Achievements
Federal Appeals Court Orders A New Trial for Immigrant Women
Plaintiffs in the Rivera litigation (left to right): Bao Nhia Moua, Mao Her, Bee Lee, and Sy Vang.
In a stunning victory for the 23 Latina and Southeast Asian workers represented by LAS–ELC in the Rivera v. Nibco litigation, the U.S. Court of Appeals for the Ninth Circuit has ordered a new trial in the case. The Ninth Circuit’s action—which vacates a previous defense verdict—comes as a result of its conclusion that Nibco used its “peremptory” strikes of prospective jurors for discriminatory purposes, removing at least one Latina juror on account of her ethnicity.
“I am very happy today,” said lead plaintiff Martha Rivera, who was interviewed by the Fresno Bee shortly after the court’s opinion was issued. “I thank God and I knew all along that God was with me and that he’d find justice for me.” Of the new trial ordered by the Ninth Circuit, Rivera stated, “I am willing to go through this again because all I want is justice. I know ultimately we will have a happy ending.”
Rivera, a Title VII language discrimination case filed in 1999, is a civil rights challenge to Nibco’s use of a supposed “job skills” test, administered entirely in English, to lay off Latina/o and Asian workers before all others at an irrigation manufacturing plant in Fresno, California. Although these immigrant workers had performed their jobs successfully for years with only limited English proficiency, Nibco’s test—which required a perfect, 100% score to pass—effectively singled out these and other workers of color for failure. After a seven-week trial in late 2008, an overwhelmingly Caucasian jury in Fresno returned a verdict in Nibco’s favor.
The Rivera plaintiffs appealed that adverse verdict to the Ninth Circuit, pointing out that Nibco had repeatedly misrepresented facts about three Latina/o prospective jurors in a successful effort to persuade the trial judge that they should be removed for legitimate, non-racial reasons. The plaintiffs also argued that Nibco used entirely different patterns of questioning jurors, depending upon whether they were Latina/o or Caucasian.
In an opinion issued on March 29, 2010, the Ninth Circuit sided with the Rivera plaintiffs. Pointing both to Nibco’s false statements to the trial judge as well as its racially-skewed questions to the jurors, the court wrote that “[u]nder these circumstances, and taking into account the fact that Nibco used its strikes disproportionately against Hispanic jurors in a case involving claims of national origin discrimination against Hispanic workers…the district court’s conclusion that Nibco’s proffered reasons were not pretexts for discrimination was clearly erroneous.”
“The Ninth Circuit’s decision vindicates our clients’ persistence in seeking justice in this case, and certainly suggests that the jury’s adverse verdict was based on something other than the plain merits of their claims,” said LAS–ELC senior staff attorney Christopher Ho, lead counsel for the Rivera plaintiffs. “It is both ironic and fitting that in a case in which Nibco was accused of workplace discrimination against our Latina and Asian clients because of their ethnicity, its cynical resort to the same kind of discrimination during the trial blew up in its face.”
“There’s absolutely no reason why it should suddenly become necessary for us to know English to keep our jobs.”
—Martha Rivera