Issue
In Fonseca v. Sysco Food Services of Arizona, Inc. (2004 Daily Journal D.A.R. 8208, 9th Cir. (Ariz.), July 6, 2004), the United States Court of Appeals addressed the issue of whether an employee, who was representing himself pro se, presented sufficient evidence to take his case to trial on his claims that his employer discriminated against him based on his Hispanic race and Guatemalan ethnicity
Facts
Employee, Sergio Fonseca, sued his Employer Sysco Food Services claiming that, beginning in 1999, the manager of the warehouse where he worked committed numerous discriminatory acts based on his Hispanic race and Guatemalan ethnicity. The alleged discrimination occurred with regard to overtime opportunities, discipline for a workplace accident, and negative comments about Employee’s accent. The federal district court granted summary judgment to Employer and Employee appealed to the U.S. Court of Appeals.
Appellate Court Decision
To establish a prima facie case of discrimination, Employee was required to show that (1) he is a member of a protected class; (2) he was qualified for his position; (3) he experienced an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably, or other circumstances surrounding the adverse employment action raise an inference of discrimination. While Employer agreed that Employee showed the first two elements, it argued he did not show the last two. The Court of Appeals disagreed.
Adverse Employment Action. An adverse employment action exists when an employer’s action negligently affects an employee’s compensation. Employee presented evidence that, on ten to thirteen occasions, Employer called a white employee to work overtime that should have been assigned to Employee because of seniority. On only one occasion was a white employee passed over for overtime. Furthermore, Employee, unlike white employees, had to file grievances to receive his overtime and had to repeatedly request payment after winning the grievances. Also, Employee was disciplined for a workplace accident while white employees were not similarly disciplined. The missed overtime opportunities and discipline were adverse employment actions. Furthermore, the Court concluded that “it is an adverse employment action when an employer knows its employees are entitled to certain opportunities [such as overtime], but forces only employees of a certain race to use the grievance procedure to obtain them.”
Evidence of Inference of Disparate Treatment. The treatment regarding overtime, grievances, and discipline all support an inference of disparate treatment. Moreover, Employee’s manager and his immediate supervisor mocked or negatively referred to his accent. This derision of Employee’s accent raised an inference of disparate treatment, particularly because the comments occurred near the time of the missed overtime opportunities and the discipline for the workplace accident.
Thus, the Court concluded the district court erroneously gave judgment to Employer without a trial because “[t]here is a genuine issue of material fact as to whether [Employer’s] adverse employment actions against [Employee] constituted disparate treatment on the basis of race or ethnicity.”
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