a directive of the Public Works Director by
attending a City Council meeting to voice discontent
with his transfer and prior suspension. The Civil
Service Board rescinded the second suspension after
finding it unwarranted. Doc. # 40, Exhibit 6.
In July 2004, Acosta appeared at a City Council
meeting to complain that the Department of Public
Works had misused funds by failing to recover an
unspecified form of “warranty money” in the “best
interest of the taxpayers.” Doc. # 35, Exhibit 6 at 21.
From the submissions of the parties, it is unclear how
the City Council responded to the allegation.
App. 10
Also in July 2004, a building maintenance work-
er at the Metro Facilities Division of the City’s Public
Works Department took an extended leave of absence
due to disability. The City assigned Acosta to fill the
worker’s position in early August, which put Acosta in
charge of changing filters on air conditioners in all
City-owned buildings. The letter of assignment stated
that the job would likely last six to twelve months,
and that Acosta’s “salary and benefits [would] not be
affected as a result of [the] transfer.” Doc. # 40, Exhi-
bit 7. Acosta retained his title of trades helper in
carrying out the new assignment. Public Works
Director Mark Leonard chose Acosta to fill the vacan-
cy because Acosta had previously expressed an inter-
est in working closer with skied tradespeople, and
the job would allow him to gain that experience. Doc.
# 35, Exhibit 3 at 2-3. Acosta accepted the assignment
because he felt it “would be a great opportunity to
learn new skills, meet new individuals and assist
[the] department in an area of need.” Doc. # 40,
Exhibit 8 at 2. No City employee ever told Acosta that
he was transferred to the Metro Facilities Division
because of the various claims he had filed against the
City or because he is Hispanic. Doc. # 35, Exhibit 6 at
25.
Acosta began working at the Metro Facilities
Division on August 2, 2004. At the time, space in the
Division’s building was partly apportioned to admin-
istrative offices; partly apportioned to a heating,
ventilation, and air-conditioning shop; and partly
apportioned to a building maintenance shop. The
App. 11
building also contained a warehouse. Some parts of
the building were air conditioned, while others relied
on swamp coolers for temperature control. Facilities
Maintenance Superintendent Loren Pike assigned
Acosta to a desk located in the warehouse, a portion
of the building that used a swamp cooler and con-
tained the air filters Acosta would need to complete
his job. Other employees were also assigned to the
warehouse area, although none of them were em-
ployed in Acosta’s line of work.
Pike explained that: he assigned Acosta to the
warehouse because Acosta’s position required him “to
be out in the field almost 100% of the time,” and he
“only needed a ‘work station’ as a place to report in
the mornings and a place to complete paperwork that
would be necessary at the close of the day.” Doc. # 35,
Exhibit 4 at 2. He also explained that the assignment
was motivated by the practical advantage of locating
Acosta in close proximity to his supplies. Pike had no
prior contact with Acosta, but was aware of co-worker
complaints in connection with Acosta’s prior work at
Skunk Creek. No City employee ever stated that
Acosta was assigned to the warehouse because of his
ethnicity or because he had previously filed claims
against the City.
On August 4, shortly before starting time, Pike
noticed that Acosta was not sitting at his assigned
location, so he repeated the instruction that Acosta
was to report to his assigned desk in the warehouse.
Acosta believes that, after this encounter, Pike “began
... placing judgment” upon him without allowing any
App. 12
time “to get to know [him] as an employee or individ-
ual.” Doc. # 40, Exhibit 11. Several weeks later,
Acosta advised his supervisor that he feit “ostracized
and segregated against” because of the location of his
desk and that he would contact Mark Leonard to
discuss the issue that night. Jd. In response to Acos-
ta’s complaint, the Division moved Acosta out of the
warehouse and into an air-conditioned cubicle located
in close proximity to front-office personnel. Acosta
then complained that the new location segregated
him from employees engaged in his line of work.
Acosta then filed two grievances against the City
in connection with his work at the Metro Facilities
Division. In the first, filed with the Public Works
Department on November 29, 2004, he alleged that
because building maintenance workers are paid at
higher rates than are trades helpers, the City was
underpaying him by retaining his previous pay while
tasking him with the responsibilities of a building
maintenance worker. He requested a pay increase to
match his new responsibilities. Doc. # 40, Exhibit 8.
The Public Works Department initially denied Acos-
ta’s request on December 6, 2004, on the ground that
his job did not include the “higher-level duties of a
Building Maintenance Worker.” Doc. # 40, Exhibit 9.
However, the grievance was subsequently upheld,
and the requested compensation was granted in full
on December 15, 2004. Doc. # 40, Exhibit 10.
Acosta filed a second grievance in connection
with his job at Metro Facilities Division on February
3, 2005. The basis for this action was that Pike had
App. 13
required him to work in the warehouse, an area that
was allegedly isolated and that used a swamp cooler
rather than an air conditioner. Observing that other
personnel worked in close proximity to others and in
air-conditioned environments, Acosta stated that he
felt “segregated, intimidated as well as stressed about
being ostracized.” Doc. # 40, Exhibit 11. As a remedy,
he requested to be located with the “building main-
tenance employee group.” /d.
Acosta’s second grievance was denied by the
City’s Public Works Department as untimely because
it concerned events that occurred in August 2004.
Doc. # 40, Exhibit 12. The grievance was also denied
because Acosta had already been moved out of the
warehouse and into an air-conditioned cubicle along-
side the Metro Facilities Division’s office staff. Acosta
expressed dissatisfaction with the denial on the
ground that the alleged violation was ongoing. /d.
On March 11, 2005, Acosta filed a charge of
discrimination with the Equal Employment Opportu-
nity Commission (“EEOC”), claiming retaliation and
discrimination on the basis of national origin. The
basis for the charge was that he was being “super-
vised by a non-traditional supervisor who oversees
... City planners only.” Doc. # 35, Exhibit 7. Acosta
further stated that he believed he was being reta-
liated against for “reporting a half million dollars of
mishandled product not in the best interest of the
public good,” and that “because of my national origin
(Mexican-American) [the City] is discriminating
against me because of my intelligence in the work
App. 14
place.” Doc. # 40, Exhibit 2. The charge indicated that
the latest date of the cited discrimination was March
11, 2005, and that the discrimination was not ongo-
ing. Id. The EEOC denied the charge because it could
not conclude that a violation had occurred. A right-to-
sue letter was issued on March 31, 2005.
Acosta now argues that the City has discrimi-
nated against him on the basis of national origin by
“reassigning him to new work areas and keeping him
apart and separate from his co-workers,” in violation
of 42 U.S.C. § 2000e-2(a)(2) (Count I). Doc. # 1 at 5.
He contends that the same conduct also constitutes
retaliation in violation of 42 U.S.C. § 2000e-3(a)
(Count II). Defendant moves for summary judgment
under Federal Rule of Civil Procedure 56.
II. Standard of Review
Rule 56 of the Federal Rules of Civil Procedure
provides that summary judgment is proper when “the
pleadings, depositions, answers to interrogatories,
and admissions on file, together with 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.” Fed. R. Civ. P. 56(c).
The party seeking summary judgment bears the
initial burden of informing the court of the basis for
its motion and identifying those portions of the plead-
ings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of any
App. 15
genuine issue of material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Where the moving
party has met its initial burden with a properly
supported motion, the party opposing the motion
“may not rest upon the mere allegations or denials of
his pleading, but ... must set forth specific facts
showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1985).
The Court must evaluate a party’s motion for
summary judgment construing the alleged facts with
all reasonable inferences favoring the nonmoving
party. See Baldwin v. Trailer Inns, Inc., 266 F.3d
1104, 1117 (9th Cir. 2001). The evidence presented by
the parties must be admissible. Fed. R. Civ. P. 56(e).
Conclusory and speculative testimony in affidavits
and moving papers is insufficient to raise genuine
issues of fact and to defeat summary judgment.
Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730,
738 (9th Cir. 1979).
Ill. Analysis
A. Timeliness of the EEOC Charge
1. 42 U.S.C. § 2000e-5(e)(1)
Generally, a plaintiff asserting claims under Title
VII must file an administrative charge with the
EEOC “within one hundred and eighty days after the
alleged unlawful employment practice occurred.” 42
U.S.C. § 2000e-5(e)(1). However, where the plaintiff
first “instituted proceedings with a State or local
App. 16
agency with authority to grant or seek relief,” the
Title VII claim must be filed with the EEOC “within
three hundred days after the alleged unlawful em-
ployment practice occurred.” Jd. To trigger the appli-
cation of the 300-day limitations period, the state or
local agency with which the plaintiff’s grievance was
initially filed must satisfy the following qualifica-
tions:
(1) That the State or political subdivision
has a fair employment practice law which
makes unlawful employment practices based
upon race, color, religion, sex, national origin
or disability; and
(2) That the State or political subdivision
has either established a State or local au-
thority or authorized an existing State or lo-
cal authority that is empowered with respect
to employment practices found to be unlaw-
ful, to do one of three things: To grant relief
from the practice; to seek relief from the
practice; or to institute criminal proceedings
with respect to the practice.
29 C.F.R. § 1601.70(a). An agency that satisfies these
requirements may be formally designated a “Fair
Employment Practices” (“FEP”) agency if it “submits
a written request to the Chairman of the [Equal
Employment Opportunity] Commission.” 29 C.F.R.
§ 1601.70(b). Alternatively, if the Commission is “aware
that an agency or authority meets the ... criteria
for FEP agency designation [in § 1601.70(a)], the
Commission shall defer charges to such agency or
App. 17
authority even though no request for FEP agency
designation has been made.” /d.
Defendant argues that Plaintiff’s claims are
time-barred under 42 U.S.C. § 2000e-5(e)(1). In the
action filed with the EEOC on March 11, 2005, Acosta
stated that the Metro Facilities Division forced him to
work in an isolated warehouse that used a swamp
cooler. This alleged segregation began on the first day
of his employment with the Division: August 2, 2004.
The time between August 2, 2004, and March 11,
2005, is 221 days. Thus, if the 300-day limitations
period governs, Plaintiff’s claims were timely filed
with the EEOC. If the 180-day period governs, Plain-
tiff’s claims were untimely in the absence of some
other justifying circumstance.
Applying 42 U.S.C. § 2000e-5(e)(1), Acosta had
only 180 days to file his charge with the EEOC. The
300-day limitations period only governs if a plaintiff
first instituted an action with a “State or local agency
with authority grant or seek relief.” 42 U.S.C.
§ 2000e-5(e)(1). Plaintiff’s employee grievance was
filed with the City’s Department of Public Works on
February 3, 2005. While the Phoenix Department of
Public Works may appear to fall under the statutory
terms that trigger the 300-day period, the regulations
that implement 42 U.S.C. § 2000e-5(e\(1) indicate
otherwise. 29 C.F.R. § 1601.74(a) lists all agencies
that have received the “FEP agency” designation. The
only such agency from the state of Arizona is the
Arizona Civil Rights Division. Jd. Additionally, there
is no record evidence that the City’s Department of
App. 18
Public Works actually petitioned the EEOC for FEP
designation, or that the EEOC was otherwise aware
that the Department met the criteria for that desig-
nation. As a result, 29 C.F.R. § 1601.70(b) precludes
the Department of Public Works from operating as a
“state or local agency with authority to grant or seek
relief” under 42 U.S.C. § 2000e-5(e)(1), and the 180-
day period applies.
42 U.S.C. § 2000e-5(e)(1)’s 180-day limitations
period has been held applicable in closely analogous
circumstances. In Branco v. Massachusetts Depart-
ment of Revenue, 2000 U.S. Dist. LEXIS 16249 (D.
Mass. Nov. 2, 2000), the plaintiff filed a complaint
alleging employment discrimination with the Massa-
chusetts Civil Service Commission. Two hundred and
sixty days after the last act of alleged discrimination,
the plaintiff grew impatient with the lack of progress
in his claim before the Civil Service Commission, so
he filed a charge with the EEOC. It was found, how-
ever, that the claims filed with the Civil Service
Commission did not toll the limitations period under
42 U.S.C. § 2000e-5(e)(1). While the Commission
appeared to satisfy the facial requirements of the
statute, it was not listed as an FEP agency in 29
C.F.R. § 1601.74(a), and there was no indication in
the record that the Commission had actually peti-
tioned the EEOC for FEP designation or that the
EEOC was aware that the Commission met the
criteria for FEP designation in 29 C.F.R. § 1601.70(a).
Id. at *6-7.
ii iiaiiaiiailea dean eeneaniieneiieaieeedalll
App. 19
2. The Continuing Violation Doctrine
Acosta attempts to salvage his claims by arguing
that even if the 180-day limitations period applies,
his March 11 complaint of harassment was timely
because it concerned an “ongoing condition” that
persisted within the 180-day period. He identifies this
condition as the “denial of the privilege to be able to
work with co-employees who performed the same or
similar job duties.” Doc. # 39 at 6.
The argument is unpersuasive. Discrete acts of
discrimination that occur outside the statutory time
period may not be considered in evaluating a Title VII
claim. Nat’ R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 113-14 (2002). An employer’s rejection of a
proposed accommodation is not an ongoing condition,
but rather a discrete act. Cherosky v. Henderson, 330
F.3d 1248, 1247 (9th Cir. 2003). Even though the
effect of the denial “continues to be felt by the em-
ployee for as long as he remains employed,” the
denial is deemed to occur exclusively on the date on
which the employee’s proposal is rejected. Jd. at 1248
(quoting Elmenayer v. ABF Freight Sys., Inc., 318
F.3d 130, 134-35 (2nd Cir. 2003)). The record indi-
cates that Acosta requested to be located with build-
ing maintenance workers during the week of August
31, 2004, and that his request was tacitly denied.
Doc. # 40, Exhibit 11. From this evidence, it is appar-
ent that the proposed accommodation was rejected at
least 190 days before Acosta filed a charge before the
EEOC.
App. 20
For these reasons, and because there is no dis-
pute of material fact concerning the dates at issue,
Acosta’s claims are time-barred by 42 U.S.C. § 2000c-
5(e)(1). Summary judgment will be granted.
B. The Merits
Even if Acosta hypothetically filed his charge of
discrimination with the EEOC in a timely fashion, his
claims cannot survive the Motion for Summary
Judgment. Lawsuits arising under Title VII of the
Civil Rights Act of 1964 are subject to a three-stage
burden-shifting analysis. Snead v. Metro. Prop. &
Cas. Ins. Co., 237 F.3d 1080, 1093 (9th Cir. 2001).
First, the plaintiff shoulders the burden of proving a
prima facie case of discrimination by a preponderance
of the evidence. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973); Tex. Dep't of Cmty. Affairs uv.
Burdine, 450 U.S. 248, 253 (1981). Once the plaintiff
has created a presumption of unlawful discrimina-
tion, the burden of production, but not persuasion,
shifts to the defendant to articulate a legitimate, non-
discriminatory reason for its adverse employment
action. McDonnell Douglas, 411 U.S. at 802. If the
employer satisfies this burden, the plaintiff must
then prove by a preponderance of the evidence that
the reasons advanced by the defendant constitute
mere pretext for unlawful discrimination. Id .
“As a general matter, the plaintiff in an employ-
ment discrimination action need produce very little
evidence in order to overcome an employer’s motion
App. 21
for summary judgment.” Chuang v. Bd. of Trustees,
225 F.3d 1115, 1124 (9th Cir. 2000). Nevertheless, the
plaintiff must still raise a genuine issue of material fact
that the defendant's legitimate, non-discriminatory
reason for her termination was pretextual. Snead,
237 F.3d at 1094. The plaintiff may demonstrate
pretext either directly, by persuading the court that a
discriminatory reason more likely motivated the
employer, or indirectly, by showing that the employ-
er’s proffered explanation is unworthy of credence. Jd.
at 1093-94.
1. Count I: Discrimination on the Ba-
sis of National Origin
Title VII makes it unlawful for an employer to
“limit, segregate, or classify his employees or appli-
cants for employment in any way which would de-
prive 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.
§ 2000e-2(a)(2). To establish a prima facie case of
disparate treatment under this statute, a plaintiff
must show that “(1) he is a member of a protected
class; (2) he was qualified for his position; (3) he
experienced an adverse employment action; and (4)
similarly situated individuals outside his protected
class were treated more favorably, or other circums-
tances surrounding the adverse employment action
give rise to an inference of discrimination.” Peterson
App. 22
v. Hewlett-P»ckard Co., 358 F.3d 599, 603 (9th Cir.
2004).
Defendant contends that Acosta has failed to
demonstrate an adverse employment action. “An
adverse employment action is a discriminatory act
which ‘adversely affects the terms, conditions, or
benefits’ of the plaintiff’s employment.” James uv.
Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th
Cir. 2004). “Conduct short of ‘ultimate employment
decisions’ can” satisfy this standard. Jd. However, the
“mere fact that a new job assignment is less appeal-
ing to the employee ... does not constitute adverse
employment action.” Jd. at 376.
a. The Transfer to the Salt River
Service Center
In light of the cited authority, Plaintiff has made
a prima facie case that his transfer to the Salt River
Service Center was an adverse employment action. In
connection with that transfer, Acosta was demoted
from his status as a trades helper. Although he ap-
parently continued to receive the same salary, the
transfer adversely affected the “terms” and “condi-
tions” of his employment. James, 368 F.3d at 375.
Nevertheless, Defendant has articulated legiti-
mate, non-discriminatory reasons for this adverse
employment action. Acosta’s transfer to Salt River
occurred after the City had received twenty written
complaints from his co-workers. These complaints
stated that Acosta’s behavior toward other employees
App. 23
was “demeaning” and “created morale, production
and work ethic problems.” Doc. # 35, Exhibit 1. The
statements also explained that Acosta caused “con-
stant distractions” and made others feel “like [they
were] walking on eggshells.” Jd. Several of the co-
workers who signed these complaints were Hispanic
males. Jd. The City’s Public Work Director explained
that he transferred Acosta to Salt River because of
these complaints. Doc. # 35, Exhibit 3 at 2.
Plaintiff has not even attempted to establish that
the articulated reason for his transfer to Salt River
was a mere pretext for discrimination. Count I there-
fore cannot survive the Motion for Summary Judg-
ment on the basis of Acosta’s transfer to the Salt
River Service Center.
b. The Transfer to the Metro Facil-
ities Division
Plaintiff has failed to establish a prima facie case
of discrimination in connection with his transfer to
the Metro Facilities Division and subsequert isola-
tion from building maintenance workers. These
actions were not adverse employment actions. Acosta
heartily accepted the transfer to the Division because
he felt it “would be a great opportunity to learn new
skills, meet new individuals and assist [the] depart-
ment in an area of need.” Doc. # 40, Exhibit 8 at 2.
The transfer did not change Acosta’s job title or affect
his benefits. Doc. # 40, Exhibit 7. Acosta even re-
ceived a higher salary at the Division than he had
App. 24
received from either of his prior positions with the
City. Doc. # 40, Exhibit 10. When Acosta began to feel
isolated from co-workers at the Division and dissatis-
fied because his new workspace used a swamp cooler
rather than centralized air conditioning, Division
management responded by promptly moving him to
an air-conditioned cubicle located in close proximity
to other employees. Doc. # 40, Exhibit 11. Although
Acosta remained dissatisfied even after receiving
these accommodations, Title VII does not support an
action simply because the employer provides em-
ployment conditions that are less than utopian.
Even if Acosta hypothetically demonstrated that
his transfer to the Metro Facilities Division was an
adverse employment action, Defendant has also
articulated a legitimate, non-discriminatory reason
for that action. The building maintenance worker
who preceded Acosta at the Division took an extended
leave of absence due to disability, and the Division
needed someone to fill his position. The Public Works
Director chose Acosta because Acosta had previously
expressed an interest in working closer with trades-
people, and the job would allow him to gain that
experience. Doc. # 35, Exhibit 3 at 2-3. It is apparent
from the record that the transfer was simply an
attempt to fulfill Acosta’s expressed career interests,
rather than a hostile act of discrimination.
Defendant has also articulated a legitimate, non-
discriminatory justification for the location and
condition of Acosta’s workspace at the Division. The
superintendent explained that he assigned Acosta to
App. 25
the warehouse because Acosta’s position required him
“to be out in the field almost 100% of the time,” and
Acosta “only needed a ‘work station’ as a place to
report in the mornings and a place to complete pa-
perwork that would be necessary at the close of the
day.” Doc. # 35, Exhibit 4 at 2. From these state-
ments, it appears that Acosta was assigned to the
warehowus= for practical reasons rather than because
of discrimination.
In an attempt to show pretext, Acosta baldly
asserts that he was transferred because of his na-
tional origin. However, other than his subjective
belief, there is zero support for that assertion. Count I
thus cannot survive the Motion for Summary Judg-
ment with respect to Plaintiff’s transfer to the Metro
Facilities Division.
2. Count II: Retaliation
Title VII’s anti-retaliation provision forbids
employer actions that “discriminate against” an
employee because he has “opposed” a practice that
Title VII forbids or has “made a charge, testified,
assisted, or participated in” a Title VII “investigation,
proceeding, or hearing.” 42 U.S.C. § 2000e-3(a). The
framework set forth in McDonnell Douglas, as mod-
ified for retaliation cases, requires that the plaintiff
“demonstrate that (1) [] he had engaged in protected
activity; (2) []he was thereafter subjected by [his]
employer to an adverse employment action; and (3) a
causal link existed between the protected activity and
App. 26
the adverse employment action.” Porter v. Cal. Dep’
of Corr., 419 F.3d 885, 894 (9th Cir. 2005) (citations
omitted). On summary judgment, “the existence of a
discriminatory motive for the employment decision
will generally be the principal question.” Lam v. Univ.
of Haw., 40 F.3d 1551, 1559 (9th Cir. 1994).
a. The Transfer to the Salt River
Service Center
Acosta first argues that he was transferred to the
Salt River Service Center in retaliation for filing
safety and environmental complaints against the City
in the summer of 2001. In support of this position, he
points out that the transfer was made only a few
weeks after the complaints were filed.
Plaintiff fails to make a prima facie case. A
retaliation claim under Title VII must be based on an
adverse employment action taken because the em-
ployee “opposed a practice made an unlawful em-
ployment practice by” Title VII, or because the
employee “made a charge, testified, assisted, or
participated in any manner in an investigation,
proceeding, or hearing” under Title VII. 42 U.S.C.
§ 2000e-3(a). Acosta’s claims against the City in the
summer of 2001, however, concerned violations of
federal environmental laws and state safety regula-
tions. Title VII does not make unlawful the conduct
on which those claims were founded. Thus, even
assuming that Acosta was transferred to Salt River in
retaliation for the safety and environmental claims
App. 27
he filed against the City, Title VII provides no cause
of action.
b. The Transfer to the Metro Facil-
ities Division
Plaintiff also argues that he was transferred to
the Metro Facilities Division in retaliation for the
various complaints he filed against the City between
2001 and 2004. Insofar as the claim is based on
complaints filed against the City for activities not
governed by Title VII, Acosta has failed to make a
prima facie case for the reasons articulated above. To
the extent that the claim concerns retaliation for
actions actually governed by Title VII, the claim fails
because the transfer to the Division was not adverse.
42 U.S.C. § 2000e-3(a) “protects an individual not
from al] retaliation, but from retaliation that produc-
es an injury or harm.” Burlington Northern & Santa
Fe Ry. Co. v. White, 126 S. Ct. 2405, 2414 (2006). The
plaintiff “must show that a reasonable employee
would have found the challenged action materially
adverse, which ... means that it well might have
dissuaded a reasonable worker from making or
supporting” charges against the City. Jd. at 2415
(internal quotations omitted). “An employee’s decision
to report discriminatory behavior cannot immunize
that employee from those petty slights or minor
annoyances that often take place at work and that all
employees experience.” /d.
App. 28
The record does not support Plaintiff’s assertion
that his second transfer was adverse. As explained
above, Acosta had previously requested a job like the
one he received at the Division, and he looked for-
ward to carrying out the assignment. Moreover, the
transfer did not result in any change in Acosta’s title
or benefits. He even received a higher salary at the
Division than he had received at Skunk Creek or Salt
River. The fact that Acosta’s workplace used a swamp
cooler rather than centralized air conditioning was, at
best, no more than a “minor annoyance” that cannot
support a claim under Title VII, particularly in light
of the fact that Acosta was promptly moved to an air-
conditioned cubicle after he complained. Although
Acosta’s original workspace isolated him from build-
ing maintenance workers, other employees were
present in the warehouse, and Acosta worked nearby
the Division’s office personnel after he received a
cubicle.
Fancifully assuming that Acosta has in fact made
a prima facie case of retaliation under Title VII, the
City has, as explained earlier, articulated legitimate,
non-discriminatory reasons for transferring Acosta to
the Metro Facilities Division and locating him in its
warehouse, and Acosta has failed to establish that
those reasons were pretextual. He argues that retali-
ation can be inferred from the fact that the City
relocated him to a cubicle approximately one month
after he complained about conditions at the ware-
house. In some situations, temporal proximity be-
tween a plaintiff’s action and the employer’s response
App. 29
may support an inference of retaliation. Bell v. Clack-
amas County, 341 F.3d 858, 855 (9th Cir. 2003).
However, the City relocated Acosta in order to ac-
commodate him. The fact that the accommodation
failed to satisfy Acosta’s precise expectations does not
demonstrate that the accommodation was made in
retaliation.
IT IS THEREFORE ORDERED that Defendant’s
Motion for Summary Judgment (Doc. # 34) is
GRANTED.
IT IS FURTHER ORDERED that the clerk enter
judgment in favor of Defendant and that Plaintiff
take nothing. The clerk shall terminate this case.
DATED this 4th day of December 2006.
/s/ Neil V. Wake
Neil V. Wake
United States District Judge
App. 30
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
Luis Acosta, JUDGMENT IN
an individual, A CIVIL CASE
Plaintiff, CIV 05-11810-PHX-NVW
[Tt
Vv.
wrong
City of Phoenix, a
municipal corporation.,
Defendants.
1810 — correct]
Nee ee eee eae ee Se”
___ Jury Verdict. This action came before the Court
for a trial by jury. The issues have been tried and
the jury has rendered its verdict.
_X Decision by Court. This action came for consid-
eration before the Court. The issues have been
considered and a decision has been rendered.
IT IS ORDERED AND ADJUDGED having
granted Defendant’s Motion for Summary Judg-
ment. Judgment is favor of Defendant and that
Plaintiff take nothing.
December 5, 2006 RICHARD H. WEARE
Date District Court Executive/Clerk
S/ Lisa Fettis
cc: (all counsel) (By) Deputy Clerk
App. 31
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS ACOSTA, No. 07-15195
Plaintiff-Appellant. |DC # CV-05-01810-NVW
District of Arizona
Vv.
CITY OF PHOENIX, a ORDER
municipal corporation, (Filed Jan. 15, 2009)
Defendant-Appellee.
Before: LEAVY, RYMER, and THOMAS, Circuit
Judges
The full court has been advised of the petition for
rehearing en banc and no judge has requested a vote
on whether to rehear the matter en banc. See Fed. R.
App. P. 35.
The petition for rehearing en banc is denied.
The motion filed December 3, 2008, is also de-
nied.
No further filings will be accepted in this closed
case.
App. 32
STATUTES INVOLVED
UNLAWFUL EMPLOYMENT PRACTICES
42 U.S.C. SEC. 2000e-2. [Section 703]
(a) Employer practices
It shall be an unlawful employment practice for an
employer —
(1) to fail or refuse to hire or to discharge any indi-
vidual, 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 employ-
ment opportunities or otherwise adversely affect his
status as an employee, because of such individual’s
race, color, religion, sex, or national origin.
OTHER UNLAWFUL EMPLOYMENT PRACTICES
42 U.S.C. SEC. 2000e-3. [Section 704]
(a) Discrimination for making charges, testifying,
assisting, or participating in enforcement proceedings
It shall be an unlawful employment practice for an
employer to discriminate against any of his em-
ployees or applicants for employment, for an employ-
ment agency, or joint labor-management committee
controlling apprenticeship or other training or re-
training, including on-the-job training programs, to
App. 33
discriminate against any individual, or for a labor
organization to discriminate against any member
thereof or applicant for membership, because he has
opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a
charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing
under this subchapter.
App. 34
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS ACOSTA, NO. 07-15195
Plaintiff-Appellant,
v.
CITY OF PHOENIX, a (D.C. No.
municipal Corporation, CV-05-01810-NVW]
Defendant-Appellee.
APPELLANT'S PETITION FOR
REHEARING EN BANC
I, Luis Acosta, respectfully request a Rehearing
by the Court En Banc; because of material points of
fact and law, which I believe the panel overlooked,
when considering my case.
Salt River Service Center
Judge Wake determined my “transfer to the Salt
River Service Center was an adverse employment
action.” [Decision, Page 13]. Evidently, he found the
underlying EEOC complaint sufficient to support this
claim! In my Charge of Discrimination, dated 11
March 2006, I say, “I’m being subjected to harassment
in the form of being segregated in my position of
Trades Helper.”
Judge Wake agrees: “In connection with that
transfer, Acosta was demoted from his status as a
App. 35
trades helper.” [Decision, Page 13]. Without changing
my job classification, I was assigned to the “barrel
crew,” washing, repairing and delivering garbage
cans — the only Trades Helper so assigned. In fact, I
was the only “Trades Helper” in the entire City of
Phoenix (employment, 13,000) not assisting the
skilled trades or working independently in the skilled
trades.
Now, it is true, Judge Wake also says the City
“has articulated legitimate, non-discriminatory
reasons for this adverse employment action.” [Deci-
sion, Page 13]. But the same manager speaks for the
City in both cases, both as to Salt River and to Metro
Facilities (see below). Taken together, this manager’s
explanations for adverse job action are implausible,
contradict each other and the known facts, and sim-
ply should not be believed.
“In 2001, we transferred Mr. Acosta to Salt River
based upon a petition/complaint we received from
numerous co-workers of Mr. Acosta that caused
concern. Due to safety concerns, and given the
breadth of the co-worker complaints we received
relating to Mr. Acosta, the decision was made to
transfer him the Salt River Service Center. Following
that transfer, Mr. Acosta expressed concern about the
transfer, and the matter was referred to the Equal
Opportunity Department of the City, who did an
investigation.” [Affidavit of Mark Leonard, Public
Works Director, dated August 31, 2006, Par. 3 (copy
attached)].
App. 36
Taking Mr. Leonard’s last point first, ’m aware
of mo investigation by the Equal Opportunity De-
partment of any other department or official. Mark
Leonard refers to an “Investigative Summary” by the
City’s Equal Opportunity Department, dated Decem-
ber 27, 2002, which concluded,
“Based on preliminary information and documenta-
tion received, there is no identifiable basis for con-
ducting an investigation into Acosta’s allegation.”
[Investigative Summary, “Jurisdiction,” Page 1].
So, there was no “investigation.”
Though I’m supposedly the complaining party, I
was never interviewed or contacted in any other way.
In fact, I'm not even listed as one of those supplying
“information and documents” to the Department’s
Equal Opportunity Specialist.
Involvement by the City’s Equal Opportunity
Department’s occurred in a strange way, casting
further doubt upon its legitimacy. On April 18, 2002, I
wrote to Mark Leonard, requesting his advice as to
proper procedure for filing a grievance based on
harassment; specifically, placing me in a work area
with no Trades Helper position.
Nothing happened in response to my request,
until 1 furnished the City Manager, Frank Fair-
banks, with a copy of my request on December 18,
2002. Then and only then did the City’s Equal Oppor-
tunity Department spring into action, producing an
“Investigative Summary” nine days later (over
App. 37
Christmas, no less) on December 27, 2002, which
claimed there was no need for an investigation!
To me, it looks like Director Leonard and City
Manager Fairbanks got the City’s Equal Opportunity
Department involved in my case for one reason, only:
to provide themselves and the City with cover. Anoth-
er word for cover is “sham” or “pretext.”
What of Director Leonard’s “safety concerns? Was
he concerned for my safety? Some co-workers became
concerned about losing their jobs, due to photographs
of safety and environmental violations I'd sent to
state and federal regulators. These co-workers got up
a petition against me for reporting the City’s viola-
tions; and the City’s response was to protect the
employees doing the environmental damage, while
sending me off to steam-clean barrels at the Salt
River Service Center!
Or is Mr. Leonard perhaps referring to the safety
of my co-workers or of the public? If so, how does
transferring me, away from a place where I could see
and report safety and environmental violations (and
frequently did so), contribute to solving such “safety
concerns”? Looks like a ‘mere pretext’ to me!
Metro Facilities
Here, Judge Wake seems to believe that segrega-
tion on the job isn’t really prohibited “segregation”; if
I “heartily accepted the transfer,” viewed it as “a
great opportunity,” and “even received a_ higher
App. 38
salary” while segregated! (Decision, Page 13]. In a
novel twist on “separate but equal,” Judge Wake
seems to suggest the City might be able to buy its
way out of conduct, otherwise illegal, simply by
paying me extra money to endure it!
Judge Wake’s factual error is obvious, and likely
would not have occurred; if he had actually heard my
case, rather than relying on assumptions or his
mental picture of my work site. That error: that
“segregation” was part and parcel of the job or work
at Metro Facilities. This is untrue.
Mark Leonard, Director of the huge Public Works
Department, claims personal responsibility, sole and
exclusive responsibility, for moving me from Salt
River to Metro Facilities. [Affidavit of Mark Leonard,
Director, above, Par. 6.] Why the Director’s unusual
interest in my career? He says — to honor my often-
expressed request to work closely with the skilled
trades. (Affidavit, Par. 6]. Yet, that same Affidavit
carefully avoids what actually happened to me on the
job at Metro.
Evidently, Judge Wake assumes this is what
happened: that I began working closely with the
skilled trades, but now complained about an aspect of
the job done by the man I had temporarily replaced;
specifically, the isolation. [Decision, Pages 13-14].
Again, this is untrue.
I replaced Duke French, a white man, in the City’s
HVAC program [Heating-Ventilation-Air Condition-
ing]. The HVAC unit had a locker room, a spacious
App. 39
office, work stations and meeting room for its ten
members, including its foreman. Despite the fact I
was replacing Duke French; I was stationed outside
the HVAC unit, all by myself, in a secured CAGED
area of a WAREHOUSE!
To further drive home the point I was not a
member of the HVAC unit, despite my replacing a
member of it; I reported — not to the HVAC foreman,
but to the Building Superintendent for all the various
trades housed in the building (almost 100 employees).
Finally, Mr. Leonard’s taking personal responsi-
bility for placing me at Metro, with the HVAC unit,
supposedly, also implies he was making all personnel
decisions connected with my placement. For example,
I was not paid initially at Duke French’s rate; and
when I grieved the matter, my grievance was initially
denied. Had it been an honest mistake, rather than
part of a plan; the Departnient would have paid me,
as soon as I called its attention to the pay differential.
So, in addition to the segregation, there was a
financial aspect to the overall discrimination — paying
me less than Duke French for about six months, and
forcing me to resort to union grievance machinery to
secure the equal pay I surely would not have obtained
without fighting for it.
It’s Director Leonard in his Affidavit, who makes
no attempt to explain, much less to justify, the almost
bizarre treatment of me at Metro/HVAC -— including
initial departmental refusals to correct the pay differ-
ential.
App. 40
Incidentally, when Duke French returned from
long-term disability, he returned to his old work
station in the HVAC offices — and not of course, to the
improvised work area, which had been designed
solely for me, a Hispanic employee!
It must be important that Congress chose to
specifically outlaw segregation in the workplace —
indeed, in all aspects of employment. 42 U.S.C. 20003-
2(a\(2) [“limit, segregate, or classify” employees].
Surely, the “employment opportunities” this law
contemplates do not consist solely of a paycheck.
Three times in his Affidavit, Director Leonard himself
refers specifically to “working closely with the skilled
trades” as such an employment opportunity, and a
highly desirable one — an opportunity of course, I was
denied at Metro HVAC. [Mark Leonard Affidavit, Par.
4, 5, and 6].
“The equality of opportunity ... is a central
factor in achieving efficient public service and good
morale. It is the responsibility of all City employees,
members of boards, commissions and committees and
the City Council, to help create an environment,
where all members, employees and citizens are
respected and valued.” [City of Phoenix, Ethics
Handbook, II(E), “Discrimination,” “Comment (last
two sentences)” J.
First Amendment/Retaliation
Judge Wake, and perhaps the panel, also, forgot
the City of Phoenix is a public employer — with First
App. 41
Amendment obligations, not only to the public, but to
its employees. For employees of private employers,
“Title VII's anti-retaliation provision” may be the only
job protection such employees have in cases such as
mine. [Decision, Pages 15-17]. Indeed, Judge Wake
appears to take this view, since he discusses only 42
U.S.C. 2000e-3(a) [Title VII’s anti-retaliation provi-
sion], as if I worked for a business corporation and
not for an Arizona municipal corporation.
Count Two of my Complaint in the trial court
concerns “Retaliation.” [Par. 29-36]. Judge Wake
considers “Count II: Retaliation” at Pages 15-17 of his
Decision. What is “retaliation” by government, if not
its striking back for lawful speech, petitioning and
perhaps also assembly? My City is an old hand at
retaliation. In fact, the Citys own Employment
Relations Board has had to order the City, its officers
and agents, to cease and desist from threatening its
employees on the subject of uniforms [kindly see
attached public “Notice to Employees”.
Equally important for First Amendment purpos-
es; that is, for city employee free speech purposes, the
Phoenix Employment Relations Board, in that very
same Order, also directs the City to cease and desist,
“from denying employees represented by the Union in
the exercise of their employee and Union rights
guaranteed by the City of Phoenix Meet and Confer
Ordinance.” [Notice to Employees,” attached].
My kind of town, Phoenix!
App. 42
First Amendment issues have been a part of my
case throughout, and should be addressed now —
whether called “retaliation,” “free speech” or some-
thing else.
In January 2003, for example, I was suspended
from work for remarks I made to the Phoenix City
Council — a suspension later overturned, | believe,
because I had videotaped my remarks to Council, as a
precaution, to prevent them from being misrepre-
sented. [Kindly see attached Hearing Report, dated
April 28, 2003]. Left unresolved by the Hearing
Officer: whether employees unable to furnish audio or
video recordings of their appearances before Council
are liable to discipline or other retaliation by man-
agement?
Though First Amendment issues permeate my
case, this court has discretion to consider them, even
if raised for the first time here. In this court’s decision
in Green v. Los Angeles County Superintendent
of Schools, 883 F.2d 1472 (1989) Fn. 21; the court set
forth considerations which might lead it to consider
issues first raised on appeal:
“Generally we will not consider an issue raised for the
first time on appeal, although we have the power to
do so. See Singleton v. Wulff, 428 U.S. 106, 120-21, 96
S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976); Bolker v.
Commissioner, 760 F.2d 1039, 1042 (9th Cir.1985).
The court will exercise its discretion, however, when
“significant questions of general impact are raised;
App. 43
injustice might otherwise result; [or] plain error has
occurred... .” Aguon v. Calvo, 829 F.2d 845, 848 (9th
Cir.1987) (quoting Guam v. Okada, 694 F.2d 565, 570
n. 8 (9th Cir.1982), cert. denied, 469 U.S. 1021, 105
S.Ct. 441, 83 L.Ed.2d 367 (1984)); see also Bolker, 760
F.2d at 1042.”
In the Green case, specifically, this court decided
to consider a “worksharing agreement” between state
and federal civil rights agencies, though not previous-
ly considered; because proper interpretation of that
agreement “constitutes a significant question of
general impact”; because the issue raised was “of
substantial importance”; and because of procedural
injustice which would otherwise occurred to the pro
se plaintiff.
The issues of my case are no less important than
those involved in the Green case. The City of Phoe-
nix, as employer, constantly uses its power over men’s
and women’s livelihoods, in order to threaten their
ability to speak freely, to meet and to confer. Some
support for constitutional principle is called for here,
both to encourage city employees in the exercise of
their rights, and to restrain management from violat-
ing them.
I've personally been suspended four times for
exercising what I believe to be my free speech rights.
App. 44
Ironically, my use of those rights has benefited the
City, both financially and in other ways — once for
over $500,000.00.
Re spectfully,
LUIS ACOSTA, Appellant
[Home Address, Phone Number
And E-Mail Address Omitted
In Printing]
SERVICE
On November 3, 2008, I served a copy of the
foregoing Appellant’s Petition for Rehearing En Banc
upon David F. Gaona, Attorney for the City of Phoe-
nix, by mailing him a copy by ordinary US Mail at his
office address of 3101 North Central Avenue, Suite
720, Phoenix, Arizona 85012.
LUIS ACOSTA, Appellant
[Attachments Omitted
In Printing]
App. 45
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS ACOSTA,
Plaintiff-Appellant,
V. [D.C. No.
CITY OF PHOENIX, a CV-05-01810-NVW]
municipal Corporation,
Defendant-Appellee.
APPELLANT'S MOTION TO STOP CONTINUING
DISCRIMINATION AGAINST LUIS ACOSTA
I, Luis Acosta, respectfully request an end to the
continuing discrimination against me; specifically, the
denial of membership in Laborers’ International
Union, Public Employees Local 1297 (now, Local 777),
the bargaining agent for the Phoenix Public Works
Department — which exclusion began in December
2001, has continued through this lawsuit and appeal,
and is still ongoing.
This country is planted thick with laws. Posters
proclaim my rights, which are then denied in prac-
tice. The attached Public Employees, AFSCME,
poster is titled, “Your Right to Join is a Matter of
Law.” AFSCME continues,
“U.S. constitutional law guarantees the specific
protection of employees’ fundamental right to join the
App. 46
union. Under this guarantee you have these addi-
tional rights:
e You have a right to join the union and to ask
others to join.”
The attached US Department of Labor poster is
titled, “Your Rights Under USERRA: The Uniformed
Services Employment and Reemployment Rights
Act.” Under the heading, “Right To Be Free From
Discrimination And Retaliation,” the US Department
of Labor tells me,
“If you ... are a past or present member of the
uniformed service; ... then an employer may not
deny you any of the following because of this status:
¢ any benefit of employment.”
Union membership is said to be a right of my
City employment, and therefore a benefit of such
employment. Additionally, I’m a veteran of the US Air
Force, and thus subject to USERRA’s protections.
On August 24, 2007, I personally submitted an
Application for Membership in Local 1297 (copy
attached), which I’d had to write up myself, after the
Business Manager and Secretary-Treasurer, Curt
Malaise, refused to provide me with the Local’s own
form application. The court will kindly note Mr.
Malaise’s handwritten notation in the upper right-
hand corner of the first page, acknowledging receipt
of my Application.
App. 47
Orally, Mr. Malaise took personal responsibility
for excluding me from membership to that point, but
indicated he was sending my Application to legal
counsel in California for review. I’ve not heard any-
thing further from Local 1297; my exclusion contin-
ues to this day.
So that there could be no room for dispute about
the City of Phoenix’s involvement in my exclusion
from the Union, I raised the issue recently at a public
meeting of the Phoenix City Council on November 19,
2008. I presented my exclusion from Local 1297, as a
breach of the Memorandum of Understanding (collec-
tive bargaining agreement), between the City of
Phoenix and Local 1297; and thus, as a matter of
public concern.
There was no reaction from Mayor, Council or
anyone else during the meeting of November 19,
2008, as the meeting videotape will demonstrate.
Specifically, there was neither an offer to investigate,
nor a promise of redress. In fact, neither Mayor nor
Council bothered to correct my error (of which they
were surely aware), that the bargaining agent for
Public Works was now Local 777 (as of October 2008),
rather than Local 1297.
In fairness, a City intern, claiming to be from the
City Manager’s Office, approached me after the
Council meeting and outside the Council Chamber,
asking for further information about my exclusion
from Local 1297. We talked for about 20 minutes; the
City intern took notes, which she allowed me to
App. 48
review. So far though, [ve heard nothing further,
concerning my exclusion. I suspect I will hear nothing
further; until after this court rules, one way or the
other, on my Petition for Rehearing — thereby denying
me the opportunity to raise my exclusion from Local
12°67 in the US Court of Appeals. Hence, my Motion.
The City of Phoenix is already under a Cease and
Desist Order, issued by the Phoenix Employment
Relations Board (PERB), dated August 27, 2007 (copy
attached),
“To cease and desist from denying employees
represented by the Union in the exercise of their
employee and Union rights guaranteed by the City of
Phoenix Meet and Confer Ordinance.”
What could be a greater violation of that Cease
and Desist Order, than for the City to tolerate my
exclusion from the Union (despite my being a member
of the bargaining unit) — contrary to both contract
and ordinance? I would remind the court my exclu-
sion has continued for seven years, so ignorance is
not a plausible defense!
As the attached e-mail correspondence with Mike
Tho-.,son, Union Business Agent, makes clear, I am
being excluded from Union membership for my beliefs
(“convictions”); my expression of those beliefs (“free
speech”); and my acting upon those beliefs — which
are based on personal observations — by petitioning
various government agencies and officials.
App. 49
What emerges from this correspondence: Mr.
Thompson’s view of the Union, as something akin toa
social organization, in the sense it can exclude non-
members for reasons it could not possibly expel a
member. Put another way, a labor union can act in a
completely arbitrary manner, with respect to admit-
ting persons to membership (though not when disci-
plining persons already members).
I would again respectfully remind the court the
City of Phoenix is a public employer. The City does
not become a private employer, simply because it
chooses — or is obliged — to bargain with its employees
collectively via a (private) labor organization.
During the Civil Rights Era of the 1960s, the
country faced essentially the same question con-
fronted here. The issue then: whether legislatures
could exclude minority members-elect for reasons
other than their lack of the formal, stated qualifica-
tions for office (age, citizenship, residency, and of
course, actual election to office). In cases involving
both the Georgia legislature and the US Congress,
the US Supreme Court decided that question in the
negative, and in favor of the minority members-elect.
Powell v. McCormack, 395 U.S. 486 (1969); Bond uv.
Floyd, 385 U.S. 116 (1966).
In my case, the only formal, stated qualifications
for membership in Local 1297 (or 777) of which I’m
aware: City of Phoenix employment in the Public
Works Department and payment (or tender) of mem-
bership dues and fees. To my knowledge, I’m the only
App. 50
member of the bargaining unit ever excluded from
membership in Local 1297 (or 777) — which makes my
case unique, and therefore suspect!
The court may be wondering why I didn’t file a
Charge of Discrimination with the EEOC against
Local 1297. Well, I did (EEOC Charge No. 350-2005-
03353)! What happened, apparently: the EEOC
referred the matter to the US Department of Justice,
Civil Rights Division, by letter June 14, 2005 (copy
attached). On July 19, 2005, the Justice Department
returned the matter to the EEOC, indicating that
Department lacked authority to issue a Notice of
Right to Sue, concerning discrimination by a labor
organization. [Letter from Justice Department to
EEOC, dated July 19, 2005 (copy attached)}
At some point after July 19, 2005, I sued Local
1297 through counsel; so, the EEOC must have
issued me a Notice of Right to Sue letter. My lawsuit
floundered on a question of service, as I understand,
and as a result never went anywhere.
Evidently, federal civil rights statutes do cover
discrimination by labor unions, even though member-
ship in them may confer no direct or immediate
economic benefit upon employees. I’ve found a case
illustrating that point; namely, that “employment
opportunities” consist of more than the paycheck;
some of them are even intangible:
<< “We have repeatedly made clear that although
(Title VII] mentions specific employment decisions with
immediate consequences, the scope of the prohibition
App. 51
‘is not limited to “economic” or “tangible” discrimina-
tion,” Harris, [510 U.S., at 21] (quoting Meritor
Savings Bank, FSB v. Vinson, |477 U.S., at 64), and
that it covers more than ‘terms’ and ‘conditions’ in the
narrow contractual sense.” Faragher v. Boca Raton,
524 U.S. 775, 786 (1998) (quoting Oncale v. Sundowner
Offshore Services, Inc., 523 U.S. 75, 78 (1998)).
As the Court stated in Harris, “[t]he phrase
‘terms, conditions, or privileges of employment’ [of 42
U.S.C. § 2000e-2(a)(1)] evinces a congressional intent
‘to strike at the entire spectrum of disparate treat-
ment of men and women’ in employment, which
includes requiring people to work in a discriminatorily
hostile or abusive environment.” 510 U.S., at 21
(some internal quotation marks omitted) (quoting
Meritor, 477 U.S., at 64, in turn quoting Los Angeles
Dept. of Water and Power v. Manhart, 435 U.S. 702,
707, n.13 (1978)).
“Workplace conduct is not measured in isola-
tion... .” Clark County School Dist. v. Breeden, 532
U.S. 268, 270 (2001) (per curiam). Thus, “[wJhen the
workplace is permeated with ‘discriminatory intimi-
dation, ridicule, and insult,’ that ts ‘sufficiently severe
or pervasive to alter the conditions of the victim’s
employment and create an abusive working environ-
ment,’ Title VII is violated,” Harris, 510 U.S. at 21
(internal citations omitted).>> [National Railroad
Passenger Corporation v. Morgan, 536 U.S. 101, 115-
116 (2002)]
App. 52
Might I respectfully request that the City of
Phoenix secure my membership in Laborers’ Interna-
tional Union, Public Employees Local 777, by Monday
January 5, 2009; or show the court just cause for not
having done so?
Respectfully,
LUIS ACOSTA, Appellant
[Home Address, Phone Number
And E-Mail Address Omitted
In Printing]
SERVICE
On December 1, 2008, I served a copy of the
foregoing Appellant’s Motion To Stop Continuing
Discrimination Against Luis Acosta, upon David F.
Gaona, Attorney for the City of Phoenix, by mailing
him a copy by ordinary US Mail at his office address
of 3101 North Central Avenue, Suite 720, Phoenix,
Arizona 85012.
LUIS ACOSTA, Appellant
[Attachments Omitted
In Printing]
App. 53
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS ACOSTA, CASE NO. 07-15195
Plaintiff-Appellant, |
v.
CITY OF PHOENIX, a (D.C. No.
municipal Corporation, CV-05-01810-NVW]
Defendant-Appellee.
FOLLOW-UP TO APPELLANT’S MOTION TO
STOP CONTINUING DISCRIMINATION
AGAINST LUIS ACOSTA
Yesterday, December 12, 2008, I received the
Phoenix City Council’s response to my complaint in
open council about being denied “membership for the
past seven years” in the “Laborers International
Union of North America, Public Employees Local
1297.” The City’s response is attached for the court’s
inspection.
In refusing to assist me in joining the labor
organization representing my bargaining unit; the
City cites two of its own ordinances, which the City
claims, guarantee the Union the right to discrim-
inate against me or against others — for any reason,
such as my being Hispanic, or for no reason at all.
App. 54
One of the two City ordinances cited for this
alleged right to discriminate is actually quoted:
“Nothing herein shall prohibit any employee organi-
zation from determining and maintaining its own
rules for obtaining or retaining membership rights in
said organization so long as said rules do not bear
upon any rights to employment with the public em-
ployer.” [Section 2-220.B.6]
City interference with the Union’s right to discrim-
inate, as protected by City ordinance, would the City
argues, “be an unfair labor practice.”
But the City of Phoenix is obviously a willing
participant to the discrimination against me. Not
only are the ordinances relied upon the City’s own,
the City in its response to me expresses no desire to
change them -— in order to prohibit the discrimina-
tion the City claims these ordinances allow!
Still worse, the City, constrained it claims by its
own ordinances, will not even express the wish, or
even the pious hope, that the Union will exercise its
uncontrolled discretion in my favor, and after seven
years and a change in the Local [now Local 777],
finally allow me to join!
These folks cannot be serious, but are being
playful with me and with the court, as the holidays
approach. Granting my Petition for Rehearing and
App. 55
present Motion might interrupt the general merri-
ment, at least for a short time.
Respectfully,
LUIS ACOSTA, Appellant
{Home Address, Phone Number
And E-Mail Address Omitted
In Printing]
SERVICE
On December 13, 2008, I served a copy of the
foregoing Follow-up To Appellant’s Motion To Stop
Continuing Discrimination Against Luis Acosta, upon
David F. Gaona, Attorney for the City of Phoenix, by
mailing him a copy by ordinary US Mail at his office
address of 3101 North Central Avenue, Suite 720,
Phoenix, Arizona 85012.
LUIS ACOSTA, Appellant
[Attachments Omitted
In Printing]
App. 56
CHARGE OF DISCRIMINATION
This form is affected by the Privacy Act of 1974.
See enclosed Privacy Act Statement and other
information before completing this form.
Charge Presented To: [] FEPA & EEOC
Agency(ies) Charge No(s): 350-2005-02229
Arizona Civil Rights Division
and EEOC
State or local Agency, if any
Name (/ndicate Mr., Ms., Mrs.)
Mr. Luis Acosta
Home Phone No. (Jncl. Area Code)
Date of Birth
Street A.ddress —_ State and ZIP Code
Named in the Employer, Labor Organization, Em-
ployment Agency, Apprenticeship Committee,
State or Local Government Agency That I Believe
Discriminated Against Me or Others. (Uf more than
two, list under PARTICULARS below.)
Name
PHOENIX, CITY OF
No. Employees, Members
500 or More
App. 57
Phone No. Unclude Area Code)
(602) 534-7005
Street Address City, State and ZIP Code
2631 South 22nd Avenue Phoenix, AZ 85009
Name
No. Employees, Members
Phone No. (Jnclude Area Code)
Street Address City, State and ZIP Code
DISCRIMINATION BASED ON
(Check appropriate box(es). )
CJ) RACE CJ cCoOLoR LC) SEX LJ) RELIGION
NATIONAL ORIGIN [&] RETALIATION (J) AGE
CL] DISABILITY (J OTHER (specify below.)
DATE(S) DISCRIMINATION TOOK PLACE
Earliest Latest
03-11-2005
L) CONTINUING ACTION
THE PARTICULARS ARE (if additional paper is needed,
attach extra sheet(s)):
I have been employed by Respondent since December
of 1991. I’m being subjected to harassment in the
form of being segregated in my position of Trades
Helper. I have no Employee performance review goals
(EPAR) in my current position of eight months. I’m
being supervised by a non-traditional supervisor who
oversees the City planners only. I believe this is in
retaliation for reporting a half million dollars of
mishandled product not in the best interest of the
public good.
App. 58
I believe because of my national origin (Mexican-
American) Respondent is discriminating against me
because of my Intelligence in the work place in viola-
tion of Title VII of the Civil Rights Act of 1964, as
amended.
I want this charge filed with both the EEOC and the
State or Local Agency, if any, I will advise the agen-
cies if I change my address or phone number and I
will cooperate fully with them in the processing of my
charge in accordance with their procedures.
I declare under penalty or perjury that the above is
true and correct.
Mar 11, 2005 /s/ Luis Acosta
Date Charging Party Signature
NOTARY — When necessary for State and Local Agency
Requirements
I swear or affirm that I have read the above charge
and that it is true to the best of my knowledge, in-
formation and belief.
SIGNATURE OF COMPLAINANT
SUBSCRIBED AND SWORN TO BEFORE ME THIS DATE
(month, day, year)
App. 59
[LOGO]
City of Phoenix
EQUAL OPPORTUNITY DEPARTMENT
DATE: March 28, 2005
TO: Mark Leonard, Director
Public Works Department
FROM: Carole Coles Henry, Director [/s/ CCH]
Equal Opportunity Department
SUBJECT: ACOSTA, Luis v. Public Works Dept.
EEOC # 350-2005-02229
EOD # 05-28X
The Equal Opportunity Department recently received
the enclosed complaint filed against your department
by Luis Acosta on the basis of national origin.
At this time no response is necessary. However, the
department should gather and maintain all informa-
tion relevant to the allegations in the event that a
response is required in the future. Any transmittal of
information regarding this case should be treated in a
confidential manner. If information is requested by
our office, please place documents in a_ sealed
envelope marked “confidential,” and address the
envelope to Equal Opportunity Specialist Bonnie
Morice.
It is extremely important that there is no discussion
with Mr. Acosta regarding the complaint. A policy
of not discussing the complaint with the individual
will guard against additional potential allegations
of intimidation, harassment, or retaliation. This
App. 60
message should be relayed to all staff involved in this
case. Please also ensure that all documents and/or
correspondence related to this charge are maintained
separate from Mr. Acosta’s personnel file.
Our goal will be to achieve a fair and expeditious
resolution to this complaint. Your cooperation is
greatly appreciated. If you have any questions please
contact Bonnie Morice at 602.262.6690.
CCH/CG/bm/lbs
Enclosure: Copy of Complaint
c. Dave Cavazos, Exec.Asst. to the City Mgr.
Lisa Esquivel, Personnel Officer II
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.