Wallace Brown, Iii v. Department of Public Safety, S

FILED

JUL 29 2011

NOT FOR PUBLICATION MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WALLACE R. BROWN, III, No. 09-17234

Plaintiff - Appellant, D.C. No. 1:08-cv-00470-JMS-

LEK

v.

DEPARTMENT OF PUBLIC SAFETY, MEMORANDUM

STATE OF HAWAII,

Defendant - Appellee.

Appeal from the United States District Court for the District of Hawaii J. Michael Seabright, District Judge, Presiding

Argued and Submitted June 15, 2011* Honolulu, Hawaii

Before: ALARCÓN, WARDLAW, and N.R. SMITH, Circuit Judges.

Wallace R. Brown, III appeals from the district court’s order granting

summary judgment in favor of the State of Hawaii, Department of Public Safety

*This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. (the “Department”) on Brown’s claims of racial discrimination and retaliation

pursuant to Title VII of the Civil Rights Act of 1964 (codified at 42 U.S.C. §§

2000e-1 et seq). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

Brown filed formal charges of Title VII violations with…

MEMORANDUM

Wallace R. Brown, III appeals from the district court’s order granting summary judgment in favor of the State of Hawaii, Department of Public Safety (the “Department”) on Brown’s claims of racial discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964 (codified at 42 U.S.C. §§ 2000e-l et seq). We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm.

Brown filed formal charges of Title VII violations with the EEOC asserting racial discrimination based on the use of the term “Operation Mandingo” by a subordinate on March 28, 2007, and a retaliation claim based upon his removal from a temporary assigned position on May 8, 2008.

I

Brown failed to demonstrate that, in connection to the “Operation Mandingo” incident, he suffered an adverse employment action. See Davis v. Team Electric Co., 520 F.3d 1080, 1089 (9th Cir.2008) (To establish a prima facie case of disparate treatment, Brown must show that (1) he belongs to a protected class; (2) he was qualified for his position; (3) he was subjected to an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably). Although…

dissenting:

Nearly five months before the EEOC notified Brown of his right to sue in federal court, Brown’s counsel sent the Hawaii Civil Rights Commission a letter detailing fifty-two incidents where the Department of Public Safety failed to investigate complaints filed by Brown, while adequately investigating complaints filed by non-African American supervisors. Even though it is uncontested that the EEOC received a copy of this letter, the majority concludes that Brown did not exhaust his administrative remedies and that his counsel should have filed a third formal charge based on these additional incidents. Because the majority’s holding is contrary to the purpose of Title VU’s exhaustion requirement and our duty to construe Title VII charges liberally, I respectfully dissent.

As the majority itself notes, the purpose of Title VH’s administrative exhaustion requirement is to “afford[] the agency an opportunity to investigate the charge.” B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099 (9th Cir.2002). Despite the Supreme Court’s warning that “technicalities are particularly inappropriate in a statutory scheme [such as Title VII] in which laymen, unassisted by trained…