Unpublished Disposition, 936 F.2d 576 (9th Cir. 1990)

MEMORANDUM^** 

Arthur Buelna is a patrol officer for the City of Chandler, Arizona. Chandler has a large Spanish-speaking population. Buelna is of Hispanic descent. The parties dispute Buelna's Spanish-speaking abilities. Buelna claims that he "is not capable of communicating in Spanish," and "lacks the skills necessary in Spanish to perform interpreting tasks." Chandler, on the other hand, claims that Buelna frequently translated for other officers who could not speak Spanish, and had been commended on several occasions for his Spanish-speaking and translating abilities. In a memorandum supporting a five percent pay increase for Spanish-speaking officers, Buelna reported that he had personally responded to thirty-eight calls for translation from other officers within a five month period.

On March 11, 1985, Buelna and another officer stopped an apparently drunk driver, who was a Spanish speaker. Buelna administered a field sobriety test to the suspect. After returning to the police station, an intoxilyzer test was to be administered. It is undisputed that in violation of a direct order from his supervisor Buelna refused to administer the test. Buelna claims that he was incapable of administering the test due to his inability to communicate with the suspect; Sergeant Honea, the shift supervisor, claims that Buelna stated, "I don't do translating or interpreting anymore."

Honea filed a complaint based on Buelna's refusal to obey a lawful order which was not life-threatening or unsafe. An investigation was conducted by Lieutenant Harris, who forwarded the results of the investigation to Police Chief Danielson with a recommendation that Buelna be disciplined. Danielson imposed a ten-hour disciplinary suspension without pay for failure to carry out a lawful order which Buelna was fully capable of following.

Buelna appealed the action administratively. Both the City Manager and the Merit System Board refused to overturn the suspension.

Buelna filed a complaint in the federal district court for the district of Arizona on September 18, 1987, alleging that the disciplinary suspension violated Title VII. The district court granted defendant Chandler's motion for summary judgment on April 13, 1990. Final judgment was entered on May 1, 1990, and Buelna filed a timely notice of appeal on May 25.

Buelna alleges that the disciplinary action violated Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.). Buelna argues that the decision to discipline him for failing to translate constituted disparate treatment, and had a disparate impact on him and others similarly situated.

Title VII prohibits discrimination in employment based on race, color, sex, religion or national origin. Title VII prohibits intentional discrimination with respect to employment conditions as well as facially neutral rules which have a disparate impact on protected groups. See Griggs v. Duke Power Co., 401 U.S. 424 (1971).

To succeed on a claim of disparate treatment, the plaintiff must prove that the employer acted with a discriminatory intent or motive in administering its employment practices. Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 986 (1988). In cases of disparate treatment, the plaintiff must first make out of prima facie case of discrimination. If the plaintiff succeeds, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. If this burden is met, the burden again reverts to the plaintiff to show that the reason articulated by the defendant is pretextual. See McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); Foster v. Arcata Assoc., Inc., 772 F.2d 1453, 1459 (9th Cir. 1985), cert. denied 475 U.S. 1048 (1986). At the summary judgment stage, we must determine whether the plaintiff has produced sufficient evidence to support a reasonable inference of discriminatory conduct. See Foster, 772 F.2d at 1459.

Buelna alleges the following as his prima facie showing: he is an Hispanic, he is qualified to work as a police officer, and he was required to perform an additional task--translating Spanish--that was not required of non-Hispanics whose language skills were comparable to Buelna's. There is no dispute as to the first two facts alleged. It is also clear that Buelna was required to use any translating skills he possessed when dealing with suspects who spoke little or no English. Buelna alleges in his opposition to the motion for summary judgment, "the same requirement [to perform Spanish language interpreting duties] was not extended to non-Hispanics with similar linguistic limitations." However, the record clearly demonstrates that Buelna was asked to translate not because he is an Hispanic but because his supervisors believed he had demonstrated an ability to translate in the past.

Buelna received commendations for his translating abilities, and admitted to having spent many hours translating for fellow officers. In contrast, there is no evidence that any other non-Spanish speaking Hispanic officer was ever asked to translate, nor has Buelna presented any evidence that he was asked to translate because of his ethnic background rather than his demonstrated ability to do so. It makes no difference whether Buelna was in fact able to translate; what matters is that his supervisors believed he could, and that they had a legitimate, nondiscriminatory reason for so believing: his apparent ability to translate in the past. Because no rational trier of fact could conclude the supervising officer's order was racially motivated, summary judgment was appropriate. See Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1410-11 (9th Cir. 1987).

To succeed on a claim of disparate impact, the plaintiff must show that a facially neutral employment policy which is applied equally to all employees has a substantial adverse impact on a protected group. Griggs, 401 U.S. at 431; Jurado, 813 F.2d at 1412. Here, the claim is that the policy of requiring all police officers to assist other officers in translating adversely impacts Hispanic officers, because they would be more likely to be called upon to translate than non-Hispanics.

In Watson, the Supreme Court held that in disparate impact cases, "the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused" the discrimination alleged. 487 U.S. at 994. In this case, Buelna's briefs and record are devoid of any statistical proof that Hispanic officers are subject to greater employment requirements in translating than non-Hispanics.

Buelna claims that requiring an Hispanic police officer who speaks no Spanish to perform Spanish language tasks is discriminatory per se. This argument is based in part on Buelna's claim that the Chandler police department employs the stereotypical belief that all Hispanics speak Spanish.

This claim is squarely at odds with Buelna's past performance. According to the record, Buelna received several commendations for his translating abilities. Buelna also requested that officers who translate should receive more pay, citing his own record of time spent in translating activities. Buelna does not dispute these facts. Thus, even if the department did request more from Buelna in the way of translating skills, it was due to his proven abilities rather than his national origin.

The district court properly granted summary judgment in favor of Chandler.

As the party prevailing on the merits, Chandler is awarded costs and attorney's fees on appeal pursuant to 42 U.S.C. § 1988.

AFFIRMED.