*1 NAFISSEH HEIAT, Appellant, Plaintiff and v.
EASTERN MONTANA COLLEGE AND
MONTANA COMMISSIONER OF
HIGHER EDUCATION,
Respondent.
Defendant
No. 94-572.
November, 9,
Submitted on Briefs
1995.
Decided March
1996.
St.Rep.
For Billings. LeRoy Schramm,
For H. Respondent: University Sys- Montana tem; Helena.
JUSTICE LEAPHART delivered Opinion of the Court. Nafisseh Heiat appeals from an order of the Thirteenth Judicial Court, County, granting District Yellowstone Eastern Montana Col- (EMC) lege Higher and the Montana Commissioner of Education summary judgment, concluding that EMC was not liable for sexual employment. discrimination in We reverse. following
The issue is raised on appeal: Did the District Court err in granting EMC’smotion for judgment?
Plaintiff, (Nafisseh), Dr. Nafisseh Heiat Ph.D. and her husband Dr. (Abbas) Abbas Heiat Ph.D. are as employed professors associate the Department Accounting Systems and Information at EMC. possess degrees Both Nafisseh and Abbas Ph.D. from Portland State University. The District Court they, faculty determined that as mem- EMC, perform substantially bers the same work. Abbas was hired professor systems EMC in 1987 as an assistant in the information program. hired, recently At the time Abbas was EMC had lost its faculty systems program member in the information who held a Ph.D. EMC advertised for position listing qualification. a Ph.D. as a position. EMC offered Abbas the degree
Based on Abbas’ “terminal” doctoral and experience, his salary under the starting bargaining agreement collective then in $20,491. However, effect would have been the collective bargaining agreement authorized EMC administration to offer higher sala- faculty extraordinary ries to members in prospective recruitment Fearing accept position situations. that Abbas would not for $20,491, $30,000. EMC offered him in Ultimately, excess after negotiation, accepted position additional Abbas at a starting $40,000. salary of faculty opening
In EMC advertised for another in the infor- systems program. posting listed a Ph.D. or equivalent mation received her Ph.D. in qualification. applied Nafisseh position position staring with EMC. She was offered the with a $27,190. an salary Although requested adjustment she additional denied and salary, request accepted to the her was she starting salary. Both Nafisseh and Abbas have received position for the offered by salary increases, bargaining as mandated collective periodic and, year, the 1992-93 academic Nafisseh earned agreement during *5 entirely is due $54,575. disparity This earned $39,049 Abbas while starting salaries. in their difference to the the Montana complaint a 1991, Nafisseh filed of April In she had been discriminated alleging that Commission Rights Human given equal pay not been that she had her sex and on against based a Commission issued Rights Human The Montana work. equal for alleged complaint, Nafisseh her District Court letter. In right to sue Act, the Government Code Rights Montana Human of the violations amended, 1964, Act of Practices, Rights ofthe Civil Title VII ofFair 24,1994, On June 1991, Pay the Act. Equal Act of and Rights the Civil summary judgment. EMC’s motion for granted District Court the this order. from appeals Nafisseh grant court’s of a motion reviewing a district
Our standard
(1993),
City Roundup
v.
de novo. Minnie
summary judgment is
212,
is,
That
review an order
431,
P.2d
we
429,
849
257 Mont.
court;
the district
we
criteria as
summary
using the same
judgment
(1995), Mont.
Chilberg v. Rose
273
56, M.R.Civ.P.
by Rule
guided
are
214). Thus,
Minnie,
P.2d at
we
1377,
(citing
849
1378
414, 903 P.2d
exists and
of material fact
genuine
a
issue
whether
determine
of law.
judgment as a matter
is entitled to
moving party
the
whether
remedy
an extreme
Summary judgment is
Minnie,
P.2d at 214.
849
contro
trial if a material fact
for a
never be substituted
and should
2,
(1995), 272 Mont.
No.
Inc.
v. Conlin Furniture
versy exists. Howard
v.Dow Chem. Co.
116,
118-19 (citing Hagen
433, 436, 901 P.2d
416).
487, 491, 863 P.2d
of estab
has
burden
seeking
partyA
Howard,
any
factual issues.
genuine
complete
a
absence
lishing
before
and the evidence
light
pleadings
In
of the
EMC contends be- agreement bargaining in the collective contemplated than that with a faculty member have a need to pressing had a cause EMC Ph.D. in the systems information program. EMC asserts that “[o]nce the discipline was ‘anchored’with a Ph.D. the need for a subsequent Ph.D. was and, given lessened the tight budget the College has labored with for years, several College felt no pay need to premium for a second Ph.D. in the discipline.” same
Abbas and Nafisseh assert that the rationale of “anchoring” the department was not mentioned to either ofthem as a factor in setting salaries when they applied for accepted positions on faculty Further, at EMC. affidavit, an Abbas stated that even after he was by EMC, hired he was not told that he occupied an position” “anchor assigned nor was he extra duties or responsibilities. Nafisseh stated the time she was hired she was told that she could not paid be salary high because of the tight budget at EMC. Dr. *6 Sexton, Ronald vice-president for academic affairs EMC, asserted that the term position” “anchor essentially was administra- jargon and, result, tive a quite it is possible that neither Abbas nor Nafisseh had heard the Further, term. Sexton contended that because already EMC had Abbas as a Ph.D. on its systems information program faculty, EMC was not to willing pay a premium to hire another Ph.D. and that is the reason that Nafisseh was offered a lower starting salary.
According
United States Supreme Court’s burden
shifting analysis employed
cases,
in discrimination
once the plaintiff
has, by preponderance
a
evidence, proved
of the
prima
facie case of
discrimination, the burden shifts to the defendant “to articulate some
legitimate, nondiscriminatory reason for the employee’s rejection.”
Dep’t
Texas
Community
v. Burdine (1981), 450
248,
U.S.
Affairs
252-53,
1089,
101 S.Ct.
1093,
207,
67 L.Ed.2d
214-15 (citing McDon
Douglas Corp.
(1973),
nell
v. Green
792,
411
802,
1817,
U.S.
93 S.Ct.
668).
1824, 36 L.Ed.2d
Should the
carry
burden,
defendant
this
“the
plaintiff must then have an opportunity to prove by preponderance
of the evidence that the legitimate
reasons offered
the defendant
reasons,
were not its true
but
pretext
were a
for discrimination.”
Burdine,
253,
At all
the plaintiff retains the
persuasion
burden of
and, after the defendant
legitimate,
has articulated a
nondiscrimina
reason,
tory
plaintiff
opportunity
have the
to demonstrate
proffered
that the
reason was not the true reason for the employment
Burdine,
256,
decision.
On a
summary judgment
motion for
in discrimination
cases, the McDonnell Douglas
proof
order of
and shifting of burdens
at trial must be viewed in light of the traditional test for
granting
motion for
judgment. Brown v.
Corp.
Parker-Hannifin
(10th
1984),
1407, 1411.
Cir.
746 F.2d
That test is whether the moving
party has demonstrated that there are
no
issues of material
fact and that the moving party is entitled to judgment as a matter of
56(c),
law.
M.R.Civ.R; Howard,
Rule
Box, 772 (citing Atchison, F.2d at 1378 v. Topeka and Santa Gifford (9th 1156). Ry. 1982), Fe Cir. 1149, 685 F.2d
The District Court determined that although Nafisseh had prima established a facie discrimination, case of sex EMC had estab a legitimate nondiscriminatory lished salary reason for the disparity between Abbas and Nafisseh. The District Court determined that the differences in the salaries were based on factors other than sex. See County (1981), Washington 161, 170-71, v. Gunther 452 U.S. 101 of 2242, 2248-49, However, S.Ct. 68 L.Ed.2d 760-61. in making this determination, the adjudicated District Court the disputed issue of material fact as to reason for the differences in the salaries. As inBox, the Seventh Circuitfound this factual determination ofmotive 330 summary generally is precisely is reason
or intent
1378;
Box,
cases.
772 F.2d at
see also
in discrimination
inappropriate
(3d
1987),
200, 205,
Co.
Cir.
821 F.2d
Pennsylvania Drilling
v.
Sorba
730, 98
denied, 484 U.S.
108 S.Ct.
L.Ed.2d
Where
cert.
may
pre
be drawn from the evidence
ultimate inferences
different
summary judgment.
the case is not one for
parties,
sented
Brown,
We note different Kenyon than her burden at trial. In summary judgment is 742, 745-46, (1992), Mont. 835 P.2d County v. Stillwater that, judgment, in order to survive a motion stated we which, believed, to “adduce facts if has the initial burden plaintiff employ inference denied an that he or she was a reasonable support opportunity....” ment to hold that:
We went on must rebut the inference of met, employer is If that burden nondiscriminatory rea- legitimate of with evidence discrimination terminated; upon such a was not hired or was plaintiff sons the employee back to the to demonstrate the burden shifts showing, pretext. is a employer’s explanation facts that the specific (9th Associates, Inc. Foster v. Arcata (citing P.2d at 746 Kenyon, 835 1459, cert. denied, 1048, 106 S.Ct. 475 U.S. 1985), 772 F.2d Cir. Kennedy grounds by, on other overruled 89 L.Ed.2d 262). (9th 1991), F.2d We now Cir. Mut. Ins. Co. v. Allied nonmoving plaintiff, party process places that this determine context, peculiar position having in the in this proof the defendant’s motion. The order her case to survive prove light of the at trial must be viewed shifting of burdens Thus, summary judgment. a motion for granting test for traditional judgment, motion for to survive a inference of the support a reasonable evidence sufficient produce test, the Kenyon non-moving Under the of the fact issue. existence which, burdens, first, “adduce facts if two is saddled with party denied inference that he or she was believed, a reasonable support and, employer if the rebuts the employment opportunity” an legitimate with evidence of discrimination inference facts that reasons, specific to “demonstrate with nondiscriminatory at 746. Kenyon, pretext.” explanation employer’s analysis, adopted in the three-step McDonnell Kenyon, conflicts with this Court summary judgment context *8 analysis traditionally deciding in two-step employed motions for the summary summary judgment. judgment Under the traditional analysis summary one party opposing judgment burden, the has namely, genuine to demonstrate that issues material fact exist. To so, summary party opposing judgment present do the must material evidence, than conclusory specula- and substantial rather mere statements, genuine Howard, to raise a issue of material fact. tive Kenyon, P.2d In made the mistake offollowing at 119. we the lead many throughout country state and federal courts the and super- imposed three-step analysis the McDonnell trial Douglas into the summary context without judgment specifically noting plain- that the against summary burden in a for defending judgment tiff’s motion At plaintiff’s trial, plaintiff differs from the burden at trial. the has proof the burden of so the McDonnell construct of placing on plaintiff logical. However, when, the initial burden the is here, summary defendant a judgment, the makes motion that construct not work. In the judgment, does moving party has the establishing initial burden of that are there no issues of that it judgment material fact and is entitled to as a matter of law. 56(c), Rule M.R.Civ.P.
We it require now determine that is error to a in plaintiff a satisfy discrimination case to set Kenyon burdens forth in summary judgment. survive a motion for Accordingly, we overrule portion Kenyon County that v. Stillwater which requires plaintiff a initially which, believed, “adduce facts if a support reasonable inference that he or she was denied an employment opportunity” and, rebuttal, in with specific to “demonstrate facts that employer’s explanation pretext.” Kenyon, a
Instead, adopt analysis we an now consistent with the test, yet Burdine more compatible analysis with the traditional used context. The plaintiff allege prima must facie case of discrimination in her complaint. context, In this plaintiff alleges prima by asserting plaintiff facie case ais protected class, member of a and that a colleague male with same credentials, performs work, substantially who the same receives a higher salary. employer seeking summary judgment must then with a legitimate nondiscriminatory come forward reason for the disparity. If comes employer legitimate forward nondis reason, then, criminatory plaintiff having addition alleged produce facie in the prima complaint, case evidence that case prima her facie as well as evidence which an
establishes
raises
the employer’s proffered
pretextual.
reason is
inference
course,
not
that a
in a
plaintiff
Of
this does mean
discrimina
always
action
survives
when the
tion
question.
employer’s proffered explanation into
Rather than
calls the
*9
specific facts that
having
employer’s expla
to demonstrate with
the
only
a
she need
introduce evidence which
pretext,”
nation “is
raises
employer’s proffered
pretextual.
an
that the
reason is
To
inference
material
as to
the
genuine
pretext,
plaintiff
a
issue of
fact
create
from
a
person
not
introduce evidence
which
reasonable
could
that
qualified,
she is
she must also introduce evidence
casts
infer that
legitimate
contention that
there was a
doubt on
defendant’s
action.
M.
justification for defendant’s
Chauhan v.
business
Alfieri
(3d
1990),
(citing Healey
897 F.2d
127
v. New York
Co.
Cir.
Life
(3d
1988),
denied,
F.2d
490
Cir.
860
cert.
U.S.
Ins. Co.
(1989)).
2449,
The test, necessary pass stating to that “the inconsistencies evidence present pointed [plaintiff], in as out explanation, [defendant’s] implausibilities [defen- precisely the kind of 'inconsistencies an support reasons’ that could inference of discrimi- proffered dant’s] (citations omitted). F.2d at 128 Chauhan, 897 nation.” specially concurring opinion Nelson’s contends that the Justice a requires plaintiff opposing test that do Kenyon genuine issue of material fact. more than establish How- nothing cases, the exemplifies, this case in discrimination district ever, as plaintiff merely that a do more than raise an requiring courts are present case, In the the District Court held that ofmaterial fact. issue nondiscriminatory reason for the sal- legitimate EMC established ary and that: disparity legitimate, failed to establish the nondiscrimi-
Dr. Nafisseh Heiat salary pretextual. for her is A natory reason offered EMC of Dr. Nafisseh jury could not return a verdict favor reasonable to court light presented during the evidence Heiat in of summary [Emphasis added.] judgment proceedings. summary judgment not because
Notably, granted the court fact to issue of material inability genuine to establish Nafisseh’s Rather, court, the McDonnell citing pretext. an raise inference burden, for her failure to “establish” trial faulted Nafisseh “is a proffered pretext.” that EMC’s reason
333 now a plaintiff test we establish for in a discrimination summary a motion judgment comports case to survive with Rule 56, M.R.Civ.R, in that a required to raise an inference of opposed proving This pretext, pretext. burden is more aligned general requirement raising with the issue of material fact survive the motion for judgment. case, pointed
In the instant Nafisseh has to inconsistencies in EMC’s explanation support could an inference of discrimination. The District Court found that Nafisseh had established a prima facie case she had “proved because that she is a woman and her male colleague credentials, with the same performs substantially who work, salary same receives a higher than her.” See St. Mary’s Honor Ctr., at _, U.S. S.Ct. at 2747 (discussing the elements aof prima context); facie case in the racial Sorba, discrimination 821 F.2d (discussing the elements of a prima facie case in the ADEA context). Additionally, which, Nafisseh submitted affidavits in addi making tion to the facts up prima case, facie raise an inference that the defendant’s proffered pretextual. reason is Chauhan, 897 F.2d at 128. Under the standard announce, we now Nafisseh would not be required produce affidavits establishing prima her facie case until the defendant *10 moves for proffers and legitimate nondiscriminatory salary disparity. reason for the affidavit,
In her
Nafisseh stated that she “was not advised that the
reason Dr. Abbas Heiat was
receiving higher salary than mine was
he
an
occupied
position’
because
‘anchor
in the department and that
it was the
of the
practice
college pay premium salary
to fill such
” Further,
‘anchor positions.’
Nafisseh stated that she was told that
receiving
salary
she
a lower
“budgetary problems.”
was
because of
In
affidavit,
his
Abbas stated that when he was hired he was not advised
salary
$40,000
that one ofthe reasons he was offered a
was because
occupying
position.”
addition,
he was
an “anchor
In
he stated that he
assigned any
duties, chores,
has not “been
extra
assignments, or
”
responsibilities relative to said
position.’
‘anchor
Contrary
suggestion
to the dissent’s
that the Heiats have done
nothing more than establish an
knowledge
“understandable lack of
by EMC,”
as to the basis for administrative decisions made
these
affidavits raise
issues as to material facts in at least three
(1) neither
nor
particulars:
Nafisseh
Abbas were advised of the
they
position”
during
“anchor
rationale when
were hired or
their
(2)
teaching;
differing
EMC has
two
reasons for
propounded
tenure
hand,
pay; budgetary
Nafisseh’s lesser
concerns on the one
and the
(3)
“anchor position”
other;
rationale on the
contrary to what one
expect
would
if Abbas were in fact an “anchor”—he was never as-
any
signed
additional duties or responsibilities commensurate with
position
faculty.
such a
on the
These are not mere
but,
conclusions
rather,
give
material facts which
genuine issues,
rise to
not the least
question
of which is the
of whether the “anchor position” rationale
was,
claims, merely
as Nafisseh
an afterthought
pretext.
These
material facts are sufficient to overcome the motion for summary
judgment. Hagen,
Nafisseh and we agree, at there a disputed issue of material fact as to whether Abbas was hired to fill a so-called and, worst, “anchor position” an issue ofwhether the whole concept an position” merely “anchor was a pretext developed after the fact to escape consequences of EMC’s actions which led to this suit. Nafisseh testified that she was told that budgetary problems were salary. reason she was offered a lower Resolution of this discrep- ancy was a A question jury of material fact. should have opportu- nity weigh credibility of the witnesses and the testimony to determine whether Nafisseh has indeed been discriminated against question fact, because of her sex. This of material whether there was nondiscriminatory salaries, reason for the difference in should have precluded the District Court granting from EMC’s motion for sum- mary judgment.
Reversed and remanded proceedings consistent with this opinion.
JUSTICES HUNT and TRIEWEILER concur. NELSON, specially
JUSTICE
concurring.
I concur with the result ofour
I
opinion. also concur in the approach
taken,
clarify
we have
and I believe our decision will
the burdens of
respective parties
summary judgment proceedings in discrimi-
Nevertheless,
nation cases.
I would have reached the same result
analysis
using McDonnell-Douglas
adopted
which we
Kenyon
County
v. Stillwater
In
we relied on and followed Foster v. Arcata
Inc.
(9th
1985),
1453,
summary judgment-discrimination
Cir.
772 F.2d
case, which,
many
jurisdictions,
like cases in
other
followed the
analysis McDonnell-Douglas.
in
I believe that the first
in
step
that
analysis
approach
really
and in our
here is
the same —i.e. the plaintiff
initially
prima
make out a
facie case of discrimination at the
may
that
pleading stage.
appear
While
to be a first burden for the
plaintiff
McDonnell-Douglas,
under
that same hurdle exists for the
any
in
I
not
plaintiff
language
Kenyon
case. do
believe that the
used in
which,
plaintiff
believed,
that the
need “adduce facts
if
support a
that he
reasonable inference
or she was denied an employment
any different
opportunity,”
higher
sets
standard for the initial
pleading in discrimination cases than
traditionally
we have
required
in
pleading
Kenyon,
non-discrimination cases.
In Treutel v.Jacobs 240 Mont. 784 P.2d a personal injury summary case decided on judgment, 8(a), Rule citing M.R.Civ.P.,we stated:
While Court long recognized has that a complaint is to be light construed in the most favorable the plaintiff, to Fraunhofer (1979), v. Price 594 P.2d say we cannot Linda’s even complaint, favorably when viewed position, her set forth a claim upon granted. which relief can be As we stated in Rambur v. Diehl Lumber Co. Mont.
552, 554:
complaint
"... a
must state something
which,
more than facts
most,
would breed
a suspicion
plaintiffs
a right
have
Liberality
relief.
does
go
not
so far as to excuse omission of that
necessary
which is material and
in order to entitle relief.”
Treutel,
Assuming employer burden, meets that it is then incumbent on the to come forward with sufficient to raise an facts employer’s actually that the pretext. inference reason While the majority language Kenyon reads the used in a trial imposing I do proof plaintiff, anything burden of on I do not. not find *12 336 Kenyon or in Foster that me to that
either leads believe our statement employee specific that the must “demonstrate with facts that the pretext,” any is a employer’s explanation imposes higher different or proof plaintiff summary judgment-discrimina- of on the in a burden any in tion case than other case. case,
Again,
recently
in the context of non-discrimination
we
rule
plaintiff’s
oppos-
reiterated the well-established
as to
burden in
summary
ing
judgment:
a motion for
presented
the movant has
evidence to
his or
support
Once
her
motion,
summary
party opposing
judgment
present
ma-
evidence,
conclusory
terial and substantial
rather than mere
statements,
to raise a
issue of material
speculative
fact.
(1995),
v. Conlin Furniture No.
Inc.
Howard
116, 119,a wrongful discharge-summary judgment
case. See
Songstad
also Thornton v.
Mont.
P.2d
the sale of real
wherein
involving
property,
contract case
we stated
must be substantial and consist of
non-moving party’s proof
that the
conclusory
and that reliance on
fanciful or
speculative,
facts
specific
Thornton,
my view,
subjected to factually inference required pretext, to raise a based simply she is nothing but more. approach I our and our here is correct. It
Again, opinion believe crystal clear who bears which burden and what is the should now be ofproofin summaryjudgment-discrimination correct cases. standard I Nevertheless, very opinion, for the reasons that we set out our Nafisseh had met her Kenyon also concluded under would have that EMC’s factually explanation raise a based inference burden to pretextual. was I concur.
Accordingly, specially concurring. specially GRAY JUSTICE case, disagree reach in this but strenu- I in the result we concur analysis under which it is reached. In this ously portions of the analysis special contained in Justice Nelson’s join I in the regard, concurrence. my dismay unnecessary
I to state over the separately write taken here “overruling” Kenyon which is the three step unwise First, signed plurality opinion. Kenyon have can and Justices who overruled, clarified, but not for the reasons stated should be Indeed, party suggested overruling Nelson. no to this case Justice Kenyon, opinion by this Court. a unanimous —and recent —
Moreover, plurality opinion the statement in the that “the district requiring plaintiffs are in discrimination cases to do more courts” merely questionably raise an issue of material fact is sweeping, than best, addition, such given this is first case we have seen. In the District Court in this case applied the fact that McDonnell- burden, rather than the trial burden *13 Kenyon, hardly Court in is established this reason to overrule Indeed, Kenyon. applied Kenyon, had the District Court but done so the for Court would erroneously, proper course this be to correct the Court, Kenyon. not to overrule To that a suggest District district missing altogether applying court’s error in either a case it erro- neously overruling certainly is a basis for that case is proper a new approach to stare decisis.
My major however, with the plurality opinion, just concern is that: merely a plurality opinion regard overruling Kenyon. it is A majority Kenyon, yet Court is opposed overruling apparently being entirely path by this Court is forced down an new virtue of three they stating of its members that can overrule case with less than a majority vote. that, matter,
I
as a
it
little
recognize
practical
makes
difference in this
Kenyon merely
is
clarified or
case whether
overruled since either would
Here, however,
plurality’s
the same result.
it is the
attitude
produce
and stare decisis—and where that attitude
precedent
toward
will lead
important.
really
in the
is
Can three votes
overrule a
us
future —which
decision,
three
the
case? In a four to
will
dissenters “overrule” cases
by majority?
sufficiently cognizant
on
the
Are such
approaches
relied
stability, continuity
clarity in
importance
the
and
the law?
I
met her burden
Applying Kenyon, would conclude
Nafisseh
I
Court.
Accordingly,
in this case.
would reverse
District
my
special
yet
temptation
concurrence as
another
1.1 have resisted the
to count
own
opinion.
for the
vote
specially concurring.
JUSTICE LEAPHART
three
In
out
there are
votes to reverse
pointing
Kenyon,
Gray’s special
present
Justice
concurrence characterizes the
decision
not an
“plurality”
as a
decision. That is
accurate characterization of
holding
Including
special
our
in this case.
concurrences of Justice
Gray,1there are five
for the
test adopted
Nelson and Justice
votes
new
test,
Thus,
adoption
in
case.
as to the
of that
present
there is
however,
clearly majority.
Justices,
disagree
Those same five
as to
the new
has on the test previously
what effect
test
enunciated in
No more than three Justices were able to
on
Kenyon.
agree
any one
Kenyon
overruled,
That is,
characterization.
has
been
clarified or
apparent
opinion,
from the
three of the
modified? As
Justices did
that,
agree
changed Kenyon
procedurally
since
Court had
both
substantively,
was,
effect,
in
Kenyon
disagree
overruled.
Kenyon, does not
opinion
ment
to how the result in this
affects
alter
as
that,
majority
Court has
analysis,
adopted
the fact
in
final
ofthe
Kenyon
test.
replaces
a new test which
dissenting.
JUSTICE ERDMANN
I
dissent. I am not convinced that the new standard
respectfully
majority
summary judgment
by the
motions
discrimi
adopted
necessary
do I believe it is
to overrule
necessary,
nation cases is
nor
Kenyon
County
v. Stillwater
our recent decision
to utilize the
142,
As the in developed and further Texas Douglas in McDonnell articulated (1981), 248, U.S. v. Burdine 450 Department Community Affairs of analyzing 67 for discrimination cases. 101 L.Ed.2d S.Ct. (1988), 235 742; P.2d v. State Mont. Kenyon, See 835 Taliaferro (1984), Rights v.Human Comm’n 860;European Spa 764 Health P.2d County v. 319, 687 1029; P.2d Martinez Yellowstone Welfare Mont. 626 P.2d Dept. 192 set forth the Douglas, Supreme the U.S. Court In McDonnell in cases. The proof and discrimination order shifting burdens This a facie case ofdiscrimination. prima must first establish plaintiff generally prima is established with reference to the facie case model disparate adopted Douglas. for treatment cases McDonnell Upon prima case, of a facie a the proof presumption arises that employer unlawfully a against employee. prima discriminated the If facie case established, employer produce the evidence that its action reason, legitimate, nondiscriminatory or, based on a was under the Equal Pay Act, on the employer based “factors other than sex.” If can nondiscriminatory legitimate, reason, articulate a the presumption drops discrimination out of case and the the burden shifts back to plaintiff must then that the pretextual. the who establish reason is Kenyon, 745-46; Taliaferro, 863; at at 835 P.2d 764 P.2d European Martinez, at Spa, 1031; 246; Health Burdine, P.2d at 252-53, 101 S.Ct. at U.S. 1093-94. found prima District Court that Nafisseh established facie by showing
case discrimination she was' a woman and a male (Abbas) colleague credentials, with the same performed who substan- tially work, the higher salary. same received a The District Court went on to find that EMC had established a legitimate, nondiscrimi- natory salary for the reason differential between Nafisseh and Abbas. Finally, the District Court found that Nafisseh failed establish that legitimate, nondiscriminatory the reason offered EMC pretex- was tual. Since could produce Nafisseh not evidence establish that pretextual, EMC’s reasons were there was no issue of mate- rial fact. The District Court concluded that a jury reasonable could return not a verdict favor of Nafisseh. maj ority noted,
As the has determined that the McDonnell Douglas analyzing test is not appropriate discrimination cases in the context developed a new standard. The majority abandons first element of the Douglas McDonnell test plaintiff which, required prima case, which to establish a facie established, created a presumption once of discrimination. The ma- jority summary judgment states that for purposes, court will plaintiff prima assume that the has facie case of alleged discrimi- majority of the nation. The retains the second element McDonnell employer test then forward requiring come nondiscriminatory for the If the legitimate, employer reason action. nondiscriminatory reason, only a legitimate, comes forward with case of prima then does the need to establish facie discrimi- plaintiff produces If evidence which raises an inference nation. proffered pretextual, plaintiff’s reason is employer’s is met and must be denied. burden *15 340 to requires employers
This new standard rebut discrimination yet not which the cart proven, places proverbial before the allegations applied The Ninth Circuit has discussed and the McDonnell horse. in the Douglas judgment standard context in Foster. cases, a motion in the judgment On for discrimination proof shifting of Douglas McDonnell order burdens must be light granting summary judg of the traditional test for viewed ment. See Steckl [v. Motorla, Inc.], 703 F.2d [392] at [(9th Cir. 1983)]. moving party That test is whether the has demonstrated genuine there is issue ofmaterial fact and that it is entitled no States, v. F.2d a matter law. Alaska United 754 to as (9th 1985). generally Although courts are cautious 853 Cir. intent granting when motivation and about issue, cases, may at in Title VII and ADEA such relief are as Steckl, F.2d at appropriate. purpose be 703 393. One nonetheless burdens in Title VII and ADEA actions is to of the allocation of identify dispense the courts to meritless suits and enable district Id., 393-94;[Douglas Anderson, at 656 v.] them short of trial. F.2d [528] [(9th Cir. 1981)].Summary judgment, judiciously objective. is an vehicle for appropriate accomplishing applied, Foster, F.2d at 1459. new to the sum- majority’s appears simplify standard
While eliminating cases by in discrimination mary judgment procedure element, necessarily it abandons the Douglas McDonnell initial by this as other state established Court as well numerous precedence has courts in this area. The traditional standard worked and federal and this be jurisdictions other Court should well in Montana and process. to abandon the reluctant standard, steps adoption simplifying
The of the new while final unchanged analysis leaves of the parties, followed be evi- produce element —whether can McDonnell inference that are employer’s proffered to raise reasons dence an majority with the as what suffices Here I differ pretextual. case. the inference in this evidence establish (1) Nafis- geniune three issues of material fact: majority finds that it Abbas’ not advised EMC considered and Abbas were seh (2) given EMC has two reasons position”; an “anchor position position” and the concerns “anchor pay budgetary lower Nafisseh’s — (3) one any additional duties rationale; assigned was never and Abbas are These three assertions position.” “anchor expect of an would to raise a and are insufficient merely conclusory speculative Bank v. Spokane material fact. See Farm Credit issue of (1993), Hill case, EMC established that when Abbas was hired
In this faculty in the *16 just had lost the member information the school possessed a Ph.D. The administration felt it systems discipline who credibility reputation discipline to the and to important was The term immediately discipline. find another Ph.D. to “anchor” the merely referred to the need for a Ph.D. and there position” “anchor any that the term envisioned absolutely no evidence in the record was a responsibilities. willing pay pre- EMC was additional duties a Ph.D. and did so when high quality applicant to recruit a mium they hired Abbas. 1988, however, professor when EMC advertised for an assistant
In systems discipline, already a Ph.D. was on staff so in the information job a The advertisement did not pay premium. there was no reason Nafisseh, Ph.D., a Ph.D. had a applicants that have who require salary position higher and was hired for the level than applied for for, called but lower than salary agreement schedule union year salary paid to Abbas the before. EMC’s articulated reason need to salary pay differential was that there was no for the discipline, Ph.D. in the same a reason the for a second premium nondiscriminatory. and legitimate Court found to be District opposition to EMC’smotion for In the affidavits filed they the Heiats stated that were not aware of EMC’s judgment, salary they when were hired. reasons for the differential proffered was told when she was deposition stated in her that she Nafisseh that college experiencing “budget problems,” was but hired that they position not conflict with EMC’s that were not statement does Ph.D. in the information premium for a second willing pay any genuine do not create The Heiats’ affidavits systems discipline. fact, merely but reflect the Heiats’ understandable of material issues decisions made for administrative knowledge as to basis lack of by EMC. knowledge no that she had Nafisseh confirmed deposition,
In her fact: issue of material genuine create a that would that the basis for you don’t know then Q: you don’t So think — rather you were a woman you $28,000 was the fact offering Ph.D. hired? you were the second than the fact that salary, I knew that a lower and that I was offered HEIAT: I know colleague compared to another rather than a male I was a female paid higher who was salary. my So conclusion was that probably my it was based on sex.
Q: Well, you you say said that can’t that the school was not basing salary their decisions on the fact you were the second Ph.D.? They very might well have been basing them on that?
HEIAT: I said I were, don’t know. If they I wasn’t aware of it. Nobody told me. subjective
Nafisseh’s
belief of discrimination does not create a
genuine issue of material
See
fact.
Tozzi v. Joliet
College
Junior
(U.S.D.C.
1989),
N.D. Ill.
57 FEP
It is true that once a properly supported summary motion for judgment made, may the opposing party merely not rest on the allegations in the complaint respond and must with some factual showing genuine of the existence of a issue of material fact. Brown, 746 F.2d 1412. noted,
As the district court correctly
‘[c]onjecture, speculation,
references to matters outside the
personal knowledge,
[affiant’s]
conclusory
and
general
statements
bare assertions of the
truth of
particular
matter will not suffice to withstand a properly sup-
ported
summary judgment.’
motion for
Box,
In this Nafisseh has presented any not evidence proffered pretextual EMC’s reasons are nor has presented she evidence that would raise an pretex- inference that the reasons are tual. argues She instead she and her husband were not informed reason pay they and, of EMC’s for the differential when were hired since her being paid more, husband is she “concluded”that she had against been discriminated based her Under upon gender. analysis, McDonnell Douglas plaintiff seeking IFoster to establish must, minimum, at a pretext introduce evidence that raises an employer’s proffered inference that the pretextual. reasons are Nafis- simply seh has failed to do so. held that primary policy
This Court has and general purpose underlying 56, M.R.Civ.R, Rule promptly is “to dispose of actions in fact, which there is no issue of thereby eliminating unneces- sary trial, delay and expense.” Silloway Jorgenson (1965), v. 307, 310, Mont. 406 P.2d purpose “[T]he 169. of summary judgment encourage judicial economy by is to eliminating unneces- sary County (1989), trials ....” Cole v. Flathead 99-100. salutary purposes
[T]he
avoiding pro-
—
tracted,
and
expensive
harassing
apply no less to discrimi-
trials —
nation cases than to commercial or other areas of litigation. ... To
party
allow a
to defeat a motion
judgment by offering
purely conclusory allegations
discrimination,
any
absent
con-
crete particulars, would necessitate a trial in all Title VII cases.
(S.D.N.Y.
City
v.
1989),
Ritzie
Univ. New York
The proper standard was set forth the Ninth Circuit in Foster and was properly applied by articulated and Kenyon. this Court in I rely would continue to on the McDonnell /Burdine standard as defined in the context Foster and adopted *18 Kenyon. However, Court in under either standard Nafisseh proffered has failed to establish that EMC’s are pretextual. reasons affirm I would District Court. joins
CHIEF JUSTICE TURNAGE in the foregoing dissenting opinion.