Unpublished Disposition, 857 F.2d 1477 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 857 F.2d 1477 (9th Cir. 1987)

Vibert GREENE, Plaintiff-Appellant,v.GENERAL ELECTRIC CO., Defendant-Appellee.

No. 86-2772.

United States Court of Appeals, Ninth Circuit.

Argued Aug. 12, 1987.Submitted June 20, 1988.Decided Aug. 26, 1988.

Before POOLE, KOZINSKI and O'SCANNLAIN, Circuit Judges.


The district court entered summary judgment against Vibert Greene on his claims of wrongful discharge based on race, retaliatory discharge, misrepresentation and fraud, and intentional infliction of emotional distress. We review de novo to determine whether there was any genuine issue of material fact, and whether the substantive law was correctly applied. Gaines v. Haughton, 645 F.2d 761, 769 (9th Cir. 1981), cert. denied, 454 U.S. 1145 (1982).

* As a preliminary matter, we must determine whether we have jurisdiction over this case in light of our decision in Bryant v. Ford Motor Co., 844 F.2d 602 (9th Cir. 1987). Greene commenced this action in California state court, naming as defendants General Electric Company, Inc. and Does I through XX. General Electric removed the case to the United States District Court for the Northern District of California on the basis of diversity of citizenship.

In Bryant, we announced a new rule that fictitious defendants are presumed to be non-diverse; cases where the complaint lists Doe defendants are therefore not ripe for removal until "all Doe defendants are either named, unequivocally abandoned by the plaintiff, or dismissed by the state court." Bryant, 844 F.2d at 605-606 (9th Cir. 1987). However, federal courts need not remand pending cases if "both parties agree to dismiss the Doe defendants." Id. at 606 n. 7.

Here, both parties agreed in a joint pre-trial statement that " [n]o other defendants have been named or served. The claims against Does I through XX are dismissed." Joint Pretrial Statement and Order, January 31, 1986, Supplemental Excerpt of Record (SER), Tab 5 at 1-2. Appellant argues that this pretrial statement is irrelevant because it "was apparently never signed by the trial judge, and therefore there is no order dismissing the Doe defendants." Letter from Louis Silver, November 16, 1987, at 1. This argument need not detain us long. The Bryant exception for pending cases does not require that the Does be formally dismissed; it requires only that the parties agree to drop the Does from the case. That the district judge, for whatever reason, never signed the order does not change the fact that both parties voluntarily agreed to dismiss the Does, as Bryant commands. We therefore conclude that we have jurisdiction.


A. Greene claims that General Electric discharged him from his position as engineer in violation of Title VII of the Civil Rights Act of 1964, Sec. 703(a) (1), 42 U.S.C. § 2000e-2(a) (1) (1982) and the California Fair Employment and Housing Act, Cal. Gov't Code Secs. 12900-12940(a) (West 1980 & Supp.1988). The order and allocation of burdens of proof in an employment discrimination case were first outlined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Although McDonnell Douglas was a refusal-to-hire case, its principles of proof are equally applicable to discharge cases. See, e.g., McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976); Fong v. American Airlines, Inc., 626 F.2d 759 (9th Cir. 1980). California courts also rely on the McDonnell Douglas test to determine whether an employee's discharge violated the California Fair Employment and Housing Act. Mixon v. FEHC, 192 Cal. App. 3d 1306, 237 Cal. Rptr. 884, 890-91 (1987).

Under McDonnell Douglas, the plaintiff must first make a prima facie case of discrimination. Adapting the McDonnell Douglas test to the discharge situation,1  the plaintiff can make a prima facie case of discrimination by showing: (1) that he belongs to a racial minority; (2) that he was qualified for his job; (3) that, despite his qualifications, he was discharged; and (4) that after his discharge the job remained available. See, e.g., Ray v. Safeway Stores, Inc., 614 F.2d 729, 730 (10th Cir. 1980); Mixon v. FEHC, 192 Cal. App. 3d 1306, 237 Cal. Rptr. 884, 891 (1987).

If the plaintiff succeeds in making a prima facie case, the defendant must articulate a legitimate, nondiscriminatory reason for discharging the employee. McDonnell Douglas, 411 U.S. at 802. To meet this burden, the employer "need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 257 (1981).

Assuming the defendant succeeds in articulating a legitimate reason, the burden once again shifts to the plaintiff, who must prove that defendant's stated reasons are pretextual. McDonnell Douglas, 411 U.S. at 804. The plaintiff can carry this burden in several ways. For example, he may show that similarly situated non-minority employees received different treatment. Id. Statistics may be used to show "a general pattern of discrimination against blacks." Id. at 805. Overt discriminatory acts, such as remarks revealing racial animus, may also expose defendant's proffered explanation as a pretext. See, e.g., Slack v. Havens, 7 FEP 885 (S.D. Cal. 1973), aff'd in part, remanded on other grounds, 522 F.2d 1091 (9th Cir. 1975). The plaintiff at all times retains the ultimate burden of proving that the defendant's conduct was discriminatory.

In reviewing a grant of summary judgment against plaintiff's claims of discriminatory treatment, "the McDonnell Douglas order of proof and shifting of burdens must be viewed in light of the traditional test for granting summary judgment." Foster v. Arcata Associates, Inc., 772 F.2d 1453, 1459 (1985), cert. denied 475 U.S. 1048 (1986). The test is whether Greene has produced "specific facts showing that there remains a genuine factual issue for trial" and evidence " 'significantly probative' as to any [material] fact claimed to be disputed." Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983) (quoting Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir. 1979), cert. denied, 445 U.S. 951 (1980)).

Greene has proven that he belongs to a racial minority and that he was discharged from his job; he also alleges that he was qualified for his job. However, General Electric has presented uncontroverted evidence that the job did not remain available after Greene was discharged. Declaration of Claude H. Solanas, SER, Tab 7 at 14. Greene has therefore failed to establish a prima facie case of discriminatory discharge under McDonnell Douglas.

Even if Greene had carried his initial burden,2  he does not present evidence sufficient to overcome General Electric's showing of legitimate nondiscriminatory motive for the discharge. General Electric presented detailed affidavits, supported by exhibits, setting forth in minute detail the reasons for the discharge. Among the reasons given were Greene's repeated refusal to accept new responsibilities; his frequent, unauthorized absences from work; and his obstinate refusal to follow his superiors' legitimate orders. This evidence shifted the burden to Greene to show that General Electric's stated reasons are pretextual, and the real reason for his discharge is racial discrimination.

Greene has failed to carry this burden. There is no evidence of racial animus directed at him, no statistical evidence of a general practice of discrimination against black employees and no evidence that similarly situated white employees were treated differently. Greene makes no response to many of the documented examples of his poor work performance. See, e.g., Declaration of Claude H. Solanas, SER, Tab 7 at 6-7 (when given a rush project with a one week deadline, Greene worked for no more than 20 to 30 minutes the first day, took an unauthorized vacation on the second day, then billed the client for overtime evening work); id. at 4 (when asked to complete a jet pump analysis, a project which should have taken three to four weeks, Greene refused to commit himself to completing the analysis in less than six weeks); Declaration of Robert L. Hughes, SER, Tab 6 at 4 (project engineers complained that Greene's dilatory work habits, or complete failure to provide needed input, impeded their efforts.). Nor does Greene deny that after he was terminated, his assistant easily completed both Greene's and his own work in a normal period of time. Declaration of Claude H. Solanas, SER, Tab 7 at 14.

As to those of General Electric's contentions that Greene addresses, he retorts with vague generalities: "I do not recall" hearing complaints from other divisions; "I do not remember" failing to complete any projects; and "to the best of my knowledge" he accepted every project given him. Declaration of Vibert Greene, Excerpt of Record (ER) 43, 45-46. Despite ample time for discovery, Greene has failed to come up with specific facts, documents, declarations of third parties, or deposition testimony to substantiate his claims. All we have is Greene's unsupported assertion that he did his job well, and his self-laudatory allegations that he "feel [s] that [he] performed [his] duties professionally and competently at all times." Id. at 48 (emphasis added).

B. The order and allocation of proof outlined in McDonnell Douglas also governs actions for retaliatory discharge. Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982). Therefore, the above analysis is equally applicable to Greene's claim that he was fired in retaliation for filing a discrimination charge with the California Department of Fair Employment and Housing. In the absence of any evidence that General Electric's reasons for discharging Greene were mere pretexts to cover retaliatory motives, this claim was properly dismissed.

C. Greene contends that General Electric committed fraud and misrepresentation by implicitly offering him a level eight position, while actually starting him at a lower-paying level six. Under California law, fraud may be found when a party, with intent to deceive or to induce another party to enter into a contract, makes a promise without any intention of performing it. Cal.Civ.Code Sec. 1572 (West 1982). However, the written offer of employment Greene accepted called for a level six position; he worked at level six for three years. Joint Pretrial Statement and Order, January 31, 1986, SER, Tab 5 at 3-4. Green's undocumented assertions to the contrary do not raise an issue precluding summary judgment.

D. Finally, Greene has failed to make out a prima facie case of intentional infliction of emotional distress. To withstand a summary judgment motion, Greene must present evidence that General Electric engaged in conduct that was "beyond all reasonable bounds of decency." Cornblith v. First Maintenance Supply Co., 268 Cal. App. 2d 564, 565, 74 Cal. Rptr. 216, 217 (1968) (quoting Restatement of Torts Sec. 46, comment g (1948 Supp.). Since Greene can only point to conduct typical of the strained relations preceding an employee's discharge, we approve the grant of summary judgment on this claim as well.

General Electric's request for attorney's fees is denied.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


McDonnell Douglas held that the plaintiff could establish a prima facie case of discriminatory refusal to hire 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.

McDonnell Douglas, 411 U.S. at 802.


Greene asks us to apply the standard set forth in Boner v. Board of Com'rs of Little Rock, 674 F.2d 693, 696 (8th Cir. 1982), holding that a plaintiff can establish a prima facie case of discriminatory discharge by showing that he: (1) was a member of a protected class; (2) was capable of performing the job; and (3) was discharged from the job. Assuming, arguendo, that Greene's statements in his affidavit and deposition constituted a sufficient showing of competence, Greene might have established a prima facie case of discrimination under the Boner standard. However, Boner omits the fourth prong of the McDonnell Douglas test, "that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications," McDonnell Douglas, 411 U.S. at 802, which is fatal to Greene's claim. Because Boner is inconsistent with decisions of both this court, see Yee v. Department of Envtl. Servs., Multnomah Cty., 826 F.2d 877, 881 (9th Cir. 1987) (applying four prong test), and California courts, see Mixon, 192 Cal. App. 3d at 1318, 237 Cal. Rptr. at 891 (same), we decline to apply it