Thursday, September 27, 2007
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Court Reinstates Race Bias Suit Against Screen Actors Guild
By KENNETH OFGANG, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday reinstated a suit by a former affirmative action official of the Screen Actors Guild against the union, saying she had made out a prima facie case of racial discrimination and retaliation.
A divided panel reinstated all but one of the state and federal claims brought by Patricia Heisser Metoyer against the guild and several senior managers. The judges said there was enough evidence of bias and retaliation to force a trial over whether the reason given for Metoyer’s firing—her misappropriation of SAG funds—was at least partially pretextual.
Metoyer was hired in 1998 as the union’s “executive administrator of affirmative action” in the Hollywood office at a salary of $65,000. A parallel position existed in the New York office, but Metoyer claims she was told at the time that she would eventually be made national director of affirmative action at a salary of $89,000, and that in fact she was referred to by SAG officials as “director” of affirmative action and that title was on the door of her office.
She was fired in 2001 after an audit by PricewatershouseCoopers concluded that she had diverted over $30,000 in grants from the union’s Industry Advancement and Cooperation Fund to friends and family members. The fund is maintained with mandatory contributions from producers and is used “to provide grants that advance the well being of the entertainment industry,” according to SAG.
In her complaint, which was filed in Los Angeles Superior Court before the case was removed to the U.S. District Court for the Central District of California, Metoyer claimed that her lack of promotion was the product of racial discrimination, and that she was fired because she is African American and because she actively supported efforts by other minority employees to end discrimination in pay and promotions at the union.
The company, she alleged, violated 42 U.S.C. Sec. 1981, which prohibits racial discrimination in contracts, and the California Fair Employment and Housing Act.
The union counterclaimed based on the misappropriation charges.
U.S. District Judge John Walter granted summary judgment in favor of the union on all of Metoyer’s claims.
But Senior Judge Dorothy W. Nelson, writing for the Ninth Circuit, said Metoyer had presented sufficient evidence to create triable issues with respect to all of her claims, except her Sec. 1981 claim for failure to promote. Because Metoyer’s employment contract was a letter agreement that made no mention of any previously promised promotion, her evidence of such a promise was barred by the parol evidence rule and she had no admissible evidence that the lack of such a promotion was discriminatory, Nelson said.
The judge went on to conclude, however, that Metoyer’s declaration set forth enough direct and circumstantial evidence of discrimination to make out a prima facie claim that her termination was both discriminatory and retaliatory.
Nelson acknowledged that the union presented substantial evidence that it acted, at least in part, on the basis of the audit report. But the district judge erred in concluding that that was enough for summary judgment.
Walter erred, Nelson explained, in concluding that the union was entitled to summary judgment on its “mixed motive” defense. The defense allows an employer who has taken an adverse job action against an employee based on a combination of lawful and unlawful reasons to avoid liability by showing that it would have taken the action based on the lawful reasons alone.
Nelson concluded that as a matter of law, a mixed motive defense is not available on the issue of liability with respect to a claim of discrimination under Sec. 1981, although it is available to a claim of retaliation. But because there was evidence that other employees had misappropriated IACF grants and not been disciplined, the appellate jurist said, a trier of fact could reasonably determine that SAG would not have fired Metoyer solely for the financial improprieties.
Nelson cited evidence—vigorously disputed by SAG—that senior SAG officials had discouraged Metoyer from advocating on behalf of employees complaining of discrimination.
Metoyer claimed that when she complained that minorities were kept in low-paying jobs, the top personnel official told her that she was “keeping them there because I want to keep an eye on them because black people like to party and eat and don’t do their work.”
Another official, Metoyer declared, said that minorities “ought to be glad they have a job,” and on another occasion that African Americans in particular, “are lazy and
Malingerers” and “have to socialize all the time and...are never happy [but] should be happy to have this job.”
Many of the employees, Metoyer alleged, told her that they were retaliated against after she brought their complaints to the attention of senior management. She also claimed that she was retaliated against for complaining about a report filed by SAG with the Equal Employment Opportunity Commission, which Metoyer believed overstated the number of minorities in high-ranking positions.
Judge Johnnie B. Rawlinson concurred in the opinion, but Judge Carlos Bea argued in dissent that the majority was “misguided” and that the district judge was correct in ruling that the union had established a mixed motive defense.
Bea argued that the Civil Rights Act of 1991, which abolished the mixed motive defense with respect to the issue of liability for discrimination under Title VII, did not eliminate the defense with respect to Sec. 1981 claims. In the racial discrimination context, Sec. 1981 functions much like Title VII, but does not require the plaintiff to participate in an administrative proceeding before the EEOC.
The majority was also wrong on the facts, Bea insisted, writing:
“One cannot get away from the fact that Metoyer gave the Guild the motive for her firing by admitting fabrication of invoices, payment of Guild funds in direct violation of undisputed Guild policies, and total lack of documentation for any services rendered in supposed exchange for the Guild funds defalcated by her. There simply is no triable issue that she pilfered the Guild’s funds. Henceforth, at least in the Ninth Circuit, employers will be forced to go to trial for terminating a thieving employee, so long as the employee makes a colorable claim that a potentially discriminatory motive played a role in the employer’s action.”
Even if other employees also pilfered funds, Bea argued, the mixed-motive defense should not be unavailable, since those employees were mere recipients of allegedly misappropriated grants, while Metoyer was an administrator.
Attorneys on appeal were Marco Simons and Anne Richardson of Hadsell & Stormer in Pasadena and Rick and Eugenia Hicks of Hicks & Hicks in Beverly Hills for the plaintiff and Catherine B. Hagen, Eric J. Amdursky, Renee M. Spigarelli, and Ryan W. Rutledge O’Melveny & Myers for SAG.
The case is Metoyer v. Screen Actors Guild, Inc., 04-56179.
Copyright 2007, Metropolitan News Company