Diaz v. Eagle Produce ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABEL RUIZ DIAZ; UBALDO MORENO; 
PIEDAD H. RENTERIA; ALEJANDRO D.
MANCILLA,
Plaintiffs-Appellants, No. 06-15878
v.
 D.C. No.
CV-03-02127-MHM
EAGLE PRODUCE LIMITED
PARTNERSHIP; PHOENIX AGRO- OPINION
INVEST, INC.; SAM MANAGEMENT
INC.,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Argued and Submitted
February 15, 2008—San Francisco, California
Filed April 4, 2008
Before: William C. Canby, Jr., and Milan D. Smith, Jr.,
Circuit Judges, and Stephen G. Larson,* District Judge.
Opinion by Judge Milan D. Smith, Jr.
*The Honorable Stephen G. Larson, United States District Judge for the
Central District of California, sitting by designation.
3519
DIAZ v. EAGLE PRODUCE 3523
COUNSEL
George H. McKay, Community Legal Services, Phoenix, Ari-
zona, for the plaintiffs-appellants.
Emily M. Craiger and J. Greg Coulter, Littler Mendelson,
P.C., Phoenix, Arizona, for the defendants-appellees.
OPINION
MILAN D. SMITH, JR., Circuit Judge:
In this appeal we consider whether the district court appro-
priately entered summary judgment against four farm workers
who brought suit under the Age Discrimination in Employ-
ment Act (ADEA), 29 U.S.C. § 621 et seq., after being dis-
charged in the context of a seasonal slowdown in agricultural
activity. Applying the three-stage burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), we affirm in part, reverse in part, and remand for
trial on one worker’s claim of age discrimination.
I. BACKGROUND
Defendants-Appellees Phoenix Agro Invest, Inc., and SAM
Management, Inc., are general partners in Defendant-
3524 DIAZ v. EAGLE PRODUCE
Appellee Eagle Produce Limited Partnership (Eagle Produce),
which operates a commercial broccoli and melon farm in
Aguila, Arizona. The seasonal nature of farming these crops
creates a fluctuating need for laborers that corresponds with
periods of soil preparation, crop planting, and harvest. Eagle
Produce hires new workers or transfers existing employees to
satisfy its labor needs during periods of increased activity.
Conversely, it lays off workers or transfers them to other
operations when its need for labor decreases. Because work
on the farm generally slows down each year between the
melon harvest in the fall and planting in the spring, layoffs
and transfers tend to occur in the winter. Reflecting this trend,
the number of workers employed by Eagle Produce was 770
in July 2002, but only 332 in February of the same year.
Plaintiffs-Appellants Abel Ruiz Diaz, Ubaldo Moreno, Pie-
dad H. Renteria, and Alejandro D. Mancilla (collectively,
Plaintiffs) were laborers at Eagle Produce’s Aguila farm.
With the exception of Alejandro Mancilla, they were mem-
bers of a tractor crew known as Crew 94 that was responsible
for preparing the soil for planting. Plaintiffs were supervised
exclusively by Chet Daffern until May 2001, when Eagle Pro-
duce hired Owen Brandt to work as co-supervisor. Brandt
became the sole supervisor of Crew 94 when Daffern quit at
the end of December 2001. One of Brandt’s responsibilities
was to make crew personnel decisions.
The work available at the farm became particularly scarce
in the winter of 2001-2002. This was at least partly due to the
farm’s increased use of plastic mulching, a technique that
involves placing a thin layer of plastic over the soil to protect
it from the effects of the local climate. Fields covered with
plastic mulch, as opposed to other forms of mulch, require
significantly fewer hours to prepare. Even less preparation is
required for fields that use so-called second-year plastic
mulch, or plastic mulch laid down the previous year. From
2001 to 2002, the use of plastic mulch on Eagle Produce’s
cantaloupe fields increased from 2191.88 acres to 2690.25
DIAZ v. EAGLE PRODUCE 3525
acres. Within those totals, the acreage of second-year plastic
mulch increased from 287.4 to 1208.3 acres. The use of plas-
tic mulch for Eagle Produce’s honeydew and mixed melon
crops similarly increased from 70.4 acres in 2001 to 186.3
acres in 2002. The efficiency gained through the expanded
use of this technique allowed Crew 94 to prepare the same
amount of land with fewer hours of labor. The improved effi-
ciency in turn reduced Crew 94’s combined total work hours
from 13,710.75 hours in January and February 2001 to only
7,346 for the same two-month period in 2002.
Brandt laid off several workers during this period. He
claims that in deciding whose employment to terminate, he
did not consider the extent of the employee’s experience with
a tractor, how many years the employee had been working at
Eagle Produce, or the employee’s age or wage. Brandt did,
however, consider job performance, attitude, attendance, work
ethic, and the individual’s ability to work with others. Plain-
tiffs were among those whose employment was terminated.
The circumstances pertaining to each plaintiff are as follows:
Abel Ruiz Diaz
Diaz began working for Eagle Produce in August 1997 at
the age of 51. At the time, he had approximately seven years
of farm work experience. He drove a tractor at Aguila and,
during harvest season, drove a truck from which he sprayed
water onto the ground to reduce dust problems. Diaz was not
qualified to drive a planting tractor, a responsibility that
requires a certain level of technical expertise. Other than
missing work approximately once a month due to a drinking
problem, Diaz adequately fulfilled his duties at the farm.
On January 19, 2002, Brandt informed Diaz that he no lon-
ger had any work available. He offered Diaz a temporary
transfer to the harvest tractor crew, but Diaz declined the offer
because he was unfamiliar with that job, it was temporary, it
involved fewer hours, and, in his view, it would be difficult
3526 DIAZ v. EAGLE PRODUCE
to perform in light of a medical condition that precluded him
from lifting objects heavier than fifty pounds. Shortly thereaf-
ter, Diaz was laid off. He was 55 years old at the time. An
Eagle Produce notice states that he was laid off “due to reduc-
tion of work.”
Ubaldo Moreno
Moreno began working for Crew 94 as a tractor and water-
truck driver in June 2000, at the age of 65. He was a depend-
able worker, but had a history of damaging Eagle Produce
property, including an irrigation ditch in June 1998 and a
“disc and tractor” in March 2000. He also allowed unautho-
rized persons to drive Eagle Produce equipment in October
2001. On February 5, 2002, a tractor broke down while he
was driving it, necessitating approximately $10,000 in repairs.
Eagle Produce laid off Moreno the next day due to “reduction
of work.” He was 66 years old. Moreno’s “history of damag-
ing” Eagle Produce property was considered in selecting him
as one of the workers to lose his job.
Piedad H. Renteria
Renteria worked as a tractor driver for Crew 94 and as a
planting-tractor driver.1 He also operated his own check-
cashing business at the farm in violation of a company policy
that prohibited solicitation on Eagle Produce property. On
paydays, he would park his truck in front of the farm’s office
and cash his coworkers’ paychecks in exchange for a small
fee. He maintained this business for several years without
ever being reprimanded or told to stop. Once Brandt became
aware of the business, he warned Renteria to stop. Brandt
gave the warning orally with the assistance of a translator to
ensure that Renteria understood. Renteria indicated that he
1
It is unclear whether he began this employment in 1978 at the age of
approximately 41 or in 1987 at the age of 51, but the difference is ulti-
mately inconsequential. See infra § III.A.1.
DIAZ v. EAGLE PRODUCE 3527
understood the warning, but nevertheless promptly resumed
his business. Brandt dismissed him on February 23, 2002.
Renteria was 65 years old at the time. Eagle Produce explains
that Renteria was “laid off due to a seasonal work slow down,
reduction in work and repeated violations of rules established
in the Company Handbook.” Renteria was not the only
employee who cashed checks on Eagle Produce property, but,
to his knowledge, he was the only one disciplined for doing
so.
Alejandro Mancilla
Eagle Produce hired Mancilla when he was 58 in October
1996 to test GPS equipment on farm tractors. After that task
was completed, Brandt hired Mancilla to work as a water-
truck driver. In that capacity, Mancilla accidentally broke the
bottom of a chemical trailer on January 23, 2002, and once
received a verbal warning for failure to wear safety equip-
ment. As work became unavailable at the end of the melon
harvest, Brandt laid him off on February 5, 2002. Mancilla
was 63 years old at the time. The employment-action notice
states that he was laid off “due to reduction of work,” but
Eagle Produce also considered the damage that Mancilla
caused to the trailer and his failure to wear safety equipment
in deciding to terminate his employment. Mancilla never
worked for Crew 94 when Brandt was the supervisor and was
not qualified for planting. Eagle Produce has indicated that
Mancilla is eligible for rehire when more work becomes
available.
Plaintiffs filed an action in district court seeking declara-
tory relief and damages on the theory that their terminations
violated the ADEA, the Migrant and Seasonal Agricultural
Worker Protection Act, 29 U.S.C. § 1854 et seq., and the
Americans with Disabilities Act, 42 U.S.C. § 12111 et seq.
The district court granted Defendants-Appellees’ motion for
summary judgment on all claims. The workers appeal only the
disposition of their ADEA claim.
3528 DIAZ v. EAGLE PRODUCE
II. STANDARD OF REVIEW AND JURISDICTION
We review de novo a district court’s grant of summary
judgment pursuant to Federal Rule of Civil Procedure 56.
Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004). Rule
56(c) provides that summary judgment is warranted when the
“pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.” A “genuine issue” of material fact will be
absent if, upon “viewing the evidence and inferences which
may be drawn therefrom in the light most favorable to the
adverse party, the movant is clearly entitled to prevail as a
matter of law.” Jones v. Halekulani Hotel, Inc., 557 F.2d
1308, 1310 (9th Cir. 1977). Summary judgment is inappropri-
ate if reasonable jurors, drawing all inferences in favor of the
nonmoving party, could return a verdict in the nonmoving
party’s favor. United States v. Shumway, 199 F.3d 1093,
1103-04 (9th Cir. 1999).
We have jurisdiction pursuant to 28 U.S.C. §§ 1331 and
1291.
III. DISCUSSION
[1] The ADEA makes it unlawful “to discharge any indi-
vidual . . . because of such individual’s age.” 29 U.S.C.
§ 623(a)(1). We evaluate ADEA claims that are based on cir-
cumstantial evidence of discrimination by using the three-
stage burden-shifting framework laid out in McDonnell Doug-
las Corp. v. Green, 411 U.S. 792 (1973). Enlow v. Salem-
Keizer Yellow Cab Co., 389 F.3d 802, 812 (9th Cir. 2004).
Under this framework, the employee must first establish a
prima facie case of age discrimination. Coleman v. Quaker
Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000). If the
employee has justified a presumption of discrimination, the
burden shifts to the employer to articulate a legitimate, non-
discriminatory reason for its adverse employment action. Id.DIAZ v. EAGLE PRODUCE 3529
If the employer satisfies its burden, the employee must then
prove that the reason advanced by the employer constitutes
mere pretext for unlawful discrimination. Id. “As a general
matter, the plaintiff in an employment discrimination action
need produce very little evidence in order to overcome an
employer’s motion for summary judgment.” Chuang v. Univ.
of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir.
2000).
A. The Prima Facie Cases
[2] Each plaintiff can establish a prima facie case of dispa-
rate treatment by demonstrating that he was (1) at least forty
years old, (2) performing his job satisfactorily, (3) discharged,
and (4) either replaced by substantially younger employees
with equal or inferior qualifications or discharged under cir-
cumstances otherwise “giving rise to an inference of age dis-
crimination.” Coleman, 232 F.3d at 1281.2 An inference of
discrimination can be established by “showing the employer
had a continuing need for [the employees’] skills and services
in that their various duties were still being performed . . . or
by showing that others not in their protected class were
treated more favorably.” Id. (quotation marks and citation
omitted).
2
Generally, an employee can satisfy the last element of the prima facie
case only by providing evidence that he or she was replaced by a substan-
tially younger employee with equal or inferior qualifications. Id. The test
for the prima facie case changes somewhat, however, where a discharge
occurs in the context of a general reduction in the employer’s workforce.
In this context, circumstantial evidence other than evidence concerning the
identity of a replacement employee may also warrant an inference of dis-
crimination. Id.; Ritter v. Hughes Aircraft Co., 58 F.3d 454, 457 (9th Cir.
1995). The reason for this difference is that in most reduction-in-force
cases no replacements will have been hired. We presently apply the modi-
fied test because there is no genuine dispute that the discharge of Plaintiffs
occurred in the context of a general reduction in the number of workers
employed at the Aguila farm in the winter of 2001-2002.
3530 DIAZ v. EAGLE PRODUCE
[3] Plaintiffs were each over forty years old and were dis-
charged after the commencement of their protected status.
Eagle Produce does not dispute that these elements of the
workers’ prima facie cases have been satisfied. The only
questions, then, are whether Plaintiffs were performing their
jobs satisfactorily and whether they were discharged under
circumstances giving rise to an inference of age discrimina-
tion.
For the reasons explained below, we conclude that the dis-
trict court appropriately granted summary judgment against
Renteria because he failed to create a triable issue concerning
whether his job performance was satisfactory. We also con-
clude, however, that the district court erred in granting sum-
mary judgment against Diaz, Moreno, and Mancilla based on
the first stage of the McDonnell Douglas analysis. Those
plaintiffs provided evidence of satisfactory job performance
and an accumulation of circumstantial evidence that, taken
together, could lead reasonable jurors to draw an inference of
age discrimination.
1. Whether the workers’ job performances were
satisfactory
[4] Diaz, Mancilla, and Moreno have each established a tri-
able issue of fact regarding the second element of the prima
facie case. Diaz and Mancilla generally performed depend-
ably and without incident. Deficiencies in their performance
were relatively minor and infrequent. The issue is closer for
Moreno because he damaged Eagle Produce property three
times over the course of approximately four years and once
violated a company safety rule, but those incidents were also
relatively infrequent. Moreover, there is no evidence that
Moreno caused any of the damage intentionally or recklessly,
and his supervisor generally found him to be dependable.
[5] The same cannot be said of Renteria, who over an
extended period openly violated Eagle Produce’s policy
DIAZ v. EAGLE PRODUCE 3531
against solicitation on company property and continued to do
so even after receiving a warning from Brandt. Considering
that behavior, no reasonable juror could find that Renteria’s
performance was satisfactory. See Mungro v. Giant Food,
Inc., 187 F. Supp. 2d 518, 522 (D. Md. 2002) (citing cases for
the proposition that “[a] plaintiff who violates company pol-
icy and fails to improve his performance despite a warning
has not demonstrated satisfactory performance”). Because
Renteria has failed to establish a prima facie case of discrimi-
nation, we do not complete the remainder of the McDonnell
Douglas analysis with respect to his claim.
[6]2. Whether the circumstances give rise to an
inference of discrimination
Although it is a close question, we conclude that Diaz,
Mancilla, and Moreno have also created a triable issue of fact
concerning the fourth and final requirement for a prima facie
case. This conclusion draws support from a variety of circum-
stantial evidence.
i. Statistical evidence
Including Plaintiffs, the average age of the sixteen workers
laid off or discharged from Crew 94 in 2001 and 2002 is 48.4.3
3
We derive the figures used in this analysis from the employees’ dates
of birth, hire, and last pay check, as listed in the Eagle Produce Employees
Chart and amended by the exhibits attached to Defendants-Appellees’
Supplemental Statement of Facts in Support of Their Motion for Summary
Judgment. At oral argument, Eagle Produce suggested that the Chart was
an improper basis for a statistical analysis. If the argument is that the Chart
is inadmissible under the Federal Rules of Evidence, we reject the argu-
ment as waived. The district court already ruled that the Chart is admissi-
ble, and Eagle Produce did not contest that decision in its brief on appeal.
See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We review
only issues which are argued specifically and distinctly in a party’s open-
ing brief.”). If Eagle Produce is arguing simply that the Chart contains
inaccuracies, our analysis accounts for them by incorporating into the
Chart the amendments provided in Defendants-Appellees’ Supplemental
Statement of Facts.
3532 DIAZ v. EAGLE PRODUCE
Three of those workers were 20, 21 and 30 years old, respec-
tively. While the majority fell within the age category pro-
tected by the ADEA, most were also hired after the age of
forty. One was hired at 69 years of age, only a year and a half
before the disputed layoffs. Another was hired in July 2001
at age 65. Several others were hired when they were in their
mid- to late-forties.
Sixteen other workers were hired for Crew 94 in 2001 and
2002 and not subsequently discharged. Their average age at
the time of hiring was 38.75. Nearly half of them were 40 or
more years old, including one who was 63 and two who were
57.
On its own, this evidence would suggest that an inference
of discrimination is not warranted. Eagle Produce laid off
many of the Crew 94 employees, including Plaintiffs, only
shortly after hiring them at what were already relatively
advanced ages. Diaz was hired at 51 and laid off four years
later at 55. Moreno was hired at 65 and laid off at 66. Man-
cilla was hired at 58 and laid off at 63. If Eagle Produce was
biased against older workers, it presumably would not have
hired Plaintiffs in the first place. The temporal proximity
between each Plaintiff’s hiring and layoff also makes it
unlikely that age later developed as the reason for the dis-
charges. The difference in physical and mental capacity
between an average 65 year-old and an average 66 year-old,
or between a 58 year-old and a 63 year-old, is not significant
enough to warrant an inference of anything but the most arbi-
trary bias. See Bradley v. Harcourt, Brace & Co., 104 F.3d
267, 270-71 (9th Cir. 1996) (“[W]here the same actor is
responsible for both the hiring and the firing of a discrimina-
tion plaintiff, and both actions occur within a short period of
time, a strong inference arises that there was no discrimina-
tory motive.”).
That the average age of the workers hired during the two-
year period is approximately nine and a half years younger
DIAZ v. EAGLE PRODUCE 3533
than the average age of those laid off—38.75 versus 48.4
years—also fails to justify an inference of age discrimination.
The disparity is not so stark as to suggest bias rather than pure
chance. See O’Connor v. Consol. Coin Caterers Corp., 517
U.S. 308, 313 (1996) (“In the age discrimination context . . .
an inference [of discriminatory intent] cannot be drawn from
the replacement of one worker with another worker insignifi-
cantly younger.”); Hartley v. Wis. Bell, Inc., 124 F.3d 887,
893 (7th Cir. 1997) (holding that replacement employees must
be at least ten years younger than their predecessors to justify
a presumption of age discrimination). This is particularly true
because the two data sets of sixteen workers are too small to
form a reliable basis for analysis. See Palmer, 794 F.2d at 539
(finding certain statistical evidence of employment discrimi-
nation unpersuasive because the sample size was too small).
[7] A different picture emerges, however, when we con-
sider the data with Brandt in mind. He first began to make
personnel decisions for Crew 94 when he was hired as a
supervisor in May 2001. The average age of the workers hired
before that date was 44.29. For the period of May 2001 to
January 2002, during which Daffern and Brandt both made
personnel decisions, the average age of Crew 94 hirees
dropped to 40.8. Once Brandt took over as the sole hiring
authority, the average age dropped still further to 35.28. By
contrast, the average age of workers laid off from Crew 94
increased slightly from 46.2 during the period of Daffern’s
and Brandt’s joint supervision to 51.1 after Brandt became the
sole supervisor. In short, the disparity between the average
age of those hired and those laid off increased from slightly
less than two years to nearly 16 years once Brandt started to
make personnel decisions. This evidence suggests that
although Eagle Produce was not responsible for discrimina-
tory hiring practices prior to Brandt’s advent, Brandt used his
authority to replace older workers with younger counterparts.
[8] Reasonable jurors could find that this interpretation of
the data supports an inference of discrimination. Viewing the
3534 DIAZ v. EAGLE PRODUCE
statistical evidence with Brandt in mind helps to explain how
Eagle Produce could both hire Plaintiffs without regard to age
and also terminate their employment because of age shortly
thereafter. Because Brandt did not work at Eagle Produce
until May 2001, he could not preclude the hiring of Mancilla
in approximately 1996, Diaz in 1997, and Moreno in 2000.
However, he could lay off these workers because of their ages
in the winter of 2002.
ii. Knowledge of the workers’ ages
[9] The inference of discrimination also draws support from
Brandt’s knowledge that his hirees were on average substan-
tially younger than the workers he laid off. Brandt did not
know the precise ages of Diaz, Moreno, and Mancilla, but he
must have possessed a general sense that these individuals
were relatively advanced in age because he personally
observed them at the farm on a regular basis. See Woodman
v. WWOR-TV, Inc., 411 F.3d 69, 80 (2d Cir. 2005) (on-the-job
contact is sufficient to warrant an inference of an employer’s
knowledge of age). Because of his final position as the sole
hiring authority for Crew 94, the crew’s moderate size, and
his daily contact with its workers, Brandt also must have
known that the individuals he hired in 2002 were younger
than those he laid off. Id. In concluding otherwise, the district
court failed to construe the evidence in the light most favor-
able to Plaintiffs. See Jones, 557 F.2d at 1310.
iii. The decision not to fire several younger, less
experienced workers
[10] Reasonable jurors could find that Brandt’s decision not
to lay off several substantially younger workers with less
experience than Diaz, Moreno, and Mancilla also supports an
inference of discrimination. One worker was 19 years old and
had approximately five months of experience in Crew 94 at
the time Plaintiffs lost their jobs. Another was 21 years old
and had approximately two years of experience in Crew 94.
DIAZ v. EAGLE PRODUCE 3535
Another was 36 and possessed about 1.5 years of experience.
Still another was 42 and had two months of experience. At the
very least, these individuals had no more experience at the
Aguila farm than Diaz, Moreno, and Mancilla, who worked
there for 4, 1.5, and 5 years, respectively. Nevertheless,
Brandt chose not to fire any of these younger workers during
the seasonal slowdown.
iv. The qualifications of Plaintiffs relative to their
replacements
[11] Evidence concerning the job experience of Diaz and
Moreno relative to that of their replacements provides addi-
tional support for an inference of discrimination. Seven indi-
viduals were hired around or shortly after the dates on which
Plaintiffs lost their jobs. Due to a lack of evidence, the qualifi-
cations of three of those hired cannot be determined. Two oth-
ers were hired successively to operate a grading machine with
which Diaz, Moreno, and Mancilla had no experience.
Accordingly, they cannot be viewed as replacements. The
remaining two workers were Javier Gastelum (28) and Jesus
F. Valdez (21). Gastelum purportedly had 15 years of experi-
ence driving a tractor at the time he was hired. Valdez had
around five years of experience with a tractor and “knew a lit-
tle” about that line of work.
This evidence creates a triable issue of fact as to whether
Diaz and Moreno were at least as qualified as their succes-
sors. Diaz had driven tractors and performed general farm
labor for eleven years. Valdez was no more qualified in terms
of length of experience. Gastelum had driven a tractor longer
than either Diaz or Moreno, but it is unlikely that this differ-
ence made Gastelum more qualified in any meaningful sense.
The parties do not dispute that the job did not require special-
ized training, and the learning curve was not such that years
of experience were required for mastery.
3536 DIAZ v. EAGLE PRODUCE
[12] The district court erred in weighing against Plaintiffs
the absence of evidence that particular, less-qualified, youn-
ger workers were hired in their steads. It is true that, due to
high turnover in Crew 94, Plaintiffs are unable to identify
their individual replacements. However, we treat the last ele-
ment of the prima facie case with “flexibility.” Nidds v.
Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir. 1996).
To support an inference of discrimination an employee need
not demonstrate that one particular individual was designated
as his replacement; evidence that a group of younger and
comparably or less-qualified employees assumed the plain-
tiff’s responsibilities is sufficient. See Rodriguez-Torres v.
Carribean Forms Mfr., Inc., 399 F.3d 52, 59 (1st Cir. 2005).
It is therefore enough that Diaz and Moreno identified Gas-
telum and Valdez as their collective replacements.4
B. Facial legitimacy of the explanations for the layoffs
[13] Moving to the next stage of the analysis, we conclude
that Eagle Produce did not offer a legitimate, non-
discriminatory explanation for the layoff of Diaz. To suffice
under McDonnell Douglas, an employer’s explanation must
explain why the plaintiff “in particular” was laid off. Davis v.
Team Electric Co., ___ F.3d ___, No. 05-35877, slip op. at
3191 (9th Cir. Mar. 28, 2008); see also McDonnell Douglas
4
Unlike Diaz and Moreno, Mancilla has failed to create a triable issue
concerning whether he was replaced by younger workers who were
equally or less qualified. There is no evidence that he was actually
replaced by any of the younger workers. Because Mancilla was not
employed in Crew 94, none of the individuals subsequently hired to that
group can fairly be viewed as his replacements. Nevertheless, the remain-
ing circumstantial evidence is still cumulatively sufficient to permit rea-
sonable jurors to infer that Mancilla was discriminated against because of
his age. See Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)
(“The requisite degree of proof necessary to establish a prima facie case
for . . . ADEA claims on summary judgment is minimal and does not even
need to rise to the level of a preponderance of the evidence.”); Coleman,
232 F.3d at 1281 (evidence of replacement is not essential where a dis-
charge occurs in the context of a general workforce reduction).
DIAZ v. EAGLE PRODUCE 3537
Corp., 411 U.S. at 803 (concluding that the employer-
petitioner satisfied its burden at this stage by specifying “[the
employee’s] participation in unlawful conduct . . . as the
cause for his rejection”). On its own, the explanation that Diaz
was discharged as part of a general reduction in force fails
this requirement. Workforce reduction explains why Eagle
Produce laid off a group of its workers, but it does not explain
why Diaz was chosen to be part of that group. Because no
other explanation was given with respect to Diaz, Eagle Pro-
duce failed to satisfy its burden at stage two on his claim, and
summary judgment was inappropriate.5
[14] Eagle Produce did, however, provide legitimate, non-
discriminatory explanations for the layoffs of Moreno and
Mancilla by stating that they were each chosen to be part of
the reduction in force because of damage caused to company
property. Those explanations were individualized, unlike the
explanation given to Diaz, and reflected concerns about job
performance unrelated to the workers’ protected status. See
Pottenger v. Potlatch Corp., 329 F.3d 740, 746 (9th Cir.
2003) (performance-related concerns satisfied stage two under
5
Our prior cases do not require otherwise. Aragon v. Republic Silver
State Disposal, Inc., 292 F.3d 654, 661 (9th Cir. 2002), stated in dictum
that a seasonal reduction in force and an employee’s poor job performance
“[b]oth constitute a legitimate, nondiscriminatory reason for terminating”
an employee. Because the employee in Aragon was discharged in the con-
text of a reduction in force and selected to be part of the reduction because
of poor performance, id. at 657-58, Aragon did not decide whether a
reduction in force, standing alone, can suffice under stage two of McDon-
nell Douglas. Moreover, the quoted text from Aragon cited exclusively to
dictum from the dissenting judge in Winarto v. Toshiba America Electron-
ics Componenents, Inc., 274 F.3d 1276, 1295 (9th Cir. 2001) (Wardlaw,
J., concurring in part and dissenting in part), another case involving an
employee laid off in the context of a reduction in force because of perfor-
mance. None of the cases on which the dictum in Winarto relied involved
an employer who explained a layoff solely as a product of workforce
reduction. See id. (citing Sengupta v. Morrison-Knudsen Co., Inc., 804
F.2d 1072, 1075 (9th Cir. 1986) (citing Gay v. Waiters’ & Dairy Lunch-
men’s Union, Local No. 30, 694 F.2d 531, 547 (9th Cir. 1982))).
3538 DIAZ v. EAGLE PRODUCE
the McDonnell Douglas framework). The presumption of dis-
crimination that was created by the prima facie cases accord-
ingly disappears with respect to Moreno and Mancilla. Wallis,
26 F.3d at 892.
C. Pretext
The final stage of the McDonnell Douglas analysis requires
Moreno and Mancilla to raise a genuine issue of fact concern-
ing whether the facially legitimate reasons proffered by Eagle
Produce are pretextual. Coleman, 232 F.3d at 1281. The
workers may demonstrate pretext “either directly by persuad-
ing the court that a discriminatory reason likely motivated
[Eagle Produce] or indirectly by showing that [the compa-
ny’s] proffered explanation is unworthy of credence.” Snead
v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1093-94 (9th
Cir. 2001) (internal quotation marks and citation omitted).
Plaintiffs argue that the explanations for their layoffs lack
credibility for three reasons. First, they contend that a sea-
sonal slowdown did not reduce Eagle Produce’s need for trac-
tor workers. Second, they argue that Eagle Produce offered
inconsistent explanations for the layoffs. Finally, they contend
that the explanations lack credibility because Brandt violated
the company handbook by terminating workers without con-
sidering the lengths of their employment. We address these
arguments in turn.
1. The seasonal slowdown
[15] There is no dispute that Eagle Produce’s need for trac-
tor workers decreased in the winter of 2001-2002. The total
number of employees at the Aguila farm in February 2002,
including non-tractor workers, was less than half of the num-
ber employed in July of the same year. According to John
Redmond, the vice president of Phoenix Agro Invest, the effi-
ciency gained by the increased use of plastic mulch reduced
Crew 94’s total work hours from 13,710.75 in January and
DIAZ v. EAGLE PRODUCE 3539
February 2001 to only 7346 for the same period in 2002. Daf-
fern corroborated this testimony.
Brandt continued to hire new workers during the slow-
down, but that does not suggest that the slowdown did not
occur. He hired two workers for Crew 94 in December 2001
and four more in the first two months of 2002, but the evi-
dence clearly suggests that the hires were necessitated by the
decisions of five other workers to quit during the same period.
There is no evidence that Crew 94’s operations ceased alto-
gether in the winter. Brandt needed to make some hires to sus-
tain a minimum operational level even during the slowdown.
Evidence that Eagle Produce’s need for tractor drivers does
not decline during the winter similarly fails to create a genu-
ine issue of fact. Daffern testified that tractor drivers perform
a “consistent” amount of work “year-round.” Gilberto
Vigueria testified that there is “more work for tractor drivers
from January to June than from July to December.” This is
consistent with other evidence that planting for the melon
crop begins in the spring. Because Crew 94’s primary duty
was to prepare the soil prior to planting, its work for the
melon crop would presumably have to begin in the winter, or
at least by the early spring. However, none of this evidence
actually conflicts with the evidence that the winter of 2002
was particularly slow. The testimony of Daffern and Vigueria
addressed the amount of work generally available for the trac-
tor crew within a single year; it did not compare the amount
of work available in the winter of 2002 to the amount avail-
able in previous winters. Thus, even accepting the testimony
as true, there is no reason to discount the specific evidence
that factors such as the expanded use of plastic mulch caused
a unique drop in Eagle Produce’s need for laborers around the
time Moreno and Mancilla were laid off.6
6
There is a genuine issue of fact as to whether the need for laborers also
declined as a result of Eagle Produce’s decision not to produce a broccoli
crop in 2002. Brandt testified to that effect, but company records and Ste-
3540 DIAZ v. EAGLE PRODUCE
[16] From the conclusion that a seasonal slowdown
occurred, however, it does not necessarily follow that there is
no triable issue of fact concerning pretext. The slowdown
could justify only a workforce reduction that comparably
affects laborers from different age groups. It cannot explain
the statistical evidence suggesting that Brandt had a tendency
to fire older workers and hire substantially younger replace-
ments. It also cannot explain the evidence that Brandt fired
Moreno and Mancilla while retaining younger workers with
less experience and later hired younger workers who were for
the most part no more qualified than Plaintiffs. We therefore
conclude that, even if the slowdown-induced reduction in
force could independently stand as a sufficiently individual-
ized explanation for the layoffs under stage two of McDonnell
Douglas, there would be a triable issue of fact concerning pre-
text to the extent that the explanation was unaccompanied by
any employee-specific justification for discharge.
2. The consistency of Eagle Produce’s explanations
for the layoffs
We reject the premise of Plaintiffs’ argument that inconsis-
tency between the explanations for the layoffs renders the
explanations not credible. Eagle Produce proffered at least
two justifications for the layoffs of both Moreno and Mancilla
—an overall workforce reduction and performance deficien-
cies. Those explanations were each different, but not inconsis-
tent. The reasonable interpretation is that the seasonal
downturn necessitated a certain number of layoffs and that
Eagle Produce considered job performance in deciding whom
to lay off. See Aragon, 292 F.3d at 661 (“We do not infer pre-
phen A. Martori, one of Eagle Produce’s limited partners, contradict him.
Construing this evidence in the light most favorable to Plaintiffs, reason-
able jurors could conclude that the work available for Crew 94 did not
appreciably decline in the winter as a result of a decision to not produce
broccoli. However, that conclusion does not undermine the other evidence
that work became scarce because of the expanded use of plastic mulch.
DIAZ v. EAGLE PRODUCE 3541
text from the simple fact that [an employer] had two different,
although consistent, reasons for laying off” an employee.).
3. Brandt’s failure to follow the company
handbook
[17] Plaintiffs also argue that summary judgment is inap-
propriate in part because of evidence that Brandt violated a
company policy in terminating their employment. We agree.
Brandt testified that he did not consider the length of the
workers’ employment at the Aguila farm prior to laying them
off. This violated Eagle Produce’s company handbook, which
required him to consider “skill, ability, attendance, production
records, and the length of employment.” Reasonable jurors
could conclude that this irregularity further undermines the
credibility of the proffered explanations for the layoffs: if age
was truly irrelevant to Brandt’s decisionmaking, he presum-
ably would not have failed to weigh the factor in the hand-
book that weighed most heavily in favor of retaining older
workers. The evidence is consistent with the view that Brandt
disregarded company policy because it conflicted with his
intent to discriminate. See Brennan v. GTE Govt. Sys. Corp.,
150 F.3d 21, 29 (1st Cir. 1998) (“Deviation from established
policy or practice may be evidence of pretext.”).
4. Moreno and Mancilla have not presented
sufficient evidence to avoid summary judgment
on pretext
[18] Notwithstanding the foregoing analysis, we find that
Moreno has failed to create a genuine issue of fact concerning
pretext. The evidence that he caused significant damage to
Eagle Produce property over the course of several years is
undisputed. Brandt testified that he did not fire Moreno on the
basis of two incidents of property damage that occurred
before May 2001, but Moreno was also responsible for other
damage in October 2001 and February 2002. Moreno fails to
account for evidence that these latter incidents were the genu-
3542 DIAZ v. EAGLE PRODUCE
ine basis for his termination. The February 2002 incident
alone resulted in $10,000 in repairs. That Brandt fired Moreno
the day after that incident leaves little doubt that the property
damage, rather than age, motivated Brandt’s decision.7
[19] Mancilla has similarly failed to establish a genuine
issue concerning the credibility of the explanation for his ter-
mination. Brandt testified that he laid off Mancilla because
there was no need for water truck drivers in the winter after
the close of the melon harvest. That testimony is uncontro-
verted and establishes that seasonal slowdown was in fact the
reason for Mancilla’s discharge.
Our conclusions that the seasonal slowdown cannot inde-
pendently explain the indicia of age discrimination in the sta-
tistical evidence and that Brandt failed to follow the company
handbook do not undermine the credibility of Eagle Produce’s
explanations for the layoffs of Mancilla and Moreno. Even
with such general circumstantial evidence of discrimination,
no reasonable juror could find pretext in light of the specific
and uncontroverted evidence that nondiscriminatory consider-
ations motivated the individual discharges of these two work-
ers.
7
This conclusion is not inconsistent with the finding that Moreno pro-
vided sufficient evidence of satisfactory job performance to avoid sum-
mary judgment at the first stage of the McDonnell Douglas analysis. The
focus of the pretext inquiry is not to determine whether Eagle Produce was
correct in determining that Moreno’s job performance was unsatisfactory,
but simply whether Moreno’s performance was the real reason for the ter-
mination. Douglas v. Anderson, 656 F.2d 528, 533 n.5 (9th Cir. 1981); see
also DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998)
(“[W]hen an employer articulates a reason for discharging the plaintiff not
forbidden by law, it is not our province to decide whether the reason was
wise, fair, or even correct, ultimately, so long as it truly was the reason
for the plaintiff’s termination.”) (internal quotation marks and citation
omitted).
DIAZ v. EAGLE PRODUCE 3543
IV. CONCLUSION
For the foregoing reasons, we hold that Renteria failed to
create a triable issue of fact as to whether his job performance
was satisfactory, and thus failed to establish a prima facie
case of age discrimination. Summary judgment was appropri-
ately entered against him. We also hold, however, that Diaz,
Moreno, and Renteria provided evidence of satisfactory job
performance and an accumulation of circumstantial evidence
that, taken together, could lead a reasonable juror to draw an
inference of age discrimination. Eagle Produce did not pro-
vide a facially legitimate explanation for Diaz’s discharge in
stating that the discharge was part of a reduction in force
necessitated by a seasonal slowdown in agricultural activity.
Summary judgment was therefore inappropriate with regard
to Diaz. Eagle Produce’s explanations for the discharges of
Moreno and Mancilla were facially legitimate, but Moreno
and Mancilla failed to create a genuine issue as to the credi-
bility of those explanations. The district court therefore appro-
priately entered summary judgment against Moreno and
Mancilla.
We AFFIRM the entry of summary judgment on the ADEA
claims of Ubaldo Moreno, Piedad H. Renteria, and Alejandro
D. Mancilla. We REVERSE the entry of summary judgment
on the ADEA claim of Abel Ruiz Diaz and REMAND for
trial on that claim. The parties will bear their own costs on
appeal.