Xiong v. Veneman

2005 | Cited 0 times | E.D. California | December 22, 2005

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION (DOC. 26)

ORDER STRIKING DOCUMENTS FILED BY PLAINTIFF ON AUGUST 4, 2005 (Docs. 30 through 33)

ORDER GRANTING DEFENDANT'S REQUEST TO STRIKE PLAINTIFF'S JURY DEMAND

Plaintiffs are proceeding with a civil action in this Court. The parties have consented to the jurisdiction of the Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1), and the case has been assigned to the Magistrate Judge to conduct all further proceedings, including trial and the entry of a final judgment.

I. Background

Plaintiff, who was and is represented by counsel, filed a complaint on December 6, 2002, and an amended complaint on May 2, 2003; a stipulated order further amending the first amended complaint was filed on June 9, 2004. Plaintiff, a citizen of the United States of Asian race, whose native language is Hmong, claims discrimination based on his national origin of Lao-Hmong in connection with his employment of the United States Forest Service (USFS), Department of Agriculture. He complains of Defendant's termination of his appointment as a student trainee on January 31, 1999, at an advanced firefighting academy in the Wildland Firefighter Apprentice Program (WFAP); conversion of Plaintiff's employment from permanent to temporary on May 9, 1999; and termination of his employment on or about November 20, 1999. (Complt. at 2.)

Plaintiff complains that during testing for the Fire Methods and Procedures portion of the academy, S-234, he had trouble understanding a question or questions, all of which were printed exclusively in the English language; he asked the instructor or proctor to explain the questions because of difficulty in understanding them; and despite the Defendant's practice of explaining and clarifying questions, Plaintiff was denied the requested explanation and clarification; he failed the written test because the written English format in which the questions were presented caused him difficulty in understanding them, and because he was denied the requested assistance. (Complt. at 6.)

When Plaintiff retested, he requested the assistance of a Hmong interpreter, but the Apprentice Coordinator refused his request because she asserted that the interpreter might give the test taker the answer rather than just an interpretation of the question. When Plaintiff retested without the assistance of an interpreter, he failed the test because of the English format and the refusal of his request for an interpreter.

On January 31, 1999, Plaintiff was terminated from the academy because he failed the written test. He alleges that he was otherwise well qualified.

Thereafter, Plaintiff continued to work for Defendant, who then adopted a policy to require apprentices to write and speak English fluently as a basic safety requirement; this policy was not a bona fide occupational qualification and was adopted deliberately to formalize the earlier practice that had been recognized as having a likely discriminatory impact, and which locked Plaintiff out from re-applying to regain employment.

As a result of the discriminatory testing and English fluency requirement, Defendants terminated Plaintiff's employment on the basis of his national origin. (Id. at 7-9.)

Plaintiff seeks special damages (back pay, front pay, and damages for loss of earning capacity), general damages, attorney's fees, and costs. (Cmplt. at 9-10.)

Defendant filed a motion for summary judgment, statement of undisputed facts, declarations of Shirley Sutliff, Russell R. Bennion, and Kristi Kapetan, and a memorandum of points and authorities on March 25, 2005, pursuant to the Court's schedule as set by its order of October 4, 2004, which provided that 1) the deadline for filing the response to the motion for summary judgment was no later than May 27, 2005, and 2) the deadline for filing a reply was June 24, 2005. The motion was originally set for hearing on August 1, 2005, a day of the week on which law and motion is not customarily heard; the hearing was reset for August 5, 2005, by the Court's minute order of March 31, 2005, which did not modify the Court's schedule for the filing of a response to the motion.

Plaintiff did not file timely opposition. On June 23, 2005, Defendant nevertheless served and filed a reply in which it noted that Plaintiff had not filed opposition and thus was precluded from oral argument pursuant to the local rules of court. In the reply Defendant further cited authority to the effect that the Court is not required independently to search the record for evidence establishing a material issue of fact where no factual showing is made in opposition to a motion for summary judgment.

On August 4, 2005, at 3:37 p.m., Plaintiff filed a separate statement, memorandum in opposition to the motion, and two declarations of James C. Holland: one authenticating exhibits, and another regarding the late filing of opposition. No formal motion or request for an extension of time or to permit the late filing of the opposition was made by Plaintiff.

Due to the unanticipated unavailability of the Court on the morning of August 5, 2005, the hearing on the motion was initially continued by minute order to September 9, 2005; however, the Court solicited input from the Defendant with respect to the propriety of the Court's considering the Plaintiff's late opposition. Defendant filed a statement of its position on August 19, 2005. On August 30, 2005, the Court vacated the hearing pursuant to Rule 78-230(c) of the Local Rules of Practice for the United States District Court, Eastern District of California because Plaintiff, who had filed untimely opposition, was not entitled to be heard in opposition to the motion at a hearing.

II. Consideration of Late Opposition

The Court had considered the instant motion on the basis of the timely filed papers before Plaintiff filed its late opposition. The Defendant had completed its written preparation for the motion before Plaintiff filed its late opposition. Significant resources of the Court and the parties were thus expended before Plaintiff filed its opposition.

Plaintiff received sufficient notice of the pertinent deadlines. The scheduled dates were set in October 2004. Reference to Defendant's counsel's declaration reveals that the electronic record shows that Plaintiff's counsel received electronic service of the motion; when no opposition was filed by the deadline of May 27, 2005, counsel for Defendant telephoned counsel for Plaintiff, but the call was not returned, and Plaintiff's counsel never attempted to contact Defendant's counsel before he filed the late opposition on August 4, 2005. Even the service and filing of Defendant's "reply" in June 2005, which referred to the lack of opposition, did not prompt timely efforts on the part of Plaintiff's counsel.

The declaration of James C. Holland, Plaintiff's counsel, regarding the late filing of the opposition to the motion for summary judgment was submitted to explain the late filing of the opposition and to request a continuance of the hearing and an allowance of time to Defendant to file a reply so that the tardily filed matter could be considered in connection with the merits of the motion. Plaintiff's counsel stated that when the hearing date was continued for a four-day period to August 5, he assumed that the opposition would not need to be filed until fourteen days before the hearing. However, the scheduling order provided for an earlier deadline, and the scheduling order had not been amended. Further, although Local Rule 78-230(c) provides for filing of opposition fourteen days before a hearing, the electronic or mail service1 of opposition is required to be effected no less than seventeen days before the hearing, not fourteen days.

Plaintiff declared that he had just begun working on the opposition as fourteen days before the hearing approached; he then became ill, developed a sinus and/or ear infection within two days, and received ten days of antibiotic treatment which did not prevent the spread of the infection into counsel's chest. Counsel was exhausted, had a nearly constant headache, and had much difficulty concentrating; his recovery was slow, and he was only able to complete the opposing papers on the eve of the hearing.

Counsel states no facts explaining why he assumed that the scheduled due dates had been changed, or why he could not have communicated with Defendant's counsel or sought an extension of time from the Court. The Court's initial scheduling order filed on July 22, 2003, provides that if the parties determine that the schedule cannot be met, counsel are to notify the Court immediately so that adjustments may be made by stipulation or subsequent status conference; it further provides that failure to comply with the order "SHALL RESULT IN THE IMPOSITION OF SANCTIONS." Although the parties previously engaged in stipulations to modify the schedule, Plaintiff's counsel failed to initiate this process with respect to the deadline for the opposition, and indeed failed even to respond to Defendant's service and filing of a reply that noted the absence of timely opposition.

The Court sympathizes with the position of a practitioner dealing with illness while involved in litigation. However, the Court is likewise concerned with the efficient administration of justice and the intelligent and economical use of the Court's resources.

There is an absence of any indication why Plaintiff's counsel could not have communicated with counsel or the Court to have timely sought an extension of time with respect to opposing the motion. The Court emphasizes that even if there were a basis for granting a timely sought extension of time, the failure of counsel to seek such an extension rendered the motion unopposed and put the Court, which must adhere to the schedule set by the pertinent rules and notices, in the position of expending resources in considering the motion without input from Plaintiff's counsel. Although the opposition has apparently now been completed, this does not address the Court's concerns regarding the efficient administration of justice.

Local Rule 6-144(d) provides that counsel shall seek to obtain a necessary extension from the Court or from other counsel or parties in an action as soon as the need for an extension becomes apparent. Requests for Court-approved extensions brought on the required filing date for the pleading or other document are looked upon with disfavor. Counsel here has not shown an excuse or justification for failing to comply with this local rule or with the Court's scheduling order. Significant resources of the Court and of the moving party have been expended.

A court has inherent power to control its docket and the disposition of its cases with economy of time and effort for both the court and the parties. Landis v. North American Co., 299 U.S. 248, 254-255 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). Further, a court has broad discretion to interpret and apply its local rules. Dulange v. Dutro Construction, Inc., 183 F.3d 916, 919 n. 2 (9th Cir. 1999). Local Rule 78-230 requires that opposition to a motion be filed not less than fourteen days preceding the hearing date and served not less than fourteen or seventeen days (personal service, or electronic and mail, respectively) preceding the hearing date. The Court in its discretion may refuse to consider matters that are not timely filed as a result of inexcusable neglect. Cusano v. Klein, 264 F.3d 936, 950-51 (9th Cir. 2001) (not considering evidence submitted late in response to a motion for summary judgment). Plaintiff's counsel has not established any excuse for his noncompliance with the Court's rules and its scheduling order. It would require the expenditure of substantial amounts of the time of the Court and its staff as well as significant resources of the opposing party if the Court and the parties were required to review serially filed submissions on motions without regard to any schedule or deadlines. If the Court were to allow unlimited filings in the manner apparently sought by Plaintiff, the Court could never be sufficiently certain of the parties' positions to be able to rule on a motion presented to it. The Court would not be able to maintain the orderly administration of justice, and substantial resources of the Court would be wasted. Such procedures would be unfair to the parties and the Court.

Accordingly, the Court in its exercise of its discretion DECLINES TO CONSIDER the late opposition, and the Plaintiff's materials filed on August 4, 2005 (Docs. Nos. 30-33) submitted in response to Defendant's motion for summary judgment ARE STRICKEN.

III. Undisputed Facts2

1. Plaintiff was employed by the Forest Service as a temporary seasonal firefighter beginning in 1996. In 1998, he was selected to participate in the Wildland Firefighter Apprentice Program (WFAP). The WFAP is an accredited educational program which provides apprentices who complete the program to be converted from student apprentice status to career conditional status. (Deposition of Chongyee Lengnou Xiong, ("Xiong Depo.") 29:1-2; 32:2-17. Declaration of Shirley Sutliff, ("Sutliff Dec.") ¶ 3, 5.)

2. In order to complete the WFAP, apprentices must complete the Basic and Advanced formal training academies, participate in supplemental training to be provided by their home unit, and complete a minimum number of hours of practical work experience in wildland fire management activities. (Sutliff Dec., ¶4.)

3. In March, 1998, Plaintiff entered the Basic Academy and successfully completed it, including successfully completing a number of written tests. (Sutliff Dec., ¶ 5.)

4. In January, 1999, Plaintiff entered the Advanced Academy. Among the requirements to successfully complete the Advanced Academy was passing a written exam in each of four classes with a score of 80%. At the time that Plaintiff was an apprentice in the WFAP, apprentices who failed an exam were allowed to re-take the exam once. (Sutliff Dec., ¶ 6.)

5. At both the Basic and Advanced

Academy, all written tests were printed exclusively in the English language. The first course at the Advanced Academy was Fire Behavior, S-290. Four apprentices failed the S-290 test: 2 white, 1 Asian and 1 African American. (Sutliff Dec., ¶ 7.)

6. Plaintiff was the Asian who failed the S-290 test the first time and he failed it with a score of 60%. (Sutliff Dec., ¶8.)

7. On re-take, three apprentices passed the exam, including the Plaintiff, and one failed. Plaintiff passed with a score of 93%; the individual who failed on re-take was white. (Sutliff Dec., ¶ 8.)

8. The second course with an exam was Firing Methods and Procedures, S-234. Two apprentices failed the first S-234 exam; Plaintiff (with a score of 57%) and another apprentice who was not Asian. On re-take, the other individual passed and the Plaintiff failed the re-take with a score of 66.3%.

8. Sutliff Dec., ¶ 9.

9. Because he failed to pass the exam in S-234, plaintiff was dismissed from the WFAP on January 25, 1999, and returned to his home unit, the Sequoia National Forest. (Sutliff Dec., ¶ 10.)

10. There were two additional tests taken by the apprentices; the S-205 and S-200. Four apprentices failed the S-200; two Asians and two non-Asians. (Sutliff Dec., ¶11.)

11. On re-take, the two non-Asians passed and the two Asians failed. It is unknown whether the other two Asians at the academy were non-native English speakers. (Sutliff Dec., ¶12; Declaration of Russell Bennion ("Bennion Dec.) ¶ 3, 4.)

12. It is unknown whether there were other 10 non-native English speakers at the academy who were not Asian. (Bennion Dec., ¶3, 4.)

13. On January 31, 1999, Plaintiff was placed in non-pay status. This was normal for him as he was not generally paid during the "off season"; he was a seasonal firefighter. On April 11, 1999, when fire season approached in the Spring, Plaintiff was placed in pay status. (Xiong Depo., 28:1-30:26; 31:1-24; 34:12-35:26; 36:4-11; 52:2-55:5.)

14. However, because he was no longer enrolled in an educational program, on May 9, 1999, plaintiff's excepted student appointment was converted to a temporary appointment. On November 20, 1999, at the end of fire season, Plaintiff's temporary position was terminated. This "termination" was not unusual as Plaintiff was generally laid off in November until the next fire season, except for the times he attended the Academy.

However, after this "termination," Plaintiff did not return to federal service. (Xiong Depo., 28:1-30:26; 31:1-24; 34:12-35:26; 36:4-11; 37:18:-38-21; 46:5-17; 47:20-26; 52:2-55:5.)

15. Plaintiff testified at deposition that on the first take of the S0234 exam, that he failed at the Advanced Academy, he asked an instructor to explain the questions during the exam. The instructor told him there was no more time left and he could not assist him in answering the question. Plaintiff testified that he did not believe the instructor was lying; he did not have any time left on the exam and believed that was why the instructor declined to assist him. (Xiong Depo., 69:7-70:26; 86.)

16. Although in the Complaint Plaintiff states he requested a Hmong interpreter for the re-test, at deposition he stated he did not want an interpreter, he just wanted someone to explain the questions to him in English. (Xiong Depo., 241:12--242:7.)

17. There were five Asians, three African Americans, three Hispanics, one American Indian, 22 Non-minority and ten persons of unknown ethnicity from Region 5 at the Academy the same time as Mr. Xiong. (Sutliff Dec., ¶12.)

18. The Forest Service uses the categories of American Indian/Alaskan native, Asian/Pacific Islander, African American, Hispanic, Non-minority and Unknown in keeping its statistics regarding race and national origin. The Forest Service does not maintain a record of whether or not individuals are "non-native English speakers." (Bennion Dec., ¶ 3, 4.)

19. The Forest Service does not break up Asian ethnicity into various subsets such as Hmong, Vietnamese, Chinese or Japanese. Instead, there is merely the category of "Asian" with no designation of their native language. (Bennion Dec., ¶ 5.)

IV. Analysis

A. Summary Judgment

Summary judgment is appropriate when it is demonstrated that there exists 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). Under summary judgment practice, the moving party

[A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It is the moving party's burden to establish that there exists no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. British Airways Board v. Boeing Co., 585 F.2d 946, 951 (9th Cir. 1978).

If a party moves for summary judgment with respect to a matter as to which the opposing party has the ultimate burden of persuasion at trial, then the moving party must show that the opposing party cannot meet its burden of proof at trial by establishing that there is no genuine issue of material fact as to an essential element of the opposing party's claim or defense; the moving party must meet the initial burden of producing evidence or showing an absence of evidence as well as the ultimate burden of persuasion. Nissan Fire Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the opposing party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. Id. (citing High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990)). In order to carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact. Id.

However, "where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Celotex Corp. v. Catrett, 477 U.S. 317, 323. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits or admissible discovery material in support of its contention that the dispute exists. Rule 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 630. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam)). Nevertheless, it is the opposing party's obligation to produce a factual predicate from which an inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Although the Court must not weigh the evidence, the Court must draw reasonable inferences; evidence that is too insubstantial or speculative may be insufficient to establish the existence of a genuine issue of material fact. Coca-Cola Co. v. Overland, Inc., 692 F.2d 1250, 1255 (9th Cir. 1982). A mere scintilla of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party. Anderson, 477 U.S. at 251-52. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Id. at 587.

The showings must consist of admissible evidence, Hollingsworth Solderless Terminal Co. v. Turley, 622 F.2d 1324, 1335 n.9 (9th Cir. 1980), or pleadings, depositions, answers to interrogatories, admissions, and affidavits or declarations, Fed. R. Civ. P. 56(c). Affidavits shall be based on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein. Fed. R. Civ. P. 56(e). Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. Id. Declarations pursuant to 28 U.S.C. § 1746 may be used with the same force and effect as affidavits. Pollock v. Pollock, 154 F.3d 601, 611, n.20 (6th Cir. 1998). A plaintiff's verified complaint may be considered as an affidavit in opposition to summary judgment if it is based on personal knowledge and sets forth specific facts admissible in evidence. Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000). Personal knowledge may be inferred from declarations themselves, such as from facts concerning a declarant's position and participation, Barthelemy v. Air Line Pilots Ass'n, 897 F.2d 999, 1018 (9th Cir. 1990); however, a court cannot draw an inference about facts not specifically put in the record by a party, and a court will not assume that general averments embrace specific facts needed to sustain a complaint, Lujan v. National Wildlife Federation, 497 U.S. 871, 887 (1990). An admission in a pleading, including a defendant's failure to deny an allegation in a complaint, constitutes an admission. Fed. R. Civ. P. 8(d); Lockwood v Wolf. Corp., 629 F.2d 603, 611 (9th Cir. 1980). Unauthenticated documents cannot be considered on a motion for summary judgment. Hal Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1550 (9th Cir. 1990). Legal memoranda and oral argument are not evidence and do not create issues of fact capable of defeating an otherwise valid motion for summary judgment. British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978).

The Court is not obligated to consider matters that are in the record but are not specifically brought to its attention; the parties must designate and refer to specific triable facts. Even in the absence of a local rule, for evidence to be considered, the party seeking to rely on it must specify the fact by indicating what the evidence is or says and must indicate where it is located in the file. Although the Court has discretion in appropriate circumstances to consider other material, it has no duty to search the record for evidence establishing a material fact. Carmen v. San Francisco United School Dist., 237 F.3d 1026, 1029 (9th Cir. 2001). In the instant case, the Court has considered only the evidence which Defendant has specified.

A party moving for summary judgment is entitled to the benefit of any relevant presumptions that support the motion provided that the facts giving rise to the presumption are undisputed. Coca-Cola Co. v. Overland, Inc., 692 F.2d 1250, 1254 (9th Cir. 1982).

B. Discriminatory Treatment

42 U.S.C. § 2000e(2)(a)(1) and (2) provides in pertinent part that it is an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race or national origin; or to limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race or national origin.

Proof of discrimination requires proof that an adverse employment action was suffered because of the protected characteristic. This may be proved by a theory of disparate treatment, disparate impact, or failure to accommodate where there is a duty to do so.

A plaintiff in a suit for discriminatory treatment pursuant to Title VII of the Civil Rights Act of 1964 must prove that there has been intentional discrimination on prohibited grounds, that is, that similarly situated individuals were treated differently because of a protected characteristic, International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15 (1977); discriminatory motive must be proved, id., and it must be shown that it was the determinative factor or influence in the adverse employment action, Hazen Paper Co. v.Biggins, 507 U.S. 604, 610 (1993).

A plaintiff must carry the initial burden to establish a prima facie case of racial discrimination. Thereafter, the employer has the burden of proof to articulate a legitimate, nondiscriminatory reason for the challenged action. The plaintiff must then show by a preponderance that the employer's stated reason for the action was in fact mere pretext. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-806 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

In order to demonstrate a prima facie case, a plaintiff must offer evidence that gives rise to an inference of unlawful discrimination. Burdine, 450 U.S. at 253-54. A plaintiff may accomplish this by introducing direct evidence of discriminatory intent (i.e., evidence which, if believed, proves the fact [here discriminatory animus] without inference or presumption, Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998); by introducing evidence that suggests that the employment decision was based on an illegal discriminatory criterion; or by using factors such as those set forth in McDonnell Douglas at 802 (there, showing membership in a protected class, qualification for a position, rejections despite qualifications, and the employer's continuing to seek applicants). Cordova v. State Farm Ins. Companies, 124 F.3d 1145, 1148-49 (9th Cir. 1997).

Because the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff, the burden of persuasion never shifts; rather, a defendant's burden is to rebut the presumption of discrimination by producing evidence that the reason for the challenged action was legitimate and nondiscriminatory. The defendant need not persuade the Court that it was actually motivated by the proffered reasons; it is sufficient that the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. Burdine, 450 U.S. at 254-55. This requirement is met if the defendant clearly sets forth through admissible evidence the reasons for the challenged action that are legally sufficient to justify a judgment for the defendant. Id. at 255. Once this burden of production is met, the presumption raised by the prima facie case is rebutted, and it disappears. Id.

The plaintiff's burden at this point is to persuade the Court that the plaintiff has been the victim of intentional discrimination, which may be accomplished either 1) directly by persuading the Court that a discriminatory reason more likely motivated the employer, or 2) indirectly by showing that the employer's proffered explanation is unworthy of credence. Burdine, 450 U.S. at 256.

Here, Plaintiff has not identified any direct evidence of discriminatory animus.

With respect to indirect evidence, Plaintiff has not produced or pointed to evidence that suggests that any use or failure to use an interpreter, or any decision to fail him in the Firing Methods and Procedures, S-234 class and/or in the Advanced Academy, dismiss him from the Wildland Firefighter Apprentice Program (WFAP), place him in non-pay status thereafter in January 1999, convert him to a temporary appointment in May 1999, or terminate his temporary position in November 1999 at the end of the fire season was based on an illegal discriminatory criterion. Plaintiff's work status customarily reverted to non-pay status at the end of the fire season.

There is no basis for an inference that exclusive use of the English language in the written testing program at the Advanced Academy shows an intent to discriminate against Plaintiff on the basis of his race or national origin. Even if it is assumed that a person of Asian race or of Hmong-Lao national origin is more likely than otherwise to speak an Asian or Lao language, it is not necessarily, inherently, or even more likely than not to be true that the person's origin renders the person limited or unskilled in English or even less skilled in English than persons of other races or national origins would be. The mere fact of national origin or race, coupled with the use of the English language in the test, does not logically or rationally permit an inference of intentional discrimination.

With respect to the use of an interpreter, or someone to explain parts of the test, the evidence shows that on the first attempt, the instructor declined to assist Plaintiff by explaining the questions because there was no time left; Plaintiff believed that this was the truth. That there was no time left to assist Plaintiff during the normal testing process does not permit an inference that the failure to help him was due to a discriminatory intent. As to the second test or retesting process, the evidence brought to the attention of the Court does not show what the circumstances were. It is not clear that an interpreter or someone to explain a test was ever provided to anyone or was not provided to anyone. Plaintiff's merely failing the test does not permit an inference of discrimination.3

Finally, using factors such as those set forth in McDonnell Douglas at 802 (there, showing membership in a protected class, qualification for a position, rejections despite qualifications, and the employer's continuing to seek applicants), Plaintiff has not raised an inference of intentional discrimination. Although the evidence brought to the attention of the Court shows that Plaintiff was Asian and therefore was a member of a protected class, it does not establish that he was qualified; the mere fact that he was hired for a position with the Defendant does not warrant an inference that he was qualified to achieve any particular rank or status or to pass or achieve any specific requirement in the WFAP schooling program. Although the evidence might warrant an inference that he continued to be qualified to be employed by Defendant, there is no evidence of circumstances that would provide a basis for inferring that either his classification or the Defendant's failure to recall him after the last fire season was discriminatory.

C. Disparate Impact

A disparate impact claim under Title VII involves alleged liability on the theory that the employer is responsible for an employment practice that is facially neutral in its treatment of different groups but that in fact falls more harshly on one group than another and cannot be justified by business necessity; proof of a discriminatory motive or subjective intent on the part of the employer is not required. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15 (1977). A plaintiff establishes a prima facie case of disparate impact by showing a significant disparate impact on a protected class caused by a specific, identified employment practice or selection criterion. Stout v. Potter, 276 F.3d 1118, 1121 (9th Cir. 2002). In a disparate impact claim, it is not sufficient to present evidence raising an inference of discrimination; rather, the plaintiff is required actually to prove the discriminatory impact. Id. at 1122.

Title 42 U.S.C. § 2000e-2(k) provides:

(k) Burden of proof in disparate impact cases (1)(A) An unlawful employment practice based on disparate impact is established under this subchapter only if--(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or

(ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.

(B)(i) With respect to demonstrating that a particular employment practice causes a disparate impact as described in subparagraph (A)(i), the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent's decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice.

(ii) If the respondent demonstrates that a specific employment practice does not cause the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity.

Thus, the plaintiff cannot challenge the cumulative effect of the employer's employment practices generally, but rather must isolate and identify each particular element or practice within the process that causes an adverse impact. Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 656-57 (1989); Stout v. Potter, 276 F.3d at 1124.

Initially, a plaintiff has the burden of showing that a particular employment practice caused the exclusion of applicants for jobs or promotions, etc., because of their membership in a protected group. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988); Stout v. Potter, 276 F.3d at 1122. The statistical evidence must be of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group; this is shown by statistical disparities that are sufficiently substantial to raise an inference of causation. Watson, 487 U.S. at 994-95 (describing the necessary disparity as significantly different, a substantially higher rate, substantially disproportionate, or significantly discriminatory, but expressly declining to define any specific standard deviation). It is insufficient merely to show that a practice or policy has harmed members of the group; rather, a plaintiff must prove the existence of the employer's practice or policy; that the policy has a significant adverse effect on persons of the protected class; the impact of the policy is on terms, conditions, or privileges of employment of the protected class; and the employee population in general is not affected by the policy to the same degree. Garcia v. Spun Steak Co., 998 F.2d 1480, 1486 (9th Cir. 1993). Once the plaintiff meets this burden, the employer has the burden of persuasion as to the business necessity of the employment practice or policy. Segar v. Smith, 738 F.2d 1249, 1247 (D.C.Cir. 1984). If the defendant meets that burden, the Plaintiff has the burden of proving the availability of an effective business alternative with less disparate racial impact. Contreras v. City of Los Angeles, 656 F.2d 1267, 1275 (9th Cir. 1981).

Here, Plaintiff has not clearly articulated the specific employment practice. In the complaint, he recounts not being permitted a Hmong interpreter, who could interpret in Plaintiff's native language, for a retest that was written in English. In contrast, he testified that he did not want an interpreter, but rather wanted someone who spoke English to explain the questions to him in English. (SUF 16.) If it is assumed that the employment practice is testing in English without access to an English speaker to explain the questions, the evidence brought to the attention of the Court does not establish that this was the practice of the employer either in the first S-234 testing (where Plaintiff admits that there was no time for someone to explain), in the retesting (regarding which there is an absence of evidence cited to the Court regarding the circumstances of the testing), or otherwise.

Further, it is not clear what the protected class is. If the protected class is non-native English speakers, then the statistical evidence, which does not indicate the native language of the academy students, does not demonstrate a disparity on that ground. Likewise, the statistical evidence does not break down subsets of Asian ancestry.4 Both the complaint and the statistics do refer to Asian ancestry, however.

If it were assumed that the practice in question is testing in English and denying the assistance of a person to explain the English question in English, and if it were further assumed that the protected class is persons of Asian origin, then the Court must consider whether or not Defendant has established that it is entitled to judgment as a matter of law.

First, to demonstrate a significant discrepancy in the impact of testing in English without access to someone to explain the questions to persons of Asian origin, the initial inquiry should be whether there is a discrepancy in the rate of passage as between persons in the protected group and those in other groups. See Fudge v. City of Providence Fire Dept., 766 F.2d 650, 657 (1st Cir. 1985). Disparate impact should generally be measured against the actual pool of applicants or eligible employees. Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 482 (9th Cr. 1983).

The statistical evidence provided by the declarations of Bennion and Sutliff generally reveals that with respect to the Asian students from region 5 at the advanced academy, two of five, or forty per cent, passed the advanced academy. Twenty-one of twenty-two non-minority students passed, or 95.5 per cent. The overall pass rate of all categories other than Asians was 99.1 per cent. The passage rate of each of the African, Hispanic, and American Indian minority groups was 100 per cent. The Asian students' passing score of 40 per cent was only 42 per cent of the non-minority students' 95.5 per cent pass rate, and it was 40.36 per cent of the 99.1 per cent pass rate of the combined non-Asian categories. The Asian students' pass rate is thus less than eighty per cent of the passing rate of the highest group and indeed of each group and all the other groups combined. Such a statistical showing is generally sufficient to show a significantly disparate impact. Connecticut v. Teal, 457 U.S. 440, 443-44 n.4 (1982); see 28 C.F.R. § 50.14, 29 C.F.R. § 1607.4. Based on the numbers alone, one reasonable conclusion is that a prima facie case of disparate impact of the English language testing on students of Asian origin has been established.

Defendant points to defects in the statistical evidence. The appropriate use of statistical evidence is conditioned by the presence of proper supportive facts and the absence of variables which would undermine the reasonableness of the inference of discrimination which is drawn. Contreras v. City of Los Angeles, 656 F.2d 1267, 1272 (9th Cir. 1981). Here, there is no information on the ethnic makeup of students and pass rates of students at the basic academy. Even if the appropriate focus were on only the advanced academy, there are no data for the third class of testing (S-205), and it is unclear if everyone passed or if there were additional reductions in the size of the class. (See Sutliff Decl. at ¶¶ 10-12.)

Further, even drawing all inferences in favor of Plaintiff, the nonmoving party, with respect to the advanced academy program, only part of the population of students is represented. The statistics submitted by Defendant represent only the part of the student population in the WFAP program that were from region 5; persons from other regions with various ethnic backgrounds were attending, but no statistics are submitted for them. (Sutliffe Decl. at ¶ 12.) Thus, there is no complete or definitive evidence regarding the actual pool of students relevant to the drawing of the pertinent comparison.

Further, even within the limited region 5 sample, the ethnic makeup of ten of the forty-four students, who constitute nearly twenty-five per cent of the sample, is unknown.

The sample, which as previously noted is not the full, actual pool in question, is very small. See Kim, 772 F.2d at 523-24 (despite comparative pass rates on an oral language proficiency test of less than eighty percent, the sample of 12, including four Germans and eight other non-native English speakers, was very small such that it was not statistically significant) (citing Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 620-21 (1974)); Contreras v. City of Los Angeles, 656 F.2d 1267, 1273 (9th Cir. 1981) (five of seventeen Spanish-surnamed applicants compared with twenty-two of forty non-Hispanic applicants not significant despite expert statistical opinion evidence); White v. City of San Diego, 605 F.2d 455, 460 (9th Cir. 1979) (in view of expert opinions regarding the significance of statistical evidence, and in the absence of expert statistical evidence to the contrary, the appellate court upheld the district court's conclusion that rates of fifteen out of twenty-eight and nine out of twenty-two were not significant because of the small size of sample).

In this summary judgment proceeding, the Court will draw every reasonable inference possible in favor of Plaintiff, the non-moving party. The statistical sample is arguably small and incomplete. However, Defendant has not produced all the pertinent data regarding the make-up of the academy students. Likewise, Defendant has not produced expert opinion regarding the significance of the statistical data submitted by Defendant. The status of the evidence is that a reasonable person could infer a significant disparity, and yet the Court is uncertain whether or not an inference of significant disparity is the better inference from the statistics provided by Defendant.5

Defendant has the initial burden on this motion either to produce affirmative evidence negating an essential element of Plaintiff's case, or to demonstrate that Plaintiff does not have enough evidence of an essential element of its claim to carry its ultimate burden of persuasion at trial. Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1106 (9th Cir. 2000). Defendant has not produced affirmative evidence negating what would be Plaintiff's showing that persons of Asian descent who took the English-only tests, apparently without explanation, suffered significantly reduced rates of passage of the classes at the advanced academy. By pointing to omissions or defects in the statistical picture, Defendant raised some question regarding the sufficiency of the evidence to demonstrate on behalf of Plaintiff at trial that students of Asian descent who took tests in the English language suffered a negative and disparate impact. However, because of the incomplete statistics submitted by Defendant and the absence of expert opinion evidence regarding the strength of the statistical evidence, Defendant did not succeed in demonstrating that Plaintiff does not have enough evidence of an essential element of its claim to carry its ultimate burden of persuasion at trial on a disparate impact claim.

Defendant argues that Plaintiff failed to demonstrate a causal relationship between the challenged practice (testing in English without someone to explain or interpret) and the result. See, Contreras v. City of Los Angeles, 656 F.2d 1267, 1273-74. In view of the testimony regarding Plaintiff's difficulty with the questions in English, and further considering the absence of evidence regarding other reasons for the Asian students' failure, the Court concludes that one rational inference is that testing in the written English language was causally related to the failure.

In summary, the Court concludes that with respect to a claim of disparate treatment, Defendant has produced evidence negating the claim and has shown that any evidence Plaintiff may have concerning such treatment is inadequate to sustain Plaintiff's burden of proof of discriminatory treatment at trial. Defendant has shown that it is entitled to judgment as a matter of law on the discriminatory treatment claim. With respect to Plaintiff's claim of disparate impact, Defendant did not meet its initial burden, so Plaintiff is not required to present additional evidence. The Court concludes that Defendant has not shown as a matter of law that it is entitled to judgment on a disparate impact claim.

V. Jury Trial Demand

Defendant requests that Plaintiff's jury demand be stricken because the Court has determined that Defendant has shown that it is entitled to judgment as a matter of law with respect to Plaintiff's disparate treatment claim. The only remaining theory of liability is discriminatory impact, with respect to which Plaintiff is not entitled to a jury trial.

Plaintiff demanded a trial by jury in the complaint. Title VII extends a right to a jury trial with respect to claims of intentional discrimination but "not an employment practice that is unlawful because of its disparate impact." 42 U.S.C. § 1981a(a). Thus, Plaintiff is not entitled to a jury trial on an employment discrimination claim that is solely based on a disparate impact theory and does not involve disparate treatment. Garcia v. Woman's Hopital of Texas, 143 F.3d 227, 230 n. 1 (5th Cir. 1998); Allison v. Citgo Petroleum Corp., 151 F.3d 402, 423 (5th Cir. 1998).

Fed. R. Civ. P. 39(a) provides that when trial by jury has been demanded, the trial shall be by jury unless the court upon motion or of its own initiative finds that a right of trial by jury of some or all of the issues does not exist under the Constitution or statutes of the United States. Where a right of jury trial does not exist as to issues specified in a jury demand, the appropriate remedy is to strike the demand. United States v. Missouri River Breaks Hunt Club, 641 F.2d 689, 692 (9th Cir. 1981).

Thus, Defendant's request that the Court strike Plaintiff's jury demand will be granted.

VI. Disposition

Accordingly, it IS ORDERED that

1) Defendant's motion for summary judgment or summary adjudication IS GRANTED IN PART and DENIED IN PART; and

2) Defendant's motion for summary adjudication on Plaintiff's Title VII discrimination claim on a theory of disparate treatment IS GRANTED; and

3)Defendant's motion for summary adjudication of Plaintiff's Title VII discrimination claim on a theory of disparate impact IS DENIED; and

4) The documents filed by Plaintiff on August 4, 2005, including a separate statement, points and authorities, declaration of James C. Holland and exhibits, and declaration of James C. Holland re: Late Filing of Opposition (Docs. 30 through 33), ARE STRICKEN; and

5) Defendant's request that the Court strike Plaintiff's jury demand IS GRANTED.

IT IS SO ORDERED.

1. It appears that the parties were serving documents electronically in this action.

2. This statement is derived from Plaintiff's Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment (SUF).

3. The Court notes that Plaintiff's complaints filed in this Court were not verified, and Plaintiff has produced no evidence that is considered by the Court. Thus, in analyzing the merits of this motion, the Court relies only on the statement of undisputed facts submitted by Defendant and the evidence specifically referred to therein.

4. The declarations establish that the Forest Service does not keep a record of whether or not students are native English speakers or not. Further, it does not break up Asian ethnicity into various subsets such as Hmong, Vietnamese, Chinese, or Japanese; it simply records an Asian category of Asian/Pacific Islander. Thus, the most precise degree of identification of the sample that may be ascertained is Asian ancestry.

5. There is no expert statistical evidence submitted by either party. As previously discussed, the only portion of the Defendant's evidence being considered by the Court is that expressly pointed out by Defendant, and the Court has stricken the materials submitted by Plaintiff and thus is not considering them.

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