Lead Opinion
Oрinion by Chief Judge SCHROEDER; Partial Concurrence and Partial Dissent by Judge WALLACE.
Elizabeth Bergene and her husband, Bradley
The record, however, contains direct evidence of retaliation, including a threat by a supervisor that Bergene would not be promoted if she held out for too much money in settling an earlier pregnancy discrimination claim. The record also contains substantial circumstantial evidence from which a jury could conclude that she was the target of repeated discriminatory treatment, including the denial of a promotion that was given instead to a male who qualified for the position only after SRP changed the job requirements.
We therefore reverse and remand because we hold that Bergene has met her burden of establishing a triable issue of fact as to whether SRP’s asserted nondiscriminatory justification for her adverse treatment was pretextual. See Godwin v. Hunt Wesson, Inc.,
BACKGROUND
Elizabeth Bergene was employed as a journeyman electrician in SRP’s Coronado Generating Station near St. Johns, Arizona in 1990, when she filed a pregnanсy discrimination claim. Some time later, SRP fired her husband from a temporary position. In 1994, Bergene and her husband filed a lawsuit alleging that the firing and SRP’s treatment of Bergene constituted unlawful retaliation for the earlier pregnancy claim. All of the events directly related to this litigation occurred between November 1995, while the Bergenes were beginning settlement discussions with SRP on the retaliation claim, and March 1996, when the parties finally settled that claim. Bergenе’s declarations contain the following facts that we review in the light most favorable to her as the non-moving party on defendant’s motion for summary judgment. See Lopez v. Smith,
In November 1995, at about the time the settlement discussions began, SRP advertised an open position for an electrical
Later the same month, her former direct supervisor, Doug Wilson, told Ber-gene that she would not get the foreman position if she held out for too much money in the settlement discussions. Wilson at the time was advising Pratt on the selection of the new foreman.
At about thе same time, or shortly thereafter, Pratt changed the requirements for the foreman position by removing the journeyman electrician requirement and adding supervisory experience as a factor to be considered in evaluating candidates. Bergene met the journeyman electrician requirement, but had limited supervisory experience. In March 1996, Pratt chose Jerry DeGraff as electrical foreman. DeGraff was a male with supervisоry experience, but was not a journeyman electrician. He therefore qualified only under the new requirements instituted by Pratt after Bergene had applied for the position and after her former supervisor had warned her against holding out for too much in the settlement discussions.
It is also essentially undisputed that there were few women journeyman electricians at the plant and no women supervisors. According to Bergene, she was jokingly referrеd to as “mommy” repeatedly while she was serving briefly as an acting supervisor.
Six days after Pratt selected DeGraff for the foreman position, Bergene left work, was placed on disability leave due to work-related stress, and never returned. She formally left her employment in June 1996.
Bergene filed a claim with the EEOC. After she received her right to sue letter, she filed this complaint in September 1997. In her amended complaint, she alleges that SRP violated the рrovisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. She alleges that SRP did so by denying her the promotion to electrical foreman in retaliation for filing earlier charges of discrimination and because of her sex. Bergene further alleges that she was compelled to resign and thus constructively discharged from SRP due to intolerable working conditions allegedly caused by continuing discrimination and retaliation. She seeks back pay, fringe benefits, compensatory damages, and attorney’s fees and costs.
SRP moved for summary judgment, stating that DeGraff was chosen for the foreman position because he was better-qualified. The district court granted SRP’s motion and dismissed the action in August 1999. This appeal followed.
DISCUSSION
We apply a system of shifting burdens in Title VII discrimination and retaliation cases. See McDonnell Douglas Corp. v. Green,
(1) she belongs to a protected class, (2) she was performing according to her employer’s legitimate expectations, (3) she suffered an adverse employment action, and (4) other employees with qualifications similar to her own were treated more favorably.
Godwin,
In order to make out a prima facie case of retaliation, a plaintiff must show
The parties do not dispute that Bergene and her husband have satisfied their burden of establishing a prima facie case of both discrimination and retaliation in connection with the denial of the promotion. The burden therefore shifts to SRP to produce evidencе that Bergene was denied the promotion for a legitimate, nondiscriminatory reason. See Texas Dep’t of Cmty. Affairs v. Burdine,
The burden then shifts back to Bergene to show that SRP’s proffеred reason was a pretext for discrimination. See id. at 256,
We deal separately with each of the claims presented.
A. Retaliation
Bergene claims that SRP denied her the promotion in retaliation for pursuing her claim that SRP’s firing of her husband and its treatment of her were in retaliation for her earlier claim of pregnancy discrimination. The question before us is whether she has produced sufficient evidence to create a genuine issue of material fact as to whether SRP’s stated reason for promoting DeGraff rather than Bergene was merely a pretext for retaliation. Ber-gеne has produced both direct and circumstantial evidence of retaliatory motive.
Bergene cites the statement of her former supervisor as direct evidence that SRP’s denial of the promotion was causally related to her refusal to settle her earlier claim immediately. In Bergene’s declaration, she attests that her former supervisor, Wilson, told her in January 1996 that she would not get the foreman position if she held out for too muсh money in the settlement negotiations. Although Pratt, her immediate supervisor, was ultimately responsible for selecting the new foreman, there is evidence that Wilson played an influential role in the selection process. Even if a manager was not the ultimate decisionmaker, that manager’s retaliatory motive may be imputed to the company if the manager was involved in the hiring decision. See Dey v. Colt Constr. & Dev. Co.,
“Direct evidence is evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption.” Godwin,
Only a small amount of direct evidence is necessary in order to create a genuine issue of material fact as to pretext. Godwin,
Bergene has also produced circumstantial evidence that SRP’s proffered reason for denying her the promotion was a pretext for retaliation. Her immediate supervisor, Pratt, greeted her with the salutation, “Hi, trouble :.. I’ve heard about you.” Viewed in the context of Bergene’s earlier claims of employment discrimination, this greeting can be interpreted as a derisive reference to those earlier Title VII clаims. Accordingly, this statement is circumstantial evidence that SRP denied Bergene the promotion to foreman in retaliation for her Title VII claims, rather than because DeGraff had better qualifications.
Bergene’s claim of retaliation is further supported by the fact that SRP awarded the promotion to a male who qualified for the position only after Pratt, after consulting with Wilson, changed the job requirements to allow DeGraff to qualify and to remove Bergene’s competitive advantage for the position. Pratt evaluated the relative strength of each candidate using ten criteria: previous performance, supervisory experience, desire to supervise, electric shop assessment, SRP vision, flexibility, leadership, communication skills, technical knowledge, and safety. Against the background of the other evidence of pretext, the subjective nature of these criteriа provides further circumstantial evidence that SRP denied Bergene the promotion as a form of retaliation, rather than because of DeGraffs superior qualifications. See Warren v. City of Carlsbad,
Circumstantial evidence of pretext must be specific and substantial in order to survive summary judgment. Godwin,
B. Discriminatory Denial of Promotion
In addition to her claim that the promotion to foreman was in retaliation for her exercise of Title VII rights, Bergene contends that SRP denied her the promotion on account of her sex and that this denial was therefore independently in violation of Title VII. The parties agree that Bergene has established a prima facie case
At this stage, the question before us is whether Bergene has produced sufficient evidence to create a genuine issue of material fact as to whether the reason proffered by SRP for denying her the promotion was a pretext for discrimination. Bergene has presented at least three pieces of circumstantial evidence which, we conclude, constitute specific and substantial evidence that SRP’s purported reason for choosing DeGraff was merely a pretext for discrimination on the basis of sex.
First, Bergene cites two changes that Pratt made to the selection criteria. When the foreman position was first posted, it was open only to journeyman electricians. Bergene was a journeyman electrician, and DeGraff was not. Pratt decided to open the position to candidates who were not journeyman electricians, a change which allowed DeGraff to qualify and eliminated Bergene’s competitive advantage.
Pratt also evaluated candidates on their supervisory experience, a criterion that had not appeared in the initial job posting. DeGraff had seventeen years of experience as an assistant shift supervisor, whereas Bergene’s supervisory experience was limited to several months as acting foreman. Pratt’s decision tо accord weight to the candidates’ supervisory experience served to disadvantage Bergene.
Second, Bergene submitted evidence that she was referred to as “Mommy” in the workplace. This evidence indicates that while Bergene was employed by SRP, she was singled out on the basis of her sex. If the comments came from her fellow employees, they would suggest a reason why management promoted a male, who could not be the subject of such disruptive remarks. If the remarks came from management, they are even stronger circumstantial evidence of discrimination.
Finally, there were no women supervisors at the Coronado Generating Station during Bergene’s tenure at SRP, apart from human resources personnel. See Silverman v. Progressive Broad., Inc.,
We conclude that this evidence, viewed in the aggregate, constitutes specific and substantial evidence that SRP’s decision to promote DeGraff rather than Bergene was motivated by discriminatory animus, rather than by SRP’s belief that DeGraff was better-quаlified for the position. See Godwin,
C. Constructive Discharge
In order to survive summary judgment on her constructive discharge claim, Bergene must show a triable issue
SRP maintains that all of the events relevant to Bergene’s constructive discharge claim, with the exception of the March 1996 promotion decision, were resolved in the settlement of her 1994 retaliation claim and the resulting dismissal of that lawsuit in May 1996. SRP argues that the promotion decision alone is insufficient to raise a genuine issue of material fact as to Bergene’s construсtive discharge claim. In so arguing, SRP asks us to ignore the other events that allegedly took place during the settlement negotiations. Evidence of these events is relevant to the discharge, however, and therefore cannot be ignored. This includes evidence of Bergene’s isolation as the only woman supervisor in the plant during her tenure as acting foreman, the demeaning and threatening comments made by Pratt and Wilson between November 1995 and Mаrch 1996, while her earlier pregnancy discrimination complaint was pending, as well as the denial of the promotion.
We hold that the evidence that Bergene has produced of the conditions she faced and the events that took place during and after the settlement negotiations is sufficient to raise a triable issue of fact as to whether a reasonable person in her position would have felt compelled to quit. See Steiner, 25 F.3d at 1465.
Our considеration of the events and conditions surrounding the settlement negotiations is consistent with our decision in Gregory v. Widnall,
CONCLUSION
REVERSED and REMANDED for further proceedings.
Notes
. Bradley Bergene asserts no independent claims and is a plaintiff because his wife's claims are community assets.
Concurrence in Part
concurring and dissenting:
I agree with the majority, but only in part. I would reverse the district court’s summary judgment on Bergene’s retaliation and constructive discharge claims but affirm its summary judgment on the sex discrimination claim.
Although I agree with the majority’s result with respect to Bergene’s retaliation claim, I would reverse the district court’s summary judgment on the strength of the direct evidence alone because I have my doubts about whether the circumstantial evidence is sufficiently “specific and substantial” tо withstand summary judgment. Godwin v. Hunt Wesson, Inc. 150 F.3d
I part with the majority, however, on Bergene’s discrimination claim. I would affirm the district court’s summary judgment because, while the reason offered by SRP for failing to promote Bergene may be pretextual, Bergene has failed to raise a triable issue as to whether SRP’s reason was a pretext for sex discrimination.
The majority cites three pieces of circumstantial evidence in support of its conclusion that Bergene has raised a triable issue. The first — the changes made by Pratt to the selection criteria — does not even hint that Bergene was not promoted because of her gender.
The second' — -that Bergene was referred to as “Mommy” while she was the acting supervisor-is more on point but is still problematic. We are not told who called her “Mommy.” Was it the employees she supervised? Was it her co-workers? Was it her supеrvisor? Even if there were something from which I could draw the inference that Bergene’s supervisor(s) called her “Mommy,” I would still have to conclude that this evidence, standing alone, is not “specific and substantial” and, consequently, is not enough for Bergene’s claim to survive summary judgment.
The third piece of evidence — that there were no women supervisors at the Coronado Generating Station — is also very weak. Indeed, the case cited as suppоrt for the majority’s view is from the New Mexico Court of Appeals: Silverman v. Progressive Broad., Inc.,
I therefore would affirm the district court’s summary judgment to SRP on the discrimination claim because the discrimination evidence offered by Bergene, standing alone or considered together, is not “specific and substantial.”