Teck's plan discriminates against Conitz and all non-Northwest Alaska Natives based on race. The Court should rule that any preference for an Alaska Native/NANA Shareholder is illegal under Title VII, Title 18 of the Alaska Statutes, and 42 U.S.C. §1981 and is a direct violation of 42 U.S.C. §2000e-2(a)(2). Conitz and others are segregated because of their race and national origin.

3 However in March 2009 after an extensive trial, the Federal Court found that a fire lieutenant's exam, given in 1998, while having a disparate impact on African American promotional candidates, was job related and consistent with business necessity. Thus, that exam was validated under Title 7 VII of the Civil Rights Act of 1964, 42 USC 2000e-2. M.O.C.H.A. SOCY INC. v City of Buffalo, 2009 WL 60489 (Western WDNY, March 9, 2009 Curtin, J.) That decision also rescinded an injunction en- The consent decree is properly referred to as a Final Decree and Order and was issued in the first Federal action.

V. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays: 1. That this court declare the actions complained of herein to be in violation of 29 U.S.C § 791, et seq., 42 U.S.C. §§ 2000e-2 & 3 §§ 12112 & 12203. 2.

-v- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT - Case No. 2:14-CV-02471-MCE Morgan v. Regents of Univ. of Cal., 88 Cal. App. 4th 52 (2000) ..............................................................43 Reno v. Baird, 1818 Cal. 4th 640 (1988) ........................................................................................... passim Trujillo v. North County Transit Dist., 63 Cal. App. 4th 280 (1998) ........................................................49 Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1248 (1994) .................................................................41 Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028 (2005) ..............................................................43, 44, 45 Statutes 42 U.S.C. § 2000e-3(a) ..............................................................................................................................44 42 U.S.C. § 2000e-2(a)(1)..........................................................................................................................23 Cal. Gov’t Code § 820.

Instead, if proven, the defense simply places a limit on the range of available remedies which the plaintiff —- who would have been fired anyway — can invoke. (White v. Baxter Healthcare Corp. (6th Cir. 2008) 533 F.3d 381, 397 [purpose and -52- effect of 42 U.S.C.§2000e-2(m) wasto eliminate the employer’s ability to escapeliability in Title VII mixed-motive cases”’].) In stark and inexplicable contrast, the complete liability defense approach taken by the appellate court in our case meansthat an employer whoprovesthe mixed-motive defense is exonerated from having done anything unlawful — no matter how muchdiscriminatory animus contributed to the decision.

While incentive pay varies by, among other things, product type and account size, this is no impediment to production-system status. Applying “different standards of compensation” is expressly authorized under §703(h), 42 U.S.C. §2000e-2(h), and in the context of production- based systems, it is particularly appropriate. Even the most basic commission programs vary payment percentages according to product or transaction, and Congress was not oblivious to this reality.

The Court determined that retaliation claims require that the plaintiff prove that the adverse employment action taken by the employer would not have occurred in the absence of the employee’s participation in the protected activity (opposition to employment discrimination or complaint of discrimination). The lesser “motivating factor” standard, still applies to status discrimination claims under 42 U.S.C. § 2000e-2 (i.e., race, color, religion, sex, national origin) even if other factors also motivated the unlawful employment practice. The Revenue Department asserts that the Plaintiff cannot prove the third-prong of his prima facie claim; because he has not alleged any facts which meet the plausibility test of Rule 8(a)(2), FRCP nor can he prove that he would not have been terminated for the reasons articulated by the Revenue Department during his probationary period as protecting the confidentiality of taxpayer information is a high priority within the Department.

Case 1:03-cv-06052-DLB Document 76 Filed 08/29/09 Page 23 of 73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 More specifically, the statute makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” Civil Rights Act of 1964, Section 703 (42 U.S.C. § 2000e-2(a) (2000)). With this broad prohibition, Title VII is the primary federal law regulating discrimination in the workplace.

See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79-80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). In determining whether an employee has been discriminated gainst “because of such individual's ... race,” 42 U.S.C. § 2000e-2(a)(1) the courts have consistently emphasized that the ultimate issue is the reasons for the individual plaintiff's treatment. Connecticut v. Teal, 457 U.S. 440, 453-54, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982).

1. Overview Of Disparate Impact The disparate impact analysis applied by courts today evolved out of employment discrimination cases brought under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2). In the first such case to reach the Supreme Court, Griggs v. Duke Power Co., 401 U.S. 424 (1971), the Court held that an employer could not require a high school education or the passing of a standardized intelligence test as a condition of employment where neither requirement was significantly related to successful job performance and where both requirements disqualified black candidates at a higher rate than whites.