Bergene v. Salt River Project

• Decision Date: 03 December 2001
• Docket Number: DEFENDANT-APPELLEE,PLAINTIFFS-APPELLANTS,No. 99-17205,99-17205
• Citation: 272 F.3d 1136
• Parties: (9th Cir. 2001) BRADLEY BERGENE, HUSBAND; ELIZABETH BERGENE, WIFE,, v. SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT, AN AGRICULTURAL IMPROVEMENT DISTRICT CREATED PURSUANT TO THE LAWS OF THE STATE OF ARIZONA,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1136

272 F.3d 1136 (9th Cir. 2001)

BRADLEY BERGENE, HUSBAND; ELIZABETH BERGENE, WIFE, PLAINTIFFS-APPELLANTS, v. SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT, AN AGRICULTURAL IMPROVEMENT DISTRICT CREATED PURSUANT TO THE LAWS OF THE STATE OF ARIZONA, DEFENDANT-APPELLEE.

No. 99-17205

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted February 15, 2001

Filed December 3, 2001

[Copyrighted Material Omitted]

Terry F. Hall, Marton & Hall, P.A., Phoenix, Arizona, for the plaintiffs-appellants.

John J. Egbert, Jennings, Strouss & Salmon, P.L.C., Phoenix, Arizona, for the defendant-appellee.

Appeal from the United States District Court for the District of Arizona; Paul G. Rosenblatt, District Judge, Presiding. D.C. No. CV-97-01911-PGR

Before: Schroeder, Chief Judge, Wallace, and Tallman, Circuit Judges.

Opinion by Chief Judge Schroeder; Partial Concurrence and Partial Dissent by Judge Wallace

SCHROEDER, Chief Judge:

Elizabeth Bergene and her husband, Bradley¹, appeal the grant of summary judgment in favor of their former employer, the Salt River Project ("SRP"), on her claims of retaliation and sex discrimination in the denial of a promotion and constructive discharge on account of an intolerable work environment. The district court ruled in favor of SRP on the retaliation and discrimination claims on the ground that SRP had offered a non discriminatory reason for denying Elizabeth Bergene a promotion, and Bergene had failed to show that this reason was pretextual. The district court also granted summary judgment for SRP on Bergene's constructive discharge claim, holding that she had not raised a triable issue of fact as to the presence of intolerable working conditions.

The record, however, contains direct evidence of retaliation, including a threat by a supervisor that Bergene would not be promoted if she held out for too much money in settling an earlier pregnancy discrimination claim. The record also contains substantial circumstantial evidence from which a jury could conclude that she was the target of repeated discriminatory treatment, including the denial of a promotion that was given instead to a male who qualified for the position only after SRP changed the job requirements.

We therefore reverse and remand because we hold that Bergene has met her burden of establishing a triable issue of fact as to whether SRP's asserted nondiscriminatory justification for her adverse treatment was pretextual. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998). We further hold that Bergene has established triable issues of fact as to her constructive discharge claim.

BACKGROUND

Elizabeth Bergene was employed as a journeyman electrician in SRP's Coronado Generating Station near St. Johns, Arizona in 1990, when she filed a pregnancy discrimination claim. Some time later, SRP fired her husband from a temporary position. In 1994, Bergene and her husband filed a lawsuit alleging that the firing and SRP's treatment of Bergene constituted unlawful retaliation for the earlier pregnancy claim. All of the events directly related to this litigation occurred between November 1995, while the Bergenes were beginning settlement discussions with SRP on the retaliation claim, and March 1996, when the parties finally settled that claim. Bergene's declarations contain the following facts that we review in the light most favorable to her as the nonmoving party on defendant's motion for summary judgment. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).

In November 1995, at about the time the settlement discussions began, SRP advertised an open position for an electrical foreman. As a journeyman electrician with substantial experience, Bergene met the qualifications and applied for the foreman position. In the next month, December, Jim Pratt became superintendent of engineering and the person responsible for selecting the new foreman. Soon after Pratt's arrival, he greeted Bergene with "Hi, trouble . . . I've heard about you."

Later the same month, her former direct supervisor, Doug Wilson, told Bergene that she would not get the foreman position if she held out for too much money in the settlement discussions. Wilson at the time was advising Pratt on the selection of the new foreman.

At about the same time, or shortly thereafter, Pratt changed the requirements for the foreman position by removing the journeyman electrician requirement and adding supervisory experience as a factor to be considered in evaluating candidates. Bergene met the journeyman electrician requirement, but had limited supervisory experience. In March 1996, Pratt chose Jerry DeGraff as electrical foreman. DeGraff was a male with supervisory experience, but was not a journeyman electrician. He therefore qualified only under the new requirements instituted by Pratt after Bergene had applied for the position and after her former supervisor had warned her against holding out for too much in the settlement discussions.

It is also essentially undisputed that there were few women journeyman electricians at the plant and no women supervisors. According to Bergene, she was jokingly referred to as "mommy" repeatedly while she was serving briefly as an acting supervisor.

Six days after Pratt selected DeGraff for the foreman position, Bergene left work, was placed on disability leave due to work-related stress, and never returned. She formally left her employment in June 1996.

Bergene filed a claim with the EEOC. After she received her right to sue letter, she filed this complaint in September 1997. In her amended complaint, she alleges that SRP violated the provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § § 2000e et seq. She alleges that SRP did so by denying her the promotion to electrical foreman in retaliation for filing earlier charges of discrimination and because of her sex. Bergene further alleges that she was compelled to resign and thus constructively discharged from SRP due to intolerable working conditions allegedly caused by continuing discrimination and retaliation. She seeks back pay, fringe benefits, compensatory damages, and attorney's fees and costs.

SRP moved for summary judgment, stating that DeGraff was chosen for the foreman position because he was better-qualified. The district court granted SRP's motion and dismissed the action in August 1999. This appeal followed.

DISCUSSION

We apply a system of shifting burdens in Title VII discrimination and retaliation cases. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987). The plaintiff bears the initial burden of establishing a prima facie case. To state a prima facie case of discrimination, a plaintiff must show that:

(1) she belongs to a protected class, (2) she was performing according to her employer's legitimate expectations, (3) she suffered an adverse employment action, and (4) other employees with qualifications similar to her own were treated more favorably.

Godwin, 150 F.3d at 1220.

In order to make out a prima facie case of retaliation, a plaintiff must show that (1) she was engaging in protected activity, (2) the employer subjected her to an adverse employment decision, and (3) there was a causal link between the protected activity and the employer's action. Folkerson v. Circus Circus Enters., Inc., 107 F.3d 754, 755 (9th Cir. 1997).

The parties do not dispute that Bergene and her husband have satisfied their burden of establishing a prima facie case of both discrimination and retaliation in connection with the denial of the promotion. The burden therefore shifts to SRP to produce evidence that Bergene was denied the promotion for a legitimate, nondiscriminatory reason. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 (1981). The parties agree that SRP has advanced a reason for denying Bergene the promotion. SRP claims that it chose DeGraff rather than Bergene for the electrical foreman position because he was better-qualified, as evidenced by the higher rankings that Pratt assigned him on several criteria.

The burden then shifts back to Bergene to show that SRP's proffered reason was a pretext for discrimination. See id. at 256; Godwin, 150 F.3d at 1220. The critical issues at this stage, therefore, are whether Bergene has produced sufficient evidence to raise a triable issue of fact as to whether the reason proffered by SRP for denying her the promotion was a pretext for unlawful retaliation or discrimination and whether she has shown a pattern of unlawful conduct sufficient to support the claim of constructive discharge.

We deal separately with each of the claims presented.

A. Retaliation

Bergene claims that SRP denied her the promotion in retaliation for pursuing her claim that SRP's firing of her husband and its treatment of her were in retaliation for her earlier claim of pregnancy discrimination. The question before us is whether she has produced sufficient evidence to create a genuine issue of material fact as to whether SRP's stated reason for promoting DeGraff rather than Bergene was merely a pretext for retaliation. Bergene has produced both direct and circumstantial evidence of retaliatory motive.

Bergene cites the statement of her former supervisor as direct evidence that SRP's denial of the promotion was causally related to her refusal to settle her earlier claim immediately. In Bergene's declaration, she attests that her former supervisor, Wilson, told her in January 1996 that she would not get the foreman position if she held out for too much money in the settlement negotiations. Although Pratt, her immediate supervisor, was ultimately responsible for selecting the new foreman, there is evidence that Wilson played an influential role in the selection process. Even if a manager was not the ultimate decisionmaker, that manager's retaliatory motive may be imputed...