Noyes v. Kelly Services

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LYNN NOYES,  No. 04-17050
Plaintiff-Appellant, D.C. No.
v.  CV-S-02-02685-
KELLY SERVICES, a corporation, GEB/PAN
Defendant-Appellee.
 OPINION
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted
November 15, 2006—San Francisco, California
Filed May 29, 2007
Before: Procter Hug, Jr. and M. Margaret McKeown,
Circuit Judges, and Barry Ted Moskowitz,* District Judge.
Opinion by Judge McKeown
*The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
6291
NOYES v. KELLY SERVICES 6295
COUNSEL
M. Catherine Jones, Law Office of M. Catherine Jones,
Nevada City, California, for the plaintiff-appellant.
Tyler M. Paketau, Winston & Strawn LLP, San Francisco,
California, for the defendant-appellee.
OPINION
McKEOWN, Circuit Judge:
In this employment discrimination case, we address the
plaintiff’s burden to raise a triable issue of fact as to pretext
under the familiar McDonnell Douglas burden-shifting regime
in the context of a less familiar claim of “reverse” religious
discrimination. Lynn Noyes alleges that a supervisory
employee at her former employer, Kelly Services, Inc.
(“Kelly Services”), was a member of a small religious group,
the Fellowship of Friends (“Fellowship”), and that he repeat-
edly favored and promoted other Fellowship members. Noyes
claims that she was passed over for a promotion because she
does not adhere to the religious beliefs of the Fellowship, and
that a Fellowship member was promoted instead. She appeals
6296 NOYES v. KELLY SERVICES
the district court’s order granting summary judgment in favor
of Kelly Services on her Title VII disparate treatment claim
and dismissing her state law claims for lack of subject matter
jurisdiction.
We reverse the grant of summary judgment as to Noyes’
disparate treatment claim because the district court misapplied
the applicable standard on summary judgment and because
genuine issues of material fact exist as to pretext. We also
reverse the dismissal of Noyes’ state law claims and remand
with instructions to the district court to consider whether it
may exercise diversity or supplemental jurisdiction over those
claims.
BACKGROUND1
A. NOYES’ EMPLOYMENT HISTORY WITH KELLY
SERVICES
Kelly Services provides temporary workers to other compa-
nies. Noyes worked as a permanent employee at Kelly Ser-
vices in its computer software and multimedia department
from October 1994 until May 2004, when she was laid off. At
the time of the lay-off, she held the title of Software Devel-
oper. In April 2001, Noyes was passed over for a promotion
to the position of Software Development Manager. Noyes
challenges Kelly Services’ failure to promote her in April
2001, not her termination in May 2004.
B. THE FELLOWSHIP OF FRIENDS
The Fellowship, founded in the 1970s, is a religious organi-
zation whose followers adhere to “Fourth Way” principles.
1
In this factual discussion, we view the facts in the light most favorable
to Noyes and draw all reasonable inferences in her favor, as she is the non-
moving party on summary judgment. Bodett v. CoxCom, Inc., 366 F.3d
736, 742 (9th Cir. 2004).
NOYES v. KELLY SERVICES 6297
The Fellowship describes itself as focusing on “an esoteric
interpretation of religion associated with teachings of the Old
and New Testaments, traceable also in Greek philosophy, and
probably originating in Egypt and Asia.” The Fellowship
characterizes itself as “more than a philosophy or theory . . .
it comprises a system of ideas that, when fully embraced, is
a way of life.” The Fellowship has approximately 2000 mem-
bers, about one-third of whom live near or on a Fellowship-
owned compound in Apollo, California. Fellowship members
are required to donate at least ten percent of their gross
monthly income to the Fellowship.
C. THE DISPUTED PROMOTION DECISION
In April 2001, the position of Software Development Man-
ager became available at Kelly Services. William Heinz, a
top-level management employee and a member of the Fellow-
ship, was in charge of filling the position. Several employees
were considered for the position — Noyes, Donna Walker and
Joep Jilesen. Neither Noyes nor Walker are members of the
Fellowship; Jilesen is a member of the Fellowship. No outside
candidates were considered for the position.
Although Heinz had final decision-making authority over
the promotion, during the selection process, he received input
from other employees. Heinz told at least two of those
employees that Noyes was not interested in receiving the pro-
motion. For example, Maya Bonhoff, a manager, testified that
she did not consider Noyes for the promotion because Heinz
told her that Noyes did not want to be a manager and that
Heinz had “something else that he really needed [Noyes] to
do.” From Bonhoff’s perspective, Noyes had been “taken off
the table” as a candidate for the Software Development Man-
ager position. When William Galvin suggested that Noyes
would be “very good” as Software Development Manager,
Heinz told him that Noyes was not interested in the position.
6298 NOYES v. KELLY SERVICES
Noyes claimed that she never told anyone at Kelly Services
that she was not interested in becoming a manager, and that
Heinz’s statements to that effect were simply not true. In fact,
Noyes wanted to become a manager and, in 2000, she applied
for the only management position that was previously openly
advertised in her field. Mario Fantoni, a Fellowship member,
received that promotion.2
Heinz originally offered the Software Development Man-
ager position to Walker, who declined the job because she had
already held a similar position and thought that it would be a
professional step backwards. After Walker declined, Bonhoff
recommended to Heinz that he promote Jilesen. Heinz
expressed some reluctance because there had been “issues
raised in the past with Fellowship members being perceived
as being given favoritism.” Heinz ultimately offered the pro-
motion to Jilesen, who accepted.
Noyes claimed that she was more qualified for the Software
Development Manager position than Jilesen, because she had
worked at Kelly Services for nearly six years longer and she
had an MBA, which Jilesen did not. According to Noyes,
Heinz had also shown other preferential treatment to Jilesen,
including paying him a higher salary, which Heinz told Noyes
was necessary for Jilesen’s “lifestyle.”
D. NOYES’ COMPLAINTS REGARDING RELIGIOUS
DISCRIMINATION
Noyes lodged a verbal complaint about Heinz’s discrimina-
tory employment practices with Kelly Services’ Human
Resources Department in May 2001. She claimed Kelly Ser-
vices did nothing in response, and Kelly Services pointed to
no evidence in the record indicating otherwise. Noyes then
2
According to Noyes, she should have been allowed to compete for at
least four other management-level promotions between 1997 and 2001. Of
those four promotions, three were given to Fellowship members.
NOYES v. KELLY SERVICES 6299
filed an administrative charge of discrimination with the Cali-
fornia Department of Fair Employment and Housing in
August 2001.
In December 2002, Noyes filed this action, alleging claims
for: (1) employment discrimination in violation of 42 U.S.C.
§ 1981a3 and 42 U.S.C. § 2000e-2 (“Title VII”), (2) employ-
ment discrimination in violation of California’s Fair Employ-
ment & Housing Act, Cal. Gov’t Code § 12940, (3) failure to
promote in violation of public policy, (4) breach of employ-
ment contract, (5) breach of the covenant of good faith and
fair dealing, and (6) intentional infliction of emotional dis-
tress.
The district court granted summary judgment as to the Title
VII claims, and dismissed the state law claims for lack of sub-
ject matter jurisdiction after declining to exercise supplemen-
tal jurisdiction under 28 U.S.C. § 1367.
We review the district court’s grant of summary judgment
de novo, drawing all reasonable inferences supported by the
evidence in favor of Noyes, the nonmoving party. See Bodett,
366 F.3d at 742. A genuine dispute of material fact exists
where “a reasonable jury could return a verdict for the non-
moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986); see Fed. R. Civ. P. 56. In our de novo
review, we also determine “whether the district court cor-
rectly applied the relevant substantive law.” Stout v. Potter,
276 F.3d 1118, 1121 (9th Cir. 2002).
3
Although Noyes alleged religious discrimination under 42 U.S.C.
§ 1981, the district court did not address the § 1981 claims. It is well
established, however, that § 1981 does not apply to claims of religious dis-
crimination. See, e.g., Shah v. Mt. Zion Hospital & Medical Center, 642
F.2d 268, 272 & n.4 (9th Cir. 1981) (noting that 42 U.S.C. § 1981 “only
prohibits racial discrimination” and not the other forms of discrimination
protected under Title VII). Thus, Noyes’ claims under § 1981 are without
merit in any event.
6300 NOYES v. KELLY SERVICES
ANALYSIS
I. APPLICATION OF MCDONNELL DOUGLAS BURDEN-SHIFTING
REGIME TO NOYES’ TITLE VII DISPARATE TREATMENT
CLAIM
The Supreme Court’s landmark case regarding employment
discrimination claims brought under Title VII, McDonnell
Douglas v. Green, sets forth a proof framework with two dis-
tinct components: (1) how a plaintiff may establish a prima
facie case of discrimination absent direct evidence, and (2) a
burden-shifting regime once the prima facie case has been
established. 411 U.S. 792, 802-04 (1973). In the summary
judgment context, the plaintiff bears the initial burden to
establish a prima facie case of disparate treatment. Chuang v.
Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1123 (9th
Cir. 2000). If the plaintiff succeeds in showing a prima facie
case, the burden then shifts to the defendant to articulate a “le-
gitimate, nondiscriminatory reason” for its employment deci-
sion. Id. at 1123-24. Should the defendant carry its burden,
the burden then shifts back to the plaintiff to raise a triable
issue of fact that the defendant’s proffered reason was a pre-
text for unlawful discrimination. Id. at 1124. The central dis-
pute in this case is whether Noyes’ evidence was sufficient to
raise a triable issue of fact as to pretext.
A. NOYES’ PRIMA FACIE CASE
[1] A prima facie case of employment discrimination may
be established through direct evidence of discriminatory
intent or a presumption arising from a showing of objective
factors such as those outlined in McDonnell Douglas and its
progeny. See 411 U.S. at 802. In Godwin v. Hunt Wesson,
Inc., 150 F.3d 1217 (9th Cir. 1998), we adapted McDonnell
Douglas to the failure to promote context, holding that a
prima facie case requires the employee to show: “(1) she
belongs to a protected class, (2) she was performing according
to her employer’s legitimate expectations, (3) she suffered an
NOYES v. KELLY SERVICES 6301
adverse employment action, and (4) other employees with
qualifications similar to her own were treated more favor-
ably.” Id. at 1220.
[2] Although we have not previously outlined the precise
contours of a prima facie showing of reverse religious dis-
crimination, the district court’s application of Godwin in this
context was appropriate. The district court concluded that
Noyes’ evidence was sufficient to make out a prima facie case
of disparate treatment with respect to the promotion at issue,
and Kelly Services does not challenge that conclusion on
appeal. Of course, the “protected class” element is not compa-
rable because Noyes does not claim she was part of a pro-
tected class, i.e., that she adheres to a particular religion.
Rather, her claim is that her lack of adherence to the religious
beliefs promoted by the management of Kelly Services was
the genesis of the discrimination.
[3] The Tenth Circuit’s discussion on this point is instruc-
tive. In Shapolia v. Los Alamos National Laboratory, 992
F.2d 1033 (10th Cir. 1993), the court reasoned that the “pro-
tected class” showing required in a traditional race or sex dis-
crimination claim does not apply to this type of non-
adherence or reverse religious discrimination claim because
“it is the religious beliefs of the employer, and the fact that
[the employee] does not share them, that constitute the basis
of the [religious discrimination] claim.” Id. at 1038. We rec-
ognize, as did the district court, that it is appropriate to tailor
the elements of a prima facie showing according to the partic-
ular circumstances of each case. See Furnco Constr. Corp. v.
Waters, 438 U.S. 567, 577 (1978) (recognizing that McDon-
nell Douglas’s suggested method for setting out a prima facie
case “was never intended to be rigid, mechanized, or ritualis-
tic.”).
6302 NOYES v. KELLY SERVICES
B. KELLY SERVICES’ BURDEN TO ARTICULATE A
LEGITIMATE, NONDISCRIMINATORY REASON FOR NOT
PROMOTING NOYES
[4] Because Noyes established a prima facie case, the bur-
den of production then shifted to Kelly Services to articulate
a legitimate, nondiscriminatory reason for its adverse employ-
ment decision. McDonnell Douglas, 411 U.S. at 802. To meet
this burden, “the defendant must clearly set forth, through the
introduction of admissible evidence,” reasons for its employ-
ment decision which, if believed by the trier of fact, would
support a finding that the employment action was not a result
of unlawful discrimination. Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 255 (1981).
[5] Kelly Services offered several pieces of evidence in
support of its selection of Jilesen rather than Noyes. Heinz
first offered the position to Walker, a non-Fellowship mem-
ber, who declined the position. After Walker declined, Bon-
hoff, a non-Fellowship member, recommended that Jilesen be
promoted. Bonhoff set forth the qualities that she was looking
for in a Software Development Manager and stated that
“[q]uite simply, the person whom I felt possessed all of these
qualities was Joep Jilesen.” Heinz agreed that Jilesen was the
right person for the job. Heinz also stated that Kelly Services
made the decision to promote Jilesen through a “consensus”
of the “management group.” This evidence meets Kelly Ser-
vices’ burden to articulate a legitimate, nondiscriminatory rea-
son for its employment decision. See id.; McDonnell Douglas,
411 U.S. at 802.4
4
In its order, the district court reasoned that “[s]ince Noyes does not
contradict Bonhoff’s asserted reasons for recommending Jilesen’s promo-
tion, Kelly Services has demonstrated a legitimate reason for promoting
Jilesen instead of Noyes to the Software Development Manager position.”
(emphasis added). The district court is incorrect that Noyes failed to dis-
pute Bonhoff’s reasons. Noyes disputed the basis for Bonhoff’s recom-
mendation and the claim that Jilesen was the best qualified candidate for
NOYES v. KELLY SERVICES 6303
C. NOYES’ BURDEN TO SHOW THAT KELLY SERVICES’
REASONS WERE A PRETEXT FOR UNLAWFUL
DISCRIMINATION
1. PROOF OF PRETEXT
[6] Once Kelly Services satisfied its burden to articulate a
nondiscriminatory reason for its promotion decision, the bur-
den shifted back to Noyes to come forward with evidence that
the proffered reasons were a pretext for discrimination. See
McDonnell Douglas, 411 U.S. at 804. Importantly, the “shift”
back to the plaintiff does not place a new burden of produc-
tion on the plaintiff. Raad v. Fairbanks N. Star Borough Sch.
Dist., 323 F.3d 1185, 1194 (9th Cir. 2003). “[T]he factfinder
may infer ‘the ultimate fact of intentional discrimination’
without additional proof once the plaintiff has made out her
prima facie case if the factfinder rejects the employer’s prof-
fered nondiscriminatory reasons as unbelievable.” Id.; accord
Chuang, 225 F.3d at 1127.
“[A] plaintiff can prove pretext in two ways: (1) indirectly,
by showing that the employer’s proffered explanation is
‘unworthy of credence’ because it is internally inconsistent or
otherwise not believable, or (2) directly, by showing that
unlawful discrimination more likely motivated the employer.”
Chuang, 225 F.3d at 1127 (emphasis added) (citing Godwin,
150 F.3d at 1220-22); see Burdine, 450 U.S. at 256. “All of
the evidence [as to pretext] — whether direct or indirect —
is to be considered cumulatively.” Raad, 323 F.3d at 1194.
[7] Where the evidence of pretext is circumstantial, rather
than direct, the plaintiff must present “specific” and “substan-
the position. Although Kelly Services’ evidence satisfies its burden of pro-
duction to articulate a legitimate, nondiscriminatory reason for the failure
to promote Noyes, to the extent the district court made a finding that the
reason was in fact legitimate, the district court acted beyond the review
permitted on summary judgment. See Burdine, 450 U.S. at 254-55.
6304 NOYES v. KELLY SERVICES
tial” facts showing that there is a genuine issue for trial. God-
win, 150 F.3d at 1222. However, that requirement is tempered
by our observation that, in the context of Title VII claims, the
burden on plaintiffs to raise a triable issue of fact as to pretext
is “hardly an onerous one.” Payne v. Northwest Corp., 113
F.3d 1079, 1080 (9th Cir. 1997).
2. THE DISTRICT COURT’S MISAPPLICATION OF ST.
MARY’S HONOR
[8] The district court did not apply the proper law govern-
ing proof of pretext, but, rather, imposed a heavier burden on
Noyes at summary judgment. According to the district court,
to show pretext, Noyes had to “show[ ] both that [Kelly Ser-
vices’ proffered] reason was false, and that discrimination
was the real reason.” (emphasis by district court). This formu-
lation can be traced to the following statement in St. Mary’s
Honor Center v. Hicks, 509 U.S. 502 (1993), which addressed
a merits determination rather than summary judgment: “[A]
reason cannot be proved to be ‘a pretext for discrimination’
unless it is shown both that the reason was false, and that dis-
crimination was the real reason.” Id. at 515 (emphases omit-
ted). Taken out of context, this statement would appear to
support an enhanced burden to show pretext. However, con-
sidered in the proper procedural posture, St. Mary’s Honor
clearly does not alter the burden on summary judgment.
In St. Mary’s Honor, the Supreme Court considered the
quantum of proof necessary for a plaintiff to prove that an
employer’s articulated reasons were pretextual, such that a
court may direct a finding as a matter of law that intentional
discrimination occurred. Id. at 505, 508-10 (addressing find-
ings of fact and conclusions of law made after a bench trial);
see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 154 (2000) (Ginsburg, J., concurring) (“Whether the
defendant was in fact motivated by discrimination is of course
for the finder of fact to decide; that is the lesson of St. Mary’s
Honor Center v. Hicks.”). The showing required to direct a
NOYES v. KELLY SERVICES 6305
finding on the ultimate fact of intentional discrimination is
obviously different and more difficult than the burden
imposed on a plaintiff to raise a triable issue of fact as to pre-
text sufficient to defeat summary judgment.
[9] Because of its misreading of St. Mary’s Honor, the dis-
trict court required Noyes to prove that Kelly Services’ articu-
lated nondiscriminatory reasons were “false” and that
intentional discrimination was the “real reason” for promoting
Jilesen over Noyes. This approach misconstrues the burden on
Noyes to raise a triable issue of fact regarding pretext. We
reiterate that at the summary judgment stage, a plaintiff may
raise a genuine issue of material fact as to pretext via (1)
direct evidence of the employer’s discriminatory motive or (2)
indirect evidence that undermines the credibility of the
employer’s articulated reasons. Raad, 323 F.3d at 1194 (reaf-
firming two options for proving pretext by direct or indirect
evidence) (citing Godwin, 150 F.3d at 1220-22).
3. NOYES’ EVIDENCE OF PRETEXT
[10] Noyes countered Kelly Services’ purported nondis-
criminatory reasons for promoting Jilesen with specific, sub-
stantial evidence that undermined the credibility of those
reasons. Noyes’ overarching complaint is that membership in
the Fellowship permeated the promotion process and that
Heinz, a Fellowship member and the ultimate decisionmaker,
exercised his supervisory authority in favor of Fellowship
members. The claim is made against the backdrop that Heinz
recognized that perceived favoritism to Fellowship members
was an ongoing issue. Noyes pointed to evidence that she was
more qualified for the job than Jilesen and that Heinz’s
actions deprived her of fair and full consideration for the pro-
motion. Based on this evidence, a reasonable factfinder could
conclude that religiously-motivated discrimination was
behind Heinz’s promotion of Jilesen. Viewing Noyes’ circum-
stantial evidence of pretext through the proper lens on sum-
6306 NOYES v. KELLY SERVICES
mary judgment, we conclude that Noyes raised a triable issue
of fact such that summary judgment was inappropriate.
Specifically, Noyes offered evidence that Jilesen’s selec-
tion was tainted by Heinz’s actions in telling other employees
that Noyes was not interested in the promotion. Consequently,
Noyes was not fully considered for the promotion. Contrary
to Heinz’s story, Noyes, who holds an MBA, wanted to
become a manager. She previously applied for the only man-
agement position that was openly advertised in her field,
Operations Manager, which went to a Fellowship member
instead.
Although Heinz represented that Jilesen was chosen based
on a management “consensus,” two of the other managers
Heinz claimed were part of the “consensus”—Bonhoff and
Victoria Smart—did not recall reaching a management “consen-
sus”5 on the decision to promote Jilesen. Bonhoff testified that
the ultimate decision was made by Heinz.
Noyes also showed that Heinz favored Jilesen in past
employment decisions. Heinz initially pressured Noyes to
support Jilesen’s hire for a position Heinz created by telling
her that Jilesen would have to leave the country if he did not
get a job with Kelly Services. When Jilesen was hired,
“[Heinz] told [Noyes] that he wanted to bring him in at a
higher salary than was normal for the job so that [Jilesen]
would have more money for his lifestyle.” Although Jilesen
had six years less seniority than Noyes and did not hold an
MBA, as of June 2001, when they both held the position of
Software Developer, Noyes was paid $59,000 while Jilesen
was paid $63,800. “Facts tending to show that the chosen
applicant may not have been the best person for the job are
probative as they ‘suggest that [the explanation] may not have
been the real reason for choosing [the chosen applicant] over
5
Nothing in the record documents the views or extent of participation
of the third manager that Heinz claimed was part of the “consensus.”
NOYES v. KELLY SERVICES 6307
the [plaintiff].’ ” Godwin, 150 F.3d at 1222 (quoting Lindahl
v. Air France, 930 F.2d 1434, 1439 (9th Cir. 1991)) (alter-
ation in Godwin).
[11] Viewing the evidence in the light most favorable to
Noyes, Heinz’s credibility on the issue of why he chose
Jilesen was severely undermined by conflicting evidence on
the promotion process. Cf. Reeves, 530 U.S. at 152 (holding
in trial context that evidence that the true decisionmaker was
hostile to the employee undermined the credibility of the
employer’s proffered reason for terminating the employee);
Payne, 113 F.3d at 1080 (holding that although a jury may
ultimately accept an employer’s “shifting explanations,” such
fact issues should not be resolved on summary judgment). A
reasonable factfinder may find that Noyes’ evidence renders
Kelly Services’ proffered reasons “unworthy of credence”
because Heinz’s actions preempted full consideration of
Noyes despite her desire for the job and her superior qualifi-
cations. The evidence also supports a finding that Heinz had
an unspoken motive for promoting Jilesen over Noyes—
favoritism toward members of the Fellowship. We hold that
Noyes’ specific, substantial evidence undermining the credi-
bility of Kelly Services’ explanation for its promotion deci-
sion, coupled with her evidence as to favoritism, was
sufficient to raise a genuine issue of fact as to pretext. See
Godwin, 150 F.3d at 1222; accord Raad, 323 F.3d at 1195;
Chuang, 225 F.3d at 1129; Payne, 113 F.3d at 1080.
The district court’s conclusion to the contrary misapplied
St. Mary’s Honor, and imposed a higher burden of proof on
Noyes. The district court concluded that
[s]ince Heinz was responsible for the decision to
promote Jilesen, evidence that he told others Noyes
was not interested in the position, and showed a pref-
erence toward Jilesen in prior employment decisions,
could support a finding that Heinz did not select
Jilesen for promotion based on the non-
6308 NOYES v. KELLY SERVICES
discriminatory reasons articulated by Bonhoff. That
evidence does not, however, support a finding that
Noyes was passed over for the promotion specifi-
cally because she was not a member of the Fellow-
ship.
(emphasis added).
Once the district court concluded that Noyes raised a triable
question that the promotion decision was not consistent with
Kelly Services’ stated reasons, the question of whether the
“real reason” for the promotion decision was unlawful dis-
crimination should have gone to the jury. Instead, the district
court required Noyes to prove the ultimate issue of unlawful
discrimination — that “she was passed over for the promotion
specifically because she was not a member of the Fellow-
ship.” In doing so, the district court erroneously heightened
the standard on summary judgment.
The district court also substituted its own judgment that the
evidence — repeated favoritism of a more junior, less-
qualified Fellowship-member employee over a more senior,
more qualified non-Fellowship member — did not support an
inference of discrimination on the basis of Noyes’ non-
affiliation with the Fellowship. To do so was error. See, e.g.,
Chuang, 225 F.3d at 1129 (reversing summary judgment and
reiterating that “[i]t is not the province of a court to spin such
evidence in an employer’s favor when evaluating its motion
for summary judgment. To the contrary, all inferences must
be drawn in favor of the non-moving party.”).
Although the triable issues of fact set out above are suffi-
cient to reverse summary judgment, Noyes also proffered sta-
tistical evidence regarding the Fellowship and promotions at
Kelly Services. Statistical evidence may support a plaintiff’s
showing of pretext in a disparate treatment claim. See Diaz v.
AT&T, 752 F.2d 1356, 1362-63 (9th Cir. 1985).
NOYES v. KELLY SERVICES 6309
Noyes offered evidence that Heinz “repeatedly brought in
Fellowship members as temporary contractors” and “consis-
tently appointed Fellowship members to management jobs
where one of the duties is to select contractors.” Before the
April 2003 layoffs, thirteen of the thirty-five full-time
employees were Fellowship members; between 1998 and
November 2001, five of the eleven full-time hires in the
Development Group were Fellowship members (including
Jilesen); and two out of three recent hires in the “Test Bay”
area were Fellowship members. Noyes also claimed that four
of the five management-level promotions made between 1997
and April 2001 were given to Fellowship members.
[12] The district court downplayed Noyes’ statistical evi-
dence, concluding that “[r]egardless of whether this evidence
‘show[s] a statistically significant relationship’ between posi-
tive employment decisions and Fellowship membership, it
must be treated with skepticism because it ‘fail[s] to account
for other relevant variables,’ ” citing Pottenger v. Potlatch
Corporation, 329 F.3d 740, 748 (9th Cir. 2003) (alterations
by district court). Although we agree that this statistical evi-
dence standing alone was insufficient to raise a triable issue
of fact, coupled with Noyes’ other evidence, the numerical
picture buttressed Noyes’ challenge that Kelly Services’ prof-
fered reasons for its promotion decision were a pretext for
unlawful discrimination. See Chuang, 225 F.3d at 1129
(viewing plaintiff’s evidence of pretext cumulatively); Man-
gold v. Cal. Pub. Utils. Comm’n, 67 F.3d 1470, 1476 (9th Cir.
1995) (upholding admission of statistical evidence that did not
isolate all potentially relevant variables in support of disparate
treatment age discrimination claim while acknowledging that
“the statistical disparities [might not be] so substantial so as
to infer causation from the statistics alone”).
II. STATE LAW CLAIMS
After declining to exercise its discretionary supplemental
jurisdiction in the absence of any remaining federal claim, the
6310 NOYES v. KELLY SERVICES
district court dismissed Noyes’ state law claims for lack of
subject matter jurisdiction. See 28 U.S.C. § 1367. However,
Noyes’ complaint alleged diversity jurisdiction under 28
U.S.C. § 1332 as an alternative basis for jurisdiction over the
state law claims. Although Kelly Services agrees that diver-
sity jurisdiction exists, because subject matter jurisdiction is
a threshold issue, on remand, jurisdiction must be determined
by the court, not by concession of the parties.
[13] In the absence of diversity jurisdiction, the district
court should reconsider whether to exercise supplemental
jurisdiction under § 1367, in light of our remand for trial on
Noyes’ Title VII disparate treatment claim.
III. RULE 16(b) ISSUES ON REMAND
A. HEINZ’S DEPOSITION TESTIMONY
Noyes moved under Federal Rule of Civil Procedure 16(b)
to modify the scheduling order and under Rule 56(f) to post-
pone consideration of the summary judgment motion until she
could depose Heinz — a central defense witness. The district
court denied the motions.
Noyes originally noticed Heinz’s deposition to take place
more than two weeks prior to the discovery cut-off. At Kelly
Services’ request, the deposition was rescheduled several
times, pushing it past the discovery cut-off date. The parties
stipulated to an extension of the discovery deadline to permit
further discovery, including the Heinz deposition. The court
took no action on the proposed order. Heinz failed to appear
for his deposition on the rescheduled date, which would have
allowed sufficient time for Noyes to utilize the testimony in
her summary judgment opposition. Heinz sat for his deposi-
tion two days after the due date for Noyes’ opposition to
Kelly Services’ summary judgment motion.
The district court concluded that Noyes had failed to show
diligence in completing Heinz’s deposition and, on that basis,
NOYES v. KELLY SERVICES 6311
denied the Rule 16(b) and Rule 56(f) motions. The circum-
stances of scheduling Heinz’s deposition are not particularly
unusual, as counsel often agree to continuances as a matter of
courtesy. Nonetheless, the ultimate result left Noyes preju-
diced due to a delay caused by an adverse witness. Although
the appeal of the denial of the Rule 56(f) motion is moot in
light of the remand, the question whether the discovery cut-
off should have been extended to encompass Heinz’s deposi-
tion remains a live issue.
[14] In view of Noyes’ timely noticing of Heinz’s deposi-
tion, Kelly Services’ multiple requests to delay the deposition,
and Heinz’s failure to appear as scheduled, it was an abuse of
discretion to deny the motion to modify the scheduling order.6
Cf. Garrett v. City & County of San Francisco, 818 F.2d
1515, 1518-19 (9th Cir. 1987) (holding that district court
improperly denied Rule 56(f) motion where the plaintiff in a
Title VII action diligently pursued discovery but was unable
to obtain complete responses prior to due date of response to
the opposing party’s motion for summary judgment).
B. ROSS’S EXPERT TESTIMONY
After submission of the summary judgment motion without
oral argument, at Noyes’ request, the district court reopened
discovery for twenty days to permit the parties to conduct
expert discovery. Kelly Services did not oppose the request.
During the reopened discovery period, Noyes retained Rick
Ross, a purported expert in destructive cults and controversial
groups and movements, who claims to have particular exper-
tise in the Fellowship. Before Noyes could submit a declara-
6
Rule 16(b) provides that a district court’s scheduling order may be
modified upon a showing of “good cause,” an inquiry which focuses on
the reasonable diligence of the moving party. Johnson v. Mammoth Recre-
ations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). We review the denial of
a Rule 16(b) motion for abuse of discretion. Id.
6312 NOYES v. KELLY SERVICES
tion from Ross, the district court granted summary judgment
in favor of Kelly Services on all claims. Based on the newly-
obtained expert evidence, Noyes moved for reconsideration of
the summary judgment ruling under Rule 59(e). The court
denied Noyes’ motion for reconsideration, concluding that
Noyes had not shown good cause why she did not earlier
obtain the expert discovery. Given that the district court
reopened discovery so that Noyes could retain an expert, it
was seemingly inconsistent for the district court to grant sum-
mary judgment without consideration of that supplemental
evidence. Based on the record, we conclude that Noyes made
a good faith showing that she was reasonably diligent in con-
ducting discovery and that it would have been a financial and
practical hardship for her to have obtained the expert discov-
ery earlier in this case.
[15] In light of our reversal of summary judgment, Noyes’
appeal of the denial of her Rule 59(e) motion for reconsidera-
tion is moot. We note, however, that because Noyes obtained
expert discovery from Ross during the reopened discovery
period, that evidence was timely, poses no Rule 16(b) prob-
lem, and should be available for use at trial. We offer no opin-
ion as to the admissibility of Ross’s testimony.
REVERSED and REMANDED.