C.A. No UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ISABELLA NUNES-BAPTISTA,

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1 Case: /21/2012 ID: DktEntry: 10 Page: 1 of 29 C.A. No UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ISABELLA NUNES-BAPTISTA, v. Plaintiff-Appellant, WFM HAWAII, LLC, dba WHOLE FOODS MARKET, JOHN DOES 1-5, JANE DOES 1-5, DOE CORPORATIONS 1-5, DOE LLCS 1-5, DOE PARTNERSHIP 1-5, DOE NON-PROFIT ORGANIZATIONS 1-5, AND DOE GOVERNMENTAL AGENCIES 1-5, Defendants-Appellees ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII CIVIL NO LEK-BMK HON. LESLIE E. KOBAYASHI, PRESIDING APPELLANT S OPENING BRIEF CHARLES H. BROWER, # Fort Street, Suite 1210 Honolulu, HI Telephone: (808) Facsimile: (808) honlaw@lava.net Attorney for Plaintiff-Appellant Isabella Nunes-Baptista

2 Case: /21/2012 ID: DktEntry: 10 Page: 2 of 29 TABLE OF CONTENTS I. Jurisdictional Statement A. Basis for District Court s Subject Matter Jurisdiction B. Basis for Court of Appeals Jurisdiction C. Timeliness of the appeal II. Statement of Issues Presented for Review A. Whether the District Court erred in granting summary judgment in favor of Defendants? III. Statement of the Case IV. Statement of Facts Relevant to the Issues Submitted for Review V. Summary of the Argument VI. Argument A. Standard of Review B. Defendants motion did not establish that it was entitled to judgment as a matter of law C. Company policy does not justify the termination of an employee who inadvertently takes and consumes food and forgets to pay for it D. Plaintiff was not required to establish that others were wrongfully terminated for mistakenly taking food without paying for it E. The Intentional Infliction of Emotional Distress Claim VII. Conclusion

3 Case: /21/2012 ID: DktEntry: 10 Page: 3 of 29 Cases cited: TABLE OF AUTHORITIES Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S.Ct (2006) Arquero v. Hilton Hawaiian Village, 104 Hawaii 423, 91 P.3d 505 (2004) Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) Davis v. Team Elec. Co., 520 F.3d 1080 (9th Cir. 2008) Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027 (9th Cir. 2005) French v. Haw. Pizza Hut, Inc., 105 Hawaii 462, 99 P.3d 1046 (2004) Hawn v. Exec. Jet Mgmt. Inc., 615 F.3d 1151 (9th Cir. 2010) , 15, 16 Khufu v. Jones Retail Corp., Civil No LEK-BMK, 2011 U.S. Dist. LEXIS (D. Hawaii May 31, 2011) Mattos v. Agarano, 590 F.3d 1082 (9th Cir. 2010), reh. en banc, 661 F.3d 433 (9th Cir. 2011) McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.2d 668 (1973) , 4, 14, 15, 17 Palmer v. Pioneer Inn Associates, Ltd., 338 F.3d 981 (9th Cir. 2003) Range Road Music, Inc. v. East Coast Foods, Inc., 668 F.3d 1148 (9th Cir. 2012) Vasquez v. County of Los Angeles, 349 F.3d 634 (9th Cir. 2004)

4 Case: /21/2012 ID: DktEntry: 10 Page: 4 of 29 Statutes cited: 28 U.S.C U.S.C U.S.C. 1343(a)(4) U.S.C. 1367(a) H.R.S H.R.S Title VII of the Civil Rights Act of , 1 Rules cited: F.R.A.P., Rule 4(a)(1)(A) Fed.R.Civ.Proc., Rule 56(a)

5 Case: /21/2012 ID: DktEntry: 10 Page: 5 of 29 Jurisdictional Statement Basis for District Court s Subject Matter Jurisdiction. The complaint presents claims for employment discrimination in violation of Title VII of the Civil Rights Act of 1964 and related claims under state law. Doc 1, Ex. A. The complaint was filed in the Circuit Court of the First Circuit State of Hawaii and removed to the United States District Court for the District of Hawaii by Defendants. Doc., 1. The District Court had primary original federal question subject matter jurisdiction of the federal civil rights claim as conferred by 28 U.S.C and 28 U.S.C. 1343(a)(4) and pendant jurisdiction over the related state claims as conferred by 28 U.S.C. 1367(a). Arbaugh v. Y & H Corp., 546 U.S. 500, 503, 126 S.Ct (2006). Basis for Court of Appeals Jurisdiction. The District Court granted Defendants motion for summary judgment. Doc. 51. Final Judgment in a Civil Case pursuant thereto was filed and entered, on April 30, Doc. 52. The Court of Appeals has appellate jurisdiction for this appeal from a final judgment as conferred by 28 U.S.C Timeliness of the appeal. The notice of appeal was filed within 30 days of the entry of Judgment, on May 1

6 Case: /21/2012 ID: DktEntry: 10 Page: 6 of 29 30, Doc. 54. The notice of appeal was timely filed in compliance with F.R.A.P., Rule 4(a)(1)(A). Statement of Issues Presented for Review Whether the District Court erred in granting summary judgment in favor of Defendants? Statement of the Case This is an employment discrimination case under both federal and state law and also includes a claim for intentional infliction of emotional distress. Doc. 1, Ex. A. Count I of the complaint sets forth a claim for sex discrimination in Plaintiff s termination of employment in violation of H.R.S and Title VII of the Civil Rights Act of Id., Count II claims damages as the result of a hostile work environment. Id., Count III claims compensatory and punitive damages for intentional and malicious infliction of emotional distress. Id., Defendants moved for summary judgment with respect to Count I on the grounds that Plaintiff failed to establish a prima facie case of sex and disability discrimination based on the four elements set forth in Hawn v. Exec. Jet Mgmt. Inc., 615 F.3d 1151, 1156 (9th Cir. 2010) and French v. Haw. Pizza Hut, Inc., 105 Hawaii 462, 475, 99 P.3d 1046, 1059 (2004). Doc. 26-2, p. 4. This argument consists of 15 2

7 Case: /21/2012 ID: DktEntry: 10 Page: 7 of 29 pages of the memorandum in support of the motion, but fundamentally relies on a claim by Defendant that Plaintiff was properly terminated for theft and not terminated because she was pregnant. Id., pp The word theft appears eighteen times in the portion of Defendants memorandum discussing sex and disability discrimination. Id. Defendants moved for summary judgment on Count II for failure to exhaust administrative remedies in that a hostile workplace environment issue was not mentioned in Plaintiff s administrative proceedings before the EEOC, Doc., 26-2, pp ; and for failing to establish a prima facie claim again on the authority of Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2004); Khufu v. Jones Retail Corp., Civil No LEK-BMK, 2011 U.S. Dist. LEXIS (D. Hawaii May 31, 2011) at 27; and Arquero v. Hilton Hawaiian Village, 104 Hawaii 423, 428, 91 P.3d 505, 510 (2004). Doc., 26-2, pp With respect to Count III, Defendants argued that Plaintiff has not shown any outrageous conduct on the part of Defendants or any of the acts of Defendants were the actual cause of her emotional distress. Id., pp In opposition to the motion for summary judgment, Plaintiff presented her declaration in which she denied having committed a theft. She admitted that she took some food without paying for it, but stated that it was inadvertent because of pressing duties and stress of her employment, as follows: 3

8 Case: /21/2012 ID: DktEntry: 10 Page: 8 of On July 29, 2009, I was again working both counters. A team member came to help me and agreed to watch both counters while I went upstairs to place my orders. I went to the hot bar, got my breakfast, and before I could go through the cashier s line to pay for my $3.00 breakfast, the baker, Diana, called me to the kitchen to tell me what she needed me to order for the kitchen. 13. Then Marie, who was working the coffee and bakery counters for me, called me to tell me what she needed me to order for the Coffee & Juice Bar counter. 14. I was running back and forth between the front and back of the store and during this whole time I still had my breakfast in my hands together with the orders paperwork. 15. I ran upstairs to the office to place the orders and forgot to pay for my $3.00 breakfast. Doc. 42-1, pp Plaintiff also set forth factual allegations in support of her claim that her dismissal was as the result of her pregnancy and not as the result of any alleged theft. Id. The District Court agreed with Defendants and granted the motion for summary judgment. The District Court analyzed the case under the four prima facie elements set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.2d 668 (1973), as follows: A prima facie case under McDonnell Douglas requires a plaintiff to offer proof that: (1) he belongs to a protected class; (2) he performed his job adequately or satisfactorily; (3) he suffered an adverse employment action; and (4) other similarly situated employees who do not belong to the same protected class were treated differently. McDonnell Douglas, 411 U.S. at 802; Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 4

9 Case: /21/2012 ID: DktEntry: 10 Page: 9 of ); Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006). Doc. 51, p. 4. The District Court concluded that Plaintiff failed to show that she performed her job adequately or satisfactorily Defendants were entitled to terminate her even if she had merely taken food inadvertently without paying for it as follows: Plaintiff argues that the theft policy requires the act of stealing to be intentional and to be done with the intent to defraud Defendant, and that, because she did not intentionally fail to pay for the food, she did not violate the policy. [Mem. in Opp. at 4.] The Court is not persuaded by this argument. Defendant's policy provides, in pertinent-part, that: c. Team Members who engage in any of the following conduct will be subject to immediate termination: taking merchandise without paying for it[.] [Def.'s CSOF, Harris Decl., Exh. E (Whole Food Market Northeast Region Theft Policy) at 1.] Plaintiff does not deny that she did not pay for the food that she took off the store s retail floor. Id., p. 9. The District Court also concluded that Plaintiff failed to show that other similarly situated employees were treated differently as follows: As to the fourth prong, Plaintiff has offered no specific examples of similarly situated employees being treated more favorably. To satisfy this prong for her gender discrimination claim, she must show that male employees engaged in similar conduct, were treated more favorably. Similarly situated employees must have similar jobs and display similar conduct. Vasquez, 349 F.3d at 641. Plaintiff offered no such evidence in her opposition. Id., p

10 Case: /21/2012 ID: DktEntry: 10 Page: 10 of 29 The District Court held that it was not necessary to address the pretextual issue, as Plaintiff had failed to make out a prima facie case under McDonnell Douglas, Id.; but, nevertheless, went on to hold that Plaintiff had failed to present any specific and substantial evidence that Defendants had intended to discriminate on the basis of her sex. Id., p. 11. The District Court granted summary judgment on Count II on the ground that Plaintiff had failed to exhaust her administrative remedies in that the claim for hostile work environment was not sufficiently like or reasonably related to the allegations of sex discrimination addressed in her EEOC complaint. Id., pp The Intentional Infliction of Emotional Distress claim in Count III was dismissed because the District Court concluded that there is no evidence that Defendant's termination of Plaintiff for an admitted violation of the theft policy was outrageous. Id., p. 20. Statement of Facts Relevant to the Issues Submitted for Review In October, 2007, Plaintiff was hired by a Whole Foods Market company in New York which is designated in Defendant s documentation as Whole Foods Market, Northeast Region. Doc. 27, p. 2; Doc 27-10, p. 2. At that time, she 6

11 Case: /21/2012 ID: DktEntry: 10 Page: 11 of 29 acknowledged receipt of a written theft policy. Doc , p. 2. The policy states: c. Team Members who engage in any of the following conduct will be subject to immediate termination: Taking merchandise without paying for it Giving away, bartering or hooking up product Eating product without paying for it Letting someone other than authorized family members use your discount card Discounting purchases without authorization Manipulation or invoices, packing slips or register sales Misappropriation of any cash equivaent tender Abuses of Whole Foods Market gift certificates In addition to the above list, any action by a Team Member that results in the intentional and/or deliberate act to defraud and or / or steal product, tender or property of Whole Foods or any of its Team Members, Customers or vendors, will subject the individual(s) to immediate termination. Theft is a serious crime and the conduct listed above would constitute theft under the applicable state law. In addition to termination, individuals who violate this policy are subject to criminal prosecution to the full extent of the law. Id., pp 2-3 [Emphasis added]. This written policy also provides for searches of employees person and effects while on or leaving the premises. Id., p. 2. In August, 2008, Plaintiff came to Hawaii where she was employed at the kahala store by Defendant WFM Hawaii LLC ( WFM ). Doc. 27, p. 2. In New York, the practice was consistent with this written policy, in that employees bags were regularly searched upon leaving the premises. Doc. 27-6, p. 5 [Deposition p. 21, lines 9-12]. In Hawaii, however, the New York policy was not enforced in that regard. Id. 7

12 Case: /21/2012 ID: DktEntry: 10 Page: 12 of 29 [Deposition p. 21, lines 12-13]. Plaintiff became pregnant in January, 2009 and gave notice to WFM that, as a consequence, she should not be required to lift more than 15 pounds. Doc , p. 2. Defendants claim they complied with this restriction, but Plaintiff alleged that they did not provide any assistance and that she was required to look for someone to help her whenever she had to lift more than 15 pounds. Doc , p. 10. On July 27, 2009, Plaintiffs doctor instructed her not to work more than six hours per day and to stay off of her feet for a half hour every two hours. Doc , p. 2. He provided her with a note to this effect. Id. The next day, Plaintiff delivered the note to the store manager, Raymond Stockton, in the presence of human resources specialist, Allison Augusta. Doc. 27-4, p. 2; Doc. 42-1, 10. At this point there is a considerable factual dispute as to what happened next. According to Stockton and Augusta, Stockton told Plaintiff that she should follow her doctors orders and that there was plenty of paperwork that she could do while sitting down during her breaks. Doc 27-4, p. 2; Doc 27-3, p. 5. Plaintiff, on the other hand, states that Stockton s reaction was quite the opposite, as follows: 10. On July 28, 2009, I gave the aforesaid disability certificate to both Human Resources and Stockton. Stockton was not happy after he read the disability certificate. He told me he needed somebody who could get the job done and half hour breaks were too long. 11. Stockton further informed me that I could not take these half hour 8

13 Case: /21/2012 ID: DktEntry: 10 Page: 13 of 29 breaks and do nothing and he did not have enough paperwork for me to do to justify me sitting for half hour breaks, and that it would look bad for business to have me sitting down behind the counter between serving customers. This conversation took place at the Human Resources office in the presence of Allison. Doc. 42-1, p. 3. The next day, Plaintiff took some food without paying for it and was suspended pending an investigation. Id., p. 5; Doc. 27-3, p. 4. The following day, Plaintiff was terminated for failing to pay for the food which she had taken. Id. In addition to the foregoing, Plaintiff stated that Stockton admitted that the surveillance video confirmed her going back and forth between the front and back of the store at the time she had taken the food and admitted that she was honest but that company policy required that she be terminated. Doc. 42-1, pp. 5-6, 22, 23. Stockton, on the other hand, claimed that there had been complaints by several employees that Plaintiff had been taking food without paying for at least a week prior to her termination; but significantly he fails to state the names of these employees who made the complaints. Doc. 27-3, p. 4. Summary of the Argument The District Court erred in granting summary judgment in favor of Defendants. First, Defendants motion for summary judgment did not establish that it was entitled to judgment as a matter of law, because there was no evidence that the Northeast 9

14 Case: /21/2012 ID: DktEntry: 10 Page: 14 of 29 Region theft policy which it presented to the court was the same as the theft policy operated by WFM at its Kahala store in Hawaii. Secondly, assuming that the theft policy presented to the court did apply to the instant case, the Court misconstrued it as permitting termination of an employee for inadvertently taking food without paying for it. Third, even if WFM was entitled to terminate employees for inadvertently taking food without paying for it, there was a genuine issue of material fact as to whether or not that was a mere pretext and that the real reason was because she was pregnant and had to restrict her hours and conditions of work until her delivery date. Standard of Review Argument The standard of review of an order granting a motion for summary judgment is well established. Fed.R.Civ.Proc., Rule 56(a) provides for the granting of a motion for summary judgment when the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Since the movant must establish that it is entitled to judgment as a matter of law, the nonmoving party has no obligation to respond to the motion if the movant has failed to do so. Mattos v. Agarano, 590 F.3d 1082, 1085 (9th Cir. 2010), reh. en banc,

15 Case: /21/2012 ID: DktEntry: 10 Page: 15 of 29 F.3d 433 (9th Cir. 2011); Anderson v. Liberty Lobby, 477 U.S. 242, , 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If movant has done so, the court then must view the evidence and all inferences reasonably drawn therefrom in the light most favorable to the non-moving party to determine whether there are genuine issues of material fact. Range Road Music, Inc. v. East Coast Foods, Inc., 668 F.3d 1148, 1152 (9th Cir. 2012). The requisite degree of proof necessary to establish a prima facie case for Title VII claims on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence. Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008). Once a plaintiff has made the threshold prima facie showing, the defendant must articulate a legitimate, non-retaliatory reason for the challenged action. Davis, 520 F.3d at If the defendant does so, the plaintiff must then show that the reason is pretextual either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence. Id. (internal quotation marks and citation omitted). Defendants motion did not establish that it was entitled to judgment as a matter of law. 11

16 Case: /21/2012 ID: DktEntry: 10 Page: 16 of 29 The whole basis for WFM s motion for summary judgment was that it legitimately terminated Plaintiff because she took and consumed some food from the store without paying for it. This was claimed to be in violation of a company theft policy and justified her non-discriminatory termination. Unfortunatly for WFM the theft policy was for Whole Foods Markets, Northeast Region and was given to Plaintiff while she was working at a Whole Foods Market in New York. Doc The defendant in this case is WFM Hawaii, LLC, a Hawaii limited liability company with its principal place of business in the City and County of Honolulu, which presumably owns and operates a grocery store at Kahala Mall at which Plaintiff was working when she was terminated. It can also be reasonably presumed that WFM Hawaii, LLC does not own and operate the Whole Foods Market in New York which promulgated the theft policy which was presented to the court as Document There is no evidence on the record that the theft policy at the Kahala Mall store is the same as Document Rather, there is evidence on the record that the Hawaii company policy is somewhat different than the policy set forth in Document That document contains provisions for search of employees persons and effects when on and leaving the premises as follows: b. Any Team Member at any time taking packages(s) out of the store 12

17 Case: /21/2012 ID: DktEntry: 10 Page: 17 of 29 location, such Team Member a package(s) is/are subject to search by the Supervisor in Charge. Items placed inside a vehicle on Company property are also subject to search. The Supervisor In Charge has the authority to search any Team Member or package eaving the building. Failure to cooperate in a search will result in disciplinary action including, but not limited to, unpaid suspension and up to and including termination. All Whole Foods Market property is eligible for search and shall include lockers or other spaces individually assigned. Doc , p. 2. This policy was implemented in New York, but not in Hawaii according to the deposition testimony of Plaintiff as follows: A. [By Plaintiff:] Yes, I did. And in New York, in fact, we used to we had to show our bags to, when we leave the store, we had to show the bags to the security guard at the door. Here in Hawaii, no. but in New York we also had to do that too, yeah. Doc. 27-6, p. 5 [Depo, p. 27, lines 9-13]. So Plaintiff does not concede that the same theft policy applies in Hawaii as was in effect in New York. They are separate companies they very well could have different theft policies. Indeed, Document is not relevant to this case unless and until it has been established that the same policy applies here in Hawaii. Being irrelevant, Document was not material evidence and the Court below committed reversible error in relying upon it to justify the granting of the motion for summary judgment. Company policy does not justify the termination of an employee who inadvertently takes and consumes food and 13

18 Case: /21/2012 ID: DktEntry: 10 Page: 18 of 29 forgets to pay for it. Assuming that the same theft policy applies in Hawaii as in New York, the Court below misconstrued the policy to allow termination of an employee for inadvertently taking and consuming food without paying for it. This was the fundamental basis for the decision of the Court below. The court specifically held: Plaintiff argues that the theft policy requires the act of stealing to be intentional and to be done with the intent to defraud Defendant, and that, because she did not intentionally fail to pay for the food, she did not violate the policy. [Mem. in Opp. at 4.] The Court is not persuaded by this argument. Defendant's policy provides, in pertinent-part, that: c. Team Members who engage in any of the following conduct will be subject to immediate termination: taking merchandise without paying for it[.] [Def.'s CSOF, Harris Decl., Exh. E (Whole Food Market Northeast Region Theft Policy) at 1.] Plaintiff does not deny that she did not pay for the food that she took off the store s retail floor. Id., p. 9. The Court zeros in on a very small portion of the policy to conclude that no intent is required for termination. This was clearly erroneous. First of all, the title of the policy is Theft Policy. After the portion of section II.c. which the Court quotes above, the policy reads: Theft is a serious crime and the conduct listed above [this includes taking merchandise without paying for it] would constitute theft under the applicable state law. Theft is a well defined legal term. In Hawaii, theft is defined by H.R.S

19 Case: /21/2012 ID: DktEntry: 10 Page: 19 of In general, theft requires an intent to deprive or intent to defraud. Taking merchandise intending to pay for it but forgetting to do so, is not theft. Defendants own motion acknowledges this. If it were sufficient to terminate Plaintiff merely for mistakenly taking food without paying for it, Plaintiff was subject to immediate termination on July 29, when she admitted having forgotten to pay for the food. Instead of immediately terminating her, Stockton told her to come back the next day and conducted an investigation. As part of this investigation Stockton viewed the surveillance video of the counter during the relevant time frame. If he had done this and had seen that the video confirmed Plaintiff s explanation of innocense that she was interrupted by phone calls from Diana and Marie and was going back and forth between the front and back of the store, as claimed by Plaintiff in her declaration (Doc. 42-1, 22), he was guilty of intentionally and maliciously wrongfully discharging Plaintiff without cause. Of course, there was evidence that Plaintiff was committing actual theft. Stockton claimed that Plaintiff was suspected of taking food without paying for it for quite some time. He claimed that there had been complaints by several employees and she was being monitored. If this was the case then, certainly, Plaintiff was justifiably terminated. However, there was certainly a genuine issue of material fact as to whether or not Plaintiff had committed a theft. In any event, Plaintiff could not justifiably be 15

20 Case: /21/2012 ID: DktEntry: 10 Page: 20 of 29 terminated for merely taking food and forgetting to pay for it. The Court below committed reversible error by so holding. Plaintiff was not required to establish that others were wrongfully terminated for mistakenly taking food without paying for it. The Court below erroneously held that McDonnell Douglas v. Green, supra, Plaintiff was required to show as part of her prima facie case that other similarly situated employees who do not belong to the same protected class were treated differently; and, therefore, that Plaintiff had to show that male employees engaged in similar conduct, were treated more favorably. It appears that the Court below would require Plaintiff to show that other employees who mistakenly and inadvertently took and consumed food while forgetting to pay for it were not terminated. This requirement was wrong for two reasons. First McDonnell Douglas does not require a plaintiff to show that other similarly situated employees were treated differently. In McDonnell Douglas, 1) the plaintiff was fired; 2) he then presumably engaged in certain illegal activities in protests; 3) he then reapplied when his old position was again advertised; 4) his application was rejected; and 5) the position remained open to other applicants; and 5) the employer claimed his application was rejected because of his having engaged 16

21 Case: /21/2012 ID: DktEntry: 10 Page: 21 of 29 in the illegal activities. The Supreme Court held that the plaintiff had indeed stated a prima facie case of racial discrimination as follows: The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.[fn13] McDonnell Douglas v. Green, supra, 411 U.S. at 802. Clearly these factors are not relevant to all cases. The Court even made this clear in the footnote 13, as follows: Id. The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations. Indeed, the requirement that the job remaining open after an applicant is rejected is clearly not applicable in the case of an allege wrongful discharge. This is, perhaps, why Defendants did not cite McDonnell Douglas in their motion, but rather cited Hawn v. Exec. Jet Mgmt. Inc., supra. In Hawn, the plaintiffs were male pilots who were discharged for engaging in conduct which was found to have created a hostile work environment for female employees. The pilots sued claiming that female employees had engaged in similar conduct but were not 17

22 Case: /21/2012 ID: DktEntry: 10 Page: 22 of 29 disciplined. The District Court granted summary judgment for the company holding that the plaintiffs had not established a prima facie case. On appeal, the Ninth Circuit affirmed. With respect to the requirements of a prima facie case, the court said: To establish a prima facie case, plaintiffs must offer evidence that give[s] rise to an inference of unlawful discrimination. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998) (alteration in original), citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Plaintiffs may establish a prima facie case based on circumstantial evidence by showing: (1) that they are members of a protected class; (2) that they were qualified for their positions and performing their jobs satisfactorily; (3) that they experienced adverse employment actions; and (4) that similarly situated individuals outside [their] protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination. Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004); see also Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). Id., at p [Emphasis added]. Thus, what this really says is that in order to state a prima facie case a plaintiff must offer evidence that give rise to an inference of unlawful discrimination. That is the requirement. One of the ways that this can be done is by offering evidence of these four elements, but these four elements are not necessary in every case, clearly. This particular fourth element was relevant in that case, because that is precisely what the plaintiffs were alleging. Even so, the court held they had not established a prima facie case. Also, in Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1037 (9th 18

23 Case: /21/2012 ID: DktEntry: 10 Page: 23 of 29 Cir. 2005), the Court said: Dominguez also argues that the district court erred in granting summary judgment in favor of the appellees on her failure-to-promote claim. Title VII makes it an unlawful employment practice for an employer to refuse to hire an individual because of her sex. 42 U.S.C. 2000e-2(a)(1). In responding to a summary judgment motion in a Title VII disparate treatment case, a plaintiff may produce direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated the defendant's decision, or alternatively may establish a prima facie case under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See McGinest, 360 F.3d at Similarly, in Palmer v. Pioneer Inn Associates, Ltd., 338 F.3d 981 (9th Cir. 2003), the plaintiff interviewed for a position at defendant company and was offered the job which she accepted. Before she could start work, however, she was informed by the person who hired her that his supervisor had not approved her being hired because she was pregnant. Defendant moved for summary judgment on the grounds that Palmer had offered no evidence that the position remained open after she was turned down under the fourth McDonnell Douglas criterion. Plaintiff appealed. On appeal, the Ninth Circuit reversed and remanded, as follows: We review de novo the grant of summary judgment in favor of Pioneer. Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir. 2000). Palmer presented sufficient direct evidence to survive summary judgment on all three of her employment claims. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998) ( Direct evidence is evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption. (alteration in original) (quoting 19

24 Case: /21/2012 ID: DktEntry: 10 Page: 24 of 29 Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir. 1994))). Palmer claimed that she was offered positions as a deli worker, a waitress, and a supervisor. She then stated that Zamora told her that Guy Archer has overturned hiring you because you're pregnant, and later told me that Guy Archer was just not going to allow him to have me work there being pregnant and that he would definitely not allow me to be a waitress because I was pregnant. Viewing the testimony in her affidavit in the light most favorable to Palmer as the nonmoving party, her testimony provides direct evidence sufficient to raise a material question of disputed fact as to whether Pioneer discriminated against her. The district court therefore erred in granting summary judgment on the day shift waitress and supervisor positions. Palmer v. Pioneer Inn Associates, Ltd. supra, 338 F.3d at All that is necessary to make a prima facie case is to produce... evidence... that a discriminatory reason... motivated defendant s decision. That Plaintiff has done in the instant case. First of all, Plaintiff has produced evidence from which, if viewed in the light most favorable to her, inferences can be drawn that Defendant wrongfully discharged her on trumped up charges of theft when the real reason was because Defendant did not wish to accommodate her limitations caused by her pregnancy. It would not have been difficult to do so. Two hours after starting work in the morning Plaintiff could have been given a half hour break on her own time, whether or not there was sitting down work to be done. Then two hours later Plaintiff could have been given a half hour lunch break on her own time. Then two hours later Plaintiff could have been allowed to go home and could have been replaced by the next shift Team Member coming in early for two hours of overtime until Plaintiff 20

25 Case: /21/2012 ID: DktEntry: 10 Page: 25 of 29 delivered her baby in December. But rather than make these simple accommodations for Plaintiff s pregnancy, Defendant chose to terminate her on bogus theft charges. If the theft charges were valid and Plaintiff had been being monitored for at least a week based on suspicion of theft, why was it necessary to conduct an investigation after she had been caught red handed and admitted taking food without paying for it. The District Court erred in failing to view the evidence in the light most favorable to Plaintiff. Indeed, the District Court accepted the declaration of Stockton at face value and brushes off Plaintiff s declaration as mere argument, as follows: Next, Defendant argues that Plaintiff has not shown pretext because, When she, told Mr. Stockton that she had standing and hours restrictions, he approved her request and told her to comply with her doctor's restrictions, as there was work she could do sitting down. [Def.'s CSOF, Stockton Decl. at 1 22; Augusta Decl. at 1 5; Harris Decl., Exh. A at ] It maintains that there is no evidence that Mr. Stockton said he would not comply with her restrictions. [Reply at 4.] In her opposition, Plaintiff makes the same arguments as to the sex discrimination claim, that is, she emphasizes that she was terminated just one day after giving Mr. Stockton a medical certificate setting forth her disability accommodations, and his statement that he could not accommodate the restrictions. She states that, while she did inadvertently forget to pay for her breakfast, she had never been asked for a receipt previously, nor had she seen other employees being asked for receipts during her employment with Defendant. [Mem. in Opp. at 1, Pltf. Decl. at 19[ 3, 9-11, 18, 20.] Doc. 51, p. 15. So the Court takes as an undisputed fact that Stockton approved Plaintiff s medical restrictions and ignores Plaintiff s declaration which states: 21

26 Case: /21/2012 ID: DktEntry: 10 Page: 26 of On July 28, 2009, I gave the aforesaid disability certificate to both Human resources and Stockton. Stockton was not happy after he read the disability certificate. He told me he needed somebody who could get the job done and half hour breaks were too long. 11. Stockton further informed me that I could not take these half hour breaks and do nothing and he did not have enough paperwork for me to do to justify me sitting for half hour breaks, and that it would look bad for business to have me sitting down behind the counter between serving customers. This conversation took place at the Human Resources office in the presence of Allison. Doc. 42-1, p. 3. In the instant case, the Court below did not view the evidence and inferences therefrom in the light most favorable to Plaintiff. Plaintiff did, in fact, establish a prima facie case of sex discrimination. There are genuine issues of material fact as to Defendants motivation in discharging Plaintiff that should be submitted to a jury for adjudication. The motion for summary judgment was erroneously granted. The Intentional Infliction of Emotional Distress Claim If Defendant wrongfully discharged Plaintiff on trumped up charges of theft, it was guilty of outrageous conduct. For the same reasons stated above, the Court below erred in granting summary judgment on the Intentional Infliction of Emotional Distress claim. 22

27 Case: /21/2012 ID: DktEntry: 10 Page: 27 of 29 Conclusion Based on the foregoing argument and authorities, Plaintiff respectfully requests that the judgment of the District Court be vacated and the matter remanded for further proceedings. Dated: Honolulu, Hawaii, September 21, /s/ Charles H. Brower CHARLES H. BROWER, Attorney for Plaintiff-Appellant 23

28 Case: /21/2012 ID: DktEntry: 10 Page: 28 of 29 STATEMENT OF RELATED CASES There are no related cases. DATED: Honolulu, Hawaii, September 21, /s/ Charles H. Brower CHARLES H. BROWER Attorney for Plaintiff-Appellant Isabella Nunes-Baptista 24

29 Case: /21/2012 ID: DktEntry: 10 Page: 29 of 29 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on September 21, I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Dated: Honolulu, Hawaii, September 21, /s/ Charles H. Brower CHARLES H. BROWER 25