Aimee Greene v. Buckeye Valley Fire Dept

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 30 2015
MOLLY C. DWYER, CLERK
AIMEE GREENE, No. 13-16102 U.S. COURT OF APPEALS
Plaintiff - Appellant, D.C. No. 2:11-cv-02351-NVW
v.
MEMORANDUM*
BUCKEYE VALLEY FIRE
DEPARTMENT et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted July 9, 2015
San Francisco, California
Before: GILMAN,** GRABER, and WATFORD, Circuit Judges.
Plaintiff Aimee Greene sued Buckeye Valley Fire Department and its
individual officers ("Defendants") under Title VII of the Civil Rights Act of 1964,
alleging gender discrimination and retaliation, and under 42 U.S.C. § 1983,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Ronald Lee Gilman, Senior United States Circuit Judge
for the Court of Appeals for the Sixth Circuit, sitting by designation.
alleging denial of equal protection. The district court granted Defendants’ motion
for summary judgment, and Plaintiff appeals. We have jurisdiction under 28
U.S.C. § 1291. Reviewing de novo, Vasquez v. County of Los Angeles, 349 F.3d
634, 639 (9th Cir. 2004), we affirm in part, reverse in part, and remand.
1. The district court did not err when it concluded that Plaintiff’s Title VII
claims arising out of "discrete acts of discrimination" that occurred before
February 3, 2010, are time-barred. See Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 105 (2002) (stating rule). The district court properly applied 42 U.S.C.
§ 2000e-5(e)(1), which sets forth the relevant limitations period. Alleged
discriminatory acts that occurred before February 3, 2010, may, however, be used
as background evidence to support Plaintiff’s timely claims. Morgan, 536 U.S. at
113.
Moreover, Plaintiff may sue directly under § 1983 for alleged discriminatory
acts that occurred less than two years before she filed her complaint. See Cholla
Ready Mix, Inc. v. Civish, 382 F.3d 969, 974 (9th Cir. 2004); Ariz. Rev. Stat.
§ 12-542 (establishing two-year statute of limitations for personal injury claims in
Arizona).
2. The district court erred when it granted Defendants’ motion for summary
judgment on Count I, Plaintiff’s claim for gender discrimination in violation of 42
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U.S.C. § 2000e-2(a)(1), except to the extent that the court entered summary
judgment for Defendants Benbow and Alexander in their individual capacities.
See Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1179 (9th Cir. 2003) (holding
that Title VII does not provide for a damages claim against supervisors or fellow
employees). Plaintiff presented sufficient evidence to create a genuine dispute of
material fact as to whether Defendants’ proffered nondiscriminatory reasons for
failing to promote her to full-time firefighter were pretextual. See Dominguez-
Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005) (describing the
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973)). She presented evidence, for example, that a number of the captains,
battalion chiefs, and crew members at Buckeye Valley Fire Department expressed
hostility toward Plaintiff because of her sex. She also presented evidence that the
prioritized hiring lists used to make full-time-firefighter promotion decisions are
generated almost exclusively through input from those same captains, battalion
chiefs, and crew members. That evidence, taken together, is sufficient to show a
"nexus" between the alleged discrimination and the subsequent promotion
decision. See Vasquez, 349 F.3d at 640 (requiring such a nexus).
Plaintiff did not, however, present sufficient evidence to create a genuine
dispute of material fact with respect to whether Defendants’ proffered
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nondiscriminatory reasons for failing to promote her to acting captain or captain
were pretextual. As to acting captain, those decisions were made by the Assistant
Chief and Fire Chief, neither of whom were shown to have shared the
discriminatory views of Plaintiff’s other colleagues. Moreover, the decisions were
made from an objective skills assessment, not a subjective prioritized hiring list;
the men who were selected for acting captain positions scored well in one of the
skills assessments. As to captain, those decisions were made by the Buckeye
Valley Fire Department’s District Board, independent of any alleged
discriminatory conduct by individual officers. See id. (concluding that
discriminatory remarks by subordinates cannot be imputed to independent and
legitimate employment decisions).
3. The district court erred in granting Defendants’ motion for summary
judgment on Count IV, retaliation. When evaluating the evidence at the summary
judgment stage, "the district court may not disregard a piece of evidence . . . solely
based on its self-serving nature." Nigro v. Sears, Roebuck & Co., 784 F.3d 495,
497–98 (9th Cir. 2015). Here, the court improperly rejected Plaintiff’s testimony
that, like her, other male reserves had not completed required training programs,
yet they remained on active status while she was placed on inactive leave status.
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Plaintiff’s testimony constitutes direct evidence of pretext sufficient to prevail on
Defendants’ motion.
4. As noted above, the record does not show that the Assistant Chief or the
Fire Chief shared the discriminatory views of others in the Department. But the
record does permit an inference that they knew of the pervasive discriminatory
attitudes of others in the department and knowingly failed to prevent
discriminatory or retaliatory failures to promote. Because Plaintiff presented
sufficient evidence to create genuine disputes of material fact as to Defendants’
intent to discriminate against her under Title VII, she also did so under § 1983.
Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1113 (9th Cir.
1991).
AFFIRMED in part, REVERSED in part, and REMANDED. Costs on
appeal awarded to Plaintiff -Appellant.
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