Alaska Employment Law

In Hernandez v. City of Vancouver, Mark Tanninen, No. 06-35713, filed April 14, 2008, the Ninth Circuit issued a memorandum opinion reversing summary judgment for the employer.  Hernandez, a native and citizen of Mexico, asserted claims of disparate treatment, retaliation, and hostile work environment under 42 U.S.C. Sections 1981 and 1983.  He also alleged city officials conspired to cover up his discrimination claims in violation of section 1985(3).

First, the District Court finding that it lacked subject matter jurisdiction over Hernandez’s retaliation claim because it was not specifically alleged in Hernandez’s EEOC charges, was reversed.  The Ninth Circuit noted that the court’s subject matter jurisdiction extends over all allegations of discrimination that either fall within the scope of the EEOC’S actual investigation or reasonably could be expected to grow out of the charge of discrimination.  Josephs v. Pacific Bell, 443 F.3rd 1050, 1062 (9th Cir. 2006).  Hernandez’s retaliation claim had not materialized at the time of the EEOC complaint because the alleged retaliatory challenge had not yet taken place.  But it could reasonably have been expected to grow out of his charges of hostile environment, so the court had jurisdiction.

Moving on with the McDonnell Douglas analysis, the court engaged in a review of the prima facie case and reversed the trial court’s finding that the performance element of the p.f. case had been missing in Hernandez’s evidence.  (See entry from April 14, where the D.C. Circuit pointed out that whether the employee has met the p.f. case should not be an issue by the time of the summary judgment motion or trial, particularly where the other two stages of the McDonnel Douglas paradigm have been presented–the employer’s legitimate explanation for the action and the employee’s evidence of pretext–as they had been in Hernandez’s case.)  

Here, the Ninth Circuit reversed the trial court’s summary judgment in its entirety, finding questions of fact existed on all Hernandez’s claims.   Some of the evidence found sufficient to raise issues of fact (and ignored by the trial court) included uniformly positive job evaluations, co-worker affidavits stating Hernandez was scrutinized more closely due to his race, his forced transfer to avoid termination, disparate treatment between Hernandez and a Caucasian co-worker involved in the same incident, and anti-Hispanic racist remarks.  On the retaliation claim, the court held that temporal proximity between the protected activity and the adverse action was sufficient circumstantial evidence to allow the claim to go to trial.  Hernandez had filed a complaint in March of 2002, started receiving a series of verbal and written reprimands in June, and was transferred (the alleged adverse action) in December 2002. 

An Affidavit by Hernandez’s attorney was admitted, in particular two out of court statements that the employer challenged as hearsay.  The first was a conversation that the attorney had with the individual defendant in which Defendant Tanninen admitted that Hernandez was subjected to racial discrimination; this was allowed as a party admission pursuant to Fed. R. Evid. 801(d)(2)(A).  The second was a statement by a co-worker about racial insinuations he overheard,  which were admitted as evidence of the employer’s racially-tinged motives.