Palmer v. Pioneer Inn Associates, Ltd.

• Citation: 338 F.3d 981
• Decision Date: 22 July 2003
• Docket Number: No. 00-15397.,00-15397.
• Parties: Dena PALMER, Plaintiff-Appellant, v. PIONEER INN ASSOCIATES, LTD., A Limited Partnership, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

338 F.3d 981

Dena PALMER, Plaintiff-Appellant, v. PIONEER INN ASSOCIATES, LTD., A Limited Partnership, Defendant-Appellee.

No. 00-15397.

United States Court of Appeals, Ninth Circuit.

Argued June 12, 2001.

Submitted July 22, 2003 — San Francisco, California.

Filed July 22, 2003.

Ian E. Silverberg, Reno, NV, for the plaintiff-appellant.

Miranda Du, McDonald Carano Wilson McCune Bergin Frankovich & Hicks, LLP, Reno, NV, for the defendant-appellee.

Before: GOODWIN, GRABER, and McKEOWN, Circuit Judges.

Opinion by Judge McKEOWN; Partial Concurrence and Partial Dissent by Judge GRABER.

OPINION

McKEOWN, Circuit Judge:

This employment discrimination case, brought by Dena Palmer against a prospective employer, Pioneer Inn Associates, Ltd., involves the intersection of evidentiary and ethical issues. It returns to us after the Nevada Supreme Court resolved our certified question regarding the scope of acceptable ex parte contacts between an attorney and an employee of a represented party. We take up three issues on appeal: (1) whether the district court erred in granting summary judgment for Pioneer with respect to two of Palmer's three claims on the ground that she did not satisfy the test for prima facie discrimination set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); (2) whether, in light of the Nevada Supreme Court's answer to our certified question, the district court erred in excluding an affidavit from one of Pioneer's employees as a sanction for ex parte contact between Palmer's attorney and the employee; and (3) whether the district court abused its discretion in barring testimony at trial about the two dismissed claims. We reverse the district court's grant of summary judgment and its exclusion of the employee's affidavit and remand for trial.

FACTUAL AND PROCEDURAL BACKGROUND

This factual background is taken from the affidavits and other evidence presented in connection with the summary judgment motion. Because we do not reach any issue regarding trial evidence, it is unnecessary to address the evidence presented at trial. With respect to the appeal from a grant of summary judgment in Pioneer's favor, we review the facts in the light most favorable to Palmer, the nonmoving party. They are as follows: On January 20, 1997, Palmer contacted Greg Zamora, Pioneer's food and beverage director, and inquired about job openings at Pioneer. She was six months pregnant at the time. He told her that job openings existed and that she should file an application with Pioneer's personnel director, Julie Gonzalez. On January 21, Palmer filed an application and had a screening interview with Gonzalez. On her application, Palmer indicated that she was interested in "coffee shop" or "deli server" positions, and that she was available to work Monday through Friday from 8:00 a.m. to 4:00 p.m., and also would be working from 5:00 p.m. to 10:00 p.m. on those days at the Olive Garden restaurant. The next day, she called Zamora, who told that her that her application had been approved and that a deli position might be open. She agreed to accept this position. Zamora contacted her the following day and told her that he would like her to work six days a week as a floater waitress in all three Pioneer restaurants, an offer that Palmer accepted. Zamora told her to start orientation the following Tuesday. On Sunday, January 26, Palmer quit her job at the Olive Garden.

Before her orientation at Pioneer was to begin, Zamora contacted Palmer again, this time to tell her that he needed a supervisor and believed she was qualified for the position. They met to discuss the position, and Zamora introduced her to several other employees. He asked her to begin work on Monday, February 3. When she arrived that afternoon, he introduced her to the other employees but informed her that his supervisor, Guy Archer, had overturned Palmer's hiring due to her pregnancy. Zamora assured her that he would talk to Archer on her behalf. Palmer testified that when she next spoke with Zamora, approximately a week and a half later, he told her that Archer "was just not going to allow him to have me work there being pregnant and that he would definitely not allow me to be a waitress because I was pregnant."

Soon thereafter, Palmer notified Pioneer of her intent to file suit. Palmer received a right to sue letter from the Equal Employment Opportunity Commission, and filed suit in July 1997, charging unlawful termination under Title VII of the Civil Rights Act of 1964 and related state law violations.

Pioneer moved to disqualify Palmer's counsel on the basis of ex parte contacts with four Pioneer employees. Three of those contacts are not at issue in this appeal. The remaining contact involved communication between Palmer's attorney and George Kapetanakis, an executive sous chef at Pioneer. In April 1997, Kapetanakis had contacted Palmer's attorney after speaking with one of Palmer's friends. Kapetanakis then signed an affidavit stating: "During the month of January, 1997, I witnesses [sic] Mr. Greg Zamora interviewing... [Ms. Palmer].... I inquired of Mr. Zamora whether he intended to hire [her] at which time Mr. Zamora told me that he had already hired her." The district court found that Kapetanakis was a supervisor with responsibility for interviewing and hiring cooks, dishwashers, and sous chefs. The court concluded that "[b]ecause his job responsibilities included hiring employees, Kapetanakis was in a position to make statements concerning the hiring policies of Pioneer." Palmer v. Pioneer Hotel & Casino, 19 F.Supp.2d 1157, 1166 (D.Nev.1998) ("Palmer I"). The court accordingly held that counsel's contact with Kapetanakis constituted ex parte contact with a represented party and sanctioned Palmer's attorney by fining him and excluding the Kapetanakis affidavit.

Pioneer moved for summary judgment on all claims. The court concluded that because Palmer did not present evidence that the day shift waitress and supervisor positions remained open after she was rejected, and because Pioneer presented evidence that it did not continue to advertise for those positions, Palmer failed to satisfy the fourth prong of the McDonnell Douglas prima facie test for discrimination. The court granted summary judgment on those two claims. The remaining claim, which related to the deli server position, went to trial. On a motion in limine by Pioneer, the district court barred testimony regarding the supervisor and day shift waitress positions, but allowed testimony and cross-examination about the content of the meetings and conversations in which the jobs were discussed. The jury found for Pioneer, and this appeal followed.

DISCUSSION

A. SUMMARY JUDGMENT

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, prohibits employers from failing or refusing to hire or discharging "any individual ... because of such individual's ... sex." Id. § 2000e-2(a)(1). Title VII defines discrimination "because of sex" as including discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions." Id. § 2000e(k).

To establish a prima facie case of discrimination, a Title VII plaintiff must offer evidence that "give[s] rise to an inference of unlawful discrimination." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The prima facie case may be established "either through the framework set forth in McDonnell Douglas Corp. v. Green or ... [through] direct evidence of discriminatory intent." Vasquez v. County of L.A., 307 F.3d 884, 889 (9th Cir.2002) (citation footnote omitted). Establishing a prima facie Title VII case in response to a motion for summary judgment requires only "minimal" proof and "does not even need to rise to the level of a preponderance of the evidence." Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994); see also Lowe v. City of Monrovia, 775 F.2d 998, 1009 (9th Cir.1985) ("[S]ummary 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.'" (quoting Burdine, 450 U.S. at 255 n. 8, 101 S.Ct. 1089)).

We review de novo the grant of summary judgment in favor of Pioneer. Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir.2000). Palmer presented sufficient direct evidence to survive summary judgment on all three of her employment claims. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir.1998) ("`Direct evidence is evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption.'" (alteration in original) (quoting Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir.1994))). Palmer claimed that she was offered positions as a deli worker, a waitress, and a supervisor. She then stated that Zamora told her that Guy Archer "has overturned hiring you because you're pregnant," and later "told me that Guy Archer was just not going to allow him to have me work there being pregnant and that he would definitely not allow me to be a waitress because I was pregnant." Viewing the testimony in her affidavit in the light most favorable to Palmer as the nonmoving party, her testimony provides direct evidence sufficient to raise a material question of disputed fact as to whether Pioneer discriminated against her. The district court therefore erred in granting summary judgment on the day shift waitress and supervisor positions.

B. SANCTIONS

We next consider the district court's sanctioning of Palmer's attorney for ex parte communication with Kapetanakis. Although we review the imposition of discovery sanctions for abuse of discretion, Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir.), cert. denied, 537 U.S. 1018, 123 S.Ct. 536, 154 L.Ed.2d 425 (2002), here the sanctions issue stems from resolution of a legal...