Martha Rivera v. Nibco, Inc.

FILED

NOT FOR PUBLICATION MAR 29 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTHA RIVERA; et al., No. 09-15136

Plaintiffs - Appellants, D.C. No. 1:99-cv-06443-OWW-

SMS

v.

NIBCO, INC., an Indiana corporation, MEMORANDUM *

Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of California Oliver W. Wanger, District Judge, Presiding

Argued and Submitted February 23, 2010 Pasadena, California

Before: REINHARDT, SILER,** and HAWKINS, Circuit Judges.

Appellants Rivera, et. al (“Rivera”), twenty-three Hispanic and Southeast

Asian immigrant workers, brought suit against Nibco, their former employer,

alleging that they had been terminated on the basis of their national origin in

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge for the Sixth Circuit, sitting by designation. violation of Title VII of the Civil Rights Act of 1964. A…

MEMORANDUM **

Appellants Rivera, et. al (“Rivera”), twenty-three Hispanic and Southeast Asian immigrant workers, brought suit against Nibco, their former employer, alleging that they had been terminated on the basis of their national origin in violation of Title VII of the Civil Rights Act of 1964. A jury returned a verdict in Nibco’s favor. On appeal, Rivera contends that the district court erroneously denied their Batson challenge to Nibco’s use of three of its four peremptory strikes to remove Hispanic jurors. See Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). Because we conclude that, with respect to Juror “TG,” 1 the district court’s denial of Rivera’s Batson challenge was clearly erroneous, we reverse and remand for a new trial.

*759 I.

This appeal concerns Batson’s third step. At this step, the district court was obligated to “undertake a sensitive inquiry into such circumstantial and direct evidence of intent as may [have] be[en] available” to determine whether Nibco’s strikes were motivated by purposeful discrimination. Batson, 476 U.S. at 93 , 106 S.Ct. 1712 (internal quotation marks removed).

As an initial matter, we reject Nib-co’s…

dissenting:

I respectfully dissent from the majority. Even though the procedure in a Batson challenge seems to be a pitfall for the district courts, Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir.2006) (en banc), requires the district court to consider each explanation within the context of the record, regardless of whether relevant portions of the record are brought to its attention by the movant. Therefore, in light of Kesser , I concur with the majority in its denial of the motion by Nibco to strike appellants’ appendix and its granting the request to take judicial notice of the completed juror questionnaires as tendered by the appellants.

I part company with the majority with regard to its determination that the district court clearly erred in finding that the stated reasons by Nibco for striking Juror TG were not a pretext for intentional discrimination. As the majority states, the district court accepted three reasons for striking TG and did not address the two other reasons. Although Nibco’s counsel made a mistake when he claimed that TG’s sister had problems with discrimination, counsel apparently corrected the mistake when he said “or not.” The sister had not indicated…