439 F.3d 1018 | 9th Cir. | 2006
Lead Opinion
Plaintiff-Appellant Raymond Cornwell appeals the district court’s order granting summary judgment to defendants-appel-lees Electra Central Credit Union and Jim Sharp, and dismissing Cornwell’s retaliation and race discrimination claims under 42 U.S.C. § 1981, Title VII, and Oregon law. Cornwell also appeals the district court’s order denying his motion to reopen discovery so that Cornwell could depose an additional witness to oppose summary judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part and reverse in part.
I
Electra Central Credit Union (Electra) is a not-for-profit cooperative that provides financial services, including banking and lending, to its members. On August 30, 1993, Electra hired Raymond Cornwell, who is African-American, as its Director of Lending. Cornwell supervised the nine employees who worked in Electra’s loan department and managed Electra’s lending operations until Cornwell was promoted to Vice President and Chief Operating Officer in 2000. Thereafter, Cornwell managed Electra’s branches and cash operations in addition to Electra’s lending business.
During Cornwell’s stewardship of Electra’s lending operations, the value of Electra’s loan portfolio grew from just over $65 million in December 1997 to more than $85 million in December 2000. Although the portfolio’s value decreased by about four percent, to about $80 million, between December 2000 and December 2001, the record on summary judgment, viewed most favorably to Cornwell, does not suggest that a deficiency in Cornwell’s management caused this decrease.
When Cornwell joined Electra, it sold financial products individually. For example, a member who wanted to purchase both a home loan and a checking account would buy the checking account from one of Electra’s employees and the home loan from another. In 1999, Electra’s management team and its Board of Directors adopted a policy to create a “sales culture,” in which each of Electra’s front-line employees would be able to sell every product that Electra offered.
Electra’s transition to a sales culture was ongoing when, on September 17, 2001, Electra hired Jim Sharp, a Caucasian, as Chief Executive Officer. At his deposition, Cornwell testified that during the early months of Sharp’s tenure, Sharp excluded Cornwell from meetings at which the management team discussed issues within the scope of Cornwell’s responsibilities as Vice President and Chief Operating Officer. Cornwell also testified by deposition that Sharp had said he would fire any member of the management team who “goes to the board and doesn’t talk to me first about it....”
On November 9, 2001, during a meeting of Electra’s management team at Sharp’s home, Sharp made comments about women that Cornwell considered “unprofessional” and “close to sexual harassment.” Three days later, Cornwell told Bonnie Cottrell, Electra’s Vice President of Human Resources, about Sharp’s comments. Cornwell said that he thought Sharp’s be
In late November or early December 2001, Sharp informed the management team that he intended to reorganize Electra’s operations to facilitate the transition to a sales culture, but Sharp did not specify what changes he was considering. Although Sharp discussed his reorganization plans with members of Electra’s management team over the next few weeks, Corn-well testified that Sharp did not include Cornwell in these meetings, or notify him about them, even though a reorganization would affect Cornwell’s responsibilities and opportunities.
On the afternoon of December 12, Cornwell asked Sharp what organizational changes he planned to make. Sharp said that he intended to create a new management position, Vice President of Sales and Branch Operations; to promote Virginia Hall, a Caucasian, to fill that position; and to reassign responsibility for Electra’s branches and cash operations to Hall, who previously had not been a member of Electra’s management team. Sharp also said that he intended to eliminate the title of Chief Operating Officer and to change Cornwell’s title to Vice President of Lending. As a result of these changes, Cornwell would retain responsibility for Electra’s lending operations but lose responsibility for Electra’s branches and cash operations and he would manage fewer employees. Sharp explained to Cornwell that Sharp wanted Cornwell to focus on Electra’s lending operations to correct problems with the sales culture and with lending, including the decrease in the value of Electra’s loan portfolio. Cornwell asked why he had not been included in the reorganization planning process. Sharp did not answer, but offered to help Cornwell find employment with a different firm in the financial industry if Cornwell did not want to continue working for Electra.
The next day, Sharp announced the reorganization publicly during a management team meeting. Cornwell was the only African American member of the management team, and the only executive whom Sharp demoted. Sharp asked each person at the meeting to commit to support the reorganization. Cornwell felt “blind-sided,” “embarrassed,” and “humiliated” by Sharp’s request that Cornwell publicly endorse his own demotion. Every member of the management team agreed to support the reorganization, except Cornwell, who said that he supported Electra, but not Sharp’s “process” or “system.”
After this meeting, Cornwell again complained to Bonnie Cottrell about Sharp’s behavior at the November 9 meeting, and now also about the reorganization. Corn-well asked Cottrell whether race had played a role in Sharp’s decision to demote Cornwell. Cottrell responded that she did not think that race was a factor in Sharp’s reorganization process but Cott-rell suggested that Cornwell .express his concerns to Electra’s Board of Directors. The record on summary judgment does not indicate affirmatively that Cottrell investigated Cornwell’s concerns about race discrimination.
Soon thereafter, Cornwell spoke to Bob Pearson, a member of Electra’s Board of
No. What I told him was that I was unsure as to what the motives — what motives were driving Jim Sharp, and I asked a question, I don’t know if it’s the color of my skin, I don’t know if it’s the fact that he just doesn’t like me, I don’t know whether it’s the fact that I’m a man and not a woman, I said, I’m not sure what’s driving him in this situation, I just feel that it’s wrong.
Cornwell also told Pearson about Sharp’s alleged inappropriate sexual comments. According to Cornwell, Pearson responded that the Board would “investigate” and “find out” Sharp’s motives for the demotion.
On February 13, 2002, Cornwell met with Bob Potter, the chairman of Electra’s Board of Directors, regarding the concerns Cornwell expressed to Pearson when they met in December.' Potter gave Cornwell a memorandum,' in which the Board of Directors “ratified” Sharp’s reorganization and endorsed Sharp’s authority to alter Electra’s management structure to improve the credit union’s financial performance. This memorandum advised Cornwell that the Board of Directors had instructed Sharp not to discuss personal private or sexual issues with Electra’s employees unless there was a business-related reason to do so. Although the memorandum purported to resolve Cornwell’s concerns, it did not address in any way Sharp’s motivation for demoting Cornwell.
During their meeting, Cornwell and Potter discussed the motivation underlying Sharp’s decision to demote Cornwell. Cornwell testified that:
[Potter] indicated that he did not question [Sharp’s] motives. I said, I’m concerned whether the motives are illegal or not. I said, is it because I said something in November about his sexual harassment issues, is it because of the color of my skin, is it because he doesn’t like me, and I said all these things to [Potter] direct. [Potter] said, you’re raising a different issue now and it’s not one that we address here.
Cornwell’s provocative questions, viewed in the light most favorable to Cornwell in this summary judgment setting, fairly raised racial discrimination as an issue, and yet the summary judgment record does not show whether Potter or the Board of Directors investigated Cornwell’s concerns that Sharp’s motivation for demoting Cornwell was illegal. Potter did, however, send 'Cornwell a letter in June 2002, in which Potter asserted to Cornwell that “[y]our race has never been a factor in any decisions regarding your employment.” The letter pointed to Electra’s nondiscrimination policy and to Cornwell’s conversation with Cottrell in December 2001, in which she too had expressed her opinion that Cornwell’s race was not a factor in his demotion.
On May 23, 2002, Cornwell wrote a letter to Potter and the Board of Directors, a copy of which Cornwell sent to Sharp. In it, Cornwell proposed a severance package, including two years’ salary. In exchange, Cornwell would “sign a release,” presumably absolving Electra from liability for employment discrimination. 1 Cornwell’s letter also stated that he had a diary that documented “a pattern of racist and sexist disparate treatment and the creation of a hostile work environment” at Electra.
Potter attempted to meet with Cornwell regarding Cornwell’s severance proposal on June 19, but Cornwell cancelled the meeting because, as he testified, he wanted a lawyer to attend the meeting with him and Cornwell had not yet retained one. That same day, Potter ■ sent Cornwell a letter outlining Electra’s settlement offer and suggesting specific times at which Cornwell and Potter could meet before June 25. The letter instructed Cornwell that he had a duty as a management level employee to give the' Board of Directors any evidence in his possession regarding employment discrimination at Electra.
On June 21, Potter sent an email to Cornwell in which Potter urged Cornwell again to schedule a meeting with Potter before June 25. The email repeated Potter’s demand that Cornwell turn over his evidence of employment discrimination to the Board of Directors. On June 24, Cornwell sent an email to Potter, explaining that Cornwell would not be able to meet with Potter before June 25. On July 3, Bonnie Cottrell sent Cornwell a letter terminating his employment at Electra for “actions ... inconsistent with [Cornwell’s] duties as a management level employee” After the termination of Corn-well’s employment, Electra hired Mickey Beard, an African-American woman, as branch manager. Sharp was the “ultimate decision-maker” regarding Beard’s employment at Electra.
On May 22, 2003, Cornwell commenced this civil action. On December 10, 2003, the parties and the district court participated in a case-scheduling teleconference. During this call, ' defense counsel announced an intention to file motions for summary judgment and the parties said that they were agreeable to the district court’s scheduling trial for the week of June 29, 2004. The district court then inquired whether the parties could complete discovery by December 15, 2003, the scheduled discovery cutoff date. Corn-well’s counsel responded that he had “completed discovery.” Subsequently, the district court extended discovery for an additional month, after which both Electra and Sharp filed motions for summary judgment and documents in support thereof, including a Concise Statement of Facts.
In his Reply to Defendant’s Concise Statement of Facts, Cornwell submitted as a material fact a statement allegedly made by Sharp, referring to one of Electra’s African-American employees as “nigger bitch.” Cornwell did not offer deposition or affidavit evidence to support the statement. Counsel for the defendants moved to strike the unsupported statement pursuant to Local Rule 56(c)(1), which requires evidentiary support for every “fact” included in a Concise Statement of Facts. Cornwell then moved to reopen discovery to take the deposition of Sharp’s former assistant, Karen Smith, who allegedly overheard Sharp make the comment. In support of his motion, Cornwell’s counsel offered a declaration stating that Smith told Cornwell’s counsel that she had heard Sharp refer to an African-American employee as “that nigger bitch.” The declaration also stated that Cornwell’s counsel requested that Smith provide an affidavit or declaration recounting Sharp’s alleged statement, but Smith declined because she
II
We first address Cornwell’s contention that the district court erred by denying Cornwell’s motion to reopen discovery to take Karen Smith’s deposition. We review a district court’s order denying a motion to reopen discovery for abuse of discretion. Panatronic USA v. AT & T Corp., 287 F.3d 840, 846 (9th Cir.2002); Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151, 1161 n. 6 (9th Cir.2001). In this context, “[a] district court abuses its discretion only if ‘the movant diligently pursued previous discovery opportunities, and if the movant can show how allowing additional discovery would have precluded summary judgment.’ ” Panatronic, 287 F.3d at 846 (quoting Chance, 242 F.3d at 1161 n. 6); Qualls ex rel. Qualls v. Blue Cross of California, Inc., 22 F.3d 839, 844(9th Cir.1994). We have previously held that a movant did not diligently pursue discovery where he failed to depose a witness during the twenty-seven months between the start of litigation and the discovery cutoff, Hauser v. Farrell, 14 F.3d 1338, 1340-1341 (9th Cii.1994), overruled on other grounds by Cent. Bank v. First Interstate Bank, 511 U.S. 164, 173, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994), where he failed to conduct discovery despite a one month continuance, Mackey v. Pioneer Nat’l Bank, 867 F.2d 520, 524 (9th Cir. 1989), and where he “had ample opportunity to conduct discovery,” but failed to do so. Panatronic, 287 F.3d at 846.
Cornwell contends that his attempt to obtain Ms. Smith’s affidavit after the discovery termination date excuses Corn-well’s failure to do so beforehand. He stresses that Ms. Smith’s deposition would have taken less than thirty minutes, and that her testimony would have been highly probative, particularly in light of our opinion describing the racial epithet allegedly used by Sharp as “perhaps the most offensive and inflammatory racial slur in English.” Swinton v. Potomac Corp., 270 F.3d 794, 817 (9th Cir.2001) (citing Merriam-Webster’s Collegiate Dictionary 784 (10th ed.1993)) (internal quotation marks omitted). Cornwell also suggests that his decision to forgo Ms.-Smith’s deposition and affidavit while discovery was ongoing was reasonable, given that Cornwell thought that he could subpoena Ms. Smith’s testimony at trial notwithstanding her reluctance to testify.
We find these arguments unpersuasive. Cornwell must have learned about Smith’s allegation before October 2003, because Plaintiffs counsel asked Bonnie Cottrell to verify the allegation during her deposition on October 1. Two months later, however, in December 2003, Plaintiffs counsel told the district court that he had “completed discovery,” even though he had neither obtained Ms. Smith’s affidavit, nor taken her deposition, despite the potential importance of her testimony.
Because discovery problems are presented in every case, and because in many cases discovery must close before a district court can consider dispositive motions with all evidence in hand, district courts need to be able to control or limit discovery in order to advance the progress of their trial dockets. The use of orders establishing a firm discovery cutoff date is commonplace, and has impacts generally helpful to the orderly progress of litigation, so that the enforcement of such an order should come as a surprise to no one. As we have emphasized more generally, “[district courts have ‘wide latitude in controlling discovery, and [their] rulings will not be overturned in the absence of a clear abuse of discretion.’ ” California v. Campbell, 138 F.3d 772, 779 (9th Cir.1998) (quoting Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1416-17 (9th Cir.1987) (second alteration in original)). We decline to limit the district court’s ability to control its docket by enforcing a discovery termination date, even in the face of requested supplemental discovery that might have revealed highly probative evidence, when the plaintiffs pri- or discovery efforts were not diligent. We hold that the district court was well within its sound discretion when it denied Plaintiffs motion to reopen discovery.
Ill
We turn to Cornwell’s contention that the record demonstrates a genuine issue of material fact regarding his race discrimination and retaliation claims under Title VII, 42 U.S.C. § 1981, and Oregon law.
A
Title VII makes it unlawful for an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race....” 42 U.S.C. § 2000e-2(a)(1) (2005). A person suffers disparate treatment in his employment “ ‘when he or. she is singled out and treated less favoi'ably than others similarly situated on account of race.’ ” See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1121(9th Cir.2004) (internal quotation marks omitted) (quoting Jauregui v. City of Glendale, 852 F.2d 1128, 1134 (9th Cir.1988)). To establish a prima facie case under Title VII, a plaintiff must offer proof: (1) that the plaintiff belongs to a class of persons protected by Title VII; (2) that the plaintiff performed his or her job satisfactorily; (3) that the plaintiff suffered an adverse employment action; and (4) that the plaintiffs employer treated the plaintiff differently than a similarly situated employee who does not belong to the same protected class as the plaintiff. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Establishing a prima facie case under McDonnell Douglas creates a presumption that the plaintiffs employer undertook the challenged employment action because of the plaintiffs race. See id. To rebut this presumption, the defendant must produce admissible evidence showing that the defendant undertook the challenged employment action for a “legitimate, nondiscriminatory reason.” Id. If the defendant does so, then “the presumption of discrimination ‘drops out of the picture’ ”and the plaintiff may defeat summary judgment by satisfying the usual standard of proof required in civil cases under Fed.R.Civ.P. 56(c). Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). In the context of employment discrimination law under Title VII, summary judgment is not appropriate if, based on the evidence in the record, a reasonable jury could conclude by a preponderance of the evidence that the defendant undertook the challenged employment action because of the plaintiffs race. See Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994).
The Supreme Court has identified two methods by which a disparate treatment plaintiff can meet the standard of proof required by Fed.R.Civ.P. 56(c). First, a disparate treatment plaintiff may offer evidence, direct or circumstantial, “that a discriminatory reason more likely motivated the employer” to make the challenged employment decision. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Alternatively, a disparate treatment plaintiff may offer evidence “that the employer’s proffered explanation is unworthy of credence.” Id. Refexring to the second method, many 'of our cases state that a plaintiff may defeat a defendant’s motion for summary judgment by offering proof that the employer’s legitimate, nondiscriminatory reason is actually a pretext for racial discrimination.
Although some plaintiffs might discover direct evidence that a defendant’s nondiscriminatory justification for an employment decision is a pretext, most will not. Defendants who articulate a nondiscriminatory explanation for a challenged employment decision may have been careful to construct an explanation that is not contradicted by known direct evidence. To establish that a defendant’s nondiscriminatory explanation is a pretext for discrimination, plaintiffs may rely on circumstantial evidence, which we previously have said must be “specific” and “substantial” to create a genuine issue of material fact.
The notion of a required specificity of evidence to defeat summary judgment has some grounding in Fed.R.Civ.P. 56(e) which, in dealing with the form of affidavits submitted opposing summary judgment, requires that “the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” (Emphasis added.) Thus, we have equated “specific, substantial” evidence with evidence sufficient to raise a genuine issue of material fact under Rule 56(c).
The Supreme Court’s decision in Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003), supports the principle that a plaintiff may rely successfully on either circumstantial or direct evidence to defeat a motion for summary judgment in a civil action under Title VII. See Costa, 539 U.S. at 92, 123 S.Ct. 2148(holding that a plaintiff does not have to produce direct evidence of discrimination to obtain a mixed-motive jury instruction under Title VII, and suggesting that a plaintiff suing under Title VII may prove his or her case using either circumstantial or direct evidence). In Costa, the Supreme Court affirmed a decision by an en banc panel of this court in which we held that a district court did not abuse its dis
In McGinest, we applied Costa to the question presented by this appeal: what evidence must a plaintiff alleging disparate treatment offer to survive summary judgment? McGinest alleged that GTE failed to promote him because of his race, and also to retaliate against him for opposing GTE’s discrimination, while GTE claimed that it failed to promote McGinest because of a hiring freeze. See McGinest, 360 F.3d at 1122-23. Reading Costa to require that “circumstantial and direct evidence should be treated alike,” we held that- McGinest offered sufficient evidence to defeat summary judgment, even though McGinest’s evidence was. circumstantial. Id. at 1122-24. Because the only issue remaining in a disparate treatment case after the. defendant has rebutted the McDonnell Douglas presumption is “discrimination vel non,’’ we said:
in this case it is not particularly significant whether McGinest relies on the McDonnell Douglas presumption or, whether he relies on direct or circumstantial evidence of discriminatory intent to meet his burden. Under either approach, McGinest must produce some evidence suggesting that GTE’s failure to promote him was due in part or whole to discriminatory intent, and so, must counter GTE’s explanation that a hiring freeze accounted for its failure to promote him.
Mat 1123.
In view of the Supreme Court’s recognition in Costa that circumstantial evidence may be “more certain, satisfying and persuasive than direct evidence,” and McGinest’s holding that a disparate treatment plaintiff can defeat a motion for summary judgment relying on circumstantial evidence, we conclude that in the context of summary judgment, Title VII does not require a disparate treatment plaintiff relying on circumstantial evidence to produce more, or better, evidence than a plaintiff who relies on direct evidence. See Costa, 539 U.S. at 100, 123 S.Ct. 2148 (citation omitted); McGinest, 360 F.3d at 1124.
Although there may be some tension in our post-Costa cases on this point — several of our cases decided after Costa repeat the Godwin requirement that a plaintiffs circumstantial evidence of pretext must be “specific” and “substantial”
1
The district court concluded that “Cornwell ha[d] not produced specific and substantial evidence to raise a factual issue that the true reason for his demotion or termination was race discrimination or that the stated reasons were false.” We disagree.
Cornwell did not oppose summary judgment by alleging merely that Defendants’ justification for Cornwell’s demotion was unworthy of credence. Rather, Cornwell offered circumstantial evidence from which a reasonable jury could conclude that Defendants demoted Cornwell because Corn-well is African-American. Cornwell also offered “specific” and “substantial” evidence that Defendants’ explanation for Cornwell’s demotion was a pretext for race discrimination. Because Cornwell produced evidence that created a factual question whether his demotion resulted from such discrimination, Defendants were not entitled to summary judgment regarding Cornwell’s discrimination claims based on his demotion. See Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 850 (9th Cir.2004).
The district court concluded correctly that Cornwell established a prima facie race discrimination claim under McDonnell Douglas. Cornwell offered proof: (1) that he is African-American, a protected. class under Title VII; (2) that he performed his job adequately; (3) that he was demoted, an adverse employment action; and (4) that he was treated differently than similarly situated white employees who were not demoted. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. As a result, Cornwell was entitled to a presumption that Defendants demoted him because Cornwell is African-American. See id.
We disagree, however, with the district court’s conclusion that Cornwell did not produce sufficient evidence to create a genuine issue of material fact as to whether Defendants demoted Cornwell because he is African-American. Viewed most favorably to Cornwell, the record would permit a jury’s inference that Sharp treated Cornwell differently than Sharp treated white executives because of Cornwell’s race. Cornwell, the only African-American member of Electra’s management team, was the only senior executive whom Sharp demoted. Cornwell testified by deposition that between Sharp’s arrival in September 2001 and Cornwell’s demotion in December 2001, Sharp excluded Corn-well from management meetings that involved topics within Cornwell’s scope of responsibility.
Likewise, a reasonable jury could infer from the admissible evidence opposing summary judgment that Defendants’ explanation for Cornwell’s demotion was a pretext for discrimination. Indeed, when Cornwell asked Sharp why Cornwell had not been involved in the reorganization planning process, Sharp’s answer was to offer to help Cornwell find a job with a different financial services firm if he was unhappy with Sharp’s approach. A reasonable jury might conclude that Sharp’s perhaps too ready willingness to help Cornwell leave Electra was in tension with Defendants’ justification for Cornwell’s demotion. If Sharp truly believed that Corn-well was the best qualified executive to manage Electra’s lending business, and if Sharp demoted Cornwell to reshape his focus exclusively on lending, as-Sharp testified, then a reasonable jury might consider Sharp’s eagerness to help Cornwell exit inconsistent; because Sharp did not pursue the- alternative' of seeking to allay Corn-well’s concerns and soften his negative reaction to .the reorganization by including him in the decision-making process.
Sharp’s decision to promote a less experienced white employee to manage Electra’s branch operations could also support
If one credits Cornwell’s deposition testimony, it would be possible to conclude that Electra never addressed Cornwell’s expressed concern that his demotion was the result of race discrimination. Corn-well testified that he asked both Pearson and Potter whether race played a role in Sharp’s decision to demote Cornwell. Cornwell told Pearson that Cornwell was “unsure as to what the motives — what motives were driving Jim Sharp ... I asked a question, I don’t know if it’s the color of my skin.... ” Similarly, Cornwell informed Potter that Cornwell was “concerned whether the motives [underlying Corn-well’s demotion] are illegal or not .... [i]s it because of the color of my skin ... ?” Cornwell questioned the motives underlying Sharp’s decision to demote Cornwell, specifically whether they were tainted by race discrimination. The Board of Directors’s response, however, addressed merely Sharp’s authority to reorganize Electra’s business, which Cornwell never challenged. Cornwell testified that Potter responded to Cornwell’s question by saying “you’re raising a different issue now [than Sharp’s authority to reorganize Electra’s business] and it’s not one that we address here.” Electra never responded to the substance of Cornwell’s concern that race discrimination was afoot, apart from Potter’s letter stating that Bonnie Cottrell held the opinion that race did not play a role in Cornwell’s demotion.
As the Supreme Court has said: “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505. We hold that Defendants are not entitled to judgment as a matter of law on the issue whether Sharp’s demotion of Cornwell offended Title VII’s prohibition of intentional racial discrimination.
2
The district court concluded that Cornwell did not produce evidence sufficient to create a genuine issue of material fact whether Defendants fired Cornwell because he is African-American. We agree.
Cornwell established a prima facie case regarding his termination. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. Defendants then offered admissible evidence that they terminated Cornwell’s employment for a legitimate nondiscriminatory reason. Potter, the Chairman of Electra’s Board, repeatedly urged Corn-well to schedule a meeting to discuss Cornwell’s requests for severance. Potter requested that Cornwell produce any documentation of racial discrimination at Electra.
These were legitimate requests by the Chairman of Electra’s Board, and Corn-well disregarded them at his own corporate peril. Defendants adequately rebutted the McDonnell Douglas presumption.
There' was presented striking evidence that the relationship had deteriorated to the point that Cornwell declined to cooperate with Potter’s informational requests. By contrast, Cornwell, in opposing summary judgment, did not produce sufficient evidence to create a genuine issue of material fact whether Defendants fired him on the basis of race, rather than because Cornwell would not cooperate with the Board’s request for information. Cornwell produced no evidence undermining the credibility of Defendants’ explanation that the termination of Cornwell’s employment at Electra followed as a result of Corn-well’s failure to respond in a timely way to information requests tendered to him from the highest level of the corporation. We hold that the evidence produced by Corn-well does not create a genuine issue of material fact as to whether Defendants fired him because Cornwell is African-American.
B
We turn to Cornwell’s retaliation claims. Cornwell appeals the district court’s order granting summary judgment to Defendants and dismissing Cornwell’s retaliation claims under Title VII, and ORS 659A.030, as well as Cornwell’s common law wrongful discharge claim under Oregon law.
To establish a prima facie case of retaliation, a plaintiff must demonstrate: (1) a protected activity; (2) an adverse employment action; and (3) a causal link
The district court granted summary judgment against Cornwell’s retaliation and wrongful discharge claims because the district court concluded that Cornwell did not raise a genuine factual issue whether his complaints to Bonnie Cottrell about Sharp’s use of offensive language at Sharp’s home party, which Cornwell thought bordered on sexual harassment, caused Cornwell’s demotion or his termination. The district court concluded that the record did not contain evidence that Sharp knew about Cornwell’s complaint before Sharp demoted him, and thus Corn-well’s complaint could not have caused Cornwell’s demotion. We agree that Cornwell presented no evidence raising an inference that his demotion was caused by Cornwell’s complaint about Sharp’s language. Likewise, the district court concluded that the gap between Cornwell’s complaint to Cottrell in November 2001 about Sharp’s language and Cornwell’s termination in July 2002 was too great to support an inference that Cornwell’s complaints caused his termination. We agree. Cornwell did not produce evidence warranting a trial on retaliation on either theory.
Cornwell argues that Sharp knew about Cornwell’s complaint to Cottrell before Sharp announced Cornwell’s demotion on December 13, 2001. Cornwell contends that Sharp’s deposition testimony is inconsistent with Potter’s with respect to when Sharp learned that Cornwell had complained to Cottrell about Sharp’s alleged sexual harassment, and that this inconsistency would permit a reasonable jury to conclude that Sharp knew about Corn-well’s complaint before Cornwell’s demotion. Sharp testified that he first learned of Cornwell’s complaint during a meeting with Potter in January 2002. But Potter testified that he “must have” mentioned the complaint to Sharp when they spoke in late December 2001. Even if Sharp and Potter recall differently when they spoke about Cornwell’s complaint, both Sharp and Potter testified that they discussed Cornwell’s complaint after Sharp announced Cornwell’s demotion. The congruence of Sharp’s and Potter’s testimony on this salient point, that their discussion about Cornwell’s complaint took place after his demotion, and the absence of any contrary evidence, goes far to scuttle Cornwell’s claim that his demotion was retaliatory.
Regarding Cornwell’s retaliation claims based on his termination, Cornwell argues that the district court ignored Cornwell’s testimony that Sharp threat
Cornwell also argues that the district court analyzed the wrong time frame. According to Cornwell, the court should have considered the two or three months between Cornwell’s complaint to the Board of Directors in February 2002 and the beginning of Cornwell’s paid administrative leave in June, instead of the seven months between Cornwell’s initial conversation with Cottrell and the termination letter from Electra. But again, Cornwell has offered no evidence to rebut Electra’s evidence that it fired Cornwell because he refused to give the Board of Directors the proof he claimed to possess regarding employment discrimination at Electra. The district court did not err in concluding that too much time had passed between Corn-well’s complaints and his eventual termination for a reasonable jury to conclude that Cornwell’s complaints caused Electra to fire him. We hold that Electra is entitled to judgment as a matter of law regarding Cornwell’s retaliation and wrongful discharge claims.
IV
We affirm the district court’s enforcement of the discovery cutoff. On the summary judgment record as it was presented to the district court, we affirm the grant of summary judgment .in part and we reverse the grant of summary judgment in part as specified above. We remand the case for trial on the claim that Cornwell’s demotion was the result of intentional discrimination based on race in violation of Title VII.
Each party shall bear its own costs on appeal.
AFFIRMED in part, REVERSED in part, and remanded.
. Because we are reviewing a district court’s order granting summary judgment, our statement of the facts accepts Cornwell’s version of events where the record shows dispute, and our statement gives to Cornwell all reasonable inferences in his favor. See United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.2003).
. At his deposition, Sharp testified that he did not tell Cornwell about Sharp’s planned reorganization because "I simply knew that he wouldn’t agree with me.” Sharp also testified that Cornwell was the most qualified of Electra’s employees to manage Electra's lending business.
. Although we reject Cornwell’s discovery argument due to his failure to. demonstrate diligence, we note that evidence of Sharp's use of a racial slur would have weighed strongly against summary judgment. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1116 n. 9 (9th Cir.2004) ("[A] trier of fact may certainly conclude that, in light of[the defendant’s] use of a racial slur, his other abusive remarks to [an employee] were also motivated by racial hostility.”); Mustafa v. Clark County School
. We review a district court's order granting summary judgment de novo. Delta Savings Bank v. United States, 265 F.3d 1017, 1021 (9th Cir.2001).
. The McDonnell Douglas framework is also applicable to employment discrimination claims under 42 U.S.C. § 1981. See Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), reversed on other grounds by the Civil Rights Act of 1991, Pub.L. No. 102-166, § 101, 105 Stat. 1071, 1071-72 (1991).
. A plaintiff may not defeat a defendant's motion for summary judgment merely by deny
. Alternatively, a plaintiff could offer direct evidence of an employer’s discriminatory intent, for example an employer's use of a racial epithet. But such evidence would not be direct evidence that the employer’s explanation for its employment decision is false; rather a jury could infer from the plaintiff's direct evidence, the racial epithet, that the employer’s justification is a pretext.
. For example, in Steckl v. Motorola, Inc., 703 F.2d 392 (9th Cir. 1983), we concluded that a plaintiff "failed to produce any specific, substantial evidence of pretext” where the plaintiff "produced no facts which, if believed, would have shown pretext and- thus tendered an issue for trial." Id. at 393 (emphasis added). Similarly, in Wallis we said that “when evidence to refute the defendant’s legitimate explanation is totally lacking, summary judgment is appropriate even though plaintiff may have established a minimal prima facie case based on a McDonnell Douglas type presumption.” Wallis, 26 F.3d at 890-91 (emphasis added).
. See Dominguez-Curry v. Nev Transp. Dep’t, 424 F.3d 1027, 1038 (9th Cir.2005) (noting that "the district court erred in requiring that Dominguez’s evidence be both specific and substantial because such a requirement only applies to circumstantial, not direct, evidence of discriminatory motive”); Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005) (stating that the "distinction between
. Cornwell testified by deposition that Sharp held meetings about the reorganization "with Cindy, and Lesly, Virgina, Rob, but none of those was I included in, nor was I even informed that the meetings took place, and yet they were concerning an eventual move or job change for me.”
. Potter's reference to Cottrell’s opinion does not have a commanding weight in the summary judgment context, given that the record does not indicate affirmatively that Cottrell investigated whether race discrimination motivated Sharp to demote Cornwell.
. Based on deposition testimony that Cott-rell's office was adjacent to Sharp’s, Cornwell also argues that a reasonable jury could infer that Cottrell told Sharp about Cornwell's complaint. However, Sharp testified that he and Cottrell did not discuss Cornwell's complaint before January 2002, after Cornwell’s demotion, and no contrary evidence was submitted opposing summary judgment. In the circumstances of this case, a reasonable jury could not make the proposed inference contrary to the undisputed facts.
Concurrence Opinion
concurring:
I concur separately as to Part IILAl/of the opinion
I respectfully disagree with the majority as to the effect of the other evidence it cites as a basis for a finding of pretext or racial animus. Taken alone or together with the evidence of Sharp’s said immediate reaction, the fact that (1) Cornwell was a valued employee- of Electra who knew the most about lending,
Similarly, because a person about to be reassigned or demoted is not consulted before the determination is made does not suggest that the reassignment or demotion is being made because of racial animus, dressed up in pretextual reasons. Suppose he were the sole executive promoted, without a prior interview. Would it be evidence that he was promoted because of his race?
When it is unnecessary to grant probative effect to certain evidence, it is necessary not to do so, lest in another case it be cited back to us.
. I join in the remainder the opinion's analysis.
. If anything, this evidence supports Sharp’s proffered rationale that he demoted Cornwell so Cornwell could lead exclusively the lending department. Ash v. Tyson Foods, Inc., - U.S. -, 126 S.Ct. 1195, 163 L.Ed.2d 1195 (2006) (per curiam), is inapposite to Corn-well’s situation. Sharp did not proffer evidence that he demoted Cornwell because Cornwell had performance problems, or that Cornwell’s replacement was better qualified.
. There is none. Additionally, were there such, there is neither claim nor evidence that Sharp had a hand in the hiring which led to Cornwell’s singular status.
