Xin Liu v. Amway Corporation Does 1-50 Inclusive

PREGERSON, Circuit Judge,

dissenting in part.

I dissent from the majority’s opinion on Liu’s Title VII and FEHA retaliation and discrimination claims because, as I read the record and briefs in this case, there is no doubt that Liu appealed the district court’s ruling dismissing those claims. Because I believe that the ruling was incorrect, I would reverse the district court’s order dismissing Liu’s Title VII and FEHA claims. The district court granted summary judgment for Amway on all of Liu’s claims and analyzed them together. By noticing the appeal of the entire district court’s order, Liu’s notice of appeal preserved her Title VII and FEHA claims. Her opening brief contrasts the standard of review for her Title VII and FEHA claims to the applicable standard for her other claims and, though not citing Title VII’s and FEHA’s statutory provisions, analyzes her claims under Title VII and FEHA on pages 36-48. She argues that Amway violated Title VII and FEHA by discriminating against her on the basis of sex and pregnancy and by retaliating against her when she complained about Tran’s refusal to grant her leave. 1 I would reverse the district court’s grant of summary judgment on those claims. 2

1. Discrimination

Title VII makes it an “unlawful employment practice” for an employer to discriminate against an employee “because of’ sex, race or any other protected characteristic. 42 U.S.C. § 2000e-2(a)(1). The Pregnancy Discrimination Act, a 1978 amendment to Title VII, states explicitly that sex discrimination includes discrimination against individuals “because of pregnancy” or who are “affected by pregnancy” and child-birth. 42 U.S.C. § 2000e(k).

Because sex discrimination includes discrimination based on pregnancy, adverse employment actions that occur as a result of the employee taking FMLA protected leave fall squarely inside the bounds of Title VII prohibitions. Sex discrimination that occurs by denying or discouraging leave is central to the remedial aim of the FMLA. Nevada Dep’t of Human Res. v. Hibbs, 588 U.S. 721 , -, 123 S.Ct. 1972, 1978 , 155 L.Ed.2d 953 (2003) (“The FMLA aims to protect the right to be free from gender-based discrimination in the work place.”). In enacting the FMLA, Congress recognized that the lack of uniformity concerning leave policies resulted in “an environment where[sex] discrimination is rampant.” Id. at 1980 (quoting 1987 Senate Labor Hearings, pt. 2, at 170 (testimony of Peggy Montes, Mayor’s Commission on Women’s Affairs, City of Chicago)).

Liu’s allegation that Amway intentionally discriminated against her should be treated as a disparate treatment claim un *1140 der Title VII. Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104 , 1109 (9th Cir.1991). Specifically, she alleges that Tran was motivated by discriminatory animus when he gave her a low score on her employee evaluation and recommended her for termination in Amway’s reduction in force process.

Though she has not identified them as such, 3 I would treat the allegations in her complaint and the supporting evidence presented in opposition to Amway’s motion for summary judgment to make out what we have traditionally labeled a “mixed-motive case.” 4

In Costa, we recently clarified that alter Title VII was amended in 1991, 5 “the plaintiff in any Title VII case may establish a violation through a preponderance of the evidence (whether direct or circumstantial) that a protected characteristic played a ‘motivating factor’ ” in an adverse employment action. 6 299 F.3d at 853-54. The employer may then assert an affirmative defense that “limits the remedies if an employer demonstrates that it would have nonetheless made the ‘same decision’ ” absent consideration of the impermissible factor. Costa, 299 F.3d at 847-48 (analyzing 42 U.S.C. § 2000e-5(a)(2)(B)). Howev *1141 er, this defense is only available “with respect to the scope of remedies, not as a defense to liability.” Id. at 850.

To survive summary judgment, Liu must present a triable issue of fact as to whether sex was a motivating factor in Amway’s decision to terminate her. 7 She may do so by presenting either direct or circumstantial evidence, both of which are given equal weight. 8 Desert Palace, — U.S. at -, 123 S.Ct. at 2155 (“[D]irect evidence of discrimination is not required in mixed-motive cases.... ”). Because disparate treatment claims require evidence of intentional discrimination, which often leads to an “elusive” factual inquiry, “the plaintiff need produce very little evidence of discriminatory motive to raise a genuine issue of fact.” Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1180 (9th Cir.1998) (quoting Lindahl v. Air France, 930 F.2d 1434, 1438 (9th Cir.1991)).

Having reviewed the evidence before the district court, I would conclude that Liu raises a triable issue of material fact on whether her sex was a motivating factor in Amway’s decision to terminate her. Tran’s behavior and statements could support a finding of discriminatory animus. Tran’s repeated denials of Liu’s requests for extensions of leave combined with his complaints about his increased workload caused by her leave support her allegations. His callous and inappropriate comment that she should not “die yet, we’re holding projects for you” in response to Liu’s description of the “dizzy spells” that she experienced bolsters the inference of discrimination created by his behavior. Finally Tran’s behavior during the evaluation meeting he held with Liu while she was on leave, which was within one or two weeks before the decision to terminate her, also raises inferences of discrimination. When Tran called Liu to attend the meeting, he told her to go directly to his office. He also told her not to stop anywhere else on the premises because she was “not working at the company” while on leave. At this meeting, Tran presented Liu with the low evaluation scores, informed her that her primary project was being transferred to another employee and *1142 warned her that there would be a reduction in workforce. This behavior raises an inference of discriminatory animus.

Tran’s behavior and comments, however, are only significant because they originate from a person with influence over the termination decision. Cf. Weston-Smith v. Cooley Dickinson Hosp., Inc., 282 F.3d 60, 70 (1st Cir.2002) (finding that complaints by co-workers about plaintiffs “lack of accessibility” caused by her FMLA protected leave did not constitute circumstantial evidence of discrimination because there was no link between the co-workers’ complaints and the decision process). Thus, Tran’s comments cannot be dismissed as “stray remark[s].” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir.1998) (finding that a comment made by an individual who may have influenced the decision making process was not a stray remark because it was not “uttered in an ambivalent manner” but “tied directly to[the plaintiff]’s termination” (quoting Nesbit v. PepsiCo., Inc., 994 F.2d 703, 705 (9th Cir.1993))).

There is a factual dispute as to whether Tran participated directly in the reduction in force process. For the purposes of summary judgment, we need not resolve such inconsistencies. Godwin, 150 F.3d at 1221 (finding that disputes as to whether individual was involved in the employment decision was an issue for the trier of fact). Regardless, in her deposition, Robin Dykehouse, the employee in charge of the reduction in force, testified that she relied heavily on Tran’s recommendations and evaluations in the decision to terminate Liu. Where a decision maker rests his or her ultimate decision on an opinion or evaluation that is tainted by discrimination, she does not start from a “clean slate.” Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1284 (9th Cir.2001). Thus, an employer may not escape liability simply because the individual with discriminatory animus was not the final decision maker in the adverse employment action. Id. at 1284 ; Gagnon v. Sprint Corp., 284 F.3d 839, 848 (8th Cir.) (“[C]ourts look beyond the moment a decision was made in order to determine whether statements , or comments made by other managerial employees played a role in the ultimate decision making process ....”), cert. denied, 537 U.S. 1001 , 123 S.Ct. 485 , 154 L.Ed.2d 396 and 537 U.S. 1014 , 123 S.Ct. 491 , 154 L.Ed.2d 420 (2002); Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.1990) (finding that the committee’s decision to fire plaintiff was “tainted” by discriminatory “prejudice” because supervisor “influenced the committee’s deliberations by portraying” plaintiffs “performance ... in the worst possible light”).

The proximity in time between a plaintiffs protected action and the termination decision also supports an inference of discrimination. See Ray v. Henderson, 217 F.3d 1234, 1244 (9th Cir.2000) (“That an employer’s actions were caused by an employee’s engagement in protected activities may be inferred from ‘proximity in time between the protected action and the allegedly retaliatory employment decision.’ ” (quoting Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.1987))). Here, the events occurred simultaneously because Liu was on leave while the termination decision was made.

Tran’s evaluation of Liu also provides evidence from which discrimination could be inferred. Liu’s overall score in her employee evaluation dropped by 19% from 3.1, under her former supervisor, to 2.52, under Tran. See Winarto, 274 F.3d at 1284 (finding that “an unwarranted reduction in performance review scores” served as evidence of retaliatory motive). The relative harshness with which Tran evaluated Liu is also relevant. For example, Tran gave *1143 Liu a “one,” the lowest possible score, in several categories on her evaluation, including “encourages self-development” and “holds people accountable for meeting goals.” Tran did not give a “one” to any other employee evaluated that year.

A jury could also infer discriminatory animus from particular inconsistencies between Tran’s evaluation and Liu’s previous evaluation by her former supervisor. For example, Tran gave Liu a “one” in “written communication,” a category in which she had only six months earlier received praise. E.g., Godwin, 150 F.3d at 1222 (taking into account evidence that plaintiff had received recommendations indicating that she got along well with people but decision makers had cited inability to get along with people as a reason for denying her a promotion.).

Having examined the overall evidence in the record, I would conclude that it raises genuine issues of material fact as to whether sex discrimination played a motivating factor in the decision to terminate Liu. Whether Amway may have made the same decision to terminate Liu without Tran’s discriminatory influence over the decision, is an issue to be dealt with in determining the scope of damages if Amway raises a “same decision” affirmative defense. I would, therefore, conclude that summary judgment should not have been granted on Liu’s discrimination claim.

2. Retaliation

In her complaint, Liu alleges that Amway also retaliated against her for complaining to its Human Resources Department about Tran’s refusal to extend her leave. For purposes of summary judgment, we analyze Liu’s Title VII and FEHA retaliation claim under the McDonnell Douglas burden shifting standard. Winarto, 274 F.3d at 1283-84 ; Brooks, 229 F.3d at 928. The three step burden shifting test requires the plaintiff to raise an inference of retaliation by presenting evidence sufficient to support a prima facie ease of retaliation. The burden then shifts to the employer who must present evidence of a legitimate, non-retaliatory reason for the employee’s dismissal. Once this is done the initial presumption is considered rebutted and the burden then shifts back to the plaintiff to show that the defendant’s so-called non-retaliatory reasons were pre-textual. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973); Bergene, 272 F.3d at 1140-41. 9 To state a *1144 prima facie case of retaliation, a plaintiff must show that:

(1) she was engaging in a protected activity, (2) the employer subjected her to an adverse employment decision, and (3) there was a causal link between the protected activity and the employer’s action.

Bergene, 272 F.3d at 1140.

I agree with the district court that Liu clearly established a prima facie case of retaliation. Liu engaged in protected activity by complaining to the Human Resources Department. See Winarto, 274 F.3d at 1285 (finding that an employee complaint to the Human Resources Department was a protected activity under Title VII). The causal connection is established by Tran’s influence over the termination process and the temporal proximity of the protected activity and the adverse action. See Ray, 217 F.3d at 1244 . Evidence suggests that the decision to terminate Liu was made a few weeks after her complaint to the Human Resources Department. See Yartzoff, 809 F.2d at 1376 (causation established where adverse actions occurred less than three months after complaint was filed). Evidence that Tran granted her a shorter extension after she complained to the Human Resources Department suggests that Tran knew of Liu’s complaint. See Road v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir.2003) (“[T]he plaintiff must make some showing sufficient for a reasonable trier of fact to infer that the defendant was aware that the plaintiff had engaged in protected activity.”).

In turn, Amway offers a non-retaliatory reason for her termination. Amway argues that Liu was terminated because she had the lowest evaluation score and was the lowest performer in her department. The burden then shifts back to Liu to demonstrate that Amway’s reasons are pretextual because they hide retaliatory motives. Bergene, 272 F.3d at 1141.

As in Liu’s Title VII sex discrimination claim, Tran’s comments and behavior towards her serve to rebut his pretextual justifications. Particularly relevant is Tran’s aggressive comment that Liu proceed directly to his office for her evaluation meeting because while she was on leave, she was “not working at the company.” Liu describes the meeting as tense and uncomfortable. This evaluation meeting occurred less than two weeks after her complaint to the Human Resources Department.

Lowered evaluation scores also serve as evidence of retaliatory motives to rebut pretext. The 19% drop in Liu’s score is evidence of possible retaliation. See Winarto, 274 F.3d at 1286-87 (finding that a 17.8% drop in evaluation score served as evidence of retaliation).

I would conclude that the evidence in the record raises genuine issues of material fact as to whether Amway violated Title VII and FEHA by retaliating against Liu for engaging in a protected activity. I would reverse the district court’s grant of summary judgment against Liu on her retaliation claim.

Accordingly, I respectfully dissent from Part IID of the court’s opinion.

. Sex discrimination claims under Title VII and FEHA are decided under the same standard. See Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir.2000) (explaining that when a plaintiff alleges sex discrimination under Title VII and the FEHA, we need only assess her claim under federal law because Title VII and FEHA operate under the same guiding principles).

. The district court erred by failing to distinguish between Liu's retaliation and discrimination claims. Even where both claims are analyzed under the McDonnell Douglas burden shifting test, each is subject to different requirements to make out a prima facie case and different evidence necessary to rebut pretext. Bergene v. Salt River Project Agric. Improvement and Power Dist., 272 F.3d 1136, 1140 (9th Cir.2001).

. The theory on which a plaintiff intends to rely is often not identified at the outset of the case. Costa v. Desert Palace, Inc., 299 F.3d 838, 856 (9th Cir.2002) (en banc) ("As the Supreme Court has observed, a case need not be characterized or labeled at the outset. Rather, the shape will often emerge after discovery or even at trial.”), aff'd, U.S. -, 123 S.Ct. 2148 , 156 L.Ed.2d 84 (2003); Washington v. Garrett, 10 F.3d 1421, 1432 (9th Cir.1993) (recognizing disparate treatment claim though complaint did not specify a particular theory of discrimination); Sischo-Nownejad, 934 F.2d at 1110 n. 8 ("A plaintiff need not choose between a single motive and mixed motive theory at the beginning of the case”). In fact, a plaintiff will rarely identify the theory as early as summary judgment. See Price Waterhouse v. Hopkins, 490 U.S. 228 , 286 n. 12, 109 S.Ct. 1775 , 104 L.Ed.2d 268 (1989) ("Indeed, we expect that plaintiffs often will allege, in the alternative, that their cases are both [mixed and single motive].... At some point in the proceedings, of course, the District Court must decide whether a particular case involves mixed motives.”).

. In a mixed motive case, the plaintiff alleges that a discriminatory factor appears to be one of the considerations motivating the adverse employment action. In a single motive case, the plaintiff alleges that it was the only reason for the action. See Sischo-Nownejad, 934 F.2d at 1109.

. The relevant provision reads, "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” Civil Rights Act of 1964, Title VII, § 701, 42 U.S.C. § 2000e-2(m) (as amended by Civil Rights Act of 1991, Pub.L. No. 102-166, § 107 (a), 105 Stat. 1071 (1991)).

.The Supreme Court appears to have reserved judgment on whether § 2000e-2(m) applies in single motive case. Desert Palace, - U.S. at - n. 1, 123 S.Ct. at 2151 n. 1 ("[T]his case does not require us to decide when, if ever, § 107 [42 U.S.C. § 2000e-2(m)] applies outside of the mixed motive context.”). However, in this circuit, we have concluded that "[Hollowing the 1991 amendments, characterizing the evidence as mixed-motive instead of single motive results only in the availability of a different defense, a difference which derives directly from the statutory text.” Costa, 299 F.3d at 856 .

The only court to encounter the question of whether § 2000e-2(m) applies to single-motive cases after Desert Palace has interpreted § 2000e-2(m) as necessarily applying to single motive cases. Dare v. Wal-Mart Stores, Inc., 267 F.Supp.2d 987, 990-92 (D.Minn.2003). As the court in Dare explained, “evaluating single-motive claims under the McDonnell Douglas burden-shifting scheme inevitably and paradoxically leads to a classic mixed-motive scenario.... [T]he process dictated by the Civil Rights Act of 1991 [in § 2000e-2(m)] is more useful than the analysis required by McDonnell Douglas.” Id. at 991.

. Because I would conclude that Liu presents a mixed-motive discrimination case, I would also decline to apply the McDonnell Douglas burden shifting test, despite the fact that Liu has invoked it. The McDonnell Douglas test is useful where the plaintiff alleges that the employer has masked actual discriminatory reasons with pretextual ones. Liu does not argue that the reduction in force was a pretext for her dismissal, but argues that only Tran’s discriminatory animus infected the decision making process. See generally Costa, 299 F.3d at 855. Accordingly, cases cited by the district court, such as Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir.1996), are inapposite.

. The Supreme Court recently explained why direct and indirect evidence should be given equal weight. Desert Palace, - U.S. at -, 123 S.Ct. at 2154 (“The reason for treating circumstantial evidence and direct evidence alike is both clear and deep rooted: ‘Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.' " (quoting Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500 , 508 n. 17, 77 S.Ct. 443 , 1 L.Ed.2d 493 (1957))).

Prior to Desert Palace, a mixed motive analysis was not available to a plaintiff that did not present direct evidence of discrimination. In the absence of direct evidence, summary judgment motions were decided using the McDonnell Douglas analysis. Trans World Airlines v. Thurston, 469 U.S. 111, 121 , 105 S.Ct. 613 , 83 L.Ed.2d 523 (1985) (“[T]he McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination.”). However, after Desert Palace, no such distinction exists. The assessment of whether McDonnell Douglas should be applied is dependent on the particular facts of the case. See Cordova v. State Farm Ins., 124 F.3d 1145 , 1148 (9th Cir.1997) (stating that McDonnell Douglas test provides "one way” to raise an inference of discrimination).

. The relevant Title VII retaliation provision provides that it is an

unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

42 U.S.C. §§ 2000e-3(a).

The California Fair Employment and Housing Act makes it

an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:

(h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.

Cal. Gov.Code § 12940.