Rivera v. Nibco, Inc.

364 F.3d 1057 (9th Cir. 2004)

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Nature of the Case

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Facts

Rivera (Ps) are twenty-three Latina and Southeast Asian female immigrants once employed as production workers at D's factory in Fresno, California. Although Ps' job descriptions did not require English proficiency, sometime in 1997 or 1998, D required them to take basic job skills examinations given only in English. Ps performed poorly on the exams. Some Ps were demoted or transferred to undesirable job assignments. Eventually, all Ps were terminated. Ps requested and received right-to-sue letters from the EEOC and California's Department of Fair Employment and Housing (DFEH). Ps filed an action in federal court, alleging disparate impact discrimination based on national origin in violation of Title VII, 42 U.S.C. § 2000e et seq., and the California Fair Employment and Housing Act (FEHA). Ps sought reinstatement (and front pay for those not electing reinstatement), backpay, compensatory and punitive damages, and attorney’s fees, as well as injunctive relief enjoining D from, inter alia, continuing its English-language testing policy, and compelling it to expunge any record of wrongdoing from personnel files. During the deposition of Rivera (P), D asked where she was married and where she was born. P had specified that she was of 'Mexican ancestry' in her answers to interrogatories. P's counsel instructed her not to answer any further questions pertaining to her immigration status. P terminated the deposition. Ps then filed for a protective order against further questions pertaining to immigration status because such questioning would have a chilling effect on their pursuit of their workplace rights. The magistrate judge issued a protective order. The magistrate judge held that further questions regarding where each plaintiff was born have no further relevance to this action. The magistrate judge did allow D discovery concerning {s' places of marriage, educational background, current, and past employment, damages, date of birth, and criminal convictions, but limited disclosure of that information to the parties and their attorneys. With regard to each Ps' immigration status, the magistrate judge barred all discovery into the matter but did not preclude D from conducting its independent investigation. She ruled that D under the circumstances did not have a right to use the discovery process to gain that information. D filed a motion under 72(a), requesting that the district court reconsider the magistrate's ruling. The court denied the motion. D filed a motion to certify the discovery ruling for interlocutory appeal. The United States Supreme Court issued its decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). Hoffman held that the National Labor Relations Board lacks the discretion to award backpay to undocumented workers seeking relief for an employer's unlawful employment practices under the National Labor Relations Act. D filed a second motion to reconsider which was denied. The court granted the petition for interlocutory appeal.