Lindahl v. Air France

• Citation: 930 F.2d 1434
• Decision Date: 22 April 1991
• Docket Number: No. 89-55936,89-55936
• Parties: 55 Fair Empl.Prac.Cas. 1033, 56 Empl. Prac. Dec. P 40,712, 59 USLW 2726 Michelle LINDAHL, Plaintiff-Appellant, v. AIR FRANCE, a French Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1434

930 F.2d 1434

55 Fair Empl.Prac.Cas. 1033,

56 Empl. Prac. Dec. P 40,712, 59 USLW 2726

Michelle LINDAHL, Plaintiff-Appellant, v. AIR FRANCE, a French Corporation, Defendant-Appellee.

No. 89-55936.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 11, 1991.

Decided April 22, 1991.

William John Kennedy, Darling, Hall & Rae, Los Angeles, Cal., for plaintiff-appellant.

J. Jay Rakow, Christensen, White, Miller, Fink & Jacobs, Los Angeles, Cal., John K. Weir, Haight, Gardner, Poor & Havens, New York City, for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before BOOCHEVER, HALL and RYMER, Circuit Judges.

RYMER, Circuit Judge:

Michelle Lindahl brought this suit against her employer, Air France, for sex discrimination under Title VII of the Civil Rights Act of 1964 and age discrimination under the Age Discrimination in Employment Act (ADEA) based on Air France giving a promotion to a young male instead of to her, a 49-year-old female. The district court granted Air France's motion for summary judgment. We reverse.

I

Lindahl worked as a Customer Promotion Agent in Air France's Los Angeles office. The office had two groups of employees to handle sales activities, Customer Promotion Agents and Sales Representatives. Sales Representatives worked mostly in the field promoting sales, while the Customer Promotion Agents worked inside, providing backup to the Sales Representatives.

In 1982, the District Manager, Karl Kershaw, told the Customer Promotion Agents that Air France was planning to create a new position of Senior Customer Promotion Agent and invited all of them to apply for the position. After considering their qualifications, Kershaw told Lindahl that she was the most qualified and would be given the promotion. Subsequently, however, Air France decided not to create the position, and Lindahl did not get the promotion.

In 1987, without any prior notification to the Customer Promotion Agents, Kershaw announced that he had chosen Edward Michels to fill a new Senior Customer Promotion Agent position. At that time, there were four eligible candidates: two women over age 40 (including Lindahl), and two men under age 40 (including Michels).

Lindahl, upset about the decision, decided to pursue Air France's grievance procedure. First, she asked Kershaw to give an explanation. After about six weeks, he responded that Michels had the "best overall qualifications." Unsatisfied, she wrote to Regional Manager Robert Watson. Watson responded by affirming Kershaw's decision. Finally, Lindahl had her attorney take her grievance to Personnel Services Manager Eugene Carrara. At this time, she made clear that she felt that the decision was the product of age and sex discrimination. Carrara held a hearing and decided to reject her claim because he believed the promotion decision was reasonable. In his decision, he stated that Michels's computer expertise was the principal reason for selecting him.

While the grievance proceeding was pending, Kershaw apparently became dissatisfied with the new organization of the group, and Watson suggested a reorganization to General Manager USA, Jean-Claude Baumgarten, that would have put Michels in a purely technical function and would have created another Senior Customer Promotion Agent position to deal with sales backup. The new position would have gone to Lindahl, but Baumgarten rejected the proposal.

Lindahl then filed claims with the California Department of Fair Employment and Housing and with the federal Equal Employment Opportunity Commission (EEOC). After exhausting her administrative remedies, she filed suit in the district court, alleging age and sex discrimination under 29 U.S.C. Secs. 623, 631 (ADEA) (prohibiting age discrimination against individuals over age 40) and 42 U.S.C. Sec. 2000e-2(a) (Title VII) (prohibiting sex discrimination). Air France moved for summary judgment on both causes of action.

The district court granted summary judgment on the ground that Lindahl had not raised a genuine issue of material fact as to whether Air France's legitimate, nondiscriminatory explanations are pretexts for discrimination. Lindahl filed a Rule 59(e) motion to alter, amend, and vacate the judgment, which the district court denied. She now appeals.

II

We review the district court's decision to grant summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990).

A

Summary judgment is proper if no factual issues exist for trial. The party opposing summary judgment must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in the light most favorable to the nonmoving party. Id. at 255, 106 S.Ct. at 2513. However, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.' " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citations omitted) (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)).

Lindahl argues that Air France's decision to promote Michels was disparate treatment on the basis of sex and age in violation of Title VII and the ADEA. ¹ The Supreme Court established the allocation of proof in Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The plaintiff "must carry the initial burden under the statute of establishing a prima facie case of ... discrimination." Id. at 802, 93 S.Ct. at 1824. The plaintiff can establish a prima facie case by showing, for example, that she belongs to a protected group, that she applied and was qualified for a job which was open for applications, that she was rejected, and that the position remained open after her rejection and the employer continued to seek applicants from persons of the plaintiff's qualifications. Id.; see also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 n. 6, 101 S.Ct. 1089, 1094 n. 6, 67 L.Ed.2d 207 (1981) (explaining that the McDonnell Douglas formulation is flexible and can be adapted to fit the facts of each case).

"The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. At that point, the burden shifts back to the plaintiff to show that the employer's reason was a pretext for discrimination. Id. at 804, 93 S.Ct. at 1825. The plaintiff may carry this burden "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. Disparate treatment claims under the ADEA "are analyzed by the same standard used to analyze disparate treatment claims under Title VII." Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1436 (9th Cir.1990).

Lindahl contends that once she has made out a prima facie case of discrimination, summary judgment is necessarily improper. She reasons that the prima facie case raises an inference of discrimination, and because on summary judgment all inferences must be resolved in her favor, she need not produce any additional evidence of pretext to defeat summary judgment.

We have made clear that a plaintiff cannot defeat summary judgment simply by making out a prima facie case. Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983). It is true that the prima facie case raises an inference of discrimination. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. However, when the employer produces legitimate, nondiscriminatory reasons for the employment decision, the inference of discrimination is rebutted. Id. at 255, 101 S.Ct. at 1094. "[T]he defendant's articulation of a legitimate nondiscriminatory reason serves ... to shift the burden back to the plaintiff to raise a genuine factual question as to whether the proffered reason is pretextual." Lowe v. City of Monrovia, 775 F.2d 998, 1008 (9th Cir.1985), amended, 784 F.2d 1407 (1986).

The plaintiff cannot carry this burden simply by restating the prima facie case and expressing an intent to challenge the credibility of the employer's witnesses on cross-examination. She must produce specific facts either directly evidencing a discriminatory motive or showing that the employer's explanation is not credible. See Steckl, 703 F.2d at 393. Still, because of the inherently factual nature of the inquiry, the plaintiff need produce very little evidence of discriminatory motive to raise a genuine issue of fact.

[A]ny indication of discriminatory motive ... may suffice to raise a question that can only be resolved by a factfinder. Once a prima facie case is established ..., summary judgment for the defendant will ordinarily not be appropriate on any ground relating to the merits because the crux of a Title VII dispute is the "elusive factual question of intentional discrimination."

Lowe, 775 F.2d at 1009 (quoting Burdine, 450 U.S. at 255 n. 8, 101 S.Ct. at 1094 n. 8).

B

The district court concluded, and the parties do not dispute, that Lindahl made out a prima facie case of...