Cemex Won’t Mix it Up Over ‘English-Only’ Suit

FRESNO, Calif. (CN) - Former Cemex Inc. workers who were told to only speak English at work, and who were disciplined when they did not, must pursue their discrimination claims against the company in state court, a federal judge ruled.

Jose Cervantes and Jorge Montes, both of Hispanic descent, worked for Cemex as mixer drivers. They say they were both told that they could only speak English at work, including on the company radio.

Cervantes, who speaks both English and Spanish, says that he was told he would be disciplined for violating company policy if he continued to speak Spanish at work. Cervantes' supervisor, Alan Light, allegedly told him to speak "English, goddamnit" on a few occasions.

Cervantes was suspended for not completing a post-trip inspection of his vehicle, an infraction for which non-Latino drivers were not disciplined, he says.

Montes, who speaks Spanish and only limited English, says he was forced by area manager Keith Stogdell to read English out loud at meetings. Stogdell allegedly told other employees not to help Montes with the reading, and laughed at him when he had difficulty pronouncing English words.

Montes also claims that Stogdell called him "s--- for brains" on one occasion and told him to "wash the f-----g truck" on another occasion.

Montes was suspended for failing to report a problem with a tire in his vehicle, although he says that he did report the problem to the mechanic responsible for fixing it.

The workers' lawsuit asserted seven causes of action under state and federal law against Cemex, including allegations the company discriminated against them because they are Hispanic, and that the company's English-only workplace policy violated state and federal law.

U.S. District Judge Lawrence O'Neill found Montes and Cervantes failed to show they were subjected to a hostile work environment on the basis of their national origin under federal law.

"There is no evidence to suggest that Montes would have been admonished or yelled at if Montes was speaking English at work, regardless of Montes' national origin. Likewise, there is also no evidence to suggest that employees of Hispanic descent who did not speak a language other than English at work or on the radio in compliance with Stogdell and Light's instructions were subject to verbal admonishments or other allegedly harassing conduct," O'Neill stated.

Although it is undisputed that Montes was made to read out loud in English at safety meetings, all participants at the safety meetings had to read out loud. There is no evidence that Montes was singled out, and Montes never informed his supervisors that he was uncomfortable with the practice, O'Neill said.

Likewise, Cervantes was admonished because he was not speaking only English at work and on the radio, not because of his national origin, the judge said.

The workers' claim that Cemex's English-only policy subjected them to disparate treatment under federal law also fails.

Although the long-standing approach of the Equal Employment Opportunity Commission is that an English-only policy itself constitutes discrimination when the company issuing it does not demonstrate that the policy is mandated by a business necessity, the 9th Circuit has rejected this guideline.

Instead, the circuit has pointed to the Supreme Court's decision that a plaintiff in a disparate treatment case must prove the alleged unequal treatment before the burden shifts to the employer.

"Neither Montes nor Cervantes puts forth evidence to show that non-Hispanic employees were any less bound by the English-only policy than employees of Hispanic descent," O'Neill stated.

Stogdell testified that a Swedish employee had informed him that other employees speaking Spanish over the company radio made the Swedish employee feel discriminated against. He said it was a safety concern with regard to job site conditions because the Swedish employee did not understand English.

"There is no evidence that the Swedish employee or any other non-Hispanic employee spoke a language other than English over the company radio or that such employee was not admonished while plaintiffs were admonished," O'Neill stated. "Moreover, both Montes and Cervantes testified that they have never received corrective action, discipline, or been subject to any adverse employment action for speaking Spanish at work or on the work radio."

O'Neill declined to exercise supplemental jurisdiction over the workers' similar claims made under California law, finding that whether the English-only policy allegedly implemented by Cemex violated California's Fair Employment and Housing Act is a novel issue of state law.

Cervantes and Montes can pursue their FEHA claims in state court.

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