GOBERMAN v. N.W. NATURAL

DONALD C. ASHMANSKAS, United States Magistrate Judge.

The matters before the court are Defendant N.W. Natural's Motion (#29) for Summary Judgment and Motion (#28) for Permanent Injunction and against Plaintiff Pavel Goberman; and Plaintiff Goberman's motion (#43) for compensation or demand for jury trial.

In December of 2000, Goberman filed a complaint against N.W. Natural, pro se, alleging violations by N.W. Natural of several statutes: 29 U.S.C. § 623(a)(1), 631(a); the Age Discrimination in Employment Act; Title VII of the Civil Rights Act of 1964; and 42 U.S.C. § 2000(e). Goberman alleges that N.W. Natural violated these statutes by discriminating against him based on his age and national origin.

On January 20, 2000, Goberman filed motions in the alternative requesting judgment in his favor (motion for summary judgment), demanding production of documents, and demanding a jury trial. On February 9, 2000, this court sent Goberman an "order advising party of federal summary judgment standards."

On March 14, 2001, the court held a telephone status conference and heard oral argument on Goberman's first motion for summary judgment. The court granted Goberman's motion in the alternative for a request for trial by jury, denied Goberman's motion for demand of production of documents as moot, and took Goberman's motion for summary judgment under advisement. On March 19, 2001, the court filed an Opinion and Order, denying Goberman's motion for summary judgment. On April 23, 2001, the court also denied Goberman's second motion for summary judgment as it alleged identical acts and omissions by N.W. Natural and requested the same claims for relief without satisfying the requirements for a successful motion under FRCP Rule 56. Defendant now requests summary judgment in favor of Defendant because there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. Additionally, Defendant seeks a permanent injunction restraining Goberman from entering the premises of N.W. Natural and the law offices of Bullard Smith Jernstedt Harnish, and from contacting any representative or employee of either entity.

Goberman, born October 16, 1937, in Russia, came to the United States in 1980 and is now a U.S. citizen. Goberman worked with a natural gas company in Russia before moving to the United States.

Goberman applied in the spring of 1996 and again in June of 2000 for a position with N.W. Natural as a "meter-reader." He was not hired on either occasion. Goberman also spoke with a human resources employee for N.W. Natural in June of 2000 concerning his application for employment. She then sent Goberman a letter informing him that N.W. Natural had decided not to hire him for the meter-reader position.

In December of 2000, Goberman filed a complaint against N.W. Natural, pro se, alleging violations by N.W. Natural of several statutes: 29 U.S.C. § 623(a)(1), 631(a); the Age Discrimination in Employment Act; Title VII of the Civil Rights Act of 1964; and 42 U.S.C. § 2000(e). Goberman alleges that N.W. Natural violated these statutes by discriminating against him based on his age and national origin.

Motion for Summary Judgment

Federal Rule of Civil Procedure 56(c) authorizes the granting of summary judgment where no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); See also Anthes v. Transworld Systems, Inc., 765 F. Supp. 162, 165 (D.Del. 1991). The moving party has the initial burden of showing the absence of a genuine issue of material fact essential to the nonmovant's case. Celotex, at 165. Once the moving party has met this burden, the burden shifts to the nonmovant to establish that there is a genuine issue of material fact. Id. at 324.

An issue is material if, under the substantive law of the case, resolution of the factual dispute could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The evidence is to be viewed in a light most favorable to the nonmoving party, and all justifiable inferences are to be drawn in the nonmovant's favor. Id. at 255. No genuine issue of material fact exists for trial where the record as a whole could not lead the trier of fact to find for the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, if after the court has drawn all justifiable inferences in the nonmovant's favor, "the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50.

Motion for Permanent Injunction

The decision to grant injunctive relief is left to the discretion of the trial court and will not be disturbed unless the discretion is clearly abused. Burrus v. Tumbo, 743 F.2d 693, 699 (9th Cir. 1984) quoting SEC v. Arthur Young Co., 590 F.2d 785, 787 (9th Cir. 1979). A permanent injunction is proper where the movant has no adequate remedy at law and will suffer irreparable harm if equitable relief is denied. Sierra Club v. Penfold, 857 F.2d 1307, 1318 (9th Cir. 1988).

A court may retain jurisdiction in equity even where a legal remedy may become available later. Beacon Theatres v. Westover, 359 U.S. 500, 505, 723 S.Ct. 948 (1959). An equitable remedy does not have to be denied merely because a legal remedy may subsequently become available. Id, at 509 citing FRCP 1, 2, 18.

Defendant's Motion for Summary Judgment

Defendant asserts that Goberman must first establish a prima facie case of discrimination against defendant. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 99th Cir 1998). Defendant contends that in order to establish a prima facie case, Goberman must offer evidence giving rise to "an inference of unlawful discrimination." Id., at 1220.

The court's inquiry is whether Goberman has alleged evidence sufficient to create an inference that he was not hired because of illegal criteria such as his age or national origin. Cordova v. State Farm Ins. Co., 124 F.3d 1145, 1148-49 (9th Cir. 1997). The Supreme Court has set forth a four-part test to establish an inference of discrimination: 1) claimant belongs to a protected class; 2) claimant applied for and was qualified for a job for which the employer was seeking applicants; 3) despite being qualified, plaintiff was rejected; 4) after claimant's rejection, the position remained open and the defendant continued seeking comparably-qualified applicants. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802; 93 S.Ct 1817 (1973).

Goberman's application for employment with Defendant provides that Goberman had worked for a natural gas company before leaving Russia. However, Goberman has failed to bring even a scintilla of evidence that he was qualified for the position as meter reader. In addition, Goberman has admitted to the discussion he had with a N.W. Natural employee during his telephone interview in which he told the employee he would sue the company if they did not hire him. Defendant's Memorandum in Support, Exhibit 5.

Without any direct or circumstantial evidence of Goberman's qualifications, no inference of discrimination can be shown. There remains no issue of material facts to the case. Therefore, Defendant's motion for summary judgment is granted, and Defendant is entitled to judgment as a matter of law.

Defendant's Motion for Permanent Injunction

Defendant set out several instances in which Goberman communicated with Defendant and defense counsel in a manner Defendant construes to be threatening.

1.) On June of 2000, Goberman threatened to sue N.W. Natural if they did not hire him.

2.) On December 11, 2000, Goberman submitted a demand that N.W. Natural hire him and again threatened suit against them. Goberman filed suit on December 18, 2000.

3.) On March 7, 2001, Goberman sent an email to defense counsel that included a statement that counsel "for money would kill own mother." The next day a second email was sent to defense counsel that stated "I'm not a doctor to treat narrow minded, sick people."

4.) Goberman stated in his "Amplification to my Second Motion for Summary Judgment" that "who did crime, who hurt me soon or later are punished (German Army is dead, communist regeme[sic], KGB are dead, etc)."

5.) On May 9, 2001, Goberman also sent an email to N.W. Natural stating "who did crime, who hurt me soon or later are punished (German Army is dead, communist regeme[sic], KGB are dead, etc)."

6.) Goberman's Answer to Defendant's Response stated "The action of N.W. Natural (Attorney Harnish) reminds me the actions of the Communist Party, KGB in former U.S.S.R.: `shut up? You are guilty!'"

Defendant's Memorandum in Support of Motion for Permanent Injunction, pages 2-4.

Defendant notes that Goberman's comparison of Defendant and its attorneys with the KGB, his belief that they have harmed them, and his statement that others are dead is disturbing. Defendant contends that Goberman's Complaint filed with this District Court is the follow through on his December 11, 2000 threat. Defendant contends that it wishes to deter Goberman's threat of May 9, 2001 and accordingly seeks a permanent injunction against him.

Defendant argues that although money damages and sanctions may be available to Defendant, such damages could not cure the harm to be caused if Goberman carries out his most recent threat as he did on his initial threats.

Defendant contends that irreparable injury could result if Goberman carried out his threat and that these are the potential consequences of continuing to allow him unlimited access to Defendant, its employees and representatives. Defendant further contends that no harm will result to Goberman from his being prohibited from contact with N.W. Natural or its attorneys, and in contrast the benefit to Defendants is great.

The court must balance the benefit to the party requesting injunctive relief with the hardship to the party opposing it. Penland v. Redwood Sanitary Sewer Service District, 965 P.2d 433, 438 (1998). The court cannot interpret Goberman's filing of suit in federal court on December 18, 2001, as the follow through of any threat, since it is simply his right to file suit and does not constitute threatening behavior even when executed in such a manner. However, the court agrees that there is little harm that can be caused to Goberman in the granting of such relief.

The court can conceive of instances in which contact is necessary between Goberman and representatives of N.W. Natural or the law offices of Bullard Smith Jernstedt Harnish and finds that a restraint on Goberman's ability to contact either entity would create an undue burden on him. Therefore, the court denies the request for permanent injunction with regards to enjoining Goberman from any contact with representatives of either entity; and grants the request for permanent injunction with regards to enjoining Goberman from entering the premises of either N.W. Natural or the law offices of Bullard Smith Jernstedt Harnish.

Based on the foregoing, Defendant N.W. Natural's motion (#28) for permanent injunction is GRANTED with regards to enjoining entry onto the premises of either N.W. Natural or the law offices of Bullard Smith Jernstedt Harnish; and DENIED with regards to enjoining contact with representatives of either N.W. Natural or the law offices of Bullard Smith Jernstedt Harnish; Defendant N.W. Natural's motion (#29) for summary judgment is GRANTED; and Plaintiff Pavel Goberman's motion (#43) for compensation or demand for jury trial is DENIED as moot.