*1 1018 legal materi prisoner’s confiscation of applies to the requirement plainly
haustion life”); Corrs. ... prison See Pri-Har v. of private prisons. “condition[ ] als as (11th Am., 886, (2d 888 Fed.Appx. 154 Corp. Goord, 221 F.3d Cir. v. 280 Gibson of Cir.2005) terms, (“By its (unpublished) 2002) challenge for a (requiring exhaustion 1997e(a) confined in applies prisoners § expo in cell and accumulation of water 1997e(a) ap § Accordingly, ‘any’ prison. smoke); v. to second-hand sure Hartsfield any prisoners criminal to federal plies (6th Cir.1999) Vidor, (holding 199 305 F.3d federal of whether it is a regardless prison, prison officials violated allegation facility.”); operated privately or a prison equal protection rights prisoner’s Am., Corp. Boyd v. Corr. of roughly they him than treat treating more (“We (6th Cir.2004) persuadéd are 994 concerning a inmate one. ed a white ap requirement the PLRA’s exhaustion condition). broad light In of the prison private facili prisoners held plies term, of the we conclude interpretation Bernalillo, ties.”); 365 County Ross v. concerning pris claim one that Roles’ is Cir.2004) (10th (“Nothing F.3d subject properly condition that is PLRA policy of the language in the 1997e(a)’s requirement.1 § exhaustion in operated prisoners privately excuses Because Roles failed to exhaust admin exhausting available stitutions claims, court’s dismissal of his the district remedies.”). istrative
complaint prejudice without III. Conditions Prison AFFIRMED. PLRA itself does not define The conditions, Supreme Court prison but the In Port broadly
has construed the term.
er, held, PLRA’s the Court “[T]he exhausr to all inmate requirement applies
tion
they in
prison life,
about
whether
suits
Raymond
CORNWELL,
M.
general
particular
circumstances or
volve
Plaintiff-Appellant,
they allege
exces
episodes,
whether
v.
wrong.” 534
sive force or some other
U.S.
added).
(emphasis
S.Ct.
CREDIT
ELECTRA CENTRAL
have treated various
Our court and others
UNION;
Sharp,
James E.
challenges
prison
prisoner claims as
Defendants-Appellees.
exhaustion, ranging
requiring
conditions
No. 04-35408.
by prison
from claims of harassment
offi
1096(9th
Appeals,
United States Court
cials,
King, 293 F.3d
Bennett v.
Cir.2002),
about the avail
Ninth Circuit.
complaints
ability
language interpreters,
Spanish
14, 2005.
Argued
Sept.
and Submitted
Corr., 201 F.3d
Dep’t
Castano v. Neb.
1, 2006.
Filed March
Cir.2000).
See also Preiser
475, 498-99,
Rodriguez,
U.S.
(1973)
(characterizing
Craig Crispin, Crispin Employment A. Portland, OR, Lawyers, plaintiff- for the appellant. Meneghello (argued), R. Fisher
Richard LLP, Portland, OR; Karen E. Phillips, & (argued) Kimberley Saul Hanks MeGair, Witt, PC, Farleigh, Wada & Port- land, OR, defendants-appellees. for the million, De- percent, to about between $80 2000 and December the rec- cember viewed most summary judgment, ord on BEA, FISHER, GOULD, Before: Cornwell, favorably suggest does not Judges. Circuit deficiency manage- in Cornwell’s this decrease. ment caused GOULD, Judge: Circuit Electra, joined it sold When Cornwell Raymond Cornwell Plaintiff-Appellant individually. For exam- products financial granting the district court’s order appeals purchase ple, a member who wanted defendants-appel- account checking both a home loan and a Union and Jim lees Electra Central Credit one buy checking would account from retalia- Sharp, dismissing loan employees of Electra’s and the home race discrimination claims under tion and manage- In from another. Electra’s VII, Oregon § Title U.S.C. and its Board of Directors ment team district appeals law. also cul- adopted policy create “sales reopen motion to denying court’s order ture,” in which each of Electra’s front-line discovery depose could so every would be to sell employees able oppose additional witness to *5 that Electra offered. product jurisdiction pursuant judgment. We have to a culture Electra’s transition sales part § in to 28 1291. affirm U.S.C. We when, 17, 2001, September ongoing was in part. and reverse Caucasian, Sharp, Electra hired Jim as I1 deposition, At his Chief Executive Officer. during early Cornwell testified (Electra) Electra Central Credit Union tenure, Sharp’s Sharp months of excluded not-for-profit cooperative provides is a meetings from at which the man- Cornwell services, including banking financial and agement team discussed issues within the lending, August its On members. responsibilities as Vice scope of Cornwell’s Cornwell, Raymond Electra hired Operating President and Chief Officer. African-American, its Director of who is as by deposition also Cornwell testified the nine Lending. supervised Cornwell any Sharp had said he would fire member employees in Electra’s loan who worked management “goes team who to the department managed lending Electra’s talk to me first about board and doesn’t operations promoted until Cornwell it....” Operating Vice President and Chief Officer Thereafter,
in managed Cornwell 9, 2001, during meeting On November operations Electra’s branches and cash management Sharp’s team at Electra’s lending business. addition to Electra’s home, Sharp made comments about wom- “unprofession- en that Cornwell considered During stewardship of Elec- al” and “close to sexual harassment.” lending operations, tra’s the value of Elec- later, days told Bonnie just Three Cornwell portfolio grew tra’s loan over $65 Cottrell, Electra’s Vice President of Hu- million in 1997 to more than December $85 Resources, Sharp’s the man about comments. Although million December 2000. thought Sharp’s that he be- portfolio’s by value decreased about four Cornwell said gives reviewing to Cornwell all reason- 1. Because we are a district court’s our statement granting summary judgment, in his favor. See United States order our state- able inferences Tacoma, City accepts ment of the facts Cornwell’s version Cir.2003). dispute, where the record shows events meeting lending, at the should be “dealt with sales culture and with including havior fashion,” but Cornwell did not in some the decrease in the value of Electra’s loan investigate ask Cottrell explicitly portfolio. why asked Cornwell he had not remarks, and did not offer Cottrell reorganization been included in the plan speak Sharp to do so. Nor did Cottrell answer, ning process. Sharp did not but concerns. about Cornwell’s help offered to Cornwell find employment awith different firm in the in financial early In late November or December dustry if Cornwell did not want to contin 2001, Sharp management informed the ue working for Electra.2 reorganize team that he intended to Elec- operations to facilitate the tra’s transition day, Sharp The next announced the re- culture, Sharp speci- to a sales but did not organization publicly during a manage- Al- fy changes considering. what he was ment meeting. team Cornwell was the though Sharp reorganization discussed his only African American member of the plans manage- with members of Electra’s team, management and the only executive weeks, ment team over the next few Corn- Sharp whom demoted. Sharp asked each Sharp well testified that did not include person meeting to commit sup- notify him meetings, these port the reorganization. Cornwell felt them, reorganization though about even “blind-sided,” “embarrassed,” and “humili- responsibilities would affect ated” Sharp’s request that Cornwell opportunities. publicly endorse Every his own demotion. the afternoon of December On management member of the team agreed organizational asked what support reorganization, except changes planned he to make. said Cornwell, who supported said he manage- that he intended to create a new Electra, *6 Sharp’s “process” “sys- but not position, ment Vice President of Sales and tem.” Operations; promote Virginia Branch to meeting, again After this Cornwell com- Caucasian, Hall, fill that position; a plained to Bonnie Cottrell about Sharp’s reassign and to for Elec- responsibility at the 9 meeting, behavior November operations and cash tra’s branches reorganization. now also about the Corn- Hall, previously who had been mem- well asked Cottrell whether race had management ber of Electra’s team. played Sharp’s a role in decision to de- Sharp that intended to also said he elimi- responded mote Cornwell. Cottrell Operating nate the title of Chief Officer in she did not think that race was a factor change and to Cornwell’s title to Vice Sharp’s process reorganization but Cott- Lending. of a result President As suggested .express rell that Cornwell changes, retain these Cornwell would re- concerns to Electra’s Board of Directors. lending opera- sponsibility for Electra’s The record on does responsibility lose for Electra’s tions but affirmatively not indicate that Cottrell in- operations branches and cash and he vestigated concerns race Cornwell’s about manage Sharp employees. would fewer discrimination. explained to wanted Sharp Cornwell thereafter, spoke Soon Cornwell to Bob lending op- Cornwell to focus on Electra’s Pearson, problems erations to correct with the a member of Electra’s Board deposition, qualified Sharp 2. At his that he did fied that Cornwell was the most testified Sharp’s planned not tell about reor- employees manage Cornwell Electra’s Electra's lend- ganization simply because "I knew that he ing business. agree wouldn’t with me.” also testi- Pot- meeting, Cornwell and During he their told Pearson.that Directors. Cornwell underlying the motivation reassign ter discussed Sharp’s decision to disagreed with Hall, decision to demote Cornwell. Sharp’s responsibilities of Cornwell’s some testified that: than Cornwell experienced executive who was less Cornwell, explicitly did not but Cornwell ques- indicated that he did not [Potter] At discrimination. accuse of race said, I I’m con- [Sharp’s] tion motives. counsel deposition, Ele'ctra’s Cornwell’s illegal motives are cerned whether the if told Pearson that Corn- asked Cornwell said, I I it because said or not. Sharp’s had influenced thought race well his sexual something in November about In response, decision demote Cornwell. issues, is it because of the harassment testified: skin, it he doesn’t my color of is because me, things all these him that I like and I said I told was No. What said, you’re direct. [Potter] [Potter] to what the motives—what unsure as it’s not raising I a different issue now and driving Sharp, Jim motives were if here. I don’t know it’s the one that we address question, asked a skin, I if it’s the my don’t know color in questions, viewed provocative me, just like I don’t fact that he doesn’t in light most favorable to Cornwell this the fact that I’m a know whether it’s fairly summary judgment setting, raised woman, said, I I’m not man and not issue, yet racial as an discrimination situation, him in this driving what’s sure record does not judgment just wrong. I feel that it’s or the Board of Di- show whether Potter concerns Sharp’s investigated rectors Cornwell also told Pearson about demoting Sharp’s comments. motivation for alleged inappropriate sexual did, however, Cornwell, responded illegal. Cornwell was Potter According to Pearson “investigate” and send 'Cornwell letter June the Board would Potter asserted to Cornwell that “find out” motives for the demo- which any “[y]our race has never been a factor tion. regarding your employment.” decisions 13, 2002, met February On pointed The letter to Electra’s nondiscri- Potter, the chairman of Electra’s with Bob conver- policy mination and to Cornwell’s *7 Directors, regarding of the con- Board 2001, in sation with Cottrell in December expressed to Pearson cerns Cornwell expressed opinion her which she too had in Potter they gave when met December.' in race was not a factor memorandum,' a in which the Cornwell demotion. Sharp’s “ratified” reor- Board of Directors 23, 2002, May a let- ganization Sharp’s authority and endorsed On Cornwell wrote Directors, and Board of a management to alter Electra’s structure ter to Potter copy Sharp. of which Cornwell sent to In improve per- the credit union’s financial it, proposed package, memorandum a severance formance. This advised Cornwell salary. including years’ exchange, two In Cornwell that the Board of Directors had release,” personal “sign presum- would a instructed not to discuss Cornwell liability for ably absolving Electra’s em- Electra from private or sexual issues with employment there was a business-relat- discrimination. Cornwell’s ployees unless diary he had a Although to do the memo- letter also stated that ed reason so. of and sexist pattern to resolve Cornwell’s documented “a racist purported randum concerns, a any way disparate it in treatment and the creation of did not address demoting hostile work environment” at Electra. Sharp’s motivation for Cornwell. regarding for the letter to decision-maker” Beard’s em- not intend did Cornwell at ployment Electra. resignation immediate announce his
Electra, interpret Sharp purported but 22, 2003, May On Cornwell commenced resignation. On the letter as Cornwell’s 10, 2003, this civil action. On December Sharp informed Electra’s June parties partici- and the district court had re- management team Cornwell in pated case-scheduling a teleconference. ' arrived for Shortly after Cornwell signed. call, During this defense counsel an- 5, 2002, Sharp, who testified work on June nounced an intention to file motions for surprised that he was to see by deposition parties and the said office, placed Cornwell on they agreeable were to the district Cornwell scheduling resolu- court’s trial for the pending administrative leave week paid June 2004. The district court then negotiations severance tion inquired parties whether the could com- Board of Directors. with Electra’s 15, 2003, plete discovery by December to meet with Cornwell attempted Potter discovery scheduled cutoff date. Corn- proposal severance regarding Cornwell’s responded well’s counsel that he had cancelled the on June but Cornwell “completed discovery.” Subsequently, the because, testified, he meeting as he wanted discovery district court extended for an with him lawyer meeting to attend the month, additional after which both Electra yet had not retained one. Cornwell filed motions for n day, That Potter sent Cornwell same judgment and there- support documents outlining Electra’s settlement offer letter of, including a of Facts. Concise Statement times at which suggesting specific Reply In his Defendant’s Concise could meet before Cornwell and Potter Facts, as Statement Cornwell submitted instructed June 25. The letter Cornwell allegedly a material fact a statement made duty management as a level that he had by Sharp, referring to one of Electra’s give the' Board of Directors employee employees “nigger African-American as possession regarding in his any evidence deposition Cornwell did not offer bitch.” employment discrimination Electra. support or affidavit evidence to the state- 21, Potter sent an email to On June moved ment. Counsel for the defendants urged Potter Cornwell which Cornwell unsupported pur- to strike the statement meeting with Potter again to schedule 56(c)(1), re- suant to Local Rule which repeated 25. The email Pot- before June every “fact” quires evidentiary support for turn ter’s demand that Cornwell over his of Facts. included in a Concise Statement discrimination to evidence of discovery reopen then moved to Directors. the Board of On June deposition to take the former Potter, explain- sent an email to assistant, Smith, allegedly Karen who *8 not be able to ing that Cornwell would In make the comment. overheard July June 25. meet with Potter before On motion, support of his Cornwell’s counsel 3, Bonnie sent Cornwell a letter Cottrell stating offered a declaration that Smith terminating at Electra for counsel that she had heard told Cornwell’s ... inconsistent with [Cornwell’s] “actions African-American em- Sharp refer to an management employ- duties as a level nigger “that bitch.” The decla- ployee as termination of Corn- ee” After the counsel also stated that Cornwell’s ration Mickey employment, provide well’s Electra hired an affidavit requested Smith woman, Beard, recounting Sharp’s alleged an African-American as or declaration statement, declined she manager. Sharp was the “ultimate but Smith because branch 1026 Bank, 164, 173, 114 state 511 U.S. S.Ct. provide dispar- that Electra would
feared
(1994),
1439,
L.Ed.2d 119
where he
128
negative employment
aging or otherwise
discovery despite a one
to conduct
in failed
only
The
other reference
references.
continuance,
v.
Mackey
month
Pioneer
Sharp’s alleged
pretrial
the
record
(9th
Bank,
520,
867
524
Cir.
Nat’l
F.2d
during
occurred
Cott-
statement
Bonnie
1989),
opportuni-
he “had ample
and where
1,
deposition
2008. Corn-
rell’s
on October
to do
ty
discovery,”
to conduct
but failed
she
counsel asked Cottrell whether
well’s
Panatronic,
II testimony highly would have been her first address Cornwell’s con We probative, particularly light opin of our the district court erred allegedly tention describing epithet ion the racial denying reopen Cornwell’s motion dis by Sharp “perhaps used as most offen covery deposition. to take Karen in En inflammatory sive and racial slur Smith’s denying glish.” Corp., review a district court’s order v. Potomac 270 F.3d We Swinton (9th Cir.2001) 794, reopen discovery (citing Merriam- motion abuse 817 (10th Collegiate Dictionary v. AT & T Webster’s 784 discretion. Panatronic USA ed.1993)) (internal (9th 840, Cir.2002); quotation omit marks Corp., 287 F.3d 846 ted). Inc., suggests also that his deci v. Pac-Tel Teletrac Chance (9th Cir.2001). forgo deposition sion to Ms.-Smith’s n. In 6 this discovery ongoing was affidavit while context, district court abuses its dis “[a] reasonable, given thought that Cornwell only diligently pur cretion if ‘the movant subpoena that he could Ms. Smith’s testi discovery previous opportunities, sued mony notwithstanding at trial her reluc allowing if the movant can show how addi testify. tance to discovery precluded tional would have ” Panatronic, summary judgment.’ arguments unpersuasive. We find these Chance, at (quoting F.3d F.3d Cornwell must have learned about Smith’s 6); Qualls Qualls 1161 n. ex rel. v. Blue allegation before October because , California, Cross F.3d Plaintiffs counsel asked Bonnie Cottrell to Inc. 844(9th Cir.1994). previously have held We verify her allegation during deposition diligently pursue that a movant did not later, however, on October 1. Two months discovery depose where he failed to a wit in December Plaintiffs counsel told twenty-seven during ness months be “completed court that he had district litigation the start of and the discov discovery,” though tween even had he neither cutoff, Farrell, ery affidavit, Hauser v. F.3d nor taken obtained Ms. Smith’s (9th Cii.1994), despite potential impor 1340-1341 overruled on oth deposition, her testimony.3 At oral grounds by argu- er Cent. Bank First Inter- tance of her Cir.2004) ("[A] may Although reject discovery certainly we ar trier of fact gument that, due his failure demonstrate dili *9 light of[the defendant’s] conclude in use to. gence, Sharp's slur, we note that evidence of use of of a his other abusive remarks to racial weighed strongly a racial slur would have by employee] were [an also motivated racial against summary judgment. See McGinest v. hostility.”); County v. Clark School Mustafa 1103, Corp., GTE Serv. 360 F.3d 1116 n. 9
1027 ment, controlling that he courts have ‘wide latitude in Plaintiffs counsel stated testimony- discovery, not to include Ms. Smith’s rulings chose will not be [their] prefers because he pretrial in the record in overturned the absence of a clear abuse ” strongest' his evidence be- not to disclose of discretion.’ v. Campbell, California Assuming that Plaintiffs coun- fore trial. (9th Cir.1998) 772, 138 (quoting F.3d appropriate litigation was an sel’s decision Co., v. D.A. Volk Davidson & 816 F.2d strategy, notwithstanding the likelihood of (9th Cir.1987) (second 1406, 1416-17 alter- summary judgment a motion for defense in original)). ation We decline to limit the trial, it not a dili- before was nonetheless ability district court’s to control its docket discovery gent pursuit opportunities date, by enforcing discovery termination Find- meaning of Panatronic. within even in of requested supplemental the face testimony ing himself without admissible discovery might highly have revealed issue, accept on this Plaintiff must evidence, probative when plaintiffs pri- consequence pursue of his choice not to discovery or efforts were not diligent. We testimony discovery of Ms. Smith’s before hold that the district court was well within Plaintiffs counsel discovery cutoff. its sound discretion when it denied Plain- or surely knew should have known reopen discovery. tiffs motion to summary judg- Defendants’ motions sufficiency test the factual ment would Ill strategic claims. Cornwell’s We turn to Cornwell’s contention that preserve decision not to Ms. Smith’s alle- genuine the record demonstrates a issue of discovery gation pretrial in the record does regarding material fact race his discrimi en- not render the district court’s routine nation and retaliation claims under Title discovery forcement of a cutoff an abuse of VII, § Oregon 42 U.S.C. law.4 Attempting discretion. to secure discov- “Viewing light the evidence in the most ery discovery after a cutoff date does not nonmoving party, favorable to the we must diligent failure to conduct party’s cure a genuine determine whether there are is discovery beforehand. sues of material fact and the dis whether discovery problems pre- Because are correctly applied trict the relevant court case, every many in in sented and because Keller, substantive law.” Oliver v. discovery must close before a district cases (9th Cir.2002). do not F.3d We dispositive can consider motions with court or weigh the evidence determine whether hand, all evidence district courts need true; allegations we deter are discovery control limit be able to genuine there issue of mine whether is trial progress order to advance the of their fact for trial. Abdul-Jabbar v. Gen. Mo establishing dockets. The use orders Cir.1996). (9th Corp., tors 85 F.3d discovery firm cutoff date commonplace, is jury viewing summary If a reasonable generally helpful to the impacts has prepon judgment record could find litigation, that the orderly progress of so derance of the evidence come enforcement of such order should favor, then entitled to a verdict surprise as a to no one. As we have emphasized generally, inappropriate; more “[district
Dist., 1998) granting Cir. 4. We review a district court's order 157 F.3d ('‘[Djiscrimmatory evi- judgment Savings remarks are relevant de novo. Delta that, evidence, along States, with other can dence Bank v. United strong create a inference of intentional dis- (9th Cir.2001). crimination.").
1028
a
employment
“legiti
action for
conversely,
jury
lenged
if a reasonable
could not
mate,
If
nondiscriminatory reason.”
Id.
liability,
then
find
so,
presump
does
then “the
the defendant
Lobby,
Liberty
Anderson v.
correct. See
‘drops
discrimination
out of the
tion of
242,
2505,
Inc.,
252,
91
477
106 S.Ct.
U.S.
”
plaintiff may
and the
defeat sum
picture’
(1986).
L.Ed.2d 202
mary judgment by satisfying the usual
A
in civil
proof required
of
cases
standard
56(c).
v.
under Fed.R.Civ.P.
Reeves Sand
it unlawful for
Title VII makes
Prods., Inc.,
133,
Plumbing
530
erson
U.S.
any
against
employer
“discriminate
(2000)
143,
2097,
120 S.Ct.
1029
(9th Cir.2003); which,
1061,
dealing
in
with the form of affida
Co.,
1067
F.3d
350
Angeles,
opposing summary judg
349
County
v.
Los
vits submitted
Vasquez
(9th Cir.2003); Wallis,
ment,
26
requires
party’s
F.3d
641-42
“the adverse
response, by
pro
F.3d at 889-90.
affidavits or as otherwise
rule,
in this
must set forth specific
vided
plaintiffs might discover
Although some
showing
genuine
facts
that there is a
issue
that a defendant’s nondis
evidence
direct
added.) Thus,
(Emphasis
for trial.”
we
justification
employ
for an
criminatory
equated “specific,
have
substantial” evi
not.
pretext,
a
most will
ment decision is
dence with evidence sufficient to raise a
articulate a nondiscrimi
Defendants who
genuine
of material fact
issue
under Rule
em
challenged
for a
natory explanation
56(c).8 Wallis,
See
S.Ct. 2148. The Court particularly signifi- in this case it is not treating that reason for “[t]he circumstan cant relies on the whether McGinest alike is both clear tial and direct evidence or, Douglas presumption McDonnell deep ‘Circumstantial evidence and rooted: on direct or circum- whether he relies sufficient, only may not but also be more is discriminatory of intent stantial evidence certain, satisfying persuasive and than di ap- to meet either his burden. Under ” 100, Id. at 123 2148 rect evidence.’ S.Ct. produce must some proach, McGinest Co., (quoting Rogers v. Mo. Pac. R.R. 352 suggesting evidence that GTE’s failure 17, 443, 1 508 n. L.Ed.2d U.S. or whole promote part him was due (1957)). Supreme 493 The Court also ob so, intent, discriminatory and must is rou served that circumstantial evidence explanation hiring counter GTE’s convictions, tinely support used to criminal pro- for freeze accounted its failure though requires proof even a conviction mote him. beyond a doubt. id. And reasonable See Mat 1123. “juries Supreme Court noted that are In of the Supreme view Court’s routinely instructed that law makes ‘[t]he recognition in that circumstantial ev Costa weight no distinction between the or value certain, may satisfying idence be “more given to be to either direct or circumstan ” evidence,” persuasive and than direct and tial 1A K. (quoting evidence.’ Id. O’Mal holding disparate that a McGinest’s treat Lee, Jury ley, Grenig, J. & W Federal plaintiff ment can defeat a motion for sum Instructions, Practice and Criminal mary judgment relying on circumstantial (5th ed.2000)). § 12.04 evidence, we conclude that in the context McGinest, applied In we to the Costa summary judgment, Title VII does not question presented by appeal: this what require disparate plaintiff treatment re disparate a plaintiff alleging evidence must lying pro on circumstantial evidence to summary judg- treatment offer to survive more, better, duce evidence than alleged ment? McGinest that GTE failed plaintiff who relies on direct evidence. See race, him promote because of his Costa, 123 U.S. S.Ct. 2148 against opposing also to retaliate him for (citation omitted); McGinest, 360 F.3d at discrimination, GTE’s while GTE claimed that it promote failed to McGinest because may McGinest, Although there be some tension in a hiring freeze. See 360 F.3d post-Costa point our cases this Reading require at 1122-23. Costa to —several repeat of our cases decided after “circumstantial and direct Costa evidence should alike,” requirement plaintiffs Godwin that a cir be treated we held that- McGinest pretext offered sufficient evidence to defeat sum- cumstantial evidence of must be mary judgment, though panel “specific” even McGinest’s and “substantial”9 —this circumstantial, direct, Dominguez-Curry Transp. Dep’t, applies 9. See v. Nev evidence (9th Cir.2005) (noting motive”); 424 F.3d discriminatory Coghlan v. Am. requiring Co., that "the district court erred in (9th 413 F.3d Cir. Seafoods Dominguez’s specific be evidence both 2005) (stating the "distinction between only requirement substantial because such a unworthy Rather, credence. may precedents not overturn Ninth Circuit higher “intervening absence of au in the offered circumstantial evidence from which “clearly thority” that is irreconcilable” a reasonable could De conclude that prior holding, circuit Miller v. with a see fendants demoted Cornwell because Corn- Cir.2003) Gammie, well is African-American. Cornwell also (en banc), power generally because that offered “specific” “substantial” evi panels. to our en banc See Mil reserved explanation dence that Defendants’ ler, 899; F.3d at States v. United was a pretext demotion for race *13 (9th 231 F.3d Cir. Hayes, 1139-40 pro discrimination. Because Cornwell 2000); Washington, United States v. 872 that ques duced evidence created a factual (9th Cir.1989). 874, 880 or F.2d Whether tion whether his demotion resulted from precedential weight not has the Godwin discrimination, such Defendants were not by any degree been to the Su diminished entitled to regarding Costa, byor our preme Court’s decision in Cornwell’s discrimination claims based McGinest, in that decision we conclude his See Sysco demotion. Fonseca v. Food a Cornwell’s evidence is sufficient create Inc., (9th of Ariz., Servs. 374 F.3d 850 genuine regarding issue of material fact Cir.2004). for the motives his demotion under either district court The cor require concluded the standard which would Godwin rectly and that Cornwell established a “specific” prima “substantial” circumstantial pretext, or evidence the McGinest stan race discrimination claim under facie dard, would not. Douglas. which McDonnell Cornwell offered (1) African-American, he proof: that is a (2) VII; protected. class under Title that The court that job (3) district concluded performed adequately; he that produced specific demoted, ha[d] “Cornwell he was adverse substantial evidence to raise a factual issue (4) action; that he was treated differ that the true reason for his or demotion ently similarly employ than situated white discrimination termination was race ees who not demoted. were See McDon that the stated reasons were false.” We Douglas, nell U.S. at disagree. result, 1817. As a Cornwell was entitled that presumption a Defendants demoted summary judg- did not oppose him because Cornwell is African-Ameri alleging merely ment that Defendants’ justification for Cornwell’s demotion was can. See id. crucial, (observing "[a]lthough and circumstantial direct evidence F.3d at that 1065-67 it because controls the amount of evidence Supreme ... the Court’s recent decision plaintiff present must to defeat the may undermine [Costa ] Godwin to the extent judgment. employer’s summary motion for implies that direct more it evidence is probative, Because direct evidence is so evidence, probative we than circumstantial 'very
plaintiff need offer little’ direct evidence agree Stegall with the Godwin court that must fact”) genuine a to raise issue of material proffer 'specific' and ‘substantia! evidence omitted); (footnote and internal citation Bo- pretext overcome Marathon’s CoxCom, Inc., dett v. 366 F.3d motion.’’); judgment Vasquez, Cir.2004) (asserting that evi- "[circumstantial (asserting using pretext that "[t]o show 'specific' must be dence] 'substantia! evidence, plaintiff put circumstantial must respect to create a triable issue order with specific and forward substantial evidence employer whether intended to discrimi- challenging credibility employer’s of the ground].”) prohibited [a nate on basis of motives”). (second original); Stegall, alteration in n APPRO, adopt a risk agree the district about whether We also with tool, though that Defendants offered management court’s conclusion even they admissible evidence demoted lending busi- responsible for Electra’s “legitimate, nondiscrimina Cornwell for jury certainly could con- ness. While reason, Elec tory” specifically to facilitate with clude that lack interaction of a culture” in implementation tra’s “sales Sharp’s brusque Cornwell resulted employees which each of Electra’s sales style rather than racial ani- management De any products. could sell of Electra’s mus, jury could also infer reasonable point Sharp’s deposition testi fendants from the excluded Cornwell testified that he mony, which Elee- decision-making process regarding responsibility transferred for Electra’s reorganization malign tra’s or discrimi- Virgi operations branch from Cornwell to natory purposes. ,so could focus on nia Hall that Cornwell Likewise, a reasonable could infer correcting lending with Electra’s problems opposing from the admissible evidence *14 business, percent a four including .decrease that ex- Defendants’ portfolio. in the value of Electra’s loan planation for demotion was a testimony rebuts the McDonnell This Indeed, pretext for discrimination. when result, and, Douglas presumption, as a the Sharp why Cornwell asked Cornwell had “ ” presumption ‘drops picture.’ out of the reorganization not been involved Reeves, at U.S. S.Ct. process, Sharp’s to planning answer was Hicks, at (quoting U.S. help job to with a offer Cornwell find 2742). financial firm if he was different services however, disagree, the district We with A rea- unhappy Sharp’s approach. with that court’s conclusion Cornwell did not that might Sharp’s sonable conclude sufficient evidence to create a produce ready too perhaps willingness help genuine issue of material fact as to wheth leave Electra in tension with Cornwell was er Defendants demoted Cornwell because justification Defendants’ for Cornwell’s de- African-American. most fa he is Viewed truly If that Sharp motion. believed Corn- Cornwell, vorably per the record would qualified well was the best executive jury’s Sharp mit a inference that treated business, manage lending Electra’s and if differently Sharp Cornwell than treated Sharp reshape demoted Cornwell to his white executives because of Cornwell’s exclusively lending, as-Sharp focus tes- Cornwell, only race. African-Ameri tified, jury might then a reasonable consid- management can member of Electra’s er exit Sharp’s eagerness help Cornwell team, only whom was the senior executive inconsistent; Sharp pursue because did not Sharp by demoted. Cornwell testified de seeking allay the- alternative' of Corn- position Sharp’s that between arrival negative well’s concerns and soften his re- September 2001 and Cornwell’s demotion reorganization by including action to .the 2001, Sharp in December excluded Corn- decision-making process. him in the that in management meetings well promote expe- decision to a less scope topics volved within Cornwell’s employee manage rienced white Elec- responsibility.10 Cornwell also testified Sharp operations support that did not consult with Cornwell tra’s branch could also by deposition Sharp meetings yet 10. Cornwell testified place, and formed that the took meetings reorganization held about "with they concerning job were move or eventual Rob, Cindy, Lesly, Virgina, and but none change for me.” in, those was I included nor was I even in- deposition tes Defen- If one credits Cornwell’s conclusion that jury’s a reasonable timony, possible it be to conclude demotion would for Cornwell’s explanation dants’ The rec- that Electra never addressed Cornwell’s pretext for discrimination. was that his demotion was expressed a valuable concern that Cornwell was ord shows business, of race discrimination. Corn- and result of Electra’s member executives, that he both Pearson well testified asked Cornwell among Electra’s played Potter race a role lending. Cornwell whether the most about knew years Sharp’s decision to demote Cornwell. during eight promoted twice was was Electra, ultimately to Cornwell told Pearson Cornwell at Vice he worked Officer, as to what the motives—what mo “unsure Operating and Chief President ... I driving tives were Jim asked lending key responsibilities with if I know it’s the color of question, also testi- don’t operations. Cornwell for branch ” Similarly, informed my skin.... deposition that no one during fied was “concerned that he Potter suggested ever to Cornwell Electra [underlying Corn- the motives inadequately, and for sum- whether performing .... illegal are or not demotion] [i]s credit well’s mary judgment purposes we Corn- my skin ... ?” it because of the color testimony. Sharp, deposition, in his well’s underly questioned the motives the best Cornwell acknowledged that Cornwell was Cornwell, Sharp’s decision to demote lending ing Electra’s person to lead qualified tainted specifically they whether were assigned that he group, testified *15 Di The Board of opera- branch race discrimination. for Electra’s responsibility however, addressed Hall, response, who was rectors’s employee to a white tions merely authority reorganize to Sharp’s man- a member of Electra’s previously not business, never team, could fo- Electra’s which Cornwell so that Cornwell agement that Potter challenged. Cornwell testified lending. Although a reasonable cus on by say responded question to Cornwell’s decision to reas- jury might Sharp’s view raising a different issue now op- ing “you’re responsibility for Electra’s branch sign authority reorganize Elec Sharp’s [than from to Hall as consis- erations Cornwell and it’s not one that we rationale tra’s proffered business] Defendants’ tent with responded demotion, here.” Electra never jury a reasonable address for Cornwell’s concern that of Cornwell’s disparity between to the substance might also view the afoot, from apart race discrimination was management experience and Cornwell’s stating that Bonnie Cottrell letter explana- that Defendants’ Potter’s proof Hall’s as play opinion the that race did pretext demotion was a held tion for Cornwell’s The sum demotion.11 Tyson role for race discrimination. See Ash Inc., U.S. -, -, does not indicate Foods, —, mary judgment record S.Ct. (2006) Electra’s Board of affirmatively whether -, (per L.Ed.2d 1053 curiam) (“Under decisions, Corn- investigated or evaluated Directors this Court’s suffice, Sharp’s actions were concern that may at least well’s qualifications evidence jury A circumstances, racially motivated. reasonable pretext.”); in some show investigate failure to N. Bor- could view Electra’s also Raad v. Fairbanks Star see illegiti Dist., to conceal attempt as an ough Sch. Cir.2003). mate motives. affirmatively that indicate opinion record does not Potter's reference to Cottrell’s investigated race discrimina- commanding weight whether in the Cottrell does not have a context, Sharp Cornwell. to demote summary judgment given that the tion motivated meeting to discuss presented
From the evidence on Corn- well schedule jury requests for severance. Potter dispute, well’s side of the rational requested produce any that doc- that aim to could conclude had an racial at out, umentation of discrimination Sharp had force Cornwell that exclud- Electra. within his ar- meetings ed Cornwell responsibility discourage in order to eas legitimate requests These were the Cornwell, was, put that it Board, Chairman of Electra’s and Corn- starkly, a CEO who did not want to work corpo- disregarded well them at his own Operating with an African-American Chief peril. adequately rate Defendants rebut- truth that all of might Officer. The be Douglas presumption. ted the McDonnell Sharp’s management legitimate aims were striking presented There' was evidence prerogative personal and matters of relationship had deteriorated to jury But style. could also find on the point cooper- Cornwell declined judgment record a discrimi- requests. with Potter’s ate informational work, natory in our intention was at contrast, Cornwell, in By opposing sum- presented
view Cornwell sufficient evi- mary judgment, produce did not sufficient place jury’s dence to this issue in the genuine create a evidence to issue mate- province for decision. him rial fact whether Defendants fired Supreme As the Court has said: “Credi race, the basis of rather than because determinations, bility weighing cooperate would not with the evidence, drawing legitimate and the request Board’s for information. Cornwell inferences from the facts are func produced undermining no evidence tions, not of a judge, those whether he is credibility explanation of Defendants’ ruling on a motion for the termination of Cornwell’s Anderson, or for a directed verdict.” 477 at Electra followed as a result of Corn- U.S. S.Ct. 2505. hold that We respond timely way well’s failure to in a judgment Defendants are not entitled to as requests information tendered to him from *16 a matter of law on the issue whether highest corporation. the level of the We Sharp’s demotion of Ti Cornwell offended that produced by hold the evidence Corn- prohibition tle VII’s genuine intentional racial does not create a well issue discrimination. material fact as to whether Defendants fired him because is African- Cornwell American. The district court concluded that B produce did not Cornwell evidence suffi turn to We Cornwell’s retaliation genuine cient to create a issue of material appeals claims. Cornwell the district fact whether Defendants fired Cornwell order granting judgment court’s because he African-American. We dismissing to Defendants and Cornwell’s agree. VII, claims retaliation under Title and prima Cornwell established a case facie 659A.030, ORS as well as com Cornwell’s his regarding termination. See McDon- wrongful discharge mon claim law under Douglas, nell at U.S. Oregon law. 1817. Defendants then offered admissible they evidence that terminated Cornwell’s prima To establish a case facie employment legitimate retaliation, for a plaintiff nondiscrimi- of must demonstrate: (1) (2) natory Potter, reason. the Chairman of protected activity; an adverse Board, (3) action; repeatedly urged Electra’s link employment Corn- a causal activity Sharp’s language ad about and Cornwell’s and the ter- protected between the great v. in July See Steiner mination 2002 was too verse action. Co., Operating support Showboat F.3d inference that Cornwell’s com- Cir.1994). 1464(9th have said that We plaints agree. his We caused termination. “[cjausation to establish third sufficient the produce did not evidence war- Cornwell may facie be prima element of the case ranting a retaliation on either trial on the- ... time proximity inferred ory. action al protected
between the and the Sharp that knew argues about legedly retaliatory employment decision.” complaint Cornwell’s to Cottrell before Thomas, Yartzoff (9th Cir.1987). Sharp demotion announced Cornwell’s disparate As in treatment December 2001. Cornwell contends actions, plaintiff may a retaliation use Sharp’s testimony is deposition incon at Douglas McDonnell framework. Id. respect with sistent Potter’s with when wrongful plaintiff discharge 1375. A Sharp had learned that Cornwell com Oregon action common must under law plained Sharp’s alleged Cottrell about showing: employ make that his a similar harassment, and that this sexual inconsis ment because was terminated he resisted tency would permit a reasonable Sears, Holien v. Roebuck discrimination. Sharp conclude that knew about Corn- Co., 76, 90, P.2d 1299- & 298 Or. complaint well’s Cornwell’s before demo 1300(1984). Sharp tion. testified that he first learned granted summary The court district during complaint meeting Cornwell’s judgment against Cornwell’s retaliation But January with Potter in Potter wrongful discharge claims because have” testified that he “must mentioned court concluded Cornwell did district they spoke complaint Sharp when factual whether genuine raise a issue Sharp if late December 2001. Even to Bonnie complaints his Cottrell about differently they spoke recall Potter when Sharp’s of offensive language use complaint, Sharp both about Cornwell’s Sharp’s party, which home they and Potter discussed testified harassment, thought on sexual bordered Sharp complaint Cornwell’s after an caused demotion or Cornwell’s his termi- The nounced demotion. con nation. court The district concluded gruence testimony and Potter’s not contain evidence that record did on this salient that their discussion point, complaint knew about complaint place took af about Cornwell’s him, before demoted and thus Corn- demotion, of any and the absence ter complaint well’s could have caused *17 evidence, far to contrary goes scuttle agree demotion. We that Cornwell’s that his demotion Cornwell’s claim was presented raising no evidence Cornwell retaliatory.12 by that his demotion was caused inference retaliation Regarding Cornwell’s about lan- complaint Sharp’s Cornwell’s termination, Likewise, claims based on his guage. the district con- court ignored argues that the district court gap cluded between that the Cornwell’s testimony Sharp that threat- complaint in 2001 Cornwell’s to Cottrell November testimony plaint January after deposition Cornwell’s on that Cott- before Based demotion, contrary was adjacent Sharp’s, evidence sub- rell's and no office summary judgment. jury opposing In the argues also a reasonable infer mitted could case, jury a reasonable Sharp about circumstances of this Cottrell told Cornwell's However, proposed inference con- complaint. he could not make the testified that trary undisputed the facts. discuss com- and Cottrell did not Cornwell's any ened to fire member of Electra’s man- IV agement team who circumvented affirm We the district court’s enforce- directly to the speak Board of Directors. discovery ment of the cutoff. On the sum- But plain cogent the record shows mary judgment presented record as it was termination, reasons for the communicated court, to the grant district we affirm the of by depart- Electra’s Human Resources summary judgment part and we reverse .in ment, in cooperate Cornwell’s failure to grant part as with the inquiries made Chair- Board specified above. We remand the case for man Potter. The termination recited that trial on the claim that Cornwell’s demotion it was for “actions ... inconsistent with was the result of intentional discrimination management [Cornwell’s] duties as a level based on ” race violation of Title VII. employee.... Cornwell’s failure to re- party Each shall bear its own spond inquiries costs Potter’s falls into that category appeal. contrary and no evidence was raising genuine submitted issue that the part, AFFIRMED in REVERSED in
termination was for other reasons. part, and remanded. argues Cornwell also the district analyzed wrong
court time frame. Ac- BEA, Circuit Judge, concurring: Cornwell, cording to the court should have I concur separately as to Part IILAl/of considered the two or three months be- think opinion1 because I the evidence tween complaint Cornwell’s to the Board of Sharp’s immediate reaction to Corn- February of Directors in 2002 and the enquiry well’s offer to find Cornwell —an beginning of paid Cornwell’s administra- reasonably elsewhere—can be June, tive leave in instead of the seven contradictory seen as Sharp’s assertion months between Cornwell’s initial conver- he wanted to have Cornwell remain with sation with Cottrell and the termination company charge lending. and be letter Electra. But again, Cornwell Hence, the Sharp’s trier of fact can view has offered no evidence to rebut Electra’s business re-assigning related reason for evidence that it fired Cornwell because he Cornwell as a pretext, and can then con give refused to the Board of Directors the sider racial animus as the true motivation proof he possess regarding claimed to em- reassignment or demotion. ployment discrimination at Electra. The Reeves, 148, 120 See 530 U.S. at S.Ct. 2097. district court did not err in concluding that I respectfully disagree majority with too much passed time had between Corn- as to the effect of the other it evidence complaints well’s and his eventual termi- cites as a a finding pretext basis for nation for a reasonable to conclude racial animus. together Taken alone or complaints caused Electra with fire him. the evidence of We hold that Electra is said immedi enti- (1) reaction, judgment tled to ate as matter of law the fact that re- Cornwell was garding wrong- Cornwell’s retaliation and a valued employee- of Electra who knew discharge (2) *18 ful claims. the most lending,2 only about was the U.S. -, join opinion's 1. I in the analy- remainder 163 L.Ed.2d sis. (2006) curiam), (per inapposite is to Corn- Sharp proffer well’s situation. did evi not anything, 2. supports Sharp’s If this evidence dence he demoted Cornwell because proffered rationale that he demoted Cornwell performance problems, Cornwell had or that exclusively so Cornwell could lending lead replacement qualified. was better - Foods, Inc., department. Tyson Ash v. (3) executive, was the African-American America, (4) UNITED of STATES demoted, kept or was
only executive Plaintiff-Appellant, meetings his demotion was of where out does not undermine evi discussed limit to dence that wanted CHEN, Defendant-Appellee. Lin of claim earlier lending. to Absent some discrimination,3 the fact that Corn- racial No. 05-10108. the sole African-American and
well is of Appeals, United States Court provides no executive to be demoted sole Ninth Circuit. that he was demoted because evidence have been the his race. Were Cornwell Argued and Submitted Jan. 2006. it promoted, would executive lead sole Filed March 2006. preferred he being conclusion was be distinguish his must cause of race? One causal effect. To coincidence and
between tend to
think otherwise would insulate action, or explain adverse advance, of his solely because race. about
Similarly, person because a to be
reassigned or demoted is consulted made the determination is does not
before reassignment that the demotion
suggest animus, racial being made
is because pretextual up Sup- reasons.
dressed promoted,
pose he were sole executive prior Would it be
without interview. that he promoted
evidence because was
his race? grant it unnecessary proba-
When evidence, it is
tive effect certain neces- so, to do it
sary not lest another case be to us.
cited back at-, (stating Additionally, There were there part id. is none. See S.Ct. 1195 employer’s such, dispa- to claims of the defense neither claim nor evidence there is plaintiffs-employ- treatment that the rate hiring in the which led had a hand past). performed poorly in the ees had There- singular status. fore, nothing qualifications Cornwell's do Sharp’s proffered rationale de- discredit moting Cornwell.