Petition for Writ of Certiorari — Kang v. PB Fasteners (No. 08-75)

rt] (D —_—- Supreme Court, U.S.

FILED

i“ 08-75 JUL 14 2008

OFFICE OF THE CLERK

IN THE Witten kK. Suter, Clerk

Supreme Court of the United States

NEUNG KANG, AN INDIVIDUAL, PETITIONER

Vv.

PB FASTENERS, A CORPORATION

DOING BUSINESS IN CALIFORNIA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

FRANKLIN L FERGUSON,JR MARINA TRAMONTOZZI

Franklin L Ferguson Jr Counsel of record

Law Offices

3550 Wilshire Boulevard,

Suite 1745-A

Los Angeles, CA 90010

323-936-4375

c/oF'ranklin L Ferguson

Jr Law Offices

3550 Wilshire Boulevard,

Suite 1745-A

Los Angeles, CA 90010

323-936-4375

Attorneys for Petitioner

CURRY & TAYLOR @ (202) 393-4141

a

QUESTION PRESENTED

1. Whether the use of the term “stupid Korean” by

an employment decisionmaker constitutes direct

evidence of discrimination warranting a finding

that the employer’s rationale for an adverse

employment consequence was pretextual?

a

TABLE OF CONTENTS

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APPENDIX

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TABLE OF AUTHORITIES

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Reeves v. Sanderson Plumbing Products, Inc.

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OPINIONS BELOW

The February 27, 2008 opinion of the Ninth

Circuit Court of Appeals (Pregerson, H., Wardlaw, K.,

and Archer, G.), which is not officially reported, is

unofficially reported at 2008 U.S. App. LEXIS 4694; 27

I.E.R. Cas. (BNA) 508 and is set out at pp. la-7a of the

Appendix. The April 15, 2008 order of the court of

appeals denying rehearing, which is not officially

reported, is set out at p. 26a of the Appendix.

The May 22, 2006 memorandum decision of the

district court, which is not offically reported, is set out

at pp. 8a-25a.

JURISDICTION

The decision of the court of appeals was entered

on February 27, 2008. A timely petition for rehearing

was denied on April 15, 2008. This Court has

jurisdiction pursuant to 28 U.S.C. §1254(1).

RELEVANT PROVISIONS INVOLVED

42 U.S.C. $1981 provides in pertinent part:

(a) All persons within the jurisdiction of

the United States shall have the same right in

every State and Territory to make and enforce

contracts...as is enjoyed by white citizens....

(b) For the purpose of ths section, the

term “make and enforce contracts” includes the

making, performance, modification, and

termination of contracts, and the enjoyment of

all benefits, privileges, terms and conditions of

the contractual relationship.

2

STATEMENT

This case arises under 42 U.S.C. §1981. District

Court jurisdiction is pursuant to 28 U.S.C. §§ 1331 and

1348(a)(3) and (4). The District Court also assumed

jurisdiction over the California contract claims because

the violations of federal law alleged predominated the

Complaint for Civil Damages and the state claims were

based on the same nucleus of operative facts. Judicial

economy, convenience and fairness to the parties

resulted from the exercise of the District Court’s

jurisdiction over the alleged violations of California law.

28 U.S.C. §1367(a).

Appellate jurisdiction over this action is

pursuant to 28 U.S.C. § 1291(b) and Rule 4(a) of the

Federal Rules of Appellate Procedure. This appeal is

taken from a final order of judgment, a judgment that

disposed of all of Petitioner’s claims.

The District Court's Order granting the motion

for summary judgment was filed on May 22, 2006 and

entered on May 23, 2006 [Excerpts of Record'

("hereinafter ER"), Tab 18]. The District Court

executed and filed the final judgment, dismissing

Petitioner-Appellant’s claims, on May 24, 2006 [ER,

Tab 20]. Petitioner timely filed a notice of appeal and

perfected the appeal on June 22, 2006 [ER, Tab 23].

' References to the court of appeals record are included throughout

this Pet tion as Excerpts of Record, or “ER.”

3

A. From 1975 to the Date of his Termination,

Petitioner Performed the Lead Worker

Functions, Particularly the Audits, Which

Are Attributed to Lira.

Herber testified that Kang never served as a

lead worker. [ER, Tab 11, Exhibit 30, Herber Depo.

100:8-13] Herber believed Kang lacked English skills to

serve as day shift lead worker. [ER, Tab 11, Exhibit 30,

Herber Depo. 100:17-25] Herber further testified that

he was aware of approximately 10 audits, conducted

over the course of 5 years, while he was Director of

Quality Engineering. [ER, Tab 11, Exhibit 30, Herber

Depo. 118:16-25] During the course of Kang’s

employment, according to Herber customer audits, also

called inspections, were performed about once annually.

[ER, Tab 11, Exhibit 30, Herber Depo. 126:6-23]

Herber identified Merle Oglesby, outside independent

Level III Technician Mike Gee, Lira and himself, as the

persons who handled internal, customer audits. [ER,

Tab 11, Exhibit 30, Herber Depo. 116:22 through 117:3]

In contrast to Mr. Herber’s’ testimony,

Petitioner actually did serve as a day-shift lead worker

from 1975 until 1995. When he engaged in the protected

activity of speaking truthfully to federa) authorities

about the testing procedures of Respondent, Kang’s

tille as lead worker was removed. Despite the change

in his title, Kang continued to perform the functions of

lead worker, including training new hires, supervising

co-workers and performing audits. These functions

were performed often following the requests of Lira.

[ER, Tab 8, Declaration of Kang, Par. 4.]

Kang also performed audits during the course of

his work at Respondent. ‘There were no negative

reactions to the audits conducted by Petitioner

4

resulting from Kang’s English proficiency level.

Herber was never made aware, during any audit, that

Kang’s English proficiency was even considered an

issue by a customer, Respondent supervisor or co-

worker. [ER, Tab 11, Exhibit 30, Herber Depo. 129:1-7]

Lira was hired by Respondent on December 11,

1995, approximately twenty years after Petitioner was

hired. [ER, Tab 10, Exhibit 28, Lira Depo. 4:11] Lira

was initially hired for non-destructive testing as a

trainee. [ER, Tab 10, Exhibit 28, Lira Depo. 11:7]

Around 1997, Lira was promoted to Level II inspector.

[ER, Tab 10, Exhibit 28, Lira Depo. 14:13; ER, Tab 10,

Exhibit 28, Lira Depo.19:12] Lira worked directly with

Kang. Lira was in NDT training; he de-magged parts,

cleaned parts and packed parts for Kang. [ER, Tab 10,

Exhibit 28, Lira Depo. 13:11-15]

Despite Herber’s representations, Lira never

performed an audit during Petitioner’s term of

employment. Lira even asked Kang to perform each of

the audits which were conducted, during the time that

Lira served as the lead worker in the NDT department

and Petitioner served on the day shift. Lira did not

have any experience in dealing with customers, during

Petitioner’s tenure of employment. [ER, Tab 8,

Declaration of Kang, Par. 7.]

Lira specifically asked Kang to perform the 2002

Bendix Signal survey, a customer audit, because Mr.

Lira wasn’t familiar with the particular procedure.

Whenever Lira was unfamiliar with an audit procedure,

he directed Kang to perform it. [ER, ‘Tab 10, Exhibit

27, Kang Depo., Vol. II, 189:1-4] Kang believed that he

had no choice but to perform the procedure, because

Lira held the title as his lead worker. [ER, Tab 10,

Exhibit 27, Kang Depo., Vol. 11, 189:7-8]

D

B. In 2008, Respondent Lost a Relatively Small

Percentage of its Mag. Inspection

Capabilities and Experienced No

Comprehensive Loss of Work in the NDT

Department. Petitioner’s June 9, 2008

Termination Was Not the Result of a

Reduction in Force.

Respondent’s Employee Guide does not contain

an objective procedure to determine the identities of

employees who would be laid off. (ER, Tab 11, Exhibit

30, Herber Depo. 55:13-16]. Herber claims that during

the relevant time period, there was no uniform,

calculated process that was used to determine the

identities of potential employees to be laid off in June of

2003. [ER, Tab 11, Exhibit 30, Herber Depo. 55:11-12]

As demonstrated in the immediately proceeding

paragraph, night shift supervisor I] Kil (hereinafter

“Kil”) provides a_ sharply contrasting view of

Respondent’ lay-off practice.

With the exception of Kang, Kil was made aware

of terminations, prior to the effective termination date,

because in the normal course of business Kil was

responsible for selecting the persons to be laid off. At a

inimum, Kil was consulted with respect to night shift

employee terminations. Kang was the sole exception.

(ER, Tab 10, Exhibit 29, Kil Depo. 49:13-23] In the

event of terminations due to lack of work (lay-offs), the

normal Respondent procedure involved Mr. Kil being

asked to prepare a list of employees to be terminated

from the night shift. This list was given to Ray Stocke,

who would give the list to Human Resources. Normally

the HR department would call the employees to be laid

off and explain the terms of the termination, as well as

the rationale for the decision. Kil never provided such a

6

list to Mr. Stocke regarding the June, 2008 layoff of

Kang. [ER, Tab 10, Exhibit 29, Kil Depo. 70:2-25] Kil

was never informed by anyone, prior to Kang’s June,

2003 termination, about the possibility of layoffs in the

night shift. [ER, Tab 10, Exhibit 29, Kil Depo. 44:25] Kil

did not know about Kang’s layoff until Mr. Kil arrived

at work, after the fact of Kang’s termination. [ER, Tab

10, Exhibit 29, Kil Depo. 49:18}

With the exception of Kang, the name of every

night shift employee under Kil’s supervision who has

been iaid off was first placed on an Employee Action

Request Form. With the exception of Kang, Kil

completed and/or approved an Employee Action

Request Form for each laid-off, night shift employee.

Kil never even received an Emplovee Action Request

Form with respect to Kang’s layoff. Mr. Kil knows of no

other night shift employee who was laid off under his

supervision, for whom Mr. Kil did not cemplete an

Employee Action Request Form [ER, Tab 10, Exhibit

29, Kil Depo. 46:1 through 47:11]

With the exception of Kang’s termination,

Herber’s practice was to receive input from the

supervisors of the employees to be laid off. This

practice was followed because Herber testified that he

wanted to find out from the direct supervisor the

person who has the most relevant experience and

seniority. [EK R, Tab 11, Exhibit 30, Herber Depo. 59:6-

13] Herber was responsible for the June, 2003 lay off,

involving 3 employees. Herber recommended these

employees to be laid off to Robert Briles, Respondent

President. [ER, Tab 11, Exhibit 30, Herber Depo.

59:15-23 ]

The first documented mention of a lay-off was

the June 4, 2003 Herber memorandum to Robert Briles,

merely 5 days before Kang’s termination. [“ER, Tab 10,

7

Exhibit 13, Herber Memorandum to Rob Briles

6/4/03.”| Herber never informed Kil, either before or

after the fact, of any rationale supporting Kang’s

termination. [ER, Tab 10, Exhibit 29, Kil Depo. 44:7-14]

Herber never came to Kil and indicated that there

would be layoffs in the night shift, due to lack of work

or any other reason. [ER, Tab 10, Exhibit 29, Kil Depo.

44:21] Herber never asked for Kil’s opinion, concerning

the identities of which night shift employees should be

laid off. [ER, Tab 10, Exhibit 29, Kil Depo. 44:17]

C. Appellant Kang Presented Direct Evidence

of Decision-maker Herber’s Discriminatory

Intent

PB Fasteners claims that Kang did not provide

direct evidence of discriminatory intent, in response to

the motion for summary judgment. [Appellee’s Brief,

p.18.] PBF also suggests that Kang has _ relied

exclusively on the indirect method of proving

discrimination, through the McDonnell-Douglas

framework, waiving the opportunity to argue through

this appeal that there was direct evidence of

discriminatory intent. McDonnell Douglas Corp. +.

Green (1973) 411 U.S. 792. [Appellee’s Brief, p.18.] PBF

specifically asserts that neither PBF President Robert

Briles, nor Director of Quality and Engineering Robert

Herber (“Herber”), the key decision-makers in this

case, ever made racial remarks to or about Kang,

precluding the proof of discrimination via direct

evidence. [Appellee's Brief, p.19.]

According to PBF, "Appellant — blatantly

misrepresents the record when he repeatedly argues

that Herber made racist comments to or about Kang.

Although Appellant initially testified that Herber had

8

called him a ‘Stupid Korean,’ Appellant recanted that

testimony, admitting that ‘[hJe didn't say ‘stupid

Korean.” [Appellee's Brief, p.20.] The District Court

accepted this characterization of the facts: "Moreover,

Appellant cannot meet his burden to show pretext by

relying on his co-workers’ alleged racial slurs and acts

of discrimination. Appellant has failed to tie any of

those seemingly isolated instances to anyone at PBF

with authority over the hiring and firing of employees.

Indeed, none of the people who allegedly made the

derogatory remarks about Appellant’s ethnicity had

any say whatsoever regarding the decision to end

Appellant's employment with PBF, nor was there any

link between the timing of the alleged remarks and the

decision to terminate Appeilant's employment.

Additionally, Appellant's attempt to attribute a racial

slur to a decision-maker at PBF is equally unavailing,

considering that the decision-maker Appellant

identified never made the statement that Appellant

attempts to attribute to him." [Excerpts of the Record

(“ER”), Tab 18, Order p. 7, line 2] through p. 8, line 11.]

In support of Respondent’s factual

interpretation, necessarily involving a weighing of

credibility and a rejection of Kang’s perspective on the

relevant evidence, the District Court relied upon the

following exchange: "This happened in 2003, you said,

correct?" [Appellant Depo. 91:18-25.] The interpreter

then asked, "You mean when Herber told him stupid

Korean?" In response to this question, counsel for PBF

answered, “Yeah.” Continuing on page 92, lines 1-5,

Kang recounted, "He didn't say ‘stupid Korean,’ but he

said, ‘You don't speak English after so many years in

the United States, and you don't even know how to do

your own work.’ And he really embarrassed me many

9

times, and he really made me feel really bad." [ER, Tab

18, Order, p. 8, footnote. |

This deliberate placement of facts out of context,

to the detriment of Kang, should and can be readily

rectified. On page 50 of Kang’s deposition, counsel for

PBF asked Kang to identify the person who had called

Kang a "Stupid Korean." In response, Kang named

Herber as one of the many individuals who had referred

to Kang using the term, “Stupid Korean.” Kang did not

hesitate in response to this question, immediately

implicating the persons who had exposed him to this

treatment, answering, "Bob Herber and Andy. Do I

have to tell you the instance in 2000, 2001 and 2002?"

[Kang Depo. 50:3-22.]

Several minutes later in the deposition, in an

entirely different context, questioning by counsel for

Respondent implicated Herber’s derogatory reference

to Kang’s level of English proficiency. Aliuding to the

various points in time when Herber criticized or

mentioned Kang’s level of English proficiency, counsel

for PBF asked Kang about, "any specific incidents of

this happening?" [Kang Depo. 91:7-8.] To this specific

question Kang replied, "he said that in January 2003,

‘You don't speak English, and you've been here for 30

years. You don't know how to work." [Kang Depo.

91:7-8.]

Counsel for PBF then asked, "This happened in

2003, you said, correct?" [Kang Depo. 91:18-25.] The

Korean language interpreter asked, "You mean when

Herber told him stupid Korean?" To this question,

Counsel for Respondent responded, “Yeah.” [Kang

Depo. 91:18-25.] It was at this point, in specific response

to the Korean language interpreter’s question of

whether Herber had used the phrase “stupid Korean”

in 2008, that Kang stated "He didn't say ‘stupid

10

Korean,’ but he said, ‘You don't speak English after so

many years in the United States, and you don't even

know how to do your own work. And he really

embarrassed me many times, and he really made me

feel really bad." [Kang Depo. 92:1-5.]

In this manner, Respondents have intentionally

overlapped and conflated two of Kang's distinct,

independent responses. Kang _ specifically and

unequivocally stated that Herber called him "Stupid

Korean,’ in 2000, 2001, and 2002 [Kang Depo. 50:3-22].

This is direct evidence of discrimination. “Direct

evidence is evidence which, if believed, proves the fact

{of discriminatory animus] without inference or

presumption.” Godwin v. Hunt Wesson, Inc. (9th Cir.

1998) 150 F. 3d 1217, 1221. Much later in the deposition,

counsel for PBF asked about an incident in 2008, during

which Herber insulted Kang’s level of English

proficiency. It is evident that Kang was speaking only

about Herber’s 2003 English proficiency level comment,

when he stated that Herber did not call him “stupid

Korean” on that particular occasion.

i]

D. Herber Subjected Petitioner to a seres of

Adverse Employment Consequences

Including Termination. Each Adverse

Consequence Was Violative of Respondent’s

Own Policies, Practices and/or Procedures.

1. THE UNUSUAL CIRCUMSTANCES

SURROUNDING PETITIONER’S

TRANSFER TO THE NIGHT SHIFT

CONSTITUTE AN ADVERSE

EMPLOYMENT CONSEQUENCE.

It was solely Herber’s decision to transfer Kang

from the day to the night shift. [ER, Tab 11, Exhibit 30,

Herber Depo. 70:16-18] Kil was not a part of the

process regarding Kang’s transfer to the night shift.

[ER, Tab 11, Exhibit 30, Herber Depo. 70:24 through

4

Despite a lack of personal familiarity with

Kang’s performance levels, Herber slashed Kang’s

standard performance review scores, from 90 to 70.

[ER, Tab 11, Exhibit 30, Herber Depo. 80:4-17] Kang’s

Direct Supervisor, Jim Edwards, had

contemporaneously approved the form. [ER, Tab 11,

Exhibit 30, Herber Depo. 81:16-18] Herber had never

seen any other employee’s performance review scores

crossed out, as he had done to Kang. [ER, Tab 11,

Exhibit 30, Herber Depo. 83:15-20]

Herber never gave a specific reason for Kang’s

transfer from the day to the night shift. [ER, Tab 10,

Exhibit 28, Lira Depo. 69:21-22] In spite of his

testimony about signing Kang’s Employee Action

Request Form, Lira testified that he has never

executed a form to transfer an employee. [ER, Tab 10,

Exhibit 28, Lira Depo. 72:4-7] Lira had no specific

12

recollection of ever having seen the 1/10/03 Employee

Action Request Form. [ER, Tab 10, Exhibit 28, Lira

Depo. 72:23; ER, Tab 10, Exhibit 28, Lira Depo. 73:4]

Herber testified that he wanted Kil around to help

Kang with interpretation issues during night shift.

Herber also testified that he cannot think of any

specific, work-related “interpretation issues” which

manifested during Kang’s more than 27 years. [ER, Tab

11, Exhibit 30, Herber Depo. 71:8-19)

Employee Action Request Forms are used for

employee transfers, employee pay increases and any

other changes in an employee’s status. Kang’s transfer

from the day to the night shift is reflected in an

Employee Action Request Form. [ER, Tab 11, Exhibit

30, Herber Depo. 73:12-15, 84:15-19]

Significantly, no other person was performing

the NDT function on the night shift during, at the very

least, the six-month period before Kang was

transferred to the night shift. [ER, Tab 11, Exhibit 30,

Herber Depo. 92:1-2] The night shift had been closed

for months when Kang was transferred from the day

shift. [ER, Tab 11, Exhibit 30, Herber Depo. 93:20-21 |

Petitioner was familiar with Respondent

practice of transferring individuals to the night shift,

immediately before terminating their employment.

[ER, Tab 8, Declaration of Kang, Par. 10.] This was a

demotion, because the transfer disrupted nearly thirty

years of working the day shift. His entire personal and

familial schedule was disrupted by this change. [ER,

Tab 8, Declaration of Kang, Par. 10.]

In 2002, Herber told Kang he was being

transferred from the day to the night shift because of

Kang’s performance with respect to the 2002 Bendix

Signal survey. Normally, the lead worker or Level III

supervisor demonstrated this method to customer

’

13

inspectors. Lead Worker Lira was unfamiliar with the

procedure and had Kang demonstrate it. [ER, Tab 10,

Exhibit 26, Kang Depo., Vol. I, 131:10-25)

The customer indicated that Kang was

performing the procedure incorrectly. Kang was

following precisely the procedure that he was taught by

an ostensibly independent, Level III Technician, who

had come to train everyone. [ER, Tab 10, Exhibit 26,

Kang Depo., Vol. I, 132:3-7] The Level III trainer was a

personal friend of Herber. [ER, Tab 10, Exhibit 27,

Kang Depo., Vol. II, 186:8-9] Kang had been trained to

place the part in a perpendicular fashion. The customer

told Kang that this was incorrect. [ER, Tab 10, Exhibit

27, Kang Depo., Vol. II, 186:21-22]

It would have been Respondent’s normal

practice to discuss the January, 2003 Employee Action

Request Form, regarding Kang’s potential transfer to

the night shift with Kil, night shift manager. It is

Respondent’s normal practice to discuss with the

potential supervisor the potential new employee. [ER,

Tab 11, Exhibit 30, Herber Depo. 87:13-22] Contrary to

Respondent’s normal practice, Herber never asked for

Kil’s opinion regarding the prospect of Kang’s transfer

from the day shift to the night shift. [ER, Tab 10,

Exhibit 29, Kil Depo. 28:6] Herber neither discussed

nor offered a reason to Kil for Kang’s transfer from the

day to the night shift. [ER, Tab 10, Exhibit 29, Kil

Depo. 27:22 through 28:3]

The night shift was without a certified Level II

inspector for over six months, until Kang was

transferred. /® R, Tab 10, Exhibit 29, Kil Depo. 26:8-16]

Herber spoke with Kil the Friday before the Monday

that Kang was transferred to the night shift. Mr.

Herber told him that Kang would be transferred to the

14

night shift the following week. [ER, Tab 10, Exhibit 29,

Kil Depo. 27:16 through 28:27]

As part of his managerial responsibilities, Kil

approved via signature all Employee Action Request

Forms for employees under his supervision. [ER, Tab

10, Exhibit 29, Kil Depo. 41:59] Also contrary to

Respondent’s normal business practice, Kil never saw

the Employee Action Request Form that documented

Kang’s transfer to the night shift, ostensibly approved

by Lira. [ER, Tab 10, Exhibit 29, Kil Depo. 41:5-20]

2. HERBER’S SELECTION OF PETITIONER

FOR TERMINATION WAS THE PRODUCT

OF DISCRIMINATORY ANIMUS.

Herber stated that he learned of Kang’s alleged

English proficiency level when Kang “failed the

certification test after being there 25 years.” [ER, Tab

11, Exhibit 30, Herber Depo. 121:21 through 122:17].

Kang, however, has never failed a certification test.

[ER, Tab 8, Declaration of Kang, Par. 6]

Herber’s sole basis for concluding that English is

a component of Kang’s job responsibility is the fact that

one had to communicate with customers during the

“many audits.” [ER, Tab 11, Exhibit 30, Herber Depo.

102:3-8] Prior to Herber’s observation, no one at

Respondent , including Kang’s immediate supervisors,

ever informed Herber that Kang’s English proficiency

was a performance issue. [ER, Tab 11, Exhibit 30,

Herber Depo. 66:24 through 67:7] The “criterion” is

absent from Pcutioner’s performance evaluations (ER,

Tab 10, Exhibits 16-21.]

Herber was never trained that Kang’s level II

responsibilities included English proficiency. [ER, Tab

11, Exhibit 30, Herber Depo. 120:17-21.] Herber stated

15

that he believes part of Kang’s responsibility was to

communicate during the audits with customers. This

belief is not based on the Respondent Employee Guide,

or criteria identified in the Employee Performance

Reviews. Instead, this belief was based on his own

personal perspective, one that he does not attribute to

any other person. [ER, Tab 11, Exhibit 30, Herber

Depo. 119:12 through 120:20]

Herber admitted that Appellant’s level of

English proficiency should have been documented by

his supervisors, in the event that his proficiency level

impeded his work performance. [ER, Tab 11, Exhibit

30, Herber Depo. 66:8-14]

Herber never communicated to Robert Briles

that Kang’s English proficiency was a _ required

component of Kang’s Level II Technician position. [ER,

Tab 11, Exhibit 30, Herber Depo. 124:2-7] Herber

personally felt that Kang had a responsibility to speak

English proficiently, but Herber is not aware of any

personnel file record, reflecting an interference with

Kang’s work duties, caused by Petitioner’s level of

English proficiency. There was never an indication that

Petitioner didn’t understand what he was doing in the

workplace. [ER, Tab 11, Exhibit 30, Herber Depo.

124:8-16]

Respondent states that it terminated Kang and

retained Lira because “Mr. Lira was more proficient

than Petitioner and spoke and understood English

better than Petitioner.” [ER, Tab 10, Exhibit 25,

“Respondent ’ Responses to Petitioner’s Second Set of

Special Interrogatories.”| Herber testified that

English proficiency was one of the factors weighed in

determining to lay off Kang. [ER, Tab 11, Exhibit 30,

Herber Depo. 63:6-8]

16

There is no written documentation of Kang’s

language skills interfering with his performance,

despite dozens of performance evaluations. When

recommending persons for termination, Herber

considers seniority for Ulises Ortega and Andy

Romero, but abandons that criterion with respect to the

comparison of Lira and Petitioner. With nearly thirty

years’ experience at Respondent, Kang had the most

experience of all NDT workers in June of 2008,

including 20 years as a lead worker. [ER, Tab 10,

Exhibit 12, “Non Destructive Testing Department #32

Memorandum 6/6/03.” |

Contrary to Respondent’s Employee Guide,

Herber never discussed Kang’s lack of English

Language’ proficiency in Kang’s _ performance

evaluation. The performance evaluations have no

section dedicated to language proficiency, or verbal

communications skills whatsoever. [ER, Tab 11,

Exhibit 30, Herber Depo. 65:19-23]

Dealing with customers is not an essential

component of the job, neither as a Level II technician

nor as a lead worker. With respect to Petitioner’s

tenure of employment at Respondent, customer

interaction was not a component of any job description,

Employee Performance Evaluation or application for

Level II Technicians or Lead Workers. Audits were

normally handled by Level ITI inspectors and occurred

on an annual or semi-annual basis. [ER, Tab 8,

Declaration of Kang, Par. 5]

Herber attempted to create a “for cause”

rationaie for Petitioner’s termination. Respondent

admits that there is no record of a write-up that pre-

dates the 4/23/03 “failure to inspect” Disapproval

Report write-up of Kang. [ER, Tab 10, Exhibit 25,

17

“Respondent’ Responses to Petitioner’s Second Set of

Special Interrogatories.”]

A Disapproval Report is issued when a mistake

is made, such as the failure to follow a directive, or the

failure to abide by a company rule. [ER, Tab 10, Exhibit

29, Kil Depo. 56:6-9] Kil never prepared a Respondent

Disapproval Report for Kang. [ER, Tab 10, Exhibit 29,

Kil Depo. 56:1-12] In fact, Kil is not aware of a single

incident wherein Kang failed to follow a company rule.

LER, Tab 10, Exhibit 29, Kil Depo. 56:1-18]

No one, including Herber, has ever told Kil that

Kang failed to follow a company rule. [ER, Tab 10,

Exhibit 29, Kil Depo. 56:20-26) Kil never told Herber,

or any other Respondent supervisory personnel, that

Kang had breached a company rule. [ER, Tab 10,

Exhibit 29, Kil Depo. 59:1-13] If Kil had known that

Kang was liable of a company rule infraction, Mr. Kil

would have had an obligation to prepare a Disapproval

Report for Kang. [|ER, Tab 10, Exhibit 29, Kil Depo.

57:1-13| The issuance of Disapproval Reports is not

discretionary. I[t is the supervisor’s affirmative duty to

document company rule infractions in the form of

Disapproval Reports. [ER, Tab 10, Exhibit 29, Kil

Depo. 57:13-15]

During Kang’s employment tenure, Kil never

saw Kang’s Respondent Disapproval Report dated

4/25/03. {ER, Tab 10, Exhibit 29, Kil Depo. 58:1-17] The

line for Kang’s supervisor’s signature, on the bottom of

the 4/25/03 Disapproval Report, is blank. This line

should have been executed by Kil, Kang’s supervisor.

[ER, Tab 10, Exhibit 29, Kil Depo. 58:8-25] Kil has no

idea why he was noi asked to review, sign or otherwise

approve the 4/25/03 Disapproval Report. [ER, Tab 10,

Exhibit 29, Kil Depo. 59:2] Herber never even told Kil

about the 4/25/03 Disapproval Report after the fact.

18

[ER, Tab 10, Exhibit 29, Kil Depo. 59:1-16] Not even

Mr. Kil’s assistant, authorized to sign Disapproval

Reports in Mr. Kil’s absence, signed the 4/25/03 form.

[ER, Tab 10, Exhibit 29, Kil Depo. 59:20-25]

Herber did not work nights. [ER, Tab 10,

Exhibit 29, Kil Depo. 59:8] Kil’s assistant never told Mr.

Kil that Kang had failed to follow a rule; Kil has no idea

how Herber completed the 4/25/03 Disapproval Report,

since he never had any form of discussion with Mr.

Herber about this report. [ER, Tab 10, Exhibit 29, Kil

Depo. 60:2-7] Kil deemed the 4/25/03 Disapproval

Report to have been completed in an unusual! fashion,

not within the normal practice of the company. [ER,

Tab 10, Exhibit 29, Ki] Depo. 62:19-25]

Kil has never been made aware of the alleged

“first occasion” of Kang’s company rules infraction, as

alleged in the 4/25/03 Disapproval Report. [ER, Tab 10,

Exhibit 29, Kil Depo. 63:5] Even had there been a first

occasion, the documentation of such would have had to

have been in the office. [ER, Tab 10, Exhibit 29, Kil

Depo. 63:8] Disapproval Reports are distributed solely

for serious rule violations. Some first occurrences can

result in a verbal warning. Neither Kil nor his assistant

ever gave a verbal warning to Kang. No one else had

ever told Mr. Kil that Kang had a first occurrence.

[ER, Tab 10, Ex. 29, Kil Depo. 64:2-25]

Kang was terminated on June 9, 2003. [ER, Tab

10, Exhibit 27, Kang Depo., Vol. II, 192:9] Kang found

out about his termination only when he punched his

timecard at 4:20 for the 4:30 shift and it didn’t work. A

woman from the office tried to assist Kang but it still

didn’t work. [ER, Tab 10, Exhibit 27, Kang Depo., Vol.

I], 192:16-25]

Kang looked frantically for Kil. Unable to find

Mr. Kill, Petitioner went to see Lira, who told Kang

19

that somebody at personnel wanted to see Kang. Kang

had had one helper, a trainee who was laid off the day

before. Personnel had called this helper in advance,

informing him about the lay-off before any attempt to

punch his tie card was made. Kang wasn’t afforded

such courtesy. [ER, Tab 10, Exhibit 27, Kang Depo.,

Vol. II, 193:1-25]

Kang told Kil that Kang had been terminated.

When he informed Kil, Petitioner was unaware of the

rationale for the termination. Kil had also not been

informed of the decision to terminate Kang’s

employment, so he went to the human resources

department and inquired. [ER, Tab 10, Exhibit 29, Kil

Depo. 43:13-25] Tracey Romero, from Respondent’

Human Resources department, confirmed Kang’s

termination, officially informing Kil of the fact. [ER,

Tab 10, Exhibit 29, Kil Depo. 44:2]

Kang signed a June 9, 2003 COBRA Notification,

the same day that he was notified about his

termination. He was not given the legally mandated

opportunity to review, consult and check for changes.

[ER, Tab 10, Exhibit 6, “6/9/03 COBRA Notification.” ]

In the past, Respondent’s President, Robert Briles, had

asked Kil to translate Level II certification test

materials for Kang. Respondent knew that Kang

couldn’t speak or read English well enough to interpret

legal documents independently. [ER, Tab 10, Exhibit

29, Kil Depo. 66:8-11] When he was terminated, Lily

Wing never asked Kil to read for Kang any of the

documents” affiliated with the termination of

Petitioner’s employment. [ER, Tab 10, Exhibit 29, Kal

Depo. 68:7-9]

Kang’s June 3, 2003 Employee Action Request

Form was not signed by Herber even though he was

the director; normally during the course of business the

20

director signs as approving party and he was Kang’s

supervisor. [ER, Tab 11, Exhibit 30, Herber Depo.

110:24 through 111:21] Respondent’s President, Robert

Briles, solely upon Herber’s recommendation, decided

to lay off Kang. [ER, Tab 11, Exhibit 30, Herber Depo.

113:13-18]

Night Manager Kil did not sign the Employee

Action Request Form dated June 10, 2003,

commemorating Kany’s termination. No reason for this

lay-off is indicated on the form, signed on June 6, 2003

only by Robert Briles with a June 9, 2003 effective date.

Significantly, this form was not signed by Kil, Kang’s

night shift supervisor. [ER, Tab 10, Exhibit 5,

“Employee Action Request Form dated 6/10/03.” |

REASONS FOR GRANTING THE PETITION

The court of appeals decision has decided an

important question of federal law in a manner that

directly contradicts this Court’s Ash v. Tyson /oods,

Inc. decision. Ash v. Tyson Foods, Inc. (2006) 546 U.S.

454, 1268S. Ct. 1195. The term “stupid Korean” is direct

evidence of racial discrimination as a matter of law,

tantamount to the use of the term “boy” in the Ash

case.

Certiorari should be granted to bring the Ninth

Circuit into compliance with this Court’s decision in

Ash, Anderson v. City of Bessemer (1985) 470 U.S. 564

and Reeves v. Sanderson (2000) 530 U.S. 133. The court

of appeals has inappropriately adopted the facts of the

moving party, to the detriment of the non-moving

party.

21

CONCLUSION

For the above reasons, a writ of certiorari should

issue to review the judgment and opinion of the Court

of Appeals for the Ninth Circuit.

Respectfully Submitted,

Franklin L Ferguson, Jr Marina Tramontozzi

Franklin L Ferguson Jr Counsel of Record

Law Offices c/o Franklin L Ferguson

3550 Wilshire Boulevard, Jr Law Offices

Suite 1745-A 3550 Wilshire Boulevard,

Los Angeles, CA 90010 Suite 1745-A

323-936-4375 Los Angeles, CA 90010

323-936-4375

la

(any footnotes trail end of each document)

No. 06-55913

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NEUNG KANG, an individual, Plaintiff - Appellant,

v.

PB FASTENERS, a Corporation doing business in

California, Defendant - Appellee,

and

MERLE OGLESBY, an individual, Defendant.

=

February 7, 2008, Argued and Submitted, Pasadena,

California

February 27, 2008, Filed

NOTICE: PLEASE REFER TO FEDERAL RULES

OF APPELLATE PROCEDURE RULE 32.1

FOVERNING THE CITATION TO UNPUBLISHED

OPINIONS.

COUNSEL: For NEUNG RANG, an_ individual,

Plaintiff - Appellant: Franklin L. Ferguson, Jr., Los

Angeles, CA.

For PB FASTENERS, a Corporation doing business in

California, Defendant - Appellee: Eric L. Dobberteen,

Esq., CLARK & TREVITHICK, Los Angeles, CA.

MERLE OGLESBY, an individual, Defendant: No

appearance.

2a

JUDGES: Before: PREGERSON, ARCHER **, and

WARDLAW, Circuit Judges.

OPINION

MEMORANDUM *

Before: PREGERSON, ARCHER**, and WARDLAW,

Circuit Judges.

In this wrongful termination action, Neung Kang

appeals the district court's decisions to (1) grant

summary judgment for his former employer, PB

Fasteners ("PBF"), and (2) strike his motion to amend

his complaint. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.

[

Even assuming that Kang established a prima facie

case of employment discrimination under 42 U.S.C. §

1981, McDonnell Douglas Corp. v. Green, 411 U.S. 792,

93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), the district court

correctly concluded that Kang failed to raise a triable

issue of fact as to whether PBF's proffered legitimate

non-discriminatory reasons were pretextual. PBF

asserts that it reopened the night shift in January 2003

to increase efficiency and selected Kang to fill the slot

because he had the experience necessary to run a shift

by himself, his language difficulties made it harder for

him to interact with customers during the day, and the

night shift manager, I] Kil, was a Korean speaker. PBF

terminated Kang in June 2003 when it laid off three of

the five members of Kang's NDT department. The

department, lost most of its work when PBF lost its

3a

necessary government qualifications, and _ the

department's lead worker, Mario Lira, was retained

instead of Kang because Lira "was more proficient at

the job" and spoke better English.

Kang offers no direct evidence, and only weak

circumstantial evidence, that PBF's proffered reasons

are pretextual. See Godwin v. Hunt Wesson, 150 F.3d

1217, 1220, 1222 (9th Cir. 1998) (noting that although

"very little" evidence of direct discrimination is needed

to survive summary judgment, circumstantial evidence

must be "specific" and "substantial"). In particular, there

is no evidence suggesting that Robert Herber, the

supervisor directly responsible for Kang's transfer and

termination, bore any racial animus toward him. Kang's

own testimony demonstrates that Herber did not call

‘Kang a "stupid Korean." n1 Nor is there evidence that

Herber was aware of any discriminatory treatment

toward Kang by his co-workers, except one incident

that occurred before Herber became Kang's supervisor.

Herber's consideration of Kang's language skills as a

factor in both decisions was not improper: Kang admits

that he speaks English poorly and that his job required

him to interact with customers, and Herber testified to

having witnessed Kang's language difficulties affect his

job performance. n2_ Finally, any procedural

irregularities in Kang's transfer and termination were,

as the district court noted, "minor at best," and do little,

if anything, to suggest that Herber acted with

discriminatory intent.

Because Kang failed to raise a triable issue as to

pretext, the district court properly granted summary

judgment for PBF as to his § 1981 claims. Wallis v. J.R.

Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994).

4a

II

The district court also correctly granted summary

judgment for PBF as to Kang's state law contract

claims. Considering the totality of the circumstances,

Kang was an at-will employee and no implied-in-fact

employment contract was created. See Guz v. Bechtel

Nat'l, Inc., 24 Cal. 4th 317, 335-37, 100 Cal. Rptr. 2d 352,

8 P.3d 1089 (2000) (noting that California employees are

presumed to be employed at will, but that parties can

contract, explicitly or implicitly, to place greater

limitations on an employer's termination rights).

PBF's 2001 Employee Guide hurts, rather than helps,

Kang's claim that an implied-in-fact contract was

created. The first page of the guide specifies that PBF

"is an at will employer" and that "an employee may be

terminated without cause" at the company's discretion.

The guide provides examples of misconduct for which

"[e]mployees may be disciplined, up to and including

termination," but it specifically provides that the list is

not exhaustive and nothing suggests that an employee

could not be terminated for reasons other than

misconduct. Finally, the document makes clear that

"[nJothing in this Guide is intended to alter the at-will

status of employment with the company." Accordingly,

a reasonable fact finder could not rationally determine

that the guide formed the basis for an implied-in-fact

agreement; indeed, it supports the proposition that

Kang was an at-will employee. Cf. id. at 346 (finding an

implied contract where an employer's documents

contained ambiguous and contradictory statements

such that "a fact finder could rationally determine that

despite its general disclaimer, [the employer] had

bound itself to the specific provisions of these

ba

documents").

Kang's thirty years of employment with PBF, over

which time he allegedly "received merit raises,

promotions, and highly favorable performance reviews,"

does not, standing alone, create an implied-in fact

contract. Id. at 342 ("Absent other evidence of the

employer's intent, longevity, raises and promotions...

do not, 7n and of themselves, . . . constitute a contractual

guarantee of future employment security." (emphasis in

original)); but see Foley v. Interactive Data Corp., 47

Cal. 3d 654, 677, 680, 254 Cal. Rptr. 211, 765 P.2d 373

(1988) (noting that an "employee's longevity of service"

can be a factor as to the existence of an implied-in-fact

contract). As the California Supreme Court has noted,

"[a] rule granting such contract rights on the basis of

successful longevity alone would discourage the

retention and promotion of employees.” Guz, 24 Cal.4th

at 342.

Because Kang presents no evidence of an implied

contract other that the employee guide and his long

tenure of service, the district court properly granted

summary judgment as to Kang's contract claim. n3

{II

Nor did the cistrict court abuse its discretion in

striking Kang's motion to amend his complaint for

failure to comply with a local rule. Kang's attorney

informed opposing counsel of his intention to amend the

complaint only ten days before filing the motion,

thereby violating Local Rule 7-3, which requires

counsel to meet and confer with opposing counsel at

least twenty days prior to filing any motion that, under

6a

the Federal Rules of Civil Procedure, need not be filed

within a specified period of time. See Fed. R. Civ. P.

15(a) (governing motions to amend complaints and not

setting forth any specific period of time within which

they must be filed). Moreover, even if the local rule did

not apply, the district court would not have abused its

discretion by striking the motion because it was

untimely and filed with undue delay.

IV

The district court's grant of summary judgment for

PBF and decision to strike Kang's motion to amend his

complaint are therefore

AFFIRMED.

*This disposition is not appropriate for publication and

is not precedent except as provided by 9th Cir. R. 36-3.

**The Honorable Glenn L. Archer, Jr., Senior United

States Circuit Judge for the Federal Circuit, sitting by

designation.

1Kang testified that Herber actually said, "You don't

speak English, and you've been here for 30 years. You

don't know how to work." These statements, however

hurtful, are not probative of racial animus.

2It is also noteworthy that one of the three employees

laid off was Herbeis own son-in-law, further

suggesting that the selection was based purely on the

employees' qualifications rather than on improper

motives.

Ta

3Because Kang has failed to raise a triable issue as to

the existence of an implied-in-fact contract, his related

claim based on the implied covenant of good faith and

fair dealing also fails. See Guz, 24 Cal. 4th at 349-50

(noting that the implied covenant of good faith and fair

dealing “cannot impose substantive duties or limits on

the contracting parties beyond those incorporated in

the specific terms of their agreement’).

8a

Filed 5/22/06

CASE NO.: CV D5-4196 ABC (VBKx)

UNITED STATES DISTRICT COURT CENTRAL

DISTRICT OF CALIFORNIA

NEUNG KANG,

Plaintiff,

¥.

PB FASTENERS,

Defendant.

ORDER RE: DEFENDANT'S MOTION FOR

SUMMARY JUDGMENT

Pending before the Court is a Motion for Summary

Judgment filed by PB Fasteners. The Court previously

determined that it did not require oral argument in this

matter. Upon consideration of the parties’ submissions

and the case file, the Court hereby GRANTS PB

F'astener's Motion.

FACTUAL BACKGROUND

Plaintiff Neung Kang, a Korean-American man, alleges

that Defendant PB Fasteners ("PBF") discriminated

against him when it laid him off from his position with

PB Fasteners, a position that he had held for over

thirty years. According to Plaintiff, PBF discharged

him because of his ancestry or ethnic background.

Plaintiff began working for PBF in its non-defective

testing department in 1973 and continued to work for

PBF until he was laid-off in 2003.

9a

PBF manufactures precision, high-strength aerospace

fastener that are used in commercial. and military

aircrafts around the word. PBF's non-defective testing

department, the department in which Plaintiff worked,

was responsible for inspecting and testing PBF

fasteners to ensure that they met customer

specifications. This responsibility extended to

“magnetic particle" inspection of the fasteners.

As of 2003, the non-defective testing department was

comprised of five employees: one lead person; two level

II inspectors; and two trainees. The lead person's duties

included first level supervision of the department,

conducting inspections, and certifying the fasteners.

This position was held by Mario Lira. The level II

inspectors were certified inspectors, but they were

nevertheless subordinates of the lead person. Their

responsibilities included inspecting and certifying the

fasteners. These positions were held by Plaintiff and

Andy Romero. The two trainees were not certified, and,

as such, they were permitted only to help process parts,

but not to inspect the parts. The trainee positions were

held by Ulises Ortega and Ivan Torres.

In 2003, the federal government and other customers

revoked PBF's qualifications to conduct the magnetic

particle inspection procedure. Since then, PBF has been

required to send parts needing a magnetic particle

inspection to outside vendors. Citing this fact, PBF

reduced its workforce in the non-defective testing

department. In June 2003, it laid off three of its five

employees assigned to that department. Specifically, it

laid off the two level II inspectors, including Plaintiff,

and one of the two trainees. After the lay-offs, only the

lead person, Mario Lira, and one trainee remained in

10a

the | non--defective testing department. PBF has never

hired additional people to fill the jobs that it eliminated

in 2003.

On June 9, 2005, Plaintiff filed a Complaint in this

action. He initially raised four claims far relief, but only

three of those claims remain: (1) wrongful termination

under 42 U.S.C. § 1981; (2) breach of implied-in-fact

contract; and (8) breach of the covenant of good faith

and fair dealing under California law.

On April 10, 2006, PBF filed a Motion for Summary

Judgment. Thereafter, on April 27, 2006, Plaintiff filed

an Opposition to Plaintiff's Motion. On May 4, 2006,

PBF filed a Reply.

STANDARD ON A MOTION

FOR SUMMARY JUDGMENT

The party moving for summary judgment has the initial

burden of establishing that there is "no genuine issue as

to any material fact and that [it] is entitled to a

judgment as a matter of law." Fed. R. Civ. Pro. 56(ce);

see British Airways Bd. v. Boeing Co., 585 F.2d 946, 951

(9th Cir. 1978); Fremont Indemnity Co. v. California.

Nat'l Physician's Insurance Co., 954 F’. Supp. 1399, 1402

(C. D. Cal. 1997).

If, as here, the non-moving party has the burden of

proof at trial, the moving party has no burden to negate

the opponent's claim. Celotex Corp. v. Catrett, 477 US.

317, 323 (1986). The moving party does not have the

burden to produce aevidence showing the absence of a

genuine issue of material fact. Id. at 325. "Instead, . . .

the burden on the moving varty may be discharged by

lla

‘showing' - that is, painting out to the district court -

that there is an absence of evidence to support the

nonmoving party's case." Id. (citations omitted).

Once the moving party satisfies this initial burden, "an

adverse party may not rest upon the mere allegations

or denials of the adverse party's pleadings. . .[T]he

adverse party's response. .. must set forth specific facts

showing that there is a genuine issue for trial." Fed. R.

Civ. Pro. 56(e) (emphasis added). A "genuine issue" of

material fact exists only when the nonmoving party

makes a sufficient showing to establish the essential

elements to that party's case, and on which that party

would bear the burden of proof at trial. Celotex, 477

U.S. at 322-23. "The mere existence of a scintilla of

evidence in support of the plaintiff's position will be

insufficient; there must be evidence on which a

reasonable jury could reasonably find for plaintiff."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986). The evidence of the nonmovant is to be believed,

and all justifiable inferences are to be drawn in favor of

the nonmovint. Id. at 245. However, the court must

view the evidence presented "through the prism of the

substantive evidentiary burden." Id. at 252.

DISCUSSION

3 Plaintiff Cannot Maintain His Section 1981 Claim

for Wrongful Termination.

Under 42 U.S.C. § 1981, discrimination based on

"ancestry or ethnic characteristics" is prohibited. St.

Francis Coll. v. Al-Khazraji,n 481 U.S. 604, 613 (1987).

"Although national origin discrimination is not within

the ambit of § 1981, race has been defined broadly to

12a

cover immigrant ethnic groups." Fonseca v. Sysco Food

Servs. of Arizona Inc., 374 F.3d 840, 850 (9th Cir. 2004)

(citing Manatt v. Bank of Am., NA, 339 F’. 3d 792, 798

(9th Cir. 2003). Analysis of an employment

discrimination claim under § 1981 follows the same

legal. principles as those applicable in a Title VII

disparate treatment case. Fonseca, 374 F. 3d at 850.

Both require proof of discriminatory treatment and the

same set of facts can give rise to both claims. Id. (citing

Lowe v. City of Monrovia, 775 F.2d 998 (9th Cir. 1985)).

Under the Supreme Court's decision in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (2000), a plaintiff

alleging disparate treatment under Title VII must first

establish a prima facie case of discrimination.

McDonnell Douglas Corp., 411 U.S. at 802. To do so, the

plaintiff must establish four things: (1) that he belongs

to a protected class; (2) that he was qualified for the

position; (3) that he was subject to an adverse

employment action; and (4) that he was treated less

favorably than similarly situated individuals outside of

his protected class. Id. Under the McDonnell Douglas

framework, "[t]he requisite degree of proof necessary to

establish a prima facie case for Title VII ... on

summary judgment is minimal and does not even need

to rise to the level cf a preponderance of the evidence."

Wallis v. J. R. Co., 26 F. 3d 885, 889 (1994)

If the plaintiff makes this initial showing, the burden of

production, but not persuasion, then shifts to the

employer to articulate some legitimate,

nondiscriminatory reason for ine challenged action. Id.

If the employer does so, the plaintiff must show that

the articulated reason is pretextual. Plaintiff can do so

in one of two ways: (1) directly, by showing that

13a

unlawful discrimination more likely motivated the

employer; or (2) indirectly, by showing that the

employer's proffered explanation is “unworthy of

credence" because it is internally inconsistent or

otherwise not believable. Chuang v. Univ. of Cal. Davis,

225 F.3d 1115, 1124 (9" Cir. 2000).

In ruling on a summary Judgment motion in

employment discrimination cases, courts must be

mindful that "the plaintiff in an employment

discrimination action need produce very little evidence

in order to overcome an employer's motion for

summary judgment." Id. "This is because ‘the ultimate

question is one that can only be resolved through a

searching inquiry - one that is most appropriately

conducted by a factfinder, upon a full record." Id.

(citing Schnidrig v. Columbia Mach. Inc., 80 F.3d 1406,

1410 (9th cir. 1996)).

Here, Plaintiff has failed to produce enough evidence to

maintain his section 1981 claim. First, he has not met

his minimal burden to establish a prima facie case of

discrimination. Specifically, he has not shown that

similarly situated individuals outside of his protected

class were treated more favorably. On the contrary, the

only other similarly situated person to Plaintiff was also

laid off in 2003. Indeed, once PBF last its qualifications

to conduct magnetic particle inspection, it eliminated all

existing level II inspector positions, not just Plaintiff's

position. Although Plaintiff attempts to compare his

status to that of Mario Lira, this comparison is

unavailing because My. Lira was not a level II

inspector. Rather, he was and remains a lead inspector,

and, as such, he was Plaintiff's supervisor, not his equal.

Plaintiff even recognized this fact in his deposition.

l4a

Supplemental Decl. of E. Alex Beroukimn, Exh. A; Id.;

Exh. C). Accordingly, no similarly situated individual

received more favorable treatment.

Moreover, Plaintiff has not shown that PBF has hired

anyone to fill the position that he had at PBF. On the

contrary, PBF eliminated the level II inspector position

all together in 2003. Since that time it has not sought to

reinstate the position or create the position under a

different title. Instead, consistent with its explanations,

PBF appears to have eliminated the position due to a

decrease in workload.

Second, even if Plaintiff had met his initial burden, he

has cited no evidence to show that PBF's stated reason

for laying him off was a pretext for discrimination. PBF

articulated a legitimate, nondiscriminatory reason for

the challenged action - namely, that it was forced to

reduce its workforce after it lost its qualification to

conduct magnetic particle inspection. This reason is

neither internally inconsistent nor otherwise

unbelievable. Indeed, it makes sense considering that a

large portion of the work performed in Plaintiff's

department was transferred to outside companies.

Although Plaintiff states that he did not notice a

decrease in work, this self-serving statement, absent

supporting evidence, cannot establish a triable issue of

fact. And in any event, Plaintiff himself submitted

uncontroverted probative evidence showing that PBF''s

non-defective testing department suffered a

pronounced decrease in “magnetic particle” inspection

of fasteners.

Moreover, Plaintiff cannot meet his burden to show

pretext by relying on his co-workers’ alleged racial

l5a

slurs and acts of discrimination. Plaintiff has failed to

tie any of those seemingly isolated instances to anyone

at PBF with authority over the hiring, and firing of

employees. Indeed, none of the people who allegedly

made the derogatory remarks about Plaintiffs' ethnicity

had any say whatsoever regarding the decision to end

Plaintiffs employment with PBF, nor was there any

link between the timing of the alleged remarks and the

decision to terminate Plaintiff's employment.’

Additionally, Plaintiff's attempt to attribute a racial

slur to a decisionmaker at PBF is equally unavailing,

considering that the decisionmaker Plaintiff identified

never made the statement that Plaintiff attempts to

attribute to him.®

Likewise, Plaintiff's reliance on an alleged physical

attack he suffered at PBF is not relevant to whether

PBF's stated decision to terminate his employment was

a pretext for discrimination. Although Plaintiff claims

that he was attacked by co-workers, he does not claim,

nor does he cite any evidence suggesting, that any

decisionmaker at PBF knew of the attack. See Mondero

v. Salt River project, 400 F.3d 1207, 1213 (9th Cir. 2005)

(stating that comments of employees not acted upon or

communicated to a decision maker are insufficient to

establish pretext); see also Merrick v. Farmers Ins.

Group, 892 F.2d 1434, 1437 (9th Cir. 1990) (same). And

in any event, Plaintiff cannot establish any nexus

between the alleged attack and PBF's decision to

terminate his employment.

Furthermore, Plaintiffs transfer to the nightshift,

either in isolation or considered with other evidence

cited by Plaintiff, is insufficient to establish a

discriminatory pretext. The transfer, while perhaps

l6a

undesirable to Plaintiff, was not an adverse change in

employment status because Plaintiff retained the same

level of seniority that he enjoyed in his previous shift.

See Burlington Indus., Inc. v. Ellerth,524 U.S. 742, 761

(1998) (stating that a tangible employment action is a

significant change in employment status, "such as

hiring, firing, failure to promote, reassignment with

significantly different responsibilities, or a decision

causing a significant change in benefits"); Dennis v.

Nevada, 282 F. Supp. 2d 1177, 1188 (D. Nev. 20003) (“A

reassignment to a more inconvenient job or position is

insufficient to show tangible employment action.")

(citing Harlston v. McDonnell Douglas Corp., 37 F. 3d

379, 3882 (8th Cir. 1994)). More importantly,

although not obligated to do so, PBF cited several

unrebutted non-discriminatory reasons for the transfer.

For example, it explained that it wanted someone who

spoke Korean, like the nighttime manager, to supervise

Plaintiff because Plaintiff did not speak English.

Additionally, PBF stated that it wanted its non-

defective testing machines running day and night to

increase efficiency. Moreover, because of Plaintiff's

years of experience, PBF’ believed that he could

perform the job by himself. And in any event, aside

from self-serving speculation, Plaintiff has utterly failed

to show any nexus between the decision to transfer him

to the nightshift and the decision to terminate his

employment.

Finally, the alleged irregularities in the way in which

Plaintiff was transferred to the night shift, selected for

termination, and written up for company violations

cannot establish pretext. First, the irregularities that

Plaintiff cites are minor at best. But more importantly,

nothing suggests that these irregularities had anything

17a

to with the decision to terminate his employment. And

to the extent that this evidence suggests a

discriminatory pretext, it is at best circumstantial, but

neither specific enough nor substantial enough to create

a genuine issue of material fact.fn4 Moreover, it in no

way detracts from PBF's stated reason for discharging

Plaintiff, particularly because PBF discharged the

other level II inspector and eliminated the position

altogether.

In short, Plaintiff cannot meet his initial burden to

establish a prima facie case of discrimination because he

has not shown that PBF treated him differently than a

similarly situated person. And even if he could make a

prima facie case, he has cited no evidence to create a

triable of fact questioning PBF's stated reason for

discharging him. Accordingly, his Section 1981 claim

fails.

I]. Plaintiff's Employment With PBF Was At-will.

In California, employment for an unspecified term is

terminable at the will of either party. Cal. Lab. Code §

2922. Absent proof of an agreement to the contrary, an

employer may discharge an employee at any time and

for any reason, regardless of the employer's motive,

arbitrariness, or "bad faith." Guz v. Bechtel National

Inc., 24 Cal. 4th 317, 327 (2000).

Nevertheless, California recognizes that implied-in-fact

contracts can arise prohibiting an employer from

terminating an employee absent "good cause" to do so.

To determine the existence of such a contract, the

entire relationship of the parties is examined. See

Eisenberg v. Alameda Newspapers, Inc., 74 Cal. App.

18a

4th 1359, 1387 (1999). The factors to consider include:

"the terms of any relevant application for employment,

employee handbook or manual; the personnel policies

and practices of the employer; the employee's longevity

of service; actions or communications by the employer

constituting assurances of continued employment; and

the practices of the industry in which the employee is

engaged." Id. If, in a particular case, the facts are

undisputed and admit only one conclusion as a matter of

law, the existence of an implied promise to discharge

for cause may be resolved on summary judgment. Id. at

1386-87, Davis v. Consolidated Freightways, 29 Cal.

App. 4th 354, 366 (1994).

Here, Plaintiff contends that the PBF's Employee

Guide sufficiently rebuts the presumption of at-will

employment.’ Specifically, he asserts that the

Employee Guide provides that all employees must

receive advance notice of termination decisions. He also

notes that the Employee Guide lists examples of

discipline problems that can result in immediate

dismissals and describes a progressive disciplinary

policy of warnings. Plaintiff contends that these aspects

of the Employee Guide, in and of themselves, are

sufficient to create a triable issue of fact regarding

whether, in fact, there was an implied-in-fact contract

to discharge only for good cause.

In support of this contention, Plaintiff relies on the

California Supreme Court's decision in Guz v. Bechtel

Nat': 'nc., 24 Cal. 4th 317 (2000). In Guz, the Supreme

Court he!d that "disclaimer language in an employee

handbook or policy manual] does not necessarily mean

an employee is employed at-will. But even if a

handbook disclaimer is not controlling in every ease,

19a

neither can such a provision be ignored in determining

whether the parties' conduct was intended and

reasonably understood, to create binding limits on an

employer's statutory right to terminate the relationship

at-will." Guz, 2 Cal. 4th at 340 (citations omitted).

The Supreme Court then explained that "the more

clear, prominent, complete, consistent, and _all-

encompassing the disclaimer language set forth in

handbooks, policy manuals, and memoranda

disseminated to employees, the greater the likelihood

that workers could not form any reasonable contrary

understanding." Id. at 317 n.11. The Court also refused

to "foreclose the possibility an employer could

promulgate a discla*’mer clause which established

beyond contrary inference that the employer intended

employment tz be at-will.” Id.

The Guz Court ultitaately conc.uded, however, that the

specific language at issue in the employee handbook

before it was ambiguous. The handbook stated that

"employees have no employment agreements

guaranteeing continuous service and may resign at

their option or be terminated at the option of Bechtel."

Id. at 328. This equivocal language, coupled with the

existence of policy personnel rules, created a genuine

issue of fact regarding whether the employment

agreement was truiy at-will:

The specific language of |the employer's]

disclaimer, stating that employees had no

contracts "guaranteeing . . . continuous service"

and were terminable at [the employer's] "option,"

did not foreclose an understanding between [the

employer and all its workers that [it] would

20a

rnake its termination decisions within the limits

of its written personnel rules.

Id. at 372-73 (emphasis in original). As such, there was

a question of fact whether the employer had "breached

a contractual obligation to follow certain procedural

policies in the termination process." Id. at 348.

In this case, by contrast, the Employment Agreement

contains express and unequivocal language sating that

all employment at PBF is "at-will." Thus, the Court

must determine whether PBF's "at-will" disclaimer

language is so "clear, prominent, complete, consistent

and all-encompassing" that no contrary inference can be

drawn regarding PBF's intent to preclude or cause

termination rights in its employees. To do so, the Court

considers the entire Employee Guide, with particular

emphasis on its at-will language and its disciplinary

policy of warnings.

Having done so, the Court finds that the Employee

Guide is sufficiently explicit in providing that

employees could have their employment terminated

"at-will" and "without cause" to preclude any contrary

understanding on the part of employees. Indeed, the

Employee Guide states not once, but twice that

employment at PBF is “at-will”;

[PBF] is an at-will employer [sic] therefore upon

the companies [sic] discretion an employee may

be terminated without cause.

Decl. of E. Alex Beroukhim, Exh. Q at 1.

[T]he company reserves the right to discharge or

2la

demote any employee with or without cause and

_ with or without prig notice, consistent with its

policy of at-will employment.

Id. at 12. Unlike in Guz, where the employee handbook

ainbiguously referred to "no guarantees" and the

employer's "option" to terminate employees, the PBF

Employee Guide states in no uncertain terms that

employment is "at-will" and that employees can be

discharged "with or without cause and with or without

prior notice." Indeed, Plaintiff himself concedes that the

Employee Guide "contains a prominent disclaimer that

employment is at-will." opposition at 25 (emphasis

added). Given these prominent and unequivocal

statements, Plaintiff's reliance on the Employee Guide

to establish an implied agreement not to terminate

except for good cause is misplaced.°

Moreover, Plaintiffs reliance on the Employee Guide's

disciplinary policy ignores the context of the guide in

which that policy appears. For example, in the same

paragraph that the guide lists the reasons why an

employee may be involuntarily terminated, the guide

warns in clear cut terms that these specified reasons do

not affect or limit PBF's right to terminate an employee

with or without cause:

Notwithstanding this last of rules, the company

reserves the right to discharge or demote any

employee with or without cause and with or

without prior notice, consistent with its policy of

at-will employment.

Decl. of E. Alex Beroukhim, Exh. Q at 1 (emphasis

added).

22a

In short, the language in the Employee Guide leads to

only one possible conclusion: Plaintiff's employment

was “at-will." Accordingly, he cannot maintain his claim

of breach of implied-in-fact contract. Consequently, he

cannot maintain his claim for breach of the covenant of

good faith and fair dealing, as that claim is derivative of

his breach of implied-in-fact contract claim. Guz, 24 Cal.

4th 349-350 (noting that the covenant of good faith and

fair dealing ,,cannot impose substantive duties or limits

on the contracting parties beyond those incorporated in

the specific terms of their agreement").

CONCLUSION

Based on the foregoing, PBF's Motion for Summary

Judgment is GRANTED.

IT ISSO ORDERED.

Footnotes

fnl See Villiarimo v. Aloha Islands Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002) (noting that Ninth Circuit has

refused to find a "genuine issue" where the only

evidence presented is "uncorroborated and self-serving"

testimony) (citing Kennedy v. Applause, Inc., 90 F.3d

1477, 1481 (9th Cir. 1996); Johnson v. Washington

Metro. Transit Auth., 883 F.2d 125, 128 (D.C. Cir. 1989)

(discussing cases in which self-searing testimony

uncorroborated by other evidence did not create a

genuine issue of material fact)).

fn2 See Vasquez v. County of Los Angeles, 349 F. 3d

634, 640 n.9 (9th Cir. 2003) (citing Willis v. Marion

23a

County Auditor's Office, 118 F.8d 542, 548 (7th Cir.

1997) (refusing to impute racial bias of subordinates

who reported rule violation to superior because

superior did her own independent investigation); Long

v. Eastfield Coll., 88 F.3d 300, 306-07 (5th Cir. 1996)

(noting that, if final decisionmaker based decision on

independent investigation, causal link between

subordinate's retaliatory motive and _ plaintiff's

termination would be broken)).

fn3 In his Opposition, Plaintiff claims that Bob Herber,

one of the people involved in the decision to terminate

Plaintiffs employment, called Plaintiff a "stupid

Korean.” Opposition at 8-9. But in fact, Plaintiff

eonceded that Mr. Herber never called Plaintiff a

"stupid Korean"; instead, Mr. Herber noted that

Plaintiff did not speak English - which Plaintiff also

concedes - and that Plaintiff did not know how to

perform his job:

Mr. Sleeker: This happened in 2003, you said,

correct?

THE INTERPRETER: you mean when Bob

Herber told him stupid Korean?

Mr. Bleeker: Yeah.

Plaintiff: He didn't say "stupid Korean," but he

said, "You don't speak English after so many

years in the United States, and you don't even

know how to do your own work." And he really

embarrassed me many times, and he made me

feel really bad.

Supplemental Decl. of E. Alex Beroukimn, Exh. D.

fn4 See Cornwell v. Electra Cent. Credit Union, 439

24a

F.3d 1018, 1029 (9th Cir. 2005) ("To establish that a

defendant's nondiscriminatory explanation is a pretext

for discrimination, plaintiffs may rely on circumstantial

evidence, which we previously have said must be

‘specific’ and ‘substantial’ to create a genuine issue of

material fact.") (citing Godwin v. Hunt Wesson, Inc.,

150 F.8d 1217, 1222 (9th Cir. 1998) ("Such

{circumstantial} evidence of 'pretense' must be 'specific’

and 'substantial' in order to create a triable issue with

respect to whether the employer intended to

discriminate on the basis of sex.")).

fn5 Plaintiff also notes that he was a long-term

employee. However, longevity, raises, and promotions

without specific words or conduct by the employer

negating at-will employment, will not suffice to raise a

triable issue of fact. Guz v. Bechtel Nat'l Inc., 24 Cal.4th

317, 338, 341-42 (2000).

fn6The court does not mean to imply that an employee

guide stating that employment is at-will precludes as a

matter of law a claim for implied-in-fact contract to

discharge only for cause. See Harden v. Maybelline

Sales Corp., 230 Cal. App. 3d 1550, 1556 (1991) ("(A)n

application for employment is not a contract; it is a

mere solicitation of an offer of employment. ... A such

the application cannot constitute an agreement, let

alone a partially integrated agreement.") but see

Wagner v. Glendale Adventist Med. Ctr., 216 Cal. App.

3d 1379 ("It follows that the ‘at-will’ provisions of the

application are a partial integration, i.e., a complete and

final expression of this term of the parties' agreement,

thus precluding any evidence of a prior or

contemporaneous collateral agreement at variance with

or in contradiction of this term."). Instead, the Court

25a

rests its conclusion on the fact that Plaintiff is

attempting use a document that expressly, repeatedly,

unequivocally, and prominently states that employment

is "at-will" in order to show that, in fact, his

employment was not "at-will."

26a

Filed 4/15/08

No. 06-55913

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NEUNG KANG, an individual, Plaintiff - Appellant,

v.

PB FASTENERS, a Corporation doing business in

California, Defendant - Appellee,

and

MERLE OGLESBY, an individual, Defendant.

ORDER

Before: Pregerson, Archer, and Wardlaw, Circuit

Judges*

The panel has voted to deny appellant’s petition for

panel rehearing. The petition for rehearing is

DENIED.

It is so ordered.

Footnote

*The Honorable Glenn L. Archer, Jr., Senior United

States Circuit Judge for the Federal Circuit, sitting by

designation.