Davis v. Team Electric

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTIE DAVIS,  No. 05-35877
Plaintiff-Appellant, D.C. No.
v.  CV-01-01752-OMP/
TEAM ELECTRIC CO., JMS
Defendant-Appellee.
 OPINION
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior Judge, Presiding
Argued and Submitted
July 12, 2007—Portland, Oregon
Filed March 28, 2008
Before: Alfred T. Goodwin, Stephen Reinhardt, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Reinhardt
3169
DAVIS v. TEAM ELECTRIC CO. 3173
COUNSEL
Paul B. Eaglin, Eaglin Law Office, Fairbanks, Alaska, for the
appellant.
Peter R. Chamberlain and Pamela J. Stendahl, Bodyfelt
Mount Stroup & Chamberlain LLP, Portland, Oregon, for the
appellee.
OPINION
REINHARDT, Circuit Judge:
In this sexual discrimination action under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., electri-
cian Christie Davis contends that her former employer, Team
Electric Company, treated her worse than the male employees
at a work site that had no other women until she contacted the
state civil rights agency; retaliated against her for filing a dis-
crimination complaint with the agency; and failed to prevent
her supervisors from creating and maintaining a hostile work
environment. The district court granted Team Electric’s
motion for summary judgment on all claims. We reverse.
I. Background
In early May 2000, Team Electric hired Christie Davis as
a journeyman electrician. On October 19, 2000, Team Electric
assigned her to a project at the Clackamas County High
School. At the time, she was apparently the only female elec-
trician on the site.
3174 DAVIS v. TEAM ELECTRIC CO.
Lyle Loughary was Davis’s project foreman for the first
few weeks of the assignment. On November 7, Davis told
Loughary that she was experiencing neck pain from doing
ceiling work for two weeks. Loughary allegedly replied that
he would allow her to work in the electrical room with Bill
Burkitt, and stated that he would transfer her because Burkitt
“needs a girlfriend.” Davis also alleges that Loughary repeat-
edly referred to his wife as “astrobitch.”
On November 15, Davis wrote in her journal that “[Loug-
hary]. . . laid me out on tasks leaving info out and short on
materials and sometimes tools,” and that the foreman told her
“repeatedly NOT to go in the trailer,” where meetings and
breaks were held. In her deposition, Davis said:
I wasn’t included at first on meetings they would
have. Who knows what they were about because I
wasn’t included. I complained about it and they
started including me. But they still had their little
personal meetings which I didn’t really care, other
than I felt left out. . . . They would . . . get donuts
for the guys . . . . [I heard someone say] “Well,
[Loughary] said the donuts are for the guys,” in rep-
rimand to Bill Walsh offering me one . . . .
Kevin Behrens, the site’s project superintendent, asserted in
an affidavit that if the work discussed in a field meeting did
not involve a certain employee, “that employee [was] not
expected or asked to attend the meeting.” Similarly, project
foreman Bill Walsh stated that “[i]f Davis was not present at
a meeting, it was because the meeting had nothing to do with
her area of work,” and that “[a]t no time was Davis excluded
from a meeting simply to exclude her.”
Davis did not initially receive a radio, making it difficult to
communicate with co-workers because, she alleges, she was
“always put in another area from everybody.” Team Electric
responds that there were a limited number of radios, assigned
DAVIS v. TEAM ELECTRIC CO. 3175
as needed, and that she received a radio after complaining.
Davis also alleges that she would sometimes fail to receive
any radio response from supervisors, and that co-workers
talked to her over the radio in a demeaning manner. Walsh
and Behrens claim that they were not aware of demeaning
talk.
Davis repeatedly expressed frustration over being assigned
a disproportionate number of jobs that entailed working with
Monokote, a hazardous material sprayed over metal and
wood. She complained to Walsh about the physical effects of
her exposure to Monokote, and he responded that she would
lose her job for being paranoid. When she commented to her
supervisor, Dave Davis, that it was unfair that she was
assigned all the Monokote jobs, he allegedly replied, “[w]e
don’t mind if females are working as long as they don’t com-
plain.”1
Team Electric asserts that Davis never had to do the jobs
that were even more dangerous than the Monokote assign-
ments, that all employees had to work in hazardous areas, and
that most of the time that she worked in such areas she did so
with a male co-worker. It also alleges that on one occasion,
when Davis asked not to work with Monokote in a new
assignment, she was assigned to a different wing of the build-
ing.
In mid-January 2001, Davis told Walsh that she wanted to
pursue a long-term project, such as installing the fire alarm.
Walsh replied that another employee might be the “natural
choice” for the alarm because he was already pulling cable.
Two days later, Loughary asked Davis if she would like a
“change of pace” after doing ceiling work, and offered to
move her into the kitchen area.
1
These were the words Davis reported in her deposition. In her journal,
Davis wrote that Dave Davis said, “the guys don’t mind having a girl
working with them if they don’t complain.”
3176 DAVIS v. TEAM ELECTRIC CO.
At the end of January, Loughary allegedly reprimanded
Davis several times for trying to enter the trailer, telling her
not to bother Behrens with work issues because it could
“make [him] mad.” The next day, Walsh allegedly pulled her
aside and told her that he “felt uncomfortable” around her.
Davis allegedly replied that she felt uncomfortable around
people that made her feel “not welcome (like I shouldn’t be
there),” but that she was “getting over it.” Walsh then told her
about potential jobs on other sites, and she replied that she
was interested but would have to know where they were—
Davis was limited in how far she could travel because she had
to take her child to daycare in the mornings.2 In the same con-
versation, Walsh allegedly said “this is a man’s working
world out here, you know.”
In mid-March, Davis worked in areas that did not yet have
Monokote installed. On March 15, Dave Davis told her that
she had “missed a meeting with all of the guys.” On March
22, she went into the trailer and noticed that “Burkitt was get-
ting job info from [Behrens],” even though Loughary had told
her not to go into the trailer and talk to Behrens.
On March 23, Davis told Walsh that she felt isolated and
that it seemed she was assigned to a disproportionate number
of hazardous jobs, particularly assignments working with
Monokote. On April 18, she told Walsh that she was fatigued
from “being on the lifts all the time” and that “it was hard
working alone all the time.”
On April 19, Behrens told Davis that if she didn’t like the
work she should “get out of the trade.” The next day, she left
a message on Behrens’s voicemail telling him that she could
not make it to work because she “needed to seek counseling
regarding the . . . incident.” She wrote in her journal that she
2
At one point, the male electricians voted to start their shift at 6am.
Davis was given permission to arrive at 7am so that she could take care
of her children.
DAVIS v. TEAM ELECTRIC CO. 3177
“can’t talk to him because every time I try . . . he blows up
at me.”
On April 23, Davis mailed an Employment Discrimination
Questionnaire, which the Civil Rights Division of the Oregon
Bureau of Labor and Industries (“BOLI”) received on April
24. On the same day she mailed the questionnaire, Davis
found a sticker in her car that said “Lady Killer,” and was
summoned to a meeting with Walsh and Behrens. Walsh
asked what her thinking was about her work responsibilities,
and Davis repeated that she did not enjoy working with
Monokote, and gave them an extensive list of her recent
assignments involving Monokote. She also told them that it
was “taxing both physically and mentally,” to work on the
lifts for extended periods of time without variation.
On April 27, Davis found her car with the lights on. She
turned them off, but when she returned at lunchtime, her
blinker was on and her battery was drained. Davis filed a
police report. On the same day, Walsh assigned her to check
for violations in a wing of the building. On May 4, Walsh told
Davis that a female electrician from another work site could
work with her, and that another female electrician would start
working at the site on Monday and could also work in her
area. Around this time Davis was given a more desirable work
assignment.
On May 9, Davis asked Walsh whether it would be possible
for her to receive a cloth vest, which was a higher quality than
the net vests she had been wearing. She noted in her log that
male co-workers had the cloth vests, and that she had
“cheaper gloves” than the other workers. Walsh allegedly
denied her request.
On May 16, Davis submitted a “Complaint of Unlawful
Practice” (“first BOLI complaint”), which BOLI received on
May 21. The complaint alleged “unlawful employment dis-
crimination” by Team Electric on the basis of her gender. In
3178 DAVIS v. TEAM ELECTRIC CO.
particular, she claimed that Team Electric discriminated
against her by (1) assigning her “dirty and hazardous jobs to
prevent others from having to do them,” (2) giving her an
“unbalanced workload” and promising male workers jobs that
she “had to ask to be given,” (3) excluding her from meetings
in which other electricians were included, and (4) refusing to
communicate with her over the radio, or communicating with
a “tone of voice” that “implied that it was demeaning to have
to communicate” with her. Davis also alleged that her super-
visors did not respond adequately to her complaints, and cre-
ated a work environment that was “hostile to women,” and in
which she was held “to a different standard” due to her gen-
der. BOLI dismissed the complaint on July 6, 2001, citing a
lack of evidence. On September 4, 2001, the Equal Employ-
ment Opportunity Commission (“EEOC”) dismissed the com-
plaint and advised Davis of her right to appeal to the district
court.
Davis recorded a number of incidents of sexually-charged
conversation. In one instance, for example, a co-worker said,
“Lips and assholes, that’s all women are good for.” In
another, co-workers attempted to give Davis a “sexual call
name.”
On May 24, Walsh proposed that Davis transfer to another
site, but she declined due to the commute and work shift. She
also allegedly said to Walsh that she regularly got harder
assignments than other workers. On May 30, Davis asked
Walsh how long it would be before she could do something
else. She also asked whether she could work on the fire alarm
and other low voltage projects. Walsh initially agreed, but
then told her to stick with her current work.
On May 31, Davis wrote in her log, “my hand is staying
sore.” On June 12, she told a BOLI representative that her job
assignments continued to cause her physical pain. She wrote
in her log, “I believe it’s from piping for 8 months . . . without
having any quantity of variation. NONE of the guys have had
DAVIS v. TEAM ELECTRIC CO. 3179
this type of workload; they have all had a wide variation of
tasks.”
On June 19, Davis received a Workers’ Compensation
Form from her doctor, listing a number of work restrictions.
She allegedly submitted the form to Team Electric. On June
25, she stayed home for a phone interview with BOLI. On
August 10, Walsh allegedly told her to “tell him if I ‘can’t do’
something” because of “my right hand problem. He said he
has to look out for himself and for Team.”
According to Mike Trusheim, the president of Team Elec-
tric, business slowed in the summer of 2001, forcing Team
Electric to downsize. The layoffs were conducted in three
stages, on August 30, September 7, and September 15, 2001.
Davis was terminated in the second stage. Trusheim asserts
that Team Electric laid her off because “it did not have work
to sustain its work force,” and that its decision was “unrelated
to her previous claim with BOLI.”
After the termination, Davis filed a second complaint with
BOLI, which it received on February 28, 2002. She alleged
unlawful employment discrimination as a result of filing a
civil rights complaint with BOLI and/or her use of the Work-
er’s Compensation system. She also alleged that Team Elec-
tric subjected her to retaliation, gave her assignments
exceeding the light-duty restrictions established by her doctor,
and laid her off even though it retained electricians with less
seniority. Davis also alleged that following her complaints her
supervisors were reluctant to work with her, gave her “a work
variation of short duration,” and assigned her tasks that the
other electricians did not want.
On December 5, 2001, Davis filed pro se a complaint in the
District of Oregon and began her efforts to present her sex
discrimination claims in the proper legal form. The magistrate
judge twice denied her motions for appointment of counsel,
and she appeared pro se for the entirety of the trial court pro-
3180 DAVIS v. TEAM ELECTRIC CO.
ceedings. The magistrate judge dismissed her first complaint
for failure to state a cause of action arising under federal law.
On October 28, 2002, Davis filed an Amended Complaint
seeking compensation under Title VII of the Civil Rights Act.3
On November 15, 2004, Team Electric filed a motion for
summary judgment on all of Davis’s claims, and Davis filed
a cross-motion for summary judgment. After the magistrate
judge held hearings on January 10 and April 4, 2005, she
issued findings and recommendations, which the district judge
adopted prior to granting Team Electric’s motion and denying
Davis’s. Davis filed a timely notice of appeal, and filed briefs
before this court pro se before pro bono counsel, who filed
replacement briefs, was appointed.
II. Standard of Review
This court reviews a district court’s grant of summary judg-
ment de novo. Covey v. Hollydale Mobilehome Estates, 116
F.3d 830, 834 (9th Cir. 1997). Viewing the evidence in the
light most favorable to the nonmoving party, we determine
whether there are any genuine issues of material fact and
whether the district court correctly applied substantive law.
United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.
2003). We do not weigh the evidence or determine whether
the employee’s allegations are true. Cornwell v. Electra Cent.
Credit Union, 439 F.3d 1018, 1027 (9th Cir. 2006).
III. Analysis4
3
This complaint is identical to a second Amended Complaint filed by
Davis on July 28, 2003. According to the Findings and Recommendations
of the magistrate judge, this was the “operative pleading.” Davis also filed
a third Amended Complaint on May 5, 2004, which is identical to the
fourth complaint, filed on September 10, 2004.
4
Team Electric argues that this court should disregard four arguments
raised by Davis on appeal that she allegedly did not raise before the dis-
trict court. These arguments concern the trial court’s characterization of
DAVIS v. TEAM ELECTRIC CO. 3181
Davis’s disparate treatment and retaliation claims are sub-
ject to the burden-shifting analysis of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). The analysis has three
steps. The employee must first establish a prima facie case of
discrimination. If he does, the employer must articulate a
legitimate, nondiscriminatory reason for the challenged
action. Finally, if the employer satisfies this burden, the
employee must show that the “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 cre-
dence.’ ” Chuang v. Univ. of Cal. Davis, 225 F.3d 1115,
1123-24 (9th Cir. 2000) (quoting Tex. Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 256 (1981)).
Summary judgment is not appropriate if a reasonable jury
viewing the summary judgment record could find by a pre-
ponderance of the evidence that the plaintiff is entitled to a
verdict in his favor. Cornwell, 439 F.3d at 1027-28. A plain-
tiff alleging employment discrimination “need produce very
little evidence in order to overcome an employer’s motion for
summary judgment. This is because the ultimate question is
one that can only be resolved through a searching inquiry—
one that is most appropriately conducted by a factfinder, upon
a full record.” Chuang, 225 F.3d at 1124 (internal quotation
marks omitted). “In evaluating motions for summary judg-
evidence as circumstantial, Davis’s exhaustion of her disparate treatment
claim with respect to being fired, the trial court’s making of credibility
determinations, and the rule that summary judgment is disfavored in
employment discrimination cases.
The exhaustion issue is irrelevant because Davis failed to present evi-
dence that she was fired on account of her gender. The circumstantial evi-
dence issue is irrelevant because we hold that the evidence presented was
specific and substantial. The remaining arguments simply involve the
application of the pertinent legal principles to the facts and issues before
the court. See generally Silveira v. Apfel, 204 F.3d 1257, 1260 n.8 (9th
Cir. 2000).
3182 DAVIS v. TEAM ELECTRIC CO.
ment in the context of employment discrimination, we have
emphasized the importance of zealously guarding an employ-
ee’s right to a full trial, since discrimination claims are fre-
quently difficult to prove without a full airing of the evidence
and an opportunity to evaluate the credibility of the witness-
es.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th
Cir. 2004).
A. Disparate treatment
1. Prima facie case
Davis must establish a prima facie case of disparate treat-
ment discrimination by showing that (1) she belongs to a pro-
tected class; (2) she was qualified for her position; (3) she was
subject to an adverse employment action; and (4) similarly
situated individuals outside her protected class were treated
more favorably. Chuang, 225 F.3d at 1123. “The requisite
degree of proof necessary to establish a prima facie case for
Title VII . . . claims on summary judgment is minimal and
does not even need to rise to the level of a preponderance of
the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889
(9th Cir. 1994) (citation omitted).
[1] Team Electric does not dispute that Davis satisfied the
first two elements. As to the third element, an adverse
employment action is one that “materially affect[s] the com-
pensation, terms, conditions, or privileges of . . . employ-
ment.” Chuang, 225 F.3d at 1126; see also Kang v. U. Lim
Am., Inc., 296 F.3d 810, 818-19 (9th Cir. 2002). We have held
that assigning more, or more burdensome, work responsibili-
ties, is an adverse employment action. Compare Kang, 296
F.3d at 818-19 (discriminatory overtime is adverse employ-
ment condition) with Kortan v. Cal. Youth Auth., 217 F.3d
1104, 1113 (9th Cir. 2000) (employee suffered no adverse
employment action because, inter alia, she “was not handed
different or more burdensome work responsibilities”).
DAVIS v. TEAM ELECTRIC CO. 3183
The magistrate judge decided to “give the benefit of the
doubt to Davis” and assume that she was assigned more over-
head and piping work than her male co-workers, and that
these assignments caused physical pain and injury. The mag-
istrate judge assumed, but did not decide, that this allegation
was sufficient to satisfy the third and fourth elements of a
prima facie case.
[2] This assumption is well supported, as Davis alleged that
she was assigned more strenuous overhead work, was forced
to work more with Monokote, and was given less varied work
than her male co-workers. Team Electric contends that there
were other more hazardous kinds of work that Davis did not
have to do, that on one occasion Walsh re-assigned her when
she complained about working with Monokote, and that
“most of the time that Davis was working with Monokote she
was working side by side with a male journeyman.” It does
not, however, deny that in the aggregate she was given a dis-
proportionate amount of dangerous and strenuous work. Thus,
Davis’s allegations that she was assigned a disproportionate
amount of hazardous work compared to her male co-workers
establish a prima facie case of disparate treatment.
[3] There are other grounds for finding that Davis satisfied
the third and fourth elements of a prima facie case. Davis
alleges that all of her male co-workers on the site were invited
to meetings from which she was excluded. Team Electric con-
tends that she was not invited to some meetings because they
did not concern her area of work, or because they were not
“official” meetings. Team Electric notes, and Davis agrees,
that she was included in meetings after she complained. She
asserts, however, that even after she was allowed to attend
meetings, she was, unlike the male employees, prohibited
from entering the trailer to take breaks, or to talk with the
project superintendent about work matters. Davis also alleges
that she was sometimes ignored by supervisors when she
would attempt to communicate with them via radio. Behrens
and Walsh state in affidavits that they were unaware of any
3184 DAVIS v. TEAM ELECTRIC CO.
instance where they refused to use radios to communicate
with her.
[4] The magistrate judge disregarded these allegations of
exclusion, characterizing the incidents as mere ostracism,
which we have held does not constitute an adverse employ-
ment action. Davis’s alleged exclusion from the trailer and
from radio communications was not mere ostracism, however.
We have previously characterized behavior as mere ostracism
when a supervisor “stared at [the Plaintiff] in an angry way
and allowed [her] co-workers to be mean to her,” Manatt v.
Bank of America, NA, 339 F.3d 792, 803 (9th Cir. 2003), and
when “males in the office refused to speak to [the Plaintiff]
about anything other than work.” Brooks v. City of San
Mateo, 229 F.3d 917, 928-29 (9th Cir. 2000).
[5] Davis’s ban from an important area of the workplace,
the trailer, is more severe than these types of exclusion, par-
ticularly because there is evidence that the restriction pre-
vented her from discussing work matters with her supervisor.
Davis’s ability to work was similarly hampered by the alleged
fact that she was sometimes ignored by supervisors when she
called in over the radio. We need not decide whether either of
these actions alone would be sufficient to establish an adverse
employment action because, together with the discriminatory
work assignments, they materially affected the terms and con-
ditions of Davis’s employment.
The magistrate judge held that Davis’s allegations that she
was given an inferior quality vest and gloves, and other equip-
ment, did not establish adverse employment actions because
the supplies were only slightly inferior, or were replaced.
Davis provided no evidence that the vest and gloves affected
her work conditions, or that other workers were given better
equipment. The magistrate judge was therefore correct in
DAVIS v. TEAM ELECTRIC CO. 3185
finding that Davis did not establish a prima facie case with
respect to these claims.5
[6] In sum, we hold that Davis established a prima facie
case of disparate treatment with respect to the claims involv-
ing disproportionate amount of hazardous work, exclusion
from areas of the work site, and failure to respond to her radio
communications. We affirm the district court’s holding that
she did not establish a prima facie case with respect to the
safety equipment.
2. Pretext
[7] The next step in the McDonnell Douglas framework
requires the employer to give legitimate non-discriminatory
reasons for the alleged disparate treatment. Team Electric
does not offer any reason for the alleged exclusion of Davis
from the trailer or for the alleged failure to respond to her
radio communications. Thus, her disparate treatment claim
with respect to these allegations survives summary judgment.
Team Electric has, however, offered reasons for the allegedly
unequal work assignments, asserting that work was assigned
based on who was available and who needed the least amount
of training. To survive summary judgment on this claim,
Davis must therefore proffer evidence that Team Electric’s
reasons are pretextual.
5
The magistrate judge likely erred when she summarily rejected Davis’s
termination as the basis for a prima facie case of disparate treatment, on
the ground that Davis did not administratively exhaust this claim. Admin-
istrative claims are to be construed broadly in the Title VII context. See
B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002); EEOC
v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994); Brown v. Cont’l
Can Co., 765 F.2d 810, 813 (9th Cir. 1985); Oubichon v. N. Am. Rockwell
Corp., 482 F.2d 569, 571 (9th Cir. 1973). We need not reach this issue,
however, because Davis presented no evidence to substantiate the claim
that she was fired on account of her gender, and therefore the termination
cannot be a basis for Davis’s disparate treatment claim.
3186 DAVIS v. TEAM ELECTRIC CO.
An employee “may offer evidence, direct or circumstantial,
‘that a discriminatory reason more likely motivated the
employer’ to make the challenged employment decision.”
Cornwell, 439 F.3d at 1028 (quoting Texas Dep’t of Cmty.
Affairs, 450 U.S. at 256). Alternatively, an employee may
offer evidence “that the employer’s proffered explanation is
unworthy of credence.” Id. Employees may rely on both cir-
cumstantial and direct evidence because “[d]efendants who
articulate a nondiscriminatory explanation for a challenged
employment decision may have been careful to construct an
explanation that is not contradicted by known direct evi-
dence.” Id. at 1029. See also Desert Palace, Inc. v. Costa, 539
U.S. 90, 99-100 (2003).
The parties disagree as to whether Davis must offer “spe-
cific” and “substantial” circumstantial evidence of pretext, or
whether a lesser amount should suffice. Our circuit has not
clearly resolved this issue,6 but we need not decide it here
because Davis has offered specific and substantial circum-
stantial evidence.
[8] Davis alleged a series of discriminatory comments
made by her supervisors. In one conversation, foreman Walsh
pulled her aside to tell her that he “felt uncomfortable” around
her. In the same conversation, he and Davis discussed her
need to drop off her child at daycare, and Walsh allegedly
said “this is a man’s working world out here, you know.” In
another incident, Davis told foreman Loughary that her work
6
In Cornwell we relied on the Supreme Court’s decision in Costa to
conclude that “in the context of summary judgment, Title VII does not
require a disparate treatment plaintiff relying on circumstantial evidence
to produce more, or better, evidence than a plaintiff who relies on direct
evidence.” Cornwell, 439 F.3d at 1030; see also McGinest, 360 F.3d at
1122 (“circumstantial and direct evidence should be treated alike”). We
have also held in numerous other cases since Costa that a plaintiff’s cir-
cumstantial evidence of pretext must be “specific” and “substantial.” See,
e.g., Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1038 (9th
Cir. 2005).
DAVIS v. TEAM ELECTRIC CO. 3187
was causing her neck pain. Loughary allegedly responded that
he would assign Burkitt to be her foreman because he “needs
a girlfriend.” At another point, Loughary allegedly said that
food for a meeting was only “for the guys.” Finally, when
Davis told a supervisor, Dave Davis, that she was doing most
of the work entailing exposure to Monokote, he allegedly said
something to the effect of “the guys don’t mind having a girl
working with them if they don’t complain.”
The magistrate judge disregarded Walsh’s comments
because they were not tied to any job assignment on the
Clackamas County High School site, and Walsh did not trans-
fer Davis. Even so, a reasonable jury could conclude that
Walsh’s response that she was in a “man’s working world” is
relevant evidence of pretext. A jury could also infer pretext
from Loughary’s suggestion that she could do another work
assignment so that she could be a foreman’s “girlfriend.” The
magistrate judge inexplicably dismissed Loughary’s statement
that food was only “for the guys” as “not overtly gender-based.”7
7
Team Electric contends that Loughary and Walsh’s comments are not
direct evidence of pretext because they are not “clearly sexist . . . . insult-
ing, humiliating, intimidating . . . derogatory . . . . [or] threatening in any
way,” and did not “unreasonably interfere with Davis’s work perfor-
mance.” Cf. Dominguez-Curry, 424 F.3d at 1038. This is not an unreason-
able interpretation of the comments, but it would also be reasonable for
a jury to infer otherwise. On summary judgment all inferences must be
drawn in favor of the moving party. See id. at 1038-39. If the statements
are not direct evidence of pretext, they are at the least circumstantial evi-
dence from which a jury could infer pretext. “[A] single discriminatory
comment by a plaintiff’s supervisor or decisionmaker is sufficient to pre-
clude summary judgment for the employer.” Dominguez-Curry, 424 F.3d
at 1039.
Team Electric also argues that the “stray comments” were unrelated to
any decision-making process. See, e.g., Vasquez v. County of L.A., 349
F.3d 634, 640 (9th Cir. 2003). Although there is no evidence that Walsh
and Loughary were involved in Davis’s firing, both submitted affidavits
admitting involvement in her work assignments.
3188 DAVIS v. TEAM ELECTRIC CO.
The magistrate judge also disregarded Dave Davis’s com-
ments because she found that there was no evidence that he
had any input into work assignments, and his comments
expressed a “generalized opinion about the mindset of male
electricians.” The magistrate judge clearly erred in suggesting
that Dave Davis was a co-worker with no managerial power.
Davis asserts, and Team Electric does not deny, that she “was
put under him to work,” and that Dave Davis “made [her]
start picking up” her things at a certain time. The magistrate
judge’s findings even go on to refer to Dave Davis as “one of
her supervisors.” Further, in assuming that Dave Davis was
referring to electricians in general rather than to Team Elec-
tric, the magistrate judge erred in failing to view the evidence
in the light most favorable to the plaintiff.
[9] We have held that the absence of female supervisors is
circumstantial evidence of pretext. Bergene v. Salt River Proj-
ect Agric. Improvement & Power Dist., 272 F.3d 1136, 1143
(9th Cir. 2001) (absence of female supervisors one factor
establishing pretext for failure to promote). As the magistrate
judge noted, the record suggests that Davis was the only
female electrician at the job site until after she contacted
BOLI. There is no evidence that there were ever any female
supervisors. In addition, Davis’s allegation that similarly situ-
ated male employees were treated more favorably is itself
probative of pretext. See Vasquez, 349 F.3d at 641.
The magistrate judge also concluded that “[a]t least during
the times [Davis] was working with a male coworker on the
‘undesirable’ tasks, there is no basis for inferring that those
tasks were assigned to her because of her gender.” The issue,
however, is whether Davis was assigned hazardous tasks
more frequently than the male workers, not whether she was
the only employee assigned such tasks.
[10] We conclude that this evidence, when considered as a
whole, constitutes specific and substantial circumstantial evi-
dence that the reasons Team Electric proffered for Davis’s
DAVIS v. TEAM ELECTRIC CO. 3189
allegedly disproportionate hazardous work assignments were
pretextual. Cf. Bergene, 272 F.3d at 1143.
To be sure, Team Electric did a number of helpful things
for Davis, including accommodating her childcare needs by
assigning her to her preferred site and allowing her to work
a later shift. Team Electric responded to many of Davis’s
grievances, including providing her with improved safety
equipment, giving her a radio, allowing her to come to meet-
ings, transferring two female electricians to the site after she
filed her BOLI questionnaire, assigning her a new supervisor
when she reported that Loughary had a negative attitude
toward her, and re-assigning her to a different wing of the
building on one occasion, when she complained about work-
ing with Monokote.
Even if, however, we were to take Team Electric’s
responses to some of Davis’s grievances as counterweights to
Davis’s proffer of specific and substantial evidence of dis-
criminatory motive, a counterweight is not enough to elimi-
nate the need for a fact-finder to weigh the facts on both sides.
A jury could weigh Team Electric’s response as mitigating
facts, but the litany of complaints answered may also be taken
by a reasonable jury as evidence that Davis was treated differ-
ently because she was a woman. The fact that Davis’s super-
visors had never before had complaints about work
assignments would support this conclusion. Although “this is
a close case . . . [s]uch uncertainty at the summary judgment
stage must be resolved in favor of the plaintiff.” McGinest,
360 F.3d at 1124.
[11] We therefore hold that Davis has established a genuine
factual issue with regard to Team Electric’s motive in assign-
ing her a disproportionate amount of dangerous and strenuous
work. Accordingly, this claim as well as her claims of unequal
treatment with respect to the radio communications and her
access to the trailer survive summary judgment.
3190 DAVIS v. TEAM ELECTRIC CO.
B. Retaliation
[12] Davis contends that Team Electric retaliated against
her for filing an employment discrimination complaint and a
workers’ compensation claim, by laying her off.8 Employers
may not retaliate against employees who have “opposed any
practice made an unlawful employment practice” by Title VII.
42 U.S.C. § 2000e-3(a).
The elements of a prima facie retaliation claim are, (1) the
employee engaged in a protected activity, (2) she suffered an
adverse employment action, and (3) there was a causal link
between the protected activity and the adverse employment
action. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054,
1064 (9th Cir. 2002).
Team Electric concedes that Davis engaged in protected
activity when she filed her employment discrimination claim,
and it is clear that Davis suffered an adverse employment
action when she was laid off. See Brooks, 229 F.3d at 928.
The issue is therefore whether Davis has presented evidence
sufficient to raise the inference that protected activity was the
likely reason for the termination.9
8
Davis argued before the magistrate judge that Team Electric retaliated
against her by making her work beyond her light-duty restrictions. She
does not make this argument on appeal. Davis also alleged that Team
Electric retaliated against her for filing a workers’ compensation claim.
The magistrate judge erroneously treated this claim as a possible violation
of Title VII. On appeal, Appellees also “conceded that plaintiff engaged
in an activity protected by Title VII when she filed . . . her workers’ com-
pensation claim.” Both the magistrate judge and Appellees are mistaken:
Title VII does not encompass discrimination on the basis of disability. See
42 U.S.C. § 2000e-2(a). Davis did not brief an alternative cause of action
and we therefore do not consider this claim.
9
Appellant’s brief mistakenly takes up the exhaustion issue with respect
to the retaliation claim. There is no question that the retaliation claim is
exhausted, because the second BOLI complaint explicitly alleges that
Davis was fired in retaliation for filing the first BOLI complaint and the
workers’ compensation claim.
DAVIS v. TEAM ELECTRIC CO. 3191
[13] Davis argues that the temporal proximity of the layoff
and her civil rights claim is sufficient for defeating summary
judgment. We have held that “causation can be inferred from
timing alone where an adverse employment action follows on
the heels of protected activity.” Villiarimo, 281 F.3d at 1065.
See also Passantino v. Johnson & Johnson Consumer Prods.,
Inc., 212 F.3d 493, 507 (9th Cir. 2000). We have held that an
eighteen-month gap is too long to support a finding of causa-
tion based on timing alone. See Villiarimo, 281 F.3d at 1065.
We have found a prima facie case of causation when termina-
tion occurred fifty-nine days after EEOC hearings, Miller v.
Fairchild Industries, Inc., 885 F.2d 498, 505 (9th Cir. 1989),
and when adverse employment actions were taken more than
two months after the employee filed an administrative com-
plaint, and more than a month and a half after the employer’s
investigation ended. Yartzoff v. Thomas, 809 F.2d 1371, 1376
(9th Cir. 1987). Davis’s termination was sufficiently proxi-
mate, as she was terminated on September 7, 2001, three days
after the EEOC dismissed her claim.10 We therefore hold that
Davis has satisfied the causation element of her prima facie
case.
[14] The burden next shifts to Team Electric to articulate
a nonretaliatory reason for terminating Davis. See Bergene,
272 F.3d at 1141. Team Electric contends that Davis was laid
off, with sixteen other employees, for economic reasons. But
as the company conceded at oral argument, there is no evi-
dence in the record as to why Davis in particular was laid off.
It is not enough for an employer to simply state that it decided
to lay off a group of workers. To meet its burden, the
employer must explain why it selected the plaintiff in particu-
lar for the layoff. To impose a lesser standard would allow an
employer with only the slightest amount of guile to get away
with retaliation simply by laying off a victim of discrimina-
10
Team Electric does not deny that it knew about the discrimination
complaint, and the magistrate judge did not find that it was unaware of the
complaint.
3192 DAVIS v. TEAM ELECTRIC CO.
tion at the same time it laid off other workers for legitimate
reasons. Team Electric has thus failed to articulate a legiti-
mate reason for terminating Davis.
We note that even if an economic downturn were a valid
reason for the layoff of some employees, Davis asserted in her
administrative complaint, and Team Electric does not deny,
that the company retained other electricians who were less
senior than she. We also note that Davis’s supervisors consid-
ered her to be a skilled and dedicated worker, creating further
questions about why she was laid off despite her seniority.
Both suggest that Team Electric’s proferred explanation is
pretextual. This evidence is particularly significant in light of
the fact that Team Electric has failed to explain why its eco-
nomic concerns led to the firing of Davis in particular.
[15] We therefore hold that Davis has proffered sufficient
evidence to raise a genuine issue of material fact concerning
Team Electric’s motives for laying her off. To hold otherwise
would result in summary judgment solely on the basis that
Team Electric laid Davis off at the same time it laid off other
employees, without any explanation as to why she was
included in the group.
C. Hostile work environment
[16] Title VII guarantees employees “the right to work in
an environment free from discriminatory intimidation, ridi-
cule, and insult.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S.
57, 65 (1986). To survive summary judgment on her claim
that Team Electric failed to prevent the creation of such an
environment, Davis must show a genuine factual dispute as
to, (1) whether a reasonable woman would find the workplace
so objectively and subjectively hostile toward women as to
create an abusive working environment, and (2) whether
Team Electric failed to take adequate remedial and disciplin-
ary action. See McGinest, 360 F.3d at 1112. The conduct must
DAVIS v. TEAM ELECTRIC CO. 3193
constitute discrimination because of sex. Oncale v. Sundower
Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
The objective measure of an abusive working environment
is set by what a reasonable woman would consider abusive.
Ellison v. Brady, 924 F.2d 872, 879-80 (9th Cir. 1991). We
must consider all the circumstances, including “the frequency
of the discriminatory conduct; its severity; whether it is physi-
cally threatening or humiliating, or a mere offensive utter-
ance; and whether it unreasonably interferes with an
employee’s work performance.” Harris v. Forklift Sys., Inc.,
510 U.S. 17, 23 (1993). “[N]o single factor is required,” id.,
and “[t]he required level of severity or seriousness varies
inversely with the pervasiveness or frequency of the conduct.”
Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 872 (9th
Cir. 2001) (internal quotation marks and citation omitted).
[17] “[S]imple teasing, offhand comments, and isolated
incidents (unless extremely serious)” do not constitute a hos-
tile or abusive work environment. Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998) (internal quotation marks
and citation omitted). A working environment is abusive if
“hostile conduct pollutes the victim’s workplace, making it
more difficult for her to do her job, to take pride in her work,
and to desire to stay on in her position.” Steiner v. Showboat
Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994). Offensive
comments do not all need to be made directly to an employee
for a work environment to be considered hostile. See Woods
v. Graphic Commc’ns, 925 F.2d 1195, 1202 (9th Cir. 1991).
The magistrate judge did not give the proper weight to
some significant facts because she improperly labeled them as
tainted by paranoia.11 For example, the magistrate judge dis-
11
We have noted that “it is axiomatic that disputes about . . . credibility
determinations must be resolved at trial, not on summary judgment.”
McGinest, 360 F.3d at 1113 n.5. Furthermore, “[t]he evidence of the non-
movant is to be believed, and all justifiable inferences are to be drawn in
his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
3194 DAVIS v. TEAM ELECTRIC CO.
counted the fact that Davis was told not to go into the office
trailer even though male employees were allowed to enter.
The trial court did not even factor into its analysis foreman
Walsh’s comment that “this is a man’s working world out
here, you know,” in the context of a discussion about whether
Davis would be able to work on other job sites given her
childcare responsibilities.
The magistrate judge did take account of a number of other
relevant allegations, including that one of Davis’s supervisors
told her that “[w]e don’t mind if females are working as long
as they don’t complain”; that Davis’s co-workers told her that
the foreman Loughary had said food he brought was only for
the guys; that Loughary repeatedly referred to his wife as “as-
trobitch”; and that Loughary told Davis she could work for a
different foreman because he needed a girlfriend.12
It is obvious from Davis’s distraught journal entries that
these incidents upset her and made it more difficult for her to
work. Whether these incidents would be considered abusive
by an “objective” reasonable woman is a closer question. This
question “is not, and by its nature cannot be, a mathematically
precise test.” Harris, 510 U.S. at 22.
[18] Although the incidents fall far short of physical abuse
or aggressive sexual advances, “the required showing of
severity . . . of the harassing conduct varies inversely with the
pervasiveness or frequency of the conduct.” Ellison, 924 F.2d
at 878. Here the conduct occurred repeatedly over the course
of Davis’s employment, and we believe that a reasonable
woman could have had a reaction similar to Davis’s.
12
Davis alleges that her co-workers made sexually charged and mis-
ogynistic comments, and attempted to elicit Davis’s “sexual call name.”
She also alleges that someone at the site put a sticker in her car that said
“Lady Killer.” Although these incidents of hostility are very disturbing,
there is no evidence that Team Electric’s management knew of them.
DAVIS v. TEAM ELECTRIC CO. 3195
[19] In close cases such as this one, where the severity of
frequent abuse is questionable, it is more appropriate to leave
the assessment to the fact-finder than for the court to decide
the case on summary judgment. Compare Nichols, 256 F.3d
at 873 (sustained campaign of taunts by supervisor and co-
workers sufficiently hostile), and Ellison, 924 F.2d at 880-81
(unwelcome love letters and date requests from co-worker
sufficiently hostile), with Candelore v. Clark County Sanita-
tion Dist., 975 F.2d 588, 590 (9th Cir. 1992) (isolated inci-
dents of unspecified “sexual horseplay” over period of years
not sufficiently hostile). For this reason we hold that the con-
duct was sufficiently hostile to overcome summary judgment
on the prima facie case.
The next question is whether Team Electric may be held
liable for this conduct. One basis on which an employer may
be held vicariously liable for sexual harassment is that the
actionable hostile environment was created by one or more
supervisors with immediate authority over the plaintiff. Hard-
age v. CBS Broad., Inc., 427 F.3d 1177, 1183 (9th Cir. 2005)
(citing Montero v. AGCO Corp., 192 F.3d 856, 861 (9th Cir.
1999)). A reasonable jury could find Team Electric liable for
the hostile environment described by Davis because its super-
visors played a significant role in creating the environment,
making it clear to Davis on more than one occasion that
women were not welcome on the work site.
An employer may assert an affirmative defense to vicarious
liability by showing that (1) it exercised reasonable care to
prevent and correct promptly any sexual harassment, and (2)
the employee unreasonably failed to take advantage of pre-
ventive or corrective opportunities offered by the employer,
or to avoid harm otherwise. Id. at 1183-84 (citing Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998)). This
defense is available, however, only if the harassment did not
culminate in a “tangible employment action,” which is a sig-
nificant change in employment status, such as discharge or
undesirable reassignment. Id.
3196 DAVIS v. TEAM ELECTRIC CO.
[20] Team Electric has failed to show that it took steps to
prevent sexual harassment in its workplace. There is no evi-
dence, for example, that it had an anti-harassment policy, or
that it had any other preventive measures in place, such as
sexual harassment training. Cf. Nichols, 256 F.3d at 877. One
of Team Electric’s project managers stated in a deposition
that “pretty much whoever has a problem goes to the project
manager, and it’s dealt with in that manner.” Nothing in the
record shows whether this is a written policy, or even whether
employees are informed of the policy. Davis alleged that she
was prohibited from reporting her problems to anyone but her
immediate supervisors—the very supervisors who allegedly
created the hostile environment.
[21] Team Electric’s only apparent attempt to correct the
harassment came after Davis contacted the BOLI, following
several months of alleged mistreatment by her supervisors.
There is no evidence that any of these supervisors were disci-
plined for their conduct or even told to behave differently, and
Team Electric has not shown that Davis failed to take advan-
tage of any preventive or corrective opportunities that it
offered. In sum, Team Electric has not successfully asserted
an affirmative defense to Davis’s claim.
For these reasons we vacate the district court’s finding of
summary judgment on her hostile work environment claim.
IV. Conclusion
[22] Davis has raised genuine issues of material fact on her
disparate treatment, retaliation, and hostile work environment
claims. The district court’s grant of summary judgment in
favor of Team Electric is therefore REVERSED. The case is
REMANDED for further proceedings consistent with this
opinion.
REVERSED AND REMANDED.