Phiyen Lessor v. J Cpenney Corp Inc.

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Raner C. Collins, District Judge for the U.S. District**
Court for Arizona, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHIYEN LESSOR,
Plaintiff - Appellant,
v.
J C PENNEY CORP INC.,
Defendant - Appellee.
No. 11-35157
D.C. No. 2:09-cv-05072-LRS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Argued and Submitted October 13, 2011
Seattle, Washington
Before: KOZINSKI, Chief Judge, PAEZ, Circuit Judge, and COLLINS,
District Judge.**
Lessor is a Vietnamese immigrant who was given fewer opportunities than
Caucasian stylists to attract customers, and was terminated from employment
despite having been previously promoted. Thus, she established a prima facie case
FILED
NOV 23 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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of discrimination by showing that (1) she is a member of a protected class; (2) she
was qualified for the position; (3) she experienced an adverse employment action;
and (4) similarly situated individuals outside her protected class were treated more
favorably. See Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th
Cir. 2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
J.C. Penney gave a legitimate, nondiscriminatory reason for terminating
Lessor that was sufficient to rebut a prima facie case of discrimination. See Noyes
v. Kelly Servs., 488 F.3d 1163, 1169 (9th Cir. 2007). It claimed she was
terminated for refusing to accept a “performance plan” created for her after several
customer complaints. But there were genuine issues of material fact as to whether
J.C. Penney’s stated reason for terminating Lessor’s employment was pretextual.
“[W]e have repeatedly held that a single discriminatory comment by a plaintiff’s
supervisor or decisionmaker is sufficient to preclude summary judgment for the
employer.” See Dominguez-Curry, 424 F.3d at 1039.
Bates was involved in the decisionmaking process that led to Lessor’s
termination, and Lessor recalled a conversation with Bates where the latter made
discriminatory remarks. Moreover, the absence of a policy concerning customer
complaints or “performance plans” supports an inference of discriminatory intent.
See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1123 (9th Cir. 2004).
REVERSED.

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