holding that a decision- maker’s remark that “ ‘two Chinks in the pharmacology department were ‘more than enough’ ” was “an egregious and bigoted insult . . . that constitutes strong evidence of discrimi- natory animus on the basis of national origin”
How later courts described this case
- holding that a decision- maker’s remark that “ ‘two Chinks in the pharmacology department were ‘more than enough’ ” was “an egregious and bigoted insult . . . that constitutes strong evidence of discrimi- natory animus on the basis of national origin”
- holding that the district court erred in requiring direct evidence of pretext to be specific and substantial
- holding, in the context of an employer’s summary judgment motion on plaintiff’s Title VII claims, that the district court erred in “weighing . . . the evidence and making findings rather than focusing on whether genuine issues of material fact are in dis- pute”
- “An agent’s biased remarks against an employee because of his or her gender are admissible to show an employer’s discrimina- tory animus if the agent was involved in the employment decision.”
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SYLVIA DOMINGUEZ-CURRY, No. 03-16959
Plaintiff-Appellant,
D.C. No.
v.
CV-01-00630-
NEVADA TRANSPORTATION DWH/RAM
DEPARTMENT; ROC STACEY,
OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
David W. Hagen, District Judge, Presiding
Argued and Submitted
February 17, 2005—San Francisco, California
Filed September 14, 2005
Before: Sidney R. Thomas, Richard A. Paez, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Paez;
Dissent by Judge Callahan
13185
DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION 13189
COUNSEL
Kenneth J. McKenna, Reno, Nevada, for the plaintiff-
appellant.
Brian Sandoval, Attorney General, Teresa J. Thienhaus,
Senior Deputy Attorney General, Las Vegas, Nevada, for the
defendants-appellees.
OPINION
PAEZ, Circuit Judge:
Sylvia Dominguez-Curry (“Dominguez”) sued her
employer, the Nevada Department of Transportation
13190 DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION
(“Department”), and her supervisor, Roc Stacey (“Stacey”),
alleging that they subjected her to a hostile work environment
and failed to promote her on the basis of her gender, in viola-
tion of Title VII of the Civil Rights Act of 1964. Dominguez
appeals the district court’s grant of summary judgment in
favor of the Department and Stacey. We hold that Dominguez
presented ample evidence from which a reasonable trier of
fact could conclude that she was subjected to a hostile work
environment and that the decision not to promote her was
motivated at least in part by her gender. Accordingly, we
reverse the district court’s judgment and remand for a trial on
both of Dominguez’s Title VII claims.
Background
Since 1994, Dominguez has worked under the supervision
of Roc Stacey in the Nevada Department of Transportation’s
contract compliance division. Stacey routinely made demean-
ing comments to women in the division. For example, Stacey
told Dominguez and two other women in the division that “he
wished he could get men to do [their] jobs,” that “women
have no business in construction,” and that “women should
only be in subservient positions.” In response to a work-
related question from Dominguez, Stacey replied, “if you girls
were men, you would know that.” Referring to Dominguez
and other women in the division, Stacey said, “You guys are
being paid more than you even should be getting paid.” Fur-
ther, Stacey called the division’s female assistant “stupid,”
and on one occasion, he kicked another female employee’s
chair while she was sitting in it because he was upset with
her.
Stacey also told sexually explicit jokes in the workplace.
Dominguez described the jokes as “the blond with the big tits
type jokes and what she did with whom and those types of
jokes.” Dominguez said “those were like everyday jokes.”
Shortly after Dominguez began working for Stacey, Stacey
commented to her, “Every woman that comes to work in our
DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION 13191
division gets pregnant. . . . I hope you don’t get pregnant.”
According to Dominguez, “Roc [Stacey] just would never let
up about women having no business working if they had little
children to take care of at home.” In reference to one woman
who announced she was pregnant shortly after she began
working in the division, Stacey commented, “the bitch knew
she was pregnant when I hired her.” Stacey told Dominguez
that he “did not want to deal with another pregnant woman.”
After this woman returned from maternity leave, Stacey told
her she “should try and transfer to another position where
being a mommy works for her.” Stacey told Dominguez, “I
want her out” and said “he was going to make her travel so
that she would leave.”
While Stacey was serving as Acting Contract Compliance
Manager, he discussed with Dominguez the changes he would
make when he became Contract Compliance Manager. He
said,
When I fill the position for the Program Officer III,
I am going to hire a guy and he is going to do all the
contract investigations and stay on top of all the con-
tract field work that I haven’t been doing for the past
six years. That guy is going to be traveling 70% of
the time.
Dominguez testified that
after this incident [Stacey] further said that he was
going to hire a man. . . . His answer would always
be he wants a man to do the job. He doesn’t feel that
I or a female could go out into the field and do the
work that a man is required to do. Number one, he
specifically told me my stature’s a problem.
After returning from a fishing trip with Stacey, Domin-
guez’s husband reported to Dominguez that Stacey said that
13192 DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION
he was never going to give you (Dominguez) the job,
he has a problem with you because you’re a small
female, he’s afraid that you could be in jeopardy in
some of the places that he has to go to, that he’s a
big guy and he’s afraid to go to those job sites some-
times, so he wouldn’t feel it would be fair to send me
— such a small person and a female to some of these
job sites where all these construction workers are.
Stacey initially failed to qualify for a promotion to Contract
Compliance Manager. After learning that a woman had quali-
fied, Stacey said he “would never work for a woman” and told
Dominguez that “if [the woman] got hired he was going to
take off as much annual leave as he had on the books, look
for work elsewhere and in the mean time he was not going to
help us or the new manager in any way.”
Stacey eventually qualified for the Contract Compliance
Manager position and was promoted in November 1999.
Around the same time, the Department announced an opening
in the contract compliance division for the Program Officer
III position, involving enforcement of federal and state labor
laws and disadvantaged business subcontracting requirements
for Department projects. The announcement described the
position as “open competitive,” meaning state employees did
not receive preference; rather “eligible persons on ranked lists
are certified solely in score order.” The minimum qualifica-
tions for the position were listed as follows:
graduation from an accredited college or university
in public administration or related field and two
years of experience in planning, coordinating or
administering a program; OR two years experience
as a Program Officer II in Nevada State service; OR
graduation from high school or the equivalent and
six years of experience in planning, coordinating or
administering a program; OR an equivalent combi-
nation of education and experience.
DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION 13193
Dominguez applied for the Program Officer III position.
She and another applicant, Phillip Andrews, initially ranked
fifth among seven top applicants, all of whom were inter-
viewed jointly by Stacey and Mark Elicegui, Chief Construc-
tion Engineer. Andrews had a college degree in a related field,
had attended law school for two years, and had worked in
Wyoming as a labor standards compliance officer for the
Department of Employment for three years. Dominguez had
worked in the contract compliance division for several years,
graduated from high school, attended vocational school and
community college, but she did not have a college degree.
After the interviews, Stacey and Elicegui compared notes.
Both had selected Phillip Andrews as their first choice, and
Julia Mason, who originally ranked sixth, as their second
choice. Stacey and Elicegui stated that they arrived at their
choices independently and shared no information until the
interviews were over. Andrews accepted the job.
Dominguez testified, “I believe he (Andrews) was very
qualified, and he may be more qualified than me, but that was
not the - I just knew because he had the right body parts is
why he got hired, in addition to being qualified.” Although
Dominguez said she had no reason to believe that Elicegui
was biased against women, she asserted that Stacey would
only hire a man. Elicegui, however, stated that Stacey never
“indicate[d] to me that he had already made up his mind to
hire a male for this position” and that during the interviews,
Stacey showed no bias for or against any of the candidates.
Stacey said gender did not play a role in the selection process,
and that “Phil Andrews’ qualifications were simply superior
to everyone else’s.”
After exhausting her remedies before the Equal Employ-
ment Opportunity Commission (“EEOC”), Dominguez filed a
complaint against the Department and Stacey in the United
States District Court for the District of Nevada, alleging hos-
tile work environment sexual harassment and failure to pro-
13194 DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION
mote on the basis of gender, in violation of Title VII. Stacey
also alleged intentional infliction of emotional distress and
sex discrimination under Nevada law. The Department and
Stacey moved for summary judgment. The district court
determined as a matter of law that 1) Dominguez’s hostile
work environment claim failed because Dominguez did not
demonstrate that Stacey’s conduct was sufficiently severe or
pervasive to alter the conditions of her employment, and 2)
Dominguez could not prevail on her failure-to-promote claim
because she did not present specific and substantial evidence
that the proffered explanation for defendants’ hiring decision
—that Philip Andrews was more qualified—was merely a
pretext for sex discrimination. Accordingly, the district court
granted the defendants’ motion for summary judgment.1
Dominguez timely appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and
review de novo the district court’s grant of summary judg-
ment. See Vasquez v. County of Los Angeles, 349 F.3d 634,
639 (9th Cir. 2003). Viewing the evidence in the light most
favorable to the nonmoving party, we must determine whether
there are any genuine issues of material fact and whether the
district court correctly applied the relevant substantive law.
Id. at 639-40.
Discussion
Dominguez argues that the district court erred in granting
summary judgment to the Department and Stacey (collec-
tively, “appellees”) because genuine factual disputes exist as
to both her hostile work environment and failure-to-promote
claims.2 We hold that a reasonable trier of fact could conclude
1
Because it dismissed the only federal claims, the district court declined
to exercise supplemental jurisdiction over Dominguez’s state law claims
and dismissed these claims without prejudice.
2
As a preliminary matter, appellees argue that Dominguez’s appeal
should be dismissed because her opening brief and excerpts of record fail
DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION 13195
that (1) Stacey’s conduct was sufficiently severe or pervasive
to create a hostile work environment, and that (2) appellees’
decision not to hire Dominguez was motivated at least in part
by her gender. Accordingly, we reverse and remand for a trial
on both of Dominguez’s claims.
I.
[1] Dominguez first argues that the district court erred in
granting summary judgment to the appellees on her claim of
hostile work environment sexual harassment. Title VII makes
it an unlawful employment practice for an employer to dis-
criminate against an individual with respect to the terms, con-
ditions, or privileges of employment because of the
individual’s sex. 42 U.S.C. § 2000e-2(a)(1). The Supreme
Court has held that “[w]hen the workplace is permeated with
discriminatory intimidation, ridicule, and insult, that is suffi-
ciently severe or pervasive to alter the conditions of the vic-
tim’s employment and create an abusive working
environment, Title VII is violated.” Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993) (internal quotation marks and
citations omitted); see also Brooks v. City of San Mateo, 229
F.3d 917, 923 (9th Cir. 2000) (stating that in order to prevail
on a hostile work environment sexual harassment claim,
plaintiff must show that her “workplace was permeated with
discriminatory intimidation that was sufficiently severe or
pervasive to alter the conditions of her employment and create
an abusive working environment” (alterations and citation
omitted)).
to comply with the Federal Rules of Appellate Procedure and Ninth Cir-
cuit Rules. Although not models of compliance with the Rules, Domin-
guez’s opening brief and excerpts of record are sufficient to apprise this
court of the relevant issues before it. Moreover, Dominguez cured the
deficiencies in her opening brief by filing errata that included additional
citations to the record. Dominguez also submitted supplemental excerpts
of record that included materials omitted from the initial volume. We
therefore decline to dismiss Dominguez’s appeal for failure to comply
with the Federal Rules of Appellate Procedure and Ninth Circuit Rules.
13196 DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION
[2] To prevail on a hostile work environment sexual harass-
ment claim, the plaintiff must show that her work environ-
ment was both subjectively and objectively hostile; that is, she
must show that she perceived her work environment to be
hostile, and that a reasonable person in her position would
perceive it to be so. Nichols v. Azteca Rest. Enters., Inc., 256
F.3d 864, 871-72 (9th Cir. 2001); see also Oncale v. Sun-
downer Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998). The
plaintiff also must prove that “any harassment took place
‘because of sex.’ ” Nichols, 256 F.3d at 872 (quoting Oncale,
523 U.S. at 79).
In analyzing whether the alleged conduct created an objec-
tively hostile work environment, we must assess all the cir-
cumstances, “including the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work perfor-
mance.” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-
71 (2001) (internal quotation marks and citation omitted).
“ ‘Simple teasing,’ offhand comments, and isolated incidents
(unless extremely serious) will not amount to discriminatory
changes in the ‘terms and conditions of employment.’ ”
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)
(citation omitted). Here, we assess whether the workplace was
objectively hostile from the perspective of a reasonable
woman. Steiner v. Showboat Operating Co., 25 F.3d 1459,
1464 (9th Cir. 1994).
The district court concluded that Dominguez’s claim failed
as a matter of law because Dominguez did not demonstrate
that Stacey’s conduct was sufficiently severe or pervasive to
alter the conditions of her employment. Specifically, the dis-
trict court concluded that Stacey’s alleged conduct comprised
“a series of isolated, sporadic incidents” that did not rise to
the level of a hostile work environment. We disagree.
[3] A review of the record reveals that genuine factual dis-
putes exist as to both the severity and pervasiveness of
DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION 13197
Stacey’s conduct. Dominguez testified in her deposition that
Stacey made numerous demeaning comments about women in
the workplace, including stating that “women should only be
in subservient positions”; that women “have no business in
construction”; that he “would never work for a woman”; that
“he wished he could hire men to do our jobs”; that women in
the Department were being paid more than they deserved; and
that he wanted a man to fill the Program Officer III position.
Dominguez also testified that Stacey exhibited hostility to
women who took maternity leave, and that Stacey told sexu-
ally explicit jokes in the office.
[4] This evidence is more than sufficient to create a genuine
issue of material fact as to whether Stacey’s conduct was suf-
ficiently severe or pervasive to create a hostile work environ-
ment. In concluding otherwise, the district court failed to view
the evidence in the light most favorable to Dominguez. See
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809
F.2d 626, 630-31 (9th Cir. 1987) (holding that on summary
judgment the court must view the facts and draw all infer-
ences in the light most favorable to the nonmoving party). For
example, in characterizing Stacey’s conduct as consisting of
“isolated, sporadic incidents” and “only a handful of incidents
spread over a five year period,” the district court ignored
Dominguez’s testimony that Stacey’s graphic and sexually
explicit jokes “were like everyday jokes,” that Stacey said he
would never work for a female “so many different times,” and
that Dominguez “could write a book about all the different
[times]” Stacey said he did not “feel that [Dominguez] or a
female could go out into the field and do the work that a man
is required to do.” The district court erred in disregarding this
evidence about the frequency of Stacey’s discriminatory
remarks. See Breeden, 532 U.S. at 270-71 (“[W]hether an
environment is sufficiently hostile or abusive must be judged
by looking at all the circumstances, including the frequency
of the discriminatory conduct . . . .” (internal quotation marks
omitted)).
13198 DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION
[5] The district court also inappropriately weighed Domin-
guez’s credibility in dismissing her allegations as “vague and
conclusory,” “unsupported,” and “self-serving.” The court
noted that Dominguez did not cite the dates on which Stacey
made discriminatory remarks, and that she failed to describe
his jokes “with any specificity.” However, Dominguez’s fail-
ure to offer precise dates does not defeat her claim, especially
in light of her testimony that the jokes were “like everyday”
occurrences. Moreover, Dominguez was not required to recite
Stacey’s remarks verbatim; she provided sufficient details of
the jokes’ content “to enable a reasonable trier of fact to con-
clude that discrimination had occurred.” McGinest v. GTE
Serv. Corp., 360 F.3d 1103, 1113 n.5 (9th Cir. 2004).
[6] The district court also improperly dismissed Domin-
guez’s allegations as consisting of nothing more than “self-
serving statements in her own deposition and affidavit.” Such
observations go to whether Dominguez is credible, a determi-
nation that is exclusively within the province of the factfinder
at trial, not the district court on summary judgment:
[A]t this stage of the litigation, the judge does not
weigh disputed evidence with respect to a disputed
material fact. Nor does the judge make credibility
determinations with respect to statements made in
affidavits, answers to interrogatories, admissions, or
depositions. These determinations are within the
province of the factfinder at trial.
T.W. Elec. Serv., Inc., 809 F.2d at 630-31 (citations omitted);
see also McGinest, 360 F.3d at 1113 n.5 (“[I]t is axiomatic
that disputes about material facts and credibility determina-
tions must be resolved at trial, not on summary judgment.”).
Further, contrary to the district court’s characterization,
Dominguez’s evidence does not consist solely of her own
self-serving statements. Indeed, Stacey in his affidavit admits
to much of the conduct Dominguez alleges, including: that he
DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION 13199
made the “joking comment” about every woman in the Divi-
sion getting pregnant; that he “like[s] to joke and so . . . would
occasionally make comments” about topics discussed in the
office including “husbands, ex-husbands, boyfriends, female
problems, pregnancy symptoms”; and that he told another
female employee who returned from maternity leave that she
should consider a new job if she could not handle the travel-
ing.
[7] Finally, the district court erroneously disregarded evi-
dence of discriminatory comments that Stacey directed to
other women in the division. As we have held, “if . . . hostility
pervades a workplace, a plaintiff may establish a violation of
Title VII, even if such hostility was not directly targeted at the
plaintiff.” McGinest, 360 F.3d at 1117.3 This is especially true
here, where the close proximity of the workspaces in the divi-
sion meant that Dominguez could hear many of the hostile
comments targeted at other employees. See id. at 1117-18
(holding that the district court erred in discounting racially
hostile remarks directed at employees other than plaintiff
where the comments were made in plaintiff’s presence).
Viewing the evidence in the light most favorable to Domin-
guez, we hold that a reasonable factfinder could conclude that
Stacey’s repeated derogatory and humiliating remarks were
sufficiently severe or pervasive to create a hostile work environ-
ment.4 We therefore reverse the district court’s grant of sum-
3
In McGinest, we addressed racial hostility in the workplace; however,
“[h]ostile work environment claims based on racial harassment are
reviewed under the same standard as those based on sexual harassment.”
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 n.10 (2002).
4
Appellees also assert that Dominguez failed to present sufficient evi-
dence to satisfy the “subjective hostility” prong of her hostile work envi-
ronment claim. They point out that Dominguez acknowledged that she and
Stacey had a friendly working relationship and that she laughed at some
of his jokes. However, appellees ignore Dominguez’s testimony that she
“finally said that unless they were a funny joke, I did not want to hear
them,” and her statement that “[a]fter a while I told Roc [Stacey] I didn’t
appreciate the rude jokes and felt that he didn’t like women in general.”
13200 DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION
mary judgment on Dominguez’s sexual harassment claim and
remand for a trial on the merits.
II.
[8] Dominguez also argues that the district court erred in
granting summary judgment in favor of the appellees on her
failure-to-promote claim. Title VII makes it an unlawful
employment practice for an employer to refuse to hire an indi-
vidual because of her sex. 42 U.S.C. § 2000e-2(a)(1). In
responding to a summary judgment motion in a Title VII dis-
parate treatment case, a plaintiff may produce direct or cir-
cumstantial evidence demonstrating that a discriminatory
reason more likely than not motivated the defendant’s deci-
sion, or alternatively may establish a prima facie case under
the burden-shifting framework set forth in McDonnell Doug-
las Corp. v. Green, 411 U.S. 792 (1973). See McGinest, 360
F.3d at 1122. Here, Dominguez relied on the McDonnell
Douglas framework.
To make out a prima facie case under McDonnell Douglas,
a plaintiff must show that (1) she belongs to a protected class;
(2) she applied for and was qualified for the position she was
Dominguez also complained to the EEOC. This evidence is more than suf-
ficient to create a triable issue as to whether Dominguez found Stacey’s
conduct subjectively offensive. See McGinest, 360 F.3d at 1113
(“Subjective hostility is clearly established in the instant case through
McGinest’s unrebutted testimony and his complaints to supervisors and to
the EEOC”).
Appellees further argue that Dominguez’s decision to apply for the Pro-
gram Officer III position undermines her claim of subjective hostility
because she “knew that Stacey would continue to be her supervisor if she
did get the promotion, yet that did not stop her from applying.” We reject
this contention. An employee does not implicitly condone a supervisor’s
discriminatory conduct by applying for a promotion. To conclude other-
wise would thwart the purpose of Title VII, which is to eradicate discrimi-
nation from the workplace and ensure that all employees have equal
opportunity to thrive and advance in their careers.
DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION 13201
denied; (3) she was rejected despite her qualifications; and (4)
the employer filled the position with an employee not of
plaintiff’s class, or continued to consider other applicants
whose qualifications were comparable to plaintiff’s after
rejecting plaintiff. See McDonnell Douglas, 411 U.S. at 802.
At summary judgment, the degree of proof necessary to estab-
lish a prima facie case is “minimal and does not even need to
rise to the level of a preponderance of the evidence.” Lyons
v. England, 307 F.3d 1092, 1112 (9th Cir. 2002) (quoting
Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)).
If established, the prima facie case creates a rebuttable pre-
sumption that the employer unlawfully discriminated against
the plaintiff. Id. The burden of production then shifts to the
employer to articulate a legitimate, nondiscriminatory reason
for its action. Id. If the employer meets this burden, the pre-
sumption of unlawful discrimination “simply drops out of the
picture.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511
(1993). The plaintiff then must produce sufficient evidence to
raise a genuine issue of material fact as to whether the
employer’s proffered nondiscriminatory reason is merely a
pretext for discrimination. Coleman v. Quaker Oats Co., 232
F.3d 1271, 1282 (9th Cir. 2000). The plaintiff may show pre-
text either (1) by showing that unlawful discrimination more
likely motivated the employer, or (2) by showing that the
employer’s proffered explanation is unworthy of credence
because it is inconsistent or otherwise not believable. Godwin
v. Hunt Wesson, Inc., 150 F.3d 1217, 1220-22 (9th Cir. 1998).
Ultimately, the plaintiff’s burden is to “produce some evi-
dence suggesting that [the defendant’s] failure to promote
[her] was due in part or whole to discriminatory intent.”
McGinest, 360 F.3d at 1123.
[9] Here, it is undisputed that Dominguez established a
prima facie case of discrimination, and that the Department
and Stacey articulated a legitimate non-discriminatory reason
for their conduct: Phillip Andrews was the more qualified
candidate. The district court concluded that Dominguez’s
13202 DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION
claim fails as a matter of law because she did not present
“specific and substantial” evidence that appellees’ explanation
for their hiring decision was merely a pretext for gender dis-
crimination. We disagree with the district court’s conclusion.
[10] First, the district court erred in requiring that Domin-
guez’s evidence be both specific and substantial because such
a requirement only applies to circumstantial, not direct, evi-
dence of discriminatory motive. Here, Dominguez did not rely
on circumstantial evidence; rather, she offered direct evidence
of animus, which creates a triable issue as to appellees’
motive in failing to promote her “even if the evidence is not
substantial.” Godwin, 150 F.3d at 1221; see also Chuang v.
Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1128 (9th
Cir. 2000) (holding that the district court erred in requiring
direct evidence of pretext to be specific and substantial).
Direct evidence is “evidence, which, if believed, proves the
fact [of discriminatory animus] without inference or presump-
tion.” Godwin, 150 F.3d at 1221 (internal quotation marks
omitted). “Direct evidence typically consists of clearly sexist,
racist, or similarly discriminatory statements or actions by the
employer.” Coghlan v. Am. Seafoods Co., 413 F.3d 1090,
1095 (9th Cir. 2005).
[11] Here, the record reveals direct evidence of appellees’
discriminatory animus. This evidence includes Stacey’s sexist
comments that “he wished he could get men to do [women
employees’] jobs,” that “women have no business in construc-
tion,” that “women should only be in subservient positions,”
that he “would never work for a woman,” and his comment,
“if you girls were men, you would know that.” The district
court erroneously discounted this evidence as “only vaguely
recounted and hav[ing] nothing to do with either the plaintiff
or the decisional process.”
[12] First, there is nothing vague about Stacey’s comments;
rather, they overtly exhibit his hostility to women in the work-
place. Second, Stacey’s sexist remarks are probative of his
DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION 13203
discriminatory intent even if he directed them to other women
in the division. See Coghlan, 413 F.3d at 1095 n.6 (holding
that even if an employer does not target his remarks directly
at the plaintiff, “when evidence establishes the employer’s
animus toward the class to which the plaintiff belongs, the
inference to the fact of discrimination against the plaintiff is
sufficiently small that we have treated the evidence as
direct”). Third, Stacey’s comments were not “stray” or unre-
lated to the decisional process. Stacey was one of two deci-
sionmakers in the hiring of the Program Officer III position.
Where a decisionmaker makes a discriminatory remark
against a member of the plaintiff’s class, a reasonable fact-
finder may conclude that discriminatory animus played a role
in the challenged decision. See Godwin, 150 F.3d at 1221
(holding that a comment that a supervisor “did not want to
deal with another female” was not a stray remark, was not
ambivalent, and was tied directly to the position plaintiff
sought).
Moreover, the district court erred in disregarding Stacey’s
comment that he was “going to hire a guy” for the Program
Officer III position. The district court concluded that Stacey’s
use of the term “guy” in stating whom he wanted for the Pro-
gram Officer III position was ambiguous because “guy” can
be used to refer to a man or a woman. While this interpreta-
tion might be plausible if Stacey had not made other sexist
remarks, “[it] is not the province of a court to spin such evi-
dence 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.” Chuang, 225 F.3d
at 1129.
Properly viewed in the light most favorable to Dominguez,
Stacey’s comment cannot be deemed ambiguous, especially in
light of Dominguez’s additional deposition testimony that
“after this incident [Stacey] further said that he was going to
hire a man.” The district court improperly discounted this tes-
timony on the ground that Dominguez “could give no specif-
13204 DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION
ics” regarding when Stacey made these comments. As noted,
a plaintiff need not recite precise dates of an employer’s dis-
criminatory conduct, especially where she alleges that the
conduct was pervasive. While a factfinder is free to conclude
at trial that the plaintiff’s account is insufficiently detailed to
be believable, the district court must refrain from making such
credibility assessments on summary judgment. As long as a
reasonable factfinder could conclude that discrimination
occurred, summary judgment must be denied.
Relying on a Sixth Circuit case that has since been over-
ruled on other grounds, Gagne v. Northwestern Nat’l Ins. Co.,
881 F.2d 309, 314-16 (6th Cir. 1989), the district court further
concluded that “[e]ven if it is assumed that Stacey meant
‘man,’ a ‘single, isolated discriminatory comment’ is insuffi-
cient to withstand defendants’ motion for summary judgment,
even where the statement was made by plaintiff’s direct
supervisor.” Gagne does not support the district court’s con-
clusion. There, the court held that a supervisor’s comment
that he “needed younger blood” did not preclude summary
judgment for the employer on plaintiff’s age discrimination
claim because the comment was both “isolated and ambigu-
ous.” Id. at 314. Here, in contrast, Stacey’s statement that he
was going to hire a man for the Program Officer III position
was neither isolated nor ambiguous. Furthermore, in this cir-
cuit, we have repeatedly held that a single discriminatory
comment by a plaintiff’s supervisor or decisionmaker is suffi-
cient to preclude summary judgment for the employer. See,
e.g., Chuang, 225 F.3d at 1128 (holding that a decision-
maker’s remark that “ ‘two Chinks in the pharmacology
department were ‘more than enough’ ” was “an egregious and
bigoted insult . . . that constitutes strong evidence of discrimi-
natory animus on the basis of national origin”); Cordova v.
State Farm Ins. Cos., 124 F.3d 1145, 1149 (9th Cir. 1997)
(holding that an employer’s reference to an employee as a
“dumb Mexican” “could be proof of discrimination against
[plaintiff] despite their reference to another agent and their
utterance after the hiring decision”).
DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION 13205
[13] The district court stated that even if Stacey made dis-
criminatory remarks, his involvement in the hiring decision
was insufficient to overcome summary judgment because
there was no evidence that Mark Elicegui, the ultimate deci-
sionmaker, was tainted by Stacey’s prejudice against women.
In support of its proposition, the district court cited to
DeHorney v. Bank of Am. Nat’l Trust & Sav. Ass’n, 879 F.2d
459, 467-68 (9th Cir. 1989), in which we affirmed the grant
of summary judgment in favor of the employer because the
plaintiff failed to demonstrate a nexus between an agent’s
racially discriminatory remark and the plaintiff’s termination.
In DeHorney, however, the person who uttered the discrimi-
natory remark was not involved in the decisionmaking pro-
cess, and there was no evidence that the decisionmaker knew
of the discriminatory remark or even knew the plaintiff’s race.
Id. at 468. Where, as here, the person who exhibited discrimi-
natory animus influenced or participated in the decisionmak-
ing process, a reasonable factfinder could conclude that the
animus affected the employment decision. Mondero v. Salt
River Project, 400 F.3d 1207, 1213 (9th Cir. 2005) (“An
agent’s biased remarks against an employee because of his or
her gender are admissible to show an employer’s discrimina-
tory animus if the agent was involved in the employment
decision.”). Thus, contrary to the district court’s conclusion,
evidence of Stacey’s discriminatory remarks is sufficient to
permit a jury to find that animus affected the ultimate hiring
decision, even if Stacey never communicated his bias to
Elicegui and even if Elicegui himself was not biased against
women. See Lam v. Univ. of Hawai’i, 40 F.3d 1551, 1560 (9th
Cir. 1994) (noting that the university hiring process is “not
insulated from the illegitimate biases of faculty members” and
that among a group of fifteen decisionmakers, “even a single
person’s biases may be relatively influential”).5
5
Other circuits likewise have held that evidence of discriminatory ani-
mus exhibited by an individual who influenced or participated in the deci-
sionmaking process is sufficient to overcome summary judgment. See,
e.g., Laxton v. Gap Inc., 333 F.3d 572, 584 (5th Cir. 2003) (holding that
13206 DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION
[14] Finally, appellees argue that Dominguez’s claim fails
as a matter of law because Andrews was undisputedly the
more qualified candidate.6 However, the record reveals that
there is a genuine factual dispute regarding which candidate
was more qualified. Both Andrews and Dominguez satisfied
the minimum requirements for the position. Although
Andrews had a college degree, attended two years of law
school, and had worked in a similar position in Wyoming,
Dominguez had worked in the contract compliance division
for several years. The district court therefore made an
improper factual finding when it concluded that “Andrews
certainly was the more qualified candidate.” “Findings of fact
should be eschewed in determining whether summary judg-
ment should be granted.” Taybron v. City & County of San
Francisco, 341 F.3d 957, 959 n.2 (9th Cir. 2003) (holding, in
the context of an employer’s summary judgment motion on
plaintiff’s Title VII claims, that the district court erred in
“weighing . . . the evidence and making findings rather than
focusing on whether genuine issues of material fact are in dis-
pute”).
the relevant inquiry is whether the person who made the discriminatory
remark “had influence or leverage over” the formal decisionmaker);
Abramson v. William Paterson Coll. of New Jersey, 260 F.3d 265, 286 (3d
Cir. 2001) (“Under our case law, it is sufficient if those exhibiting discrim-
inatory animus influenced or participated in the decision to terminate.”);
Rose v. New York City Bd. of Educ., 257 F.3d 156, 162 (2d Cir. 2001)
(holding that a discriminatory remark made by a supervisor who had
“enormous influence in the decision-making process” was sufficient evi-
dence to allow a jury to find that plaintiff’s demotion was motivated, at
least in part, by an illegitimate factor); Wells v. New Cherokee Corp., 58
F.3d 233, 237-38 (6th Cir. 1995) (imputing a supervisor’s animus to the
ultimate decisionmaker because the evidence showed that the two
“worked closely together and consulted with each other on personnel deci-
sions” and they “themselves testified that they acted jointly”).
6
Appellees argue that Dominguez conceded that Andrews was more
qualified. This interpretation takes her comment out of context, however.
Dominguez stated: “I believe he was very qualified, and he may be more
qualified than me, but that was not the - I just knew because he had the
right body parts is why he got hired, in addition to being qualified.”
DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION 13207
[15] Even if it were uncontested that Andrews’ qualifica-
tions were superior, this would not preclude a finding of dis-
crimination. An employer may be held liable under Title VII
even if it had a legitimate reason for its employment decision,
as long as an illegitimate reason was a motivating factor in the
decision. 42 U.S.C. § 2000e-2(m); Costa v. Desert Palace,
Inc., 299 F.3d 838 (9th Cir. 2002), aff’d, 539 U.S. 90 (2003)
(discussing mixed-motives theory of liability under Title VII).
In Costa, we noted that the employer “may have had legiti-
mate reasons to terminate Costa. . . . Nonetheless, the wide
array of discriminatory treatment is sufficient to support a
conclusion that sex was also a motivating factor in the
decision-making process.” Id. at 859; see also Stegall v. Cita-
del Broadcasting Co., 350 F.3d 1061, 1072 (9th Cir. 2004) (as
amended) (noting that whether her case is analyzed as a
single-motive or mixed-motives case, the plaintiff was enti-
tled to a trial on her Title VII claim because the record
revealed “a triable issue as to whether Stegall’s termination
was influenced by improper motives”). Here, the evidence
ultimately may permit a finding that appellees had a legiti-
mate reason for hiring Andrews over Dominguez. However,
because a reasonable factfinder could conclude that the hiring
decision was motivated at least in part by her gender, the dis-
trict court erred in granting summary judgment in favor of the
Department.
[16] The dissent agrees that Dominguez’s claim properly
may be analyzed under a mixed-motives framework. None-
theless, relying on Sischo-Nownejad v. Merced Community
College District, 934 F.2d 1104, 1110 (9th Cir. 1991), the dis-
sent suggests that Dominguez cannot succeed on a mixed-
motives theory because appellees have established that “ab-
sent discriminatory animus, the same decision would have
been reached anyway.” Sischo-Nownejad, however, predated
Congress’s 1991 Civil Rights Act Amendments to Title VII,
which “expressly overruled the basic premise” that an
employer could escape liability under Title VII if it proved it
would have made the same decision even absent discrimina-
13208 DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION
tory animus. Costa, 299 F.3d at 850-51 (explaining that the
1991 Amendments to Title VII were intended to overrule the
Supreme Court’s holding in Price Waterhouse v. Hopkins,
490 U.S. 228 (1989), that an employer could escape liability
“simply by showing other sufficient causes”). Under the cur-
rent statutory scheme, an employer who proves that it would
have made the same decision in the absence of discriminatory
animus will be entitled to a partial affirmative defense that
limits the remedies a court may impose. 42 U.S.C. § 2000e-
5(g)(2)(B). However, an employer who proves the defense
will not avoid liability. Indeed, the language of Title VII and
well-settled case law establish that an employer will be held
to have committed an unlawful employment practice when the
plaintiff “demonstrates that . . . sex . . . was a motivating fac-
tor for any employment practice, even though other factors
also motivated the practice.” Id. § 2000e-2(m) (emphasis
added); Costa, 299 F.3d at 856-57.7 Thus, contrary to the dis-
sent’s conclusion, it is irrelevant whether “the record amply
supports NDOT’s assertion that Andrews was the best quali-
fied job applicant.” Because Dominguez raised a triable issue
7
A plaintiff need not decide at the outset of the case whether she wishes
to pursue a single motive or a mixed-motives theory of discrimination.
Stegall, 350 F.3d at 1072. To proceed to trial, the plaintiff need only raise
a genuine dispute of fact as to whether sex was a motivating factor in the
challenged decision. The question whether the evidence supports a single-
motive or mixed-motives theory only arises after the parties have pre-
sented all of their evidence, and affects the trial court’s jury instructions.
As we explained in Costa, where the evidence supports a finding that dis-
criminatory animus was
one of two or more reasons for the challenged decision, at least
one of which may be legitimate, the jury should be instructed to
determine first whether the discriminatory reason was ‘a motivat-
ing factor’ in the challenged action. If the jury’s answer to this
question is in the affirmative, then the employer has violated
Title VII.
299 F.3d at 856-57. “[I]f the jury then finds that the employer has proved
the ‘same decision’ affirmative defense by a preponderance of the evi-
dence,” the remedies the employee receives will be limited. Id. at 857.
DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION 13209
as to whether sex was “a motivating factor” for the Depart-
ment’s decision, she is entitled to a trial.8
[17] “Put simply, the plaintiff in any Title VII case may
establish a violation through a preponderance of the evidence
. . . that a protected characteristic played ‘a motivating fac-
tor.’ ” Costa, 299 F.3d at 853-54. To overcome summary
judgment, a plaintiff merely must raise a triable issue as to
this question. Dominguez has met this burden. Accordingly,
we hold that the district court erred in granting summary judg-
ment in favor of appellees on Dominguez’s failure-to-promote
claim.
Conclusion
In sum, we conclude that genuine factual disputes exist as
to whether Stacey’s conduct was sufficiently severe or perva-
sive to create a hostile work environment, and whether dis-
criminatory animus played a role in appellees’ decision not to
promote Dominguez. We therefore reverse the grant of sum-
mary judgment on both claims and remand for a trial on the
merits.9
REVERSED AND REMANDED.
8
The dissent cites no authority—and none exists—for its distinction
between termination and failure-to-promote cases. Title VII prohibits both
actions when they are motivated in part or whole by discriminatory ani-
mus, notwithstanding the existence of a legitimate motivating factor. 42
U.S.C. § 2000e-2(m) (providing that an unlawful employment practice is
established when . . . sex . . . was a motivating factor for any employment
practice, even though other factors motivated the practice” (emphasis
added)); Id. § 2000e-2(a)(1) (providing that it is “an unlawful employment
practice” for an employer to “fail or refuse to hire or to discharge any indi-
vidual, or otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment . . . .”).
9
Because we reverse the grant of summary judgment on Dominguez’s
Title VII claims, we also vacate the district court’s order dismissing
Dominguez’s supplemental state law claims and remand for further pro-
ceedings.
13210 DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION
CALLAHAN, Circuit Judge, dissenting:
I agree with the majority opinion that Dominguez has
alleged sufficient facts to survive summary judgment on her
hostile work environment claim, but conclude that the district
court properly granted summary judgment on her failure to
promote claim. Even if we accept for purposes of summary
judgment that a trier of fact could find that Stacey was biased
against women, Dominguez has not rebutted the Nevada
Department of Transportation’s (“NDOT”) legitimate, non-
discriminatory reason for hiring Phillip Andrews and not pro-
moting Dominguez. The record amply supports NDOT’s
assertion that Andrews was the best-qualified job applicant.
Accordingly, I dissent.
Dominguez, a woman, joined the Contract Compliance
Section of the Construction Division of NDOT in June 1994.
In November 1999, an opening in the Contract Compliance
Section was announced for a Program Officer III. Stacey with
Mark Elicegui conducted joint interviews of the six appli-
cants, including Dominguez, whose applications were for-
warded to them by the State Personnel Board. Stacey and
Elicegui individually rated Andrews as the top applicant and
Julia Mason, a woman, as the second-ranking candidate.
Andrews was ultimately offered the position.
Dominguez brought suit, alleging that Stacey’s discrimina-
tory views toward women motivated the decision to hire
Andrews rather than Dominguez. The district court analyzed
Dominguez’s claim under the burden shifting framework set
forth by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this framework, once a
plaintiff has made out a prima facie case of discrimination,
the “burden shifts to the defendant to articulate some legiti-
mate, nondiscriminatory reason for the employee’s rejection.”
Lindahl v. Air France, 930 F.2d 1434, 1437 (9th Cir. 1991)
(internal citation and quotation omitted). If the employer
meets this burden, the presumption of unlawful discrimination
DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION 13211
“simply drops out of the picture.” St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 511 (1993).
The plaintiff must then have an opportunity to prove by a
preponderance of the evidence that the legitimate reasons
offered by the defendant were not its true reasons, but were
a pretext for discrimination. Id. The plaintiff may carry this
burden “either directly by persuading the court that a discrim-
inatory reason more likely motivated the employer or indi-
rectly by showing that the employer’s proffered explanation
is unworthy of credence.” Lindahl, 930 F.2d at 1437.
NDOT’s proffered nondiscriminatory reason for hiring
Andrews and not Dominguez for the position was that “An-
drews’ qualifications for the position were vastly superior to
[Dominguez’s] qualifications.” NDOT noted that Andrews
holds a bachelor’s degree in Labor Relations and Human
Resources, and previously attended law school for two-and-a-
half years. He worked, often in a supervisory capacity, in
many positions over the years in the labor relations field, and,
at one point, held a position in the Wyoming Department of
Employment as a Labor Compliance Officer.
On the other hand, Dominguez’s only completed course-
work after high school is a course in Secretarial Skills from
a vocational school and a course in Business Communications
from a community college. Although she has worked in the
Contract Compliance Division for over ten years, her position
is a Program Assistant IV, a Grade 29 non-professional posi-
tion in the clerical, administrative and support services class.
Although her work experience qualified her to apply for the
Program Officer III position, her qualifications were not com-
parable to Andrews’s education and training.
Dominguez concedes that Andrews “was very qualified,
and he may be more qualified than me,” but argues that
Andrews was hired because he was a man. She alleges that
Stacey, one of the two men who interviewed her, stated in
13212 DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION
early 1999 that “[w]hen I fill the position for the Program
Officer III, I am going to hire a guy and he is going to do all
the contract investigations and stay on top of all the contract
field work that I haven’t been doing for the past six years.”
She claims that Stacey’s alleged discriminatory comment pro-
vides direct evidence that, even if Andrews was well quali-
fied, that Stacey applied a discriminatory motive to the hiring
process.
Although the district court framed its analysis on a single-
motive pretext framework, the majority properly recasts
Dominguez’s claim under a mixed-motive framework. To
succeed on a mixed-motive theory, the plaintiff is required to
demonstrate “that it is more likely than not that a protected
characteristic played a motivating part in the employment
decision.” Sischo-Nownejad v. Merced Comty. Coll. Dist.,
934 F.2d 1104, 1110 (9th Cir. 1991) (internal quotations omit-
ted). The burden then shifts to the defendant to show that
absent discriminatory animus, the same decision would have
been reached anyway. Id.
Under a mixed-motive analysis, a plaintiff is required to
show that an illicit motive played a causal role in a hiring
decision even if other legitimate motives also existed. Here,
as the district court found, Dominguez has not disputed
Andrews’s qualifications, or denied that Andrews was the
best-qualified candidate. Instead, she merely reiterated that
Stacey is biased against women. That is not enough. Where,
as here, the justification offered by a defendant is that the
best-qualified applicant was selected for a job, and the record
contains substantial and specific evidence supporting that
contention, an alleged illicit motive on behalf of one of the
decisionmakers cannot be said to have played a motivating
role in the employment decision.
This position is supported in our case law, which requires
that a plaintiff produce evidence demonstrating that gender
played a causal role in an employment decision. Sischo-
DOMINGUEZ-CURRY v. NEVADA TRANSPORTATION 13213
Nownejad, 934 F.2d at 1110; see also DeHorney v. Bank of
Am., 879 F.2d 459, 468 (9th Cir. 1989) (noting that there was
no nexus shown between a racially discriminatory remark and
an adverse hiring decision).
Of course, there are instances where a plaintiff’s evidence
of discriminatory intent raises material questions as to the suf-
ficiency or exclusivity of an employer’s alleged non-
discriminatory reasons. This was true in the cases alleging
discriminatory terminations cited by the majority, Costa v.
Desert Palace, Inc. 299 F.3d 838 (9th Cir. 2002), aff’d, 539
U.S. 90 (2003), and Stegall v. Citidel Broadcasting Co., 350
F.3d 1061, 1072 (9th Cir. 2004). Where, however, a plaintiff
asserts a failure to promote claim and the person hired is
objectively the most clearly qualified candidate, other factors
such as an alleged discriminatory intent, do not come into
play. Here, because Andrews was clearly the most qualified
candidate, Stacey’s alleged bias was not a “motivating fac-
tor.” Accordingly, although Dominquez’s failure to promote
claim is properly considered in a mixed-motive framework,
because Stacey’s alleged bias was not a factor in the Depart-
ment’s decision to hire Andrews, there was no unlawful prac-
tice, and hence no liability that could be limited by an
affirmative defense.
In conclusion, Dominguez has produced no evidence that
demonstrates that NDOT’s contention that it chose to hire an
applicant who was better qualified than herself was unworthy
of credence. Where the clearly best-qualified applicant is
hired for a position, the existence of a discriminatory motive
on the part of a decisionmaker does not in and of itself, even
on summary judgment, establish that it played a motiving role
in the decision not to promote a third party. As the district
court’s grant of summary judgment on this issue was proper,
I would affirm that portion of the judgment.