Discriminatory Comments by Supervisors are Circumstantial Evidence of Pretext Even Where They Have No Connection to an Adverse Action.

The plaintiff in this case was a female journeyman electrician. ?Her foreman agreed to her request for a transfer due to an injury by telling her the co- worker with whom she would be working needed a girlfriend.???? He also repeatedly called her ?astrobitch.? ?She was excluded from meetings and was told the office donuts were for the guys. ?She was given more than her share of hazardous jobs and the Company refused to give her long-term assignments. ?When she complained, she was told she could find another occupation. ?After she filed an administrative charge of discrimination, her car was damaged.?? ?Four months later she was terminated in a reduction in force.? ?She sued for?disparate treatment, retaliation and hostile work environment.???? ?The? district? court? granted summary judgment to the employer. ?The Ninth Circuit reversed.? ?The panel ruled that more strenuous and less desirable work assignments, and being required to work with a hazardous chemical?? were?? adverse?? actions.???? ?The?? case contains? some? very? useful? language distinguishing actionable exclusion from workplace meetings from non-actionable ostracism. ?In terms of pretext, the panel punted on whether circumstantial evidence of discrimination? must ?be? ?specific? and substantial.? ?The court held that discriminatory comments by supervisors who were involved in making work assignments are not inadmissible stray remarks even though the supervisors had no role in the plaintiff?s termination. ?The comments were circumstantial evidence of pretext.? ?The absence of any female supervisors in the history of the plaintiff?s workplace was also evidence of pretext.?? The opinion highlights that where the plaintiff alleges her layoff was discriminatory/retaliatory, the employer must offer a non-prextual explanation why the plaintiff?s job in particular was eliminated. ?The Company failed to do that in this case given that less senior electricians were retained. The panel reaffirmed?? that?? sexual?? harassment?? must?? be viewed from the perspective of the reasonable woman and chastised the district court for concluding the plaintiff was paranoid. ?The panel also emphasized that it is for the jury to decide whether?? frequent?? harassment?? is?? sufficiently severe.? ?Davis v. Team Electric Co., 520 F.3d?1080 (9th ?Cir. 2008) (Reinhardt, Goodwin and?Smith).