The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant The Home Depot U.S.A., Inc., moves for summary judgment of Plaintiff Selomi Villalta's Title VII claims against it. Plaintiff, proceeding pro se, opposes the motion.
The Court finds Defendant's motion for summary judgment appropriate for decision without oral argument as permitted by Civil Local Rule 7-1(b) and Federal Rule of Civil Procedure 78. See Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998), (noting that district court may decide summary judgment issues without oral argument if parties have opportunity to submit written materials) (citing Lake at Las Vegas Investors Group, Inc. v. Pacific Malibu Dev. Corp., 933 F.2d 724, 729 (9th Cir. 1991) cert. denied, 503 U.S. 920 (1992)). Having considered all the papers filed by the parties, the Court grants Defendant's motion for summary judgment.
The facts below are undisputed unless otherwise noted. Plaintiff is a Hispanic man of Salvadoran national origin. On March 4, 2003, he submitted a job application for a position as a Receiving and Freight Associate at Defendant's retail home improvement store in San Rafael, California. On March 11, 2003, he interviewed with Lynette Humphrey, Human Resources Manager for the San Rafael store. It was clear to Ms. Humphrey that Plaintiff was Hispanic based on his surname and speech. Humphrey Decl. ¶ 14. Based on the application and the interview, Ms. Humphrey determined that Plaintiff was a good candidate for the open Freight Associate position, and "informed him that the Company would hire him for the position, pending his passing the drug screen and background test."*fn1 Id. ¶ 15. Plaintiff signed a form consenting to a background investigation. Villalta Dep. Ex. 7, Consent Form. Plaintiff describes Ms. Humphrey as "very kind. We conversed very well." Villalta Dep. 87:8.*fn2
After making this conditional offer, Ms. Humphrey asked Plaintiff if he would provide information about his race. As a federal contractor, Defendant collected this voluntary information for affirmative action purposes, pursuant to regulations of the Office of Federal Contract Compliance Programs. Plaintiff responded that he was Hispanic and Salvadoran, although Ms. Humphrey did not ask his nation of origin.
Ms. Humphrey forwarded Plaintiff's consent form to Choice Point Consumer Credit (CPCC), an investigative agency with which Defendant contracts to perform background checks on prospective employees. A clean background check from CPCC was required in order for an applicant to be eligible for employment with Defendant. CPCC notified Ms. Humphrey that Plaintiff had a pending charge for criminal trespass and disorderly conduct, which was set for trial on June 9, 2003. After being informed of these results, Ms. Humphrey spoke with Plaintiff on the telephone and told him that Defendant could not offer him a position due to the pending criminal trial, but suggested that he re-apply once his criminal case was resolved.
Ms. Humphrey instead hired two applicants to fill the available Freight Associate positions, who both self-identified as African-American.*fn3 Prior to Plaintiff's application, however, Ms. Humphrey's two most recent hires for the Freight Associate job were men she believed to be Hispanic at the time she made their conditional offers, based on their interviews and surnames, and who identified themselves as Hispanic. At the time when Plaintiff was interviewed, sixty-seven employees at the San Rafael store identified themselves as Hispanic, about eighteen percent of all San Rafael Home Depot employees.
On June 10, Plaintiff provided Ms. Humphrey with documents indicating that his criminal case had been dismissed. In response, she gave him the phone number to call CPCC to update his record so he could pass the background check.
In early July, 2003, CPCC notified Ms. Humphrey that Plaintiff's background check was clear. At that point, however, there were no openings at the San Rafael store for Freight Associates. Ms. Humphrey called Plaintiff to inform him of this, "told him that the store frequently did have job openings for which he might qualify, and encouraged him to reapply for employment and to contact me on a regular basis." Humphrey Decl. ¶ 25. Plaintiff did not contact Ms. Humphrey again, and did not reapply to work at the San Rafael store.
On November 20, 2003, Plaintiff filed a complaint in Marin County Superior Court alleging that Defendant violated California Labor Code § 432.7, which prohibits employers from asking a job applicant to disclose information concerning an arrest or detention that did not result in conviction. Cardiff Decl., Ex. A, State Complaint. The parties participated in arbitration, resulting in a denial of Plaintiff's claim. Id. Ex. B, June 9, 2004 Award of Arbitrator. Plaintiff did not challenge the decision.
Plaintiff filed an administrative complaint with the California Department of Fair Employment and Housing on August 25, 2003, alleging that Defendant failed to hire him on the basis of race and national origin. He received a right-to-sue notice on March 17, 2004. He filed this suit on July 15, 2004, alleging discrimination in violation of Title VII on the bases of race, sex, national origin, age, marital status and arrest record. The Court dismissed all but the race and national origin claims for failure to show exhaustion of administrative remedies. See August 25, 2004 Order Granting Application to Proceed In Forma Pauperis and Dismissing Complaint, in Part, with Leave to Amend; January 7, 2005 Order Allowing Two Claims to Proceed, Dismissing Remaining Claims and Ordering Service.
Summary judgment is properly granted when no genuine and disputed issues of material fact remain, and when, viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 ...