WELA ALERT: NINTH CIRCUIT

District Court Granted Summary Judgment to Employer on Each of Employee’s Claims; District Court was Wrong Each Time

Plaintiff was a single mother with seven children. She worked at an Idaho grocery store where she supervised employees on the night shift. She was fired for “gross misconduct” allegedly for taking a stale cake from the bakery to share with her fellow employees and for telling a loss prevention manager she had permission.

She claims she was fired because the company wanted to put a man in charge of the crew. Her female manager removed her from the safety crew telling her a man would be better for the position. The employee claimed that the general manager and other managers gave the employees permission to take cakes from the bakery. The bakery department had instructed her to take cakes only from the “stales cart” and did not need to show that in store inventory. A male employee took a fresh cake and was fired as well. Because the company fired her for “gross misconduct” she was statutorily ineligible for COBRA benefits. She also lost her accrued vacation in accordance with the union collective bargaining agreement.

At the plaintiff’s unemployment hearing, the company identified the female manager as the deciding official. She denied it in her deposition. She claimed that HR and the loss prevention specialist had made the decision to terminate. They both denied making the decision to terminate the plaintiff.

The plaintiff sued in federal court alleging violations of Title VII, COBRA, and the Fair Labor Standards Act and Idaho wage law. The district court granted the company’s motion for summary judgment finding no evidence of pretext that she was terminated for “gross misconduct.”  The Ninth Circuit reversed.

The panel reiterated that an employee can prove pretext by directly showing unlawful discrimination or indirectly by showing that the employer’s explanation was internally inconsistent and otherwise unworthy of belief. It held that the plaintiff had shown “ample evidence of discriminatory animus.” While it was unclear who the decision-maker was, the biased supervisor had at least influenced or participated in the decision. The court seemed to think this standard was consistent with Staub v. Proctor Hosp., which had rejected the influence standard in favor of “proximate cause.” The court held the internal investigation had taken into account the recommendation of the male manager, so it was not independent of it.

The court rejected the employer’s claim that the manager’s sexist comments about the safety committee lead were “stray remarks.” Instead, a jury could infer she had hostility towards women in leadership positions. It didn’t matter that the manager was also female.

The court also found lots of evidence of pretext. Several employees testified it was common practice for employees to take cakes to the breakroom. Management’s claim that she lied about having permission to take it was unworthy of belief. And the store replaced her with a less qualified male employee. The female manager participated in his hiring.

Because the employees’ other claims were derivative of her Title VII claim and there was a genuine dispute whether she was terminated for gross misconduct, the court reversed summary judgment on them as well.

Mayes v. WinCo Holdings, 846 F.3d 1274 (9th Cir. 2/3/17) (Christen, McKeown, Tallman).