Brooks v. Pima, County of

• Court: District Court, D. Arizona
• Decided: September 28, 2022
• Docket: 4:20-cv-00033
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Kristina R Brooks, No. CV-20-00033-TUC-JGZ

10 Plaintiff, ORDER

11 v.

12 County of Pima,

13 Defendant. 14 15 In this Title VII discrimination action, Plaintiff Kristina Brooks asserts five claims 16 of failure to promote based on gender against Defendant Pima County. Now pending before 17 the Court are the parties’ cross motions for summary judgment. Pima County filed a motion 18 for summary judgment on all five claims. (Doc. 63.) Brooks filed a cross motion for partial 19 summary judgment on three claims. (Doc. 82.) The motions are fully briefed.1 For the 20 following reasons, the Court will grant Pima County’s motion in part, and deny Brooks’ 21 motion. 22 I. Background 23 On October 28, 2013, Pima County IT Department hired Brooks as an IT- 24 Applications Analyst. (Doc. 66, ¶ 1.)2 Brooks received satisfactory or positive performance

25 1 Pima County’s cross motion for summary judgment, statement of facts, amended 26 statement of facts, and reply are filed at Docs. 63, 64, 66, and 85. Brooks’ statement of facts and exhibits, cross motion for summary judgment, and reply are filed at Docs. 69–81, 27 82, and 86.

28 2 The facts set forth here are undisputed unless otherwise noted. The Court cites Pima County’s statement of facts and not Brooks’ statement of facts to avoid confusion because 1 reviews throughout her employment with Pima County. (Doc. 66, ¶ 9.) Brooks applied and 2 interviewed for two Relationship Manager positions and a Computing Architect position. 3 (Doc. 66, ¶¶ 10, 23, 35.) Pima County selected another candidate for these positions after 4 scoring the candidates in panel interviews. (Doc. 66, ¶¶ 14, 22, 33, 46.) 5 In August 2017, Brooks applied for the first position, Relationship Manager 2017- 6 764. (Doc. 66, ¶ 10.) She met the minimum qualifications and Pima County selected her 7 and others for interviews. (Doc. 66, ¶ 11.) A male candidate, W.S.,3 received the highest 8 cumulative interview score. (Doc. 66, ¶ 18.) Brooks received the second highest score. 9 (Doc. 66, ¶ 20.) In its motion for summary judgment, Pima County asserts that it selected 10 W.S. and not Brooks for the position because W.S. had a higher interview score and 11 supervisory experience. (Doc. 63 at 15.) Pima County’s Statement of Facts and exhibits 12 support only the statement that W.S. was selected because he had the highest cumulative 13 interview score. (Doc. 66, ¶ 22.) 14 In February 2018, Brooks applied for Relationship Manager 2017-1130. (Doc. 66, 15 ¶ 23.) She met the minimum qualifications and Pima County again selected her and others 16 for interviews. (Doc. 66, ¶¶ 24, 27.) A male candidate, T.N., received the highest 17 cumulative interview score. (Doc. 66, ¶ 29.) Brooks received the second highest score. 18 (Doc. 66, ¶ 31.) Pima County asserts that it selected T.N. and not Brooks for the position 19 because T.N. had a higher interview score and supervisory experience. (Doc. 63 at 15; Doc. 20 66, ¶ 33.) Pima County’s Statement of Facts and exhibits support only the statement that 21 T.N. was selected because he had the highest cumulative interview score. (Doc. 66, ¶ 33.) 22 On July 17, 2018, Brooks filed an EEOC charge against Pima County alleging it 23 Brooks’ statement of facts and separate controverting facts are included in one document 24 which contains two sets of numbered paragraphs: 1–59 for the controverting statement of facts and paragraphs 1–81 for the additional statement of facts. (See Doc. 69.) Pima County 25 also amended its statement of facts, (Doc. 64), without explanation. It appears that the 26 amended version is actually a supplement because it includes only two revised exhibits and a revised table of contents. (See Doc. 66). The Court thus cites Doc. 64 when referencing 27 Pima County’s exhibits, Doc. 66 when referencing Pima County’s statement of facts, and Docs. 64 and 66 when referencing Pima County’s amended exhibits. 28 3 The Court uses initials to protect the privacy of third parties mentioned in this Order. 1 failed to promote her based on gender. (Doc. 64-64.) The charge pertained to the August 2 2017 and February 2018 Relationship Manager positions and alleged that Pima County 3 selected lower-performing and less-qualified male candidates over her for both positions. 4 (Id.) The charge also made broad allegations that Pima County’s IT Department regularly 5 passed over female employees for promotions and pay raises despite them having superior 6 performance and qualifications compared to their male peers. (Id.) 7 In August 2018, Brooks applied for a Computing Architect position. (Doc. 66, ¶ 8 35.) The hiring process for this position included two rounds of interviews, with the first 9 scored and the second unscored. (Doc. 66, ¶ 36.) Pima County selected Brooks and two 10 others for the first round of interviews. (Doc. 66, ¶ 39.) A male candidate, B.P., received 11 the highest cumulative score after the first round. (Doc. 66, ¶ 40.) Brooks received the 12 second highest score. (Doc. 66, ¶ 42.) Pima County selected B.P. and Brooks for a second 13 round of interviews. (Doc. 66, ¶ 43.) After the second round of interviews, Pima County 14 selected B.P. for the position. (Doc. 66, ¶ 46.) In its motion for summary judgment, Pima 15 County asserts that it selected B.P. and not Brooks because he had a higher score in the 16 first round of interviews and supervisory experience. (Doc. 63 at 15.) Pima County, 17 however, fails to provide any evidence in support of this factual assertion. In its Statement 18 of Facts, Pima County does not state why B.P. was selected for the position, and the Court 19 finds in the record no affidavits or declarations of decision-makers that state the basis for 20 B.P.’s selection. 21 B.P. accepted the Computing Architect position and left vacant his previous role as 22 Supervisor of Systems Administration. (Doc. 66, ¶ 55.) Another male employee, J.B., had 23 applied and competed alongside Brooks for the positions of Relationship Manager 2017- 24 1130 and Computing Architect. (Doc. 64-17, 64-23.) Brooks outscored him in the 25 interviews for both positions. (Id.) Pima County assigned J.B. as the next Supervisor of 26 Systems Administration in place of B.P. because of J.B.’s supervisory experience and 27 existing job classification. (Doc. 63 at 16; Doc. 66, ¶ 55.) According to Pima County, the 28 replacement did not require posting the position for recruitment or having an open and 1 competitive process because it was a reassignment of duties within J.B.’s current job 2 classification of IT – Information Engineer. (Doc. 66, ¶ 55; Doc. 64-54.) 3 In 2018, Brooks also worked on a Quality Assurance program. (Doc. 66, ¶ 47.) The 4 parties dispute much of the details regarding this program, including whether Brooks 5 turned down the chance to lead it. (Doc. 66, ¶¶ 49–51; Doc. 69, ¶¶ 49–51.) It is undisputed, 6 however, that Pima County discontinued the program and thus no other employees have 7 led it since. (Doc. 66, ¶¶ 51–52; Doc. 69, ¶ 52; Oral Argument.) 8 On September 24, 2018, Pima County responded to Brooks’ EEOC charge. (Doc. 9 64-44.) On November 25, 2018, Brooks resigned from her position with the Pima County 10 IT Department. (Doc. 66, ¶ 58.) On October 21, 2019, the EEOC issued a Dismissal and 11 Right to Sue Letter to Brooks. (Doc. 64-64.) 12 On January 21, 2020, Brooks filed this Title VII action for failure to promote based 13 on gender discrimination, specifically identifying five incidents relating to the Relationship 14 Manager 2017-764 position, Relationship Manager 2017-1130 position, Computing 15 Architect position, Supervisor of Systems Administration position, and Quality Assurance 16 program. (Doc. 1 at 2–3.) Brooks did not file any EEOC charges against Pima County other 17 than the July 17, 2018 charge. (Doc. 66, ¶ 59; Doc. 69, ¶ 59.) 18 II. Discussion 19 This Court will grant summary judgment when the movant has shown “that there is 20 no genuine dispute as to any material fact and the movant is entitled to judgment as a matter 21 of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A 22 material fact is one that might affect the outcome of the case under existing law. Anderson 23 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is sufficient 24 evidence for a reasonable jury to return a verdict in favor of the nonmoving party. Id. This 25 decision is made without weighing the evidence or determining whether the employee’s 26 allegations are true. Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1027 (9th Cir. 27 2006). A court presented with cross-motions for summary judgment should review each 28 motion separately, giving the nonmoving party for each motion the benefit of all reasonable 1 inferences from the record. ACLU of Nev. v. City of Las Vegas, 466 F.3d 784, 790–91 (9th 2 Cir. 2006). 3 A. Pima County’s Motion for Summary Judgment 4 A plaintiff has three requirements to survive summary judgment in a Title VII claim. 5 First, a plaintiff must exhaust her administrative remedies. 42 U.S.C. § 2000e–5. Next, a 6 plaintiff must establish a prima facie case under the McDonnell Douglas framework. 7 Chuang v. Univ. of California Davis, Bd. of Trs., 225 F.3d 1115, 1123–24 (9th Cir. 2000) 8 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Finally, a plaintiff 9 must respond to her employer’s nondiscriminatory reason for the adverse employment 10 action by raising a genuine factual question as to whether the employer’s reason is a pretext 11 for discrimination. Chuang, 225 F.3d at 1126. The Court will address each requirement in 12 turn. 13 1. Administrative Remedies 14 Under Title VII, a plaintiff must exhaust her administrative remedies by filing a 15 timely charge with the EEOC or an appropriate state agency. 42 U.S.C. § 2000e–5. “The 16 administrative charge requirement serves the important purposes of giving the charged 17 party notice of the claim and narrowing the issues for prompt adjudication and decision.” 18 B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099 (9th Cir. 2002), as amended (Feb. 20, 19 2002). Courts construe the language of EEOC charges “with utmost liberality since they 20 are made by those unschooled in the technicalities of formal pleading.” Id. at 1100. And 21 even when an employee seeks judicial relief for Title VII claims not listed in the original 22 EEOC charge, the complaint “nevertheless may encompass any discrimination like or 23 reasonably related to the allegations of the EEOC charge.” Freeman v. Oakland Unified 24 Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002). 25 In determining whether a plaintiff has exhausted her administrative remedies for an 26 allegation absent in her EEOC charge, courts should consider a variety of factors. B.K.B., 27 276 F.3d at 1100. Those factors include the alleged basis of discrimination, dates of 28 discriminatory acts, perpetrators named in the charge, locations where alleged 1 discrimination occurred, and whether plaintiff’s civil claims are reasonably related to the 2 allegations in the EEOC charge to the extent that the civil claims are consistent with the 3 plaintiff’s original theory of the case. Id. “Whether a plaintiff in a Title VII action has 4 timely exhausted her administrative remedies is an affirmative defense, so the defendant 5 bears the burden of pleading and proving it.” Kraus v. Presidio Tr. Facilities 6 Div./Residential Mgmt. Branch, 572 F.3d 1039, 1046 n.7 (9th Cir. 2009). 7 In a footnote, Pima County argues that Brooks failed to exhaust her administrative 8 remedies for the claims relating to the Computing Architect position, Supervisor of 9 Systems Administration position, and Quality Assurance program. (Doc. 63 at 2.) The basis 10 of this contention is the fact that Brooks’ EEOC charge only listed the Relationship 11 Manager positions, as those were the only positions that Brooks had been denied at the 12 time that she filed the charge. (Id.) On this point, Pima County argues that the Court should 13 bar Brooks’ remaining three claims because “[e]ach incident of failure to promote 14 constitutes a separate unlawful employment practice,” which prevents Brooks’ EEOC 15 charge from encompassing any future acts of discrimination. (Id.) 16 In response, Brooks asserts that the charge-filing requirement in Title VII claims is 17 not a jurisdictional requirement but a mandatory claim-processing rule subject to waiver if 18 not timely raised. (Doc. 82 at 2.) Brooks relies on Fort Bend County, Texas v. Davis, 139 19 S. Ct. 1843 (2019), which does not apply here. In Davis, the defendant raised this 20 affirmative defense after more than three years of litigation and appellate review by the 21 Fifth Circuit and Supreme Court. Id. at 1848. That is not the case here. Pima County 22 properly raised this affirmative defense at the summary judgment stage. See, e.g., Albino 23 v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (failure to exhaust in PLRA suits is an 24 affirmative defense that should normally be raised at summary judgment); Knox v. Contra 25 Costa Cnty., No. 20-CV-01449-JCS, 2022 WL 2290686, at *9 (N.D. Cal. June 24, 2022) 26 (defendant in Title VII suit timely raised the failure-to-exhaust affirmative defense at 27 summary judgment). 28 The Court, however, will not grant summary judgment on claims three, four, and 1 five based on Pima County’s failure-to-exhaust affirmative defense.4 Pima County cited 2 National Railroad Passenger Corporation v. Morgan to support its contention that each 3 alleged failure-to-promote incident is a discrete discriminatory act requiring an EEOC 4 charge. 536 U.S. 101, 114 (2002). But this Court does not construe Morgan so broadly. 5 The plaintiff in Morgan sought to recover damages for discrete acts that had occurred more 6 than 300 days before the date he filed his charge. Id. at 106. Here, Pima County asks the 7 court to exclude acts that occurred months after Brooks filed her initial charge. (Doc. 63 at 8 2.) Unlike the Morgan plaintiff, who could have named the missing alleged acts in his 9 EEOC charge, Brooks could not have included claims three through five, which had not 10 yet occurred. 11 Whether this Court should exclude claims three through five turns on whether those 12 claims were sufficiently “like or reasonably related” to the allegations in Brooks’ original 13 EEOC charge. See Arizona ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189, 1206 (9th Cir. 14 2016) (reversing district court’s decision to exclude plaintiffs’ Title VII claims based on 15 failure-to-exhaust defense and remanding to determine whether later claims were “like or 16 reasonably related” to the initial EEOC charge). The arguments within footnote one of 17 Pima County’s motion fail to address the factors a court must consider when making this 18 determination. (See Doc. 63 at 2.) More specifically, Pima County failed to explain how 19 Brooks’ claims were not reasonably related despite the fact that the claims are all failure- 20 to-promote claims that occurred within the same IT Department and one-year period. Pima 21 County had the burden of proving its failure-to-exhaust affirmative defense and it failed to 22 do so. See Kraus, 572 F.3d at 1046 n.7. 23

24 4 However, to the extent that Brooks now presents the Quality Assurance program as a retaliation claim, (see Doc. 82 at 12; Oral Argument), the Court will grant summary 25 judgment based on the failure-to-exhaust affirmative defense. Unlike the potentially related 26 failure-to-promote claims based on gender discrimination, Brooks failed to identify or assert an unrelated retaliation claim in her EEOC charge. See Scott v. Gino Morena Enters., 27 LLC, 888 F.3d 1101, 1112 (9th Cir. 2018). Because Brooks failed to exhaust her administrative remedies for a retaliation claim, (see Doc. 64-64), the claim will be 28 dismissed. 1 2. McDonnell Douglas Factors 2 Under McDonnell Douglas, a plaintiff alleging disparate treatment under Title VII 3 must establish a prima facie case of discrimination. McDonnell Douglas Corp., 411 U.S. 4 at 802. A plaintiff must show that (1) she belongs to a protected class; (2) she was qualified 5 for the position; (3) she was subject to an adverse employment action; and (4) similarly 6 situated individuals outside her protected class were treated more favorably. Chuang, 225 7 F.3d at 1123. A plaintiff generally need produce very little evidence to overcome an 8 employer’s motion for summary judgment. Id. at 1124. This is because the ultimate 9 question in a Title VII discrimination case is most appropriately resolved through a 10 searching inquiry conducted by a factfinder upon a full record. Id. 11 i. Relationship Manager and Computing Architect Positions 12 Pima County concedes all but the fourth McDonnell Douglas factor for the positions 13 of Relationship Manager 2017-764, Relationship Manager 2017-1130, and Computing 14 Architect. (Doc. 63 at 6.) For the fourth factor, Brooks must show that she was treated less 15 favorably than a similarly situated individual outside her protected class. Chuang, 225 F.3d 16 at 1123. “[I]ndividuals are similarly situated when they have similar jobs and display 17 similar conduct.” Vasquez v. Cnty. of L.A., 349 F.3d 634, 641 (9th Cir. 2003). “The 18 employees need not be identical; they must simply be similar in all material respects.” 19 Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 1125 (9th Cir. 2009). 20 Pima County’s position is that it did not treat W.S., T.N., and B.P.—the male 21 candidates who Pima County hired instead of Brooks for these three positions—more 22 favorably than Brooks because it conducted the interview process for each position in 23 compliance with the Pima County Merit System Rules and Administrative Procedures and 24 it selected for each position the candidate with the highest interview score. (Doc. 63 at 8.) 25 To support this contention, Pima County notes that W.S. and T.N. scored higher than 26 Brooks in the single-round interviews for the Relationship Manager positions, and B.P. 27 scored higher than Brooks in the first of two interviews for the Computing Architect 28 position. (Id.) 1 Pima County’s argument that it did not treat Brooks less favorably is unpersuasive. 2 First, Pima County clearly did treat Brooks less favorably because it failed to promote her 3 and selected W.S., T.N., and B.P. instead. (Doc. 82 at 7–8.) While the fact that the 4 candidates were treated similarly during the interview process might signal the absence of 5 discrimination, it does not negate the fact that Pima County preferred—and hence treated 6 more favorably—other candidates over Brooks. Second, Pima County cites no authority 7 stating that an employer’s use of standard interview questions is dispositive on the issue of 8 whether an employee is treated less favorably.5 The Court thus declines to rule as a matter 9 of law that Pima County’s selection process could not treat Brooks less favorably. 10 Pima County also argues that Brooks is not similarly situated to W.S., T.N., and 11 B.P. due to Brooks’ purported lack of supervisory experience. There are two flaws with 12 this argument that preclude summary judgment. First, Brooks factually disputes whether 13 she lacked supervisory experience, (Doc. 82 at 3–4), and she has presented evidence to the 14 contrary. For instance, Brooks’ resume entry for Simpleview Inc. lists her as a “CMS 15 Production Project Manager” and states that she “managed and launched projects,” 16 “[m]anaged . . . a team of developers,” “[p]rovided goals for developers,” and “boosted 17 team morale by jumping into the trenches.” (Doc. 64-37; Doc. 66-2.) A reasonable jury 18 could conclude that this experience was supervisory, although not expressly listed as such. 19 A genuine factual dispute thus remains. 20 Second, whether Brooks is similarly situated in all material respects cannot turn on 21 a qualification immaterial to Pima County’s final selection decision. Brooks need only 22 show that she is similar to W.S., T.N., and B.P. in all material respects. See Nicholson, 580 23 F.3d at 1125. At oral argument, Pima County asserted that it selected the male employees 24 for the positions at issue based on their higher interview scores, not because they had 25 supervisory experience that Brooks lacked. Pima County cannot contend that supervisory 26 experience was immaterial to Pima County’s final selection decision but material in the 27

28 5 In fact, Pima County stated at oral argument that no such rule exists and courts must look at each selection process individually to confirm whether it is fair and equitable. 1 similarly situated analysis.6 2 For these reasons, Brooks’ prima facie discrimination case arising from the 3 Relationship Manager 2017-764, Relationship Manager 2017-1130, and Computing 4 Architect positions survives summary judgment. 5 ii. Supervisor of Systems Administration Position 6 Pima County concedes all but the third and fourth McDonnell Douglas factors for 7 Brooks’ claim relating to the Supervisor of Systems Administration Position. (Doc. 63 at 8 13–14.) For these factors, Brooks must show that she was subject to an adverse 9 employment action and that similarly situated individuals outside her protected class were 10 treated more favorably. Chuang, 225 F.3d at 1123. To establish an adverse employment 11 action, “a plaintiff must show that a reasonable employee would have found the challenged 12 action materially adverse.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 13 (2006). 14 First, Pima County contends that J.B.’s reassignment to the Supervisor of Systems 15 Administration position was not an adverse employment action for Brooks. (Doc. 63 at 13– 16 14.) Pima County rests its position on the fact that it did not change J.B.’s pay or job 17 classification when it reassigned him. (Doc. 63 at 13; Doc. 66, ¶ 56.) However, whether a 18 challenged action is materially adverse depends not on specific employment classifications 19 but upon the circumstances of the particular case. See White, 548 U.S. at 71. 20 Brooks argues that J.B.’s reassignment is a materially adverse employment action. 21 (Doc. 82 at 10.) This reassignment provided J.B. with the responsibility of supervising 22 employees and denied Brooks the opportunity to apply for the position. (Doc. 69, ¶ 56.) 23 Further supporting the materially adverse nature of this employment action is the 24 undisputed fact that Brooks had twice outperformed J.B. during the interviews for the

25 6 As noted in Part I, Pima County has failed to produce any evidence as to the basis for 26 B.P.’s selection over Brooks. See Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that 27 would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”). Thus, the Court cannot determine whether Brooks’ 28 supervisory experience was a material consideration for the Computing Architect position or evaluate Brooks’ experience in comparison to B.P.’s. 1 Relationship Manager 2017-1130 and Computing Architect positions. (Doc. 64-17, 64-23.) 2 Because Pima County relies heavily on its interview scores as a purportedly objective basis 3 for its employment decisions, (Doc. 66, ¶¶ 22, 33, 46; Doc. 63 at 8–10, 15), a reasonable 4 employee could find it materially adverse that, when a role with greater supervisory duties 5 became available, her employer abandoned its objective interviews and reassigned to the 6 role a male employee who consistently scored lower than her in interviews for supervisory 7 positions. 8 Pima County also contends that Brooks is not similarly situated to J.B. because she 9 lacks supervisory experience. (Doc. 63 at 14.) Yet, as discussed above, Brooks has raised 10 her supervisory experience as a triable factual issue. The fact that Brooks and J.B. twice 11 competed for the same positions, with Brooks outperforming him each time, also tends to 12 support the contention that the two are similarly situated. 13 For these reasons, Brooks’ prima facie discrimination case arising from the 14 Supervisor of Systems Administration position survives summary judgment. 15 iii. Quality Assurance Program 16 Pima County concedes all but the third and fourth McDonnell Douglas factors for 17 the claim relating to the Quality Assurance program. The Court will only discuss the fourth 18 factor, whether the plaintiff was treated less favorably than a similarly situated employee, 19 which proves dispositive. See Chuang, 225 F.3d at 1123. It is undisputed that Pima County 20 discontinued the Quality Assurance program and did not select a male employee to lead it. 21 (Doc. 66, ¶¶ 51–52; Doc. 69, ¶ 52.) Without a similarly situated employee outside of 22 Brooks’ protected class who Pima County treated more favorably, the gender 23 discrimination claim arising from the Quality Assurance program fails as a matter of law.7 24 7 Moreover, as discussed in note 4, even if Brooks contends the events relating to the 25 Quality Assurance program constitute retaliation, (see Doc. 82 at 12; Oral Argument), 26 summary judgment is still warranted because Brooks’ single EEOC charge does not include an allegation of retaliation. (See Doc. 64-64.) Any retaliation claim arising from 27 the Quality Assurance program would fail because Brooks did not exhaust her administrative remedies. See 42 U.S.C. § 2000e–5; Scott, 888 F.3d at 1112 (retaliation is a 28 discrete act requiring a separate allegation in an EEOC charge). 1 3. Pretext 2 After establishing a prima facie case of discrimination, the burden of production, 3 but not persuasion, shifts to the defendant employer. McDonnell Douglas Corp., 411 U.S. 4 at 802. The employer must articulate some legitimate, nondiscriminatory reason for the 5 challenged action. Id. If the employer does so, the plaintiff must show that the reason is 6 pretextual. Chuang, 225 F.3d at 1124. The plaintiff may accomplish this “either directly 7 by persuading the court that a discriminatory reason more likely motivated the employer 8 or indirectly by showing that the employer’s proffered explanation is unworthy of 9 credence.” Id. (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). 10 Brooks has raised genuine factual questions as to whether Pima County’s reasons 11 for the challenged actions are a pretext for discrimination. See Chuang, 225 F.3d at 1127. 12 The Court need not address pretext for the Computing Architect position because Pima 13 County failed to provide evidence supporting its “legitimate, nondiscriminatory reason” 14 for selecting B.P. over Brooks.8 See McDonnell Douglas Corp., 411 U.S. at 802. For the 15 Relationship Manager positions, Pima County asserts two reasons for hiring a male 16 candidate over Brooks: higher interview scores and supervisory experience; and for the 17 Supervisor of Systems Administration position, Pima County argues its legitimate reason 18 for hiring J.B. was his supervisory experience. (Doc. 63 at 15, 16.) As discussed above, 19 Brooks has already identified genuine issues of material fact regarding whether she had 20 adequate supervisory experience. 21 In addition, Brooks has raised a genuine factual dispute regarding whether Pima 22 County’s “proffered explanation is unworthy of credence.” See Chuang, 225 F.3d at 1124, 23 1127. First, Pima County presents inconsistent arguments regarding its reasons for not 24 hiring Brooks. In its motion for summary judgment, Pima County relies in part on Brooks’ 25 alleged lack of supervisory experience as a reason for not hiring or promoting her. (See 26 Doc. 63 at 15–16.) As discussed above, Brooks has already identified genuine issues of 27 material fact regarding whether she had adequate supervisory experience. 28 8 See supra Part I and note 6. 1 In its reply brief, Pima County doubles down on the distinction it created between 2 “management” and “supervisory” experience. (Doc. 85 at 4.) Brooks contends that Pima 3 County did not in fact distinguish “management” and “supervisory” experience. (Doc. 86 4 at 2–3.) Pima County’s Relationship Manager job posting appears to support Brooks’ 5 contention by using “management” and “manage” far more than “supervise” and 6 “supervisory” while also referring to the terms synonymously. (Doc. 64-27.) 7 At oral argument, however, Pima County abandoned supervisory experience as a 8 reason for selecting male candidates instead of Brooks for the Relationship Manager 9 positions but not for the Supervisor of Systems Administration position. The hiring process 10 for the former positions required scored interviews while the latter position did not. (Doc. 11 66, ¶¶ 22, 33, 55.) When the hiring process for a position involved a scored interview, Pima 12 County contends that it did not select Brooks because of her relatively lower score. Only 13 when Pima County had no interview score to rely on does it contend that Brooks lacked 14 adequate supervisory experience. 15 Second, Pima County presents inconsistent explanations regarding the Quality 16 Assurance program. When Pima County responded to Brooks’ EEOC charge, it stated 17 Brooks wanted to lead the Quality Assurance program. On September 21, 2018, Pima 18 County’s IT Department CIO, D.H., stated in an affidavit to the EEOC that Brooks “will 19 be placed into the leadership role over [the Quality Assurance] program as soon as she 20 returns from vacation” and Brooks “felt that she could be happy and successful for 2+ 21 years” leading the program. (Doc. 64-62.) Yet, when Brooks sued Pima County for not 22 being able to lead the Quality Assurance program, Pima County stated that Brooks refused 23 to lead it. On April 16, 2021, Pima County’s IT Department Deputy Director, M.H., stated 24 in an affidavit that “[Brooks] made it clear that she did not see QA . . . as a direction for 25 her career at that point in time” and “the QA initiative was not pursued further.” (Doc. 64- 26 54.)9 27 9 At oral argument, Brooks also argued that Pima County’s reason for not placing her in 28 charge of the Quality Assurance program lacked credence because Pima County failed to offer her the role when she returned from vacation. To support this, Brooks referenced 1 Third, the selection process for the Supervisor of Systems Administration position 2 also tends to support Brooks’ contention that Pima County’s reasons for its employment 3 actions are pretextual. After conducting interviews, Pima County selected the highest 4 scoring interviewee for the positions of Relationship Manager 2017-764 and 2017-1130, 5 and allegedly selected the highest scoring interviewee for the Computing Architect 6 position.10 (Doc. 66, ¶¶ 22, 33, 46.) All three hires were male. (Id.) For each position, 7 Brooks received the second highest score. (Doc. 64-17, 64-23, 64-31.) Yet, when the 8 Supervisor of Systems Administration position became available, Pima County held no 9 interviews and instead reassigned to the position a male employee who Brooks consistently 10 outperformed in interviews. (Doc. 69, ¶ 56.) 11 Taken together, a reasonable jury could conclude that Pima County’s proffered 12 reasons for the challenged employment actions lack credibility and are a pretext for gender 13 discrimination against Brooks. And although Brooks offers statistical evidence to support 14 her pretextual argument, (see Doc. 82, ¶ 14–16), the Court does not rely on those statistics 15 in its decision. The Court also takes no position here on whether Brooks’ statistical 16 evidence is admissible at trial under Federal Rule of Evidence 403, 702, or 703. 17 B. Brooks’ Partial Motion for Summary Judgment 18 Brooks moved for summary judgment on her Title VII gender discrimination claims 19 relating to the Relationship Manager 2017-764, Relationship Manager 2017-1130, and 20 Supervisor of Systems Administration positions. (Doc. 82 at 1.) As discussed above, the 21 parties raise genuine factual disputes that are essential to the prima facie case and pretextual 22

23 chats from October 2018 in which she asked her supervisors for an update on her leading the program. Although the Court has found that Brooks cannot proceed with a retaliation 24 claim related to the Quality Assurance position, the Court concludes that the inconsistent positions taken by Pima County could constitute evidence of pretext. 25

26 10 The selection process for the Computing Architect position included an initial scored interview and a final unscored interview. (Doc. 66 ¶ 36.) Pima County stated in its motion 27 for summary judgment that it hired B.P. because he had a higher score in the initial interview and supervisory experience. (Doc. 63 at 15.) However, as noted previously, Pima 28 County identifies no facts in the record—and the Court finds none—confirming that assertion. || arguments for these Title VII claims. The Court thus denies Brooks’ motion. The final merits of the claims must be determined by the jury. 3 C. Brooks’ Remaining Motions 4 Two days before oral argument, Brooks filed two motions requesting to supplement 5 || the record. (Doc. 89; Doc. 90.) The Court does not rely on these supplemented materials in 6 || its analysis and thus denies both motions as moot. 7\| UY. Conclusion 8 For the foregoing reasons, IT IS ORDERED: 9 1. Defendant’s Motion for Summary Judgment (Doc. 63) is GRANTED IN 10 PART and DENIED IN PART. 11 2. Plaintiffs Cross-Motion for Partial Summary Judgment (Doc. 82) is 12 DENIED. 13 3. Plaintiffs Motion for Leave to Supplement Record on Her Cross-Motion for 14 Partial Summary Judgment and Opposition to Defendant’s Motion for 15 Summary Judgment (Doc. 89) is DENIED as moot. 16 4. Plaintiffs First Motion for Leave To File Non-Electronic Exhibits (Doc. 90) 17 is DENIED as moot. 18 5. Pursuant to the Court’s August 4, 2021 Order (Doc. 59), the parties shall file 19 a Joint Proposed Pretrial Order and any Daubert motions by October 27, 20 2022. 21 6. A status conference is set for November 17, 2022, at 4:30 p.m. Prior to the 22 conference, the parties must meet to discuss preparation of the Joint Pretrial 23 Order, identify issues for trial, and propose deadlines and a schedule for trial. 24 Dated this 27th day of September, 2022. 25 26 far □ 27 Honorable Jennifer’ Zfpps 28 United States District Judge

-15-