Unpublished Disposition, 937 F.2d 614 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 614 (9th Cir. 1991)

CHAP VAN TA, Plaintiff-Appellant,v.GENERAL DYNAMICS-CONVAIR, Defendant-Appellee.

No. 90-55359.

United States Court of Appeals, Ninth Circuit.

Submitted March 5, 1991.* Decided July 1, 1991.



Plaintiff/Appellant Chap Van Ta brought a discrimination action against his former employer, Defendant/Appellee General Dynamics-Convair, under Title VII of the Civil Rights Act of 1964, Sections 1981 and 1985 of the Civil Rights Act of 1870, and under various provisions of California law. The district court granted summary judgment for General Dynamics and dismissed Ta's claims.

We reverse the grant of summary judgment on Ta's retaliatory discharge claim under Title VII and the California Fair Employment and Housing Act (FEHA), and affirm on the issues of discrimination in termination and co-worker harassment. We also affirm the district court's finding that the breach of contract claims are preempted under Section 301 of the Labor Management Relations Act, but reverse the court's ruling that the claims are barred by a six-month statute of limitations, and remand for further proceedings.


We review the district court's grant of summary judgment de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989). We must determine, viewing the evidence in the light most favorable to nonmoving party Ta, whether there are any genuine issues of material fact, and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989).


(1) Retaliatory discharge

Under Title VII Section 704(a), 42 U.S.C. § 2000e-3(a), it is unlawful for an employer to retaliate against an employee because he has taken action to oppose an unlawful employment practice or to enforce rights protected under Title VII. Sias v. City Demonstration Agency, 588 F.2d 692, 694-95 (9th Cir. 1978). To establish a prima facie case of retaliation, Ta had to show that he engaged in a protected activity, that appellee later subjected him to an adverse employment action, and that a causal link exists between the two. Miller v. Fairchild Industries, Inc., 797 F.2d 727, 731 (9th Cir. 1986). Ta need not, however, prove his case by a preponderance of the evidence at the summary judgment stage. Id.

Ta alleges the company fired him in retaliation for attempting to pursue legal action against the company and his co-workers for injuries he sustained after his co-workers taunted, attacked and beat him. Ta testified in his deposition that when he met with labor relations manager Sullivan after the beating, Sullivan asked Ta if Ta was going to sue them. Ta replied he had to sue co-worker Reyes because Reyes beat him. Ta said Sullivan then told him the company would have to fire him if he sued them.

The speakers' intent during this conversation--and particularly, the meaning of Sullivan's question and warning to Ta--is unclear. The company argues Sullivan meant that the company would fire Ta if he took legal action against his co-worker, not that Ta would be fired if he sued the company.2  Ta maintains Sullivan meant the company would fire him if he sued General Dynamics-Convair.

The company's argument that Sullivan's remarks concerned Ta's legal action against his co-workers, but not the company, is unpersuasive. Sullivan's statement, though ambiguous as to the potential parties Ta might sue, clearly suggested retaliatory intent on the part of the company. On review of a grant of summary judgment, we must view the evidence in the light most favorable to the nonmoving party. See Tzung, 873 F.2d at 1339-40. We therefore conclude that Sullivan's statement meant Ta would be fired if he pursued legal action against the company.

Given this view of the facts, we reverse the district court's grant of summary judgment and hold Ta has established a prima facie case of retalitory discharge.3  See Yartzoff v. Thomas, 809 F.2d 1371, 1377 (9th Cir. 1987); Miller, 797 F.2d at 731-32. In light of Ta's prima facie showing, the burden shifts to the company to show Ta's termination was based on a legitimate, nondiscriminatory reason. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Miller, 797 F.2d at 732.

The company asserts Ta was terminated for fighting on company grounds in violation of company policy. Ta contends the company's explanation is merely pretextual, and that he was terminated because the company believed he was going to sue General Dynamics-Convair. We conclude Ta has raised a genuine issue of material fact as to pretext, for two reasons. First, it seems suspicious that the company would terminate Ta for violating its "no fight" policy under these circumstances. Ta was attacked from behind and beaten without provocation. The one-sided "fight" that ensued was simply a result of Ta's attempt to defend himself from Reyes' assault. Second, Sullivan's statement, which we have concluded meant Ta would be fired if he sued the company, is direct evidence of retaliatory discharge. Cf. Miller, 797 F.2d 732-33.

Because the company's "true reasons for laying off [Ta] present an 'elusive factual question' that is incapable of resolution on summary judgment," Miller, 797 F.2d at 733, quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255 n. 8 (1981), we conclude the district court erred in dismissing Ta's retaliatory discharge claim. We therefore remand this matter to give Ta an opportunity to prove that the company's purported rationale for firing him was pretextual, and that the company retaliated against him for attempting to seek redress for his injuries.

We note that on remand, Ta need not show retaliation was the sole cause of his termination. So long as Ta shows the company's retaliatory motive contributed in some way to his termination, he may succeed in his retaliatory discharge claim. See Cohen v. Fred Meyer, Inc. 686 F.2d 793, 798 (9th Cir. 1982); Brunetti v. Wal-Mart Stores, Inc., 525 F. Supp. 1363, 1376 (E.D. Ark. 1981).

(2) Discrimination in termination

To prevail in a Title VII disparate treatment action, Ta must prove intentional discrimination by his employer. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). The district court ruled that Ta failed to offer any facts showing his termination was racially motivated.

The company argues it had a legitimate, non-discriminatory reason for terminating Ta--namely, for fighting on company property in violation of company rules. As explained above, even if Ta was fired for fighting, it appears a retaliatory motive also played a part in Ta's termination. Nevertheless, there is no evidence that Ta was discharged because of his race or national origin. To the contrary, the record establishes that the co-worker who fought with Ta, who is not Vietnamese, was also discharged. The district court was therefore correct in granting summary judgment on this issue.

(3) Co-worker harassment

To sustain a claim for racial harassment, Ta had to prove that company management knew the harassment was going on but did nothing to stop it. Silver, 586 F.2d at 142 (9th Cir. 1978).

Ta admitted he never told supervisor Henderson or anyone else about his co-workers' verbal abuse, and that Henderson was never present during the incidents. In addition, Henderson submitted a declaration stating he was unaware of any such harassment. Because Ta was unable to offer any evidence that the company knew of any racial harassment, the district court properly granted summary judgment. See Celotex v. Catrett, 477 U.S. 317 (1986).

Section 1981 prohibits racial discrimination only in connection with the initial formation and enforcement of contracts. Patterson v. McLean Credit Union, 109 S. Ct. 2363, 2372-74 (1989). Section 1981 does not extend to racial harassment during the course of employment, id., nor to retaliatory discharge. Overby v. Chevron USA, Inc., 884 F.2d 470, 472-73 (9th Cir. 1989). The district court was therefore correct in granting summary judgment on Ta's Section 1981 claim.

Ta's Section 1985 conspiracy claim was based upon his allegation that his discharge was unlawful under Section 1981. Because the Section 1981 claim is not actionable, the district court properly dismissed the Section 1985 claim. See Great American Federal Savings & Loan Ass'n v. Novotny, 442 U.S. 366 (1979); Padway v. Palches, 665 F.2d 965 (9th Cir. 1982).

Ta's employment was governed by a collective bargaining agreement ("CBA") between the company and Ta's union. The CBA provided for resolution of disputes between employees and the company through grievance and arbitration. Ta's grievance was considered and dismissed under this mechanism.

Because the subject matter of Ta's breach of contract claim was covered by the CBA, the claim was preempted by federal labor law and was properly re-characterized as a Section 301 claim. See Allis-Chalmers v. Lueck, 471 U.S. 202, 220 (1985); Young v. Anthony's Fish Grottos, 830 F.2d 993, 997 (9th Cir. 1987). Similarly, Ta's breach of the covenant of good faith and fair dealing claim was preempted because it mirrored protections already contained in the CBA. Young, 830 F.2d at 999-1001. Thus, the district court did not err in finding the contract claims preempted.

The district court did err, however, in finding the claims time-barred under Del Costello v. Int'l Brotherhood of Teamsters, 462 U.S. 151 (1983). Del Costello held that a six-month statute of limitations should be applied when a plaintiff brings a "hybrid" action against both the employer and the union.4  462 U.S. at 165-166.

When the plaintiff's claim is not a hybrid, but a straightforward Section 301 claim for breach of a collective bargaining agreement, it is governed by the Supreme Court's earlier holding in Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696 (1966). General Teamsters Union Local No. 174 v. Trick & Murray, Inc, 828 F.2d 1418, 1423-24 (9th Cir. 1987); Trustees for Alaska Laborers Fund v. Ferrell, 812 F.2d 512, 516-17 (9th Cir. 1987). Under Hoosier, a straightforward Section 301 is subject to the relevant state statute of limitations, not the six-month limitations period applied in Del Costello. See Del Costello, 462 U.S. at 162.

Here, Ta is not bringing any claim against the union for breach of the duty of fair representation, nor has he named the union as a party to his action. Ta's action is not a hybrid suit; it is a straightforward breach of contract action against the employer under Section 301. As such, it is governed by the appropriate state statute of limitations. Del Costello, 462 U.S. at 2290-91; General Teamsters, 828 F.2d at 1424; Ferrell, 812 F.2d at 517; cf. Stallcop v. Kaiser Foundation Hospitals, 820 F.2d 1044, 1049 (9th Cir. 1987) (hybrid claim governed by Del Costello).

Because the district court erred in finding that Ta's Section 301 claims were governed by a six-month limitations period, we reverse. We remand the matter and instruct the district court to determine whether Ta's claims survive the applicable state statute of limitations, and to evaluate whether Ta has a valid Sec. 301 claim.5 



The panel unanimously found this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4


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


Because Ta's Title VII and FEHA claims both allege discrimination on the basis of race and/or national origin and rest on the same facts, and because the objectives of Title VII and the FEHA are identical, Mixon v. Fair Employment & Housing Comm'n, 192 Cal. App. 3d 1306, 1316 (1987), we consider them together


According to the company, Ta cannot sustain a retaliation claim if he was challenging private acts of discrimination by co-workers, rather than an unlawful employment practice of the company. See Silver v. KCA, Inc., 586 F.2d 138, 141 (9th Cir. 1978)


We note that Ta need not prove his underlying discrimination claim was valid to establish a prima facie case of retaliation. See Sias, 588 F.2d at 695. Regardless of the validity of Ta's racial discrimination claim, a threat by a company representative to fire Ta because he planned to pursue legal action against the company is sufficient to make out a prima facie case


A hybrid action embodies two separate claims--one against the employer for breach of the collective bargaining agreement, and one against the union for breach of the duty of fair representation--which are " 'inextricably interdependent.' " Del Costello, 462 U.S. at 154; 164-65, quoting United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 66-67 (1981) (Stewart, J., concurring in judgment)


We note that a CBA generally covers the breach of contract claims made here. Because Ta's claims under the CBA were already disposed of at the grievance hearing, it is possible that Ta has no further causes of action to pursue on remand. Because that issue was not raised below, and we are unable to evaluate it from the record before us, we remand to allow the district court to decide the issue