Aimee Greene v. Buckeye Valley Fire Dept

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 22 2015
AIMEE GREENE, No. 13-16102 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Plaintiff - Appellant, D.C. No. 2:11-cv-02351-NVW
v.
AMENDED 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). Similarly,
Plaintiff presented sufficient evidence with respect to the acting captain position.
Defendants claimed primarily that budgetary concerns prevented reserve
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firefighters from being considered for promotion to acting captain and, in addition,
that Plaintiff’s performance at the assessment center ruled her out. But a male
firefighter who worked as both a reserve firefighter for the Buckeye Valley Fire
Department and as a captain for another fire department was hired as a captain
during the relevant period without having to take the captain’s test and without
having participated in the assessment center, thus permitting an inference of pretext
as to both budgetary concerns and assessment-center performance.
Plaintiff did not, however, present sufficient evidence to create a genuine
dispute of material fact with respect to whether Defendants’ proffered
nondiscriminatory reasons for failing to promote her to captain were pretextual.
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
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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.
Plaintiff’s testimony constitutes direct evidence of pretext sufficient to prevail on
Defendants’ motion.
4. 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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