Alison N. Terry v. City of San Diego

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable David A. Ezra, United States District Judge for the**
District of Hawaii, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALISON N. TERRY,
Plaintiff - Appellant,
v.
CITY OF SAN DIEGO,
Defendant - Appellee.
No. 09-55579
D.C. No. 3:06-cv-01459-MMA-
CAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted May 5, 2010
Pasadena, California
Before: B. FLETCHER and PAEZ, Circuit Judges, and EZRA, District Judge.**
Lifeguard Alison Terry appeals the district court’s grant of summary
judgment to the City of San Diego (“the City”). Terry argues that the City violated
42 U.S.C. § 2000e-2 (Title VII) and California Government Code § 12940(a) when
FILED
MAY 21 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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We review de novo a grant of summary judgment. McGinest v. GTE Serv.1
Corp., 360 F.3d 1103, 1112 (9th Cir. 2004).
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the City failed to promote her to a permanent lifeguard position because of her
gender, and then retaliated against her after she filed her complaint. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.1
First, we conclude that Terry established a prima facie case of gender
discrimination under a theory of disparate impact. In opposition to the City’s
motion for summary judgment, Terry submitted an expert report from a statistician
who compared the number of female permanent lifeguards to the number of female
seasonal lifeguards (Lifeguard Is) and concluded that female lifeguards are
disparately impacted by the promotion process used by the City. The district court
erred when it disregarded this evidence after concluding that Terry’s expert should
have limited his comparison pool to those who actually applied for the promotion.
See generally Hemmings v. Tidyman’s, Inc., 285 F.3d 1174 (9th Cir. 2002).
“Federal courts have rejected defendant’s arguments that statistical analysis should
be limited to a pool of ‘qualified applicants’ where the job qualification standards
are themselves discriminatory.” Id. at 1187 n.17 (citing Paxton v. Union Nat’l
Bank, 688 F.2d 552, 563-64 (8th Cir. 1992) and Forehand v. Florida State Hosp.,
89 F.3d 1562, 1574 (11th Cir. 1996)); see also Int’l Bhd. of Teamsters v. United

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States, 431 U.S. 324, 365-66 (1977); Bates v. United Parcel Serv., 465 F.3d 1069,
1079 (9th Cir. 2006).
Drawing all inferences in favor of the non-moving party, we conclude that
Terry’s evidence in her opposition briefing was sufficient to establish a prima facie
case that the City’s promotion practices have a disparate impact on female
lifeguards. Because the City did not attempt to “defend against liability by
demonstrating that the practice is ‘job related for the position in question and
consistent with business necessity,’” Ricci v. DeStefano, 129 S. Ct. 2658, 2673
(2009) (quoting 42 U.S.C. § 2000e-2(k)(1)(A)(i)), we reverse the district court’s
grant of summary judgment to the City on Terry’s claim of employment
discrimination under a theory of disparate impact, and remand for trial.
Second, we conclude that Terry established a prima facie case of gender
discrimination under a theory of disparate treatment, because (1) Terry is a female
and thus a member of a protected class, (2) Terry was “highly qualified” for a
promotion to Lifeguard II, (3) Terry suffered an adverse employment action when
she did not receive a promotion to the Lifeguard II position, and (4) six similarly
situated male Lifeguard Is were treated more favorably when they were offered the

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One of the six male Lifeguard Is who was offered the promotion failed a2
background check and the job went to the next Lifeguard on the list who happened
to be female. The fact that one woman was eventually offered one of six
promotions should not negate the fact that (a) originally all of the Lifeguard Is who
were offered promotions were male and (b) five of the promotions did go to
similarly situated individuals outside of the protected class.
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promotion. See Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 1123 (9th2
Cir. 2009).
After a plaintiff makes her prima facie case, “[t]he burden then shifts to the
employer to articulate a legitimate, nondiscriminatory reason for the action.”
McGinest, 360 F.3d at 1122 n.16 (citing McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-04 (1973)). The City met this burden by presenting declarations
stating that Terry was not promoted because she was not as qualified as other
candidates.
Thus, at the summary judgment stage, the burden shifted back to Terry to
show “that the articulated reason is pretextual either directly by persuading the
court that a discriminatory reason more likely motivated the employer or indirectly
by showing that the employer’s proffered explanation is unworthy of credence.”
Nicholson, 580 F.3d at 1126-27 (quoting Chuang v. Univ. of Cal. Davis Bd. of Trs.,
225 F.3d 1115, 1124 (9th Cir. 2000)). In order to avoid summary judgment at this
stage, however, we have held “the plaintiff must only demonstrate that there is a

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genuine dispute of material fact regarding pretext. The amount of evidence
required to do so is minimal.” Id. at 1127; see also McGinest, 360 F.3d at 1123
(“Because the . . . first two steps of the McDonnell Douglas framework ha[ve]
been established, ‘the sole remaining issue [i]s discrimination vel non.’” (quoting
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000))).
Terry easily satisfied this burden by attaching evidence to her opposition
brief that suggested the factors upon which promotions depended were themselves
infected with discriminatory animus. First, Terry’s statistical expert concluded in
his expert report that male lifeguards received the highest marks in their annual
reviews at a disproportionate rate over female lifeguards, and that “[t]he likelihood
of seeing the results which warrant [these disproportionately higher ratings of male
lifeguards] from strictly random occurrence or chance is so low, that I conclude
that [they] are not due to chance, but to a problem that exists within the evaluation
structure and promotion policy of the City of San Diego lifeguard workforce.” For
the reasons set forth earlier, it was error for the district court to disregard this
evidence. See Hemmings, 285 F.3d at 1183-90. Second, Terry submitted
testimony, declarations, and annual reviews that indicated male lifeguards, but not
female lifeguards, were told in advance about non-required courses that would
make them more competitive in the promotion process. Finally, Terry submitted

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declarations that female lifeguards were discouraged from taking the courses and
certification tests required for promotion. Because Terry’s evidence raises genuine
issues of material fact as to whether the City’s reasons are nondiscriminatory or
pretextual, we reverse and remand for trial Terry’s claim of employment
discrimination under a theory of disparate treatment.
Finally, we conclude that Terry established a prima facie case of retaliation
when the City failed to schedule Terry to work during the summer of 2007 after
she engaged in a protected activity by filing this lawsuit. While we have rejected
an inference of causality when 18 months pass between the protected activity and
the adverse employment action, Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1065 (9th Cir. 2002), we do not require that retaliation take place
immediately in order to infer a causal connection. See, e.g., Ray v. Henderson,
217 F.3d 1234, 1244 (9th Cir. 2000). Because of the seasonal nature of non-
permanent lifeguard work, we hold that the fact that Terry was scheduled during
the 2006 summer season, but received no work during the 2007 summer season is
no different than an employer waiting a few months before firing an employee who
engaged in a protected activity.
The City articulated many legitimate nondiscriminatory reasons why Terry
was not scheduled for work during the 2007 season. Terry not only disputed many

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of these reasons in her opposition briefing, but also submitted other evidence
suggesting that the reasons given were pretextual.
Faced with genuine issues of material fact, the district court improperly weighed
the evidence submitted at the summary judgment stage and found for the City. We
thus reverse and remand for trial Terry’s retaliation claim.
REVERSED and REMANDED for trial.

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