Labor & Employment Law Daily Wrap Up, DISCRIMINATION—N.D. Cal.: Hiring for a temporary, not permanent, position is not an adverse employment action, (Jan 9, 2025)

By Robert Margolis, J.D.

There was no evidence permanent positions were available when the employee applied.

A federal district court in California granted summary judgment to MUFG Bank, rejecting claims by a former temporary employee that the bank discriminated against him, a white male, by hiring him into a temporary position while permanent positions were staffed primarily with non-white and/or female employees. To the extent the employee was asserting a disparate treatment claim, the court rejected the argument that hiring into a temporary position can constitute an adverse employment action. As for any disparate impact claim he was asserting, the absence of statistical context for the employee’s assertion that most permanent employees are not white males was fatal to his claim (Bonazza v. MUFG Bank, Ltd., No. 23-cv-01161-JCS (N.D. Cal. Jan. 6, 2025)).

Temporary position. A former full-time employee who left his position in 2017, the employee sought employment again at the bank in 2022. At that time, he was told that only a temporary position was available. He applied for that position, received an offer, accepted it, and was hired. He accepted the temporary position because, in his words, he “had no leverage.” He did not apply for any permanent position at the bank, nor was he aware of such an available position. Nor was he aware of white males who have applied for permanent positions and not been hired.

Resignation. Some three months after he was hired as a temporary employee, he resigned his position to move to Hawaii. He filed a discrimination claim with the EEOC, received a right to sue letter, and sued the bank for employment discrimination based on race and sex under Title VII. The parties filed cross-motions for summary judgment.

Claims. The employee alleged that the bank discriminated against him by offering him only a temporary position based on his race and sex, as a white male. He asserted that many of the bank’s permanent employees were women and/or non-white. The court noted that the employee’s theory in the case “has been a moving target,” as it was unclear whether he was asserting a disparate treatment or disparate impact claim. The court thus addressed both theories in its decision.

Disparate treatment. Applying the McDonnell Douglas burden-shifting framework to the employee’s disparate treatment claim, the court found the claim lacking because the employee identified no cognizable adverse employment action, which is a necessary element of such a claim. The employee cited no authority, and the court found none, holding that hiring an individual for a temporary position constitutes an adverse employment action. And to the extent the employee’s disparate treatment theory was that the bank did not hire him for a permanent position, that failed as well because there was no evidence the bank was hiring for a permanent position or that he applied for one. In fact, he conceded that was the case.

Disparate impact. The employee’s disparate impact claim failed as well. To the extent the court could divine a disparate impact theory, it was that the bank has a policy or practice of hiring white males for temporary positions while preserving permanent positions for non-white and/or female individuals. But the employee presented no evidence to support the existence of such a policy or practice.

Again, he conceded he was unaware of any white males who applied for permanent positions and were not hired, and he himself did not apply for a permanent position. Nor was there statistical evidence in the record showing a breakdown of individuals who applied for temporary vs. permanent positions, let alone the outcomes of those applications. The employee provided LinkedIn pages from a small number of bank employees, most of whom were not white males. But absent any statistical context for that evidence, it raised no inference of disparate treatment, said the court.

The case is No. 23-cv-01161-JCS.

Judge: Spero, J.

Attorneys: Michael Alan Bonazza, II, pro se. Benjamin L. Webster (Littler Mendelson) for MUFG Bank, Ltd.

Companies: MUFG Bank, Ltd.

Cases: Discrimination RaceDiscrimination SexDiscrimination CaliforniaNews