Unpublished Disposition, 879 F.2d 865 (9th Cir. 1988)

MEMORANDUM^* 

OVERVIEW

Joseph Guruwaya appeals from the district court's order granting summary judgment to defendant Montgomery Ward Inc. ("Wards") in Guruwaya's action against Wards for age and race discrimination, constructive discharge, and wrongful denial of severance pay. Guruwaya also appeals from the denial of his motion to continue the hearing on the motion for summary judgment while he sought further discovery. Finally, he appeals from the district court's order partially denying his motion to compel discovery. We affirm.

FACTUAL BACKGROUND

Guruwaya was born in 1934, and is of Asian race and Indian descent. Guruwaya worked for Wards from February, 1966, until July, 1982. From 1978 to 1982, Guruwaya worked as a district merchandiser in Oakland, California.

In 1981, due to severe economic losses, Wards began a national reorganization. This reorganization included the merger of the Oakland and Sacramento merchandising districts and eliminated seven of the eighteen district merchandiser positions in the two districts. Guruwaya contends that his old position remained virtually unchanged by the reorganization and that he was replaced in his position by a younger, white male. Wards, however, contends that the position that Guruwaya had held was eliminated by the reorganization, and the new district merchandiser position encompassed different duties. Therefore, Wards states, it sought people with different experience for these positions. Specifically, it sought people with a broad retail background, which Guruwaya did not possess, but which his "replacement," Roy Stanley, did.

After Guruwaya lost his position as district merchandiser, he was offered the opportunity to interview for a computer merchandising position and the opportunity to return to the position he had held before he became a district merchandiser. Both positions provided Guruwaya with the same salary he had received as a district merchandiser. Guruwaya states that at the time he was offered these options he was also offered the option of leaving Wards and receiving severance pay.

Guruwaya interviewed for the computer merchandising position and was offered the job. Guruwaya initially accepted the computer position but changed his mind shortly before he was to start work, telling management that he wished to resign and accept severance pay rather than work at the new position. At this time, Guruwaya was informed that he was not entitled to severance pay if he resigned. A week later, Guruwaya tendered his resignation.

After he resigned, Guruwaya filed a claim with the Labor Commissioner for severance pay. That claim was denied after a full hearing In June, 1983, Guruwaya filed this action in state court, alleging race, national origin, age and sex discrimination, breach of contract, breach of the covenant of good faith and fair dealing, fraud, and wrongful denial of severance pay. In July, 1987, after Guruwaya abandoned his claims against the Doe defendants, Wards removed the case to federal court on the basis of diversity of citizenship. In November, 1987, the district court established a discovery cutoff of February 5, 1988. By agreement of the parties, the cutoff was extended until March. On March 17, Guruwaya filed a motion to compel further discovery. This motion was scheduled to be heard on April 8, but later was continued until May 5.

On March 24, 1987, Wards filed a motion for summary judgment. Guruwaya opposed the motion for summary judgment and filed a request under Rule 56(f) that the hearing on the summary judgment motion be continued until after the discovery motion was heard. The district court denied the Rule 56(f) motion and proceeded to hear the motion for summary judgment. The court found that Guruwaya had presented no evidence raising a genuine issue of material fact on any of his claims, and granted Wards' motion for summary judgment. Guruwaya filed this timely appeal.

DISCUSSION

A. Guruwaya's claims of age and race discrimination

Guruwaya attempted to state a claim of disparate treatment. To prevail under this theory, Guruwaya must show that Wards intentionally discriminated against him in an employment decision because of his race or age. Sakaller v. Lockheed Missiles and Space Co., 765 F.2d 1453, 1455 (9th Cir. 1985), cert. denied, 474 U.S. 1084 (1986).. In a disparate treatment case, a plaintiff opposing a motion for summary judgment has the initial burden of producing evidence establishing a prima facie case of discrimination. Under McDonnell Douglas v. Green, the traditional method for a plaintiff to establish a prima facie case is to show that: (1) he is a member of a protected class; (2) he applied and was qualified for a position for which the employer was seeking applicants; (3) he was rejected; and (4) that after he was rejected the employer continued to consider similarly qualified applicants. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

Guruwaya has not established a prima facie case under the McDonnell Douglas test. It is undisputed that Guruwaya is a member of a protected racial and age group, so he has met the first prong. However, he fails to meet the other prongs of the test, because he has failed to show that he was qualified for the position for which Wards was hiring.

Guruwaya argued that the fact that he had performed adequately as a district merchandiser prior to the reorganization is sufficient to establish that he was qualified to retain a position after the reorganization. However, his prior performance is not sufficient to show his qualification for the new position, because the new position was significantly different from the old position. Wards presented evidence concerning several new job duties that the district merchandiser position encompassed after the reorganization. Wards also presented evidence that because of these new duties, the company sought different qualifications in applicants for these new positions than it had sought when hiring for the old positions, including a broad retail background and educational qualifications that Guruwaya does not possess.

Guruwaya has not presented any evidence that he possesses the additional qualifications that Wards sought. Guruwaya's only evidence that he was qualified to perform the new job was his own opinion that he was qualified and a statement by his former supervisor, Frank Lowery, that Lowery felt Guruwaya would succeed in the new position. Lowery's statement is of little value because he admitted that he was unaware of the changed responsibilities and qualifications for the new position. A plaintiff's opinion of his own qualifications has little probative value. Schuler v. Chronicle Broadcasting Co., 793 F.2d 1010, 1011 (9th Cir. 1986). Thus, Guruwaya has failed to show that he was qualified for the position he sought.

However, the four factors set forth in McDonnell Douglas were meant as flexible guidelines, not absolute requirements for every disparate treatment case. Therefore, Guruwaya could make out a prima facie case of disparate treatment as long as he produces enough evidence to raise an inference of intentional discrimination. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). Guruwaya offers two pieces of evidence to attempt to raise an inference of intentional discrimination. First, he testifies that he was told that one reason he was not hired was because of his poor communication skills, which "could be due to your heritage." Second, Guruwaya points to the composition of the district merchandising staff. Prior to the reorganization, two of the eighteen merchandisers were members of racial minorities. After the reorganization, all eleven merchandisers had their race listed as "none marked", which Guruwaya interprets as meaning that all were white. The average age of the merchandisers prior to the reorganization was 43. The average age of the employees retained was 41. Guruwaya alleges that this shows that Wards intended to retain only young, white employees.

This evidence does not appear sufficient to raise an inference of intentional discrimination. A single isolated remark such as the one made by the personnel director is not probative evidence of racially motivated animus. The statistics presented by the plaintiff concerning the racial and age composition of the district merchandising staff are not persuasive, because the variances are statistically insignificant when drawn from such a small sample. However, a trier of fact could infer from this evidence that Wards rejected Guruwaya because of his race or age. We assume arguendo that Guruwaya's evidence is sufficient to raise an inference that Wards intended discrimination, and thus he established a prima facie case.

The burden next shifts to Wards to articulate a legitimate, nondiscriminatory reason for refusing to hire Guruwaya. McDonnell Douglas, 411 U.S. at 802. It is undisputed that Wards had a legitimate economic reason for eliminating some of the district merchandiser positions. The district court determined that this was an adequate showing by Wards. However, Guruwaya correctly notes that an employer may not use a legitimate staff reduction in an illegitimate manner in order to eliminate minorities from its work force. Therefore, Wards must show not only that the staff reduction was legitimate, but that it had nondiscriminatory reasons for choosing to retain the employees that it did.

Wards states that it chose to retain Stanley rather than Guruwaya because it determined that Stanley was more qualified than Guruwaya for the new position. Evidence demonstrating that the employee hired for the position was more qualified than the plaintiff is sufficient to meet the employer's burden of producing a legitimate reason for refusing to hire the plaintiff. Parsons v. County of Del Norte, 728 F.2d 1234, 1239 (9th Cir. 1984), cert. denied, 469 U.S. 846 (1984). Wards states that it based its hiring decision on the breadth of the employees' retail and management experience, their education, their seniority, and their past performance. Wards presented evidence that Stanley had a broader range of experience within the company than Guruwaya had. It also showed that Stanley had participated in Wards' management training program while Guruwaya had not, and that Stanley had a college education while Guruwaya did not. Thus, Wards has met its burden of producing legitimate reasons for its actions.

Since Wards has articulated a valid nondiscriminatory reason for not hiring Guruwaya, the burden shifts back to Guruwaya to offer evidence that those reasons were a pretext for discrimination. Cotton v. City of Alameda, 812 F.2d 1245, 1248 (9th Cir. 1987). Guruwaya attacks Wards' stated reasons for hiring Stanley in two ways. First, he attacks the subjectiveness of the hiring criteria used by Wards. Second, he attempts to show that he was, in fact, better qualified than Stanley. Neither argument is persuasive.

Guruwaya attacks Wards' decision to consider the employees' "career paths" and the breadth of the employees' experience in deciding who to retain. Guruwaya claims the use of these subjective criteria enabled Wards to choose whoever it wished, and therefore, their use is convincing evidence of Wards' discriminatory intent. However, while the use of subjective criteria is susceptible to discriminatory abuse and is therefore scrutinized, the use of subjective criteria is less suspect in cases involving higher level employment for which skills are necessarily measured in a subjective manner. Nanty v. Barrows Co., 660 F.2d 1327, 1334 (9th Cir. 1981). In order to show that the use of particular criteria was improper, the plaintiff must show that the use of these criteria was arbitrary. Casillas v. United States Navy, 735 F.2d 338, 344 (9th Cir. 1984). To rebut a claim of arbitrariness, the employer need not show that the criteria used were necessary to performance of the job, only that they were legitimately related to the job. Id. Guruwaya does not attempt to show that a general background, management training, and a formal education would not be helpful in performing the new position well. Thus, he fails to show that Wards' decision to use these criteria was arbitrary, and therefore pretextual.

Nor can Guruwaya establish that he was in fact more qualified than Stanley. Guruwaya presented evidence that he had more seniority than Stanley and that he had received a rating one rank higher than Stanley on their performance evaluations of their old jobs, when the evaluations had been done six months earlier. These facts are insufficient to show that Wards could not have made a legitimate decision that Stanley was more qualified for the new position. Guruwaya has therefore failed to show that Wards' stated reason for retaining Stanley and not retaining Guruwaya was pretextual. Thus, the district court's decision granting summary judgment on the race and age discrimination claims was correct.

"A constructive discharge occurs when, looking at the totality of the circumstances, 'a reasonable person in [the employee's] position would have felt that he was forced to quit because of intolerable and discriminatory working conditions.' " Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir. 1987) (quoting Satterwhite v. Smith, 744 F.2d 1380, 1381 (9th Cir. 1984). Guruwaya's claim of constructive discharge fails because he has not shown that there was any discrimination or that working conditions at Wards were intolerable.

Wards' written severance pay policy provides that severance pay is available only when the employee is laid off as part of a reduction in staff. Guruwaya was not discharged, he was offered another position at the same salary. Guruwaya accepted this position and then resigned. He claims that since he was "constructively discharged," Wards cannot rely on its written policy. Since Guruwaya fails to make any showing of constructive discharge, this claim fails.

Guruwaya also claims that since he was originally told that he would be entitled to severance pay if he resigned, Wards should be estopped from denying his claim to severance pay. However, Guruwaya admits he was told before he chose to resign that he would not be entitled to severance pay. Therefore, he can not show that he relied on the alleged promise of severance pay. Detrimental reliance is essential to an estoppel claim. Therefore, summary judgment on this claim was proper.

Guruwaya also claims that Wards breached an oral contract that he would have "career employment". This claim is meritless. Assuming that he did have a contract which would require Wards to show cause for discharging Guruwaya, Guruwaya still can show no breach because he has not shown that he was discharged.

E. The breach of the covenant of good faith and fair dealing

Guruwaya alleges that even if the decision to retain Stanley rather than him was not motivated by race or age it was still "improperly motivated" because the decision was based on dislike of Guruwaya, or based on the fact that Stanley was paid a lower salary. This claim has the same defect as Guruwaya's discrimination claims: Guruwaya fails to make any showing that Wards' decision was not based on its judgment that Stanley was more qualified than Guruwaya. Nor has he presented any evidence pointing to the existence of these other, allegedly "improper" motives for the decision.

Guruwaya claims Wards committed fraud by "falsely representing to him that he was not a capable analyzer and a satisfactory communicator." His complaint alleges that Guruwaya relied on this information in deciding to resign. However, Guruwaya stated that he never believed that he was not a competent analyzer and communicator. He has presented no evidence that he relied on these statements in making his decision to resign. Nor has he shown that the Wards personnel who made these statements knew, or should have known, the statements to be false. He has presented no evidence that these were not the speakers' honest opinions of his abilities. Summary judgment on this count was proper.

II. The refusal to continue the motion for summary judgment until Guruwaya's discovery motion was heard

Guruwaya made a motion under F.R.Civ.P. 56(f) to have the motion for summary judgment continued until after his motion to compel discovery was heard. Guruwaya was seeking to compel Wards to produce statistics concerning the ethnic backgrounds of all Wards employees in the Western United States. He also sought to compel Wards to produce Hermann, an ex-employee, for a deposition. The district court refused to continue the motion for summary judgment until the discovery motion could be heard by a magistrate.

Rule 56(f) provides that a district court may continue a motion for summary judgment, if the party opposing the motion shows that, because of a valid reason, he cannot currently present "facts essential to justify his opposition." The party seeking the continuance must show that he had diligently pursued discovery. Brae Transp. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986). The party seeking the continuance must also make clear what information is sought and how that information would preclude summary judgment. Garrett v. City and County of San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1987).

Guruwaya cannot show that he diligently sought discovery. Hermann's role in the job actions had been known to Guruwaya since 1982. Hermann had testified at Guruwaya's hearing before the Labor Commissioner in 1983. Guruwaya had requested that Wards stipulate that Hermann's testimony serve instead of a deposition. There does not appear to be a "valid reason" to continue Wards' motion for summary judgment so that Guruwaya could depose a party whose role in the litigation had been known for six years, and who Guruwaya had agreed would not be deposed. Guruwaya also cannot show that he had diligently sought the other discovery which he was attempting to compel. Guruwaya was seeking statistics on all of Wards' nonmanagement personnel. The first time that Guruwaya placed the composition of Wards' nonmanagement personnel at issue was in late February, 1987, after the court-ordered discovery cutoff had passed.

Further, Guruwaya has not shown how the information he sought would raise a material issue of fact which would preclude summary judgment. It is hard to see how statistics about the racial composition of Wards' sales staff, maintenance personnel, and other nonmanagement employees could raise a genuine issue of fact on Guruwaya's disparate treatment claim.

III. The denial of Guruwaya's earlier motion to compel

Guruwaya attacks the magistrate's ruling denying him discovery of the names, addresses and phone numbers of all other Wards employees who had filed discrimination complaints with the EEOC during 1982 and 1983. This information is highly confidential. When a party seeks to discover confidential information, the court may balance the need for the information against the interest in confidentiality. Zaustinsky v. University of California, 96 F.R.D. 622, 624 (N.D. Cal. 1983). The court's interest in protecting the confidentiality of this information is clear. Guruwaya seeks the names and phone numbers of people who had filed confidential complaints with the EEOC. As the magistrate correctly reasoned, disclosure of the identities of EEOC complainants to fellow employees could have a chilling effect on future complaints. Many complainants would not file complaints if they knew personal information could be given to coworkers or strangers.

In order to outweigh the court's interest in protecting the other employees' privacy interests, Guruwaya must show that the discovery would clearly provide information relevant to his claims. See e.g., Coleman v. Hertz Corp., 578 F. Supp. 1458, 1463 (N.D. Ga. 1983). Guruwaya alleges that the information was essential to his discrimination claims because some of the other complainants might know of other discriminatory statements made by Wards' management personnel, which would help him to show discriminatory intent in his case. While it is possible that Guruwaya might have received some relevant information if Wards had been compelled to produce this information, this possibility does not appear likely enough to outweigh the other employees' interest in confidentiality. Therefore, the magistrate did not abuse his discretion by denying Guruwaya's motion to compel this information.

CONCLUSION

Guruwaya failed to raise a genuine issue of material fact meriting trial on any of his claims. He failed to show that there was a valid reason to continue the motion for summary judgment while he pursued further discovery. He also failed to show that the magistrate's decision denying him access to confidential information was an abuse of discretion.

AFFIRMED.