Marvin Bagley, Jr. v. Bel-Aire Mechanical Inc , 647 F. App'x 797 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
APR 08 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MARVIN BAGLEY, Jr., No. 13-17386
Plaintiff - Appellant, D.C. No. 2:12-cv-01429-SRB
v.
MEMORANDUM*
BEL-AIRE MECHANICAL
INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted January 8, 2016
San Francisco, California
Before: WALLACE, NOONAN, and BERZON, Circuit Judges.
This is an employment discrimination action. Bagley appeals from the
district court’s order granting summary judgment to Bel-Aire as to his claim of
retaliation under 42 U.S.C. § 1981. We now reverse, and hold that (1) Bel-Aire
failed to meet its burden to proffer a legitimate non-discriminatory reason for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
terminating Bagley, and (2) Bagley has introduced sufficient evidence to raise a
triable issue as to whether his termination was retaliatory.
Bagley, an African-American man, began working for Bel-Aire on March
14, 2008 as an apprentice. In April of 2008, Bagley was transferred to the Dial
project and was assigned to pipefitting work. On May 19, 2008, Bagley’s
supervisor at the Dial project, Vernon McBride, approached Bagley while he was
working, put a noose in Bagley’s face and told him, among other things: this is “a
hangman’s noose; this is what they used to hang people with in the olden days.”
On May 28, 2008, Bagley reported the incident to Will Guy, the superintendent of
the Dial project and McBride’s direct supervisor. Guy terminated McBride shortly
thereafter.
In June of 2008, Bagley was transferred from the Dial project to the Banner
Project over his objections. Guy explained that many of McBride’s friends and
family members were working on the Dial project and were upset with Bagley for
registering the complaint that resulted in McBride being laid off, and that he had to
be transferred for his own physical safety. About a month later, on July 3, 2008,
Bagley was informed that he was being laid off effective immediately.
Our court reviews a district court’s grant of summary judgment de novo.
Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1408 (9th Cir. 1996). Viewing
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the evidence in the light most favorable to the nonmoving party, our court must
determine whether there are any genuine issues of material fact which would
preclude summary judgment, and whether the district court correctly applied the
substantive law. United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.
2003).
I. Timeliness
Retaliation claims under § 1981 are subject to a four-year statute of
limitations. See Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1007 (9th Cir.
2011); Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 383 (2004); 28 U.S.C.
§ 1658. The statute of limitations begins to run “when the plaintiff knows or has
reason to know of the injury which is the basis of the action.” Lukovsky v. City &
Cty. of S.F., 535 F.3d 1044, 1048 (9th Cir. 2008) (quoting Olsen v. Idaho State Bd.
of Med., 363 F.3d 916, 926 (9th Cir. 2004)). Because Bagley filed this action three
years, eleven months, and 29 days after being informed of his termination, his
cause of action for retaliation based on his termination is timely. Del. State Coll v.
Ricks, 449 U.S. 250, 258 (1980).
However, Bagley’s involuntary transfer occurred outside the four-year
statute of limitations and therefore cannot serve as a predicate legal injury to
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support an independent claim of retaliation.1 Nonetheless, while a time-barred
claim has no “present legal consequence[], . . . [i]t may still constitute relevant
background evidence in a proceeding in which the status of a current practice is at
issue.” United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977); see also Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). Evidence of time-
barred acts may be “offered for its probative value in assessing whether the
employer’s justifications for its present conduct lack credibility” and may also
serve “as indirect proof of the employer’s intent to discriminate.” Lyons v.
England, 307 F.3d 1092, 1112 (9th Cir. 2002). Under Bagley’s theory of the case,
he was transferred to a dead-end project in retaliation for registering a complaint
only a few days earlier. Indeed, Drew Schroder, Bel-Aire’s operations manager,
admitted that he knew that the Banner project was essentially finished at the time
he transferred Bagley. Therefore, evidence surrounding Bagley’s involuntary
transfer remains relevant to show that Bel-Aire acted with a discriminatory motive
when it terminated him only a month after transferring him.
1
For the first time at oral argument, Bagley advanced the argument that his
involuntary transfer claim is timely under the “continuing violation” theory. Oral
Argument at 14:00-15:09,
http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000008851.
However, the Supreme Court has rejected this precise argument. Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
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II. Retaliation
“To prevail on a claim of retaliation, a plaintiff must show (1) involvement
in protected activity opposing an unlawful employment practice, (2) an adverse
employment action, and (3) a causal link between the protected activity and the
adverse action.” Freitag v. Ayers, 468 F.3d 528, 541 (9th Cir. 2006); see also
Manatt v. Bank of Am., N.A., 339 F.3d 792, 800-01 (9th Cir. 2003). “[R]etaliation
claims must be proved according to traditional principles of but-for causation.”
Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).
A. Prima Facie Case
The burden of establishing a prima facie case is “not onerous”; the plaintiff
must only introduce evidence that “give[s] rise to an inference of unlawful
discrimination.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981); see also Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir.
2002). The parties agree that Bagley’s complaint to Guy constitutes a “protected
activity.” As to the second element, termination—even when an employee has the
opportunity to be rehired within days through his union—constitutes an adverse
employment action. See Vasquez v. Cty. of L.A., 349 F.3d 634, 646 (9th Cir. 2003);
Ray v. Henderson, 217 F.3d 1234, 1241-43 (9th Cir. 2000). As to the third element,
Bagley has shown a 36-day gap between the protected activity and the adverse
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employment action, see Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987);
Miller v. Fairchild Indus., Inc., 885 F.2d 498, 505 (9th Cir. 1989), Guy’s hostility
to Bagley’s complaint, see Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 894-95 (9th
Cir. 2005), and the continued availability of pipefitting work for apprentices for as
long as five months after he was terminated. This evidence, taken together,
establishes a prima facie showing of but-for causation.
B. Non-Discriminatory Reason
Because Bagley has established the existence of a prima facie case, the
burden of production shifts to Bel-Aire which “must present evidence sufficient to
permit the factfinder to conclude that [it] had a legitimate, nondiscriminatory
reason for the adverse employment action.” Coghlan v. Am. Seafoods Co. LLC,
413 F.3d 1090, 1094 (9th Cir. 2005). Bel-Aire contends that it laid off 300 people
(nearly a third of its workforce) between the months of May and July of 2008, and
that Bagley was selected to be laid off “based on his skill level and available
work.” Merely enumerating these two factors (“skill level” and “available work”)
relevant to the layoff decision without any explanation about how they relate to
Bagley’s particular case fails to meet the defendant’s burden of production. See
Davis v. Team Elec. Co., 520 F.3d 1080, 1094 (9th Cir. 2008). Accordingly,
summary judgment was not warranted.
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C. Pretext
Summary judgment was also inappropriate because Bagley introduced
sufficient evidence to create a triable issue of fact as to pretext.
First, Bagley has demonstrated a close “temporal proximity” between his
complaint and his termination. Bell v. Clackamas Cty., 341 F.3d 858, 865 (9th Cir.
2003). Second, he introduced evidence that his supervisor, Guy, was
unsympathetic to his complaint. Guy testified that he had doubts about Bagley’s
sincerity, believed that he might have been “putting on a show,” and thought that
Bagley should have taken matters into his own hands rather than complaining
about it; see Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1071 (9th Cir. 2003).
Third, Schroder admitted that there continued to be work at the Dial project for
apprentices and pipefitters until December of 2008—five months after Bagley’s
discharge and six months after his involuntary transfer, and Guy stated that Bel-
Aire was “way behind” at the Dial project at the time Bagley was transferred,
particularly in the area where Bagley was working. This information casts doubt
upon Bel-Aire’s proffered explanation for Bagley’s termination. McGinest v. GTE
Serv. Corp., 360 F.3d 1103, 1123 (9th Cir. 2004) (quoting Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 147 (2000)). Fourth, Bagley also
introduced evidence that he received excellent evaluations from his supervisors and
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had been told he had a future with the company, evidence which further supports
his theory that he was singled out for disfavored treatment because of his
complaint. See Boeing Co., 577 F.3d at 1051.
Finally, Guy’s statement that Bagley’s transfer was motivated by a desire to
protect him from his co-workers could be interpreted as direct evidence of
discriminatory intent. Boeing Co., 577 F.3d at 1050. Defendant’s suggestion that
the views of line-level employees should not be attributed to the corporation is
unavailing in light of the fact that a supervisor explicitly relied upon the animus of
Bagley’s co-workers as the primary reason justifying his transfer to a less desirable
job site. Cf. Lam v. Univ. of Haw., 40 F.3d 1551, 1560 n.13 (9th Cir. 1994).
CONCLUSION
While Bagley has introduced sufficient evidence to survive summary
judgment, we pause to note that this is not a one-sided case, and we therefore
express no view as to the merits of Bagley’s claim. A jury may very well credit
evidence introduced by Bel-Aire and find in its favor. However, cases in this
circuit emphasizing the low-bar an employment discrimination plaintiff must meet
to avoid summary judgment are legion. See e.g. Chuang v. Univ. of California
Davis, Bd. of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000). Accordingly, we
reverse the district court’s order.
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REVERSED.
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FILED
Bagley v. Bel-Aire Mechanical, Inc., No. 13-17386
APR 08 2016
WALLACE, Senior Circuit Judge, dissenting in part and concurring in part: MOLLY C. DWYER, CL
U.S. COURT OF APPEA
The majority is correct in all of its holdings except its conclusion that there
is a genuine dispute of material fact as to whether Bel-Aire presented sufficient
evidence of a legitimate, nondiscriminatory reason for transferring and ultimately
laying off Bagley. I therefore dissent from that portion of the opinion, but concur
in the rest. I also write separately to highlight the ways in which Bagley’s counsel
has distorted the record in his effort to establish a genuine dispute of material fact
as to pretext.
I.
The majority contends that Bel-Aire’s reasons for transferring and laying off
Bagley are insufficient in light of our court’s opinion in Davis v. Team Electric
Co., 520 F.3d 1080 (9th Cir. 2008). In Davis, a female electrician filed a sex-
discrimination complaint against her employer, Team Electric. Id. at 1087.
Approximately two months later, Team Electric laid off a portion of its
electricians, including Davis. Id. at 1087-88. Team Electric explained that “Davis
was laid off, with sixteen other employees, for economic reasons.” Id. at 1094.
Team Electric, however, presented no evidence as to why Davis in particular was
selected for layoff. Id. Our court held that Team Electric, having only cited
generally to “economic” reasons for the layoff, did not meet its burden of
1
articulating a legitimate, nondiscriminatory reason because “[t]o meet its burden,
the employer must explain why it selected the plaintiff in particular for the layoff.”
Id.
Unlike the employer in Davis, Bel-Aire not only pointed to an economic
downturn for why it laid off Bagley, but it also explained why Bagley specifically
was terminated. Drew Schroder, the Operations Manager and the individual in
charge of staffing, explained that the Dial project had begun to wind down in May,
and the pipefitters in Bagley’s crew had completed their portion of the project. ER
II 212; 39: 16-19; ER II 214; 46:10-25; 47:1-25; 48; 1-25; 49:1-2. Bagley, along
with the rest of his crew of pipefitters, were working on the HVAC cooling system,
a discrete area of the Dial project that had its own unique set of blueprints. ER II
214; 47: 13-25, 48:1-11. That area was finished in May. ER II 214; 46:10-11.
Although a small number of pipefitters were employed after May, Schroder could
not simply replace a pipefitter in a different area of the Dial project with Bagley.
ER II 214; 46: 12-25, 47:1-11. The other project areas were staffed with their own
crews, and each area, like the HVAC area, had its own unique set of blueprints. Id.
It therefore would have been impractical for Schroder to remove a pipefitter who
was already working in one area of the Dial project and replace that pipefitter with
Bagley, who would have been unfamiliar with that area’s blueprints. Id.
2
Moreover, while the evidence of Bel-Aire’s general decline in work is not,
standing alone, sufficient under Davis to establish a nondiscriminatory reason for
Bagley’s transfer and layoff, it nevertheless supports Bel-Aire’s contention that it
had a need to lay off Bagley due to a lack of available jobs. James Dinan, the
President, Chief Executive Officer, and owner of Bel-Aire Mechanical, ER II 199-
200, testified that by “early May 2008, the Dial project had begun to wind down,
resulting in substantially diminished staffing requirements.” Id. Throughout May,
Bel-Aire laid off 18 workers from the Dial project, 6 of whom were apprentices
like Bagley. ER II 200. In fact, from May to July, Bel-Aire reduced its entire staff
by 1/3, totaling almost 300 people. Id.
The timeline of events also supports Bel-Aire’s contention that Bagley had
been slated for layoff even before Bagley complained. The incident with the noose
occurred on May 5, 2008 and Bagley did not complain until three weeks later, on
May 28, 2008. ER II 317. The testimony from Dinan and Schroder demonstrates
that large numbers of employees were laid off from the Dial project in May, and by
the end of May the work in Bagley’s area of the Dial project was complete and
everyone in his crew was either laid off or transferred. ER II 200, 214; 48: 15-17.
Thus, by the time Bagley complained, the layoffs at the Dial project had already
commenced in full force. By transferring Bagley to the Banner project, Bel-Aire
3
was able to extend Bagley’s employment, even though the Banner project was
finished shortly after Bagley’s transfer. ER II 212, 304.
In sum, Davis does not, as the majority contends, force this court to
conclude that Bel-Aire failed to present “evidence sufficient to permit the
factfinder to conclude that it had a legitimate, nondiscriminatory reason for the
adverse employment action.” Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090,
1094 (9th Cir. 2005). Bel-Aire explained specifically how its lack of available
work, coupled with Bagley’s skill and the completion of his assigned area on the
Dial project, resulted in Bagley being transferred and ultimately laid off.
II.
While I disagree with the majority that Bel-Aire did not provide a legitimate,
nondiscriminatory reason for the ultimate layoff, I agree that Bagley introduced
sufficient evidence to create a triable issue of fact as to pretext. I write separately,
however, to highlight the manner in which plaintiff’s counsel inappropriately—and
misleadingly—twisted portions of the record out of context.
Bagley attempts to establish pretext by presenting evidence that the Dial
project was far from complete. Bagley states that “Will Guy admitted that Bel-Aire
was ‘way behind’ at the Dial project, and there was plenty of more work to be done
at the Dial project in early June of 2008….” A closer look at this alleged admission
shows that Bagley twisted Guy’s statement out of context. In the portion of the
4
testimony Bagley cites, Guy is discussing the reasons he fired Vernon McBride,
the individual responsible for making the hangman’s noose. ER II 156-57. The
deposition testimony is as follows:
Q. Let me ask you this: Now, did you ask Vernon McBride,
hey, Vernon why did you tie this hangman’s noose? What’s up
with that? Basic simple question, why did you do it?
Did you ask him why he did it?
A. No.
Q. Why?
A. Because I knew it was wasn’t going to get – he probably
wasn’t going to tell me the truth. Nobody was going to tell me the
truth. What I had to find out is were they making knots on the job?
Was rope being tied? Was there a hangman’s noose involved and that
was enough for me.
Q. Now, sir, as a pipefitter, do you sometimes make knots to
help you do your work?
A. Yes.
Q. Now, now as foreman, aren’t you supposed to teach
apprentices how to do their job? Isn’t that part of the job?
A. There’s school. We have classes. There’s a knot-tying class.
Were they screwing off? Yes. Should they have been on the job
making knots? No.
Q. I hear you.
A. Up there in the area they were working in, they were way
behind.
5
Id. Placing the “way behind” language back into context, it is clear that Guy
was simply discussing why he was upset with McBride’s horseplay and that
McBride and others who were engaged in that horseplay had plenty of actual work
to do. ER II 156-157, 239. That is a far cry from Bagley’s statement that Guy
testified that the entire Dial project was behind and that there was plenty of work
left to do in June 2008.
Next, to strengthen his pretext argument, Bagley states that even though he
was transferred, other apprentices continued to work at the Dial project through
November or December 2008. Bagley states: “In fact, Bel-Aire Operations
Manager Drew Schroder testified that apprentices continued to work for Bel-Aire
at the Dial project until November or December of 2008.” Bagley’s statement leads
our court to believe that Schroder stated that other apprentices, including
pipefitters, retained their positions at the Dial project through November and
December even though Bagley did not. Schroder never made such a statement.
Rather, Schroder testified that only two project superintendents, Will Guy and Paul
Delaware, worked through that time period. ER II 213; 42: 17-24. Furthermore, in
response to counsel’s question, “How many plumbers did you have working in the
fall of 2008 at the Dial job? And I’ll tell you by fall, I mean September, October
and November?”, Schroder answered, “We were probably down to maybe five.”
ER II 213; 44: 11-15. Again, Schroder did not state that there were apprentices
6
who continued to work on the Dial project through November or December 2008,
let alone pipefitters like Bagley.
As a review of Schroder’s testimony demonstrates, Bagley took unsupported
leaps in characterizing Schroder’s testimony in an effort to bolster his pretext
argument. Ultimately, despite counsel’s mischaracterization of the testimony, I
believe the following facts create a genuine dispute of material fact as to pretext:
(1) the temporal proximity between Bagley’s complaint and his termination; (2)
Will Guy’s, one of Bel-Aire’s project superintendents, testimony that Bagley
should have taken matters into his own hands and may have been complaining just
“to put on a show,” ER II 154; and (3) Bagley’s testimony that Guy told him he
was being transferred for his physical safety as a result of the complaint, ER II 100.
III.
Because Bel-Aire presented evidence as to why it slated Bagley specifically
for layoff, I dissent from that portion of the memorandum disposition that holds
otherwise, and concur in the remainder.
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