IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) )

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 0 Equal Employment Op p ort unit y Commission, Plaintiff, vs. Sanmina-SCI Corp oration, a foreign corporation, Defendant. No. CIV PHX-EHC ORDER 0 Pending before the Court is Defendant's Motion for Summary Judgment [dkt. ]. Pending before the Court are Plaintiff's Motion to Strike the Declaration of H eat her Cavin [dkt. ] a nd Motion t o Strike Defendant's Supplemental Separate Statement of F acts [dkt. ]. The Motions are fully briefed. Background Plaintiff Equal Employment Opportunity Commission (EEOC filed a claim under Title VII of t he Ci vil Right s Act, U.S.C. 000e et seq., on be half of Surinder Cheira. As the Court does not rely on t he materials subject to the Motions to Strike, t he M otions to Strike will be denied as moot.

2 Cheira was employed by Defendant Sanmina-SCI Corp. in the manufacture of electronics 0 components from October, t o March, 00. [Dkt., ex. F]. On June, 00, Cheira filed a ch arge with the EEOC, alleging that Defendant discriminated against her on the basis of her religion when she was not rehired in October 00. [Dkt., ex. A, attach.]. Cheira is a practicing Sikh. As part of he r religion, Cheira wears a kirpan, or ceremonial sword. Her kirpan is similar t o a letter opener, with a blade about three inches long and not particularly sharp. [Dkt, p. ]. On February, 00, D efendant issued Cheira a final written warning, advising Cheira that wearing the kirp an t o work was a violation of D efendant's no-weapons policy. [Dkts., Wallace Decl., ex. B;, p. ]. Cheira did not file a timely charge with the EEOC regarding the issuance of the warning. A claim b ased on that dis criminatory act is therefore time barred. In early 00, Defendant decided to reduce its workforce, t erminating first employees whose jobs were redundant, then all those who had active w arnings, and finally those with the least seniority. [Dkt., p. ]. D efendant fired e mploy ees: w ith redundant jobs, with active warnings, and with minimal seniority. [Dkt., p. ]. On March, 00, Cheira was terminated as one of the employees having an active warning. O n M arch 0, 00, Defendant's Vice President of H uman Resources, Jim Sullivan, completed an Employee Data Change Form reporting that Cheira's last day of w ork was March, 00 0 Defendant Sanmina-SCI Corp. is a national company with a division in Phoenix. The Phoenix division will be referred to as Defendant. The parties agree that Cheira did not file a t imely charge related to the issuance of the warning and her subsequent t ermination. In fa ct, Plaintiff advises that "[t]his lawsuit was brought by the Commission based on Defendant's failure to hire Ms. Cheira in 00, not on the p as t acts of discrimination." [Dkt. 0, p. ]. Che ira's claims based on t he issuance of t he warning and her termination are time barred. See Nat'l. R.R. P assenger Corp. v. Morgan, U.S. 0, 0, S. Ct. 0, 00 (00 ("A claim is time barred if it is not filed within [Title VII's] time limits.". - -

3 0 and that she was not eligible for re hire. [Dkt., e x. F]. Cheira did not file a timely EEOC charge; a claim based on her firing is time barred. In early 00, D efendant began re-hiring former employees and others as temp orary w orkers, using an employment agency, StaffM ark, to handle the application process. [D kt., p. ]. D efendant prohibit ed the rehire of form er employees who had been terminated while having an active warning. [Dkt., p. ]. Cheira applied for re hire with Defendant at least two times in 00. She was denied rehire in October 00. Cheira filed a timely EEOC charge related to the October 00 denial of rehire; it is the only claim not time barred. Legal S tandard Summary judgment is prop er only if no genuine issues of m aterial fact remain for trial and the moving party is entitled to judgment as a matter of law. Block v. Cit y of Los Angeles, F.d 0, (t h Cir. 00. M oreover, the Court must view evidence in a light most favorable to the nonmoving party. Id. Discussion T he United States Supreme Court has held that, even though the effect is t imely challenged, an effect of an untimely challenged dis criminatory act is not an actionable violation of T itle VII. United Air Lines, Inc. v. Evans, U.S.,, S. Ct., (. In t hat case, Unit ed forced the newlywed Evans to resign pursuant to a policy 0 Defendant alleges that Cheira applied for re hire on a pproximately January, 00 and September, 00. [D kt., p. ]. Plaintiff alleges that Cheira decided to apply for rehire in 00 [ dkt., p. ], w ithout providing application dates. At her deposition, Cheira t estified that "I tried two, three times" to be rehired. [Dkt., e x. A, p. ]. T he EEOC charge alleges a discriminatory failure to rehire occurring in October 00. Both t he Sep t ember, 00 and the October 00 dates are timely in relation to the EEOC charge Cheira filed on J une, 00. [S ee dkt. 0, p. (D efendant s t at es that it denied "her second application for re hire on September, 00" and "[t]he only event that Ms. Cheira timely challenged was the second denial of rehire."]. Based on these facts, the Court finds t hat Cheira sought rehire at least twice and will refer to the actionable denial of rehire as the October 00 denial of rehire. - -

4 0 0 against married female stewardesses; Evans did not file a claim based on he r resignation. Id., U.S. at -, S. Ct. at. She was subsequently rehired, but was not given seniority credit for he r prior service based on a policy not to give credit for e mployment periods ending in resignation. Evans filed a timely claim based on t he denial of seniority credit. Id. First, the Court found t hat "United was entitled to treat [the forced resignation] as lawful after [Evans] failed to file a c harge of dis crimination within the 0 days then allowed." Id., U.S. at, S. Ct. at ( "A discriminatory act which is not made the basis for a timely charge... is merely an unfortunate event in history which has no p resent legal consequences.". Second, although "U nit ed's seniority system does indeed have a continuing impact on he r pay and fringe benefits," t he Court found that "the [seniority] system is neutral in its operation" and thus Evans "has not alleged facts es t ablishing a violation since she was rehired." Id., U.S. at -, S. Ct. at. T he Court stated that "the emphasis should not be placed on mere continuit y ; t he critical question is whether any present violation exists." Id., U.S. at, S. Ct. at. The Ninth Circuit recently followed Evans in a published op inion addressing an untimely challenge to the calculation of pregnancy leave credit for purposes of retirement and benefits eligibility. H ulteen v. AT&T Corp., F.d, 00 U.S. App. LEXIS (th Cir. 00. In de termining whet her there was a present violation of T itle VII, the Court stated that "[t]he key is differentiating cause from effect," Id., 00 U.S. App. LEXIS at *-, c iting Evans as an example of a cas e where there was "no current violation of The Court addressed the t heory t hat "it is not the initial crediting of the leave period that is the offense, but the later- much lat er- award of re tirement or ot her benefits," in the context of det ermining whether "the [statutory] requirement that pregnancy leaves be given full credit " applied retroactively. Hulteen, 00 U.S. App. LEXIS a t *-. The Court resolved the statute of limitations issue by reference to its retroactivity analysis: "The analysis also dis poses of another issue in the case relating to the statute of limitations." Id., 00 U.S. App. LEXIS a t *. The retroactivity analysis is therefore applicable to determining whether a p laintiff has a claim f or a p resent violation when the plaintiff has not t imely challenged an earlier discriminatory act relating to the alleged violation. - -

5 0 Title VII by the employer." Id., 00 U.S. App. LEXIS at *-. The Court found t hat "[t]he effect of t hat init ial accounting method is felt only at the end-point, when retirement and other specific benefits are finally calculated based on those initial actions." Id., 00 U.S. App. LEXIS at *-; see Del. State Coll. v. Ricks, U.S. 0, -, 0 S. Ct., 0 (0 ("the proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of t he act s become most painful" (quotation omitted. That finding lead to the conclusion that there was no p resent violation. Id., 00 U.S. App. LEXIS a t * ("the filing of a co mplaint [based on the award of benefits] is clearly time-barred.". Evans and Hulteen stand for t he rule that, even though the effect is timely challenged, an effect of an untimely challenged discriminat ory act is not a p resent violation of Title VII. T he N int h Circuit has provided guidance on how to apply that rule in cases alleging discrimination in rehiring. In Josephs v. Pacific Bell, F.d 00, 0- (t h Cir. 00, the Court recognized the rule that a d iscrimination claim b ased on denial of rehiring "simply seeks to redress the original termination and is, therefore, not separately actionable," cit ing Collins v. United Air Lines, Inc., F.d, (t h Cir.. T he Court found an exception to t hat rule when "'new elements of unfairness, not existing at the time of the original violation, attached to denial of re employment.'" Id., F.d at 0- (quot ing Inda v. 0 Plaintiff argues that Lyons v. England, 0 F.d 0 (th Cir. 00 is the controlling case. That case, however, addressed a d ifferent issue: whet her the continuing violation doctrine allowed a challenge to time barred failures to promote in the course of bringing timely challenges to subsequent failures to promote. Id., 0 F.d at 0-0. Although Josephs involved claims under the Americans with Disabilit ies A ct (ADA and the California Fair Employment and Housing Act (CFEHA, the Evans rule applies to both of those Acts. The ADA borrows Title VII's statute of limitations. U.S.C. (a (ADA uses the procedures of Title VII. California recognizes the Evans rule. See Valdez v. Ci ty of L os A ngeles, Ca l. App. d 0, 0- ( (di stinguishing Evans. - -

6 Unit ed Air Lines, Inc., F.d, - (t h Cir.. A brief analysis of t hose cases will illustrate the application of the rule and the exception thereto. Collins involved a United stewardess who was forced to resign pursuant to United's policy prohibit ing married stewardesses. F.d at. In, U nited agreed to 0 0 discontinue the policy and reinstate all stewardesses who had resigned under the policy and had filed a union grievance or E EOC charge. Id. When the plaintiff sought reinst at ement in, U nited refused her reinstatement because she had not filed a grievance or charge. She subsequently filed an EEOC charge. The Ninth Circuit rejected the plaintiff's argument "that United's denial of he r request for re instatement during the [statutory] period preceding her filing of charges w as a new and separate discriminatory act," finding that the plaintiff "seeks to redress t he original termination." Id., F.d at. The Court affirmed dismissal of the case based on failure to file a timely charge with the EEOC. Id., F.d at. Inda, F.d at, also involved a United stewardess in the same circumstances as the plaintiff in Collins. The plaintiff in Inda, however, produced evidence t hat United represented to her "t hat should the no-marriage rule be terminated those stewardesses who had, because of the rule, resigned w ould be re-employed." F.d at. T he Court found that this representation presented "new elements of unfairness" such that "[i]t was the company's failure to re-employ... that constituted the violat ion." Id., F.d at -. In Josephs, t he Court recognized a " new element of unfairness" in the refusal of reemployment because "the jury found that PacBell's denial of re instatement was based on... the perception that [the plaintiff] was mentally ill." Id., F.d at 0. T he defendant had expressed that p erception during a r einstatement hearing, where the general manager of its labor force testified t hat he was concerned "about employing someone with Josephs' 'background' to work in people's homes because he might 'go off' on a cu stomer... [and defendant] had an image to uphold." Id., F.d at

7 0 Cheira was denied rehire pursuant to Defendant's policy against rehiring former employees who were terminated with act ive final warnings. Defendant's Position Statement submitted to the EEOC during conciliation efforts stated that "[o]nly former employees in good standing at t he time of s eparation were considered for [re hire in] a temporary position." [Dkt., Hartman Decl., ex. B, p. ]. Compare Hernandez v. Hughes Missile Sys. Co., F.d, (t h Cir. 00 (no p olicy where employer initially explained to the EEOC it refused to rehire plaintiff based on a history of s ubstance abuse and only mentioned the policy once suit was filed. All of D efendant's employees whose depositions or de clarations w ere p rovided to the Court described the policy preventing the rehire of e mployees who were terminated with active warnings. D efendant's Human Resources M anager, Judy Hartman, provided a declaration stating that Defendant had "a policy that categorically prohibited employees whose initial employment with [Defendant] t erminated while they were on active warnings from being rehired." [Dkt., H artman Decl., p. ]. D efendant's Senior Human Resources Representative, M arjorie Wallace, testified at her deposition that "Decisions were made on the crit eria of rehiring individuals, one of t hose being individuals who were on a n active warning at t he time of t ermination whether voluntary or involuntary." [Dkt., ex. D, p. ]. Steve Lach testified at his deposition that "I was aware that w e didn't typically rehire 0 people that had written warnings." [Dkt., e x. E, p. ]. D efendant's Human Resources Representative, Heather Cavin, provided a declaration stating that Defendant "maintains a policy that prohibits employees from being rehired if their initial employment with Sanmina terminated while the employees were on a ctive warnings." [Dkt., Ca vin D ecl., p. ]. Although the policy was unwritten, this evidence establishes that Defendant had a policy not to rehire employees terminated while having active warnings. Steve Lach's position is not ident ified in the excerpts of t he depositions provided to the Court. Hartman described him as "the president of t he division or the general manager of the Phoenix division." [Dkt., ex. C, p. ]. - -

8 0 0 Defendant's Phoenix division develop ed its own policies governing layoffs and rehirings. [Dkt., ex. C, p p., -]. T he March 00 layoffs involved employees, who were on active warnings- including Plaintiff. [Dkt., ex. C, attach. ]. Defendant also laid off e mployees in May 00 a nd October 00, us ing active warnings as a crit eria for terminat ion. [Dkt., e x. C, p. ]. T his evidence indicates that at least - p erhaps more- former employees were ineligible for re hire based on the policy prohibiting such rehires. Given Defendant's ability to set layoff and rehiring p olicy and the number of people affect ed by this policy, the policy is bona fide even though it is not a policy enacted by Defendant's corporate human resources department. Defendant used a staffing service, StaffMark, to hire temporary employees in 00. To implement the policy regarding former employees, StaffM ark was instructed to determine whether a f ormer employee was applying and t o contact Defendant's human resources department t o det ermine if the former employee was eligible for re hire. [Dkt., ex. C, p. ]. While the number of form er employees who sought reemployment is not provided, Defendant prepared a document listing form er employees who applied for employment from January 00 t o August, 00 and were denied rehiring because they were not in good standing. [Dkt., ex. C, attach. ]. Of those, form er employees were denied rehiring because they were terminated with act ive w arnings. [Dkt., ex. C, a ttach. ]. Plaintiff argues that there were exceptions to the policy, citing Hartman's deposition. At her deposition, Hartman was handed the document listing the former employees who were denied rehiring. [Dkt., e x. C, p. ]. H artman testified regarding the former employees on the list as follows: I know that they did all reapply and they were all not rehired. You will note the bullet down below, there were a co uple of exceptions to that, one was rehired but had p oor at t endance as a temporary so then he tried to come back and he was not rehired again. [Dkt., ex. C, p. 0]. T he document included two employees whose entries are highlight ed and exp lained in footnotes. The footnote for t he first, as Hartman testified, stated t hat he - -

9 0 0 was "Rehired as t emporary; had poor attendance; no l onger eligible for re hire." [Dkt., ex. C, attach. ]. T he footnote for t he second employee stated "On March 00 lay off list; was no c all no s how prior to execution of l ayoff." [Dkt., e x. C, at t ach. ]. T hese footnoted explanations, of t he reasons why two former employees were on t he list, do not create a g enuine issue regarding whether Defendant made exceptions to its policy prohibiting the rehire of e mployees who were t erminated with active warnings. Rather, the evidence demonstrates that Defendant applied the policy in a n eutral manner, refusing to hire all former employees who were terminated with active warnings. Plaintiff argues that there were "new elements of unfairness" in failing to rehire Cheira because, as Defendant admits, all o f Defendant's "employees w ho w ere involved in the decision not to rehire Surinder Cheira knew that t he warning in her file was regarding the wearing of he r Kirpan, which [they] knew was a religious requirement, before they decided not to rehire her." [Dkt. 0, p. ]. This argument focuses on the issuance of the final warning, which Plaintiff did not timely challenge. Even if the final warning was discriminatory, Defendant was entitled to treat the issuance of the warning as lawful. See Evans, U.S. at, S. Ct. at (de fendant could treat discriminatory forced resignation as lawful because plaintiff did not timely challenge it. Plaintiff's argument demonstrates that the denial of re hiring was not based on a new element of unfa irness, but was based on the final warning contained in Cheira's personnel file. Cheira was terminat ed w it h an active warning, issued for violating Defendant's p olicy against weapons in the workplace by wearing her kirpan to work. The denial of rehire was pursuant t o Defendant's policy prohibiting the rehire of form er employees terminated with active warnings. See Hulteen, 00 U.S. App. LEXIS a t *-. A s such, the denial of re hire is not a separately actionable violation of T itle VII. See Collins, F.d at. A s deserving as Plaintiff may be, Defendant is not required to make an exception treating her differently than others terminat ed with active warnings. See Hulteen, 00 U.S. App. LEXIS a t *- (" Deserving as these plaintiffs would seem to be of - -

10 some accommodation..., the question before us is not whether the employer owes these plaintiffs an accommodation, but whether the law compels it.". Accordingly, IT IS ORDERED that Defendant's Motion for S ummary Judgment [dkt. ] i s GRANTED; the Clerk of Court shall enter judgment for Defendant and against Plaintiff. IT IS FURTHER O RD ERED that Plaintiff's M otion to Strike the Declaration of Heather Cavin [dkt. ] a nd Motion to Strike Defendant's Supplemental Separate Statement of Facts [dkt. ] are DENIED as moot. DATED this th day of M arch,