United States v. 2007-11-01 | 05-16414 | Beck Vunited Food Commercial Workers Union, Local 99 |…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 CHERYL ANN BECK,
Plaintiff-Appellee, No. 05-16414
v. D.C. No.
 CV-02-00495-EHCUNITED FOOD AND COMMERCIAL
WORKERS UNION, Local 99, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Arizona
Earl H. Carroll, District Judge, Presiding
Argued and Submitted
May 14, 2007—San Francisco, California
Filed November 1, 2007
Before: Cynthia Holcomb Hall, Diarmuid F. O’Scannlain,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
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COUNSEL
Michael T. Anderson, Davis, Cowell & Bowe, LLP, San
Francisco, California, for the defendant-appellant.
Helen Perry Grimwood, The Grimwood Law Firm plc, Phoe-
nix, Arizona, for the plaintiff-appellee.
OPINION
IKUTA, Circuit Judge:
Local 99 of the United Food and Commercial Workers
Union appeals from the district court’s determination that
Local 99 violated Title VII and breached its duty of fair repre-
sentation in connection with the termination of one of its
members, Cheryl Beck. Local 99’s appeal requires us to con-
sider the proper role of comparative evidence in a Title VII
case against a union and the framework that must be applied
to a member’s claim that the union breached its duty of fair
representation. We have jurisdiction pursuant to 28 U.S.C.
§ 1291 and we affirm the district court’s decision.
FACTUAL AND PROCEDURAL BACKGROUND
Before she was terminated for two alleged incidents of pro-
fanity, Cheryl Beck was employed as a scanning coordinator
by Fry’s Food Stores. At all relevant times, Beck’s employ-
ment was governed by the collective bargaining agreement
between Local 99 and Fry’s which prohibited the use of “pro-
fane, abusive or threatening language toward fellow employ-
ees.” The collective bargaining agreement also provided that
an employee could not be disciplined without “just cause.”
On April 13, 2001, Beck had a conversation with Bob
Evans in the parking lot of Fry’s Prescott store before report-
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ing to work. Evans, an employee with whom Beck previously
had a romantic relationship, had recently been promoted. The
conversation became heated when Beck implied that Evans’
recent promotion was due to favoritism, not merit. Evans sub-
sequently submitted a statement to Fry’s management accus-
ing Beck of using profanity in the course of this conversation.
No one else witnessed the incident.
Acting upon Evans’ statement, Fry’s suspended Beck. Beck
reported this suspension to Barbara Cleckner, Local 99’s field
representative. A meeting was scheduled on April 20, 2001,
among Beck, Cleckner, and Fry’s, for the administration of
any discipline. Prior to the meeting, Fry’s management
informed Cleckner that it intended to terminate Beck on the
ground that Beck had a “history of a foul mouth.” In eight and
a half years of working for Fry’s and its predecessor Smith’s,
Beck had not previously been disciplined for using profanity.
In her meeting with Cleckner prior to the scheduled meet-
ing with Fry’s management, Beck denied using profanity in
her April 13, 2001 conversation with Evans. She also main-
tained that any statements made in the course of her conversa-
tion with Evans were not actionable because the conversation
occurred while Beck was off duty.
At the April 20, 2001 meeting, Fry’s issued Beck a “Final
Written Warning,” which provided, in relevant part, that “any
further conduct [involving] the use of profanity, inappropriate
comments or malicious gossip will result in termination.” At
trial, Beck testified she asked Cleckner to file a grievance
contesting the warning. Knowing of both Fry’s intent to ter-
minate Beck, and of Beck’s health problems, Cleckner prom-
ised to file Beck’s requested grievance but she never did so.
On July 5, 2001, Beck had an argument with Cecil Carr, the
store secretary, over a pay error. Carr asserted that Beck used
profanity in the course of the argument, an accusation Beck
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denied. Fry’s credited Carr’s version of the incident and ter-
minated Beck on July 9, 2001.
At Beck’s request, Local 99 filed a grievance contesting
Beck’s termination. Beck provided Local 99 with a six-page
statement setting forth the basis for her grievance. A represen-
tative from Fry’s Human Resources Department conducted an
investigation of the events leading up to Beck’s termination
and provided Local 99 with copies of relevant notes, records,
and employee statements gathered in the course of that inves-
tigation. In September, Local 99 contacted its attorney to
determine whether it was legally required to demand arbitra-
tion of Beck’s grievance. The attorney provided an opinion
letter stating that, in his view, a single incident of alleged pro-
fanity would not constitute just cause for discharge. However,
the attorney opined that an arbitrator would “almost certainly”
conclude that termination for a second incident of profanity
constituted just cause when the first incident resulted in an
unchallenged written warning less than three months earlier.
Local 99 subsequently informed Beck that it would not arbi-
trate her grievance.
After obtaining a right-to-sue letter from the Equal
Employment Opportunity Commission, Beck filed the present
action in United States District Court for the District of Ari-
zona, alleging that Local 99 discriminated against her on the
basis of her sex in violation of § 703(c)(1) of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(c)(1),1 and that
Local 99 breached its duty to represent her fairly.2 The case
proceeded to a bench trial.
As the plaintiff in a Title VII disparate treatment case, Beck
1“It shall be an unlawful employment practice for a labor organization
. . . to discriminate against, any individual because of his race, color, reli-
gion, sex, or national origin . . . .” 42 U.S.C. § 2000e-2(c)(1).
2Fry’s was originally named as a co-defendant, but later settled with
Beck.
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bore the burden of proving that Local 99’s actions were moti-
vated by intentional sex discrimination. Beck sought to carry
this burden by demonstrating that the grievances of two simi-
larly situated men were handled by the same Local 99 repre-
sentatives with greater zeal than her grievances and the
grievance of another similarly situated female. Specifically,
Beck introduced evidence that Cleckner and other Local 99
representatives aggressively represented Larry Molitor, a
male employee who had been the subject of multiple disci-
plinary actions, including discipline for using “profane lan-
guage, racially discriminatory remarks, and threatening
comments,” for threatening a co-worker with a twelve-inch
knife, and for “unprofessional conduct, threatening of
employees, [and] throwing product and equipment.” Second,
Beck introduced evidence that Local 99 aggressively repre-
sented Don Pulaski, a male employee who had been sus-
pended after he had a tussle with another employee. The
union successfully represented Pulaski, who was reinstated by
Fry’s. Finally, Beck introduced evidence that Local 99 did not
aggressively represent Lois Reinhold, a female employee,
who was terminated for allegedly extending the expiration
date on some meat. Although there was evidence that the
male employee who replaced Reinhold, and the male
employee who had worked with Reinhold, engaged in the
same conduct and were not terminated, the union did not use
this comparison to help Reinhold win her job back.
The district court inferred from Beck’s evidence regarding
the three employees that Local 99’s decisions not to pursue
Beck’s grievances were fueled by discriminatory animus.
Having found that the union’s actions were motivated by sex
discrimination, the district court entered judgment in favor of
Beck on her Title VII claim.
With respect to Beck’s duty of fair representation claim, the
district court ruled that the union breached its duty in handling
both Beck’s April warning and her subsequent July termina-
tion. The district court determined that Local 99’s failure to
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file a grievance contesting the April warning constituted an
arbitrary, discriminatory, and bad faith failure to perform a
ministerial action. The district court also concluded that Local
99’s decision not to arbitrate Beck’s July termination was the
result of discrimination and bad faith.
As to both these claims, the district court awarded Beck
$16,304 in lost wages, $125,000 in compensatory damages
for emotional distress, $50,000 in punitive damages, and
attorney’s fees and costs, not yet fixed. Local 99 timely
appealed.
DISCUSSION
I
We first turn to the district court’s holding that Local 99
breached its duty of fair representation in handling Beck’s
grievances. “The duty of fair representation is a judicially
established rule imposed on labor organizations because of
their status as the exclusive bargaining representative for all
of the employees in a given bargaining unit.” Peterson v. Ken-
nedy, 771 F.2d 1244, 1253 (9th Cir. 1985). The duty of fair
representation exists because a single labor organization rep-
resents the interests of all employees within a unit, and “if
individual employees are not to be deprived of all effective
means of protecting their own interests, it must be the duty of
the representative organization to ‘serve the interests of all
members without hostility or discrimination toward any, to
exercise its discretion with complete good faith and honesty,
and to avoid arbitrary conduct.’ ” DelCostello v. Int’l Bhd. of
Teamsters, 462 U.S. 151, 164 n.14 (1983) (quoting Vaca v.
Sipes, 386 U.S. 171, 177 (1967)). The burden of proving a
breach of the duty of fair representation is on the plaintiff.
Vaca, 386 U.S. at 193; Slevira v. W. Sugar Co., 200 F.3d
1218, 1221 (9th Cir. 2000) (citing Vaca).
A union breaches its duty of fair representation when its
“conduct toward a member of the collective bargaining unit
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is arbitrary, discriminatory, or in bad faith.” Vaca, 386 U.S.
at 190; see also Air Line Pilots Ass’n. Int’l v. O’Neill, 499
U.S. 65, 67 (1991). Conduct can be classified as arbitrary
“only when it is irrational, when it is without a rational basis
or explanation.” Marquez v. Screen Actors Guild, Inc., 525
U.S. 33, 46 (1998). This deferential standard for arbitrary
conduct “gives the union room to make discretionary deci-
sions and choices, even if those judgments are ultimately
wrong.” Marquez, 525 U.S. at 45-46.
In light of this standard, we have analyzed the breach of the
duty of fair representation on a continuum. See Peters v. Bur-
lington N.R.R. Co., 931 F.2d 534, 539-40 (9th Cir. 1991)
(“ ‘[M]inisterial act’ and ‘act of judgment’ represent . . .
opposing points on a continuum that broadly attempts to sepa-
rate discretionary decision making from inexplicable con-
duct.”); see also Marino v. Writers Guild of Am., E., Inc., 992
F.2d 1480, 1486 (9th Cir. 1993).
On one end of the continuum is intentional conduct by a
union exercising its judgment. Peters, 931 F.3d at 539-40. As
noted above, a union’s conduct constitutes an exercise of
judgment entitled to deference even when the union’s “judg-
ments are ultimately wrong.” Marquez, 525 U.S. at 45-46.
Under Supreme Court precedents, so long as a union exercises
its judgment, no matter how mistakenly, it will not be deemed
to be wholly irrational. Id. at 46; O’Neill, 499 U.S. at 78. We
may decline to give a union the deference owed to an exercise
of judgment only where union actions or inactions are “so far
outside a wide range of reasonableness that [they are] wholly
irrational or arbitrary.” O’Neill, 499 U.S. at 78 (internal quo-
tations and citations omitted); see also Peters, 931 F.2d at 540
(“[I]t makes little sense to allow a union to hide behind the
mantle of ‘judgment’ and ‘discretion’ when the evidence sug-
gests that it actually exercised neither.”); Peterson v. Ken-
nedy, 771 F.2d 1244, 1254 (1985) (“In all cases in which we
found a breach of the duty of fair representation based on a
union’s arbitrary conduct, it is clear that the union failed to
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perform a procedural or ministerial act, that the act in ques-
tion did not require the exercise of judgment and that there
was no rational and proper basis for the union’s conduct.”
(emphasis added)).
Although we cannot deem a union’s exercises of judgment
to be wholly irrational and thus arbitrary, a union can still
breach the duty of fair representation if it exercised its judg-
ment in bad faith or in a discriminatory manner. Moore v.
Bechtel Power Corp., 840 F.2d 634, 636 (9th Cir. 1988). To
establish that the union’s exercise of judgment was discrimi-
natory, a plaintiff must adduce “substantial evidence of dis-
crimination that is intentional, severe, and unrelated to
legitimate union objectives.” Amalgamated Ass’n of St., Elec.
Ry. & Motor Coach Employees of Am. v. Lockridge, 403 U.S.
274, 301 (1971) (internal quotations omitted); see also Vaca,
386 U.S. at 177. To establish that the union’s exercise of
judgment was in bad faith, the plaintiff must show “substan-
tial evidence of fraud, deceitful action or dishonest conduct.”
Lockridge, 403 U.S. at 299.
On the other end of the continuum are actions or omissions
that are unintentional, irrational or wholly inexplicable, such
as an irrational failure to perform a ministerial or procedural
act, Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270, 1273
(9th Cir. 1983); see also Marquez v. Screen Actors Guild,
Inc., 124 F.3d 1034, 1043 (9th Cir. 1997), aff’d, 525 U.S. 33
(1998). We have referred to such actions or omissions as “ar-
bitrary” action. For example, courts have consistently refused
to accept unions’ claims that their actions involved any judg-
ment or strategy where the union simply failed to perform
some procedural act. See, e.g., Peters, 931 F.2d at 541
(“[plaintiff] had presented a triable question as to whether the
union acted in a completely arbitrary, indifferent manner by
failing to research the [collective bargaining agreement]”);
Moore, 840 F.2d at 637 (failure to provide notice of meetings
and tardy notification of a grievance decision might be arbi-
trary); Galindo v. Stoody Co., 793 F.2d 1502, 1514 (9th Cir.
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1986) (union representative’s failure to notify employer that
employee was a steward was arbitrary where the representa-
tive knew of impending layoffs); Dutrisac, 749 F.2d at 1274
(union’s failure to file a grievance on time was arbitrary);
Robesky v. Qantas Empire Airways, Ltd., 573 F.2d 1082,
1091 (9th Cir. 1978) (“trier of fact could reasonably find that
the Union’s failure to disclose to appellant that her grievance
would not be submitted to arbitration” was arbitrary).
These arbitrary actions can breach the duty of fair represen-
tation only where the act substantially injures the union mem-
ber. Such an injury may arise in situations where “the
individual interest at stake is strong” and the union’s arbitrary
action or omission “completely extinguishes the employee’s
[grievance] right[s],” Dutrisac, 749 F.2d at 1274, or where the
union’s arbitrary actions “ ‘reflect reckless disregard for the
rights of an individual employee,’ ” or “ ‘severely prejudice
the injured employee’ ” under circumstances that do not fur-
ther the policies underlying the duty of fair representation.
Marquez, 124 F.3d at 1043 (quoting Robesky, 573 F.2d at
1090).
[1] In sum, in order to hold that union conduct breached the
duty of fair representation, we must determine either that the
union conduct at issue is a discriminatory or bad faith exercise
of judgment, or is an arbitrary (meaning wholly irrational,
inexplicable, or unintentional) action that substantially injured
an employee. See, e.g., Marino v. Writers Guild of Am., E.,
Inc., 992 F.2d 1480, 1486 (9th Cir. 1993).
We review de novo the question whether the union engaged
in arbitrary conduct that substantially injured a member, and
thus amounted to a breach of its duty of fair representation.
Galindo, 793 F.2d at 1513 (citing United States v. McConney,
728 F.2d 1195, 1204 (9th Cir. 1984) (en banc)).
A
The district court determined that Local 99’s failure to file
a grievance with respect to Beck’s April warning did not stem
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from Local 99’s exercise of judgment, but was instead a min-
isterial act. Local 99 contests the district court’s ruling, con-
tending that its decision not to challenge Beck’s April
warning was a rational exercise of judgment to which the dis-
trict court should have deferred.
[2] We must reject Local 99’s argument on this point. The
record in this case supports the district court’s conclusion that
Local 99’s decision not to pursue Beck’s grievance stemmed
not from its evaluation of the merits of Beck’s complaint, but
rather from a failure to perform the ministerial action of filing
a timely grievance. Cleckner testified at trial that she
informed Beck that Local 99 would file a grievance challeng-
ing the April warning if Beck so desired. There is no dispute
that Cleckner had the authority to make this representation on
the union’s behalf. The district court credited Beck’s testi-
mony that she had requested Cleckner to file the grievance.
Where a union has agreed to file a grievance but fails to file
the grievance in a timely fashion, the union’s error is properly
characterized as a “failure to perform a ministerial act
required to carry out [its] decision.” Dutrisac, 749 F.2d at
1273.
[3] The district court further determined that the union’s
failure to file the grievance was an arbitrary action that sub-
stantially injured Beck, and thus a breach of its duty of fair
representation. We agree. The district court found that Beck
“would not have been terminated for the July 2001 incident
but for the Union’s failure to file a grievance with respect to
the April 2001 incident.” This finding is consistent with the
opinion letter of Local 99’s attorney, which concluded that
arbitration of Beck’s termination would be futile given Beck’s
failure to timely challenge the April warning. As a result of
this advice from its attorney, Local 99 subsequently declined
to arbitrate Beck’s grievance. Therefore, Local 99’s failure to
challenge Beck’s April warning effectively extinguished her
right to challenge her ultimate termination.
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[4] Because “the individual interest at stake is strong and
the union’s failure to perform a ministerial act completely
extinguishes the employee’s right to pursue [her] claim,”
Dutrisac, 749 F.2d at 1274, the union’s failure to file the orig-
inal grievance was not mere negligence. Rather, the union
here treated Beck’s claim “so lightly as to suggest an egre-
gious disregard of her rights.” Wellman v. Writers Guild of
Am., W., Inc., 146 F.3d 666, 671 (9th Cir. 1998) (internal quo-
tations omitted). We have emphasized that “[t]he union
should be held to a higher standard of care in discharge cases
involving off-duty conduct because the sanction is severe and
the nexus between job performance and the alleged miscon-
duct is more attenuated.” Johnson v. USPS, 756 F.2d 1461,
1465-66 (9th Cir. 1985). The policies underlying the duty of
fair representation would not be served by shielding Local 99
from liability for this unexplained failure. See Marquez, 124
F.3d at 1043. Under these circumstances, the district court
was correct in determining that Local 99’s failure to perform
a ministerial function of filing a timely grievance concerning
Beck’s April discipline is arbitrary conduct establishing a
breach of Local 99’s duty of fair representation. See Vaca,
386 U.S. at 191 (union acts “arbitrarily” when it simply
ignores a meritorious grievance or handles it in a perfunctory
manner).
B
[5] Local 99 also challenges the district court’s determina-
tion that it breached its duty of fair representation in handling
Beck’s July termination. The district court concluded that
Local 99’s decision not to arbitrate Beck’s termination was
not entitled to deference because it was tainted by the Union’s
intentional gender discrimination and bad faith conduct.
Because we conclude that the Union breached the duty of fair
representation with respect to its handling of Beck’s April
warning, and that Beck’s ultimate termination was a direct
consequence of that breach, we need not decide whether
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Local 99 also breached the duty of fair representation in
declining to subsequently arbitrate Beck’s July termination.
II
We must also address the district court’s finding that Local
99 discriminated against Beck on the basis of her sex in viola-
tion of Title VII by failing to provide her with the same qual-
ity of representation as it provided to similarly situated males.
A
We review legal questions relating to a Title VII or similar
sex discrimination claim de novo. United States v. McConney,
728 F.2d 1195, 1201 (9th Cir. 1984) (en banc). A finding of
discriminatory intent is a finding of fact reviewed for clear
error. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 524
(1993); USPS Bd. of Governors v. Aikens, 460 U.S. 711, 716
(1983). So long as the district court’s findings are “plausible,”
we must not set them aside even if “sitting as the trier of fact,
[we] would have weighed the evidence differently.” Anderson
v. Bessemer City, 470 U.S. 564, 574 (1985).
[6] Section 703(c)(1) of Title VII of the Civil Rights Act
of 1964 makes it “an unlawful employment practice for a
labor organization . . . to discriminate against[ ] any individ-
ual because of his race, color, religion, sex, or national ori-
gin.” 42 U.S.C. § 2000e-2(c)(1). A union violates Title VII if
it deliberately declines to pursue a member’s claim because of
the member’s gender. See Pejic v. Hughes Helicopters, Inc.,
840 F.2d 667, 671-74 (9th Cir. 1988).
[7] The standard burden-shifting framework established by
the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973), applies to a Title VII action against
a union. See Pejic, 840 F.2d at 674. Adapting the McDonnell
Douglas criteria3 to a § 703(c)(1) action, a union member can
3McDonnell-Douglas set forth the elements of a prima facie case as fol-
lows:
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make a prima facie claim of discrimination by introducing
evidence that the member “was singled out and treated less
favorably than others similarly situated on account of race or
any other criterion impermissible under the statute.” Gay v.
Waiters’ & Dairy Lunchmen’s Union, 694 F.2d 531, 537 (9th
Cir. 1982); see also Pejic, 840 F.2d at 674. As in McDonnell
Douglas, such a showing of disparate treatment raises an
inference of discrimination “because experience has proved
that in the absence of any other explanation it is more likely
than not that those actions were bottomed on impermissible
considerations.” Furnco Constr. Corp. v. Waters, 438 U.S.
567, 579-80 (1978).
If the plaintiff succeeds in establishing a prima facie case
of discrimination against the union, the burden of production
shifts to the union to articulate a legitimate, non-
discriminatory reason for the less favorable treatment. Pejic,
840 F.2d at 674. The union must provide “reasons for its
actions which, if believed by the trier of fact, would support
a finding that unlawful discrimination was not the cause of the
. . . action.” Hicks, 509 U.S. at 507. Once the defendant pro-
duces sufficient evidence to satisfy this burden, “ ‘the
McDonnell Douglas framework — with its presumptions and
burdens’ — disappear[s],” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 142-43 (2000) (quoting Hicks, 509
U.S. at 510), and the plaintiff “retains that ultimate burden of
persuading the [trier of fact] that [he] has been the victim of
The complainant in a Title VII trial must carry the initial burden
under the statute of establishing a prima facie case of racial dis-
crimination. This may be done by showing (i) that he belongs to
a racial minority; (ii) that he applied and was qualified for a job
for which the employer was seeking applicants; (iii) that, despite
his qualifications, he was rejected; and (iv) that, after his rejec-
tion, the position remained open and the employer continued to
seek applicants from persons of complainant’s qualifications.
411 U.S. at 802 (footnote omitted).
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intentional discrimination.” Hicks, 509 U.S. at 508 (internal
quotations omitted).
The trier of fact may infer the ultimate fact of intentional
discrimination from the plaintiff’s prima facie case and disbe-
lief of the defendant’s explanation for the action. See Reeves,
530 U.S. at 147 (“Moreover, once the employer’s justification
has been eliminated, discrimination may well be the most
likely alternative explanation, especially since the employer is
in the best position to put forth the actual reason for its deci-
sion.”); Hicks, 509 U.S. at 511. However, a trier of fact is not
required to infer discrimination even if the employer’s prof-
fered explanation is unpersuasive. Reeves, 530 U.S. at 148;
see also Hicks, 509 U.S. at 524.
[8] It is well established that a Title VII plaintiff may prove
a defendant’s discriminatory motive through circumstantial
evidence alone. See Desert Palace, Inc. v. Costa, 539 U.S. 90,
100 (2003); Aikens, 460 U.S. at 714 n.3; Cornwell v. Electra
Cent. Credit Union, 439 F.3d 1018, 1030 (9th Cir. 2006). Evi-
dence that one or more similarly situated individuals outside
of the protected class received more favorable treatment can
constitute sufficient evidence of discrimination for a Title VII
plaintiff to prevail. See, e.g., McDonald v. Santa Fe Trail
Transp. Co., 427 U.S. 273, 282 (1976) (holding that a plaintiff
can establish a Title VII violation based on evidence that two
white employees “were discharged for their alleged participa-
tion in a misappropriation of cargo . . . but that a fellow [non-
white] employee . . . was not”); Noyes v. Kelly Servs., 488
F.3d 1163, 1172 (9th Cir. 2007) (evidence that an employer
favored a “more junior, less qualified” religious employee
over a non-religious employee supported an inference of dis-
crimination); Josephs v. Pac. Bell, 443 F.3d 1050, 1065 (9th
Cir. 2006) (holding that the district court did not err in admit-
ting comparative evidence regarding three similarly situated
employees); Vasquez v. County of Los Angeles, 349 F.3d 634,
641 (9th Cir. 2003) (evaluating comparative evidence regard-
ing two other employees); Raad v. Fairbanks N. Star Bor-
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ough, 323 F.3d 1185, 1194 (9th Cir. 2003) (holding that
plaintiff “demonstrated a genuine factual dispute as to
whether . . . proffered reasons were pretextual,” where defen-
dant hired a less-qualified applicant); cf. Snead v. Metropoli-
tan Prop. & Cas. Ins. Co., 237 F.3d 1080, 1094 (9th Cir.
2001) (evidence that one other similarly situated employee
was treated in a similar manner negated plaintiff’s showing of
pretext).
B
In this case, the district court held that Beck proved the ulti-
mate fact of intentional discrimination based on her prima
facie case. Relying on EEOC v. Reynolds Metals Co., 212 F.
Supp. 2d 530, 539-40 (E.D. Va. 2002), the district court
stated, “To establish a Title VII sex discrimination claim
against a union, an employee must show that: (1) the
employer violated the collective bargaining agreement with
respect to the employee; (2) the union breached its duty of fair
representation by allowing the breach to go unrepaired; and
(3) there is some evidence of gender animus among the
union.” This test, derived from a Seventh Circuit test for
establishing a prima facie case of discrimination, see Bugg v.
Int’l Union of Allied Indus. Workers of Am., 674 F.2d 595
(7th Cir. 1982), is generally consistent with the McDonnell
Douglas framework.4
Addressing these prongs, the district court first concluded
that Fry’s had violated the collective bargaining agreement in
4We note that the third prong of the district court’s test has been super-
seded by Goodman v. Lukens Steel Co., 482 U.S. 656 (1987), which held
that a Title VII plaintiff need not show that the union had a negative ani-
mus toward the protected class. Id. at 669. Of course, while evidence of
the union’s animus is not required, a union member must still introduce
evidence that the member “was singled out and treated less favorably than
others similarly situated on account of race or any other criterion imper-
missible under the statute.” Gay v. Waiters’ & Dairy Lunchmen’s Union,
694 F.2d 531, 537 (9th Cir. 1982); see also 42 U.S.C. § 2000e-2(c)(1).
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terminating Beck without just cause. The district court then
determined that Local 99 failed to repair the breach of the
agreement, by not filing a grievance despite Beck’s request
and Cleckner’s knowledge that Fry’s intended to terminate
Beck. Finally, the court held that the union’s “failure to repair
the breach was due to a discriminatory motivation based on
plaintiff’s sex.”
The district court’s ruling was based on a number of find-
ings. First, the court found that “[f]or men, the Union was an
aggressive advocate,” but “[f]or women like Reinhold and
[Beck], the Union effectively accepted Fry’s decisions instead
of taking their claims to arbitration.” The court concluded that
the same union representatives “fail[ed] to provide the same
quality of representation” for Beck as for “similarly situated
males.” The court also found that at least one male employee
(Molitor) who received more favorable treatment than Beck
was “similarly situated in all material respects” to Beck.
Finally, the court found that Local 99’s “handling of Rein-
hold’s grievance strengthens the inference that it intentionally
discriminated on the basis of sex in handling the grievances
of female members.”
Evaluating this evidence, the district court made a factual
determination that only a discriminatory motive could explain
why Local 99 failed to represent Cheryl Beck aggressively.
The district court concluded that Local 99 discriminated
against Beck on the basis of her sex and ruled that Beck had
succeeded in proving her Title VII case.
On appeal, Local 99 asserts that the evidence offered by
Beck to establish Local 99’s discriminatory intent was insuffi-
cient as a matter of law to support the district court’s infer-
ence of discriminatory motive. Local 99 argues that Beck
could not raise an inference of discrimination based on two
similarly situated males and one similarly situated female,
because an inference of discriminatory intent does not arise as
a matter of law where the statistical evidence is based on too
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small a sample size, does not presents a “stark pattern” of dis-
crimination, and does not “account for possible nondiscrimi-
natory variables.” Aragon v. Republic Silver State Disposal,
292 F.3d 654, 663 (9th Cir. 2002); see also Coleman v.
Quaker Oats Co., 232 F.3d 1271, 1283 (9th Cir. 2000); Sen-
gupta v. Morrison-Knudsen Co., Inc., 804 F.2d 1072, 1076
(9th Cir. 1986).
[9] Our cases do not always clearly distinguish between
statistical evidence that is non-probative because it is based
on too small a sample size, and permissible comparative evi-
dence of one or more similarly situated individuals. However,
in general, we have upheld inferences of discriminatory
motive based on comparative data involving a small number
of employees when the plaintiff establishes that he or she is
“similarly situated to those employees in all material
respects.” Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006);
see, e.g., Vasquez, 349 F.3d at 641 (employee not similarly
situated where he “did not engage in problematic conduct of
comparable seriousness to that of [plaintiff]”); Aragon, 292
F.3d at 663 (evidence that three of four employees laid off
were white did not “account for possible nondiscriminatory
variables, such as job performance”); Coleman, 232 F.3d at
1283 (finding no evidence of age discrimination where “sta-
tistics failed to account for obvious variables — including
education, previous position at the company, and distribution
of age groups by position — that would have affected the
results of the analysis”); Wall v. Nat’l R.R. Passenger Corp.,
718 F.2d 906, 909 (9th Cir. 1983) (affirming district court’s
holding for defendant where, among other facts, “[t]he three
white employees who were not discharged for conduct similar
to that for which Wall was discharged had no prior disciplin-
ary records”).
[10] Here, Beck’s evidence was comparative in nature,
rather than statistical. The district court found that Local 99
provided more aggressive representation of two men than it
did of Beck and Reinhold. It also found that Beck and Molitor
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were similarly situated “in all material respects,” and that
Beck was similarly situated to other male employees who
received more favorable treatment from the same union repre-
sentatives.5 We cannot say that, as a matter of law, such evi-
dence was an insufficient basis for the district court’s
conclusion that the union had intentionally discriminated
against Beck, even though the comparative evidence was
based on only three individuals in addition to Beck. See, e.g.,
McDonald, 427 U.S. at 282. Based on our review of the
record, the district court’s findings are not clearly erroneous.
Therefore, we affirm the district court’s ruling on Beck’s Title
VII claim.
III
In sum, we hold that the district court’s inference of dis-
criminatory intent was not clearly erroneous, and accordingly
we affirm the district court’s judgment on Beck’s Title VII
claim. We affirm the judgment of the district court with
respect to its determination that Local 99 breached its duty of
fair representation in handling Beck’s April discipline.
AFFIRMED.
5Local 99 also challenges the district court’s finding that Beck and
Molitor were “similarly situated in all material respects.” We agree with
our sister circuits that whether two employees are similarly situated is
ordinarily a question of fact. George v. Leavitt, 407 F.3d 405, 414-15
(D.C. Cir. 2005); Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.
2000); Riggs v. AirTran Airways, Inc., 2007 U.S. App. LEXIS 18769, at
*16 (10th Cir. Aug. 8, 2007). While Local 99 is correct that we may
review the district court’s interpretation of a collective bargaining agree-
ment de novo, Rathgeb v. Air Cal, Inc., 812 F.2d 567, 570 (9th Cir. 1987),
the district court’s finding that Molitor and Beck were similarly situated
in all material respects was not dependent on any interpretation of Local
99’s CBA with Fry’s, and was not clearly erroneous.
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