Wallis v. J.R. Simplot Co., 92-36759

• Citation: 26 F.3d 885
• Decision Date: 14 July 1994
• Docket Number: No. 92-36759,92-36759
• Parties: 64 Fair Empl.Prac.Cas. (BNA) 1507, 65 Fair Empl.Prac.Cas. (BNA) 1216, 65 Fair Empl.Prac.Cas. (BNA) 1881, 64 Empl. Prac. Dec. P 43,074, 28 Fed.R.Serv.3d 1464 Gary E. WALLIS, husband; Carol Wallis, wife, Plaintiffs-Appellants, v. J.R. SIMPLOT COMPANY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 885

26 F.3d 885

64 Fair Empl.Prac.Cas. (BNA) 1507,

65 Fair Empl.Prac.Cas. (BNA) 1216,

65 Fair Empl.Prac.Cas. (BNA) 1881,

64 Empl. Prac. Dec. P 43,074, 28 Fed.R.Serv.3d 1464

Gary E. WALLIS, husband; Carol Wallis, wife, Plaintiffs-Appellants, v. J.R. SIMPLOT COMPANY, Defendant-Appellee.

No. 92-36759.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 6, 1994.

Decided May 26, 1994.

As Amended on Denial of Rehearing July 14, 1994.

Robert C. Huntley, Givens Pursley & Huntley, Boise, ID, for plaintiffs-appellants.

Rory R. Jones, Richard H. Greener, Cosho, Humphrey, Greener & Welsh, Boise, ID, for defendant-appellee.

Appeal from the United States District Court for the District of Idaho.

Before: CANBY, and T.G. NELSON, Circuit Judges, and SHUBB, ^* District Judge.

Opinion by Judge T.G. NELSON.

OPINION

T.G. NELSON, Circuit Judge:

I.

OVERVIEW

Gary and Carol Wallis appeal the district court's grant of summary judgment dismissing Wallis' claims for retaliatory discharge under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. Sec. 2000e, et seq., age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C Sec. 621, et seq., and various state law claims. ¹ We affirm.

II.

FACTS AND PROCEDURAL HISTORY

Gary Wallis (Wallis) was hired in 1982 by J.R. Simplot Company (Simplot) as Director of Human Resources. Early in his tenure, a female employee of Simplot made a charge of sexual harassment against a vice-president of Simplot. Wallis supported her in her claim by transferring her to another division. Later, a second employee was discharged by the vice-president for his support of the woman in the harassment claim. Wallis rehired this discharged employee for his own staff and made supportive public statements on behalf of the employee. These events occurred sometime during 1983, 1984 and 1985.

In late 1989 and early 1990, Gordon Smith (Smith), president of Simplot, decided to decentralize the human resources department so that it would function at the company's division level. Smith informed Wallis of the decision in June 1990. At that time, and on occasions thereafter, Smith told Wallis that Simplot would find a "new role" for him and that he would not be "hurt by the decentralization process."

On September 12, 1990, Smith sent Wallis a letter terminating his employment. Wallis contends his termination closely followed his presentation to Smith of a copy of a speech which he intended to give at an annual meeting of Simplot's management personnel. He contends that this speech was critical of Simplot's employment practices, and that his discharge was in retaliation for this proposed speech. On the basis of these allegations, Wallis filed suit in state court alleging violations of Title VII, the ADEA, and various state law claims. Simplot removed the case to federal district court.

The district court granted summary judgment for Simplot on all claims as it saw them on February 12, 1992. Wallis moved for reconsideration of the judgment, claiming he had pleaded a claim of retaliatory discharge which had not been addressed by the district court. Although the complaint did not clearly allege this claim, the district court considered the retaliatory discharge claim, and on July 7, 1992, it entered a second summary judgment adverse to Wallis on that claim also.

On July 15, 1992, Wallis moved the district court to alter or amend the second summary judgment pursuant to Fed.R.Civ.P. 59. Then, on August 4, 1992, Wallis filed a notice of appeal, appealing both summary judgments. Finally, on January 6, 1993, the district court entered an order denying the motion to alter or amend the second summary judgment.

III.

JURISDICTION

At the time Wallis filed his notice of appeal, Rule 4(a)(4) ² plainly stated that a notice of appeal filed during the pendency of a motion to alter or amend the judgment "shall have no effect." The Supreme Court, in Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982), held that a notice of appeal filed during the pendency of a Rule 59 motion is a nullity, as if no notice of appeal were filed at all. However, Rule 4(a)(4) was amended effective December 1, 1993, ³ to provide that when a notice is prematurely filed, it "shall be in abeyance, and shall become effective upon the date of entry of an order that disposes of the last of all such motions." Under the old version of Rule 4(a)(4), applicable at the time Wallis filed the notice of appeal, the notice was a nullity. Thus, the issue becomes whether the notice may be resurrected by a retroactive application of the amended version of Rule 4(a)(4). See Leader Nat'l Ins. Co. v. Industrial Indemnity Ins. Co., 19 F.3d 444, 445 (9th Cir.1994) (applying amended Rule retroactively); Burt v. Ware, 14 F.3d 256, 258 (5th Cir.1994) (holding amended rule applies retroactively unless it would work injustice).

The Supreme Court's order adopting the 1993 amendments to the Rules of Appellate Procedure provides:

That the foregoing amendments to the Federal Rules of Appellate Procedure shall take effect on December 1, 1993, and shall govern all proceedings in appellate cases thereafter commenced and, insofar as just and practicable, all proceedings in appellate cases then pending.

61 U.S.L.W. 5365 (U.S. Apr. 27, 1993) (emphasis added). Wallis' appeal was pending on December 1, 1993; thus, if the application of the 1993 amendment to this case is "just and practicable," we have jurisdiction.

The parties briefed this case and were prepared to argue it as though the notice of appeal were valid. Simplot cannot claim prejudice because it did not discover the defect in the filing of the notice of appeal until this court ordered supplemental briefing on the issue of jurisdiction after the case had already been set for oral argument. To allow the parties to proceed to present the appeal they have been working on since August 1992 is just. Further, practicality is no problem. No adjustments in briefing schedules or in calendaring of oral argument were required in order to address the issues raised by the parties.

Under the circumstances of this case, we hold that it is "just and practicable" to apply the amended version of Rule 4(a)(4) to this case. Therefore, we have jurisdiction to consider the appeal.

IV.

STANDARD OF REVIEW

"We review the district court's grant of summary judgment de novo to determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072, 1074 (9th Cir.1986). We do not weigh the evidence or determine the truth of the matter but only determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). The record below is examined to determine whether there is any basis for affirmance. Lowe v. City of Monrovia, 775 F.2d 998, 1007 (9th Cir.1985), as amended, 784 F.2d 1407 (1986). If the result reached by the district court is correct, we will affirm even if the district court relied on an erroneous ground. Id.

V.

RETALIATORY DISCHARGE AND AGE DISCRIMINATION

We combine the Title VII and ADEA claims for analysis because the burdens of proof and persuasion are the same. ⁴ See Rose v. Wells Fargo & Co., 902 F.2d 1417 1420 (9th Cir.1990) ("The shifting burden of proof applied to a Title VII discrimination claim also applies to claims arising under ADEA."). The basic allocation of burdens and order of presentation of proof for such claims follows three steps:

[A] plaintiff must first establish a prima facie case of discrimination. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. Then, in order to prevail, the plaintiff must demonstrate that the employer's alleged reason for the adverse employment decision is a pretext for another motive which is discriminatory.

Lowe, 775 F.2d at 1005.

The requisite degree of proof necessary to establish a prima facie case for Title VII and ADEA claims on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence. See Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir.1987), cert. denied, 498 U.S. 939, 111 S.Ct. 345, 112 L.Ed.2d 309 (1990). The plaintiff need only offer evidence which "gives rise to an inference of unlawful discrimination." Lowe, 775 F.2d at 1005 (quotation omitted). "The amount [of evidence] that must be produced in order to create a prima facie case is 'very little.' " Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1111 (9th Cir.1991); see also, Lowe, 775 F.2d at 1009. "Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981).

The prima facie case may be based either on a presumption arising from the factors such as those set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), or by more direct evidence of discriminatory intent. Lowe, 775 F.2d at 1009. In offering a prima facie case, of course, a plaintiff may present evidence going far beyond the minimum requirements.

Once a prima facie case has been made, the burden of production shifts to the defendant, who must offer evidence that the adverse action was taken for other than impermissibly discriminatory reasons. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. Once the defendant fulfills this burden of production by offering a legitimate, nondiscriminatory reason for its employment decision, the McDonnell Douglas presumption of unlawful discrimination "simply drops out of the picture." St. Mary's Honor Ctr. v....