By Claire Cooper -- Bee Legal Affairs Writer

Published 2:15 am PDT Wednesday, April 6, 2005

SAN FRANCISCO - Reinstating a discrimination case against Raley's, an appeals court took issue Tuesday with a Sacramento federal judge's finding that a manager could use a racial epithet to test an African American employee's reaction to a difficult situation.

The incident was one of several racially tinged bits of evidence listed by the 9th U.S. Circuit Court of Appeals in returning the Oroville case to U.S. District Judge Morrison C. England for a jury trial. Morrison had thrown out the suit.

Taken together, said the circuit judges, the incidents should have caused England to question whether Raley's defense - its claim that John O'Quinn wasn't promoted because others were more qualified - was a pretext for bias.

O'Quinn has been employed at the Raley's supermarket in Oroville for more than 30 years, since he was 16, his lawyer said. He currently works as a night clerk, mainly when the store is closed, according to the lawyer.

The suit claims O'Quinn was the only African American to apply for the promotion that he sought, and that Raley's had no African American supervisors at its Oroville store or any store nearby in Chico or Yuba City.

The 9th Circuit's brief decision says the jury should probe those and other circumstantial factors.

The epithet test was an example.

According to the suit, a former store manager told O'Quinn twice that he couldn't be promoted to head clerk on the day shift because of the risk that he couldn't handle an irate customer who might call him by the inflammatory name.

England, who is African American, characterized the comment as "entirely appropriate" in the situation.

The 9th Circuit said England shouldn't have gone along with Raley's view.

The circuit judges said the jury should also consider whether Raley's promotion process was influenced by another supervisor who, according to the suit, told O'Quinn that he would never allow himself to be bossed around by an African American man.

O'Quinn's lawyer, Larry Baumbach, said his client "has done everything in the store," including using vacation time to learn the bookkeeping system.

"He has never taken a sick day, and he's never been late," said Baumbach, describing O'Quinn as dedicated but outspoken.

Although he did well on a written manager's exam, when he applied for a management job, Raley's switched to a subjective interview process, the lawyer said.

Raley's lawyer, Mark Van Brussel, said the 9th Circuit ruling was "a procedural technicality" rather than a decision on the merits of the suit. At the trial, he said, O'Quinn will bear the burden of proof.

About the writer:

* The Bee's Claire Cooper can be reached at (415) 551-7701 or ccooper@sacbee.com.