United States v. 2006-02-28 | 04-35408 | CORNWELL VELECTRA CENTRAL CREDIT UNION | precedential |…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 RAYMOND M. CORNWELL,
Plaintiff-Appellant, No. 04-35408
v. D.C. No.
 CV-03-00699-GMKELECTRA CENTRAL CREDIT UNION;
JAMES E. SHARP, OPINION
Defendants-Appellees. 
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Argued and Submitted
September 14, 2005—Portland, Oregon
Filed March 1, 2006
Before: Raymond C. Fisher, Ronald M. Gould,
Carlos T. Bea, Circuit Judges.
Opinion by Judge Gould;
Concurrence by Judge Bea
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COUNSEL
Craig A. Crispin, Crispin Employment Lawyers, Portland,
Oregon, for the plaintiff-appellant.
Richard R. Meneghello (argued), Fisher & Phillips, LLP,
Portland, Oregon; Karen E. Saul (argued) and Kimberley
Hanks McGair, Farleigh, Wada & Witt, PC, Portland, Oregon,
for the defendants-appellees.
OPINION
GOULD, Circuit Judge:
Plaintiff-Appellant Raymond Cornwell appeals the district
court’s order granting summary judgment to defendants-
appellees Electra Central Credit Union and Jim Sharp, and
dismissing Cornwell’s retaliation and race discrimination
claims under 42 U.S.C. § 1981, Title VII, and Oregon law.
Cornwell also appeals the district court’s order denying his
motion to reopen discovery so that Cornwell could depose an
additional witness to oppose summary judgment. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part
and reverse in part.
I1
1Because we are reviewing a district court’s order granting summary
judgment, our statement of the facts accepts Cornwell’s version of events
where the record shows dispute, and our statement gives to Cornwell all
reasonable inferences in his favor. See United States v. City of Tacoma,
332 F.3d 574, 578 (9th Cir. 2003).
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Electra Central Credit Union (Electra) is a not-for-profit
cooperative that provides financial services, including bank-
ing and lending, to its members. On August 30, 1993, Electra
hired Raymond Cornwell, who is African-American, as its
Director of Lending. Cornwell supervised the nine employees
who worked in Electra’s loan department and managed Elec-
tra’s lending operations until Cornwell was promoted to Vice
President and Chief Operating Officer in 2000. Thereafter,
Cornwell managed Electra’s branches and cash operations in
addition to Electra’s lending business.
During Cornwell’s stewardship of Electra’s lending opera-
tions, the value of Electra’s loan portfolio grew from just over
$65 million in December 1997 to more than $85 million in
December 2000. Although the portfolio’s value decreased by
about four percent, to about $80 million, between December
2000 and December 2001, the record on summary judgment,
viewed most favorably to Cornwell, does not suggest that a
deficiency in Cornwell’s management caused this decrease.
When Cornwell joined Electra, it sold financial products
individually. For example, a member who wanted to purchase
both a home loan and a checking account would buy the
checking account from one of Electra’s employees and the
home loan from another. In 1999, Electra’s management team
and its Board of Directors adopted a policy to create a “sales
culture,” in which each of Electra’s front-line employees
would be able to sell every product that Electra offered.
Electra’s transition to a sales culture was ongoing when, on
September 17, 2001, Electra hired Jim Sharp, a Caucasian, as
Chief Executive Officer. At his deposition, Cornwell testified
that during the early months of Sharp’s tenure, Sharp
excluded Cornwell from meetings at which the management
team discussed issues within the scope of Cornwell’s respon-
sibilities as Vice President and Chief Operating Officer. Corn-
well also testified by deposition that Sharp had said he would
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fire any member of the management team who “goes to the
board and doesn’t talk to me first about it . . . .”
On November 9, 2001, during a meeting of Electra’s man-
agement team at Sharp’s home, Sharp made comments about
women that Cornwell considered “unprofessional” and “close
to sexual harassment.” Three days later, Cornwell told Bonnie
Cottrell, Electra’s Vice President of Human Resources, about
Sharp’s comments. Cornwell said that he thought Sharp’s
behavior at the meeting should be “dealt with in some fash-
ion,” but Cornwell did not explicitly ask Cottrell to investi-
gate Sharp’s remarks, and Cottrell did not offer to do so. Nor
did Cottrell speak to Sharp about Cornwell’s concerns.
In late November or early December 2001, Sharp informed
the management team that he intended to reorganize Electra’s
operations to facilitate the transition to a sales culture, but
Sharp did not specify what changes he was considering.
Although Sharp discussed his reorganization plans with mem-
bers of Electra’s management team over the next few weeks,
Cornwell testified that Sharp did not include Cornwell in
these meetings, or notify him about them, even though a reor-
ganization would affect Cornwell’s responsibilities and
opportunities.
On the afternoon of December 12, Cornwell asked Sharp
what organizational changes he planned to make. Sharp said
that he intended to create a new management position, Vice
President of Sales and Branch Operations; to promote Vir-
ginia Hall, a Caucasian, to fill that position; and to reassign
responsibility for Electra’s branches and cash operations to
Hall, who previously had not been a member of Electra’s
management team. Sharp also said that he intended to elimi-
nate the title of Chief Operating Officer and to change Corn-
well’s title to Vice President of Lending. As a result of these
changes, Cornwell would retain responsibility for Electra’s
lending operations but lose responsibility for Electra’s
branches and cash operations and he would manage fewer
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employees. Sharp explained to Cornwell that Sharp wanted
Cornwell to focus on Electra’s lending operations to correct
problems with the sales culture and with lending, including
the decrease in the value of Electra’s loan portfolio. Cornwell
asked why he had not been included in the reorganization
planning process. Sharp did not answer, but offered to help
Cornwell find employment with a different firm in the finan-
cial industry if Cornwell did not want to continue working for
Electra.2
The next day, Sharp announced the reorganization publicly
during a management team meeting. Cornwell was the only
African American member of the management team, and the
only executive whom Sharp demoted. Sharp asked each per-
son at the meeting to commit to support the reorganization.
Cornwell felt “blind-sided,” “embarrassed,” and “humiliated”
by Sharp’s request that Cornwell publicly endorse his own
demotion. Every member of the management team agreed to
support the reorganization, except Cornwell, who said that he
supported Electra, but not Sharp’s “process” or “system.”
After this meeting, Cornwell again complained to Bonnie
Cottrell about Sharp’s behavior at the November 9 meeting,
and now also about the reorganization. Cornwell asked Cot-
trell whether race had played a role in Sharp’s decision to
demote Cornwell. Cottrell responded that she did not think
that race was a factor in Sharp’s reorganization process but
Cottrell suggested that Cornwell express his concerns to Elec-
tra’s Board of Directors. The record on summary judgment
does not indicate affirmatively that Cottrell investigated Corn-
well’s concerns about race discrimination.
Soon thereafter, Cornwell spoke to Bob Pearson, a member
2At his deposition, Sharp testified that he did not tell Cornwell about
Sharp’s planned reorganization because “I simply knew that he wouldn’t
agree with me.” Sharp also testified that Cornwell was the most qualified
of Electra’s employees to manage Electra’s lending business.
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of Electra’s Board of Directors. Cornwell told Pearson that he
disagreed with Sharp’s decision to reassign some of Corn-
well’s responsibilities to Hall, who was a less experienced
executive than Cornwell, but Cornwell did not explicitly
accuse Sharp of race discrimination. At Cornwell’s deposi-
tion, Electra’s counsel asked if Cornwell told Pearson that
Cornwell thought race had influenced Sharp’s decision to
demote Cornwell. In response, Cornwell testified:
No. What I told him was that I was unsure as to
what the motives — what motives were driving Jim
Sharp, and I asked a question, I don’t know if it’s the
color of my skin, I don’t know if it’s the fact that he
just doesn’t like me, I don’t know whether it’s the
fact that I’m a man and not a woman, I said, I’m not
sure what’s driving him in this situation, I just feel
that it’s wrong.
Cornwell also told Pearson about Sharp’s alleged inappropri-
ate sexual comments. According to Cornwell, Pearson
responded that the Board would “investigate” and “find out”
Sharp’s motives for the demotion.
On February 13, 2002, Cornwell met with Bob Potter, the
chairman of Electra’s Board of Directors, regarding the con-
cerns Cornwell expressed to Pearson when they met in
December. Potter gave Cornwell a memorandum, in which
the Board of Directors “ratified” Sharp’s reorganization and
endorsed Sharp’s authority to alter Electra’s management
structure to improve the credit union’s financial performance.
This memorandum advised Cornwell that the Board of Direc-
tors had instructed Sharp not to discuss personal private or
sexual issues with Electra’s employees unless there was a
business-related reason to do so. Although the memorandum
purported to resolve Cornwell’s concerns, it did not address
in any way Sharp’s motivation for demoting Cornwell.
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During their meeting, Cornwell and Potter discussed the
motivation underlying Sharp’s decision to demote Cornwell.
Cornwell testified that:
[Potter] indicated that he did not question
[Sharp’s] motives. I said, I’m concerned whether the
motives are illegal or not. I said, is it because I said
something in November about his sexual harassment
issues, is it because of the color of my skin, is it
because he doesn’t like me, and I said all these
things to [Potter] direct. [Potter] said, you’re raising
a different issue now and it’s not one that we address
here.
Cornwell’s provocative questions, viewed in the light most
favorable to Cornwell in this summary judgment setting,
fairly raised racial discrimination as an issue, and yet the sum-
mary judgment record does not show whether Potter or the
Board of Directors investigated Cornwell’s concerns that
Sharp’s motivation for demoting Cornwell was illegal. Potter
did, however, send Cornwell a letter in June 2002, in which
Potter asserted to Cornwell that “[y]our race has never been
a factor in any decisions regarding your employment.” The
letter pointed to Electra’s nondiscrimination policy and to
Cornwell’s conversation with Cottrell in December 2001, in
which she too had expressed her opinion that Cornwell’s race
was not a factor in his demotion.
On May 23, 2002, Cornwell wrote a letter to Potter and the
Board of Directors, a copy of which Cornwell sent to Sharp.
In it, Cornwell proposed a severance package, including two
years’ salary. In exchange, Cornwell would “sign a release,”
presumably absolving Electra from liability for employment
discrimination. Cornwell’s letter also stated that he had a
diary that documented “a pattern of racist and sexist disparate
treatment and the creation of a hostile work environment” at
Electra.
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Cornwell did not intend for the letter to announce his
immediate resignation from Electra, but Sharp purported to
interpret the letter as Cornwell’s resignation. On June 4, 2002,
Sharp informed Electra’s management team that Cornwell
had resigned. Shortly after Cornwell arrived for work on June
5, 2002, Sharp, who testified by deposition that he was sur-
prised to see Cornwell in the office, placed Cornwell on paid
administrative leave pending resolution of Cornwell’s sever-
ance negotiations with Electra’s Board of Directors.
Potter attempted to meet with Cornwell regarding Corn-
well’s severance proposal on June 19, but Cornwell cancelled
the meeting because, as he testified, he wanted a lawyer to
attend the meeting with him and Cornwell had not yet
retained one. That same day, Potter sent Cornwell a letter out-
lining Electra’s settlement offer and suggesting specific times
at which Cornwell and Potter could meet before June 25. The
letter instructed Cornwell that he had a duty as a management
level employee to give the Board of Directors any evidence
in his possession regarding employment discrimination at
Electra.
On June 21, Potter sent an email to Cornwell in which Pot-
ter urged Cornwell again to schedule a meeting with Potter
before June 25. The email repeated Potter’s demand that
Cornwell turn over his evidence of employment discrimina-
tion to the Board of Directors. On June 24, Cornwell sent an
email to Potter explaining that Cornwell would not be able to
meet with Potter before June 25. On July 3, Bonnie Cottrell
sent Cornwell a letter terminating his employment at Electra
for “actions . . . inconsistent with [Cornwell’s] duties as a
management level employee . . . .” After the termination of
Cornwell’s employment, Electra hired Mickey Beard, an
African-American woman, as branch manager. Sharp was the
“ultimate decision-maker” regarding Beard’s employment at
Electra.
On May 22, 2003, Cornwell commenced this civil action.
On December 10, 2003, the parties and the district court par-
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ticipated in a case-scheduling teleconference. During this call,
defense counsel announced an intention to file motions for
summary judgment and the parties said that they were agree-
able to the district court’s scheduling trial for the week of
June 29, 2004. The district court then inquired whether the
parties could complete discovery by December 15, 2003, the
scheduled discovery cutoff date. Cornwell’s counsel
responded that he had “completed discovery.” Subsequently,
the district court extended discovery for an additional month,
after which both Electra and Sharp filed motions for summary
judgment and documents in support thereof, including a Con-
cise Statement of Facts.
In his Reply to Defendant’s Concise Statement of Facts,
Cornwell submitted as a material fact a statement allegedly
made by Sharp, referring to one of Electra’s African-
American employees as “nigger bitch.” Cornwell did not offer
deposition or affidavit evidence to support the statement.
Counsel for the defendants moved to strike the unsupported
statement pursuant to Local Rule 56(c)(1), which requires evi-
dentiary support for every “fact” included in a Concise State-
ment of Facts. Cornwell then moved to reopen discovery to
take the deposition of Sharp’s former assistant, Karen Smith,
who allegedly overheard Sharp make the comment. In support
of his motion, Cornwell’s counsel offered a declaration stat-
ing that Smith told Cornwell’s counsel that she had heard
Sharp refer to an African-American employee as “that nigger
bitch.” The declaration also stated that Cornwell’s counsel
requested that Smith provide an affidavit or declaration
recounting Sharp’s alleged statement, but Smith declined
because she feared that Electra would provide disparaging or
otherwise negative employment references. The only other
reference in the pretrial record to Sharp’s alleged statement
occurred during Bonnie Cottrell’s deposition on October 1,
2003. Cornwell’s counsel asked Cottrell whether she had ever
heard Sharp refer to an employee as “that nigger bitch,” but
Cottrell said she had not. The district court denied Cornwell’s
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motion to reopen discovery, and granted defendants’ motions
for summary judgment.
II
[1] We first address Cornwell’s contention that the district
court erred by denying Cornwell’s motion to reopen discovery
to take Karen Smith’s deposition. We review a district court’s
order denying a motion to reopen discovery for abuse of dis-
cretion. Panatronic USA v. AT&T Corp., 287 F.3d 840, 846
(9th Cir. 2002); Chance v. Pac-Tel Teletrac Inc., 242 F.3d
1151, 1161 n.6 (9th Cir. 2001). In this context, “[a] district
court abuses its discretion only if ‘the movant diligently pur-
sued previous discovery opportunities, and if the movant can
show how allowing additional discovery would have pre-
cluded summary judgment.’ ” Panatronic, 287 F.3d at 846
(quoting Chance, 242 F.3d at 1161 n.6); Qualls ex rel. Qualls
v. Blue Cross of California, Inc., 22 F.3d 839, 844 (9th Cir.
1994). We have previously held that a movant did not dili-
gently pursue discovery where he failed to depose a witness
during the twenty-seven months between the start of litigation
and the discovery cutoff, Hauser v. Farrell, 14 F.3d 1338,
1340-1341 (9th Cir. 1994), overruled on other grounds by
Cent. Bank v. First Interstate Bank, 511 U.S. 164, 173 (1994),
where he failed to conduct discovery despite a one month
continuance, Mackey v. Pioneer Nat’l Bank, 867 F.2d 520,
524 (9th Cir. 1989), and where he “had ample opportunity to
conduct discovery,” but failed to do so. Panatronic, 287 F.3d
at 846.
[2] Cornwell contends that his attempt to obtain Ms.
Smith’s affidavit after the discovery termination date excuses
Cornwell’s failure to do so beforehand. He stresses that Ms.
Smith’s deposition would have taken less than thirty minutes,
and that her testimony would have been highly probative, par-
ticularly in light of our opinion describing the racial epithet
allegedly used by Sharp as “perhaps the most offensive and
inflammatory racial slur in English.” Swinton v. Potomac
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Corp., 270 F.3d 794, 817 (9th Cir. 2001) (citing Merriam-
Webster’s Collegiate Dictionary 784 (10th ed. 1993) (internal
quotation marks omitted). Cornwell also suggests that his
decision to forgo Ms. Smith’s deposition and affidavit while
discovery was ongoing was reasonable, given that Cornwell
thought that he could subpoena Ms. Smith’s testimony at trial
notwithstanding her reluctance to testify.
We find these arguments unpersuasive. Cornwell must have
learned about Smith’s allegation before October 2003,
because Plaintiff’s counsel asked Bonnie Cottrell to verify the
allegation during her deposition on October 1. Two months
later, however, in December 2003, Plaintiff’s counsel told the
district court that he had “completed discovery,” even though
he had neither obtained Ms. Smith’s affidavit, nor taken her
deposition, despite the potential importance of her testimony.3
At oral argument, Plaintiff’s counsel stated that he chose not
to include Ms. Smith’s testimony in the pretrial record
because he prefers not to disclose his strongest evidence
before trial. Assuming that Plaintiff’s counsel’s decision was
an appropriate litigation strategy, notwithstanding the likeli-
hood of a defense motion for summary judgment before trial,
it was nonetheless not a diligent pursuit of discovery opportu-
nities within the meaning of Panatronic. Finding himself
without admissible testimony on this issue, Plaintiff must
accept the consequence of his choice not to pursue discovery
of Ms. Smith’s testimony before the discovery cutoff. Plain-
tiff’s counsel surely knew or should have known that Defen-
3Although we reject Cornwell’s discovery argument due to his failure
to demonstrate diligence, we note that evidence of Sharp’s use of a racial
slur would have weighed strongly against summary judgment. See McGin-
est v. GTE Serv. Corp., 360 F.3d 1103, 1116 n.9 (9th Cir. 2004) (“[A] trier
of fact may certainly conclude that, in light of [the defendant’s] use of a
racial slur, his other abusive remarks to [an employee] were also moti-
vated by racial hostility.”); Mustafa v. Clark County School Dist., 157
F.3d 1169, 1180 (9th Cir. 1998) (“[D]iscriminatory remarks are relevant
evidence that, along with other evidence, can create a strong inference of
intentional discrimination.”).
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dants’ motions for summary judgment would test the factual
sufficiency of Cornwell’s claims. Cornwell’s strategic deci-
sion not to preserve Ms. Smith’s allegation in the pretrial dis-
covery record does not render the district court’s routine
enforcement of a discovery cutoff an abuse of discretion.
Attempting to secure discovery after a discovery cutoff date
does not cure a party’s failure to conduct diligent discovery
beforehand.
[3] Because discovery problems are presented in every
case, and because in many cases discovery must close before
a district court can consider dispositive motions with all evi-
dence in hand, district courts need to be able to control or
limit discovery in order to advance the progress of their trial
dockets. The use of orders establishing a firm discovery cutoff
date is commonplace, and has impacts generally helpful to the
orderly progress of litigation, so that the enforcement of such
an order should come as a surprise to no one. As we have
emphasized more generally, “[d]istrict courts have ‘wide lati-
tude in controlling discovery, and [their] rulings will not be
overturned in the absence of a clear abuse of discretion.’ ”
California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998)
(quoting Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1416-
17 (9th Cir. 1987) (second alteration in original)). We decline
to limit the district court’s ability to control its docket by
enforcing a discovery termination date, even in the face of
requested supplemental discovery that might have revealed
highly probative evidence, when the plaintiff’s prior discov-
ery efforts were not diligent. We hold that the district court
was well within its sound discretion when it denied Plaintiff’s
motion to reopen discovery.
III
We turn to Cornwell’s contention that the record demon-
strates a genuine issue of material fact regarding his race dis-
crimination and retaliation claims under Title VII, 42 U.S.C.
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§ 1981, and Oregon law.4 “Viewing the evidence in the light
most favorable to the nonmoving party, we must determine
whether there are genuine issues of material fact and whether
the district court correctly applied the relevant substantive
law.” Oliver v. Keller, 289 F.3d 623, 626 (9th Cir. 2002). We
do not weigh the evidence or determine whether Cornwell’s
allegations are true; we determine whether there is a genuine
issue of fact for trial. Abdul-Jabbar v. Gen. Motors Corp., 85
F.3d 407, 410 (9th Cir. 1996). If a reasonable jury viewing the
summary judgment record could find by a preponderance of
the evidence that Cornwell is entitled to a verdict in his favor,
then summary judgment was inappropriate; conversely, if a
reasonable jury could not find liability, then summary judg-
ment was correct. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986).
A
[4] Title VII makes it unlawful for an employer to “dis-
criminate against any individual with respect to his compensa-
tion, terms, conditions, or privileges of employment, because
of such individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1)
(2005). A person suffers disparate treatment in his employ-
ment “ ‘when he or she is singled out and treated less favor-
ably than others similarly situated on account of race.’ ” See
McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1121 (9th Cir.
2004) (internal quotation marks omitted) (quoting Jauregui v.
City of Glendale, 852 F.2d 1128, 1134 (9th Cir. 1988)). To
establish a prima facie case under Title VII, a plaintiff must
offer proof: (1) that the plaintiff belongs to a class of persons
protected by Title VII; (2) that the plaintiff performed his or
her job satisfactorily; (3) that the plaintiff suffered an adverse
employment action; and (4) that the plaintiff’s employer
treated the plaintiff differently than a similarly situated
4We review a district court’s order granting summary judgment de
novo. Delta Savings Bank v. United States, 265 F.3d 1017, 1021 (9th Cir.
2001).
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employee who does not belong to the same protected class as
the plaintiff. See McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973).5
Establishing a prima facie case under McDonnell Douglas
creates a presumption that the plaintiff’s employer undertook
the challenged employment action because of the plaintiff’s
race. See id. To rebut this presumption, the defendant must
produce admissible evidence showing that the defendant
undertook the challenged employment action for a “legiti-
mate, nondiscriminatory reason.” Id. If the defendant does so,
then “the presumption of discrimination ‘drops out of the pic-
ture’ ” and the plaintiff may defeat summary judgment by sat-
isfying the usual standard of proof required in civil cases
under Fed. R. Civ. P. 56(c). Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 143 (2000) (quoting St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)). In the context
of employment discrimination law under Title VII, summary
judgment is not appropriate if, based on the evidence in the
record, a reasonable jury could conclude by a preponderance
of the evidence that the defendant undertook the challenged
employment action because of the plaintiff’s race. See Wallis
v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994).
[5] The Supreme Court has identified two methods by
which a disparate treatment plaintiff can meet the standard of
proof required by Fed. R. Civ. P. 56(c). First, a disparate
treatment plaintiff may offer evidence, direct or circumstan-
tial, “that a discriminatory reason more likely motivated the
employer” to make the challenged employment decision.
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981). Alternatively, a disparate treatment plaintiff may offer
5The McDonnell Douglas framework is also applicable to employment
discrimination claims under 42 U.S.C. § 1981. See Patterson v. McLean
Credit Union, 491 U.S. 164, 186 (1989), reversed on other grounds by the
Civil Rights Act of 1991, Pub. L. No. 102-166, § 101, 105 Stat. 1071,
1071-72 (1991).
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evidence “that the employer’s proffered explanation is unwor-
thy of credence.” Id. Referring to the second method, many
of our cases state that a plaintiff may defeat a defendant’s
motion for summary judgment by offering proof that the
employer’s legitimate, nondiscriminatory reason is actually a
pretext for racial discrimination.6 See McGinest, 360 F.3d at
1123; Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1067 (9th
Cir. 2004); Vasquez v. County of Los Angeles, 349 F.3d 634,
641-42 (9th Cir. 2004); Wallis, 26 F.3d at 889-90.
Although some plaintiffs might discover direct evidence
that a defendant’s nondiscriminatory justification for an
employment decision is a pretext, most will not. Defendants
who articulate a nondiscriminatory explanation for a chal-
lenged employment decision may have been careful to con-
struct an explanation that is not contradicted by known direct
evidence. To establish that a defendant’s nondiscriminatory
explanation is a pretext for discrimination, plaintiffs may rely
on circumstantial evidence, which we previously have said
must be “specific” and “substantial” to create a genuine issue
of material fact.7 Godwin v. Hunt Wesson, Inc., 150 F.3d
1217, 1222 (9th Cir. 1998) (“Such [circumstantial] evidence
6A plaintiff may not defeat a defendant’s motion for summary judgment
merely by denying the credibility of the defendant’s proffered reason for
the challenged employment action. See Wallis, 26 F.3d at 890; Schuler v.
Chronicle Broad. Co., 793 F.2d 1010, 1011 (9th Cir. 1986). Nor may a
plaintiff create a genuine issue of material fact by relying solely on the
plaintiff’s subjective belief that the challenged employment action was
unnecessary or unwarranted. See Bradley v. Harcourt, Brace & Co., 104
F.3d 267, 270 (9th Cir. 1996) (concluding, despite the plaintiff’s claims
that she had performed her job well, that “an employee’s subjective per-
sonal judgments of her competence alone do not raise a genuine issue of
material fact”).
7Alternatively, a plaintiff could offer direct evidence of an employer’s
discriminatory intent, for example an employer’s use of a racial epithet.
But such evidence would not be direct evidence that the employer’s expla-
nation for its employment decision is false; rather a jury could infer from
the plaintiff’s direct evidence, the racial epithet, that the employer’s justi-
fication is a pretext.
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of ‘pretense’ must be ‘specific’ and ‘substantial’ in order to
create a triable issue with respect to whether the employer
intended to discriminate on the basis of sex.”).
The notion of a required specificity of evidence to defeat
summary judgment has some grounding in Fed. R. Civ. P.
56(e) which, in dealing with the form of affidavits submitted
opposing summary judgment, requires that “the adverse
party’s response, by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a genu-
ine issue for trial.” (Emphasis added.) Thus, we have equated
“specific, substantial” evidence with evidence sufficient to
raise a genuine issue of material fact under Rule 56(c).8 See
Wallis, 26 F.3d at 890.
The Supreme Court’s decision in Desert Palace, Inc. v.
Costa, 539 U.S. 90 (2003), supports the principle that a plain-
tiff may rely successfully on either circumstantial or direct
evidence to defeat a motion for summary judgment in a civil
action under Title VII. See Costa, 539 U.S. at 92 (holding that
a plaintiff does not have to produce direct evidence of dis-
crimination to obtain a mixed-motive jury instruction under
Title VII, and suggesting that a plaintiff suing under Title VII
may prove his or her case using either circumstantial or direct
evidence). In Costa, the Supreme Court affirmed a decision
by an en banc panel of this court in which we held that a dis-
trict court did not abuse its discretion by giving a mixed-
motive jury instruction despite a lack of direct evidence.
Costa, 539 U.S. at 101. As the Supreme Court confirmed, “di-
8For example, in Steckl v. Motorola, Inc., 703 F.2d 392 (9th Cir. 1983),
we concluded that a plaintiff “failed to produce any specific, substantial
evidence of pretext” where the plaintiff “produced no facts which, if
believed, would have shown pretext and thus tendered an issue for trial.”
Id. at 393 (emphasis added). Similarly, in Wallis we said that “when evi-
dence to refute the defendant’s legitimate explanation is totally lacking,
summary judgment is appropriate even though plaintiff may have estab-
lished a minimal prima facie case based on a McDonnell Douglas type
presumption.” Wallis, 26 F.3d at 890-91 (emphasis added).
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rect evidence of discrimination is not required in mixed-
motive cases.” Id. at 101-02. The Supreme Court explained
that “[t]he reason for treating circumstantial and direct evi-
dence alike is both clear and deep rooted: ‘Circumstantial evi-
dence is not only sufficient, but may also be more certain,
satisfying and persuasive than direct evidence.’ ” Id. at 100
(quoting Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 508 n.17
(1957)). The Supreme Court also observed that circumstantial
evidence is routinely used to support criminal convictions,
even though a conviction requires proof beyond a reasonable
doubt. See id. And the Supreme Court noted that “juries are
routinely instructed that ‘[t]he law makes no distinction
between the weight or value to be given to either direct or cir-
cumstantial evidence.’ ” Id. (quoting 1A K. O’Malley, J.
Grenig, & W Lee, Federal Jury Practice and Instructions,
Criminal § 12.04 (5th ed. 2000)).
In McGinest, we applied Costa to the question presented by
this appeal: what evidence must a plaintiff alleging disparate
treatment offer to survive summary judgment? McGinest
alleged that GTE failed to promote him because of his race,
and also to retaliate against him for opposing GTE’s discrimi-
nation, while GTE claimed that it failed to promote McGinest
because of a hiring freeze. See McGinest, 360 F.3d at 1122-
23. Reading Costa to require that “circumstantial and direct
evidence should be treated alike,” we held that McGinest
offered sufficient evidence to defeat summary judgment, even
though McGinest’s evidence was circumstantial. Id. at 1122-
24. Because the only issue remaining in a disparate treatment
case after the defendant has rebutted the McDonnell Douglas
presumption is “discrimination vel non,” we said:
in this case it is not particularly significant whether
McGinest relies on the McDonnell Douglas pre-
sumption or, whether he relies on direct or circum-
stantial evidence of discriminatory intent to meet his
burden. Under either approach, McGinest must pro-
duce some evidence suggesting that GTE’s failure to
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promote him was due in part or whole to discrimina-
tory intent, and so must counter GTE’s explanation
that a hiring freeze accounted for its failure to pro-
mote him.
Id. at 1123.
[6] In view of the Supreme Court’s recognition in Costa
that circumstantial evidence may be “more certain, satisfying
and persuasive than direct evidence,” and McGinest’s holding
that a disparate treatment plaintiff can defeat a motion for
summary judgment relying on circumstantial evidence, we
conclude that in the context of summary judgment, Title VII
does not require a disparate treatment plaintiff relying on cir-
cumstantial evidence to produce more, or better, evidence
than a plaintiff who relies on direct evidence. See Costa, 539
U.S. at 100 (citation omitted); McGinest, 360 F.3d at 1124.
[7] Although there may be some tension in our post-Costa
cases on this point — several of our cases decided after Costa
repeat the Godwin requirement that a plaintiff’s circumstantial
evidence of pretext must be “specific” and “substantial”9 —
9See Dominguez-Curry v. Nev Transp. Dep’t, 424 F.3d 1027, 1038 (9th
Cir. 2005) (noting that “the district court erred in requiring that Domin-
guez’s evidence be both specific and substantial because such a require-
ment only applies to circumstantial, not direct, evidence of discriminatory
motive”); Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir.
2005) (stating that the “distinction between direct and circumstantial evi-
dence is crucial, because it controls the amount of evidence that the plain-
tiff must present to defeat the employer’s motion for summary judgment.
Because direct evidence is so probative, the plaintiff need offer ‘very lit-
tle’ direct evidence to raise a genuine issue of material fact”) (footnote and
internal citation omitted); Bodett v. CoxCom, Inc., 366 F.3d 736, 743 (9th
Cir. 2004) (asserting that “[circumstantial evidence] must be ‘specific’ and
‘substantial’ in order to create a triable issue with respect to whether the
employer intended to discriminate on the basis of [a prohibited ground].”)
(second alteration in original); Stegall, 350 F.3d at 1065-67 (observing
that “[a]lthough . . . the Supreme Court’s recent decision in [Costa] may
undermine Godwin to the extent that it implies that direct evidence is more
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this panel may not overturn Ninth Circuit precedents in the
absence of “intervening higher authority” that is “clearly
irreconcilable” with a prior circuit holding, see Miller v. Gam-
mie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc), because that
power is generally reserved to our en banc panels. See Miller,
335 F. 3d at 899; United States v. Hayes, 231 F.3d 1132,
1139-40 (9th Cir. 2000); United States v. Washington, 872
F.2d 874, 880 (9th Cir. 1989). Whether or not the precedential
weight of Godwin has been diminished to any degree by the
Supreme Court’s decision in Costa, or by our decision in
McGinest, we conclude that Cornwell’s evidence is sufficient
to create a genuine issue of material fact regarding the
motives for his demotion under either the Godwin standard
which would require “specific” and “substantial” circumstan-
tial evidence of pretext, or the McGinest standard, which
would not.
1
The district court concluded that “Cornwell ha[d] not pro-
duced specific and substantial evidence to raise a factual issue
that the true reason for his demotion or termination was race
discrimination or that the stated reasons were false.” We dis-
agree.
Cornwell did not oppose summary judgment by alleging
merely that Defendants’ justification for Cornwell’s demotion
was unworthy of credence. Rather, Cornwell offered circum-
stantial evidence from which a reasonable jury could conclude
that Defendants demoted Cornwell because Cornwell is
African-American. Cornwell also offered “specific” and “sub-
probative than circumstantial evidence, we agree with the Godwin court
that Stegall must proffer ‘specific’ and ‘substantial’ evidence of pretext to
overcome Marathon’s summary judgment motion.”); Vasquez, 349 F.3d at
642 (asserting that “[t]o show pretext using circumstantial evidence, a
plaintiff must put forward specific and substantial evidence challenging
the credibility of the employer’s motives”).
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stantial” evidence that Defendants’ explanation for Corn-
well’s demotion was a pretext for race discrimination.
Because Cornwell produced evidence that created a factual
question whether his demotion resulted from such discrimina-
tion, Defendants were not entitled to summary judgment
regarding Cornwell’s discrimination claims based on his
demotion. See Fonseca v. Sysco Food Servs. of Ariz., Inc.,
374 F.3d 840, 850 (9th Cir. 2004).
The district court concluded correctly that Cornwell estab-
lished a prima facie race discrimination claim under McDon-
nell Douglas. Cornwell offered proof: (1) that he is African-
American, a protected class under Title VII; (2) that he per-
formed his job adequately; (3) that he was demoted, an
adverse employment action; and (4) that he was treated differ-
ently than similarly situated white employees who were not
demoted. See McDonnell Douglas, 411 U.S. at 802. As a
result, Cornwell was entitled to a presumption that Defen-
dants demoted him because Cornwell is African-American.
See id.
We also agree with the district court’s conclusion that
Defendants offered admissible evidence that they demoted
Cornwell for a “legitimate, nondiscriminatory” reason, specif-
ically to facilitate Electra’s implementation of a “sales cul-
ture” in which each of Electra’s sales employees could sell
any of Electra’s products. Defendants point to Sharp’s deposi-
tion testimony, in which Sharp testified that he transferred
responsibility for Electra’s branch operations from Cornwell
to Virginia Hall so that Cornwell could focus on correcting
problems with Electra’s lending business, including a four
percent decrease in the value of Electra’s loan portfolio. This
testimony rebuts the McDonnell Douglas presumption, and,
as a result, the presumption “ ‘drops out of the picture.’ ”
Reeves, 530 U.S. at 143 (quoting Hicks, 509 U.S. at 511).
[8] We disagree, however, with the district court’s conclu-
sion that Cornwell did not produce sufficient evidence to
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create a genuine issue of material fact as to whether Defen-
dants demoted Cornwell because he is African-American.
Viewed most favorably to Cornwell, the record would permit
a jury’s inference that Sharp treated Cornwell differently than
Sharp treated white executives because of Cornwell’s race.
Cornwell, the only African-American member of Electra’s
management team, was the only senior executive whom Sharp
demoted. Cornwell testified by deposition that between
Sharp’s arrival in September 2001 and Cornwell’s demotion
in December 2001, Sharp excluded Cornwell from manage-
ment meetings that involved topics within Cornwell’s scope
of responsibility.10 Cornwell also testified that Sharp did not
consult with Cornwell about whether to adopt APPRO, a risk
management tool, even though Cornwell was responsible for
Electra’s lending business. While a jury could certainly con-
clude that Sharp’s lack of interaction with Cornwell resulted
from Sharp’s brusque management style rather than racial ani-
mus, a reasonable jury could also infer that Sharp excluded
Cornwell from the decision-making process regarding Elec-
tra’s reorganization for malign or discriminatory purposes.
[9] Likewise, a reasonable jury could infer from the admis-
sible evidence opposing summary judgment that Defendants’
explanation for Cornwell’s demotion was a pretext for dis-
crimination. Indeed, when Cornwell asked Sharp why Corn-
well had not been involved in the reorganization planning
process, Sharp’s answer was to offer to help Cornwell find a
job with a different financial services firm if he was unhappy
with Sharp’s approach. A reasonable jury might conclude that
Sharp’s perhaps too ready willingness to help Cornwell leave
Electra was in tension with Defendants’ justification for Corn-
well’s demotion. If Sharp truly believed that Cornwell was the
best qualified executive to manage Electra’s lending business,
10Cornwell testified by deposition that Sharp held meetings about the
reorganization “with Cindy, and Lesly, Virgina, Rob, but none of those
was I included in, nor was I even informed that the meetings took place,
and yet they were concerning an eventual move or job change for me.”
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and if Sharp demoted Cornwell to reshape his focus exclu-
sively on lending, as Sharp testified, then a reasonable jury
might consider Sharp’s eagerness to help Cornwell exit incon-
sistent, because Sharp did not pursue the alternative of seek-
ing to allay Cornwell’s concerns and soften his negative
reaction to the reorganization by including him in the
decision-making process.
Sharp’s decision to promote a less experienced white
employee to manage Electra’s branch operations could also
support a reasonable jury’s conclusion that Defendants’
explanation for Cornwell’s demotion was a pretext for dis-
crimination. The record shows that Cornwell was a valuable
member of Electra’s business, and that among Electra’s exec-
utives, Cornwell knew the most about lending. Cornwell was
promoted twice during the eight years he worked at Electra,
ultimately to Vice President and Chief Operating Officer,
with key responsibilities for lending and for branch opera-
tions. Cornwell also testified during his deposition that no one
at Electra ever suggested to Cornwell that he was performing
inadequately, and for summary judgment purposes we credit
Cornwell’s testimony. Sharp, in his deposition, acknowledged
that Cornwell was the best qualified person to lead Electra’s
lending group, and Sharp testified that he assigned responsi-
bility for Electra’s branch operations to Hall, a white
employee who was not previously a member of Electra’s
management team, so that Cornwell could focus on lending.
Although a reasonable jury might view Sharp’s decision to
reassign responsibility for Electra’s branch operations from
Cornwell to Hall as consistent with Defendants’ proffered
rationale for Cornwell’s demotion, a reasonable jury might
also view the disparity between Cornwell’s management
experience and Hall’s as proof that Defendants’ explanation
for Cornwell’s demotion was a pretext for race discrimina-
tion. See Ash v. Tyson Foods, Inc., No. 05-379, 2006 WL
386343, at *2 (February 21, 2006) (per curiam) (“Under this
Court’s decisions, qualifications evidence may suffice, at least
in some circumstances, to show pretext.”); see also Raad v.
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Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1194
(9th Cir. 2003).
If one credits Cornwell’s deposition testimony, it would be
possible to conclude that Electra never addressed Cornwell’s
expressed concern that his demotion was the result of race
discrimination. Cornwell testified that he asked both Pearson
and Potter whether race played a role in Sharp’s decision to
demote Cornwell. Cornwell told Pearson that Cornwell was
“unsure as to what the motives — what motives were driving
Jim Sharp . . . I asked a question, I don’t know if it’s the color
of my skin . . . .” Similarly, Cornwell informed Potter that
Cornwell was “concerned whether the motives [underlying
Cornwell’s demotion] are illegal or not . . . . [i]s it because of
the color of my skin . . . ?” Cornwell questioned the motives
underlying Sharp’s decision to demote Cornwell, specifically
whether they were tainted by race discrimination. The Board
of Directors’s response, however, addressed merely Sharp’s
authority to reorganize Electra’s business, which Cornwell
never challenged. Cornwell testified that Potter responded to
Cornwell’s question by saying “you’re raising a different
issue now [than Sharp’s authority to reorganize Electra’s busi-
ness] and it’s not one that we address here.” Electra never
responded to the substance of Cornwell’s concern that race
discrimination was afoot, apart from Potter’s letter stating that
Bonnie Cottrell held the opinion that race did not play a role
in Cornwell’s demotion.11 The summary judgment record does
not indicate affirmatively whether Electra’s Board of Direc-
tors investigated or evaluated Cornwell’s concern that Sharp’s
actions were racially motivated. A reasonable jury could view
Electra’s failure to investigate as an attempt to conceal
Sharp’s illegitimate motives.
11Potter’s reference to Cottrell’s opinion does not have a commanding
weight in the summary judgment context, given that the record does not
indicate affirmatively that Cottrell investigated whether race discrimina-
tion motivated Sharp to demote Cornwell.
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From the evidence presented on Cornwell’s side of the dis-
pute, a rational jury could conclude that Sharp had an aim to
force Cornwell out, that Sharp had excluded Cornwell from
meetings within his areas of responsibility in order to discour-
age Cornwell, and that Sharp was, to put it starkly, a CEO
who did not want to work with an African-American Chief
Operating Officer. The truth might be that all of Sharp’s man-
agement aims were legitimate and matters of prerogative and
personal style. But a jury could also find on the summary
judgment record that a discriminatory intention was at work,
and in our view Cornwell presented sufficient evidence to
place this issue in the jury’s province for decision.
[10] As the Supreme Court has said: “Credibility determi-
nations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not
those of a judge, whether he is ruling on a motion for sum-
mary judgment or for a directed verdict.” Anderson, 477 U.S.
at 255. We hold that Defendants are not entitled to judgment
as a matter of law on the issue whether Sharp’s demotion of
Cornwell offended Title VII’s prohibition of intentional racial
discrimination.
2
The district court concluded that Cornwell did not produce
evidence sufficient to create a genuine issue of material fact
whether Defendants fired Cornwell because he is African-
American. We agree.
[11] Cornwell established a prima facie case regarding his
termination. See McDonnell Douglas, 411 U.S. at 802. Defen-
dants then offered admissible evidence that they terminated
Cornwell’s employment for a legitimate nondiscriminatory
reason. Potter, the Chairman of Electra’s Board, repeatedly
urged Cornwell to schedule a meeting to discuss Cornwell’s
requests for severance. Potter requested that Cornwell pro-
duce any documentation of racial discrimination at Electra.
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These were legitimate requests by the Chairman of Electra’s
Board, and Cornwell disregarded them at his own corporate
peril. Defendants adequately rebutted the McDonnell Douglas
presumption.
[12] There was presented striking evidence that the rela-
tionship had deteriorated to the point that Cornwell declined
to cooperate with Potter’s informational requests. By contrast,
Cornwell, in opposing summary judgment, did not produce
sufficient evidence to create a genuine issue of material fact
whether Defendants fired him on the basis of race, rather than
because Cornwell would not cooperate with the Board’s
request for information. Cornwell produced no evidence
undermining the credibility of Defendants’ explanation that
the termination of Cornwell’s employment at Electra followed
as a result of Cornwell’s failure to respond in a timely way to
information requests tendered to him from the highest level of
the corporation. We hold that the evidence produced by Corn-
well does not create a genuine issue of material fact as to
whether Defendants fired him because Cornwell is African-
American.
B
We turn to Cornwell’s retaliation claims. Cornwell appeals
the district court’s order granting summary judgment to
Defendants and dismissing Cornwell’s retaliation claims
under Title VII, and ORS 659A.030, as well as Cornwell’s
common law wrongful discharge claim under Oregon law.
To establish a prima facie case of retaliation, a plaintiff
must demonstrate: (1) a protected activity; (2) an adverse
employment action; and (3) a causal link between the pro-
tected activity and the adverse employment action. See
Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th
Cir. 1994). We have said that “[c]ausation sufficient to estab-
lish the third element of the prima facie case may be inferred
from . . . the proximity in time between the protected action
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and the allegedly retaliatory employment decision.” Yartzoff
v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987). As in dispa-
rate treatment actions, a retaliation plaintiff may use the
McDonnell Douglas framework. Id. at 1375. A plaintiff in a
wrongful discharge action under Oregon common law must
make a similar showing: that his employment was terminated
because he resisted discrimination. Holien v. Sears, Roebuck
& Co., 298 Or. 76, 90, 689 P.2d 1292, 1299-1300 (1984).
[13] The district court granted summary judgment against
Cornwell’s retaliation and wrongful discharge claims because
the district court concluded that Cornwell did not raise a gen-
uine factual issue whether his complaints to Bonnie Cottrell
about Sharp’s use of offensive language at Sharp’s home
party, which Cornwell thought bordered on sexual harass-
ment, caused Cornwell’s demotion or his termination. The
district court concluded that the record did not contain evi-
dence that Sharp knew about Cornwell’s complaint before
Sharp demoted him, and thus Cornwell’s complaint could not
have caused Cornwell’s demotion. We agree that Cornwell
presented no evidence raising an inference that his demotion
was caused by Cornwell’s complaint about Sharp’s language.
Likewise, the district court concluded that the gap between
Cornwell’s complaint to Cottrell in November 2001 about
Sharp’s language and Cornwell’s termination in July 2002
was too great to support an inference that Cornwell’s com-
plaints caused his termination. We agree. Cornwell did not
produce evidence warranting a trial on retaliation on either
theory.
Cornwell argues that Sharp knew about Cornwell’s com-
plaint to Cottrell before Sharp announced Cornwell’s demo-
tion on December 13, 2001. Cornwell contends that Sharp’s
deposition testimony is inconsistent with Potter’s with respect
to when Sharp learned that Cornwell had complained to Cot-
trell about Sharp’s alleged sexual harassment, and that this
inconsistency would permit a reasonable jury to conclude that
Sharp knew about Cornwell’s complaint before Cornwell’s
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demotion. Sharp testified that he first learned of Cornwell’s
complaint during a meeting with Potter in January 2002. But
Potter testified that he “must have” mentioned the complaint
to Sharp when they spoke in late December 2001. Even if
Sharp and Potter recall differently when they spoke about
Cornwell’s complaint, both Sharp and Potter testified that
they discussed Cornwell’s complaint after Sharp announced
Cornwell’s demotion. The congruence of Sharp’s and Potter’s
testimony on this salient point, that their discussion about
Cornwell’s complaint took place after his demotion, and the
absence of any contrary evidence, goes far to scuttle Corn-
well’s claim that his demotion was retaliatory.12
Regarding Cornwell’s retaliation claims based on his termi-
nation, Cornwell argues that the district court ignored Corn-
well’s testimony that Sharp threatened to fire any member of
Electra’s management team who circumvented Sharp to speak
directly to the Board of Directors. But the record shows plain
and cogent reasons for the termination, communicated by
Electra’s Human Resources department, in Cornwell’s failure
to cooperate with the inquiries made by Board Chairman Pot-
ter. The termination recited that it was for “actions . . . incon-
sistent with [Cornwell’s] duties as a management level
employee . . . .” Cornwell’s failure to respond to Potter’s
inquiries falls into that category and no contrary evidence was
submitted raising a genuine issue that the termination was for
other reasons.
[14] Cornwell also argues that the district court analyzed
the wrong time frame. According to Cornwell, the court
12Based on deposition testimony that Cottrell’s office was adjacent to
Sharp’s, Cornwell also argues that a reasonable jury could infer that Cot-
trell told Sharp about Cornwell’s complaint. However, Sharp testified that
he and Cottrell did not discuss Cornwell’s complaint before January 2002,
after Cornwell’s demotion, and no contrary evidence was submitted
opposing summary judgment. In the circumstances of this case, a reason-
able jury could not make the proposed inference contrary to the undis-
puted facts.
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should have considered the two or three months between
Cornwell’s complaint to the Board of Directors in February
2002 and the beginning of Cornwell’s paid administrative
leave in June, instead of the seven months between Corn-
well’s initial conversation with Cottrell and the termination
letter from Electra. But again, Cornwell has offered no evi-
dence to rebut Electra’s evidence that it fired Cornwell
because he refused to give the Board of Directors the proof
he claimed to possess regarding employment discrimination at
Electra. The district court did not err in concluding that too
much time had passed between Cornwell’s complaints and his
eventual termination for a reasonable jury to conclude that
Cornwell’s complaints caused Electra to fire him. We hold
that Electra is entitled to judgment as a matter of law regard-
ing Cornwell’s retaliation and wrongful discharge claims.
IV
[15] We affirm the district court’s enforcement of the dis-
covery cutoff. On the summary judgment record as it was
presented to the district court, we affirm the grant of summary
judgment in part and we reverse the grant of summary judg-
ment in part as specified above. We remand the case for trial
on the claim that Cornwell’s demotion was the result of inten-
tional discrimination based on race in violation of Title VII.
Each party shall bear its own costs on appeal.
AFFIRMED in part, REVERSED in part, and remanded.
BEA, Circuit Judge, concurring:
I concur separately as to Part III.A.1. of the opinion1
because I think the evidence of Sharp’s immediate reaction to
1I join in the remainder the opinion’s analysis.
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Cornwell’s enquiry—an offer to find Cornwell employment
elsewhere—can reasonably be seen as contradictory to
Sharp’s assertion he wanted to have Cornwell remain with the
company and be in charge of lending. Hence, the trier of fact
can view Sharp’s business related reason for re-assigning
Cornwell as a pretext, and can then consider racial animus as
the true motivation of Cornwell’s reassignment or demotion.
See Reeves, 530 U.S. at 148.
I respectfully disagree with the majority as to the effect of
the other evidence it cites as a basis for a finding of pretext
or racial animus. Taken alone or together with the evidence
of Sharp’s said immediate reaction, the fact that (1) Cornwell
was a valued employee of Electra who knew the most about
lending,2 (2) was the only African-American executive, (3)
was the only executive demoted, or (4) was kept out of meet-
ings where his demotion was discussed does not undermine
Sharp’s evidence that Sharp wanted to limit Cornwell to lend-
ing. Absent some claim of earlier racial discrimination,3 the
fact that Cornwell is the sole African-American and the sole
executive to be demoted provides no evidence that he was
demoted because of his race. Were Cornwell to have been the
sole executive promoted, would it lead to the conclusion he
was being preferred because of his race? One must distinguish
between coincidence and causal effect. To think otherwise
2If anything, this evidence supports Sharp’s proffered rationale that he
demoted Cornwell so Cornwell could lead exclusively the lending depart-
ment. Ash v. Tyson Foods, Inc., No. 05-379, 2006 WL 386343 (February
21, 2006) (per curiam), is inapposite to Cornwell’s situation. Sharp did not
proffer evidence that he demoted Cornwell because Cornwell had perfor-
mance problems, or that Cornwell’s replacement was better qualified. See
id. at *3 (stating that part of the employer’s defense to claims of disparate
treatment was that the plaintiffs-employees had performed poorly in the
past). Therefore, Cornwell’s qualifications do nothing to discredit Sharp’s
proffered rationale for demoting Cornwell.
3There is none. Additionally, were there such, there is neither claim nor
evidence that Sharp had a hand in the hiring which led to Cornwell’s sin-
gular status.
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would tend to insulate Cornwell from adverse action, or
explain his advance, solely because of his race.
Similarly, because a person about to be reassigned or
demoted is not consulted before the determination is made
does not suggest that the reassignment or demotion is being
made because of racial animus, dressed up in pretextual rea-
sons. Suppose he were the sole executive promoted, without
a prior interview. Would it be evidence that he was promoted
because of his race?
When it is unnecessary to grant probative effect to certain
evidence, it is necessary not to do so, lest in another case it
be cited back to us.
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