Noyes v. Kelly Services

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LYNN NOYES,  No. 04-17050

Plaintiff-Appellant, D.C. No.

v.  CV-S-02-02685-

KELLY SERVICES, a corporation, GEB/PAN

Defendant-Appellee.

 OPINION

Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, District Judge, Presiding

Argued and Submitted

November 15, 2006—San Francisco, California

Filed May 29, 2007

Before: Procter Hug, Jr. and M. Margaret McKeown,

Circuit Judges, and Barry Ted Moskowitz,* District Judge.

Opinion by Judge McKeown

*The Honorable Barry Ted Moskowitz, United States District Judge for

the Southern District of California, sitting by designation.

6291

NOYES v. KELLY SERVICES 6295

COUNSEL

M. Catherine Jones, Law Office of M. Catherine Jones,

Nevada City, California, for the plaintiff-appellant.

Tyler M. Paketau, Winston & Strawn LLP, San Francisco,

California, for the defendant-appellee.

OPINION

McKEOWN, Circuit Judge:

In this employment discrimination case, we address the

plaintiff’s burden to raise a triable issue of fact as to pretext

under the familiar McDonnell Douglas burden-shifting regime

in the context of a less familiar claim of “reverse” religious

discrimination. Lynn Noyes alleges that a supervisory

employee at her former employer, Kelly Services, Inc.

(“Kelly Services”), was a member of a small religious group,

the Fellowship of Friends (“Fellowship”), and that he repeat-

edly favored and promoted other Fellowship members. Noyes

claims that she was passed over for a promotion because she

does not adhere to the religious beliefs of the Fellowship, and

that a Fellowship member was promoted instead. She appeals

6296 NOYES v. KELLY SERVICES

the district court’s order granting summary judgment in favor

of Kelly Services on her Title VII disparate treatment claim

and dismissing her state law claims for lack of subject matter

jurisdiction.

We reverse the grant of summary judgment as to Noyes’

disparate treatment claim because the district court misapplied

the applicable standard on summary judgment and because

genuine issues of material fact exist as to pretext. We also

reverse the dismissal of Noyes’ state law claims and remand

with instructions to the district court to consider whether it

may exercise diversity or supplemental jurisdiction over those

claims.

BACKGROUND1

A. NOYES’ EMPLOYMENT HISTORY WITH KELLY

SERVICES

Kelly Services provides temporary workers to other compa-

nies. Noyes worked as a permanent employee at Kelly Ser-

vices in its computer software and multimedia department

from October 1994 until May 2004, when she was laid off. At

the time of the lay-off, she held the title of Software Devel-

oper. In April 2001, Noyes was passed over for a promotion

to the position of Software Development Manager. Noyes

challenges Kelly Services’ failure to promote her in April

2001, not her termination in May 2004.

B. THE FELLOWSHIP OF FRIENDS

The Fellowship, founded in the 1970s, is a religious organi-

zation whose followers adhere to “Fourth Way” principles.

1

In this factual discussion, we view the facts in the light most favorable

to Noyes and draw all reasonable inferences in her favor, as she is the non-

moving party on summary judgment. Bodett v. CoxCom, Inc., 366 F.3d

736, 742 (9th Cir. 2004).

NOYES v. KELLY SERVICES 6297

The Fellowship describes itself as focusing on “an esoteric

interpretation of religion associated with teachings of the Old

and New Testaments, traceable also in Greek philosophy, and

probably originating in Egypt and Asia.” The Fellowship

characterizes itself as “more than a philosophy or theory . . .

it comprises a system of ideas that, when fully embraced, is

a way of life.” The Fellowship has approximately 2000 mem-

bers, about one-third of whom live near or on a Fellowship-

owned compound in Apollo, California. Fellowship members

are required to donate at least ten percent of their gross

monthly income to the Fellowship.

C. THE DISPUTED PROMOTION DECISION

In April 2001, the position of Software Development Man-

ager became available at Kelly Services. William Heinz, a

top-level management employee and a member of the Fellow-

ship, was in charge of filling the position. Several employees

were considered for the position — Noyes, Donna Walker and

Joep Jilesen. Neither Noyes nor Walker are members of the

Fellowship; Jilesen is a member of the Fellowship. No outside

candidates were considered for the position.

Although Heinz had final decision-making authority over

the promotion, during the selection process, he received input

from other employees. Heinz told at least two of those

employees that Noyes was not interested in receiving the pro-

motion. For example, Maya Bonhoff, a manager, testified that

she did not consider Noyes for the promotion because Heinz

told her that Noyes did not want to be a manager and that

Heinz had “something else that he really needed [Noyes] to

do.” From Bonhoff’s perspective, Noyes had been “taken off

the table” as a candidate for the Software Development Man-

ager position. When William Galvin suggested that Noyes

would be “very good” as Software Development Manager,

Heinz told him that Noyes was not interested in the position.

6298 NOYES v. KELLY SERVICES

Noyes claimed that she never told anyone at Kelly Services

that she was not interested in becoming a manager, and that

Heinz’s statements to that effect were simply not true. In fact,

Noyes wanted to become a manager and, in 2000, she applied

for the only management position that was previously openly

advertised in her field. Mario Fantoni, a Fellowship member,

received that promotion.2

Heinz originally offered the Software Development Man-

ager position to Walker, who declined the job because she had

already held a similar position and thought that it would be a

professional step backwards. After Walker declined, Bonhoff

recommended to Heinz that he promote Jilesen. Heinz

expressed some reluctance because there had been “issues

raised in the past with Fellowship members being perceived

as being given favoritism.” Heinz ultimately offered the pro-

motion to Jilesen, who accepted.

Noyes claimed that she was more qualified for the Software

Development Manager position than Jilesen, because she had

worked at Kelly Services for nearly six years longer and she

had an MBA, which Jilesen did not. According to Noyes,

Heinz had also shown other preferential treatment to Jilesen,

including paying him a higher salary, which Heinz told Noyes

was necessary for Jilesen’s “lifestyle.”

D. NOYES’ COMPLAINTS REGARDING RELIGIOUS

DISCRIMINATION

Noyes lodged a verbal complaint about Heinz’s discrimina-

tory employment practices with Kelly Services’ Human

Resources Department in May 2001. She claimed Kelly Ser-

vices did nothing in response, and Kelly Services pointed to

no evidence in the record indicating otherwise. Noyes then

2

According to Noyes, she should have been allowed to compete for at

least four other management-level promotions between 1997 and 2001. Of

those four promotions, three were given to Fellowship members.

NOYES v. KELLY SERVICES 6299

filed an administrative charge of discrimination with the Cali-

fornia Department of Fair Employment and Housing in

August 2001.

In December 2002, Noyes filed this action, alleging claims

for: (1) employment discrimination in violation of 42 U.S.C.

§ 1981a3 and 42 U.S.C. § 2000e-2 (“Title VII”), (2) employ-

ment discrimination in violation of California’s Fair Employ-

ment & Housing Act, Cal. Gov’t Code § 12940, (3) failure to

promote in violation of public policy, (4) breach of employ-

ment contract, (5) breach of the covenant of good faith and

fair dealing, and (6) intentional infliction of emotional dis-

tress.

The district court granted summary judgment as to the Title

VII claims, and dismissed the state law claims for lack of sub-

ject matter jurisdiction after declining to exercise supplemen-

tal jurisdiction under 28 U.S.C. § 1367.

We review the district court’s grant of summary judgment

de novo, drawing all reasonable inferences supported by the

evidence in favor of Noyes, the nonmoving party. See Bodett,

366 F.3d at 742. A genuine dispute of material fact exists

where “a reasonable jury could return a verdict for the non-

moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986); see Fed. R. Civ. P. 56. In our de novo

review, we also determine “whether the district court cor-

rectly applied the relevant substantive law.” Stout v. Potter,

276 F.3d 1118, 1121 (9th Cir. 2002).

3

Although Noyes alleged religious discrimination under 42 U.S.C.

§ 1981, the district court did not address the § 1981 claims. It is well

established, however, that § 1981 does not apply to claims of religious dis-

crimination. See, e.g., Shah v. Mt. Zion Hospital & Medical Center, 642

F.2d 268, 272 & n.4 (9th Cir. 1981) (noting that 42 U.S.C. § 1981 “only

prohibits racial discrimination” and not the other forms of discrimination

protected under Title VII). Thus, Noyes’ claims under § 1981 are without

merit in any event.

6300 NOYES v. KELLY SERVICES

ANALYSIS

I. APPLICATION OF MCDONNELL DOUGLAS BURDEN-SHIFTING

REGIME TO NOYES’ TITLE VII DISPARATE TREATMENT

CLAIM

The Supreme Court’s landmark case regarding employment

discrimination claims brought under Title VII, McDonnell

Douglas v. Green, sets forth a proof framework with two dis-

tinct components: (1) how a plaintiff may establish a prima

facie case of discrimination absent direct evidence, and (2) a

burden-shifting regime once the prima facie case has been

established. 411 U.S. 792, 802-04 (1973). In the summary

judgment context, the plaintiff bears the initial burden to

establish a prima facie case of disparate treatment. Chuang v.

Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1123 (9th

Cir. 2000). If the plaintiff succeeds in showing a prima facie

case, the burden then shifts to the defendant to articulate a “le-

gitimate, nondiscriminatory reason” for its employment deci-

sion. Id. at 1123-24. Should the defendant carry its burden,

the burden then shifts back to the plaintiff to raise a triable

issue of fact that the defendant’s proffered reason was a pre-

text for unlawful discrimination. Id. at 1124. The central dis-

pute in this case is whether Noyes’ evidence was sufficient to

raise a triable issue of fact as to pretext.

A. NOYES’ PRIMA FACIE CASE

[1] A prima facie case of employment discrimination may

be established through direct evidence of discriminatory

intent or a presumption arising from a showing of objective

factors such as those outlined in McDonnell Douglas and its

progeny. See 411 U.S. at 802. In Godwin v. Hunt Wesson,

Inc., 150 F.3d 1217 (9th Cir. 1998), we adapted McDonnell

Douglas to the failure to promote context, holding that a

prima facie case requires the employee to show: “(1) she

belongs to a protected class, (2) she was performing according

to her employer’s legitimate expectations, (3) she suffered an

NOYES v. KELLY SERVICES 6301

adverse employment action, and (4) other employees with

qualifications similar to her own were treated more favor-

ably.” Id. at 1220.

[2] Although we have not previously outlined the precise

contours of a prima facie showing of reverse religious dis-

crimination, the district court’s application of Godwin in this

context was appropriate. The district court concluded that

Noyes’ evidence was sufficient to make out a prima facie case

of disparate treatment with respect to the promotion at issue,

and Kelly Services does not challenge that conclusion on

appeal. Of course, the “protected class” element is not compa-

rable because Noyes does not claim she was part of a pro-

tected class, i.e., that she adheres to a particular religion.

Rather, her claim is that her lack of adherence to the religious

beliefs promoted by the management of Kelly Services was

the genesis of the discrimination.

[3] The Tenth Circuit’s discussion on this point is instruc-

tive. In Shapolia v. Los Alamos National Laboratory, 992

F.2d 1033 (10th Cir. 1993), the court reasoned that the “pro-

tected class” showing required in a traditional race or sex dis-

crimination claim does not apply to this type of non-

adherence or reverse religious discrimination claim because

“it is the religious beliefs of the employer, and the fact that

[the employee] does not share them, that constitute the basis

of the [religious discrimination] claim.” Id. at 1038. We rec-

ognize, as did the district court, that it is appropriate to tailor

the elements of a prima facie showing according to the partic-

ular circumstances of each case. See Furnco Constr. Corp. v.

Waters, 438 U.S. 567, 577 (1978) (recognizing that McDon-

nell Douglas’s suggested method for setting out a prima facie

case “was never intended to be rigid, mechanized, or ritualis-

tic.”).

6302 NOYES v. KELLY SERVICES

B. KELLY SERVICES’ BURDEN TO ARTICULATE A

LEGITIMATE, NONDISCRIMINATORY REASON FOR NOT

PROMOTING NOYES

[4] Because Noyes established a prima facie case, the bur-

den of production then shifted to Kelly Services to articulate

a legitimate, nondiscriminatory reason for its adverse employ-

ment decision. McDonnell Douglas, 411 U.S. at 802. To meet

this burden, “the defendant must clearly set forth, through the

introduction of admissible evidence,” reasons for its employ-

ment decision which, if believed by the trier of fact, would

support a finding that the employment action was not a result

of unlawful discrimination. Texas Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 255 (1981).

[5] Kelly Services offered several pieces of evidence in

support of its selection of Jilesen rather than Noyes. Heinz

first offered the position to Walker, a non-Fellowship mem-

ber, who declined the position. After Walker declined, Bon-

hoff, a non-Fellowship member, recommended that Jilesen be

promoted. Bonhoff set forth the qualities that she was looking

for in a Software Development Manager and stated that

“[q]uite simply, the person whom I felt possessed all of these

qualities was Joep Jilesen.” Heinz agreed that Jilesen was the

right person for the job. Heinz also stated that Kelly Services

made the decision to promote Jilesen through a “consensus”

of the “management group.” This evidence meets Kelly Ser-

vices’ burden to articulate a legitimate, nondiscriminatory rea-

son for its employment decision. See id.; McDonnell Douglas,

411 U.S. at 802.4

4

In its order, the district court reasoned that “[s]ince Noyes does not

contradict Bonhoff’s asserted reasons for recommending Jilesen’s promo-

tion, Kelly Services has demonstrated a legitimate reason for promoting

Jilesen instead of Noyes to the Software Development Manager position.”

(emphasis added). The district court is incorrect that Noyes failed to dis-

pute Bonhoff’s reasons. Noyes disputed the basis for Bonhoff’s recom-

mendation and the claim that Jilesen was the best qualified candidate for

NOYES v. KELLY SERVICES 6303

C. NOYES’ BURDEN TO SHOW THAT KELLY SERVICES’

REASONS WERE A PRETEXT FOR UNLAWFUL

DISCRIMINATION

1. PROOF OF PRETEXT

[6] Once Kelly Services satisfied its burden to articulate a

nondiscriminatory reason for its promotion decision, the bur-

den shifted back to Noyes to come forward with evidence that

the proffered reasons were a pretext for discrimination. See

McDonnell Douglas, 411 U.S. at 804. Importantly, the “shift”

back to the plaintiff does not place a new burden of produc-

tion on the plaintiff. Raad v. Fairbanks N. Star Borough Sch.

Dist., 323 F.3d 1185, 1194 (9th Cir. 2003). “[T]he factfinder

may infer ‘the ultimate fact of intentional discrimination’

without additional proof once the plaintiff has made out her

prima facie case if the factfinder rejects the employer’s prof-

fered nondiscriminatory reasons as unbelievable.” Id.; accord

Chuang, 225 F.3d at 1127.

“[A] plaintiff can prove pretext in two ways: (1) indirectly,

by showing that the employer’s proffered explanation is

‘unworthy of credence’ because it is internally inconsistent or

otherwise not believable, or (2) directly, by showing that

unlawful discrimination more likely motivated the employer.”

Chuang, 225 F.3d at 1127 (emphasis added) (citing Godwin,

150 F.3d at 1220-22); see Burdine, 450 U.S. at 256. “All of

the evidence [as to pretext] — whether direct or indirect —

is to be considered cumulatively.” Raad, 323 F.3d at 1194.

[7] Where the evidence of pretext is circumstantial, rather

than direct, the plaintiff must present “specific” and “substan-

the position. Although Kelly Services’ evidence satisfies its burden of pro-

duction to articulate a legitimate, nondiscriminatory reason for the failure

to promote Noyes, to the extent the district court made a finding that the

reason was in fact legitimate, the district court acted beyond the review

permitted on summary judgment. See Burdine, 450 U.S. at 254-55.

6304 NOYES v. KELLY SERVICES

tial” facts showing that there is a genuine issue for trial. God-

win, 150 F.3d at 1222. However, that requirement is tempered

by our observation that, in the context of Title VII claims, the

burden on plaintiffs to raise a triable issue of fact as to pretext

is “hardly an onerous one.” Payne v. Northwest Corp., 113

F.3d 1079, 1080 (9th Cir. 1997).

2. THE DISTRICT COURT’S MISAPPLICATION OF ST.

MARY’S HONOR

[8] The district court did not apply the proper law govern-

ing proof of pretext, but, rather, imposed a heavier burden on

Noyes at summary judgment. According to the district court,

to show pretext, Noyes had to “show[ ] both that [Kelly Ser-

vices’ proffered] reason was false, and that discrimination

was the real reason.” (emphasis by district court). This formu-

lation can be traced to the following statement in St. Mary’s

Honor Center v. Hicks, 509 U.S. 502 (1993), which addressed

a merits determination rather than summary judgment: “[A]

reason cannot be proved to be ‘a pretext for discrimination’

unless it is shown both that the reason was false, and that dis-

crimination was the real reason.” Id. at 515 (emphases omit-

ted). Taken out of context, this statement would appear to

support an enhanced burden to show pretext. However, con-

sidered in the proper procedural posture, St. Mary’s Honor

clearly does not alter the burden on summary judgment.

In St. Mary’s Honor, the Supreme Court considered the

quantum of proof necessary for a plaintiff to prove that an

employer’s articulated reasons were pretextual, such that a

court may direct a finding as a matter of law that intentional

discrimination occurred. Id. at 505, 508-10 (addressing find-

ings of fact and conclusions of law made after a bench trial);

see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 154 (2000) (Ginsburg, J., concurring) (“Whether the

defendant was in fact motivated by discrimination is of course

for the finder of fact to decide; that is the lesson of St. Mary’s

Honor Center v. Hicks.”). The showing required to direct a

NOYES v. KELLY SERVICES 6305

finding on the ultimate fact of intentional discrimination is

obviously different and more difficult than the burden

imposed on a plaintiff to raise a triable issue of fact as to pre-

text sufficient to defeat summary judgment.

[9] Because of its misreading of St. Mary’s Honor, the dis-

trict court required Noyes to prove that Kelly Services’ articu-

lated nondiscriminatory reasons were “false” and that

intentional discrimination was the “real reason” for promoting

Jilesen over Noyes. This approach misconstrues the burden on

Noyes to raise a triable issue of fact regarding pretext. We

reiterate that at the summary judgment stage, a plaintiff may

raise a genuine issue of material fact as to pretext via (1)

direct evidence of the employer’s discriminatory motive or (2)

indirect evidence that undermines the credibility of the

employer’s articulated reasons. Raad, 323 F.3d at 1194 (reaf-

firming two options for proving pretext by direct or indirect

evidence) (citing Godwin, 150 F.3d at 1220-22).

3. NOYES’ EVIDENCE OF PRETEXT

[10] Noyes countered Kelly Services’ purported nondis-

criminatory reasons for promoting Jilesen with specific, sub-

stantial evidence that undermined the credibility of those

reasons. Noyes’ overarching complaint is that membership in

the Fellowship permeated the promotion process and that

Heinz, a Fellowship member and the ultimate decisionmaker,

exercised his supervisory authority in favor of Fellowship

members. The claim is made against the backdrop that Heinz

recognized that perceived favoritism to Fellowship members

was an ongoing issue. Noyes pointed to evidence that she was

more qualified for the job than Jilesen and that Heinz’s

actions deprived her of fair and full consideration for the pro-

motion. Based on this evidence, a reasonable factfinder could

conclude that religiously-motivated discrimination was

behind Heinz’s promotion of Jilesen. Viewing Noyes’ circum-

stantial evidence of pretext through the proper lens on sum-

6306 NOYES v. KELLY SERVICES

mary judgment, we conclude that Noyes raised a triable issue

of fact such that summary judgment was inappropriate.

Specifically, Noyes offered evidence that Jilesen’s selec-

tion was tainted by Heinz’s actions in telling other employees

that Noyes was not interested in the promotion. Consequently,

Noyes was not fully considered for the promotion. Contrary

to Heinz’s story, Noyes, who holds an MBA, wanted to

become a manager. She previously applied for the only man-

agement position that was openly advertised in her field,

Operations Manager, which went to a Fellowship member

instead.

Although Heinz represented that Jilesen was chosen based

on a management “consensus,” two of the other managers

Heinz claimed were part of the “consensus”—Bonhoff and

Victoria Smart—did not recall reaching a management “consen-

sus”5 on the decision to promote Jilesen. Bonhoff testified that

the ultimate decision was made by Heinz.

Noyes also showed that Heinz favored Jilesen in past

employment decisions. Heinz initially pressured Noyes to

support Jilesen’s hire for a position Heinz created by telling

her that Jilesen would have to leave the country if he did not

get a job with Kelly Services. When Jilesen was hired,

“[Heinz] told [Noyes] that he wanted to bring him in at a

higher salary than was normal for the job so that [Jilesen]

would have more money for his lifestyle.” Although Jilesen

had six years less seniority than Noyes and did not hold an

MBA, as of June 2001, when they both held the position of

Software Developer, Noyes was paid $59,000 while Jilesen

was paid $63,800. “Facts tending to show that the chosen

applicant may not have been the best person for the job are

probative as they ‘suggest that [the explanation] may not have

been the real reason for choosing [the chosen applicant] over

5

Nothing in the record documents the views or extent of participation

of the third manager that Heinz claimed was part of the “consensus.”

NOYES v. KELLY SERVICES 6307

the [plaintiff].’ ” Godwin, 150 F.3d at 1222 (quoting Lindahl

v. Air France, 930 F.2d 1434, 1439 (9th Cir. 1991)) (alter-

ation in Godwin).

[11] Viewing the evidence in the light most favorable to

Noyes, Heinz’s credibility on the issue of why he chose

Jilesen was severely undermined by conflicting evidence on

the promotion process. Cf. Reeves, 530 U.S. at 152 (holding

in trial context that evidence that the true decisionmaker was

hostile to the employee undermined the credibility of the

employer’s proffered reason for terminating the employee);

Payne, 113 F.3d at 1080 (holding that although a jury may

ultimately accept an employer’s “shifting explanations,” such

fact issues should not be resolved on summary judgment). A

reasonable factfinder may find that Noyes’ evidence renders

Kelly Services’ proffered reasons “unworthy of credence”

because Heinz’s actions preempted full consideration of

Noyes despite her desire for the job and her superior qualifi-

cations. The evidence also supports a finding that Heinz had

an unspoken motive for promoting Jilesen over Noyes—

favoritism toward members of the Fellowship. We hold that

Noyes’ specific, substantial evidence undermining the credi-

bility of Kelly Services’ explanation for its promotion deci-

sion, coupled with her evidence as to favoritism, was

sufficient to raise a genuine issue of fact as to pretext. See

Godwin, 150 F.3d at 1222; accord Raad, 323 F.3d at 1195;

Chuang, 225 F.3d at 1129; Payne, 113 F.3d at 1080.

The district court’s conclusion to the contrary misapplied

St. Mary’s Honor, and imposed a higher burden of proof on

Noyes. The district court concluded that

[s]ince Heinz was responsible for the decision to

promote Jilesen, evidence that he told others Noyes

was not interested in the position, and showed a pref-

erence toward Jilesen in prior employment decisions,

could support a finding that Heinz did not select

Jilesen for promotion based on the non-

6308 NOYES v. KELLY SERVICES

discriminatory reasons articulated by Bonhoff. That

evidence does not, however, support a finding that

Noyes was passed over for the promotion specifi-

cally because she was not a member of the Fellow-

ship.

(emphasis added).

Once the district court concluded that Noyes raised a triable

question that the promotion decision was not consistent with

Kelly Services’ stated reasons, the question of whether the

“real reason” for the promotion decision was unlawful dis-

crimination should have gone to the jury. Instead, the district

court required Noyes to prove the ultimate issue of unlawful

discrimination — that “she was passed over for the promotion

specifically because she was not a member of the Fellow-

ship.” In doing so, the district court erroneously heightened

the standard on summary judgment.

The district court also substituted its own judgment that the

evidence — repeated favoritism of a more junior, less-

qualified Fellowship-member employee over a more senior,

more qualified non-Fellowship member — did not support an

inference of discrimination on the basis of Noyes’ non-

affiliation with the Fellowship. To do so was error. See, e.g.,

Chuang, 225 F.3d at 1129 (reversing summary judgment and

reiterating that “[i]t is not the province of a court to spin such

evidence in an employer’s favor when evaluating its motion

for summary judgment. To the contrary, all inferences must

be drawn in favor of the non-moving party.”).

Although the triable issues of fact set out above are suffi-

cient to reverse summary judgment, Noyes also proffered sta-

tistical evidence regarding the Fellowship and promotions at

Kelly Services. Statistical evidence may support a plaintiff’s

showing of pretext in a disparate treatment claim. See Diaz v.

AT&T, 752 F.2d 1356, 1362-63 (9th Cir. 1985).

NOYES v. KELLY SERVICES 6309

Noyes offered evidence that Heinz “repeatedly brought in

Fellowship members as temporary contractors” and “consis-

tently appointed Fellowship members to management jobs

where one of the duties is to select contractors.” Before the

April 2003 layoffs, thirteen of the thirty-five full-time

employees were Fellowship members; between 1998 and

November 2001, five of the eleven full-time hires in the

Development Group were Fellowship members (including

Jilesen); and two out of three recent hires in the “Test Bay”

area were Fellowship members. Noyes also claimed that four

of the five management-level promotions made between 1997

and April 2001 were given to Fellowship members.

[12] The district court downplayed Noyes’ statistical evi-

dence, concluding that “[r]egardless of whether this evidence

‘show[s] a statistically significant relationship’ between posi-

tive employment decisions and Fellowship membership, it

must be treated with skepticism because it ‘fail[s] to account

for other relevant variables,’ ” citing Pottenger v. Potlatch

Corporation, 329 F.3d 740, 748 (9th Cir. 2003) (alterations

by district court). Although we agree that this statistical evi-

dence standing alone was insufficient to raise a triable issue

of fact, coupled with Noyes’ other evidence, the numerical

picture buttressed Noyes’ challenge that Kelly Services’ prof-

fered reasons for its promotion decision were a pretext for

unlawful discrimination. See Chuang, 225 F.3d at 1129

(viewing plaintiff’s evidence of pretext cumulatively); Man-

gold v. Cal. Pub. Utils. Comm’n, 67 F.3d 1470, 1476 (9th Cir.

1995) (upholding admission of statistical evidence that did not

isolate all potentially relevant variables in support of disparate

treatment age discrimination claim while acknowledging that

“the statistical disparities [might not be] so substantial so as

to infer causation from the statistics alone”).

II. STATE LAW CLAIMS

After declining to exercise its discretionary supplemental

jurisdiction in the absence of any remaining federal claim, the

6310 NOYES v. KELLY SERVICES

district court dismissed Noyes’ state law claims for lack of

subject matter jurisdiction. See 28 U.S.C. § 1367. However,

Noyes’ complaint alleged diversity jurisdiction under 28

U.S.C. § 1332 as an alternative basis for jurisdiction over the

state law claims. Although Kelly Services agrees that diver-

sity jurisdiction exists, because subject matter jurisdiction is

a threshold issue, on remand, jurisdiction must be determined

by the court, not by concession of the parties.

[13] In the absence of diversity jurisdiction, the district

court should reconsider whether to exercise supplemental

jurisdiction under § 1367, in light of our remand for trial on

Noyes’ Title VII disparate treatment claim.

III. RULE 16(b) ISSUES ON REMAND

A. HEINZ’S DEPOSITION TESTIMONY

Noyes moved under Federal Rule of Civil Procedure 16(b)

to modify the scheduling order and under Rule 56(f) to post-

pone consideration of the summary judgment motion until she

could depose Heinz — a central defense witness. The district

court denied the motions.

Noyes originally noticed Heinz’s deposition to take place

more than two weeks prior to the discovery cut-off. At Kelly

Services’ request, the deposition was rescheduled several

times, pushing it past the discovery cut-off date. The parties

stipulated to an extension of the discovery deadline to permit

further discovery, including the Heinz deposition. The court

took no action on the proposed order. Heinz failed to appear

for his deposition on the rescheduled date, which would have

allowed sufficient time for Noyes to utilize the testimony in

her summary judgment opposition. Heinz sat for his deposi-

tion two days after the due date for Noyes’ opposition to

Kelly Services’ summary judgment motion.

The district court concluded that Noyes had failed to show

diligence in completing Heinz’s deposition and, on that basis,

NOYES v. KELLY SERVICES 6311

denied the Rule 16(b) and Rule 56(f) motions. The circum-

stances of scheduling Heinz’s deposition are not particularly

unusual, as counsel often agree to continuances as a matter of

courtesy. Nonetheless, the ultimate result left Noyes preju-

diced due to a delay caused by an adverse witness. Although

the appeal of the denial of the Rule 56(f) motion is moot in

light of the remand, the question whether the discovery cut-

off should have been extended to encompass Heinz’s deposi-

tion remains a live issue.

[14] In view of Noyes’ timely noticing of Heinz’s deposi-

tion, Kelly Services’ multiple requests to delay the deposition,

and Heinz’s failure to appear as scheduled, it was an abuse of

discretion to deny the motion to modify the scheduling order.6

Cf. Garrett v. City & County of San Francisco, 818 F.2d

1515, 1518-19 (9th Cir. 1987) (holding that district court

improperly denied Rule 56(f) motion where the plaintiff in a

Title VII action diligently pursued discovery but was unable

to obtain complete responses prior to due date of response to

the opposing party’s motion for summary judgment).

B. ROSS’S EXPERT TESTIMONY

After submission of the summary judgment motion without

oral argument, at Noyes’ request, the district court reopened

discovery for twenty days to permit the parties to conduct

expert discovery. Kelly Services did not oppose the request.

During the reopened discovery period, Noyes retained Rick

Ross, a purported expert in destructive cults and controversial

groups and movements, who claims to have particular exper-

tise in the Fellowship. Before Noyes could submit a declara-

6

Rule 16(b) provides that a district court’s scheduling order may be

modified upon a showing of “good cause,” an inquiry which focuses on

the reasonable diligence of the moving party. Johnson v. Mammoth Recre-

ations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). We review the denial of

a Rule 16(b) motion for abuse of discretion. Id.

6312 NOYES v. KELLY SERVICES

tion from Ross, the district court granted summary judgment

in favor of Kelly Services on all claims. Based on the newly-

obtained expert evidence, Noyes moved for reconsideration of

the summary judgment ruling under Rule 59(e). The court

denied Noyes’ motion for reconsideration, concluding that

Noyes had not shown good cause why she did not earlier

obtain the expert discovery. Given that the district court

reopened discovery so that Noyes could retain an expert, it

was seemingly inconsistent for the district court to grant sum-

mary judgment without consideration of that supplemental

evidence. Based on the record, we conclude that Noyes made

a good faith showing that she was reasonably diligent in con-

ducting discovery and that it would have been a financial and

practical hardship for her to have obtained the expert discov-

ery earlier in this case.

[15] In light of our reversal of summary judgment, Noyes’

appeal of the denial of her Rule 59(e) motion for reconsidera-

tion is moot. We note, however, that because Noyes obtained

expert discovery from Ross during the reopened discovery

period, that evidence was timely, poses no Rule 16(b) prob-

lem, and should be available for use at trial. We offer no opin-

ion as to the admissibility of Ross’s testimony.

REVERSED and REMANDED.