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finding alternatively that sufficient business justification was shown by the fact that city officials had received complaints that some employees could not understand what was being said on the City's radio frequency because other employees were speaking Spanish and that city officials received complaints from non-Spanish-speaking employees who felt uncomfortable when their co-workers spoke Spanish in front of them
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Case No. CIV-03-336-R
February 20, 2004
ORDER
Before the Court are the motion for summary judgment of Defendants City of Altus, Oklahoma and Michael Nettles, the motion for summary judgment of Defendant Holmes Willis, and the Plaintiffs' motion for partial summary judgment.
Plaintiffs Leticia B. Sanchez, Danny V. Maldonado, Ruben D. Rios, Danny Alcorta, Henry O'Florian Martinez, Tommy R. Sanchez, Lloyd Lopez, Carlos Ramirez, Adrian B. Alonzo, Linda Mutchler, Frank Maldonado and Freddie Perez are employees of the City of Altus. Defendant Michael Nettles is the City Administrator for the City of Altus, and Defendant Holmes Willis is the elected street commissioner. After filing administrative complaints with the Equal Employment Opportunity Commission ("EEOC") claiming national origin discrimination based on the City's adoption of an "English-only" policy, the Plaintiffs brought this action, raising several statutory and constitutional claims arising out of the policy.
The Defendants represent to the Court that Ms. Sanchez is no longer a plaintiff in this case.
The Defendants have referred to the challenged policy as a "Business Communication Policy." However, the policy in question, promulgated by the City of Altus as Administrative Policy No. 1.13, is clearly geared toward requiring the City's employees to use the English language in the workplace and in their business communications, and does not impose other restrictions upon business communications. Policies of this nature have been referred to in the EEOC regulations and governing case law as "English-only" policies, and the Court will refer to it as such herein.
I. Title VII Claims — Failure to Exhaust.
Defendants City of Altus and Michael Nettles argue that the Plaintiffs' claims under Title VII of the Civil Rights Act of 1964, Title 42 U.S.C. § 2000e ("Title VII") are barred to the extent that the Plaintiffs have failed to exhaust their administrative remedies prior to filing suit. The City and Nettles concede that all of the Plaintiffs filed timely charges of discrimination with the EEOC alleging that the City's English-only policy was discriminatory, but contend that the EEOC charges were based solely upon allegations of discrimination on the basis of national origin. Thus, the Defendants argue, the Plaintiffs may not premise their recovery upon allegations that the business communications policy discriminates on the basis of race.Such a hypertechnical construction of the administrative filing requirement is not warranted. The Plaintiffs' allegation in this proceeding that they were discriminated against on the basis of their race is reasonably related to the allegation in each Plaintiff's administrative charge that: "I believe I have been discriminated against because of my National Origin, Hispanic." Thus, the Plaintiffs may maintain Title VII claims for race discrimination even though they did not specifically refer to "race" discrimination in their administrative charges. Daneshvar v. Graphic Technology, Inc., 18 F. Supp.2d 1277 (D. Kan. 1998) (Employee's discrimination claim based on race was reasonably related to the allegation in his administrative charge that he was discriminated against on the basis of his Iranian-American national origin, and he could maintain a race discrimination claim even though his administrative charge did not specifically refer to race), citing Saint Francis College v. Al-Khazraji, 481 U.S. 604, 614, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987) ("[T]he line between discrimination based on `ancestry or ethnic characteristics' and discrimination based on `place or nation of . . . origin' is not a bright one.") (Brennan, J. concurring). See also Alonzo v. Chase Manhattan Bank, N.A., 25 F. Supp.2d 455, 460 (S.D. N.Y. 1998) (Race discrimination claim was reasonably related to national origin claim "[d]ue to [plaintiff's] pronouncement that he was discriminated against because he is a Hispanic, because it has not been established that the designation of being an Hispanic precludes a claim of racial discrimination, and given the uncertainty among courts as to whether `Hispanic' is better characterized as a race or a national origin"); Lazuran v. Kemp, 142 F.R.D. 466, 469 (W. D. Wash. 1991) (Citing several federal district courts that have allowed claims based on race where the initial EEOC charge was only national origin, because "a claim based on race was merely a refinement of the claim based on national origin").
In that regard, the Court points out that the term "Hispanic" is more accurately understood to describe a race of people, rather than a nation of origin, as it does not refer to a particular nation or nationality.
The Court finds that by alleging that they were discriminated against as "Hispanics," the Plaintiffs have adequately preserved their Title VII claims for both racial and national origin discrimination. The Defendants are not entitled to summary judgment on the basis of failure to exhaust administrative remedies.
II. Disparate Impact Claims Under Title VII and Section 1981.
The Defendants seek summary judgment on the merits of the Plaintiffs' claims under both Title VII and Title 42 U.S.C. § 1981, arguing that there is no evidence of discriminatory intent in the adoption of an English-only policy. The Defendants' evidence indicates that in the Spring of 2002, Defendant Holmes Willis, the elected Street Commissioner for the City of Altus, advised the City's Human Resources Director, Candy Richardson, that he had received a complaint from another department that employees working on a joint project with the Street Department could not understand what the Street Department employees were saying on the City's radios because some of the Street Department employees were speaking Spanish. (Deposition of Candy Richardson, Tr. p. 17; Deposition of Ruben Rios, Tr. p. 117). Defendant Willis testified in his deposition that he had also received complaints from City employees who did not understand Spanish, that they were uncomfortable when their co-workers spoke Spanish in front of them. (Deposition of Holmes Willis, Tr. pp. 13-15; Rios Deposition, Tr. p. 117; Deposition of Tommy Sanchez, Tr. p. 94). Ms. Richardson advised Defendant Willis that it would be permissible for him to instruct the employees under his supervision to speak English when conducting City business over the radio. Later that day, Plaintiff Leticia Sanchez reported to Ms. Richardson that Defendant Willis had, instead, instructed the employees under his supervision not to speak Spanish at all. (Deposition of Candy Richardson, Tr. pp. 18-19). In her deposition, Ms. Richardson conceded that a total prohibition against speaking Spanish would not have been justified by business necessity. Ms Richardson testified that she discussed with Defendant Willis her concern that a total prohibition against speaking Spanish would be unwarranted, and that he assured her that he "didn't mean it that way." (Richardson Deposition, Tr. pp. 20-21). Defendant Willis advised Plaintiffs Lloyd Lopez and Ruben Rios that an English-only policy was "coming," and that they might as well start complying.On June 18, 2002, Plaintiffs Tommy Sanchez, Rueben Rios and Lloyd Lopez submitted a written complaint to Ms. Richardson and to Defendant Michael Nettles, the City Administrator, complaining that Defendant Willis had advised them that an English-only policy was being implemented by the City. (Plaintiffs' Exhibit "H"). In July 2002, Defendant Nettles, the City Administrator for the City of Altus, promulgated an official policy limiting the use of languages other than English in work-related and business communications. The City's English-only policy provides, in pertinent part:
The June 18, 2002 letter from Mr. Sanchez, Mr. Rios and Mr. Lopez reads, in part, as follows:
"On Friday, June 13, 2002, I was informed by my subordinates Lloyd Lopez and Ruben Rios that Mr. Holmes Willis had informed them on Thursday, June 12, 2002 that there was a new City policy that did not allow Hispanics to speak Spanish to each other on the radio and at the Street Department. Lloyd and Ruben came to me confused and expressed their concern about this new policy. They were inquiring if I had any knowledge of this. Because I was not aware of this policy, I addressed Holmes about it. Holmes informed me that Mr. Michael Nettles, City Administrator came to the Street Department on Thursday, June 12, 2002 to inform him that the Spanish language being used among the Hispanics in the Street Department at the Department and on the City radio needed to stop. That it was making others feel uncomfortable. Mr. Willis also indicated that you expressed that this was a problem throughout the City and that it was going to be stopped. Holmes said that the City Council would probably have to adopt this policy, thereby not allowing Hispanic employees to speak Spanish while on the job. Holmes informed me that when I applied for this job, that it was an English speaking position. He went further to say that the reason we (Hispanics) speak Spanish to each other is because it reflects our insecurities. I explained to Mr. Willis that it is a natural reaction for us to speak Spanish to someone that we know speaks Spanish. He informed me that in Texas, they have adopted similar policies and that he had also called Granite Reformatory where Lloyd Lopez does the prison ministry and that they told him that Mr. Lopez was not allowed to speak Spanish there even when he is ministering. Holmes told me that I would feel uncomfortable if another race would speak their native language in front of me. I asked him not to tell me how I would feel, because that does not bother me.
Mr. Willis did indicate that there are basically two exceptions to this new policy. One would be when I was needed to interpret, then it would be allowed and the other exception would be that when we (two hispanics) would be in the truck alone away from "us" (white caucasions (sic) non-Spanish speaking individuals), it would be allowed. He expressed to me that the City is experiencing the "problem " at the Sanitation Department, Fleet Maintenance and other departments that have Spanish speaking individuals."
Plaintiffs' Exhibit "H", emphasis in original.
"To insure effective communications among and between employees and various departments of the City, to prevent misunderstandings and to promote and enhance safe work practices, all work related and business communications during the work day shall be conducted in the English language with the exception of those circumstances where it is necessary or prudent to communicate with a citizen, business owner, organization or criminal suspect in his or her native language due to the person or entity's limited English language skills. The use of the English language during work hours and while engaged in City business includes face to face communication of work orders and directions as well as communications utilizing telephones, mobile telephones, cellular telephones, radios, computer or e-mail transmissions and all written forms of communication. If an employee or applicant for employment believes that he or she cannot understand communications due to limited English language skills, the employee is to discuss the situation with the department head and the Human Resources Director to determine what accommodation is required and feasible. This policy does not apply to strictly private communications between co-workers while they are on approved lunch hours or breaks or before or after work hours while the employees are still on City property if City property is not being used for the communication. Further, this policy does not apply to strictly private communication between an employee and a family member so long as the communications are limited in time and are not disruptive to the work environment. Employees are encouraged to be sensitive to the feelings of their fellow employees, including a possible feeling of exclusion if a co-worker cannot understand what is being said in his or her presence when a language other than English is being utilized."
Plaintiffs' Exhibit "L."
In their summary judgment briefs, the Defendants contend that the English-only policy was adopted to facilitate communications between City employees, to prevent employees who speak only English from feeling excluded, and to address potential safety concerns. It is undisputed that there was no written record of any communication problems, morale problems or safety problems resulting from the use of languages other than English prior to implementation of the policy. However, in his deposition, Defendant Willis cited an example of an employee who complained to him about the use of the Spanish language by his co-workers prior to the implementation of the policy, and explained that since the implementation of the policy, some of his other employees have expressed similar feelings. Furthermore, although city officials who were deposed could give no specific examples of safety problems resulting from the use of languages other than English, some of the Plaintiffs understood that employee safety was one reason for the adoption of the policy. (Deposition of Candy Richardson, Tr. pp. 22-23; Deposition of Michael Nettles, Tr. pp. 34-35; Deposition of T. L. Gramling, Tr. p. 26-27).
Defendant Willis testified that a street department employee identified as Roger Nash complained that he couldn't understand what was being said by two co-workers who were speaking Spanish. (Deposition of Holmes Willis, Tr. p. 14).
Mr. Willis testified:
"Q: Did — of your 13 employees, has anyone else verbalized that to you besides Roger Nash?
A: Well, they do now, sir; they did not then.
Q: Now they say it?
A: Now they —
Q: Now that you've adopted a policy?
A: They don't feel — yes, they feel safe, sir.
Q: Feel safe. Well, did they ever express not feeling safe before?
A: Well, because their supervisor was Hispanic, they didn't want any more work dumped on them.
Q: Okay. Did they ever express not feeling safe before . . . the adoption of this policy.
A: They didn't — to the point they didn't understand what was being said.
Q: Okay. Did they ever express that prior to the adoption of the policy?
A: They had mentioned it, but they wouldn't elaborate on it, sir, because they were — they just did not feel comfortable."
(Deposition of Holmes Willis, Tr. pp. 14-15).
In support of this contention, the Defendant City and Nettles cite the deposition of Lloyd Lopez, Tr. pp. 28-29, and the deposition of Ruben Rios, Tr. pp. 31-32. Mr. Lopez testified that his first understanding of the English-only policy was that it "had to do with safety." Mr. Rios testified that he was first told that for "safety purposes," bilingual employees should abstain from speaking in Spanish. Mr. Rios testified that a few weeks after the policy was adopted, it was explained to him that there were safety concerns involved with employees speaking Spanish on the city radio, and the dispatcher not understanding what was being said.
Mayor T. L. Gramling testified that to his knowledge, there had been no workplace incidents which prompted the English-only policy, and that no one had suffered an injury or a close call as a result of anyone speaking Spanish. Deposition of T. L. Gramling, Tr. pp. 26-27.
The Plaintiffs have offered evidence indicating that after the policy was implemented, employees were told that they could "no longer speak Spanish around anybody," even in a private telephone conversation with a spouse, if a non-Spanish speaker happened to walk by. The Defendants contend that after adopting the policy, city officials provided clarification to employees concerning the use of languages other than English. The Defendants point out that the policy, as written, "does not apply to strictly private communications between co-workers while they are on approved lunch hours or breaks or before or after work hours while the employees are still on City property if City property is not being used for the communication." Further, the policy does not apply to "private communication between an employee and a family member so long as the communications are limited in time and are not disruptive to the work environment." In addition, the policy permits employees to speak languages other than English "where it is necessary or prudent to communicate with a citizen, business owner, organization or criminal suspect in his or her native language." According to the Defendants, City officials explained to employees that, in addition to what was provided in the written policy, employees were permitted to speak a language other than English during their work hours and/or on City property if the only persons present were those who could understand the language being spoken. It is undisputed that, to date, no City employee has been disciplined for speaking Spanish in the presence of monolingual co-workers, or for any other alleged violation of the English-only policy. (Affidavit of Candy Richardson, par. 4).
Lloyd Lopez testified that he remembered being told that "the only time we could speak Spanish is when two of us are in a break room" alone, and then if any non-Hispanic entered the room they were to change their language. (Lopez deposition, Tr. pp. 29-30). Mr. Lopez further testified that he was told the prohibition on speaking Spanish applied even to private telephone conversations with his wife, if anybody happened to walk by. Id. Mr. Lopez acknowledged, however that he was advised that if he was alone in a truck with a Spanish-speaking co-worker, the two of them could speak Spanish. (Tr. pp. 95-96). Ruben Rios testified that he and other Hispanic employees spoke during their lunch hour when they were away from their work area. Mr. Rios testified that he was allowed to speak Spanish only with another Hispanic, and not around the shop during working hours. Mr. Rios understood that he could speak Spanish with his co-workers during breaks and lunch hours, "as long as there was another Hispanic person, . . . but away from other individuals." (Rios deposition, Tr. pp. 30-31). Tommy Sanchez testified that he initially was told that city employees were not allowed to speak Spanish at all, but then Candy Richardson explained to him that "that's not the way we meant it." (Deposition of Tommy Sanchez, Tr. p. 34).
It is undisputed that Hispanics are the only significant national origin minority employed by the City of Altus. (Richardson Deposition, Tr. p. 24). In practice, the only group of employees affected by the English-only policy are Hispanics. (Deposition of T. L. Gramling, Tr. pp. 16-17; Deposition of Michael Nettles, Tr. pp. 19-20; Deposition of Candy Richardson, Tr. p. 45).
A plaintiff alleging discrimination under Title VII may proceed under either of two theories of liability; disparate treatment or disparate impact. While a disparate treatment claim requires proof of discriminatory intent, intent is not a required element of proof in a disparate impact case. Coe v. Yellow Freight System, Inc., 646 F.2d 444, 450-451 (10th Cir. 1981); Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993), reh'g denied, 13 F.3d 296 (9th Cir. 1993), cert. denied, 512 U.S. 1228, 114S.Ct. 129 L.Ed.2d 849 (1994). A disparate impact claim may be based upon a challenge to a practice or policy that has a significant, adverse effect upon the terms, conditions or privileges of employment of a protected group. Garcia v. Spun Steak Co., supra; Coe v. Yellow Freight, supra; Smith v. Denver School Board, 41 F.3d 1516, 1994 WL 651978 (10th Cir. 1994); Drake v. City of Fort Collins, 927 F.2d 1156 (10th Cir. 1991). Business necessity is an affirmative defense to a disparate impact claim, and must be proved by the employer. Coe v. Yellow Freight, 646 F.2d at 448.
The Tenth Circuit has not addressed the issue of whether an English-only policy, in and of itself, constitutes a prima facie violation of Title VII, but the Equal Employment Opportunity Commission has promulgated a regulation which should be considered in analyzing such policies. See Sutton v. United Airlines, Inc., 130 F.3d 893, 899 n. 3 (10th Cir. 1997) (EEOC's regulatory definitions are normally entitled to deference unless found to be "arbitrary, capricious, or manifestly contrary to the statute."), Aff'd, 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). The EEOC regulation, codified at 29 C.F.R. § 1607, provides that an employer's English-only policy applied "at all times in the workplace" is presumed to be a "burdensome term and condition of employment" which disadvantages an individual's employment opportunities on the basis of national origin in violation of Title VII. 29 C.F.R. § 1606.7(a). Under the same regulation, a policy requiring that employees speak only in English at "certain times" is permissible, provided that the employer can show that the rule is "justified by business necessity." 29 C.F.R. § 1606.7(b).
29 C.F.R. § 1606.7 provides, in pertinent part:
Speak-English-only rules.
(a) When Applied at all Times. A rule requiring employees to speak only English at all times in the workplace is a burdensome term and condition of employment. The primary language of an individual is often an essential national origin characteristic. Prohibiting employees at all times, in the workplace, from speaking their primary language or the language they speak most comfortably, disadvantages an individual's employment opportunities on the basis of national origin. It may also create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment. Therefore, the Commission will presume that such a rule violates Title VII and closely scrutinize it.
(b) When Applied Only at Certain Times. An employer may have a rule requiring that employees speak only in English at certain times where the employer can show that the rule is justified by business necessity."
The applicability of the EEOC regulation was addressed at length by the Ninth Circuit in Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993), reh'g denied, 13 F.3d 296 (9th Cir. 1993); cert. denied, 512 U.S. 1228, 114 S.Ct. 2726, 129 L.Ed.2d 849 (1994). The court in Spun Steak held that employees who spoke both Spanish and English failed to show that their employer's requirement that bilingual workers speak only English while on the job had significant, adverse effects on the terms, conditions or privileges of their employment, so as to create a prima facie case under Title VII. The court rejected the plaintiffs' argument that denying them the opportunity to speak Spanish on the job denies them the right to cultural expression, explaining that Title VII does not protect an employee's ability to express his or her cultural heritage in the workplace, and that employees must often sacrifice individual self-expression during working hours. The court in Spun Steak further rejected the plaintiffs' argument that the English-only policy had a disparate impact because it deprived them of a privilege given to native English speakers, i.e., the ability to converse on the job in the language with which they feel most comfortable. The court reasoned that bilingual employees can readily comply with the English-only rule and still enjoy the privilege of speaking on the job. Spun Steak, 998 F.2d at 1487. The court explained that Title VII is not meant to protect against rules that merely inconvenience some employees, even if the inconvenience falls regularly on a protected class. Rather, Title VII protects against only those policies that have a significant impact.
The policy at issue in Spun Steak specifically provided that "[d]uring lunch, breaks, and employees' own time, they are obviously free to speak Spanish if they wish." At the same time, the employer adopted a policy forbidding offensive racial, sexual or personal remarks of any kind. 998 F.2d at 1483.
The Ninth Circuit in Spun Steak further held that the question of whether an Hispanic employee who spoke no English was adversely affected by the English-only rule was a genuine factual dispute for which summary judgment was not proper.
The court in Spun Steak rejected the EEOC guideline, explaining that although it "[did] not reject the English-only rule Guideline lightly," it would not defer to an administrative construction of Title VII which was not supported by the statute. Spun Steak, 988 F.2d 1480, 1489-1490. The court reasoned that in enacting Title VII, Congress intended to strike a balance in preventing discrimination and preserving the independence of the employer. In striking that balance, the Supreme Court has held that a plaintiff in a disparate impact case must prove that the challenged policy or practice has a discriminatory effect before the burden shifts to the employer. Spun Steak, 998 F.2d at 1490. The court found that the EEOC guideline at issue contravenes that policy by presuming that an English-only rule has a disparate impact in the absence of proof. Id. Thus, the Ninth Circuit reversed the trial court's order granting summary judgment in favor of the plaintiffs.14 Because the bilingual employees failed to make a prima facie case of disparate impact discrimination, the court did not consider the business justifications offered for the policy as applied to them. Id.
Most of the courts addressing the issue have reached a similar result, holding that requiring bilingual employees to speak English in the workplace does not, of itself, support a disparate impact claim under Title VII. See, e.g., Olivarez v. Centura Health Corp., 203 F. Supp.2d 1218 (D. Colo. 2002) (Security officer at a residential care facility for the elderly, who was fluent in English, failed to show how a policy requiring that English be spoken in front of residents resulted in a job detriment to him); Cosme v. The Salvation Army, 284 F. Supp.2d 229 (D. Mass. 2003) (Employer's English-only rule did not necessarily violate 29 C.F.R. § 1606.7; furthermore, violation of the regulation did not, of itself, support an independent cause of action for national origin discrimination); Kania v. Archdiocese of Philadelphia, F. Supp.2d 730 (E. D. Pa. 1998) (Upholding church's English-only policy against challenge by bilingual employee); Long v. First Union Corporation of Virginia, 894 F. Supp. 933 (E. D. Va. 1995) (Employees do not meet their burden of proving a prima facie case of disparate impact discrimination under Title VII merely by proving the existence of an English-only policy in the workplace), aff'd, 86 F.3d 1151 (4th Cir. 1996); Gonzales v. The Salvation Army, 1991 WL 11009376 (M. D. Fla. 1991), aff'd, 985 F.2d 5788 (11th Cir. 1993), cert. denied, 508 U.S. 910, 113 S.Ct. 2342, 124 L.Ed.2d 252 (1993) (Enforcement of an English-only rule on an employer's premises under circumstances where co-workers are working or customers can overhear conversations is not a violation of Title VII). See also Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980), reh'g denied, 625 F.2d 264 (5th Cir. 1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 923, 66 L.Ed.2d 842 (1981) (Employer's rule prohibiting bilingual employees from speaking anything but English in the public areas while on the job did not discriminate on the basis or national origin, where the rule was confined to the workplace, and to work hours, and did not apply to conversations during breaks or other free time); Tran v. Standard Motor Products, Inc., 10 F. Supp.2d 1199 (D. Kan. 1998) (Employer's English-only policy did not constitute a hostile work environment in violation of either Title VII or Section 1981).
The Ninth Circuit in Spun Steak subsequently rejected a suggestion for rehearing en banc. See Garcia v. Spun Steak Co., 13 F.3d 296 (9th Cir. 1993).
A minority of other courts has taken a contrary view, finding English-only rules to be in violation of Title VII. See, e.g., Equal Employment Opportunity Commission v. Synchro-Start Products, Inc., 29 F. Supp.2d 911 (N.D. Ill. 1999); Equal Employment Opportunity Commission v. Premier Operator Services, Inc., 113 F. Supp.2d 1066 (N.D. Tex. 2000). The Court finds the reasoning of the Ninth Circuit in Spun Steak to be more persuasive.
It is undisputed that each of the Plaintiffs in this case is bilingual, i.e., fluent in English as well as Spanish. By its terms, the City of Altus' English-only policy applies to all "work related and business communications during the work day," including "face to face communication of work orders and directions," as well as communications using telephones, radios, computers, and written communications. However, contrary to the Plaintiffs' suggestion, the policy permits employees to converse in their chosen language during private conversations while on breaks and before and after working hours, and during conversations with family members.
The policy specifically excludes from its English-only mandate "strictly private communications between co-workers" while on breaks and lunch hours, before and after work hours, as well as private communications between employees and family members.
As the Plaintiffs point out, courts generally give deference to official administrative guidelines and regulations, Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), Chevron U.S. A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), reh'g denied, 468 U.S. 1227, 105 S.Ct. 28, 82 L.Ed.2d 921 (1984). However, that deference must have limits, such as where the application of the guideline would be inconsistent with an obvious congressional intent. Courts need not defer to an administrative construction of a statute which exceeds the authority of the statute it purports to interpret. Espinoza v. Farha Manufacturing Co., 414 U.S. 86, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973). The Supreme Court in Chevron, supra, applied a two-part test for determining whether an agency regulation is entitled to deference. First, the court must determine whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter. If the statute is silent or ambiguous with respect to the specific issue, the court must determine whether the agency's answer is based upon a permissible construction of the statute. 467 U.S. at 842-843.
The Plaintiffs argue that deference to the EEOC regulation is required because Congress has not spoken on the issue of the validity of English-only policies. While Congress may not have spoken on that question, Congress has spoken on the precise question of the burden of proof in Title VII disparate impact cases. Title 42 U.S.C. § 2000e-2(k)(1)(A) provides that a disparate impact claim is established only if a complaining party demonstrates that the employer's use of a particular employment practice causes a disparate impact on the basis of race or national origin, and the respondent fails to demonstrate that the practice is job-related for the position in question and consistent with business necessity. The Court agrees with the Ninth Circuit view that Section 1606.7 contravenes Congressional intent as expressed in Title VII, insofar as it establishes a presumption that English-only policies have a disparate impact on minority employees in the absence of proof. Spun Steak, 998 F.2d at 1490. As in Spun Steak, the Plaintiffs have not shown that requiring them to use the English language in the workplace imposed significant, adverse effects on the terms, conditions or privileges of their employment, so as to create a prima facie case of disparate impact discrimination under Title VII. Accord, Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993), reh'g denied, 13 F.3d 296 (9th Cir. 1993), cert. denied, 512 U.S. 1228, 114 S.Ct. 2726, 129 L.Ed.2d 849 (1994).
Title 42 U.S.C. § 2000e (k)(1)(A) provides, in pertinent part:
"An unlawful employment practice based on disparate impact is established under this subchapter only if —
(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity . . ."
The Plaintiffs next argue that the Ninth Circuit's holding in Spun Steak has been superseded by the Civil Rights Act of 1991. This argument is clearly without merit. Spun Steak was decided in 1993, after the Civil Rights Act of 1991, and its holding that the mere existence of an English-only policy did not establish a prima facie case of disparate impact without proof of such impact, is consistent with the Civil Rights Act of 1991, which requires a plaintiff to prove that the challenged employment practice causes a disparate impact on the basis of the plaintiff's protected status. The 1991 Act does not alter the plaintiff's burden to establish that the practice imposes significant, adverse effects on the terms, conditions or privileges of his or her employment.
In the 1991 Act, Congress effectively overruled that portion of Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989) that lessened an employer's burden once a plaintiff articulates a prima facie case of disparate impact. The 1991 Act codified the higher burden adopted in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the burden of production and persuasion.
The Plaintiffs contend that the continued validity of the Spun Steak decision is "questionable" in light of Yniguez v. Arizonans for Official English, 69 F.3d 920, 947 (9th Cir. 1995), vacated as moot, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). In Yniguez, the plaintiffs challenged on First Amendment grounds an amendment to the Arizona state constitution which dictated that all government officials and employees during the performance of government business "shall act in English and no other language." Yniguez, which did not include Title VII claims, did not overrule or cast doubt upon Spun Steak.
In their brief in support of their motion for partial summary judgment, the Plaintiffs argue that the Tenth Circuit "appears to have implicitly accepted" Section 1606.7 as valid, citing Marquez v. Baker Process, Inc., 42 Fed. Appx. 272, 279 (10th Cir. 2002). In Marquez, the Tenth Circuit held that an employee was not discriminated against by his employer's rule forbidding him from speaking a Spanish word which was understood as a profanity. Although the court in Marquez cited Section 1606.7, it did not analyze the validity of that regulation in light of the express language of Title VII.
The Plaintiffs also argue that the City's English-only policy is overly broad. The Plaintiffs point out that although they are allowed to speak Spanish on their own time, i.e., during breaks, lunch hours, and before and after work, they are prohibited from speaking Spanish at those times if non-Spanish speakers are present. Although the City's policy may be slightly broader than that described in Spun Steak, which allowed employees to speak Spanish on their own time regardless of who was present, the Court finds that the policy has not shown to be overly broad. The requirement that employees speak English in the workplace, including break areas, when monolingual co-workers are present is consistent with the City's stated business justifications of facilitating communications between employees and preventing certain groups of employees from feeling excluded by others. Accord, Kania v. Archdiocese of Philadelphia, 14 F. Supp.2d 730 (E. D. Pa. 1998) (Approving English-only policy which applied at all times during business hours, including breaks).
The Plaintiffs further contend that the City has not offered sufficient evidence of business justification for the English-only policy. Because the Plaintiffs have not established a prima facie case of disparate impact by showing that they suffered such an adverse effect on the terms and conditions of their employment, the burden does not shift to the Defendants to proffer and prove a legitimate business justification. Garcia v. Spun Steak, supra.
The applicable EEOC regulation, 29 C.F.R. § 1606.7, recognizes two forms of English-only rules. Section 1606.7(a) governs English-only rules which are applied at all times in the workplace, and "presumes" that such a rule violates Title VII. Section 1606.7(b) governs English-only rules which are applied only at certain times, and provides that such rules are permissible "where the employer can show that the rule is justified by business necessity."
Alternatively, the Court finds that the Defendants have offered sufficient proof of business justification. The Defendants have offered evidence that city officials had received complaints that some employees could not understand what was being said on the City's radio frequency because other employees were speaking Spanish. Further, the Defendants have shown that city officials received complaints from non-Spanish speaking employees who felt uncomfortable when their co-workers spoke Spanish in front of them. Thus, the Defendants have met any burden they may have to demonstrate that the City's English-only policy was supported by an adequate business justification. Accord, Tran v. Standard Motor Products, Inc., 10 F. Supp.2d 1199, 1210 (D. Kan. 1998) (Employer's stated reasons, i.e., to insure that employees and supervisors could understand each other during meetings, to prevent injuries through effective communications in production areas, and to prevent non-Vietnamese employees from feeling that they were being talked about by Vietnamese employees, were "legitimate business reasons" for its English-only policy).
The City's human resources director, Candy Richardson, testified on deposition that one of the reasons for the adoption of the policy was employee morale. (Deposition of Candy Richardson, Tr. pp. 43-48). The Plaintiffs point out that the Defendants have offered evidence of only one employee who complained to Defendant Willis about being "left out" of conversations because he couldn't understand Spanish. (Deposition of Holmes Willis, Tr. pp. 14-16). However, Defendant Willis further testified that after the adoption of the policy, other non-Spanish speaking employees came forward and told him that they had also felt left out of conversations. Id.
The Defendants also contend that the policy is justified by safety concerns. The Plaintiffs point out that the Defendants have offered no evidence of any accidents or near-accidents resulting from the use of the Spanish language, and that the policy is not limited to emergency communications. However, it does not seem necessary that the City await an accident before acting.
III. Disparate Treatment/Retaliation Claims.
As an alternative to their "disparate impact" theory, the Plaintiffs argue that there is evidence of discriminatory intent on the part of the Defendants, which will support a claim for disparate treatment or retaliation in violation of Title VII and Section 1981. (Plaintiffs' response brief, p. 24). The Plaintiffs offer evidence that the City's English-only policy was adopted following complaints of discrimination by Hispanic employees. The Plaintiffs' evidence shows that Leticia Sanchez filed a charge of discrimination with the EEOC, alleging that she was denied a promotion on October 17, 2000, based on her national origin. On September 27, 2001, the EEOC issued its determination, finding that there was "reasonable cause to believe" that the City of Altus violated Title VII by denying Ms. Sanchez a promotion because of her national origin. (Plaintiffs' Exhibits D and E). The mere fact that the City's English-only policy was adopted subsequent to Leticia Sanchez's EEOC charge complaining of the City's failure to promote does not support an inference of retaliatory motive, where Ms. Sanchez's EEOC charge preceded the adoption of the policy by almost two years. Hysten v. Burlington Northern and Santa Fe Railway Co., 44 Fed. Appx. 411 (10th Cir. 2002) (Temporal proximity between plaintiff's prior discrimination suit and his discharge did not permit inference that proffered reasons for discharge were pretext to retaliate for filing of prior suit; more than a year had passed between filing and plaintiff's discharge); Hysten v. Burlington Northern Santa Fe Railway Co., 296 F.3d 1177, 1184 (10th Cir. 2002) (Unless the adverse employment decision is very closely connected in time to the protected activity, the plaintiff must rely on additional evidence beyond temporal proximity to establish causation). All of the other EEOC charges mentioned by the Plaintiffs in their response brief were filed after the City of Altus had formally adopted the English-only policy, and thus cannot be said to be a motivating factor for the adoption of the policy. (Defendants' Exhibits G, H, I, J, L, M and N).
The Plaintiffs rely heavily upon Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), for the proposition that basing peremptory challenges on Spanish proficiency results in the disproportionate exclusion of members of the Hispanic race. In Hernandez, supra, a prosecutor exercised peremptory challenges to strike two Spanish-speaking, Hispanic prospective jurors from a criminal trial. The Supreme Court held that the prosecutor had offered a sufficient race-neutral explanation for striking the two prospective jurors, where the prosecutor explained that their specific responses and demeanor during voir dire caused him to doubt their ability to defer to the official translation of Spanish-language testimony. The Court finds nothing in Hernandez which supports the Plaintiffs' Title VII claim here.
The Plaintiffs argue that there was a close temporal proximity between an internal complaint about a "departmental English-only policy" in the street department, and the formal adoption of a city-wide English-only policy, citing the June 18, 2002 letter from Plaintiffs Tommy Sanchez, Ruben Rios and Lloyd Lopez to Defendant Michael Nettles. (Plaintiffs' response brief, p. 27). The Plaintiffs' characterization of the June 18, 2002 letter as complaining of a "departmental English-only policy" is somewhat inaccurate. The letter not only complains of employees in the Street Department being asked to speak English, it also expresses concern that a city-wide English-only policy was under consideration at the time it was written. The Plaintiffs' contention that the policy was adopted in retaliation for the June 18, 2002 letter is not supported by the evidence.
The June 18, 2002 letter reads, in pertinent part:
"On Friday, June 13, 2002, I was informed by my subordinates Lloyd Lopez and Ruben Rios that Mr. Holmes Willis had informed them on Thursday, June 12, 2002 that there was a new City policy that did not allow Hispanics to speak Spanish to each other on the radio and at the Street Department. Lloyd and Ruben came to me confused and expressed their concern about this new policy. Because I was not aware of this policy I addressed Holmes about it. Holmes informed me that Mr. Michael Nettles, City Administrator came to the Street Department on Thursday, June 12, 2002 to inform him that the Spanish language being used among the Hispanics in the Street Department at the Department and on the City radio needed to stop. That it was making others feel uncomfortable. Mr. Willis had also indicated that you expressed that this was a problem throughout the City and that it was going to be stopped. Holmes said that the City Council would probably have to adopt this policy, thereby not allowing Hispanic employees to speak Spanish while on the job He expressed to me that the City is experiencing this " problem" at the Sanitation Department, Fleet Maintenance and other departments that have Spanish speaking individuals. . . .
If Mr. Willis was changing departmental work rules at the Street Department as outlined in Section 101.04, I have not received the work rule or regulation in writing in accordance to this section. Mr. Willis did not indicate that this is what he was doing. He strongly emphasized that he was relaying an Administrative policy."
Plaintiffs' Exhibit "H," emphasis in original.
The June 18, 2002 letter also complained that Defendant Willis had instructed Mr. Sanchez not to use his City-owned vehicle during the lunch hour. (Plaintiffs' Exhibit H). Because the policy was clearly under consideration at the time the letter was written, it may not be inferred that the adoption of the policy was in retaliation for the complaint concerning the use of the vehicle.
The other internal complaints and EEOC charges mentioned by the Plaintiff are those challenging the adoption of the policy, and were made either after the English-only policy was announced, or after it was formally adopted by the City. Clearly the Plaintiffs have not shown the requisite causal connection between these complaints and the adoption of the policy. See Aquilino v. University of Kansas, 268 F.3d 930, 933 (10th Cir. 2001) (A plaintiff asserting a Title VII retaliation claim must show: 1) that he or she engaged in protected activity; 2) that the defendant took an adverse employment action against him or her; and 3) that there exists a causal connection between the protected activity and the adverse action). The Plaintiffs' evidence does not support the inference that the Defendants implemented the English-only policy in retaliation for their internal or administrative complaints. Nor have the Plaintiffs shown that the adoption of the English-only policy constitutes an adverse employment action. As set forth in the preceding section, the English-only policy has not been shown to have a substantial, adverse effect on the terms and conditions of their employment.
The Court further notes that the Plaintiffs, who are Hispanic, are not being treated differently from employees of other races or nationalities with regard to the English-only rule. The rule, on its face, requires all City employees to use the English language in conducting City business. The Plaintiffs offer no evidence that the English-only policy has been enforced in a discriminatory manner, as in Long v. First Union Corp., 894 F. Supp. 933 (E. D. Va. 1995), aff' d, 86 F.3d 1151 (4th Cir. 1996) (Addressing an English-only rule in a disparate treatment context, considering only whether the rule was discriminatorily enforced, not whether the very existence of the rule created discrimination based on national origin). The Defendants are entitled to summary judgment on the Plaintiffs' Title VII claims insofar as they are based on a theory of intentional discrimination in the form of disparate treatment, or upon a theory of retaliation for prior complaints of discrimination.
The Plaintiffs' claim that the English-only policy has a disparate impact on them because of their nationality is addressed in the preceding section.
The Plaintiffs' contention that the English-only policy has a greater impact upon them than upon employees whose first language is English is addressed in the preceding section. Again, this evidence is not sufficient to support a Title VII claim on a disparate impact theory because the Plaintiffs have not shown that the policy significantly affected the terms and conditions of their employment.
IV. Hostile Work Environment Claims.
Defendants City of Altus and Michael Nettles next seek summary judgment on the Plaintiffs' hostile work environment claims. To constitute actionable, racial harassment under Title VII, the challenged conduct must be sufficiently severe or pervasive as to alter the terms and conditions of the plaintiffs employment. Bolden v. PRC, Inc., 43 F.3d 545 (10th Cir. 1994), cert. denied, 516 U.S. 826, 116 So. Ct. 92, 133 L.Ed.2d 48 (1995); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986). The plaintiff must show both that conduct complained of was severe enough or pervasive enough to create an environment that a reasonable person would find to be hostile or abusive, and that the plaintiff subjectively perceived such conduct to be abusive. Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264 (10th Cir. 1998). The plaintiff must also show that the conduct stemmed from a racial or ethnic animus. Bolden, supra.The Plaintiffs allege, in their brief in response to the Defendants' summary judgment motions, that the City's English-only policy has resulted in a hostile work environment for Hispanic employees. (Plaintiffs' response brief, p. 9). The Plaintiffs contend that the policy has caused them to be the subject of racial and ethnic jokes, and has caused them "fear and uncertainty in their employment." (Plaintiffs' response brief, pp. 9-10). In support of this assertion, the Plaintiffs cite the deposition of Plaintiff Tommy Sanchez, who testified that for a period of time he was afraid that he would be overheard and be "reported" if he accidentally spoke in Spanish. Mr. Sanchez further testified that on one or more occasions, an unidentified Altus police officer teased or ridiculed him, reminding him that he was not allowed to speak Spanish. Mr. Sanchez testified that "some of the guys from the street department" would "poke fun" of the English-only policy, and that he "just tried to make light of it." Mr. Sanchez did not identify the street department employees involved, or explain how they "poked fun" of the English-only policy or the employees affected by it. (Tommy Sanchez Deposition, Tr. p. 64). Mr. Sanchez also testified that when he went to other departments, "they would bring it up constantly." Mr. Sanchez did not, however, identify the persons who brought up the English-only policy, or indicate what they said about the policy. Mr. Sanchez's broad statement that employees "constantly brought up" the topic of the English-only rule does not demonstrate that the comments were so objectively offensive in nature as to constitute harassment, or that the comments were motivated by his race or national origin. ( Id.). This evidence is not sufficient to raise a genuine issue of material fact in support of Mr. Sanchez's hostile work environment claim. Plaintiffs Danny V. Maldonado, Danny Alcorta, Tommy R. Sanchez, Lloyd Lopez, Carlos Ramirez, Adrian B. Alonzo, Linda Mutchler, Frank Maldonado and Freddie Perez have submitted affidavits, in which they each aver, in general terms, that they have been "teased and made the subject of jokes" because of the English-only policy, and that they are aware of other Hispanic employees being teased because of the policy. The affidavits do not include enough facts to support a finding that the "jokes" and "teasing" were so pervasive or severe as to support a hostile work environment claim.
Mr. Sanchez testified:
"A: During that period of time, you had to watch every step you taked. When I approached Mr. Lopez or Mr. Rios or any other Hispanic, I had to watch what I said; or if accidentally we would just naturally come out and start talking in Spanish, I would have to bite my tongue and make sure nobody was looking that was going to report me because it slipped out."
Deposition of Tommy Sanchez, Tr. p. 63.
Mr. Sanchez testified:
"A: The constant reminder that I have to be regulated to speak each time I went to the City of Altus, and people were t here, would pull up and laugh, start saying stuff in Spanish to us and said, They didn't tell us we couldn't stop. They just told you.'
Q: Who said that to you?
A: Other city employees that were not Hispanics.
Q: What were their races or their national origin?
A: They were white.
Q: And who were they?
A: They would just pull in a truck. We had one officer — I don't know which one, who it was. We was working on a corner, and he pulled up and he just said, `Don't let me hear you talk Spanish.'"
Tommy Sanchez Deposition, Tr. pp. 63-64.
The Court presumes, for purposes of this motion, that the affiant who identifies himself as "Dannan Maldonado" is the same individual identified in the Complaint as Plaintiff "Danny V. Maldonado."
The affidavits of Linda Mutchler, Dannan Maldonado, Daniel Alcorta, Frederick Perez, Carlos Ramirez, Adrian Alonzo, Lloyd Lopez, Frank Maldonado, and Tommy Sanchez are identical in substance. Each of the affidavits includes the following language:
"3. I have personally been teased and made subject of jokes directly because of the English-only policy.
4. I am aware of other of my Hispanic co-workers being teased and made the subject of jokes because of the English-only policy."
See Plaintiffs' Exhibits T, U, V, W, X, Y, Z, AA, CC. Plaintiffs Ruben D. Rios and Henry O'Florian Martinez did not submit affidavits. Leticia B. Sanchez, who is no longer a party to this action, submitted an affidavit which addresses other matters but does not allege that she or others have been the subject of teasing or jokes.
The Plaintiffs also point to evidence that Defendant Gramling was once quoted in a newspaper article as referring to the Spanish language as "garbage." This single comment is not sufficient to support a hostile work environment claim. Plaintiffs asserting a hostile work environment claim must demonstrate more than a few stray remarks, or "more than a few isolated incidents of racial enmity". Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994), cert. denied, 516 U.S. 826, 116 S.Ct. 92, 133 L.Ed.2d 48 (1995); Jones v. Barnhart, 349 F.3d 1260 (10th Cir. 1260).
In his deposition Mayor Gramling denied that he used the word "garbage." Mayor Gramling testified that he was misquoted in the newspaper article, and that he had used the word "garble" instead.
The Plaintiffs' evidence, viewed in its most favorable light, is not sufficient to raise a genuine issue of material fact in support of their hostile work environment claims. The Plaintiffs have not shown that the workplace was permeated with discriminatory intimidation, ridicule, and insult of such severity or pervasiveness as to alter the conditions of their employment and create an abusive working environment. Bolden supra. The Defendants are entitled to summary judgment on the Plaintiffs' hostile work environment claims.
V. Claims Related to Discipline, Promotions and Use of City Vehicle.
Defendants City of Altus and Nettles seek summary judgment on Count II of the Amended Complaint, insofar as it alleges that the Plaintiffs have been subjected to discipline, and have been denied promotions, pay and the use of a city vehicle. The Amended Complaint gives no indication as to when each Plaintiff was subjected to discipline, denied promotions, denied pay and denied the use of a city vehicle, and no explanation as to how such actions were discriminatory or retaliatory, or otherwise unlawful. The Plaintiffs' response brief does not address these claims. Therefore, the Court will regard them as conceded.
In fact, Count II of the Amended Complaint alleges, at Paragraph 24: "Each of the Defendants has been subjected to slurs, discipline, denials of promotions, pay, use of vehicles and other discrimination and harassment in their treatment and in the terms and conditions of their employment apart from the English language only policy." The Court presumes the Plaintiffs mean to allege that the Plaintiffs have been subjected to slurs, discipline, denials of promotions, pay and use of a city vehicle.
The Plaintiffs have attached to their response brief a copy of an EEOC charge filed by Leticia Sanchez, in which she alleges that she was denied a promotion on the basis of her national origin. (Plaintiffs' Exhibit "D"). However, this EEOC charge has been the subject of a separate suit brought by Ms. Sanchez, who is no longer a party to this action. The Plaintiffs have also attached to their response brief a copy of a letter addressed to Defendant Nettles, in which Plaintiff Tommy Sanchez complains about being asked to discontinue using the City-owned vehicle assigned to him for personal use during the lunch hour. However, in their response brief, the Plaintiffs do not present any argument in favor of a Title VII claim related to the use of the vehicle on behalf of Mr. Sanchez; thus, the Court regards any such claim as conceded.
VI. Title VI Claims.
The Defendants seek summary judgment on the Plaintiffs' claims under Title VI of the Civil Rights Act of 1964, Title 42 U.S.C. § 2000d ("Title VI"). As the Defendants point out, Title VI provides a private cause of action only for intentional, disparate treatment, and not for claims of discrimination based on disparate impact. Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (There is no private right of action to enforce disparate-impact regulations promulgated under Title VI of Civil Rights Act of 1964). The Plaintiffs have not shown that the English-only policy subjects them to intentional, disparate treatment. Thus, the Plaintiffs' Title VI claims fail.VII. Statute of Limitations — Section 1983 Claims.
Defendants City of Altus and Michael Nettles argue that certain claims brought by the Plaintiffs are barred by the applicable statutes of limitations. The City and Nettles contend that the statute of limitations for the Plaintiffs' claims brought under Title 42 U.S.C. § 1983 is two years, and that any Section 1983 claims which may be based on actions occurring outside the two-year limitation period are barred, citing Garcia v. Wilson, 731 F.2d 640, 642 (10th Cir. 1984), Pittsburg County Rural Water District No. 7 v. City of McAlester, 346 F.3d 1260 (10th Cir. 2003) (applying Oklahoma's two-year limitation period for personal injury claims to water association's Section 1983 claim against city), reh'g denied, ___ F.3d ___, 2004 WL 234915 (10th Cir. 2004).The Plaintiffs' Section 1983 claims challenge the City's English-only policy, which was adopted on July 18, 2002. The Plaintiffs commenced this suit with the filing of their original Complaint on March 11, 2003, well within the two-year limitation period. Defendants City of Altus and Nettles have failed to identify any Section 1983 claims which would be barred by the two-year statute of limitations, and are not entitled to summary judgment on this ground. Accord, Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 982 (10th Cir. 2002) (Summary judgment may not be granted until movant meets its burden of production by identifying specific facts entitling it to judgment as a matter of law).
VIII. Section 1983 First Amendment Claims.
The Defendants also move for summary judgment on the Plaintiffs' First Amendment claims. As public employees, the Plaintiffs do not enjoy an unrestricted right to exercise free speech in their workplace. Although individuals do not entirely relinquish their First Amendment rights by accepting public employment, the City, as an employer, does have interests in regulating the speech of its employees which significantly exceed its interests in regulating the speech of the citizenry in general. Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987), reh'g denied, 483 U.S. 1056, 108 S.Ct. 31, 97 L.Ed.2d 819 (1987). As an employer, the City may impose restraints on the job-related speech of its employees which would plainly be unconstitutional if applied to the public at large. Id
In public employee cases, whether they involve actual or symbolic speech, the proper analysis is that established in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) and Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). See Wilson v. City of Littleton, Colorado, 732 F.2d 765 (10th Cir. 1984). First, the Court must consider whether the speech, actual or symbolic, relates to a matter of public concern. Speech which does not relate to a matter of public concern is not protected by the First Amendment. Connick, supra. If the speech in question does relate to a matter of public concern, the Court must balance the interests of the employee, as a citizen, in commenting on matters of public concern, against the interests of the governmental entity, as an employer, in promoting the efficiency of the public services it performs. Pickering supra, 391 U.S. at 568, 88 S.Ct. at 1734-1735. In this instance, the City of Altus identifies its interests as promoting harmony among co-workers by ensuring that they understand each other, improving the efficient delivery of services to the public by establishing effective coordination among departments and employees, and promoting workplace safety.
As the Defendants point out, under the test adopted in Pickering, the Plaintiffs must establish the following elements in order to establish a First Amendment freedom of speech claim: 1) That the speech in question touched upon a matter of public concern; 2) That their interest in making the speech in question outweighed the interests of the Defendant, as a governmental employer in the effective and efficient fulfillment of its responsibilities to the public; 3) That the protected speech was a motivating factor in an employment decision; and 4) That the Defendant City would not have reached the same decision in the absence of the protected speech. Pickering v. Board of Education of Township High School District No. 205, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).
The Defendants argue that the Plaintiffs' freedom of speech claim fails because it focuses not upon the content of the Plaintiffs' speech, but upon the language the Plaintiffs prefer to use. The Plaintiffs argue that speaking their native language communicates their ethnic pride, in a manner comparable to wearing t-shirts proclaiming "Proud to be Hispanic." (Plaintiffs' Response brief, pp. 30-31). While this may be true, the Plaintiffs have not shown that their pride in their Hispanic heritage, or in their fluency in the Spanish language, is a matter of concern to the general public so as to merit First Amendment protection. Even if the Plaintiffs' ethnic pride were a matter of public concern, the Plaintiffs have nevertheless failed to show that their interest in expressing such pride by speaking Spanish while conducting City business outweighs the City's interests in facilitating communication among its employees, and in the efficient fulfillment of its responsibilities to the public. Pickering v. Board of Education, supra.
In addition, the Plaintiffs have failed to show that they suffered an adverse employment decision, such as termination, suspension or other disciplinary measures, as a result of their allegedly protected speech. Nor have the Plaintiffs shown that the English-only policy itself constitutes an adverse employment decision, in that the adoption of the policy did not significantly alter the terms and conditions of their employment, as explained above. For these reasons, the Defendants are entitled to summary judgment on the Plaintiffs' First Amendment speech claims.
IX. Section 1983 Liberty Interest Claims.
The Plaintiffs alternatively argue, in their response brief, that the English-only rule unlawfully impairs their Fourteenth Amendment liberty interests, citing Massie v. Henry, 455 F.2d 779 (4th Cir. 1972); Hodge v. Lynd, 88 F. Supp.2d 1234 (D. N.M. 2000); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Farrington v. Tokushige, 273 U.S. 284, 47 S.Ct. 406, 71 L.Ed. 646 (1927). None of these cases support the Plaintiffs' claim of a liberty interest, as public employees, in being allowed to speak a particular language in the workplace.
Courts have recognized the significant distinction between a governmental entity regulating the dress and appearance of its employees and regulating members of the public at large. Zalewska v. County of Sullivan, New York, 316 F.3d 314 (2nd Cir. 2003); East Hartford Education Association v. Board of Education of Town of East Hartford, 562 F.2d 838 (2nd Cir. 1977). See also Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976) (Upholding a police department's hair and grooming regulation, noting the "wide latitude" accorded to governments in managing their internal affairs). Simply put, the City may require its employees to comply with rules or regulations which it could not impose upon the general public. The Court concludes that the limited, English-only policy adopted by the City of Altus is within the wide latitude accorded to the City as an employer to manage its employees. The Plaintiffs have not shown that the City's English-only policy deprives them of a liberty interest, and the Defendants are entitled to summary judgment on that claim.
X. Section 1983 Equal Protection Claims.
The Defendants also seek summary judgment on the Plaintiffs' Fourteenth Amendment equal protection claim. Defendants City of Altus and Nettles argue that the City's English-only policy is narrowly tailored to address the City's legitimate needs for communication among its employees and in promoting harmony, safety and efficiency in the workplace, and thus does not violate the Fourteenth Amendment's guarantee of equal protection. Defendant Willis argues that the Plaintiffs' equal protection claims fail because the Plaintiffs have not been subjected to an adverse employment action. The Plaintiffs have failed to respond to the Defendants' arguments concerning their equal protection claim, and the Court will treat it as conceded.
XL Qualified Immunity — Section 1983 Claims.
Defendants Michael Nettles and Holmes Willis seek summary judgment, in their individual capacities, on the Plaintiffs' Title 42 U.S.C. § 1983 claims on the ground of qualified immunity. For the reasons explained more fully above, the Plaintiffs have not shown that the conduct of the individual Defendants in approving or recommending the English-only policy violates their First Amendment right to free speech, or their Fourteenth Amendment liberty interest or equal protection rights. Any right the Plaintiffs may have to speak Spanish in the workplace is not a "clearly established statutory or constitutional [right] of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). See also Greene v. Barrett, 174 F.3d 1136 (10th Cir. 1999). Accordingly, Defendants Nettles and Willis, in their individual capacities, are entitled to summary judgment on the Plaintiffs' Section 1983 claims on the alternative ground of qualified immunity.
XII. Section 1981 Claims.
Defendant Holmes Willis moves for summary judgment on the Plaintiffs' Title 42 U.S.C. § 1981 claims on the ground that Title 42 U.S.C. § 1983 provides the exclusive remedy for claims against a state actor under Section 1981, citing Jett v. Dallas Independent School District, 491 U.S. 701, 735, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989). In light of the amendments to Section 1981 made by the Civil Rights Act of 1991, some courts have concluded that Jett no longer applies. See Burns v. Board of County Commissioners of Jackson County, 330 F.3d 1275, 1288 n. 10 (10th Cir. 2003) (Recognizing a circuit split as to whether the 1991 amendments to Section 1981 overruled Jett, but not deciding the question because the plaintiff had failed to show that his constitutional rights were violated, and thus had no claim under either Section 1981 or Section 1983). In this case, however, the Plaintiffs have not shown that the English-only policy intentionally discriminated against them on the basis of race, or substantially altered the terms and conditions of their employment with the City. The same facts which preclude relief under Title VII also preclude the Plaintiffs' Section 1981 claims. Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980), reh'g denied, 625 F.2d 1016 (5th Cir. 1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 923, 66 L.Ed.2d 842 (1981); Long v. First Union Corp. of Virginia, 894 F. Supp. 933 (E. D. Va. 1995) (Hispanic employees' claim that employer's English-only policy violated § 1981 failed as matter of law due to employees' failure to establish that the policy violated Title VII), aff'd, 86 F.3d 1151 (4th Cir. 1996). Accordingly, the Defendants are entitled to summary judgment on the Plaintiffs' Section 1981 claims.
In Jett, supra, the Supreme Court held that a municipality may not be held liable for its employees' violations of § 1981 under a theory of respondeat superior; and that a suit under § 1983 provides the exclusive federal damages remedy for the violation of rights guaranteed by § 1981 when the alleged violation is by a state actor.
XIII. Individual Liability Under Title VII and Title VI.
Defendant Holmes Willis seeks summary judgment on the Plaintiffs' Title VII and Title VI claims, arguing that he cannot be sued personally under these statutes. See Haynes v. Williams, 88 F.3d 898 (10th Cir. 1996) (Supervisor in Department of Corrections could not be personally liable under Title VII for sexual harassment). The Plaintiffs concede that Defendant Willis cannot be sued individually under Title VII or Title VI. (Plaintiffs' Response Brief, p. 10). Defendant Willis is, therefore, entitled to summary judgment insofar as the Plaintiffs' Title VII and Title VI claims are directed against him.
XIV. Right to Privacy and Freedom of Association Claims.
Defendant Willis next seeks summary judgment on the Plaintiff's right to privacy and freedom of association claims. The Plaintiffs do not address these claims either in their response brief, or in their brief in support of partial summary judgment. The Court will regard these claims as conceded.