Opinion
No. C 01-02283 CRB
July 31, 2002
MEMORANDUM AND ORDER
Now before the Court are defendant's motion for summary judgment and plaintiffs request for continuance and abeyance. Having carefully considered the papers submitted by the parties, and having heard oral argument on July 19, 2002, the motion for summary judgment is GRANTED and the request for continuance and abeyance is DENIED.
BACKGROUND
In June 1997, plaintiff Rajesh Rai applied for employment with defendant IBM Credit Corporation ("IBM"). In December 1997, IBM informed plaintiff that he could not be hired as a permanent employee unless and until he obtained a "green card." Instead plaintiff continued to work for IBM as an employee of Manpower, a temporary staffing agency, which performed services for IBM under the terms of a contract between IBM and Manpower. Plaintiff did not submit an application for permanent employment with IBM at any time after June 1997. Plaintiff continued to work for IBM as an independent contractor until May 22, 2000, at which time the contract relating to plaintiff's employment was terminated.
On March 12, 2001, plaintiff filed charges of discrimination against IBM with the federal Equal Employment Opportunity Commission ("EEOC") and California's Department of Fair Employment and Housing ("DFEH").
On June 11, 2001, plaintiff ified this lawsuit, alleging that IBM intentionally denied him employment because of his race and/or national oriwn, in violation of Title VII of the Civil Rights Act of 1964 and Califomia's Fair Employment and Housing Act ("FEHA"). Plaintiff alleges that IBM's "green card" requirement had the purpose and/or affect of unlawfully discriminating against plaintiffs Indian origin. Plaintiff also seeks relief for breach of contract.
The caption of plaintiff's first claim for relief also references 29 U.S.C. § 1981. However, Title 29 of the United States Code does not contain a section 1981 and no further reference to any such claim is contained in the original complaint. In plaintiff's opposition to IBM's summary judgment motion, plaintiff contends that he intended to refer to 42 U.S.C. § 1981, but inadvertently referred to Title 29. Plaintiff now requests abeyance of the summary judgment motion so that the error may be corrected.
In his complaint, plaintiff also alleges that requiring him to produce a "green card" constituted a violation of the Immigration Reform Control Act ("IRCA"). However, plaintiff does not allege a separate cause of action based on IRCA, and plaintiff's counsel stated at the May 17, 2002 case management conference that plaintiff long ago missed the statute of limitations for any action under the IRCA.
Defendant moves for summary judgment or partial summary judgment, pursuant to Federal Rule of Civil Procedure 56(c), on the grounds that (1) plaintiff's claims am barred by the respective state and federal statutes of limitations, and (2) none of the conduct alleged is actionable under state or federal law.
In response, plaintiff requests a continuance, pursuant to Federal Rule of Civil Procedure 56(f), in order to perform additional discovery to address the issues raised in the summary judgment motion. Specifically, plaintiff alleges that additional discovery would reveal widespread citizenship status discrimination by IBM. Additionally, plaintiff requests abeyance of the summary judgment motion so that the complaint can be amended to claim relief under 42 U.S.C. § 1981, not 29 U.S.C. § 1981, as the original complaint incorrectly states.
DISCUSSION
A. Summary Judgment Legal Standard
Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R Civ. P. 56(c). An issue is "genuine" only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A fact is "material" if the fact may affect the outcome of the case. See id. at 248. "In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party." Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A principal purpose of the summary judgment procedure is to identify and dispose of factually unsupported claims. See Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24 (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits which demonstrate the absence of a genuine issue of material fact See id. at 323. Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. See id. Once the moving party meets this initial burden, the non-moving party must go beyond the pleadings and by its own evidence "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party must "identify with reasonable particularity the evidence that precludes summary judgment" Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995), and noting that it is not a district court's task to "scour the record in search of a genuine issue of triable fact"). If the non-moving party fails to make this showing, the moving party is entitled to judgment as a matter of law. See Celotex, 477 U.S. at 323.
The Ninth Cireurt "has set a high standard for the granting of summary judgment in employment discrimination cases." Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1410 (9th Cir. 1996). When a plaintiff "seeks to establish a prima facie case [of discrimination] through the submission of actual evidence, very little such evidence is necessary to raise a genuine issue of fact regarding an employer's motive; any indication of discriminatory motive . . . may suffice to raise a question that can only be resolved by a factflnder." Lowe v. City of Monrovia, 775 F.2d 998, 1009 (9th Cir. 1985).
B. The Timeliness of Plaintiffs EEOC and FEHA Administrative Complaints
The statute of limitations for FEHA actions requires a plaintiff to file his claim with the DFEH within one year from the date of the alleged act of discrimination . . . Cal. Gov't Code § 12960. The statute of limitations for Title VII actions requires a plaintiff to file his claim with the EEOC within 300 days from the date of the discriminatory act. 42 U.S.C. § 2000(e)-5(e).
Plaintiff alleges that he was denied employment on December 15, 1997. He filed his administrative charges with the EEOC and DFEH on March 12, 2001 — more than three years after defendant denied him employment Defendant thus contends that plaintiffs Title VII and FEHA claims are barred by the applicable statutes of limitations. Plaintiff responds that his claims are not untimely because defendant's discriminatory conduct amounted to a continuing violation, concluding with plaintiffs termination on May 22, 2000.
Under the continuing violation doctrine, "a systematic policy of discrimination is actionable even if some or all of the events evidencing its inception occurred prior to the limitations period." Sosa v. Hiroaka, 920 F.2d 1451, (9th Cir. 1990) (quoting Williams v. Owens-Illinois, Inc., 665 F.2d 918, 924 (9th Cir. 1982)). Courts apply "the doctrine because `the continuing system of discrimination operates against the employee and violates his or her rights up to a point in time that falls with in the applicable limitations period.'" Id. (citation omitted). A plaintiff "may establish a continuing violation `not only by demonstrating . . . [an employer] wide policy or practice, but also by demonstrating a series of related acts against a single individual;' that is, against [plaintiff] alone." Id. (quoting Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472, 1480 (9thCir. 1989)). The plaintiff's claim will be timely pursuant to the continuing violation doctrine provided at least one of the discriminatory acts occurred within the limitations period. See Anthony v. County of Sacramento Sheriff's Dept., 845 F. Supp. 1396, 1402-02 (E.D. Cal. 1994).
Continuing violations are most likely to occur in placements or promotions, since "the continuing system of discrimination operates against the employee and violates his or her night sup to a point in time that falls within the applicable limitations period." Williams, 665 F.2d at 924. However, claims based on the downstream effects of refusals to hire or terminations, like lost wages and health benefits, do not amount to continuing violations because "mere continuing impact from past violations is not actionable." Id. Such complaints must be filed "within the requisite time period after the refusal to hire or termination, or be time-barred." Id.
The continuing violation doctrine has never been applied to a refusal-to-hire case simply because once a plaintiff learns the reason he was not hired there is no reason for him not to promptly file suit. This is particularly time where, as here, the plaintiff "is on notice that further efforts to end the unlawful conduct will be in vain" Richards v. CH2M Hill, Inc., 26 Cal.4th 798, 823 (2001) (holding that the continuing violations doctrine docs not apply to acts that have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights). In the present case, defendant made it clear to plaintiff that he would not be hired unless and until he obtained a green card. This definitive statement should have indicated to plaintiff that "the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate," thereby commencing the running of the statute of limitations. Id. at 814.
At oral argument, plaintiff insisted that he was not on notice that his only alternative was to initiate litigation since defendant represented that it would hire him as soon as he received his green card. See Richards, 26 Cal.4th at 823. This is not a representation, however, that defendant will cease its allegedly discriminatory conduct; rather, it is a reaffirmation of the conduct. Thus, plaintiff was on notice that he needed to file suit if he wanted to challenge defendant's green card policy.
Plaintiff argues that the continuing violations doctrine applies to his claims because "additional promises of petmanent status conditioned on his obtaining a green card" subsequent to the initial denial of employment make this case more analogous "to a refusal to promote case than a refusal to hire case." Plaintiff's Opposition, p. 7, ln. 17-18 p. 9, ln. 22-23. This argument is without merit Subsequent unfulfilled promises of employment cannot amount to failures to promote since plaintiff was never actually hired. Instead the verbal offers of employment conditioned on plaintiff obtaining a green card were reiterations of the 1997 offer, not new offers. Thus, defendant's behavior does not amount to a continuing violation
In his opposition to defendant's motion for summary judgment, plaintiff argues that his termination on May 22, 2000 amounts to a discriminatory act that falls within the applicable statutes of limitations. Plaintiff alleges that during the May 2000 layoffs another independent contractor who is a United States citizen was given permanent job status while plaintiffs position was terminated. Unlike the initial refusal to hire on December 15, 1997 or the subsequent unfulfilled promises of permanent status, this claim is not barred by the applicable statutes of limitations. However, timely filing of his claim does not defeat defendant's summary judgment motion because, as discussed below, plaintiff's claims are not actionable.
C. Are Plaintiff's Claims Actionable?
1. Plaintiff's FEHA and Title VII Claims
The Supreme Court has held that discrimination based on citizenship status or alienage is not among the prohibitions contained in Title VII.See Espinoza v. Farah Mfg. Co., 414 U.S. 86, 91-92 (1973) (where applicant was denied employment not because of her country of origin but because she had not yet achieved United States citizenship, equal employment opportunities provisions of Civil Rights Act were not violated). The Ninth Circuit follows this interpretation of the scope of Title VII's protections. See Lopez v. Arrowhead Ranches, 523 F.2d 924, 927 (9th Cir. 1975) (plaintiff's have no legal entitlement to be free of discrimination on the basis of alienage when seeking private employment).
Likewise, discrimination based on citizenship status or alienage is not among FEHA's prohibitions, since recovery under FEHA is limited to classes of persons expressly protected by the statute and non-citizens are not included in that list See Rojo v. Kliger, 52 Cal.3d 65, 79 (1990); Cal.Gov't Code § 12940(a) (delineating categories of persons protected by FEHA). The California cases that have addressed whether FEHA affords protection against discrimination on the basis of citizenship had concluded that, like Title VII, it does not. See Hanna v. Security Pacific Business Credit Inc., 281 Cal.Rptr. 857, 869 (1991) ("[l]ike its federal counterpart, Title VII, the FEHA does not bar discrimination based on alienage or citizenship"); Mahdavi v. Fair Employment Practice Commission, 67 Cal.App.3d 326, 341 (1977) ("[i]t would appear . . . that the decision in Espinoza v. Farah, to the effect that Congress in using the term `national origin,' did not intend to include alienage would compel a similar conclusion as regards the Legislature's use of the same term").
In interpreting FEHA, California courts typically employ federal decisions interpreting Title VII. See Reno v. Baird, 18 Cal.4th 640, 647 (1998).
Thus, to establish an actionable claim for relief under Title VII or FEHA, plaintiff would have to show that defendant's failure to hire him had the "purpose or effect" of discriminating on the basis of his national origin. See Espinoza, 414 U.S. at 92. Specifically, plaintiff would have to prove that defendant's "green card" requirement functioned as "a pretext to disguise what is in fact national-origin discrimination"Id. However, plaintiff offers no evidence indicating that he was not hired because of his national origin. In fact, plaintiff unequivocally testified at his deposition that he was not subjected to any acts of discrimination based on his Fijian-Indian national origin, including defendant's refusal to hire him:
Q: Did any of the management-level personnel at IBM ever say anything to you that you found to be either racist, or offensive, on the basis of your national origin?
A: No.
Rai Depo., 65:5-9.
Q: As far as you're concerned Mr. Rai, the only reason that you didn't become a regular employee is because you didn't have a green card, correct?
A: Correct.
Q; There was no other reason that you weren't made a regular employee, correct?
A: That's correct.
RaiDepo., 74: 12-19.
2. Plaintiff's 42 U.S.C. § 1981 Claim 42 U.S.C. § 1981 provides that:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens. . . .
Plaintiff argues that section 1981 provides a statutory bar to discrimination on the basis of alienage. However, the Supreme Court and the Ninth Circuit have determined that section 1981 provides relief only for race-based discrimination, not for discrimination on the basis of national origin. See St. Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987) (holding that Congress intended for this statute to protect "identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics"); Pavon v. Swift Transportation Co., Inc., 192 F.3d 902, 908 (9th Cir. 1999) (holding that a plaintiff must prove that he or she was subjected to intentional discrimination based upon his other race to establish a claim under § 1981).
Since plaintiff has not alleged any discrimination on the basis of his race or ethnicity, but only on the basis of his citizenship status, plaintiff does not have an actionable claim under the protections of section 1981.
D. Plaintiff's Request for Continuance and Abeyance
1. Request for Continuance to Conduct Additional Discovery
In his opposition to defendant's summary judgment motion, plaintiff requests additional discovery "to address specific areas which have not been directly addressed during the course of discovery to date." Plaintiff's Opposition, p. 2, ln. 24-25. Specifically, plaintiff is now alleging, for the first time, widespread "green card" discrimination by defendant which had the purpose or effect of discriminating against plaintiff because of his national origin Plaintiff's Opposition, p. 5, ln. 22-24. Accordingly, plaintiff seeks a 45-day continuance of the summary judgment motion to schedule and depose three individuals who plaintiff believes have information "which will assist in proving the essential allegations of his claims or to negate IBM's statute of limitations defense." Redmond Decl., p. 5, ln. 18-26 p. 6, ln. 1-2.
Federal Rule of Civil Procedure 56(f) provides that if a party opposing summary judgment demonstrates a need for further discovery in order to obtain facts essential to justify the party's opposition. the trial court may deny the motion for summary judgment or continue the hearing to allow for such discovery. In making a Rule 56(f) motion, a party opposing summary judgment "must make clear what information is sought and how it would preclude summary judgment" Garrett v. City and County of San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1987). The party seeking additional discovery must also explain its inability to presently provide the evidence it seeks to discover; that is, it must show that it previously exercised due diligence to obtain the evidence it now seeks a continuance to obtain. See Brae Trans., Inc. v. Coopers Lybrand, 790 F.2d 1439, 1442-43 (9th Cir. 1986); Schwarzer, Federal Civil Procedure Before Trial ¶ 14:116 (1997).
Plaintiff has failed to make any colorable showing that further discovery would preclude summary judgment. First, even if all his claims survive the statute of limitations, his "green card" claim is not actionable. To prove that defendant's green card policy had the purpose or effect of discriminating on the basis of national origin, plaintiff would have to show that defendant systematically discriminated against persons of Fijian-Indian decent, or that they generally discriminated against persons of foreign origin. Espinoza, 414 U.S. at 92. However, plaintiff's vague allegation that "IBM's `green card' practice was widespread and had the purpose or effect of discriminating against Mr. Rai based on his national origin" is wholly speculative and lacks any factual foundation. Redmond Decl., p. 5, ln. 9-11. Furthermore, in his deposition, plaintiff explicitly disavowed any discrimination on the basis of national origin by defendant
Additionally, the time line of events preceding defendant's summary judgment motion do not reveal the exercise of due diligence by plaintiff in obtaining the discovery he now seeks. The names and identities of the three individuals plaintiff seeks to depose are not new to plaintiff, but plaintiff does not provide a persuasive reason for not attempting to depose them before late-May 2002. Furthermore, during the Case Management Conference on May 17, 2002 when the Court ordered defendant to file its summary judgment motion by May 31, 2002, plaintiff made no request to move the filing deadline to a later date.
For the foregoing reasons, plaintiffs request for continuance is DENTED.
2. Request for Abeyance of Motion Pending Leave of Court to File Amended Complaint
For the record, the Court deems plaintiff's original complaint to read "42 U.S.C. § 1981" in place of "29 U.S.C. § 1981." Since this technical error does not effect the merits of plaintiff's complaint or defendant's summary judgment motion, an abeyance is not necessary and, therefore, is DENIED.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment on plaintiffs Title VII and FEHA claims is GRANTED. Plaintiffs state law claim is DISMISSED without prejudice. See 28 U.S.C. § 1367(c);Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n. 7 (1988).
IT IS SO ORDERED.