886 F2d 1319 Demps v. Olympia Usa Inc

886 F.2d 1319

Unpublished Disposition

James DEMPS, Jr., Plaintiff-Appellant,
OLYMPIA, U.S.A., INC; L.W. Midley; Brian McNerney,

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

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No. 88-6136.


United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 30, 1989.
Decided Sept. 28, 1989.


Before ALARCON and NELSON, Circuit Judges, and MARILYN H. PATEL, District Judge*.




James Demps, Jr. appeals from the district court's grant of summary judgment for Olympia, U.S.A., Inc. (Olympia) in Demps's action seeking relief for allegedly discriminatory action taken by Olympia in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e-3(a). In addition, Demps appeals the district court's denial of his ex parte application to extend the time in which to oppose Olympia's motion for summary judgment. We affirm both rulings.


* Facts and Proceedings Below


Demps, a black man, brought suit in federal district court alleging that Olympia, his former employer, gave a prospective employer an adverse employment reference in retaliation for two employment discrimination charges that Demps had filed against Olympia with the EEOC. Demps claimed that Olympia disparaged his "character for honesty" and that the negative reference resulted in the prospective employer's decision not to hire him. Prior to filing this action, Demps entered into a settlement with Olympia resolving his two previously filed discrimination charges. As part of Demps's consideration for entering into the settlement, Olympia agreed "... to respond to inquiries to Olympia about Demps from potential employers by providing no more than his job title, salary, and dates of employment without commenting about job performance or reason for termination." Demps obtained a Right to Sue Notice from the EEOC for this action.

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Olympia moved for summary judgment on March 31, 1988, within the time frame established by the district court in both a pre-trial conference order and a minute order filed with the court. Demps failed to timely oppose Olympia's motion for summary judgment. But on May 6, Demps filed an ex parte application for an order to vacate the court's order of April 13 and allow him time to respond to Olympia's summary judgment motion. The court denied Demps's ex parte application and granted Olympia summary judgment on May 11.


Ex Parte Application


Demps contends that the district court erred in denying his ex parte application to extend the time for opposing Olympia's motion for summary judgment because he had not received notice of the summary judgment motion. This contention lacks merit. In her declaration filed in opposition to Demps's application, Olympia's counsel stated that she had served Demps with her notice of motion and motion for summary judgment by mail on March 31, 1988. She further stated that this mail was never returned. The proof of service bears Demps's current address. It was not until Demps filed his ex parte application that Demps officially notified the court of his current address, even though his office had been located there since May 1987. In denying Demps's ex parte application, the district court found that Demps's claim that he never received notice of Olympia's summary judgment motion was not credible. We have no reason to find that the district court abused its discretion in reaching this conclusion.


Summary Judgment


Demps contends that Olympia's alleged breach of the settlement agreement creates an inference of discrimination strong enough to overcome Olympia's motion for summary judgment. We disagree.


"[T]he dissemination of adverse employment references can constitute a violation of Title VII [of the Civil Rights Act of 1964] if motivated by discriminatory intent." London v. Coopers & Lybrand, 644 F.2d 811, 817 (9th Cir.1981) (violation under 42 U.S.C. Sec. 2000e-2(a)(1)); Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1163 (10th Cir.1977) (violation under 42 U.S.C. Sec. 2000e-3(a)). Protection against ill-motivated references is afforded former employees as well as current ones. Bailey v. USX Corp., 850 F.2d 1506, 1508 (11th Cir.1988); Rutherford, 565 F.2d at 1167.


In order to state a prima facie case for retaliation under 42 U.S.C. Sec. 2000e-3(a), a plaintiff must show that (1) he was engaged in a protected activity, (2) he suffered an adverse employment decision, and (3) there was a causal link between the protected activity and the adverse employment decision. Ruggles v. California Polytechnic State University, 797 F.2d 782, 785 (9th Cir.1986). The plaintiff has the initial burden of proof and must come forward with evidence to make out a prima facie case. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).


Olympia moved for summary judgment on the grounds that Demps had failed to (1) state a claim under 42 U.S.C. Sec. 2000e-2(a)(1) or (2) establish a prima facie case under 42 U.S.C. Sec. 2000e-3(a). In its summary judgment motion, Olympia identified an attached portion of Demps's deposition which indicated the nature of Demps's claim as being one for breach of contract. Demps, on the other hand, failed to meet the requirements of Rule 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (where the nonmoving party will bear the burden of proof on a dispositive issue, in responding to a motion for summary judgment he must go beyond the pleadings and designate specific facts showing there is a genuine issue for trial). Demps bore the initial burden of establishing a prima facie case of retaliation at trial, see Burdine, 450 U.S. 252-53, but offered no evidence that Olympia had given a negative reference concerning him to a prospective employer and that the person who gave it had knowledge of Demps's previously filed discrimination charges with the EEOC. Thus, Demps failed to demonstrate that Olympia had made an adverse decision in retaliation for Demps's protected activity.1 See Ruggles, 797 F.2d at 785; Bailey, 850 F.2d at 1508.


The district court ruled that Demps had failed to make out a prima facie case under any section of Title VII.2 Demps acknowledges that he failed to make a prima facie case of retaliation as set forth in Ruggles because he did not oppose Olympia's motion for summary judgment.


Demps contends, however, that Olympia's alleged breach of the settlement agreement creates an inference of discrimination. Demps cites no authority to support an abandonment of the Ruggles requirements to state a prima facie case,3 and we find no reason to do so. See Ruggles, 797 F.2d at 785. In any event, Demps has failed to offer evidence that Olympia breached the settlement. Because Demps has failed to factually support his retaliation claim as required by Rule 56, see Celotex, 477 U.S. at 323-24, the district court did not err in granting summary judgment for Olympia.




The Honorable Marilyn H. Patel, United States District Judge for the Northern District of California, sitting by designation


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


Thus, we need not address whether the district court erred in finding that one negative reference cannot amount to a violation of 42 U.S.C. Sec. 2000e-3(a). See Shehadah v. Chesapeake & Potomac Tel. Co., 595 F.2d 711, 723 n. 59 (D.C.Cir.1978)


The same offering of evidence is required for a prima facie case of retaliation under both 42 U.S.C. Secs. 2000e-2(a)(1) and 3(a). Ruggles, 797 F.2d at 785


Demps's citation to Burdine, 450 U.S. at 254 n. 7 is inapposite. The Supreme Court only noted that in the Title VII context it used the phrase "prima facie case" to "denote the establishment of a legally mandatory, rebuttable presumption." Id