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Villalta v. Home Depot U.S.A.


October 4, 2005


The opinion of the court was delivered by: Claudia Wilken United States District Judge


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 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987).

The moving party bears the burden of showing that there is no material factual dispute. Therefore, the court must regard as true the opposing party's evidence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. The court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991).

Material facts which would preclude entry of summary judgment are those which, under applicable substantive law, may affect the outcome of the case. The substantive law will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Where the moving party does not bear the burden of proof on an issue at trial, the moving party may discharge its burden of showing that no genuine issue of material fact remains by demonstrating that "there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. The moving party is not required to produce evidence showing the absence of a material fact on such issues, nor must the moving party support its motion with evidence negating the non-moving party's claim. Id.; see also Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 885 (1990); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), cert. denied, 502 U.S. 994 (1991). If the moving party shows an absence of evidence to support the non-moving party's case, the burden then shifts to the opposing party to produce "specific evidence, through affidavits or admissible discovery material, to show that the dispute exists." Bhan, 929 F.2d at 1409. A complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. Celotex, 477 U.S. at 323.


Defendant moves for summary judgment of the claims against it on the grounds that Plaintiff has failed to establish a prima facie case of race or national origin discrimination or to rebut Defendant's legitimate, non-discriminatory reason for not hiring him.

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981), the Court established a burden-shifting framework for evaluating the sufficiency of a plaintiff's evidence in employment discrimination suits. Within this framework, plaintiffs may establish a prima facie case of discrimination by reference to circumstantial evidence: plaintiffs must show that they are members of a protected class; that they were qualified for the position they held or sought; that they were subjected to an adverse employment decision; and that they were replaced by someone who was not a member of the protected class or that the circumstances of the decision otherwise raised an inference of discrimination. Hicks, 509 U.S. at 506 (citing McDonnell Douglas and Burdine). Once plaintiffs establish a prima facie case, a presumption of discriminatory intent arises. Id. To overcome this presumption, the defendant must come forward with a legitimate, non-discriminatory reason for the employment decision. Id. at 506-07. If the defendant provides that explanation, the presumption disappears and plaintiffs must satisfy their ultimate burden of persuasion that the defendant acted with discriminatory intent.

Id. at 510-11.

Here, Plaintiff has not shown that he was qualified for the Freight Associate position he sought. The undisputed evidence offered by Defendant indicates that a clean background check was required for employment, and that the job offer extended to Plaintiff was conditional. California law allows employers to ask job applicants about pending charges. Cal. Lab. Code § 432.7(a). Due to his pending criminal matter, CPCC did not give Plaintiff a clean background check. Therefore, Plaintiff has failed to raise a dispute of material fact concerning whether he was qualified for the position he was denied in June, 2003.*fn4

To the extent that Plaintiff seeks to base his claim on Defendant's failure to employ him after CPCC reported a clear record in July, 2003 and he became eligible for the position, he has not shown that he suffered an adverse employment decision. The undisputed evidence offered by Defendant shows that by the time Plaintiff's criminal charge was dismissed and his record was cleared, the Freight Associate positions he sought were no longer available. Nevertheless, Ms. Humphrey states, and Plaintiff does not dispute, that she told him he might qualify for future job openings, and encouraged him to re-apply for employment with Defendant. Plaintiff did not do so, and instead initiated these proceedings.

The Court also finds that Plaintiff has failed to establish a disputed issue of material fact as to whether Defendant's stated reason for not hiring him was pretextual. The fact that, after she made him a conditional offer, Ms. Humphrey asked him to identify voluntarily his race and national origin for affirmative action purposes does not raise an inference of discrimination. Nor do any of the other undisputed circumstances of Defendant's failure to hire Plaintiff. To the contrary, the fact that Ms. Humphrey believed Plaintiff was Hispanic and was aware of his accent when she conditionally offered him the job indicates a lack of discrimination, as does the previous hiring of other Hispanic Freight Associates and the overall composition of the San Rafael store's workforce.

In his opposition, Plaintiff suggests that he wishes to take additional discovery, and that he intends to seek a continuance and to lodge a "genuine issue" for trial. However, Plaintiff does not explain what additional information he seeks, or why he has so far been unable to obtain it. The cutoff for fact discovery has passed, and Plaintiff did not seek additional discovery. The Court therefore finds that Plaintiff is not entitled to a continuance of the motion for summary judgment. See Fed. R. Civ. P. 56(f) (allowing the court to order a continuance to permit additional discovery if it "appears[s] from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition").


For the foregoing reasons, the Court GRANTS Defendant's motion for summary judgment (Docket No. 29). Judgment shall enter accordingly. Defendant shall recover its costs from Plaintiff.


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