Aimee Greene v. Buckeye Valley Fire Dept

625 F. App'x 319

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 30, 2015
• Docket: 13-16102
• Status: Unpublished

Opinion

MEMORANDUM **

Plaintiff Aimee- Greene sued Buckeye Valley Fire Department and its individual officers (“Defendants”) under Title VII of the Civil Rights Act of 1964, alleging gender discrimination and. retaliation, and under 42 U.S.C. § 1983, alleging denial of equal protection. The district court granted Defendants’ motion for summary judgment, and Plaintiff appeals. We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, Vasquez v. County of Los Angeles, 349 F.3d 634, 639 (9th Cir.2004), we affirm in part, reverse in part, and remand.

1. The district court did not err when it concluded that Plaintiffs Title VII claims arising out of “discrete acts of discrimination” that occurred before February 3, 2010, are time-barred. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (stating rule). The district court properly applied 42 U.S.C. § 2000e-5(e)(1), which sets forth the relevant , limitations period. Alleged discriminatory acts that occurred before February 3, 2010, may, however, be used as background evidence to support Plaintiffs timely claims. Morgan, 536 U.S. at 113, 122 S.Ct. 2061.

Moreover, Plaintiff may sue directly under § 1983 for alleged discriminatory acts that occurred less than two years before she filed her complaint. See Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 974 (9th Cir.2004); Ariz.Rev.Stat. § 12-542 (establishing two-year statute of limitations for personal injury 'claims’in Arizona).

2. The district court erred when it granted Defendants’ motion for summary judgment on Count I, Plaintiffs claim for gender discrimination in violation of 42 U.S.C. § 2000e-2(a)(1), except to the extent that the court entered summary judgment for Defendants Benbow and Alexander in their individual capacities. See Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1179 (9th Cir.2003) (holding that Title VII does not provide for a damages claim against supervisors or fellow employees). Plaintiff presented sufficient evidence to create’a genuine dispute-of material fact as to whéther Defendants’ proffered nondiscriminatory reasons for failing to promote her- to full-time firefighter- were pretextual. See Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir.2005): (describing, the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). She presented evidence, for example, that a number of the captains, battalion chiefs, and crew members at' - Buckeye Valley Fire Department expressed hostility toward Plaintiff because of .her sex. She also presented -evidence that the prioritized hiring lists used to make -full-time-firefighter promotion decisions are generated' almost exclusively through - input from thóse same captains, battalion chiefs, and crew" members. That evidence, taken together, is sufficient to show a “nexus’-’ between the alleged discrimination and the subsequent' promotion decision. See Vasquez, 349 F.3d at 640 (requiring such a nexus).

Plaintiff did not, however, present sufficient evidence to create a genuine dispute of material fact : with respfect to whether Defendants’ proffered nondiscriminatory reasons for failing to promote her to acting captain or captain were pretextual. As to acting captain, those decisions were made by the Assistant Chief and Fife Chief, neither of whom were shown to have shared the discriminatory views of Plaintiffs other colleagues. Moreover, the decisions were made from an objective skills assessment, not a subjective prioritized hiring list; the men who were selected for acting captain positions scored well in one of the skills assessments. As to captain, those decisions were made by the Buckeye Valley Fire Department’s District Board, independent of any alleged discriminatory conduct by individual officers. See id. (concluding that discriminatory remarks by subordinates cannot be imputed to independent and legitimate employment decisions).

3. The district court erred * in granting Defendants’ motion for summary-judgment on Count IV, retaliation. 'When evaluating the evidence at the summary judgment stage, “the district court may not disregard a piece of evidence ... solely based on its self-serving nature.” Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497-98 (9th Cir.2015). Here, the court improperly rejected Plaintiffs testimony that, like her, other male reserves had not completed required training programs, yet they remained on active status while she was placed on inactive leave status; Plaintiffs testimony constitutes direct evidence of pretext sufficient to prevail, on Defendants’ motion.

4. As noted above, the record does not show that the Assistant Chief or the Fire Chief shared the discriminatory views of others in the Department. But the record does permit an inference that they knew of the pervasive discriminatory attitudes of others in the department and knowingly failed to prevent discriminatory or retaliatory failures to promote. Because Plaintiff presented sufficient evidence to create genuine disputes of material fact as to Defendants’ intent to discriminate against her under Title VII, she also did so under § 1983. Sischo-Nownejad, v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1113 (9th Cir.1991).

AFFIRMED in part, REVERSED in part, and REMANDED. Costs on appeal awarded to Plaintiff-Appellant.

** This disposition is not appropriate for publi- * cation and is not precedent except as provided by 9th Cir. R. 36-3. •