Opinion
CV-99-1482-ST.
August 6, 2001
FINDINGS AND RECOMMENDATION
INTRODUCTION
Plaintiff, Denison Rauw ("Rauw"), brings this action against defendant Dan Glickman, Secretary of the U.S. Department of Agriculture ("Secretary"), alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). Rauw alleges that the Secretary discriminated against her because of her sex and sex plus marital status (First and Second Causes of Action, respectively) and retaliated against her for opposing unlawful employment practices (Third Cause of Action) by restricting her advancement, placing her on a surplus list, hindering her efforts to obtain alternative employment, and wrongfully terminating her. This court has jurisdiction pursuant to 28 U.S.C. § 1331.
Now before this court is the Secretary's Motion for Partial Summary Judgment (docket #26). For the reasons set forth below, that motion should be granted in part and denied in part.
FACTS
Because all material facts must be viewed in the light most favorable to the non-movant, this court will view the evidence in the light most favorable to Rauw. The Secretary did not submit a Concise Statement of Material Facts, as required by LR 56. 1(a)(2). However, a review of the pleadings and other materials submitted by the parties, including affidavits and deposition excerpts, reveals the following background information.
Deposition excerpts are identified by the last name of the deponent, and citations are to the page of the deposition transcript.
Rauw worked for the U.S. Forest Service ("USFS"), U.S. Department of Agriculture, from July 1988 to June 1996. Complaint, ¶ 4; Answer ¶ 4. Until her position was eliminated, Rauw served as the Columbia Learning Center Coordinator at the Gifford Pinchot National Forest Headquarters in Vancouver, Washington. Affidavit of Ted Compton Stubblefield ("Stubblefield Aff"), p. 1. Larry Seekins ("Seekins") was her direct supervisor and he in turn was supervised by Forest Supervisor Ted Stubblefield ("Stubblefield"). Id.
On December 15, 1995, the Secretary placed Rauw on the "surplus" list, which meant that her position would be eliminated and she would need to find a new job with the Forest Service. Defendant's Reply Exhibit ("Ex") 3, p. 2. Stubblefield told Rauw that "nothing bad could happen" and that he had never given any employee on the surplus list an "unfriendly reassignment. " Id. Ex 1, p. 2. While on the surplus list, Rauw complains that she was passed over for a number of positions, one of which was allegedly given to a less senior male who transferred from another forest to take the job. Complaint, ¶¶ 11, 21. Rauw also complains that male employees were given valuable in-forest placements to avoid being placed on the surplus list. Rauw Depo, pp. 128-29.
On May 7, 1996, the USFS reassigned Rauw to the Tonasket Ranger District, located in the extreme Northeast corner of Washington state. Declaration of Jack W. Lee ("Lee Dec"), Ex D. The USFS informed Rauw that "failure to accept or to report for duty, as directed, will result in your separation from the Forest Service. " Id. p. 1. Rauw refused to accept this position and resigned from the USFS.
STANDARDS
FRCP 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party shows the absence of an issue of material fact, the non-moving party must go beyond the pleadings and designate specific facts showing a genuine issue for trial. Id at 324. A scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir), cert denied, 493 U.S. 809 (1989).
The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir 1987). The court must view the inferences drawn from the facts in the light most favorable to the non-moving party. Thus, reasonable doubts about the existence of a factual issue should be resolved against the moving party. Id. at 630-31. However, when the non-moving party's claims are factually implausible, that party must come forward with more persuasive evidence than would otherwise be required. California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics Inc., 818 F.2d 1466, 1470 (9th Cir 1987), cert denied, 484 U.S. 1006 (1988). The Ninth Circuit has stated, "No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment." Id. at 1468.
The Ninth Circuit has set a high standard for granting summary judgment in employment discrimination cases. "[W]e require very little evidence to survive summary judgment in a discrimination case, because the ultimate question is one that can only be resolved through a searching inquiry — one that is most appropriately conducted by the fact-finder, upon a full record." Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1410 (9th Cir) (citations omitted), cert denied, 519 U.S. 927 (1996).
DISCUSSION
The Secretary moves for partial summary judgment against:(1) the denial of fire assignments from April 1988 until June 1996 for lack of jurisdiction and as untimely; (2) the constructive discharge allegations due to lack of evidence; (3) the Second Cause of Action (marital status discrimination claim) for failure to state a claim; and (4) all claims due to lack of any discriminatory motive for the alleged adverse employment actions.
I. Fire Crew Allegations
Rauw alleges three claims for relief, all of which appear to be premised on her involuntary termination. However, she clarified at oral argument that she seeks damages on each claim for each and every adverse employment action alleged in paragraph 21. One of those adverse employment actions is a denial of fire fighting assignments from April 1988 to June 1996. Complaint, ¶¶ 10 21(E). According to Rauw, every fire season she took and passed all tests to be "fire-ready" and was physically fit, but because of her gender was never placed on the Fire Call Out List, a condition precedent for assignment to fire duty. Id. ¶ 10; Rauw Depo, pp. 105-07. She states that one of her former male supervisors told her in 1988 that only "young bucks, young males" go on fire duty. Rauw Depo, pp. 102-03.
The Secretary argues that the allegations concerning fire crew discrimination should be dismissed because:(1) Rauw did not exhaust her administrative remedies by notifying an Equal Employment Opportunity ("EEO") counselor of this alleged discrimination within 45 days of its occurrence; and (2) even if she did notify an EEO counselor of this discrimination, the allegations are now time-barred.
A. Federal Subject Matter Jurisdiction — Exhaustion 1. Legal Standard
To satisfy federal subject matter jurisdiction for Title VII claims, a plaintiff must first exhaust all of her administrative remedies before filing a lawsuit in federal court. 42 U.S.C. § 2000e-16c; Sommatino v. United States, No. 99-16797, 2001 WL 674288, at *3 (9th Cir June 18, 2001); EEOC. v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir 1994). One such remedy applies solely to federal employees such as Rauw. A federal employee who believes that she has been discriminated against "must notify an EEO counselor of discriminatory conduct within 45 days of the alleged conduct, and then, if the matter is not resolved, the employee may submit a formal administrative complaint." Sommatino, 2001 WL 674288, at *3, citing 29 C.F.R. § 1614. 105 (pre-complaint processing) 1614. 106 (individual complaints).
This exhaustion requirement does not bar a plaintiff from seeking judicial relief for incidents or claims of discrimination not raised in the original EEOC charge if the new incidents or claims are "like or reasonably related to the allegation of the EEOC charge. " Id. citing Deppe v. United Airlines, 217 F.3d 1262, 1267 (9th Cir 2000). Courts must give the EEOC charge a broad construction because they are often framed by those lacking technical knowledge of formal pleading. Kaplan v. International Alliance of Theatrical Stage Employees, 525 F.2d 1354, 1359 (9th Cir 1975). New claims or incidents of discrimination can be like or reasonably related to allegations of the EEOC charge if they fall "within the scope of the EEOC's actual investigation or an EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Yamaguchi v. US Dept. of the Air Force, 109 F.2d 1475, 1480 (9th Cir 1997).
2. Analysis
Rauw contacted an EEO counselor on May 21, 1996, alleging sex and marital status discrimination and retaliation based on her directed reassignment to Tonasket, Washington, "because she has gone face-to-face with [Stubblefield] over the fact that there was a lack of women and minorities in leadership positions." Defendant's Reply Ex 1, p. 2. On or about May 26, 1996, Rauw also verbally complained to her EEO counselor specifically about gender discrimination in the denial of fire assignments beginning in 1988 and continuing through the fire season of 1996. Plaintiff's Declaration in Opposition to Defendant's Motion for Partial Summary Judgment ("Rauw's Dec"), ¶ 1. Since Rauw's specific EEO complaint of discrimination in fire crew selection was made before her last alleged date of discrimination in fire crew assignments in 1996, it was well within the 45 days mandated by 29 C.F.R. § 1614. 105.
In addition to satisfying the 45-day rule, the Ninth Circuit has stated that "[t]he jurisdictional scope of a Title VII claimant's court action depends upon the scope of both the EEOC charge and investigation." Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir 1990). Rauw's July 28, 1996 written EEO complaint alleged sex and marital status discrimination. Defendant's Reply Ex 2. Although it did not specifically allege discrimination in fire crew selection, it referred to discrimination in advancement ("a `glass ceiling' for women in [the Gifford Pinchot National Forest]") as well as in the surplus list and reassignment. Id. Giving broad construction to the EEOC complaint, as it deserves in this circuit, this court concludes that the contents of that EEOC complaint and the allegations in the Complaint of sex discrimination in fire-crew selection are reasonably related. A reasonable investigation of Rauw's EEOC allegations concerning the "glass ceiling" would certainly have included an investigation into fire-fighting opportunities, given that fire duty entails extra pay and "was a stepping stone to more responsible positions." Complaint, ¶ 10. Furthermore, Rauw's later letter dated November 11, 1996, corrects the October 18, 1996 Mediators Report by pointing out that she alleged discrimination in May and July 1996 based not only on the directed reassignment, but also based on "other directly related issues," including a pattern of discriminatory fire duty selection. Defendant's Reply Ex 4, pp. 1-2. In its January 20, 1998 letter referring her EEO complaint for investigation, the EEOC confirmed that Rauw's EEO complaint included this allegation. See Plaintiff's Ex B.
In sum, Rauw has exhausted all administrative remedies with respect to the contested allegations because:(1) she satisfied the 45-day rule with a timely complaint to an EEO counselor; and (2) paragraphs 10 and 21E of the Complaint fall within the jurisdictional scope of the July 1996 formal EEOC complaint. Thus, contrary to the Secretary's motion, this court has subject matter jurisdiction over paragraphs 10 and 21E of the Complaint.
B. Timeliness of the Allegations
The Secretary next argues that even if this court has subject matter jurisdiction over the fire-fighting allegations, those allegations preceding 1996 are barred by the statute of limitations. Rauw counters that her complaints of fire-fighting discrimination dating back to 1988 are actionable under the continuing violation doctrine.
1. Continuing Violation
The continuing violation doctrine is not overly complicated. In simple terms, it allows a plaintiff to recover damages for conduct that would ordinarily be time-barred "as long as the untimely incidents represent an ongoing unlawful employment practice." Anderson v. Reno, 190 F.3d 930, 936 (9th Cir 1999). A plaintiff can establish a continuing violation "by presenting evidence that [the defendant] engaged in a `systematic policy of discrimination' or by presenting evidence of a series of related discriminatory acts directed at her by [the defendant's] personnel."Id. Rauw, it appears, proceeds under the latter approach, in which a plaintiff must demonstrate a series of related acts one or more of which are within the limitations period. Morgan v. National R. R. Passenger Corp., 232 F.3d 1008, 1015 (9th Cir 2000), cert granted, 121 S. Ct. 2547 (June 25, 2001). The nominally time-barred acts must be sufficiently related to those acts occurring within the limitations period, i.e., they cannot be isolated, sporadic, or discrete. Id. citing Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1107-10 (9th Cir 1998).
a. Discriminatory Act within the Statute of Limitations
First, Rauw must point to an anchor for her denial of fire duty allegations dating back to 1988. In other words, she must show at least one arguably discriminatory act within the statute of limitations. One such allegation isthat the Secretary unlawfully denied her fire-crew positions in June and July 1996. The Secretary argues that Rauw cannot rely on this particular act because she was not qualified for any fire-fighting positions in 1996 and therefore suffered no discrimination in the denial of fire duty in 1996.
According to Lonna Stutler ("Stutler"), a USFS personnel officer, Rauw was qualified for a Firefighter position ("FFT2"), but was not qualified to fill any of the fire crew requests actually received by the Dispatch unit of the Gifford Pinchot National Forest from January 1 to June 30, 1996. Declaration of Lonna Stutler ("Stutler Dec"), ¶¶ 5, 7; Ex 1. To counter this evidence, Rauw offers only her testimony that every fire-fighting season she received training and certification in order to engage in fire duty and was "able to go on fire assignments but was never offered the opportunity to do so. "Rauw's Dec, ¶¶ 2-3. She does not deny that she was qualified only for a FFT2 position. As proof that she was denied fire assignments for which she was qualified in 1996, Rauw points to a one-page report authored by Stutler. That report shows that of the 34 fire assignment dispatch requests to the Gifford Pinchot National Forest in 1996, three assignments were filled by female employees while 22 assignments were filled by males. Rauw Dec, Ex A. However, as Stutler explains, Rauw, as a FFT2, was simply not qualified for any of these positions.
The parties have provided no facts to the court concerning Rauw's qualifications to fill fire crew requests from 1988 to 1995.
It is well settled in the Ninth Circuit that a plaintiff may not successfully oppose summary judgment relying entirely on conclusory allegations in her affidavit or declaration. See Delange v. Dutra Constr. Co., 183 F.3d 916, 921 (9th Cir 1999) (stating that where "the nonmoving party relies only on his own affidavit to oppose summary judgment, [the party] cannot rely on conclusory allegations unsupported by factual data to create an issue of material fact" (internal quotation marks and citation omitted)). Because Rawu has submitted no evidence to counter the Secretary's evidence, the Secretary is entitled to summary judgment against Rauw's allegation that she was denied fire duty assignments in 1996 based on her sex or marital status.
Striking the 1996 allegation of denial of fire duty, however, has no significant impact on the remaining allegations of a denial of fire duty from 1988 to 1995. As stated above, Rauw needs an anchor within the statute of limitations in order to advance her continuing violation theory. Contrary to the Secretary's view of Rauw's claim, Rauw does not allege a separate claim for sex discrimination based solely on a denial of fire-fighting opportunities. Instead, she alleges more generally that the Secretary discriminated against her by maintaining a "glass ceiling" for women employees on the Gifford Pinchot National Forest. According to the Complaint, the Secretary employed various methods in maintaining the "glass ceiling" including discriminating against women in fire crew selections from 1988 to 1996. In short, Rauw's sex discrimination claim incorporates the fire-crew discrimination allegations and other adverse employment actions "including, but not limited to discriminatory restrictions on her advancement, promotion, placement on surplus list, efforts to obtain alternative employment, and wrongfully terminating plaintiff, and treating her more harshly than others similarly situated. "Complaint, ¶ 24. More specifically, Rauw alleges that she "was denied advancement opportunities offered to similarly-situated males. For example, from 1988 to 1995, [she] was continually denied the opportunity of working on fire crews. " Id. ¶ 10 (emphasis added). In other words, the fire-fighting allegations are just one example of a series of acts of sex discrimination comprising the larger claim of a "glass ceiling. "The other alleged acts of sex discrimination are placing her on the surplus list in December 1995, maintaining her on that list until May 1996, and then giving her a mandatory reassignment so impractical as to constitute a constructive discharge. Even absent the 1996 fire-fighting allegation, at least one of these other alleged adverse employment action occurred within the statute of limitations. Thus, Rauw may seek damages for any fire-crew discrimination from 1988 to 1995 if it is sufficiently related to one of those timely discriminatory acts.
b. Related Series of Discriminatory Incidents
"The question . . . boils down to whether sufficient evidence supports a determination that the alleged discriminatory acts are related closely enough to constitute a continuing violation." Green v. Los Angeles County Superintendent of Schs., 883 F.2d 1472, 1480 (9th Cir 1989) (internal quotation omitted). That inquiry revolves around whether the acts within the period of limitations involve the same type of discrimination as those committed before the period. See e.g., Sosa, 920 F.2d at 1456 (finding all acts plausibly related as acts of discrimination because of plaintiff's identification as a Mexican-American).
Here, the timely acts of sex discrimination are related to the allegations of sex discrimination based on a denial of fire duty from 1988 to 1995. Rauw's evidence raises a question of fact as to whether the Secretary favored male employees in advancement and retention in 1996. The allegations that the Secretary favored male employees in fire crew selections are similar, particularly as Rauw alleges that fire-fighting opportunities translate to faster promotion, higher pay, and stronger interpersonal networks. Although the Secretary argues that the allegedly discriminatory acts in paragraphs 10 and 21E differ in both time and nature from the allegedly discriminatory acts in 1996, issues of fact nonetheless persist as to the relationship between the pre-1996 and post-1996 allegations. As a result, summary judgment should not be granted based on statute of limitations grounds.
c. Notice
The Secretary's remaining argument also should be rejected. He asserts that even if the discriminatory acts are related, Rauw certainly knew or should have known well before 1996 that she had experienced actionable fire-duty discrimination. Rauw related that as early as 1988, one of her supervisors flatly told her that only males could go on fire duty. See Rauw Depo, pp. 102-03. A reasonable person might at that time have taken some corrective action. Therefore, according to the Secretary, Rauw cannot now recover for claims she let lapse. In other words, the Secretary asserts that Rauw should not be allowed to slumber on her rights.
Fortunately for Rauw, the Ninth Circuit has recently repudiated this approach to the continuing violations doctrine. In Morgan, the lower court granted summary judgment for the defendant because the plaintiff "believed that he was being discriminated against at the time that all of these [time-barred] acts occurred, [and] it would not be unreasonable to expect that [he] should have filed an EEOC charge on these acts before the limitations period on these claims ran." Morgan, 232 F.3d at 1014-15. The Ninth Circuit reversed, stating that the nominally time-barred conduct was actionable because "[t]his court has never adopted a strict notice requirement as the litmus test for application of the continuing violation doctrine." Id. at 1015. Accordingly, the Secretary'sremaining argument based on "notice" should be rejected.
II. Constructive Discharge
On May 7, 1996, the USFS reassigned Rauw to the Tonasket Ranger District, located in the extreme Northeast corner of Washington and a long distance from her husband's location in the Olympic National Forest, and informed her that she would be terminated if she refused to accept the reassignment. Rauw refused to accept this position and resigned from the USFS. Rauw, however, asserts that her resignation was actually a constructive discharge due to the Secretary's threat of termination and numerous unlawful acts of discrimination.
A constructive discharge occurs when, looking at the totality of circumstances, "a person quits his job under circumstances in which a reasonable person would feel that the conditions of employment have become intolerable." Draper, 147 F.3d at 1110. Such a person "has simply had enough; [he] or she simply can't take it anymore. " Id. The determination whether conditions were so intolerable and discriminatory as to justify a reasonable employee's decision to resign is normally a factual question left to the trier of fact. Lojek v. Thomas, 716 F.2d 675, 677, 680 (9th Cir 1983). However, a constructive discharge claim may survive summary judgment only if the plaintiff "demonstrate[s] that there were triable issues of fact as to whether a reasonable person in his position would have felt that he was forced to quit because of intolerable and discriminatory working conditions." Huskey v. City of San Jose, 204 F.3d 893, 900 (9th Cir 2000).
Here, Rauw has presented evidence sufficient to support her claim of constructive discharge. For example, the directed reassignment to the Tonasket National Forest left no room for negotiation. The Secretary stated that if Rauw did not accept the reassignment, she would be terminated. See Lee Dec, Ex D. At the same time, Rauw could not accept the position due to medical and personal concerns, and she had previously informed her supervisors of those same concerns. See Lee Dec, Ex E, p. 1 ("The Tonasket District Ranger, the Forest Outplacement Coordinator Ron Burnett, my supervisor Larry Seekins, and [Stubblefield] all had full, prior knowledge of my inability to accept such a relocation at this time, due to a variety of personal and medical reasons"). She also felt that the Secretary discriminated against her on the basis of her gender, as other male employees were not given such difficult reassignments and were not initially placed on the surplus list. In sum, these facts are sufficient for a reasonable person to conclude that the conditions of employment had become intolerable.
III. Viability of a "Sex Plus" Discrimination Claim (Second Cause of Action)
The Second Cause of Action alleges that the Secretary eliminated her position and placed her on the surplus list in order to facilitate her relocation to her husband's location. Rauw Depo, pp. 25, 27. Essentially, she contends that her job was targeted for elimination because she was a married woman and her career was expected to be secondary to that of her husband.
The Secretary argues that this allegation of discrimination, even if true, fails to state a claim for relief because marital status is not covered by Title VII, citing a recent Ninth Circuit case, Costa v. Desert Palace, Inc., 238 F.3d 1056 (9th Cir 2000). There, the Ninth Circuit stated that "[c]omments motivated by consideration of parental or marital status do not establish gender bias, and neither status is protected under Title VII." Id. at 1060, citing Bruno v. City of Crown Point, 950 F.2d 355, 362-63 (7th Cir 1991).
However, this sweeping comment in Costa should not be read to bar "sex plus" claims in the Ninth Circuit. The Ninth Circuit simply remarked that marital status is not a protected status. That statement alone is widely accepted as true. For example, the Tenth Circuit made the same pronouncement in Coleman v. B-G Maintenance Mgmt. of Colorado, Inc., 108 F.3d 1199, 1204 (10th Cir 1997), that Title VII "does not protect marital status alone." Costa did not address, and had no reason to address, whether Title VII protects marital status plus sex. The Supreme Court, however, has had the opportunity to recognize just such a claim.
The "sex plus" theory of discrimination was first articulated by the Supreme Court in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (per curiam). In Phillips, the defendant company refused to hire women with pre-school-age children but hired men who had pre-school-age children. In that case, there was no serious question of any general bias against hiring women since 75-80% of those hired for the position were women. On appeal, however, the Supreme Court vacated summary judgment in favor of the defendant, holding that although all women were not affected by the policy, Title VII prohibited the use of "one hiring policy for women and another for men — each having pre-school-age children." Id. at 544.
In essence, Title VII proscribes "sex plus" discrimination where an employer classifies or discriminates against employees on the basis of sex plus another characteristic. "Sex-plus" discrimination occurs when a person is subjected to disparate treatment based, not solely on her sex, but on her sex "considered in conjunction with a second characteristic." Fisher v. Vassar College, 70 F.3d 1420, 1433 (2nd Cir 1995) (" Fisher I"), on reh'g en banc, 114 F.3d 1332 (1997) (" Fisher II") (concurring in the panel decision), cert denied, 522 U.S. 1075 (1998). Some courts have specifically accepted the viability of a Title VII claim premised on sex plus marital status. See e.g., Coleman, 108 F.3d at 1203 ("Title VII prohibits employers from treating married women differently than married men, but it does not protect marital status alone"); Fisher I, 70 F.3d at 1446 ("To establish that [the defendant] discriminated on the basis of sex plus marital status, plaintiff must show that married men were treated differently from married women"), see also Bryant v. International Schs. Servs., Inc., 675 F.2d 562, 573 n18 (3rd Cir 1982); Jurinko v. Edwin L. Wiegand Co., 477 F.2d 1038, 1044 (3rd Cir), vacated on other grounds, 414 U.S. 970 (1973), Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1197-98 (7th Cir), cert denied, 404 U.S. 991 (1971).
Although the Ninth Circuit has not specifically addressed the viability of the "sex plus" claim, it presumably would allow such a claim given the current state of the law. This court is unwilling to hold, based on the isolated comment in Costa, without more, that Rauw is precluded from bringing her sex plus marital status claim of discrimination. Thus, the Secretary's motion on this basis should be denied. IV. Inference of Discrimination (First and Second Causes of Action)
At some point, Rauw will have to delineate which of her nine adverse employment actions listed in paragraph 21 were the result of sex discrimination and/or sex plus marital status discrimination.
Next, the Secretary argues that both the sex discrimination and sex plus marital status discrimination claims fail because Rauw cannot establish an inference of unlawful discrimination.
A. Legal Standard
Title VII makes it unlawful "to discriminate against any individual with respect to . . . compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. " 42 U.S.C. § 2000e-2(a)(1). To prevail on a Title VII claim, a plaintiff must first establish a prima facie case of discrimination by offering evidence that "`give[s] rise to an inference of unlawful discrimination.'" Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir 1998), quoting Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 256 (1981). One way to establish a prima facie case is through direct evidence of discriminatory intent. Id. at 1220. Another way is by satisfying the factors set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Tarin v. County of Los Angeles, 123 F.3d 1259, 1263-64 (9th Cir 1997).
The relevant portion of Title VII provides that it shall be an unlawful employment practice for an employer:
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.42 U.S.C. § 2000e-2(a).
Once a plaintiff establishes a prima facie case, then the burden shifts to the defendant, who must proffer a legitimate, nondiscriminatory reason for the employment action at issue. Chuang v. University of Cal. Davis, Bd of Trs., 225 F.3d 1115, 1123-24 (9th Cir 2000). If the defendant provides a legitimate reason, then the plaintiff must show that the defendant's proffered reason is pretextual "`either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.'" Id. at 1124, quoting Burdine, 450 U.S. at 256.
B. Analysis 1. Prima Facie Case of Sex Discrimination
Rauw seeks to establish a prima facie case of sex discrimination through use of the McDonnell Douglas factors. In order to do so, Rauw must show that she:(1) belongs to a protected class; (2) was qualified for the position; (3) was subject to an adverse employment action; and that (4) similarly situated individuals outside her class were treated more favorably. Id. at 1123. She must produce evidence sufficient to raise a genuine issue of material fact as to each prong of her prima facie case. Id. at 1125. However, the degree of proof necessary to establish a prima facie case is "minimal" and "does not even need to rise to the level of a preponderance of the evidence." Id. at 1124, quoting Wallis v. J. R. Simplot Co., 26 F.3d 885, 889 (9th Cir 1994). Here, the Secretary only contests the fourth element of Rauw's prima facie case, arguing that Rauw cannot show similarly situated individuals outside of her class who were treated more favorably with regard to the surplus list, available vacancies, and directed reassignments. The Secretary's argument is in error, however, as Rauw has identified numerous examples of similarly situated male employees who were not placed on the surplus list, or if placed on the surplus list, were treated differently. For example, Paul Naylor ("Naylor") was removed from the surplus list and granted a position as a Staff Officer for the Gifford Pinchot National Forest. See Lee Dec, Ex 4, p. 5. Rauw asserts that she was qualified for this position and would have accepted it had it been offered to her, which the Secretary does not dispute. Rauw Dec, ¶ 8. Another male employee, Ron Burnett ("Burnett"), was destined for the surplus list until Stubblefield instead hired him as the Forest Outplacement Coordinator for the Gifford Pinchot National Forest. Id.; Rauw Depo, pp. 128-29. Another male forest service employee, Alan Fowler ("Fowler"), was appointed to a vacant NEPA team leader position (a GS-11 position) even though his former position was a GS-9 positionand he had never worked in the Gifford Pinchot National Forest. Id. ¶¶ 8-10; Lee Dec, Ex 4, p. 6. In fact, Rauw was not even informed by the placement coordinator that this position was available. See Burnett Depo, p. 50. According to Rauw, "[u]nder the surplus system rules in effect at the time, I should have been offered the NEPA team leader job as a surplus employee who could perform the major duties and would not cause `undue disruption' to the work." Rauw Dec, ¶ 9.
The Secretary presents evidence that the Secretary correctly followed internal procedures in appointing Fowler, and not Rauw, for this position. See Declaration of Sandra Abbott ("Abbott Dec"). Rauw, however, raises a genuine issue of material fact as to this hire by presenting contrasting evidence. See Rauw Dec, Ex B ("These employees [on the surplus list] are entitled to first consideration for jobs that are vacant without having to apply for them.")
Furthermore, two male employees, Naylor and John Henshaw ("Henshaw"), told Rauw that "Stubblefield was taking care of them, not giving them directed reassignments to places they didn't want to go to for family reasons; giving them a series of acting positions on forests so they did not have to move; working closely with them to find career fits." Rauw Depo, p. 128. The Secretary, however, argues that this and other statements are inadmissable under Federal Rule of Evidence ("FRE") 602, 701, and 802. FRE 602 precludes testimony not based on the personal knowledge of the witness; FRE 701 limits opinion testimony of a witness; and FRE 802 prohibits hearsay testimony.
While some of Rauw's proposed testimony of what others told her is barred by these rules, other evidence is admissible based on her personal knowledge and is sufficient for purposes of this motion. For example, Rauw observed that the Secretary found work for other male employees, including Burnett, in the Gifford Pinchot National Forest, and did not transfer them out of the area. Rauw Depo, p. 129. In short, Rauw has presented some evidence that some similarly situated male employees were not placed on the surplus list and that, when placed on the list, some received more favorable treatment. On summary judgment, this court must view the evidence favorably to the nonmovant (Rauw), and the amount of evidence which she is required to produce to create her prima facie case is "very little." Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1111 (9th Cir 1991). Given that standard, Rauw has created a prima facie case of discrimination.
2. Prima Facie Case of Sex plus Marital Status Discrimination
In order to establish a prima facie case of sex plus marital status discrimination, Rauw relies primarily on direct evidence. Direct evidence of discrimination is evidence that, "if believed, proves the fact of discriminatory animus without inference or presumption." Godwin, 150 F.3d at 1221 (brackets omitted).
Were Rauw to rely on indirect evidence for her prima facie case, she would have to demonstrate that other similarly situated married male employees were treated more favorably. See e.g., Coleman, 108 F.3d at 1204. Despite a searching review of the evidence submitted, this court was unable to determine whether any of the similarly situated male employees identified by Rauw were married.
Here, Stubblefield told Rauw that she was placed on the surplus list to facilitate relocating to join her husband. Rauw Depo, p. 25. Furthermore, Randall Shepard explained that Rauw's marital status was definitely one factor in the decision to eliminate her position and place her on the surplus list. Shepard Depo, p. 40. He sent an e-mail to Rauw confirming this, stating, "[m]y recollection of the decision to place your position on the surplus list was a combination of funding and the likelihood that you would prefer the opportunity to relocate as a result of your husband's new job." Lee Dec, Ex C, p. 4. He also explained that, contrary to statements made by Stubblefield, that a "lack of funding was not identified as a critical factor" in the elimination of Rauw's position. Id. p. 54.
Given the light evidentiary burden necessary to establish a prima facie case, the Secretary's motion for summary judgment as to this claim should be denied. Simply put, the evidence presented by Rauw establishes a genuine issue of material fact as to whether improper sex plus marital status discrimination was a factor in the elimination of Rauw's position and her assignment to the surplus list.
3. The Employer's Nondiscriminatory Reasons
Once the plaintiff establishes a prima facie case of discrimination, the burden of production, "but not persuasion," shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged actions. Chuang, 225 F.3d at 1123-24.
The Secretary argues that he placed Rauw on the surplus list because of budget cuts and that his decision had nothing to do with Rauw's gender, gender plus marital status, or her alleged complaints of gender-based discrimination. Stubblefield stated that "Ms. Rauw was placed on the `96 surplus list because of reduced funding, specifically the loss of PNW Research Funding." Stubblefield Aff, pp. 1-2. The Secretary also insists that the directed reassignment to Tonasket was not based on either gender or gender plus marital status. Again, Stubblefield stated that the reassignment was ordered because Rauw "met all the qualifications and needs, and it was the best job that could be found. . . . Her reassignment to this forest had nothing to do with any attempts to rid [Gifford Pinchot National Forest] of her as an employee; nor was her gender or marital status involved." Id. p. 4.
Rauw, citing Reeves, argues that these nondiscriminatory reasons offered by the Secretary are insufficient because they are based solely on Stubblefield's admittedly "interested" testimony. Reeves, however, does not mandate that a court discount such "interested" or "biased" evidence at this stage in the proceedings. Instead, the Supreme Court in Reeves specifically noted that a defendant's burden at this stage "is one of production, not persuasion; it `can involve no credibility assessment.'" Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 142 (2000), quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993). Reeves cautions that on a motion for judgment as a matter of law, a court should review all of the evidence in the record as a whole, but "it must disregard all evidence favorable to the moving party that the jury is not required to believe." Id. at 151 (citation omitted). That means a court should give credence to the evidence favoring the nonmovant, as well as evidence supporting the moving party, which is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses. Id.
Thus, the Secretary's evidence is properly considered at this stage of the proceedings. As expressed above, the Secretary's burden at this stage is minimal — it is a burden of production, not persuasion. Id. at 142. Viewed with these authorities in mind, Stubblefield's affidavit suffices to establish nondiscriminatory legitimate reasons for the adverse employment actions at issue.
4. Plaintiff's Evidence of Pretext
Once the employer produces sufficient evidence to support a nondiscriminatory explanation for its decision, the plaintiff must raise a genuine factual question whether, viewing the evidence in the light most favorable to her, the employer's reasons are pretextual. Burdine, 450 U.S. at 253. This can be done in two ways: (1) indirectly, by showing that the employer's proffered explanation is not credible as it is "internally inconsistent or otherwise not believable;" or (2) directly, in showing that unlawful discrimination more likely motivated the employer. Chuang, 225 F.3d at 1127. These two approaches are not exclusive, because "it is the cumulative evidence to which a court ultimately looks." Id.
"Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Reeves, 530 U.S. at 147. This proof allows a trier of fact to "reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose." Id. Indirect evidence must, however, be "specific and substantial" in order to create a triable issue with respect to whether the employer intended to discriminate. See Godwin, 150 F.3d at 1221-22 (citations omitted).
Here, Rauw has produced ample indirect evidence that the Secretary's proffered nondiscriminatory reasons are pretextual. Contradicting Stubblefield's assertion that Rauw's position was eliminated solely based on budget reasons, Shepard testified that the management team on the Gifford Pinchot National Forest discussed eliminating Rauw's job at the same time they discussed her husband's new out-of-state job. Shepard Depo, pp. 40, 42. Furthermore, Shepard testified that, contrary to Stubblefield's statement, a "lack of funding was not identified as a critical factor" in eliminating Rauw's position. Id. p. 54 (emphasis added). Also, Stubblefield testified that Rauw was assigned to Tonasket because "it was the best job that could be found" and there were no available jobs for which she was qualified in the Gifford Pinchot National Forest. Stubblefield Aff, pp. 3-4. Rauw has presented evidence, however, that other jobs were available in the Gifford Pinchot National Forest for which she was qualified. For example, Rauw's prior supervisor, Greg Cox ("Cox"), testified that Rauw was qualified to fill the NEPA position that was instead given to Fowler, a male employee from another forest. See Cox Depo, pp. 43-44. Rauw has also introduced evidence that raises a question of fact as to whether the Secretary violated the letter, if not the spirit, of the regulations governing the surplus list when he gave the NEPA position to Fowler. See Rauw Dec, Ex B. Rauw's prima facie evidence that other similarly situated male employees were kept off the surplus list ( e.g., Burnett) and that others were taken off the surplus list and given jobs in the Gifford Pinchot National Forest ( e.g., Naylor) is also relevant at this stage of the analysis. See Chuang, 225 F.3d at 1127, citing Reeves, 530 U.S. at 147-49 (a plaintiff may survive summary judgment without producing any evidence of discrimination beyond that constituting her prima facie case, but only "if that evidence raises a genuine issue of material fact regarding the truth of the employer's proffered reasons").
Here, Rauw's cumulative evidence of sex and sex plus marital status discrimination does raise a genuine issue of material fact regarding the Secretary's reasons for his actions. Accordingly, the Secretary's summary judgment motion should be denied.
IV. Inference of Discrimination (Third Cause of Action)
Lastly, the Secretary moves for summary judgment against Rauw's retaliation claim, arguing once more that she has failed to establish an inference of discrimination.
In order to recover for retaliation, a plaintiff must demonstrate that:(1) she engaged in a protected activity; (2) she was subjected by her employer to an adverse employment action; and (3) a causal link exists between the activity and the adverse employment action. Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir 1988). Thereafter, the burden of production shifts to the employer to present legitimate reasons for the adverse employment action. Id. Once the employer carries this burden, the plaintiff must demonstrate a genuine issue of material fact as to whether the reason advanced by the employer was a pretext for unlawful discrimination. Id.
A. Prima Facie Case
Rather than contest the first two elements of the prima facie case, the Secretary argues instead that Rauw cannot establish the causal link between the adverse employment action and any protected activity. "The causal link may be established by an inference derived from circumstantial evidence, `such as the employer's knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision.'" Id. quoting Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir 1987); see also Miller v. Fairchild Indus., 797 F.2d 727, 731 (9th Cir 1986) (finding two months sufficient to establish causation which "may be inferred from the proximity in time between the protected action and the allegedly retaliatory discharge").
Rauw argues that the evidence demonstrates a genuine issue of material fact as to whether Stubblefield knew of her discrimination complaints before he placed her on the surplus list and before he reassigned her to a forest in the northeast corner of Washington. Rauw alleges that "[i]n approximately late 1995, [she] expressed her concerns about her advancement prospects to her supervisor, Ted Stubblefield, Forest Supervisor. Plaintiff told Mr. Stubblefield that she felt the [Gifford Pinchot National Forest] was not making sufficient efforts to diversify the management of the Forest." Complaint, ¶ 12. Rauw also alleges that in January 1996, approximately, she again complained to Stubblefield about the lack of women in higher positions in the Gifford Pinchot National Forest. Id. ¶ 14; Lee Dec, Ex 4, p. 5. However, a plaintiff opposing summary judgment "cannot rely on conclusory allegations unsupported by factual data to create an issue of material fact" See Delange, 183 F.3d at 921 (internal quotation marks and citation omitted). Because the Secretary denies these allegations, Rauw must submit supporting evidence to avoid summary judgment.
The only such evidence is Seekins' testimony that he told Stubblefield that "Deni [Rauw] thought — that she was concerned that she was not getting something because she was a female." Seekins Depo, p. 37. Although he could not remember when this conversation occurred, he believed that it could be before the surplus decision. Id. pp. 37-38. Thus, at some point Stubblefield knew that Rauw had complained about allegedly discriminatory treatment of women in the Gifford Pinchot National Forest. The question is whether Stubblefield knew of Rauw's complaints before he placed her on the surplus list. Given Seekins' testimony, albeit rather vague, a reasonable inference may be drawn that before Rauw was placed on the surplus list, either she complained to Stubblefield or Seekins relayed her complaints to Stubblefield.
The causal link in a retaliation claim may be established by the proximity in time between the protected action and the allegedly retaliatory employment decision. Jordan, 847 F.2d at 1376. In this case, given the rather light evidentiary burden associated with a prima facie case, Rauw has succeeded in presenting enough evidence to forestall summary judgment.
B. Legitimate Nondiscriminatory Reason
As in other employment discrimination claims, if the plaintiff makes out a prima facie case of retaliation, the burden then shifts to the defendant to articulate some legitimate, non-retaliatory reason for the adverse action. EEOC v. Hacienda Hotel, 881 F.2d 1504, 1514 (9th Cir 1989). As explained above, the Secretary has produced just such a legitimate, non-retaliatory reason for his actions, namely reduced funding and available reassignments.
C. Pretext
Once the employer is able to articulate a legitimate, non-retaliatory reason for its actions, the plaintiff then must prove that the employer's reason is mere pretext and that the decision was made in retaliation for the protected activity. Hacienda, 881 F.2d at 1514. "In determining whether there is a triable issue of fact, we must consider all the evidence, including that offered to establish the prima facie cases and to rebut [defendants] reason as pretextual together with any other evidence." Wallis, 26 F.3d at 892.
As discussed above, Rauw has submitted sufficient evidence of pretext and that she was placed on the surplus list and given an unwelcome directed reassignment because of her complaints of sex and sex plus marital status discrimination. Thus, the Secretary's motion for summary judgment as to the Third Claim for Relief should be denied.
RECOMMENDATION
For the reasons set forth above, the Secretary's Motion for Motion for Partial Summary Judgment (docket #26) should be GRANTED IN PART as to the alleged fire-fighting discrimination which occurred in 1996 and otherwise DENIED.
SCHEDULING ORDER
Objections to the Findings and Recommendation, if any, are due August 24, 2001. If no objections are filed, then the Findings and Recommendation will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than September 11, 2001. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will be referred to a district court judge and go under advisement.