Equal Employment Opportunity Commission v. Sears Roebuck & Co.

243 F.3d 846
CourtCourt of Appeals for the Fourth Circuit
DecidedMarch 16, 2001
Docket00-1507, 00-1509
StatusPublished
Cited by3 cases

This text of 243 F.3d 846 (Equal Employment Opportunity Commission v. Sears Roebuck & Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Equal Employment Opportunity Commission v. Sears Roebuck & Co., 243 F.3d 846 (4th Cir. 2001).

Opinions

Reversed and remanded by published opinion. Judge DIANA GRIBBON MOTZ wrote the majority opinion, in which Judge MICHAEL joined. Judge NIEMEYER wrote a dissenting opinion.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

The Equal Employment Opportunity Commission (EEOC) brought this Title VII action on behalf of intervenor Francisco Santana, asserting that Sears Roebuck & Co. discriminated against Santana on the basis of national origin when it refused to hire him as a loss prevention associate. The district court granted summary judgment to Sears; Santana and the EEOC now appeal. For the reasons that follow, we reverse.

I.

Santana, born in Mexico in 1960, has olive skin and speaks with an Hispanic accent. He moved to this country in 1971 and has since become a naturalized citizen of the United States. In 1979, after graduating from high school, Santana enlisted in the United States Marine Corps and has continually served as a Marine since that time.

During much of his adult life, Santana has also worked for Sears. In 1985, while he was stationed at a Marine base in Tus-tin, California, Sears hired Santana as a part-time loss prevention agent to provide undercover store security in its Costa Mesa, California store. Except for a one-year military leave of absence when he was stationed abroad, for the next ten years, Santana continued to work as a part-time loss prevention agent at the Costa Mesa store. In late 1995, the Marines transferred Santana to the Marine Corps Air Station in Cherry Point, North Carolina.

In preparation for this transfer in October 1995, Santana visited North Carolina. During his visit, Santana went to the Sears store in Morehead City, North Carolina to inquire about job opportunities for the same position he had held for ten years in California — specifically part-time loss prevention agent. Santana spoke with William Mansfield, the loss prevention manager in the Morehead City store. Mansfield assured Santana that the Morehead City store could use someone with his experience and that there would be a job waiting for him when he arrived. Mansfield then gave Santana a business card with the telephone number of the store’s operations manager, Teri Katsekes, and said he would talk to Katsekes about Santana and his background and experience.

Upon his return to California, in November 1995, Santana asked the personnel department at the Costa Mesa Sears to send [848]*848a transfer form to the personnel department at the Morehead City store. The Costa Mesa personnel department prepared the form, dated November 27, 1995, and forwarded it as requested. Santana contacted the Morehead City operations manager, Katsekes, by telephone, in November or early December, 1995. They had a brief conversation in which Santana told Katsekes that he would be available for work in North Carolina approximately the last week in December; she responded that they would be glad to have him in the North Carolina store and to get in touch with the store when he arrived.

In late December 1995, Santana reported for duty at the Marine base in Cherry Point, North Carolina. Shortly thereafter, he visited the Sears store in Morehead City to inquire about starting work. Loss prevention manager Mansfield told Santana that a job would not be available until after the holidays. When Santana returned to the store the first week in January, Mansfield again indicated that there were no openings, so Santana completed an employment application, told Mansfield he would continue to check back, and gave Mansfield his address and telephone number. Santana returned to the store twice in February but was unable to see either Mansfield or operations manager Kat-sekes.

Periodically, throughout the spring and summer of 1996, Santana returned to the Morehead City store to check on employment possibilities. Santana submitted an additional employment application on March 23, 1996. Although Santana made several attempts to talk with Katsekes or Mansfield during this period, he was unable to speak with either of them. On July 20, 1996, Santana submitted a third application; in that application he indicated that he would accept a loss prevention position or “any other position” with Sears. (At his deposition, Santana identified copies of the March and July applications, which were submitted as exhibits in opposition to Sears’s motion for summary judgment.) Despite these efforts, Sears did not contact Santana until October 1996.

In October, Patty Haynes, a human resources specialist at the Morehead City store, telephoned Santana and invited him to come in for an interview. During this interview, Haynes commented on Santana’s accent and asked where he was “[ojriginally from.” Santana answered that he had been born in Mexico City. At the conclusion of the interview, Haynes offered Santana a position as a stock clerk. When Santana referred to his loss prevention experience, Haynes realized that he was “the guy from California” and remembered his previous applications.

Haynes then took Santana to meet with Katsekes, who interviewed him in the office of the store manager, Patricia Kiely; according to Santana, Katsekes told him that Kiely was on vacation at the time. Santana remembered this because Kat-sekes apologized for the messiness of the desk during the interview, explaining that it was not her office, where she normally conducted interviews, but that she was “standing in” for store manager Kiely, using Kiely’s desk, while Kiely was on vacation. Santana maintains that, during the interview, Katsekes became increasingly disinterested and abrupt due to his accent, although she did not comment on the accent, as Haynes had. Nevertheless, at the. conclusion of the interview, Katsekes offered Santana a part-time loss prevention position, sent him for a routine drug screening, and stated that he would begin work right after a satisfactory drug screening result was received. Two days later, on October 25, 1996, Santana underwent a drug screening test; the negative result was sent to Sears.

On November 1, 1996, Santana returned to the store to give Haynes a copy of his social security card and asked when he could begin work. Haynes told him that “the trainer was sick.” When Santana demurred that he had been trained and worked for the company for ten years, she replied that company policy required retraining. A week later, on November 8, 1996, Santana telephoned Haynes, again [849]*849inquiring when he could start work. Haynes told him that a background investigation was being conducted and that he would be called by November 12. During this time, Santana spoke twice with David Mrazick, the loss prevention manager who had replaced Mansfield; Mrazick indicated that there was an immediate need for someone in the loss prevention department, that he was impressed by Santana’s experience, and that he would speak to “management” on Santana’s behalf.

Despite this, no one at Sears contacted Santana about starting work. When Santana did not hear from Sears, he telephoned the store repeatedly; he also contacted Sears loss prevention officials in California, including that region’s manager, to see if they could determine the reason for the delay. After these telephone calls failed to yield an answer, on November 22, Santana went to the store to speak with Haynes or Katsekes; Haynes saw him and told him Katsekes would telephone him by November 26. On November 27, after Santana had not heard from Katsekes, he called her.

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243 F.3d 846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/equal-employment-opportunity-commission-v-sears-roebuck-co-ca4-2001.