Opinion
No. C 00-3301 SI
December 17, 2001
ORDER GRANTING MOTION TO DISMISS
Argument on defendant's motion to dismiss and motion for summary judgment were scheduled to be heard on November 30, 2001. Plaintiff did not arrive until well after his case had been called. The Court finds that the matter may be determined without oral argument. Having carefully considered the papers submitted, the Court hereby GRANTS defendant's motion to dismiss.
BACKGROUND
Latu worked as a fleet service clerk for American Airlines between December 4, 1977 and March 18, 1999. According to American, he frequently missed work during the last ten years of his employment and was issued four written warnings based on repeated absences between 1993 and 1997. Declaration of Jack Anderson. Exs. C-F. On July 25, 1998. Latu called American to inform them that he was ill and would not be in for the next three days. Latu had previously been scheduled to be on vacation during these three days. When told that he needed to speak to a supervisor, Latu hung up the telephone. Id. at Ex. G. Latu was terminated on August 13, 1998 for excessive absenteeism. Id. at Ex. H.
Latu filed a grievance with his union and was subsequently reinstated pursuant to an agreement that required him to, among other things, agree to resign if he violated any policies or regulations over the next four years. Id. at Exs. I, J. In January 1999, a coworker of Latu obtained a temporary restraining order ("TRO") against him requiring him to remain at least five yards away from her at work. On February 5, 1999, a supervisor at American advised Latu in writing that he was not to have any contact with this coworker. Id. at Ex. M. However, on March 6, 1999, the coworker filed a police report explaining that Latu contacted her at work and threatened her. Id. at Ex. O. A general manager at American conducted an investigation that involved interviewing Latu, the coworker, and another employee who witnessed the incident. American determined, based on Latu's reinstatement agreement, the clear violation of the temporary restraining order, and their previous warning to him, that they had good cause to terminate Latu's employment. Latu was fired on March 18, 1999. Id. at Ex. Q.
On August 11, 1999, Latu filed a charge of discrimination with the EEOC claiming that he was terminated because of his race. Id. at Ex. T ("EEOC Charge"). Latu filed the instant case on April 24, 2000 in the San Francisco County Superior Court alleging racial harassment, discrimination, and retaliation. The case was subsequently removed to this Court by American. Now before the Court are American's motions to dismiss and for summary judgment.
DISCUSSION
1. Motion to Dismiss
American moves the Court for dismissal with prejudice based on Latu's failure to prosecute and failure to comply with this Court's orders. Dismissal for failure to prosecute is governed by Rule 41(b) of the Federal Rules of Civil Procedure. Rule 41(b) provides, in pertinent part:
For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.
Fed.R.Civ.Proc. 41(b). The Ninth Circuit has held that District Courts have both inherent and express authority to dismiss a case for failure to prosecute. See Oliva v. Sullivan. 958 F.2d 272, 273 (9th Cir. 1992); Hamilton Copper Steel Corp. v. Primary Steel, Inc., 898 F.2d 1428, 1429 (9th Cir. 1990). A court considering whether to dismiss an action for failure to prosecute must weigh five factors, namely: (1) the publics interest in expeditious resolution of litigation; (2) the courts need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring the disposition of cases on their merits; and (5) the availability of less drastic sanctions. Yours v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)).
Despite the fact that this case has been pending for more than one year, Latu has failed to take any action to move the case along and has thwarted efforts by American to present their defense. Latu has disobeyed a number of court orders, failed to prepare case management conference statements or provide discovery to defendants, did not attend a settlement conference and scheduled depositions, and failed to file responsive pleadings to the two dispositive motions filed by American. These acts and omissions by Latu warrant dismissal for failure to prosecute.
Aside from attending case management conferences and one settlement conference, Latu has utterly failed to prosecute this case. A first settlement conference was scheduled in this case for March 23, 2001. Counsel for American flew from Dallas, Texas to attend, but Latu did not appear and did not provide any explanation for his absence. Declaration of Paula Champagne, ¶ 5. Latu has failed to file his own case management conference statements or to cooperate with defense counsel in preparing joint case management conference statements. Declaration of Kristin Hutchins, ¶¶ 5-7. Latu has also completely ignored his responsibility to provide discovery to American. He failed to provide American with his initial disclosures and has not responded to American's request for production of documents. Champagne Decl., ¶ 3. In addition, American has scheduled two separate depositions with Latu. Each time, a representative of American flew from Dallas to attend. Each time, Latu did not appear and did not provide any explanation for his absence. Champagne Decl., ¶¶ 4, 14. On August 31, 2001, discovery closed although American was never able to depose Latu or obtain any discovery from him.
American filed two motions on October 2. 2001, both of which were served on Latu. Pursuant to this Court's Local Rules, Latu was required to file opposition pleadings to these two motions by November 9, 2001. Civil L.R. 7-3. Latu did not serve any opposition pleadings. On November 21, 2001. this Court issued an Order to Show Cause reminding Latu of his duty to file responsive pleadings and ordering him to show cause, in writing. by November 27, 2001 why the Court should not dismiss the case for failure to prosecute. Latu was warned: "If satisfactory cause is not shown, this action will be dismissed." Again, Latu failed to file a written response. Counsel for American appeared at the scheduled November 30, 2001 hearing, prepared to argue both their motion to dismiss and their motion for summary judgment. Latu was not present when the case was called, and it was submitted without oral argument. Latu arrived at the end of the Court's calendar and asked the Court not to dismiss the case. The Court again ordered Latu to show cause, in writing, why his case should not be dismissed for failure to prosecute.
On December 2, 2001, Latu filed a letter asking the Court not to dismiss his case. Latu claims (1) that he was unable to present evidence because he has been denied access to his employment file by his supervisor; (2) that he has been denied access to another "well known case within American Airline with similar situation to support my claim;" (3) he has been denied access to the telephone number and address of his former co-worker so that he can be contacted for a written statement or so that he can be used as a witness; and (4) lack of cooperation from American management in order to obtain an unspecified record related to his claim. Latu 12/2/01 Ltr.
None of the above explanations warrant excusing Latu's failure to prosecute this case. Latu has not filed a single discovery request on American in this case. Nor has he brought to the Court's attention any problems he has had obtaining evidence from American until now. In fact, there is no evidence that Latu has made any effort to obtain the above information since filing the instant suit. Moreover, any alleged acts of American personnel do not explain Latu's failure to appear for scheduled depositions and case management conferences, failure to file responsive pleadings, and failure to respond to this Court's Order to Show Cause. In sum. Latu has provided no reason to believe that, were this Court to simply provide him with more time, circumstances would change. This case has been pending for more than one year, during which time American has been seeking to present a defense. American has already been severely prejudiced by Latu's acts, and would be further unfairly prejudiced by what would be, in effect, starting this case over again.
This Court has made Latu aware of what is required of a pro se litigant and informed him on a number of occasions of the serious consequences of his acts and omissions. At a case management conference in December 2000, the Court advised Latu that he was required to produce documents in support of his claim to defendants. Moreover, the Court advised Latu that when defendants filed a motion for summary judgment, as they now have done, he would be required to "respond by bringing to my attention any facts that you think are different from the facts that she's contending are true. There are procedures you have to follow to do that. And you will be required to do that, whether you are § representing yourself or whether you have a lawyer." Champagne Decl., Ex. A, 5:2-11. On another occasion, this Court issued a written order requiring Latu to appear for a scheduled deposition. In that order, this Court warned Latu that "if he again fails to appear, either at his deposition or the Settlement Conference, the Court may dismiss his case for lack of prosecution, or impose other sanctions on him in this case." April 15, 2001 Order. Despite this order, Latu failed to appear for the scheduled deposition on August 15, 2001.
Considering the five factor test described by the Ninth Circuit, it is clear that dismissal is appropriate here. As to the first factor, this case has been pending for over a year, yet Latu has not engaged in any meaningful work. On the contrary, he has hindered American's efforts to move the case along expeditiously. It would be a waste of resources to allow the case to go to trial given Latu's complete failure to produce requested discovery, file responsive pleadings, or comply with this Court's orders. The second factor also weighs in favor of dismissal. This Court has a heavy docket and cases cannot be left to languish for months on end without any meaningful work being done on them.
As to the third factor, American has shown that it has been significantly prejudiced by Latu's acts and omissions. Without discovery or deposition testimony from their accuser, they are left with little information about the case against them. Furthermore, American has expended significant amounts of time and money preparing for conferences and depositions that Latu did not attend. As to the fourth factor, the Court will below consider the merits of American's motion for summary judgment in order to address the merits to the extent possible given Latu's failure to prosecute his own case. Finally, the Court has considered alternative sanctions in this case. Latu has failed to appear and disobeyed the Court's orders on a number of occasions. Until now, the Court has opted not to dismiss the case and has instead explained to Latu his responsibilities as a party to this case. In addition, the Court has warned Latu on at least two occasions that dismissal would likely result if he failed to comply with the Court's orders. The first time. the Court opted not to dismiss the case when he failed to attend the second scheduled deposition despite the Court's warning that dismissal could result. Now, after a second warning without any meaningful response on Latu's part, the case must be dismissed. The case is therefore DISMISSED with prejudice.
2. Motion for Summary Judgment
In the alternative, judgment on behalf of American is warranted based on their motion for summary judgment filed concurrently with the motion to dismiss. Latu stated three causes of action against American: (1) hostile work environment race discrimination; (2) race discrimination; and (3) retaliation.
a. Hostile Work Environment
"An employer is liable under Title VII for conduct giving rise to a hostile environment where the employee proves (1) that he was subjected to verbal or physical conduct of a harassing nature, (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Pavon v. Swift Trans. Co., Inc., 192 F.3d 902, 908 (9th Cir. 1999). Whether an environment is sufficiently hostile or abusive must be judged "by `looking at all the circumstances,' including the `frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Faragher v. Boca Raton, 524 U.S. 775, 787-88 (1999) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)). Only harassing conduct that is "severe or pervasive" can produce a "constructive alteratio[n] in the terms or conditions of employment." Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998). Isolated or occasional incidents will not support a hostile work environment claim. Richardson v. New York State Dept. of Correctional Svc., 150 F.3d 426, 437 (7th Cir. 1999).
Assuming that Latu also attempts to state a claim under the California Fair Employment and Housing Act ("FEHA"), California courts generally look to federal precedent in evaluating claims under FEHA. See Beyda v. City of Los Angeles, 65 Cal.App.4th 511, 517 (1998).
Here, Latu has not presented any evidence of racial harassment. His complaint does not describe any particular incidents, perpetrators, or dates of incidents. American is therefore entitled to judgment as a matter of law on Latu's first cause of action for racial harassment.
b. Race Discrimination
Latu's second cause of action alleges that he was terminated by American because of his race. The burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), governs Latu's claim of race discrimination. That process requires the plaintiff to initially establish a prima facie case of discrimination. Generally, Latu is required to show that (1) he belongs to a protected class; (2) he was subjected to an adverse employment action by his employer; and (3) others who were similarly situated and not within his protected class were treated more favorably than he was. See Id. at 802. Establishment of a prima fade case in effect creates a presumption that the employer unlawfully discriminated against the employee. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). Once the plaintiff has established a prima facie case of discrimination, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 802. If the defendant does so, the presumption raised by the prima facie case is rebutted and disappears. Burdine, 450 U.S. at 255. The plaintiff must then prove that the reason was pretextual by showing that the defendant was more likely motivated by a discriminatory reason or that its explanation is not worthy of credence. See Douglas v. Anderson, 656 F.2d 528, 534 (9th Cir. 1981).
Again, California courts follow this same burden shifting approach in evaluating FEHA claims. See Caldwell v. Paramount Unified School Dist., 41 Cal.App.4th 189, 195 (1995).
Here, Latu has failed to establish a prima fade case of discrimination. American has presented evidence that Latu was frequently absent or tardy from work and had been warned on a number of occasions. Moreover, while on the job, Latu violated a TRO obtained against him by a coworker. Even were the Court to assume that Latu established a prima facie case, American has proven that it had legitimate, non-discriminatory reasons for discharging Latu. As noted above, Latu was frequently absent from work and had been reinstated on a provisional basis requiring him to abide by all American rules and regulations. Latu violated this reinstatement agreement when he approached the coworker who had a temporary restraining order against him.
In an apparent effort to show that American's justification for terminating him is pretextual, Latu claimed in his EEOC charge that other workers missed more days of work than he did but were not discharged. EEOC Charge. Latu has not presented any evidence to support this claim. It is impossible for American to rebut these allegations without names of the other employees who were treated differently. Further, Latu claimed that a white coworker, Philip Goodyear, who had violated a similar TRO against a coworker, was not discharged. Id. American has presented evidence that the contacts between Goodyear and the coworker were inadvertent, coming when they happened to be on the same employee bus at the same time or saw each other in the airport terminal. Moreover, Goodyear had not been disciplined prior to these allegations, whereas Latu had been terminated and provisionally reinstated. Declaration of J. Donald Cross, ¶¶ 4-6. American is therefore entitled to judgment as a matter of law on Latu's second cause of action, for race discrimination.
c. Retaliation
This Court does not have subject matter jurisdiction over Latu's third cause of action. for retaliation, because it was not included in his EEOC charge. In general, a plaintiff may not raise claims in a Title VII lawsuit that were not included in an EEOC charge. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974). The claim of retaliation is not like or reasonably related to the allegations in his EEOC charge, which focused solely on his claim that he was harassed and discharged based on his race. See Winfield v. Beverley Enterprises, 1994 U.S. Dist. LEXIS 2855 (N.D. Cal. 1994) (retahatory discharge claim dismissed because not included in EEOC charge). The same is true in FEHA cases. in which a plaintiff is required to file a complaint of discrimination with the Department of Fair Employment and Housing prior to filing suit. See Okoli v. Lockheed Technical Operations Co., 36 Cal.App.4th 1607, 1614 (1995) (claim of retaliation not like or related to claim of race and national origin discrimination). American is therefore entitled to judgment as a matter of law on Latu's third cause of action, for retaliation.
CONCLUSION
For the foregoing reasons, defendant's motion to dismiss is GRANTED with prejudice. In the alternative, defendant has presented ample evidence that a grant of summary judgment on its behalf would be warranted even were the Court to deny the motion to dismiss.
IT IS SO ORDERED.
JUDGMENT
By order dated December 17, 2001, this Court dismissed with prejudice plaintiffs action against defendants, judgment is hereby entered in favor of defendants and against plaintiff Daniel Latu.