424 F.3d 1027 (9th Cir. 2005), 03-16959, Dominguez-Curry v. Nevada Transp. Dept.

Docket Nº:03-16959.
Citation:424 F.3d 1027
Party Name:Sylvia DOMINGUEZ-CURRY, Plaintiff-Appellant, v. NEVADA TRANSPORTATION DEPARTMENT; Roc Stacey, Defendants-Appellees.
Case Date:September 14, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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424 F.3d 1027 (9th Cir. 2005)

Sylvia DOMINGUEZ-CURRY, Plaintiff-Appellant,



No. 03-16959.

United States Court of Appeals, Ninth Circuit.

September 14, 2005

Argued and Submitted February 17, 2005.

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Appeal from the United StatesDistrict Court for the District of Nevada, D.C. No. CV-01-00630-DWH/RAM, David W. Hagen, District Judge, Presiding


Kenneth J. McKenna, Reno, Nevada, for the plaintiff-appellant.

Brian Sandoval, Attorney General, Teresa J. Thienhaus, Senior Deputy Attorney General, Las Vegas, Nevada, for the defendants-appellees.

Before: Sidney R. Thomas, Richard A. Paez, and Consuelo M. Callahan, Circuit Judges.


PAEZ, Circuit Judge:

Sylvia Dominguez-Curry ("Dominguez") sued her employer, the Nevada Department of Transportation ("Department"), and her supervisor, Roc Stacey ("Stacey"), alleging that they subjected her to a hostile work environment and failed to promote her on the basis of her gender, in violation of Title VII of the Civil Rights Act of 1964. Dominguez appeals the district court's grant of summary judgment in favor of the Department and Stacey. We hold that Dominguez presented ample evidence from which a reasonable trier of fact could conclude that she was subjected to a hostile work environment and that the decision not to promote her was motivated at least in part by her gender. Accordingly, we reverse the district court's judgment and remand for a trial on both of Dominguez's Title VII claims.


Since 1994, Dominguez has worked under the supervision of Roc Stacey in the Nevada Department of Transportation's contract compliance division. Stacey routinely made demeaning comments to women in the division. For example, Stacey told Dominguez and two other women in the division that "he wished he could get men to do [their] jobs," that "women have no business in construction," and that "women should only be in subservient positions." In response to a work-related question from Dominguez, Stacey replied, "if you girls were men, you would know that." Referring to Dominguez and other women in the division, Stacey said, "You guys are being paid more than you even should be getting paid." Further, Stacey called the division's female assistant "stupid," and on one occasion, he kicked another female employee's chair while she was sitting in it because he was upset with her.

Stacey also told sexually explicit jokes in the workplace. Dominguez described the jokes as "the blond with the big tits type jokes and what she did with whom and those types of jokes." Dominguez said "those were like everyday jokes."

Shortly after Dominguez began working for Stacey, Stacey commented to her, "Every woman that comes to work in our division gets pregnant. . . . I hope you don't get pregnant." According to Dominguez, "Roc [Stacey] just would never let up about women having no business working if they had little children to take care of at home." In reference to one woman who announced she was pregnant shortly after she began working in the division, Stacey commented, "the bitch knew she was pregnant when I hired her." Stacey told Dominguez that he "did not want to deal with another pregnant woman." After this woman returned from maternity leave, Stacey told her she "should try and transfer to

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another position where being a mommy works for her." Stacey told Dominguez, "I want her out" and said "he was going to make her travel so that she would leave."

While Stacey was serving as Acting Contract Compliance Manager, he discussed with Dominguez the changes he would make when he became Contract Compliance Manager. He said,

When I fill the position for the Program Officer III, I am going to hire a guy and he is going to do all the contract investigations and stay on top of all the contract field work that I haven't been doing for the past six years. That guy is going to be traveling 70% of the time.

Dominguez testified that

after this incident [Stacey] further said that he was going to hire a man. . . . His answer would always be he wants a man to do the job. He doesn't feel that I or a female could go out into the field and do the work that a man is required to do. Number one, he specifically told me my stature's a problem.

After returning from a fishing trip with Stacey, Dominguez's husband reported to Dominguez that Stacey said that

he was never going to give you (Dominguez) the job, he has a problem with you because you're a small female, he's afraid that you could be in jeopardy in some of the places that he has to go to, that he's a big guy and he's afraid to go to those job sites sometimes, so he wouldn't feel it would be fair to send me — such a small person and a female to some of these job sites where all these construction workers are.

Stacey initially failed to qualify for a promotion to Contract Compliance Manager. After learning that a woman had qualified, Stacey said he "would never work for a woman" and told Dominguez that "if [the woman] got hired he was going to take off as much annual leave as he had on the books, look for work elsewhere and in the mean time he was not going to help us or the new manager in any way."

Stacey eventually qualified for the Contract Compliance Manager position and was promoted in November 1999. Around the same time, the Department announced an opening in the contract compliance division for the Program Officer III position, involving enforcement of federal and state labor laws and disadvantaged business subcontracting requirements for Department projects. The announcement described the position as "open competitive," meaning state employees did not receive preference; rather "eligible persons on ranked lists are certified solely in score order." The minimum qualifications for the position were listed as follows:

graduation from an accredited college or university in public administration or related field and two years of experience in planning, coordinating or administering a program; OR two years experience as a Program Officer II in Nevada State service; OR graduation from high school or the equivalent and six years of experience in planning, coordinating or administering a program; OR an equivalent combination of education and experience.

Dominguez applied for the Program Officer III position. She and another applicant, Phillip Andrews, initially ranked fifth among seven top applicants, all of whom were interviewed jointly by Stacey and Mark Elicegui, Chief Construction Engineer. Andrews had a college degree in a related field, had attended law school for two years, and had worked in Wyoming as a labor standards compliance officer for the Department of Employment for three years. Dominguez had worked in the contract compliance division for several years, graduated from high school, attended vocational

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school and community college, but she did not have a college degree.

After the interviews, Stacey and Elicegui compared notes. Both had selected Phillip Andrews as their first choice, and Julia Mason, who originally ranked sixth, as their second choice. Stacey and Elicegui stated that they arrived at their choices independently and shared no information until the interviews were over. Andrews accepted the job.

Dominguez testified, "I believe he (Andrews) was very qualified, and he may be more qualified than me, but that was not the - I just knew because he had the right body parts is why he got hired, in addition to being qualified." Although Dominguez said she had no reason to believe that Elicegui was biased against women, she asserted that Stacey would only hire a man. Elicegui, however, stated that Stacey never "indicate[d] to me that he had already made up his mind to hire a male for this position" and that during the interviews, Stacey showed no bias for or against any of the candidates. Stacey said gender did not play a role in the selection process, and that "Phil Andrews' qualifications were simply superior to everyone else's."

After exhausting her remedies before the Equal Employment Opportunity Commission ("EEOC"), Dominguez filed a complaint against the Department and Stacey in the United States District Court for the District of Nevada, alleging hostile work environment sexual harassment and failure to promote on the basis of gender, in violation of Title VII. Stacey also alleged intentional infliction of emotional distress and sex discrimination under Nevada law. The Department and Stacey moved for summary judgment. The district court determined as a matter of law that 1) Dominguez's hostile work environment claim failed because Dominguez did not demonstrate that Stacey's conduct was sufficiently severe or pervasive to alter the conditions of her employment, and 2) Dominguez could not prevail on her failure-to-promote claim because she did not present specific and substantial evidence that the proffered explanation for defendants' hiring decision —that Philip Andrews was more qualified—was merely a pretext for sex discrimination. Accordingly, the district court granted the defendants' motion for summary judgment.1Dominguez timely appealed.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and review de novo the district court's grant of summary judgment. See Vasquez v. County of Los Angeles, 349 F.3d 634, 639 (9th Cir. 2003). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id. at 639-40.



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