UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALISON N. TERRY CASE NO. 09-55579

Plaintiffand Appellant,

v. D.C. No. 3:06-cv-01459­MMA-CAB Southern District of

CITY OF SAN DIEGO, California, San Diego

Defendant and Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

THE HONORABLE MICHAEL M. ANELLO, PRESIDING

APPELLANT'S OPENING BRIEF

MICHAEL A. CONGER LAW OFFICE OF MICHAEL A. CONGER 16236 SAN DIEGUITO ROAD, SUITE 4-14

P.O. BOX 9374 RANCHO SANTA FE, CA 92067

TELEPHONE: (858) 759-0200 FACSIMILE: (858) 759-1906

ATTORNEY FOR PLAINTIFF AND APPELLANT ALISON N. TERRY

TABLE OF CONTENTS

I. STATEMENT OF JURISDICTION 1

A. The Basis for the District Court's Jurisdiction . . . . . . . . . . . . . . . . . . 1

B. The Basis for the Court of Appeals' Jurisdiction 1

C. Filing Date of the Appeal 1

D. Assertion That the Appeal Is from a Final Order or Judgment That Disposes of All Parties' Claims. . . . . . . . . . . . . . . . . 1

II. STATEMENT OF THE ISSUES PRESENTED 2

III. STATEMENT OF THE CASE 3

A. Statement of Facts 3

1. Disparate impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

2. Disparate treatment 9

3. Retaliation 17

B. Statement ofProcedure 17

IV. STANDARD OF REVIEW 24

V. ARGUMENT 26

A. The District Court Erroneously Granted Summary Judgment on Terry's Disparate Impact Claim 26

1. The City failed to carry its burden to demonstrate it was entitled to summary judgment on Terry's disparate impact claim 32

2. The Lifeguard I population was the appropriate comparison pool in light of the uncontradicted evidence of deselection from the applicant pool 35

B. The District Court Erroneously Granted Summary Judgment on Terry's Disparate Treatment Claim 47

1. The City failed to carry its burden to demonstrate it was entitled to summary judgment on Terry's disparate treatment claim 47

2. The district court erred by weighing the evidence on Terry's disparate treatment claim and by failing to draw all inferences in the light most favorable to her 51

C. The District Court Erroneously Granted Summary Judgment on Terry's Retaliation Claim 59

1. The City failed to carry its burden to demonstrate it was entitled to summary judgment on Terry's retaliation claim 59

2. The district court erred by weighing the evidence on Terry's retaliation claim and by failing to draw all inferences in the light most favorable to her 63

VI. CONCLUSION 64

11

TABLE OF AUTHORITIES

Cases

Adickes v. S.H Kress & Co. 398 U.S. 159 (1970)

Albemarle Paper Co. v. Moody 422 U.S. 405 (1975)

Barnes v. GenCorp Inc. 896 F.2d 1457 (6th Cir. 1990)

Bates v. United Parcel Service 465 F.3d 1069 (9th Cir. 2006)

Bazemore v. Friday 478 U.S. 385,400 (1986)

Bergene v. Salt River Project Agric. Improvement & Power Dist. 272 F.3d 1136 (9th Cir. 2001)

Blankenhorn v. City 0/Orange 485 F.3d 463 (9th Cir. 2007)

Burlington Northern & Santa Fe Ry. Co. v. White 548 U.S. 53 (2006)

Castaneda v. Partida 430 U.S. 482 (1977)

Celotex Corp. v. Catrett 477 U.S. 317 (1986)

Chuang v. Univ. o/Cal. Davis, Board o/Trustees 255 F.3d 1115 (9th Cir. 2000)

33, 48

37,45

28

41

28

58-59

24

59

29

19, 32, 34-35, 48

24

111

Cordova v. State Farm Ins. Co. 124 F.3d 1145 (9th Cir. 1997)

Coszalter v. City 0/Salem 320 F.3d 968 (9th Cir. 2003)

Davis v. Team Elec. Co. 520 F.3d 1080 (9th Cir. 2008)

Diaz v. American Telephone & Telegraph 752 F.2d 1356 (9th Cir. 1985)

Diaz v. Eagle Produce Ltd. P'ship 521 F.3d 1201 (9th Cir. 2008)

Fallis v. Kerr-McGee Corp. 944 F.2d 743 (10th Cir. 1991)

Fonseca v. Sysco Food Servo 0/Arizona, Inc. 374 F.3d 840 (9th Cir. 2004)

Garcia V. Lawn 805 F.2d 1400 (9th Cir. 1986)

Griggs v. Duke Power Co. 401 U.S. 424 (1971)

Hazelwood School Dist. v. United States 433 U.S. 299 (1977)

Hemmings v, Tidyman's, Inc. 285 F.3d 1174 (9th Cir. 2002)

Huppert v. City o/Pittsburg _F.3d _ (9th Cir. 2009)

International Brotherhood o/Teamsters V. United States 431 U.S. 324 (1977)

49,60

61

24,58

50

24

50

48

60

26

29

28, 38

24, 52

26,28,36-38,41,46

IV

Jordan v. Clark 847 F.2d 1368 (9th Cir. 1988) 61

Katz v. Children's Hospital ofOrange County 28 F.3d 1520 (9th Cir. 1994) 34

Lindsey v. SLT Los Angeles, LLC 447 F.3d 1138 (9th Cir. 2006) 25

Manatt v. Bank ofAmerica, N.A. 339 F.3d 792 (9th Cir. 2003) 59

McDonnell Douglas Corp. v. Green 411 U.S. 792 (1973) 49

McGinest v. GTE Servo Corp. 360 F.3d 1103 (9th Cir. 2004) 25

Miller V. Fairchild Indus., Inc. 885 F.2d 498 (9th Cir. 1989) 61

Moore v. Hughes Helicopters, Inc. 708 F.2d 475 (9th Cir. 1983) 38-39

Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc. 210 F.3d 1099 (9th Cir. 2000) 48

Obrey v. Johnson 400 F.3d 691 (9th Cir. 2005) 50

Orr v. Bank ofAmerica, NT & SA 285 F.3d 764 (9th Cir. 2002) 35

Palmer v. United States 794 F.2d 534 (9th Cir. 1986) 57

Passantino v. Johnson & Johnson Consumer Products, Inc. 212 F.3d 493 (9th Cir. 2000) 60

v

Peterson v. Hewlett-Packard Co. 358 F.3d 599 (9th Cir. 2004) 49

Ray v. Henderson 217 F.3d 1234 (9th Cir. 2000) 59

Raytheon Co. v. Hernandez 540 U.S. 44 (2003) 26

Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133 (2000) 64

Ricciv. l)eSta~ano

U.S. , 129 S.Ct. 2658 (2009) - - 26

Schnidrig v. Columbia Mach., Inc. 80 F.3d 1406 (9th Cir. 1996) 25

St. Mary's Honor Center v. Hicks 509 U.S. 502 (1993) 49

Stout v. Potter 276 F.3d 1118 (9th Cir. 2002) 27,36,38

Sutera v. Schering Corp. 73 F.3d 13 (2nd Cir. 1995) 49

Ulrich v. City & County o~San Francisco 308 F.3d 968 (9th Cir. 2002) 61

Wards Cove Packing Co., Inv. v. Atonio 490 U.S. 642 (1989) 26,37-38

Watson v. Fort Worth Bank & Trust 487 U.S. 977 (1988) 27-28

Yanowitz v. L 'Oreal USA, Inc. 36 Ca1.4th 1028 (2005) 60

VI

Yartzof!v. Thomas 809 F.2d 1371 (9th Cir. 1987) 60

Statutes

28 U.S.C.

§ 1291 1

§ 1331 1

§ 1441, subd. (b) 1

42 U.S.C.

§ 2000e-2 1,34,47,49

§ 2000e-2(k)(1)(A)(i) 26

§ 2000-e(k)(1 )(A)(ii) 26

§ 2000-e(k)(1)(C) 26

§ 2000e-3(a) 59

California Government Code

§ 12940(a) 1,34,49

Federal Rules or Regulations

Federal Rules of Civil Procedure

7(b)(1) 34

VB

56(c) 2

29 C.F.R.

§ 1607.4(D) 29

Vin

I. STATEMENT OF JURISDICTION

A. The Basis for the District Court's Jurisdiction

This is an action for gender discrimination in violation of 42 U.S.C. §§

2000e-2 and California Government Code § 12940(a), brought by lifeguard Alison

N. Terry ("Terry") against the City of San Diego ("City"). Terry's complaint was

filed on June 20, 2006. The City filed its answer denying the charges on July 28,

2006. The district court had jurisdiction under 28 U.S.C. §§ 1331 and 144l(b).

B. The Basis for the Court of Appeals' Jurisdiction

This Court has jurisdiction of this appeal pursuant to 28 U.S.C. § 1291.

C. Filing Date of the Appeal

The district court's order granting defendant's motion for summary

judgment was filed on April 9, 2009. Excerpts of Record, Volume V, p. 1067 ("5

ER 1067"). Judgment was entered that same date. 5 ER 1086. Terry filed her

Notice ofAppeal on April 10, 2009. 5 ER 1087.

D. Assertion That the Appeal Is from a Final Order or Judgment That Disposes of All Parties' Claims

This appeal is from an order granting defendant's motion for summary

judgment. That "order disposerd] of all claims" between the parties. 5 ER

1085:21.

1

II. STATEMENT OF THE ISSUES PRESENTED

1. Did the district court error in granting the City's motion for summary

judgment on Terry's disparate impact claim, because (a) the City, as the party

moving for summary judgment, failed to carry its initial burden demonstrating it

was entitled to summary judgment on Terry's disparate impact discrimination

claim or (b) the district court used an inappropriate comparison pool?

2. Did the district court error in granting the City's motion for summary

judgment on Terry's disparate treatment, because (a) the City, as the party moving

for summary judgment, failed to carry its initial burden demonstrating it was

entitled to summary judgment on Terry's treatment claim or (b) the district court

improperly weighed conflicting evidence and failed to draw all inferences in the

light most favorable to Terry on that claim?

3. Did the district court error in granting the City's motion for summary

judgment on Terry's retaliation claim, because (a) the City, as the party moving for

summary judgment, failed to carry its initial burden demonstrating it was entitled

to summary judgment on Terry's retaliation claim or (b) the district court

improperly weighed conflicting evidence and failed to draw all inferences in the

light most favorable to Terry on that claim?

2

III. STATEMENT OF THE CASE

A. Statement of Facts

This is a gender discrimination lawsuit brought by Terry against the City of

San Diego, and specifically its lifeguard service. Despite Terry's IS-year of

exemplary service as a lifeguard, she has been unable to obtain a promotion from

the entry-level, part-time position of Lifeguard 1. Terry's career advancement has

been retarded by, among other things: (1) a refusal to provide her training and

testing so that she could obtain a personal water craft ("PWC") operator's

certificate needed to apply for promotion, (2) the use by the City of a flawed

employee performance review ("EPR") process which heavily favors men, and (3)

the City's use of promotion criteria concealed from female candidates and

disclosed only to male candidates. Given these systemic flaws, higher paying

management positions are held exclusively by men, as demonstrated best by the

attached chart. 2 ER 326.

3

Case 3:06-cv-01459-JAH-CAB Document 79-12 Filed 09/22/2008 Page 6 of 97

Lifeguard Service Organizational Chart

[IJ • Captain I

(!l ................. ~

lieutenant I I lieIltenanl LieutenantLteulel'l8nt II llellten811t

,'..,......,.,••,. ,: ..., .. ;•..•••,.'.',.':'.'::':." .".':,,""'."::"."'.;'.::::. ,', """"-","':":",'-.',,',.,,',' ,,-.,""':':.':"','::.'.'-,"""-",':".'.',,:-.,':::'-::"',',:;:,. ' ... -,:,:::::,-:".,-,.:"::::!.,,:,,,:,,-:, .... -,:,:,,'::',,:,,-,-,-",::."",',:,::-::-,"',-:.:-::;:",-',"," ,',""':',":-.',.:,.,':,:-.',,',-:,', ""4'::,:::":,+(",,,,,, :::...c,';.,,:_:,,_""_""'_:":' "',-' ',':".',,"".''"''::-:''':::,':.-:';: ". ".,':-."':,':':'··':.'i'··'"··,,,·:,·

lifeguard U11ft

*11\ 1*1 *,*r~1 *1 *1tI *'tl * *' tltrfltTll *1 1\ I*' tl*1 * *1 1\ ItI*'*' *,*1*

'~jji jij~tilitiJ~D'U--,1:>0

Terry advanced both disparate treatment and disparate impact theories of

establishing gender discrimination liability. Additionally, Terry asserted, after she

filed this suit, the City retaliated against her by refusing to allow her to work

during the 2007 summer lifeguard season.

In descending order of authority, the City's lifeguard management includes

one chief, one captain, five lieutenants, 17 sergeants, 68 permanent, year-around,

lifeguards (the positions are either "Lifeguard lIs" or "Lifeguard Ills" 1), and

approximately 200 seasonal summertime temporary lifeguards (called "Lifeguard

Is"). 1 ER 5 (Complaint, ~ 8); 1 ER 17: 19-20 (Answer). Lifeguard Is perform the

bulk of the water rescues and any other physical labor. Lifeguard lIs and

employees of higher rank have increasing supervisorial responsibilities, with

sergeants, lieutenants and the chief rarely performing water rescues or other

physical tasks. 4 ER 673:7-29:12; 4 ER 677:2-678:10; 4 ER 686:12-24. Currently

and for the past several years, the chief, captain, all lieutenants, and all but one

sergeant are male. 1 ER 5 (Complaint, ~ 10); 1 ER 17:19-20 (Answer); 2 ER 326.

Compensation paid to employees increases with rank. 4 ER 692:6-9. As part-

time, seasonal employees working only from Memorial Day to Labor Day,

Lifeguard Ills are "Lifeguard lIs with some additional certification." 4 ER 663:1-18,664:8-10.

5

Lifeguard Is do not receive pension, health or other valuable employment benefits.

2 ER 313:26-314:3; 4 ER 661 :5-13.

When the City has an opening for Lifeguard II, it publishes a job

announcement. 3 ER 418-430; 4 ER 753:9-757:12. The position is open only to

Lifeguard Is employed by the City. 3 ER 419-430; 4 ER 662:15-23. Suchjob

announcements state minimum required qualifications (3 ER 418-426) and more

recently, also list "highly desirable certificates." 3 ER 430. The City's personnel

department "determines whether an applicant meets the minimum requirements ...

[and if so] their name would be placed on what's called an eligible list." 4 ER

756:24-757:12; 4 ER 732:15-734:12. Employees on the eligible list are

interviewed, and based on subjective assessments regarding the interview,

promotional hiring decisions are made. 4 ER 733:24-734:12. These decisions

have statistically favored male lifeguards. 2 ER 273-275; 2 ER 326.

1. Disparate impact

Subjective employee performance reviews ("EPRS") weigh heavily in the

promotional process. 4 ER 702:24-703: 1 (Chief Hewitt: "the higher the

ranking ... on their performance rating is a positive thing"); 4 ER 682:15-683:10

(Captain Wurts: "1 would say that we more often than not are interested in hiring

the person with the best performance"); 4 ER 738:15-21 (Captain Wurts: "It's

6

certainly part of what we evaluate, previous performance"); 4 ER 725: 3-11

(Sergeant Harris: "common knowledge amongst Lifeguards that if you did a good

job and received a higher EPR, in other words, outstanding, that you stood a better

chance of being [promoted])."

Lifeguard Is are aware of this weighted criterion for promotion. As a result,

low or mediocre performance reviews would reasonably cause deselection from

the applicant pool. 2 ER 314:7-12 (told applying for promotion without the

highest rating would be a "waste of time"); 2 ER 319: 19-22 ("aware that receiving

less than an outstanding rating would make promotion difficult if not

impossible"); 2 ER 312:2-3 (same); 307:22-24 ("aware that the higher the [EPR]

rating, the better the chance of being promoted"). In fact, of the six Lifeguard Is

originally offered a promotion to Lifeguard II in February, 2006-all of whom

were male2-four of the six had received three outstanding ratings (or

commendations3) in the immediate three years prior to the hiring, and the other

2 Promotions were at first offered only to male Lifeguard Is: James Blake, Michael Manley, Lonnie Stephens, Robert Brown, Michael Gilmore, and Shiloh Spangler. 4 ER 729:24-731 :2. Later, only after Lonnie Stephens failed his background check, was a promotion was offered to a female, Maureen Rabe. 4 ER 730:13-731:1.

3 In 2004 the City changed the name of the highest rating from "out­standing" to "commendation." 4 ER 717:1-3; 2 ER 311 :27-312: 1; 2 ER 314:4-6; 3

(continued...)

7

two received the highest ratings in two of the three years. 3 ER 558-568 (matrix4);

3 ER 569-571 (list ofhighly qualified candidates); 1 ER 58:20-21 (City conceding

"panel reviewed the three most recent years").

The City conceded that there is nothing in these annual evaluations which

should favor men over women. 4 ER 703:9-16 (Chief Hewitt); 4 ER 768:21­

769:11 (Chief Jarman); 4 ER 684:4-7,684:22-685:11 (Captain Wurts: men should

not have any advantage over a woman in employee performance review); 4 ER

672:12-673:6 (Sergeant Bender, having done many ratings, cannot think of any

reason men should be favored over women in rating process because rating has

nothing to do with strength and stamina, but about "being punctual, being

courteous, [and] having good communication skills"); 4 ER 716:1-14; 2 ER 327­

417 (Terry performance ratings).

Yet female Lifeguard Is obtain the highest EPR rating at statistically lower

rates that male Lifeguard Is. 3 ER 633-642 (data from 1999 through 2005).

Terry's statistical expert, San Diego State University Associate Dean and statistics

professor, analyzed the distribution of the highest EPR-outstanding or

\ ...continued) ER 633-642.

4 The City refers to a spreadsheet containing information regarding the candidates as the "matrix." 4 ER 667:4-668:5; 4 ER 714:20-715:20.

8

commendation-from 1999 through 2005 by gender. 2 ER 273-281. Dean

Lackritz found that:

"[f]emale lifeguards have a statistically significant lower percentage of [the highest] ratings than do male lifeguards. Female lifeguards get [the highest] rating[] only approximately [nine percent] of the time, whereas male lifeguards get [the highest] rating[] approximately 24 [percent] of the time. Because it appears the chances of promotion are dependent on the lifeguard getting the [highest] ratings,[5] this puts female lifeguards at a serious disadvantage. 2 ER 274:16-19.

2. Disparate treatment

By early 2003, Terry decided she would like to be promoted to Lifeguard II.

2 ER 307:25. However, she lacked one required certificate, the personal water

craft ("PWC") operator's certificate.6 2 ER 307:25-26. To obtain the certificate,

Terry enrolled in and paid for a PWC class taught by Sergeant Stropky. 2 ER

308: 1-2; 3 ER 432 (Terry's PWC field training guide showing start date ofMarch

5 Consistent with the experiential testimony of several lifeguard supervisors, set forth above, Professor Lackritz also found a statistically signifi­cant better chance of being promoted if the highest EPR ratings were achieved. 2 ER 274: 13-15.

6 Other requirements include (1) 900 hours of ocean-front life guarding experience, (2) certification to act as a main watch tower guard, (3) a SCUBA certificate, and (4) a "CPR for the Professional Rescuer" certificate from the American Red Cross. 3 ER 419-430. SCUBA and American Red Cross CPR certificates can be easily obtained from non-City providers. But the City's male­dominated lifeguard management controls certifications for PWC and main tower, as well as assignment to ocean-front lifeguard duty. 2 ER 307:26-28.

9

27,2003). Sergeant Stropky earned additional compensation from the outside

vendor which offered the course. 4 ER 761 :20. Terry worked hard to obtain her

PWC operator's certificate, but she did not receive it for 29 months. 2 ER 308:2­

3.

The delay was caused by several factors. Some conflicted with the City's

written policy, departures from policy not applied to male Lifeguard Is. Other

factors were unwritten rules which were not applied to male Lifeguard Is. First, in

2003, Terry was denied assignment to a beach with an available PWC for training,

even though she had the seniority for and had requested an assignment to such a

work location. 2 ER 308:6-8.

Second, she was told that she needed to obtain recommendations from two

male PWC instructors to be allowed to take the test, even though the written

policy only requires one instructor's recommendation. 2 ER 308:9-13; 3 ER 436

(written policy requiring "recommendation by a certified PWC instructor).? By

contrast, several male Lifeguard Is were permitted to test without any

? Notably, the PWC testers and field training officers are all male. 1 ER 94:24-95:2,95:7-22. Sergeant Stropky conceded that Terry needed only one recommendation to attempt the PWC operator's certificate test. 1 ER 95:22 ("a letter of recommendation"), 95 :24 ("a letter of recommendation"). In his deposi­tion' Sergeant Stropky cavalierly could not recall if one or two letters of recom­mendation were needed: "I don't recall. I've heard talk of it. May have been, may not have been." 4 ER 762:2-5.

10

recommendation or only one recommendation. 3 ER 449-456 (male with only one

recommendation);83 ER 457-464 (same); 3 ER 465-469 (male with no

recommendation); 3 ER 469-473(same); 3 ER 474-477 (male with only one

recommendation); 3 ER 478-482 (male with no recommendation); 3 ER 483-486

(male with only one recommendation); 3 ER 487-491 (same); 3 ER 492-497 (male

with no recommendation); 3 ER 498-505 (male with only one recommendation); 3

ER 506-510 (male with no recommendation); 3 ER 511-516 (male with only one

recommendation); 3 ER 517-522 (same); 3 ER 523-528 (same); 3 ER 529-535

(same); 3 ER 536-542 (same).

Third, Terry's PWC certification testing was delayed ten months, from early

September 2004 to late June 2005, because the testing sergeant (Stropky) claimed

he did not receive the recommendations from two of Terry's PWC instructors in

typewritten/arm. (2 ER 308:14-16.) However, several male Lifeguard Is were

tested with recommendations in handwriting. 3 ER 476,491,496,510,515,521,

526 (male lifeguards allowed to test with handwritten recommendations). And

several male lifeguards obtained a PWC operator's certificate with no

recommendation whatsoever-typewritten or handwritten. 3 ER 465-468 (male

8 PWC field training guides for other Lifeguard Is were produced by the City with identities redacted but with a legend permitting the gender to be determined. 3 ER 449.

11

with no recommendation); 3 ER 469-473 (same); 3 ER 478-482 (same); 3 ER 492­

497 (same); 3 ER 506-510 (same).

Fourth, Terry was told the surf conditions were insufficiently rough for

PWC testing, even though no written policy contains a surf-size requirement for

PWC testing. 2 ER 308:17-21; 3 ER 436-447. After Terry completed her PWC

training on September 1,2004 (2 ER 434), Sergeant Stropky would not test her

because "the conditions were not right." 2 ER 308:17-21. Although Terry, who

was working as a guard during the off season from September 2004 through May

2005, repeatedly asked to be tested, Sergeant Stropky refused to test her. 2 ER

308:17-21; 1 ER 95:28-96:1 ("PWC testing is not normally done in the off­

season"). He did, however, test and pass at least one male lifeguard during that

period. 3 ER 449,482 (test performed September 19,2004).

Male Lifeguard Is did not encounter such resistance and obtained PWC

certificates with relative ease and with much greater frequency than female

Lifeguard Is. 3 ER 547-548; 3 ER 554 (67 male lifeguards obtained PWC

operator's certificate from 2000 to 2005); 3 ER 544; 3 ER 554 (only 9 female

lifeguards obtained PWC operator's certificate over same period).

Other female Lifeguard Is had difficulty obtaining certifications necessary

to be eligible to apply for promotion to Lifeguard II. 2 ER 316 (former lifeguard

12

Alissa Lentz: " I often encountered substantial difficulty in obtaining training for

skills and certificates necessary to qualify to attempt to promote to Lifeguard II. I

frequently observed that male Lifeguard Is working alongside me would easily

obtain these training opportunities and I would not. I thought this was very unfair

and complained to several other lifeguards, but nothing was ever done"); 2 ER

318:22-319:1 (former lifeguard Erin Snow-Creagan: "I was repeatedly denied

training opportunities and watched as less senior male Lifeguard I[s] received

these [training] opportunities easily"); 2 ER 314 (Darling, a lifeguard since 1992:

"female lifeguards do not receive the same opportunities as men").

After Terry failed to receive a promotion to Lifeguard II in 2006, she

requested a critique from the interviewers regarding her interview and the reasons

she was not selected for the Lifeguard II position. 2 ER 308:22-25; 3 ER 573-574

(contemporaneous notes written same day as critique); 1 ER 101:23-25. Terry was

told what "hurt her the most," and what "separated [her] from the others," was her

failure to take courses, including a law enforcement course entitled PC832 (also

called "POST 832") and two technical swift water rescue courses ("swift water

rescue tech 1 and 2" or "SRT-1" and "SRT-2"). 2 ER 308:26-309:1; 3 ER 573

("Captain Murray ... stat[ed] it was the two things I was lacking: technical rescue

courses and enforcement courses. That's what made the difference and separated

13

me from the new hires"); 4 ER 777 (Murray deposition, p. 32:11-15: "All I

remember is a general discussion about there were blank spots that separated her

from the others. Blank spots in the matrix. Predominantly it was in certain areas

of either additional class work or experience, as I recall"; 4 ER 778 (Murray

deposition, p. 30:9-20, recalling Sergeant Vipond saying it would have helped

Terry to have taken PC 832); 4 ER 718:2-718:10 (Terry was ranked lower due to

lack of PC 832 and SRT-l courses); 4 ER 690:20-691:12 (taking those courses

would have helped); 4 ER 735:3-21 (courses are "beneficial for the applicant to

have taken, it's a plus, if you will, towards their promotion chances"); 1 ER 86:1-3

("[Terry] did not have the same motivation [as others because] I expected a

motivated person to get the other classes needed. This is what ... separated the

motivated individual from the rest of the applicants.")

Because the 2006 Lifeguard II hiring decision was such a "close call" (4 ER

697:3-5; 1 ER 85:15-16 ["All of the candidates were very close" and reason Terry

was not chosen was "subtle"]), Terry's failure to take these courses was

dispositive.

However, Terry was never told about those courses and their importance in

the promotional process. 2 ER 309:1-2. Although those courses had been

previously used to make hiring decisions for Lifeguard IIs (4 ER 736: 18-737:2; 3

14

ER 630-631 [2003 Lifeguard II Interviews Highly Qualified Matrix, column 7,

noting several male candidates had certificates to POST 832, SRT-l and SRT-2]),

no mention of those courses has ever appeared on the City's job announcements

for the Lifeguard II position. 3 ER 419-430.

However, male Lifeguard Is were told about this secret key to

promotion-taking PC 832, SRT-I and SRT-2 before the Lifeguard II interview. 3

ER 579-581 (2006 Lifeguard II male candidate's 2004 performance review listing

"goals and training for next year" include taking POST 8329); 3 ER 582 (male

candidate's 2005 performance review listing "goals and training for next year"

include taking POST PC 832 and swift water rescue tech 1); 3 ER 583 (male

candidate's 2004 performance review listing "goals and training for next year"

include taking POST 832); 3 ER 584 (male candidate's 2003 performance review

listing "additional goals and training for next year" include taking "SRT-l [and]

SRT-2"); 3 ER 586 (male candidate's 2005 performance review noting he had

already taken swift water rescue tech 1 and PC 832). This secret information was

never contained in Terry's performance reviews (2 ER 328-417) or the

performance reviews of the other highly qualified female candidates. 3 ER 587­

9 The City produced EPRs for the other 2006 Lifeguard II candidates, with names redacted but gender identified. 3 ER 576, 577.

15

588-628. Nor were other female lifeguard Is interested in promotion to Lifeguard

II aware of these courses. 2 ER 311 :25-25,312:17-18; 2 ER 318:25-26,319:23­

24.

Not surprisingly, for the City's last two Lifeguard II hirings in 2003 and

2006,10 the only other highly qualified Lifeguard II candidates who had taken the

PC832 course were males. 3 ER 564-567 (2006 Lifeguard II hiring matrix,

columns 6 and 7, showing male candidates Jim Blake, Aaron Chase, Greg Davies,

Michael Manley, and Lonnie Stephens had taken PC 832), 3 ER 630-631 (2003

Lifeguard II hiring matrix, column 7, only candidates who had taken PC832 were

4 males).

And, in both 2003 and 2006, the only other highly qualified Lifeguard II

candidates who had taken the SRT-l or SRT-2 courses were also male candidates.

3 ER 564-567 (2006 candidates Jim Blake, Greg Davies, Shiloh Spangler, and

Erick Winter); 3 ER 630-631 (2003, four male candidates). In 2006, Blake,

Stephens and Spangler were offered Lifeguard II jobs. 4 ER 729:24-731 :2.

The City conceded this was improper. 4 ER 768:6-23 (Chief Jarman: not

permissible "to make a decision on candidates for a position based on criteria

10 There were no Lifeguard II hirings between 2004 and 2006. 2 ER 309:3; 3 ER 419-430.

16

that's not listed injob announcement"ll); 4 ER 774: 18-24 (if going to use factor to

make hiring decision need to let candidates know beforehand); 5 ER 1024:22­

1025:1 (not aware that courses were important for Lifeguard II candidates); 5 ER

1025:5-1028:3 (would be unfair); 4 ER 720:23-721:16.

3. Retaliation

After Terry filed her sex discrimination complaint on June 20, 2006, she

suffered adverse employment action by not receiving any hours to work in the

summer of 2007 even though she was approved to work the "Partial Schedule

Program," or "PSP." 1 ER 114-117. During that entire summer, Terry was never

called in for work once. 2 ER 309:8-11.

B. Statement of Procedure

Terry filed this gender discrimination case in the Superior Court of the State

of California on June 20, 2006. 1 ER 4-7. The City removed the case to federal

court on July 19,2006. 1 ER 1; 5 ER 1114 (docket sheet). The City's answer,

raising twelve affirmative defenses, was filed on that same date. 1 ER 17-19.

After the district court entered two pretrial scheduling orders (1 ER 21; 1

11 The City used other criteria to evaluate the Lifeguard II candidates which were not listed in the job announcements for the position. Cf. 3 ER 426­426 Gob announcement), 3 ER 559-568 (matrix listing languages, level of educa­tion, off season activity, and other criteria); 4 ER 777 (Murray deposition, p. 32: 11-25 (Terry ranked lower because she had so many blanks in her matrix).

17

ER 23), Terry moved for partial summary judgment as to each of the City's 12

affirmative defenses, which the district court granted on December 7, 2007. 1 ER

27-28.

On January 28,2008, the district court conducted a pretrial conference and

scheduled a briefing and hearing schedule on motions in limine. 1 ER 29-30. On

April 18, 2008, the court heard and ruled on the parties' motions in limine. 1 ER

32-34. The court also granted Terry's motion for leave to amend and supplement

her complaint to state a claim for retaliation. 1 ER 32. Terry filed her first

amended complaint on April 24, 2009, adding a claim for retaliation. 1 ER 35-41.

The court entered a second revised scheduling order, permitting discovery on

Terry's newly-added retaliation claim, and set a final pretrial conference for

October 27,2008. 1 ER 43-45.

On August 18,2008, after a period of discovery on Terry's retaliation claim

(1 ER 43-45 [second revised scheduling order]), the City filed a motion for

summary judgment as to all of Terry's claims. 1 ER 46-47. The City moved for

summary judgment solely on the grounds that "[Terry] cannot establish a prima

facie case" on her discrimination and retaliation claims. 1 ER 47: 1-9, italics

omitted.

Terry filed her opposition to the City's motion for summary judgment on

18

September 22,2008. 2 ER 215-4 ER 784. In her opposition, Terry contended that

the City's motion should be denied on procedural grounds, including:

(1) the City's failure to provide a separate statement of material facts and

provide citations to evidence (2 ER 224:7-28),

(2) the City's failure to meet its burden as the moving party under

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (2 ER 225:1-6), and

(3) because the City's motion was based solely on grounds the City

concedes. 2 ER 225:8-226:4 (City conceding Terry can meet her

prima facie case even though this was the sole basis of the City's

motion).

Terry also opposed the City's motion for summary judgment on substantive

grounds. She demonstrated that:

(1) she could meet her prima facie case on a disparate impact theory

because

(a) her uncontroverted statistical evidence established disparate

impact sex discrimination, and

(b) the City's incomplete statistical argument was insufficient to

defeat Terry's comprehensive statistical evidence (2 ER 226:6­

232:28),

19

(2) she could establish a prima facie case of sex discrimination under a

disparate treatment theory because

(a) unlike her male counterparts, Terry was prevented from

obtaining the final certificate she needed to apply for

promotion to Lifeguard II,

(b) unlike her male counterparts, Terry did not receive three

consecutive years' of the highest ratings, and

(c) unlike her male counterparts, Terry was not told about critical

evaluation criteria which would have improved her chances for

promotion (2 ER 233: 1-239: 13), and

(3) the City had not offered any legitimate, nondiscriminatory reasons

for disparate treatment, and the reasons it offered were false and

pretextuaL 2 ER 239:14-243:2.

Finally, Terry opposed the City's motion for summary judgment on

Terry's retaliation claim because:

(1) she could establish a prima facie case for retaliation (2 ER 243 :3­

244: 17), and

(2) the City's explanations were false and pretextual because

(a) numerous ranking City employees, including Sergeant

20

Vipond, who was in charge of the PSP program, knew Terry

had filed suit,

(b) lifeguards in the partial schedule program ("PSP") did not

have to call in to get assigned seasonal work and Terry was

never told she needed to do so, and

(c) Terry's international service at the request of the United

States State Department for part of the summer did not

explain why she was not called during the rest of the summer.

2 ER 244:18-246:25.

Terry filed several declarations in support of her opposition, including

declarations from San Diego State University Associate Dean James R. Lackritz,

Terry's statistical expert (2 ER 273-306),12 Terry (2 ER 307-310), former

lifeguard Sumaiyah Alazzawi (2 ER 311-312), lifeguard Lisa Darling (2 ER 313­

314), lifeguard Greg Davies (2 ER 315), former lifeguard Alissa Lentz (2 ER

316-317), and former lifeguard Erin Snow (2 ER 318-320).

On October 24, 2008, after receiving an extension of time to respond to

Terry's opposition (4 ER 792-793), the City filed its reply brief. 4 ER 804-855.

12 The City failed to timely designate a statistical expert or provide a report and was precluded from use ofa statistical expert. 1 ER 33:13-17.

21

In its reply, the City raised several new arguments and presented additional

evidence, including declarations of sergeant William Bender (4 ER 817-818),

sergeant Eric Care (4 ER 819-820), sergeant Darrell Esparza (4 ER 821-822),

sergeant Jon Vipond (4 ER 823-825), and several new exhibits and deposition

excerpts. 4 ER 826-855.

On November 4, 2008, the case was transferred to a newly-appointed

district judge. 4 ER 856-858.

On November 7,2008, Terry objected to the new evidence and argument

contained in the City's reply papers. 4 ER 887-888. Terry also responded to

objections the City made to Terry's evidence and the City's motion to strike

portions of Terry's opposition brief. 4 ER 859-886. The district court neither

ruled on Terry's objections nor considered Terry's response to the City's

objections. 5 ER 1070-1071 ("the Court disregards all responsive briefing to

those objections").

After taking the matter under submission without oral argument (5 ER

1063), the district court granted the City's motion for summary judgment. 5 ER

1067-1085. The court found that Terry (1) failed to establish a prima facie case

on her disparate impact theory (5 ER 1073: 16-17), (2) failed to establish a prima

facie case on two of the three grounds Terry contended demonstrated disparate

22

treatment (5 ER 1074:26-27) and that the City had demonstrated a legitimate,

nondiscriminatory reason for the third ground (5 ER 1080:12-14), but that Terry

had failed to show a genuine issue existed that those reasons were false or

pretextual (5 ER 1082:19-22), and (3) failed to establish a prima facie case for

retaliation. 5 ER 1085:17-18.

Terry timely filed an appeal from the district court's order granting

summary judgment. 5 ER 1087.

23

IV. STANDARD OF REVIEW

This Court "review[s] a district court's grant of summary judgment de

novo." Huppert v. City a/Pittsburg, _F.3d _(9th Cir. 2009). "In

determining whether summary judgment was appropriate, [the court] view[s] the

evidence in the light most favorable to the ... non-moving part[y]." Ibid. "A

grant of summary judgment is inappropriate if there 'is any genuine issue of

material fact or the district court incorrectly applied the substantive law.'" Ibid.,

quoting Blankenhorn v. City a/Orange, 485 F.3d 463,470 (9th Cir. 2007).

"Summary judgment is not appropriate if a reasonable jury viewing the

summary judgment record could find by a preponderance of the evidence that the

plaintiff is entitled to a verdict in [her] favor." Davis v. Team Elec. Co., 520

F.3d 1080, 1088 (9th Cir. 2008). "'As a general matter, the plaintiff in an

employment discrimination action need produce very little evidence in order to

overcome the employer's motion for summary judgment. '" Diaz v. Eagle

Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008), quoting Chuang v.

Univ. a/Cal. Davis, Board a/Trustees, 255 F.3d 1115, 1124 (9th Cir. 2000).

'''This Court has set a high standard for the granting of summary judgment ... in

discrimination cases ... because the ultimate question is one that can only be

resolved through a searching inquiry-one that is most appropriately conducted

24

by a factfinder, upon a full record.'" Lindsey v. SLT Los Angeles, LLC, 447 F.3d

1138, 1144 (9th Cir. 2006), ellipses in original, quoting Schnidrig v. Columbia

Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996).

At the summary judgment stage, the court "do[es] not weigh the evidence

or determine whether the employee's allegations are true." Davis, 520 F.3d at

1088 (9th Cir. 2008). Rather, in employment discrimination cases, this Court has

"'emphasized the importance of zealously guarding an employee's right to a full

trial, since discrimination claims are frequently difficult to prove without a full

airing of the evidence and an opportunity to evaluate the credibility of the

witnesses.'" Id. at 1089, quoting McGinest v. GTE Servo Corp., 360 F.3d 1103,

1112 (9th Cir. 2004).

25

v. ARGUMENT

A. The District Court Erroneously Granted Summary Judgment on Terry's Disparate Impact Claim.

"[D]isparate-impact claims involve employment practices that are facially

neutral in their treatment of different groups but that in fact fall more harshly on

one group than another and cannot be justified by business necessity." Raytheon

Co. v. Hernandez, 540 U.S. 44, 52-53 (2003); International Brotherhood of

Teamsters v. United States, 431 U.S. 324, 335 (1977); Griggs v. Duke Power

Co., 401 U.S. 424, 431 (1971). Unlike disparate treatment, the disparate impact

theory does not require proof of intent to discriminate. Raytheon Co., at 52-53;

International Brotherhood ofTeamsters, at 335; and see Wards Cove Packing

Co., Inv. v. Atonio, 490 U.S. 642, 646 (1989).

"Under the disparate-impact statute, a plaintiff establishes a prima facie violation by showing that an employer uses' a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.' 42 U.S.C. § 2000e­2(k)(1 )(A)(i). An employer may defend against liability by demonstrating that the practice is 'job related for the position in question and consistent with business necessity.' Ibid. Even if the employer meets that burden, however, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer's legitimate business needs. §§ 2000­e(k)(1)(A)(ii) and (C)." Ricci v. DeStafano, _ U.S._, 129 S.Ct. 2658,2673 (2009).

26

"The rationale, intent or motive underlying a challenged employment practice

plays no part in a prima facie case of disparate impact." Stout v. Potter, 276 F.3d

1118, 1123 (9th Cir. 2002).

The disparate impact analysis applies to both subjective employment

criteria and objective or standardized tests: "In either case, a facially neutral

practice, adopted without discriminatory intent, may have effects that are

indistinguishable from intentionally discriminatory practices." Watson v. Fort

Worth Bank & Trust, 487 U.S. 977, 990 (1988). A promotional system based on

personal knowledge of candidates and subjective recommendations-such as the

system used by the City-may have a discriminatory impact on a protected

group. Watson, at 988-989.

"A prima facie case of disparate impact is usually accomplished by

statistical evidence showing that an employment practice selects members of a

protected class in a proportion smaller than their percentage in the [appropriate

comparison] pool ...." Stout, 276 F.3d at 1122. As will be discussed in more

detail in Section V(2), post, where, as here, an employer fills higher management

jobs by internal promotions, or where the dearth of protected class applicants is

due to practices on the employer's part-express or implied-which deter such

applicants from applying, the appropriate comparison pool is the employees in

27

the lower positions. Hemmings v, Tidyman's, Inc., 285 F.3d 1174, 1185-86 (9th

Cir. 2002); International Brotherhood o/Teamsters, 431 U.S. at 365.

Promotions within the City's lifeguard service are from within the

department. 4 ER 701:10-15 (Chief Hewitt: "Lifeguard lIs are hired out of the

Lifeguard I workforce"); 4 ER 662 (Capt. Wurts: "It's our current practice and

has been for many years now that it's a promotional process from within the

department"). Lifeguard Ills and sergeants are hired from the pool of Lifeguard

IIs. 4 ER 663:19-23,665:11-666:7. Lieutenants are hired from the City's

existing group of lifeguard sergeants. 4 ER 666:8-10.

The statistical analysis must show a disparity that is "sufficiently

substantial that [it] raise[s] such an inference of causation." Watson, 487 U.S. at

995. The disparity must be large enough that statistically it is unlikely to have

occurred at random. Barnes v. GenCorp Inc., 896 F.2d 1457, 1466 (6th Cir.

1990). However, "[a] plaintiff in a Title VII suit need not prove discrimination

with scientific certainty." Bazemore v. Friday, 478 U.S. 385, 400 (1986)

(discussing utility of statistical analysis).

There are at least two approved statistical tests. Guidelines adopted by the

Equal Employment Opportunity Commission and the California Department of

Fair Employment and Housing suggest a standard 80 percent rule: i.e., a

28

selection device is generally considered to have an adverse impact if it results in

a selection rate for any sex that is less than 80 percent of the rate with the group

with the highest rate. See 29 C.F.R. § 1607.4(D). Another approved measure is

the standard deviation test. The standard deviation is a measure of predicted

fluctuations from the expected value of a sample. A challenged employer action

is suspect "if the difference between the expected value and the observed number

is greater than two or three standard deviations." Hazelwood School Dist. v.

United States, 433 U.S. 299, 308 (1977); Castaneda v. Partida, 430 U.S. 482,

496-97, n. 17 (1977).

Terry presented sufficient evidence, through her statistical expert

Professor Lackritz, that these statistical standards were met. First, Professor

Lackritz analyzed the data set finally provided by the City on April 29, 2008. 2

ER 274:9-10,277-78; 2 ER 326 (chart showing makeup of lifeguard workforce

by gender and rank). From this data set, Professor Lackritz found violations of

the 80% rule and that the actual number of female lifeguards above the entry­

level rank ofLifeguard I was 4.22 standard deviations from the expected

number. 2 ER 277. Professor Lackritz also applied a widely-used statistical

measure-the "chi-squared test"-and found that "the probability of seeing this

female/male distribution between the [Lifeguard I] and higher classifications is

29

.000 when rounded to the third decimal place, or virtually impossible." 2 ER

278, italics added.

Second, Professor Lackritz analyzed the distribution of the highest

employee performance review ratings ("EPR")-outstanding or

commendation-from 1999 through 2005, by gender. 2 ER 278. Professor

Lackritz found that the data showed male lifeguards received the highest rating

23.8 percent of the time, and female lifeguards received the highest rating only

9.0 percent of the time. Ibid. He found this to be a "violation of the 80% rule,"

"4.79 standard deviations below the expected mean of this distribution," and less

than a probability of less than 1 in 1,000 under the chi-squared test, or "virtually

impossible." 2 ER 278-79.

Professor Lackritz also analyzed this data and, perhaps stating the obvious,

concluded that "the percentage of [outstanding/commendation] ratings for those

lifeguard offered promotion in 2006 are significantly higher than the percentage

of the [outstanding/commendation] ratings for those not offered promotion in

2006." 2 ER 280.

Professor Lackritz analyzed the employee performance review data over

the three-year period from 2003 through 2005, the period used for the 2006

Lifeguard II hiring process. 2 ER 280-81. Over this period, Professor Lackritz

30

found that male lifeguards received the highest rating 24.2 percent of the time,

while female lifeguards received the highest rating only 10.1 percent of the time.

2 ER 280. He declared this distribution "in violation of the 80% rule," "3.74

standard deviations below the expected mean of this distribution," and less than

a probability of less than 1 in 1,000 under the chi-squared test. 2 ER 280-81.

Based on his analysis of the relevant data, Professor Lackritz concluded:

"1. The [Lifeguard I] classification has a statistically significant

higher percentage of females than do the [higher]

classifications.

2. Promoted lifeguards have a statistically significant higher

percentage of outstandinglcommendation ("OIC") ratings

than to those that are not promoted. Therefore, the chances

for promotion are dependent on the ratings.

3. Female lifeguards have a statistically significant lower

percentage of OIC ratings than do male lifeguards. Female

lifeguard get OIC ratings only approximately 9% of the time,

whereas male lifeguards get OIC ratings approximately 24%

of the time. Because it appears the chances of promotion are

dependent on the lifeguard getting the OIC ratings, this puts

31

female lifeguards at a serious disadvantage.

4. The likelihood of seeing the results which warrant the first

three conclusions from strictly random occurrence or chance

is so low, that I conclude that the observations and

conclusions 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." 2 ER 274:11-23; 2

ER 281.

In other words, because (a) EPRs are used in the promotional process, with (b)

the highest rating dramatically increasing a candidate's chances for promotion,

and (c) female lifeguards have a statistically significant lower chance of

obtaining the highest rating, this apparently facially neutral employment practice

has an unfair disparate impact on female lifeguards.

1. The City failed to carry its burden to demonstrate it was entitled to summary judgment on the disparate impact claim.

A moving party is entitled to summary judgment only if it can demonstrate

that (1) "there is no genuine issue as to any material fact," and (2) the moving

party is "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex

Corp., 477 U.S. at 322. The initial burden is on the moving party to show that

32

both prongs are satisfied. Id. at 323. The moving party can satisfy this burden in

two ways: (1) by presenting evidence that negates an essential element on the

nonmoving party's case; or (2) by demonstrating that the non-moving party

failed to make a showing sufficient to establish an essential element to that

party's case on which that party will bear the burden of proof at trial. Id. at 322­

23. If the moving party fails to discharge this initial burden, summary judgment

must be denied and the court need not consider the nonmoving party's evidence.

Adickes v. S.H Kress & Co., 398 U.S. 144, 159-161 (1970).

Here, the City completely failed to meet its burden. In its moving papers,

the City neither mentioned nor addressed Terry's disparate impact theory. 1 ER

48-68. The City never addressed Professor Lackritz, or his report, despite having

deposed him. 4 ER 834 (City providing Lackritz deposition excerpts, but not

until its reply brief). The City presented no evidence that negated any part of

Terry's disparate impact case, or demonstrated that Terry could not make a

showing sufficient to establish an essential element of her case. Therefore, the

district court should have denied the City's motion on Terry's disparate impact

theory without even considering Terry's evidence on this theory.

The City's motion compounded its failure to carry its initial burden by (1)

seeking summary judgment only on the ground that Terry could not meet her

33

prima facie case, (2) failing to provide a separate statement of material facts, and

(3) failing to provide citations to its evidentiary contentions.

Rule 7(b)(1) of the Federal Rules of Civil Procedure provides that a

"motion must ... state with particularity the grounds for seeking the order ...."

'''Of course, a party seeking summary judgment always bears the initial

responsibility of informing the district court of the basis for its motion. '" Katz v.

Children's Hospital ofOrange County, 28 F.3d 1520, 1534 (9th Cir. 1994),

italics in original, quoting Celotex, 477 U.S. at 323.

The City's motion for summary judgment on Terry's first two causes of

action-for sex discrimination under federal and state law, respectively-was

entirely based on the City's contention that Terry could not establish a prima

facie case for those claims. The City's Notice ofMotion and Motion stated:

"This motion is based on the following: [~] Plaintiff cannot establish a prima facie case of gender discrimination in violation of 42 U.S.C. § 2000e-2 as alleged in count one of her complaint. [~

Plaintiff cannot establish a prima facie case of gender discrimination in violation of California Government Code § 12940(a) as alleged in count two of her complaint." 1 ER 47: 1-9, boldface added, italics in original.

Yet the City conceded Terry's ability to establish prima facie sex

discrimination. "Since the evidence necessary to satisfy plaintiff s initial burden

of showing a primafacie case is so 'minimal,' the City begins with its burden of

34

showing legitimate, nondiscriminatory reasons for the actions it took ...." 1 ER

60:1-3. The City also admitted: "the [City's] summary judgment motion is based

upon the assumption, for the purposes of argument, that the plaintiff has already

made aprimafacie case ...." 1 ER 174:18-19.

Further, the moving party's failure to provide a sufficient statement of

uncontroverted facts is ground by itself for denial of the motion. Orr v. Bank of

America, NT & SA, 285 F.3d 764, 774-775 (9th Cir. 2002) [failure to cite page

and line number of deposition testimony "warrants exclusion of the evidence"].

"It is not enough to move for summary judgment ... with a conclusory assertion

that the opposing party has no evidence to prove his case." Celotex, 477 U.S. at

326.

Thus, because the stated basis of the City's motion-that Terry could not

establish a prima facie case-was conceded (or simply not addressed), the City's

motion for summary judgment on Terry's sex discrimination claims should have

been denied.

2. The Lifeguard I population was the appropriate comparison pool in light of the uncontradicted evidence of deselection from the applicant pool.

Although never raised by the City as a ground for its motion for summary

judgment, the district court determined that "Plaintiffs disparate impact claim

35

necessarily depends on what the Court finds to be the appropriate comparison

pool." 5 ER 1072: 18-20. The court determined that the actual Lifeguard II

applicant pool was the appropriate comparison pool, not the pool of all Lifeguard

Is. This was error because Terry presented uncontradicted evidence that female

Lifeguard Is would reasonably deselect themselves from the applicant pool for

several reasons.

In Stout, 276 F.3d at 1123, this Court explained:

"The first step in a statistical analysis is to identify the base population for comparison. Generally, the appropriate population is the applicant pool or the relevant labor marketfrom which the positions are filled. The composition of the applicant pool or relevant labor market is then compared to the composition of the successful applicants." (Italics added.)

However, in a series of cases, the Supreme Court has recognized an

exception to that general rule. In International Brotherhood ofTeamsters, 431

U.S. 324, the Supreme Court reviewed the "prophylactic" objective of Title VII:

"to achieve equal employment opportunity and remove barriers that have

operated to favor white male employees over other employees." Id. at 364. "The

prospect of retroactive relief for victims of discrimination serves this purpose by

providing 'the spur or catalyst which causes employers ... to self examine and to

self-evaluate their employment practices and endeavor to eliminate, so far as

36

possible, the last vestiges' of their discriminatory practices." Ibid., quoting

Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18 (1975). The Supreme

Court in International Brotherhood ofTeamsters well explained:

"Measured against these standards, the company's assertion that a person who has not actually applied for a job can never be awarded [Title VII] relief cannot prevail. The effects of and the injuries suffered from discriminatory practices are not always confined to those who were expressly denied a requested employment opportunity. A consistently enforced discriminatory policy can surely deter job applications from those who are aware ofit and are unwilling to subject themselves to the humiliation ofexplicit and certain rejection.

If an employer should announce his policy of discrimination by a sign reading 'Whites Only' on the hiring-office door, his victims would not be limited to the few who ignored the sign and subjected themselves to personal rebuffs. The same message can be communicated to potential applicants more subtly butjust as clearly by an employer's actual practices by his consistent discriminatory treatment of actual applicants, by the manner in which he publicizes vacancies, his recruitment techniques, his responses to casual or tentative inquiries, and even by the racial or ethnic composition ofthat part ofhis workforce from which he has discriminatorily excluded members ofminority groups. When a person's desire for a job is not translated into a formal application solely because ofhis unwillingness to engage in a futile gesture he is as much a victim ofdiscrimination as is he who goes through the motions ofsubmitting an application." Id. at 365-66, footnote omitted, italics added.

In Wards Cove, 490 U.S. 642, the Supreme Court held that comparison

pools must take into account this type of express or implied exclusion from the

37

applicant pool. "Obviously, the analysis would be different ifit were found that

the dearth of nonqualified nonwhite applicants was due to practices on [the

employer's] part which-expressly or impliedly-deterred minority group

members from applying .. , ." Id. at 651, n. 7, citing International Brotherhood

o/Teamsters, 431 U.S. at 365.

Finally, in Hemmings v. Tidyman's Inc., 285 F.3d 1174, decided after

Stout, this Court discussed the issue of the appropriate comparison pool to be

used in disparate impact statistical analysis. Id. at 1184-1186. The court

expressly held that the plaintiff s statistician correctly used a comparison pool

which included all management employees, rather than just "qualified"

management employees (id. at 1185), because "[u]se of a data set comprised of

the employer's entire management in a case challenging the failure to promote

lower management to higher management and pay equal wages is consistent with

the principle 0/Wards Cove, that the comparison pool for analysis should be the

group from which the individuals will be chosen for the job action, in this case

promotion and payment of higher wages." Id. at 1186, italics added.

The district court relied on a case, Moore v. Hughes Helicopters, Inc., 708

F.2d 475 (9th Cir. 1983), neither cited nor relied on by the City. In Moore, the

court discussed at some length the issues of (1) the appropriate labor pool and

38

(2) the parties' burdens of proof for using different comparison pools in disparate

impact statistical analysis. Id. at 482-485. Notably, because the City neither

raised this issue, nor cited Moore, Terry did not have an opportunity to address

this case. Yet this was the basis of the district court's order granting the City's

motion for summary judgment on Terry's disparate impact claim. It was unfair

for the district court to rely so heavily on this authority, or the issue of the

appropriate comparison pool, when the issue was never raised by the City. Due

process reqUIres more.

In any event, Moore supports application of the Lifeguard I comparison

pool, rather than the pool of actual applicants for the Lifeguard II position. In

Moore, the court explained that the pool of applicants should not be used when

"there is a characteristic of the challenged selection device that makes use of the

actual pool of applicants or eligible employees inappropriate." Moore, 708 F. 2d

at 482.

"Commonly, such a characteristic would occur in discriminatory hiring cases where the employment practice in question is in the nature of an 'entrance requirement.' In these cases, persons who lack the challenged requirement will sel.fselect themselves out ofthe pool ofapplicants. . .. When an employer requires such qualifications, the makeup ofthe pool ofactual applicants does not fairly reflect the pool ofindividuals affected by the challenged requirement. [Citation.] In these cases, disparate impact may be established through reference to a reasonable proxy for the pool of

39

individuals actually affected by the alleged discrimination. The choice is usually between general population statistics and the statistics of a relevant labor market." Ibid., italics added.

Here, Professor Lackritz used the more conservative pool of female Lifeguard Is,

26.7 percent (2 ER 277) rather than general population statistics, of which

females compromise more than 50 percent.

Terry provided several reasons why the use of the actual Lifeguard II

applicant pool is not the appropriate comparison pool in this case, because

female Lifeguard Is would reasonably self-select themselves out of the pool of

applicants. First, because (1) employee performance reviews ("EPRs") weigh

heavily in the promotional process13 ; (2) several female lifeguards have been told

13 4 ER 702:24-703:1 ("the higher the ranking ... on their performance rating is a positive thing"); 4 ER 682: 15-683: 10 ("I would say that we more often than not are interested in hiring the person with the best performance"); 4 ER 738:15-21 ("It's certainly part of what we evaluate, previous performance"); 4 ER 725: 3-11 ("higher EPR ... [improved] chance of being [promoted])."

2 ER 274:13-15 (Professor Lackritz: "Promoted lifeguards have a statisti­cally significant higher percentage of outstanding/commendation (a/C) ratings than to those that are not promoted. Therefore, the chances for promotion are dependent on the ratings."

Of the six Lifeguard Is originally offered a promotion to Lifeguard II in February, 2006-all of whom were male-four of the six had received three outstanding ratings (or commendations) in the immediate three years prior to the hiring, and the other two received the highest ratings in two of the three years. 3 ER 558-568 (matrix); 3 ER 569-571 (list of highly qualified candidates); 1 ER

(continued...)

40

that "an employee who does not receive the highest performance rating has very

little chance to promote" and it would be a "waste oftime"14; (3) there is nothing

in these annual evaluations which should favor men over womenl5; and (4) over

a seven-year period, men have received the highest performance ratings at a

statistically significant higher rate than women,16 a reasonable inference can be

drawn that female Lifeguard Is self-select themselves out of the pool of

Lifeguard II applicants because they do not possess the highest performance

ratings and do not wish to "subject themselves to personal rebuffs" and "the

humiliation of explicit and certain rejection." International Brotherhood of

Teamsters, 431 U.S. at 366; Bates v. United Parcel Service, 465 F.3d 1069,1079

(9th Cir. 2006) [lack of minimum requirements to apply "of no moment" because

allegedly discriminatory practices may have deterred plaintiff from seeking the

l3(...continued) 58:20-21 (City conceding "panel reviewed the three most recent years").

14 2 ER 314:7-12 (told applying for promotion without the highest rating would be a "waste of time"); 2 ER 319: 19-22 ("aware that receiving less than an outstanding rating would make promotion difficult if not impossible"); 2 ER 312:2-3 (same); 307:22-24 ("aware that the higher the [EPR] rating, the better the chance of being promoted").

15 4 ER 703:9-16; 4 ER 768:21-769:11; 4 ER 684:4-7,684:22-685:11; 4 ER 672:12-673:6; 4 ER 716:1-14; 2 ER 327-417.

16 3 ER 633-642 (data from 1999 through 2005); 2 ER 274:16-19.

41

minimum requirements].

Second, female Lifeguard Is had difficulty in obtaining the necessary

minimum requirements need to apply for the Lifeguard II position.17 Terry was

no different. She was denied assignment to a beach with an available PWC for

training, even though she had the seniority for and had requested an assignment

to such a work location. 2 ER 308:6-8. She was told that she needed to obtain

recommendations from two male PWC instructors to be allowed to take the test,

even though the written policy requires only one instructor's recommendation. 2

ER 308:9-13; 3 ER 436 (written policy requiring "recommendation by a certified

PWC instructor). By contrast, several male Lifeguard Is were permitted to test

without any recommendation or only one recommendation. 3 ER 449-456 (male

with only one recommendation); 3 ER 457-464 (same); 3 ER 465-469 (male with

no recommendation); 3 ER 469-473 (same); 3 ER 474-477 (male with only one

17 2 ER 316 (former lifeguard Alissa Lentz: " I often encountered substantial difficulty in obtaining training for skills and certificates necessary to qualify to attempt to promote to Lifeguard II. I frequently observed that male Lifeguard Is working alongside me would easily obtain these training opportuni­ties and I would not. I thought this was very unfair and complained to several other lifeguards, but nothing was ever done"); 2 ER 318:22-319: 1 (former life­guard Erin Snow-Creagan: "~ was repeatedly denied training opportunities and watched as less senior male Lifeguard I[s] received these [training] opportunities easily"); 2 ER 314 (Darling, a lifeguard since 1992: "female lifeguards do not receive the same opportunities as men").

42

recommendation); 3 ER 478-482 (male with no recommendation); 3 ER 483-48

(male with only one recommendation); 3 ER 487-491 (same); 3 ER 492-497

(male with no recommendation); 3 ER 498-505 (male with only one

recommendation); 3 ER 506-510 (male with no recommendation); 3 ER 511-516

(male with only one recommendation); 3 ER 517-522 (same); 3 ER 523-528

(same); 3 ER 529-535 (same); 3 ER 536-542 (same).

Terry's PWC certification testing was delayed ten months, from early

September 2004 to late June 2005, because the testing sergeant (Stropky)

claimed he did not receive the recommendations from two of Terry's PWC

instructors in typewritten/arm. 2 ER 308:14-16. However, several male

Lifeguard Is were tested with recommendations in handwriting. 3 ER 476,491,

496,510,515,521,526 (male lifeguards allowed to test with handwritten

recommendations). And several male lifeguards obtained a PWC operator's

certificate with no recommendation whatsoever-typewritten or handwritten. 3

ER 465-468 (male with no recommendation); 3 ER 469-473 (same); 3 ER 478­

482 (same); 3 ER 492-497 (same); 3 ER 506-510 (same).

Finally, Terry was told the surf conditions were insufficiently rough for

rwc testing, even though no written policy contains a rough surfrequirement

or PWC testing. 2 ER 308:17-21; 3 ER 436-447. After Terry completed her

43

PWC training on September 1,2004 (2 ER 434), Sergeant Stropky would not test

her because "the conditions were not right." 2 ER 308:17-21. Although Terry,

who was working as a guard during the off season from September 2004 through

May 2005, repeatedly asked to be tested, Sergeant Stropky refused to test her. 2

ER 308:17-21; 1 ER 95:28-96:1 ("PWC testing is not normally done in the off­

season"). He did, however, test and pass at least one male lifeguard during that

period. 3 ER 449, 482 (test performed September 19, 2004).

Male Lifeguard Is did not encounter such resistance and obtained PWC

certificates with relative ease and with much greater frequency than female

Lifeguard Is. 3 ER 547-548; 3 ER 554 (67 male lifeguards obtained PWC

operator's certificate from 2000 to 2005); 3 ER 544; 3 ER 554 (only 9 female

lifeguards obtained PWC operator's certificate over same period). However,

several male Lifeguard Is were tested with recommendations in handwriting. 3

ER 476,491,496,510,515,521,526 (male lifeguards allowed to test with

handwritten recommendations). And several male lifeguards obtained a PWC

operator's certificate with no recommendation whatsoever-typewritten or

handwritten. 3 ER 465-468 (male with no recommendation); 3 ER 469-473

44

(same); 3 ER 478-482 (same); 3 ER 492-497 (same); 3 ER 506-510 (same).18

Third, several female Lifeguard Is had resigned from the lifeguard service

due to unrelenting sexual harassment. 2 ER 311 :23-26 (former lifeguard

Alazzawi: "I was employed by the City as a Lifeguard I from 2001 through 2005.

I left because I was sexually harassed by a male lifeguard supervisor, and then

retaliated against by not being scheduled for work. I was very, very,

disappointed to leave my job because I wanted to make a career of being a

lifeguard"); 2 ER 314:14-16 (17-year veteran lifeguard Darling: "Often times it

is a difficult place to work because sexual harassment by male lifeguards is not

taken seriously. Females who complain, including me, are retaliated against, and

18 There was conflicting evidence regarding the necessity of some of the certificates the City required to apply for the Lifeguard II position in the first place. 2 ER 314:22-23 [PWC rarely used]; 2 ER 554 [Terry had main watch certification]; 5 ER 1080 24-27 [lifeguard must grasp when a PWC is necessary for rescue]. But the district court should not have weighed this evidence, particu­larly when the issue-necessity of a PWC operator's certificate-was not raised by the City in its motion for summary judgment. Moreover, the evidence cited by the district court (1 ER 152) explains what PWC knowledge is needed for "Tower observation," and Terry had already obtained her main tower certification, for which knowledge of PWC deployment is required. Discrimination can be established by a test or requirement that do not relate to the skills needed for the position. "[D]iscriminatory tests are impermissible unless shown, by profession­ally acceptable methods, to be predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated." Albemarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975).

45

many females have left the lifeguard service for this reason"); 2 ER 317:4-5

(former lifeguard Lentz: "Often times it is a difficult place to work because

sexual harassment by male lifeguards is not taken seriously"); 2 ER 318:2­

319: 11 (former lifeguard Snow-Creagan: resigned due to sexual harassment

although she "wanted to make a career out of being a lifeguard"). This attrition

of female lifeguards would negatively impact the number of female Lifeguard II

applicants.

Fourth, the lifeguard supervisorial ranks are heavily male. 2 ER 326.

This alone can deter applicants. International Brotherhood o/Teamsters, 431

U.S. at 465 [protected group applicants may be deterred from applying "even by

the racial or ethnic composition of that part of his work force"].

In light of this evidence of self-selection from the Lifeguard II applicant

pool, the district court erred by concluding that the Lifeguard I workforce, used

by Professor Lackritz, the only statistical expert presented, was inappropriate.

Moreover, because this issue was neither raised nor briefed by the City, the

district court erred by considering this issue in the first place. For these reasons,

the Court should reverse district court's order granting the City's motion for

summary judgment on Terry disparate impact claim, and remand the case for

trial.

46

B. The District Court Erroneously Granted Summary Judgment on Terry's Disparate Treatment Claim.

1. The City failed to carry its burden to demonstrate it was entitled to summary judgment on Terry's disparate treatment claim.

As with Terry's disparate treatment claim, the City moved for summary

judgment on Terry's disparate treatment claim asserting: "Plaintiff cannot

establish a prima facie case of gender discrimination in violation of 42 U.S.C. §

2000e-2 as alleged in count one of her complaint." 1 ER 47:2-3, italics omitted.

The City never addressed the asserted basis for its motion in its

memorandum in support of its motion for summary judgment. 1 ER 48-68.

Instead, the City confusingly conceded Terry's ability to establish her prima

facie case of sex discrimination: "Since the evidence necessary to satisfy

plaintiff s initial burden of showing a prima faCie case is so 'minimal,' the City

begins with its burden of showing legitimate, nondiscriminatory reasons for the

actions it took ...." 1 ER 60:1-3. The City also admitted: "the [City's]

summary judgment motion is based upon the assumption, for the purposes of

argument, that the plaintiff has already made aprimafacie case ...." 1 ER

174: 18-19. The district court acknowledged "[the City] does not contest that

[Terry] has met her initial burden of establishing a prima facie case." 5 ER

47

1074:23-24.19

In any event, the City neither established Terry's inability to meet her

prima facie case, nor presented evidence negating an essential element of Terry'

case. Celotex Corp., 477 U.S. at 322-323. Because the City failed to discharge

its initial burden as the moving party, summary judgment should have been

denied; and it was unnecessary for the district court to have considered Terry's

evidence in opposition to the City's motion. Adickes v. S.H Kress & Co., 398

U.S. at 159-161; Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210

F.3d 1099, 1102 (9th Cir. 2000) [moving party must show that the nonmoving

party does not have enough evidence to carry its burden at trial].

To establish a prima facie case of sex discrimination on a disparate

treatment theory, Terry must show: "(1) [s]he is a member of a protected class;

(2) [s]he was qualified for [the] position; (3) [s]he experienced adverse

employment action; and (4) similarly situated individuals outside [her] protected

class were treated more favorably, or other circumstances surrounding the

adverse employment action give rise to an inference of discrimination." Fonseca

IV. Sysco Food Servo OfArizona, Inc., 374 F.3d 840, 847 (9th Cir. 2004), quoting

19 Nevertheless, without any citation of authority, the district court istated: "the Court must still assess whether [Terry] has established a prima facie case for her disparate treatment theory." 5 ER 1074:24-25.

48

Peterson v. Hewlett-Packard Co., 358 F.3d 599,604 (9th Cir. 2004); see

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). "The showing

the plaintiff must make as to the elements of the prima facie case in order to

defeat a motion for summary judgment is de minimus." Sutera v. Schering

Corp., 73 F.3d 13, 16 (2nd Cir. 1995); see also St. Mary's Honor Center v.

Hicks, 509 U.S. 502,506 (1993) (referring to the "minimal requirements" of the

McDonnell Douglas prima facie case); Cordova v. State Farm Ins. Co., 124 F.3d

1145, 1148 (9th Cir. 1997) (quantum of evidence needed to establish prima facie

case is minimal and less than preponderance of evidence).

Terry easily met this minimal burden. First, she is a female, a protected

class under both federal and state law. 42 U.S.C. § 2000e-2; Gov't Code §

12940(a). Second, Terry was "highly qualified" for the position of Lifeguard II.

3 ER 571 (Terry among the highly qualified candidates); 4 ER 697: 3-5 ("close

call" between the highly qualified candidates). Third, she experienced adverse

employment action-she did not receive the promotion to Lifeguard II. Fourth,

as shown by the evidence Terry presented in the district court, as summarized in

Section III(A), ante, similarly situated male Lifeguard Is were treated more

favorably in several ways which substantially improved their chances for

promotion to Lifeguard II.

49

Moreover, Terry may use statistical data to show a "pattern or practice" of

discrimination: "It is uniformly recognized that statistical data showing an

employer's pattern of conduct toward a protected class can create an inference

that an employer discriminates against individual members of the class." Fallis v.

Kerr-McGee Corp., 944 F.2d 743, 746 (10th Cir. 1991); Obrey v. Johnson, 400

F.3d 691,694 (9th Cir. 2005) [statistical data can be used to establish a

discriminatory pattern in employer's hiring or promotion practices, creating an

inference of discriminatory intent with respect to the individual employment

decision at issue]; Diaz v. American Telephone & Telegraph, 752 F.2d 1356,

1363 (9th Cir. 1985) ["[s]tatistical data is relevant because it can be used to

establish a general discriminatory pattern in an employer's hiring or promotion

practices. Such a discriminatory pattern is probative ofmotive and can therefore

create an inference of discriminatory intent with respect to the individual

employment decision at issue"].

Numerous male Lifeguard Is were treated better than Terry-and other

female Lifeguard Is-because the men consistently received higher subjective

ratings in their annual employee performance reviews. 2 ER 274: 15-19

(Lackritz: "Female lifeguards have a statistically significant lower percentage of

OIC ratings than do male lifeguards"); 3 ER 633-637 (EPR data from 1999­

50

2003); 3 ER 640-642 (EPR data from 2004-2005).20 And in the 1999 to 2003

data, no female Lifeguard Is ever received the highest rating three years in a row,

while six male Lifeguard Is did. 3 ER 633-637. Of the Lifeguard Is originally

offered the Lifeguard II position in 2006, all of whom were male, at least four

received the highest ratings in three years immediately prior to promotion. 3 ER

559-571. Because (1) EPRs weigh heavily in the promotional process, (2) there

is nothing in these annual employee performance evaluations which should favor

men over women, yet (3) men consistently receive higher EPR ratings, Terry was

treated less favorably than men were treated.

Because Terry met her prima facie case demonstrating disparate treatment

discrimination, the City's motion for summary judgment should have been

denied.

2. The district court erred by weighing the evidence on Terry's disparate treatment claim and by failing to draw all inferences in the light most favorable to her.

20 Relevant to this pattern of discrimination against female lifeguards in the subjective employee performance rating process is that in the seven years from 1999 to 2005 in the Lifeguard II rank, females have received the highest rating only three times, while male Lifeguard lIs have received the highest rating 114 times. 3 ER 637-638; 3 ER 642. From 1999 to 2003, no female Lifeguard II ever received the highest rating, while 85 outstanding ratings were given to male Lifeguard lIs. 3 ER 637-638.

51

At the summary judgment stage, the court "do[es] not weigh the evidence

or determine whether the employee's allegations are true." Davis, 520 F.3d at

1088. Rather, in employment discrimination cases, the court has "'emphasized

the importance of zealously guarding an employee's right to a full trial, since

discrimination claims are frequently difficult to prove without a full airing of the

evidence and an opportunity to evaluate the credibility of the witnesses.'" Id. at

1089. "In determining whether summary judgment was appropriate, [the court]

view[s] the evidence in the light most favorable to the ... non-moving part[y]."

Huppert v. City a/Pittsburg, _F.3d at _. However, the district court erred

by weighing the evidence and in failing to draw all reasonable inferences in

Terry's favor.

For example, on the one area of disparate treatment discrimination on

which the district court ruled Terry met her prima facie case-being prevented

from obtaining her PWC certificate in a timely manner-the district court viewed

the parties conflicting evidence and concluded: "This Court finds the [City's]

evidence persuasive that [Terry] was not treated differently than similarly

situated male lifeguard Is." 5 ER 13:27-28. Thus, the district court

acknowledged it considered both parties evidence on this issue, but was

"persuaded" by the City's evidence. The court failed to draw inferences from the

52

conflicting evidence in the light most favorable to Terry and impermissibly

weighed this evidence. The district court took it upon itself to "assess whether

[Terry] ... established a prima facie case under her disparate treatment theory"

even though "[the City did] not contest that [Terry] has met her initial burden of

establishing a prima facie case." 5 ER 1074:23-25. The court assessed some,

but not all of Terry's evidence, and impennissibly weighed it against evidence

presented by the City.

The district court stated that Terry "asserts three ways in which male

Lifeguard Is were treated more favorably: (1) male Lifeguard Is were able to

obtain their certification on the PWC more quickly that women; (2) male

Lifeguard Is received three consecutive years of the highest ratings more

frequently than women[21]; and (3) male Lifeguard Is were told about critical

evaluation criteria and women were not." 5 ER 1074:17-20. The district court

found Terry met her prima facie case only as to the PWC certification. 5 ER

1077:3-6.

21 Actually, Terry presented evidence that no female Lifeguard I had lever received the highest rating three years in a row, while four of the male iLifeguard Is promoted had received the highest ratings for the three previous Iyears. 3 ER 559-571. Moreover, Terry's disparate treatment theory regarding the iEPRs was that males have a statistically significant chance of getting higher atings and those ratings weigh heavily in the promotional process.

53

I

Regarding Terry's contention that she was not told about important

evaluation criteria, the district court erroneously stated: "[Terry] fails to provide

any relevant evidence to support this argument." 5 ER 1076:15-16. To the

contrary, Terry presented evidence that her failure to take three classes, PC832,

SRT-l, and SRT-l, were what "hurt her the most," and what "separated [her]

from the others." 2 ER 308:22-25; 3 ER 573-574 (contemporaneous notes

written same day as critique); 1 ER 101:23-25; 2 ER 308:26-309:1; 3 ER 573

("Captain Murray ... stat[ed] it was the two things I was lacking: technical

rescue courses and enforcement courses. That's what made the difference and

separated me from the new hires"); 4 ER 777 ("All I remember is a general

discussion about there were blank spots that separated her from the others.

Blank spots in the matrix. Predominantly it was in certain areas of either

additional class work or experience, as I recall"); 4 ER 778 (recalling Sergeant

Vipond saying it would have helped Terry to have taken PC 832); 4 ER 718:2­

718:10 (Terry was ranked lower due to lack of PC 832 and SRT-l courses); 4 ER

690:20-691 :12 (taking those courses would have helped); 4 ER 735:3-21

(courses are "beneficial for the applicant to have taken, it's a plus, if you will,

towards their promotion chances"); 1 ER 86: 1-3 (" [Terry] did not have the same

motivation [as others because] I expected a motivated person to get the other

54

classes needed. This is what ... separated the motivated individual from the rest

of the applicants.") Because the 2006 Lifeguard II hiring decision was such a

"close call" (4 ER 697:3-5; 1 ER 85:15-16 ["All of the candidates were very

close" and reason Terry was not chosen was "subtle"]), a reasonable inference

could be drawn that Terry's failure to take these courses was dispositive.

However, Terry was never told about those courses and their importance

in the promotional process. 2 ER 309: 1-2. Although those courses had been

previously used to make hiring decisions for Lifeguard lIs (4 ER 736: 18-737:2; 3

ER 630-31 [2003 Lifeguard II Interviews Highly Qualified Matrix, column 7,

noting several male candidates had certificates to POST 832, SRT-l and SRT­

2]), no mention of those courses has ever appeared on the City's job

announcements for the Lifeguard II position. 3 ER 419-30.

However, male Lifeguard Is were told about this secret key to

promotion-taking PC 832, SRT-I and SRT-2-before the Lifeguard II

interview. 3 ER 579-81 (2006 Lifeguard II male candidate's 2004 performance

review listing "goals and training for next year" include taking POST 83222); 3

ER 582 (male candidate's 2005 performance review listing "goals and training

22 The City produced EPRs for the other 2006 Lifeguard II candidates, with names redacted but gender identified. 3 ER 576, 577.

55

for next year" include taking POST PC 832 and swift water rescue tech 1); 3 ER

83 (male candidate~s 2004 performance review listing "goals and training for

next year" include taking POST 832); 3 ER 584 (male candidate's 2003

performance review listing "additional goals and training for next year" include

taking "SRT-l [and] SRT-2"); 3 ER 586 (male candidate's 2005 performance

review noting he had already taken swift water rescue tech 1 and PC 832). This

secret information was never contained in Terry's performance reviews (2 ER

328-417) or in the performance reviews of the other highly qualifiedJemale

candidates. 3 ER 587-588-628.23 Other female lifeguard Is interested in

promotion to Lifeguard II were unaware of these courses. 2 ER 311 :25-25,

312: 17-18; 2 ER 318:25-26, 319:23-24.

Not surprisingly, for the City~s last two Lifeguard II hirings in 2003 and

2006, the only other highly qualified Lifeguard II candidates who had taken the

23 The district court erroneously concluded that "one female lifeguard ranked as highly qualified was told to take the SRT course in an EPR" (5 ER 1076:23-25), but it was suggested she take the course after the 2006 Lifeguard II interviews had concluded. 3 ER 596 (EPR completed October 21,2005, suggest­ing course "by next summer"). Applications for Lifeguard II were due no later than December 7, 2005. 3 ER 425. Thus, even Ms. Tilaro-the only female lifeguard the City has shown was told to take a swift water rescue course-was not told to take the class until after the 2005 Lifeguard II applications were due. Lifeguard II promotional decisions are based, in part, on having already taken PC 832 and SRT 1 (3 ER 567, columns 6-7) before the interviews.

56

PC832 course were males. 3 ER 564-567 (2006 Lifeguard II hiring matrix,

columns 6 and 7, showing male candidates Jim Blake, Aaron Chase, Greg

Davies, Michael Manley, and Lonnie Stephens had taken PC 832), 3 ER 630-631

(2003 Lifeguard II hiring matrix, column 7, only candidates who had taken

PC832 were 4 males). And, in both 2003 and 2006, the only other highly

qualified Lifeguard II candidates who had taken the SRT-l or SRT-2 courses

were also male candidates. 3 ER 564-567 (2006 candidates Jim Blake, Greg

Davies, Shiloh Spangler, and Erick Winter); 3 ER 630-631 (2003, four male

candidates). In 2006, Blake, Stephens and Spangler were offered Lifeguard II

jobs. 4 ER 729:24-731 :2.

The district court stated that because not all male Lifeguard Is were told of

this important evaluation criteria, it did not establish a '''stark' pattern of

discrimination that can only be explained by an inference of discrimination." 5

ER 1076:27-28. The court relied on Palmer v. United States, 794 F.2d 534 (9th

Cir. 1986). 5 ER 1076:3-6. However, Palmer is distinguishable because in that

case the plaintiff attempted "to show a prima facie case based solely on

statistics ...." Id. at 539. In order to do so, the court held, the plaintiff "must

show a stark pattern of discrimination unexplainable [on other grounds]." Ibid.,

lcitations omitted. Here, Terry proffered ample evidence of disparate treatment in

57

addition to her statistical evidence. See Section III(A)(2), ante.

The also court found Terry's declaration that she was told by Sergeant

Stropky that she (1)" needed to obtain recommendations from two male PWC

instructors in order to even be allowed to take the PWC test" (2 ER 308: 10-13),

(2) would not be permitted to test because "[Sergeant Stropky] did not receive

the recommendations ... in typewritten/orm" (2 ER 308:14-16, italics in

original), (3) could not test because "the conditions were not right" (2 ER

308:17-21), to be "conc1usory allegations, without factual support." 5 ER

1079:4-5. To the contrary, Terry's declaration identified who prevented her from

testing for the PWC operator's certificate and explained why those statements

were untrue, therefore establishing disparate treatment. See Section III(A)(2),

ante.

Terry's evidence supporting the importance of the highest EPR ratings, the

importance of these ratings in obtaining a promotion, and the gross disparity

between the highest ratings between male and female lifeguards, despite no

reason the rating should favor men, more than amply raises an inference of

discrimination. And this Court has "held that the absence of female supervisors

is circumstantial evidence of pretext." Davis, 520 F.3d at 1092, citing Bergene

v. Salt River Project Agric.lmprovement & Power Dist., 272 F.3d 1136, 1143

58

(9th Cir. 2001). If accepted by a jury, the evidence Terry presented of disparate

treatment discrimination would support a jury verdict in her favor. The City's

motion for summary judgment should not have been granted. Davis, 520 F.3d at

1088.

C. The District Court Erroneously Granted Summary Judgment on Terry's Retaliation Claim.

1. The City failed to carry its burden to demonstrate it was entitled to summary judgment on Terry's retaliation claim.

As with Terry's discrimination claims, the City moved for summary

judgment on Terry's retaliation claim asserting: "Plaintiff cannot establish a

prima facie case of retaliation in violation of 42 U.S.C. § 2000e-3(a) as alleged

in count three ofher complaint." 1 ER 47:6-7, italics omitted; 1 ER 66:2-3.

To establish a prima facie case of retaliation, a Terry must show that: "(1)

she engaged in protected activity, such as the filing of a complaint alleging [sex]

discrimination, (2) the defendant subjected her to adverse employment action,[24 j

and (3) 'a causal link exists between the protected activity and the adverse

action.'" Manatt v. Bank ofAmerica, N.A., 339 F.3d 792,800 (9th Cir. 2003),

24 For purposes of a retaliation claim, a "materially adverse employment action" is one that would dissuade a reasonable worker from exercising protected rights. See Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006).

59

quoting Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000), footnotes

omitted; Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d

493, 506 (9th Cir. 2000) (Title VII); Yanowitz v. L 'Oreal USA, Inc., 36 Cal.4th

1028, 1044 (2005) (FEHA). "The purpose of Title VII's anti-retaliation

provision is to bar employers from taking actions which could have' a

deleterious effect on the exercise of those rights by others.'" Passantino, at 506,

quoting Garcia v. Lawn, 805 F.2d 1400, 1405 (9th Cir. 1986). "[W]hen adverse

employment decisions are taken within a reasonable period of time after

complaints of discrimination have been made, retaliatory intent may be inferred."

Passantino, at 507. The quantum of evidence needed to establish a prima facie

case is "minimal." Cordova, 124 F.3d at 1148.

The City did not contest that Terry could establish the first two elements

of her prima facie case. 5 ER 1083:25-26. Rather, the City "argue[d] that

[Terry] cannot show the required causal link between her protected activity and

her lack of work in 2007." 1 ER 65:27-28; 5 ER 1083:26-27.

"Causation sufficient to establish the third element of the prima facie case

may be inferred from circumstantial evidence, such as the employer's knowledge

that the plaintiff engaged in protected activities and the proximity in time

between the protected action and the allegedly retaliatory employment decision."

60

Yartzojfv. Thomas, 809 F.2d 1371,1376 (9th Cir. 1987). In a similar context,

this Court has held a gap of as much as 11 months between protected activity and

retaliation can support an inference of retaliation. See Coszalter v. City of

Salem, 320 F.3d 968,977-78 (9th Cir. 2003) [first amendment retaliation]. "The

causal link may be established by an inference derived from circumstantial

evidence." Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir. 1988). In addition to

(1) temporal proximity, such circumstantial evidence can also include (2)

participation in retaliatory conduct by those against whom discrimination

charges were made (Miller v. Fairchild Indus., Inc., 885 F.2d 498, 505 (9th Cir.

1989),25 (3) conduct towards other employees (id. at 506), and (4) statements

from other employees (ibid.). "As with proof of motive in other contexts, this

element of ... [a] retaliation suit may be met with either direct or circumstantial

evidence ... and involves questions of fact that normally should be left for trial."

Ulrich v. City & County ofSan Francisco, 308 F.3d 968,979 (9th Cir. 2002).

Here, Terry presented all four types of circumstantial evidence

demonstrating causation. First, within a little more than one month of work days

25 "[A] jury could infer retaliatory motivation from the evidence that the Fairchild management personnel who participated in the decisions to layoff Lewis and Miller were aware that the appellants had filed EEOC charges, had attended the EEOC fact-finding conference, and were the very people whose actions had prompted the appellants' complaints."

61

after filing suit, Terry suffered adverse employment action-not being scheduled

for work.26

Second, Terry demonstrated that Sergeant Vipond, one of the people she

alleged participated in discriminating against her in the first place, was in charge

of the 2007 PSP (1 ER 104:13-15) and had substantial involvement with

scheduling. 1 ER 110:8-16 [knowledge ofPSP scheduling]. And Terry

presented evidence that Sergeant Vipond had probably only become aware of

Terry's suit in May 2007. 2 ER 271 :10-12 (served with deposition notice May

16,2007).

Third, Terry presented evidence of retaliation against other female

lifeguards who made discrimination complaints. 2 ER 311 :23-26 [Alazzawi]; 2

ER 314:15-16 [Darling]; 2 ER 317:3-5 [Lentz]; 2 ER 318:22-319:18 [Snow-

Creagan].

Fourth, Terry presented evidence that one of the persons involved in

26 After Terry had been denied promotion in 2006, she accepted other full-time employment and entered the 2006 PSP. 2 ER 309:4-7. During the summer of 2006, Terry worked only "a total of 69 hours." Ibid. The 2006 Lifeguard I season ended on September 4, 2006 (ibid.), barely one month after the City filed its answer. 1 ER 17. Terry's very next employment opportunity-and the City's first realistic chance to retaliate-occurred after Memorial Day, 2007, when the 2007 Lifeguard I season started. 2 ER 309:8-11. During that entire summer, Terry was never called in for work once. Ibid. Thus, Terry suffered retaliation within a relatively short time period and causation can be inferred.

62

discrimination against Terry, Katherine Jackson, made statements indicating she

recognized the unequal treatment of females in the lifeguard service, but had

learned to accept it. 2 ER 319:2-18. A reasonable inference can be drawn that

Sergeant Jackson, the highest ranking female, has been rewarded for her

submissive and compliant attitude.

2. The district court erred by weighing the evidence on Terry's retaliation claim and by failing to draw all inferences in the light most favorable to her.

The district court held that Terry "failed to state a prima facie case for

retaliation." 5 ER 1085:17. To reach this result, the court improperly weighed

the evidence presented by the parties.

For example, the district court credited the declaration ofMichael

Cranston, who asserted he was in charge ofPSP scheduling and was unaware

Terry had filed suit. 5 ER 1084:27-1085:2. Mr. Cranston also declared that

Terry was not scheduled because she never called in for work as she was

required to do. 1 ER 73:8-13.

Yet Terry presented evidence that Mr. Cranston was untruthful. 2 ER 315

[Declaration of Greg Davies27 stating he was called to get PSP work]; 1 ER 73

27 Davies was also a 2007 PSP guard in the same district as Terry. 4 ER 782:9-14.

63

[Cranston declaring lifeguards called him and he did not call them]; 1 ER 117 [

PSP "Rules, Requirements and Other Considerations" expressly stating: "PSP

lifeguards will generally be called after all full-time seasonal lifeguards have

been assigned" (italics added), guards must be prepared to cover shifts "on short

notice," and lifeguards will be selected by seniority]; 3 ER 644-647 [Terry had

more seniority than other PSP guards]; 1 ER 114-115 [Terry's 2007 PSP

application fails to mention the "call in for work rule," and requests Terry's

phone number, which she provided twice, her e-mail address, and her schedule

availability, both of which she also provided]; 4 ER 763-764 [Stropky: PSP

lifeguards are typically called]. Because "the trier of fact can infer from the

falsity of the explanation that the employer is dissembling to cover up a

discriminatory purpose" (Reeves v. Sanderson Plumbing Products, Inc., 530

U.S. 133, 147 (2000)), the district court should have held Terry met her prima

facie case.

VI. CONCLUSION

The City's lifeguard service has favored men over women for too long. 2

ER 326. Terry is one in a long line of victims of this discrimination. Terry

presented more than sufficient evidence to defeat the City's motion for summary

judgment. The City failed to carry its initial burden, and the district court

64

improperly weighed the evidence presented by the parties. This Court should

reverse the district court and remand the case for trial.

DATED: August 10,2009 Respectfully submitted,

Law Office of Michael A. Conger

By: sf Michael A. Conger Attorney for Plaintiff and Appellant, Alison N. Terry

65

STATEMENT OF RELATED CASES

Appellant is aware of no related cases pending before the court.

66

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

This brief complies with the type-volume limitation ofFed. R. App. P.

32(a)(7)(B) because:

This brief contains 13,982 words, excluding the parts of the brief excepted

by Fed. R. App. P. 32(a)(7)(B)(iii).

Dated: August 10, 2009 sf Michael A. Conger Attorney for Plaintiff and Appellant Alison N. Terry

67

CERTIFICATE OF SERVICE

I hereby certify that on August 10,2009, I electronically filed the foregoing with the

Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system.

I certify that all participants in the case are registered CM/ECF users and that service

will be accomplished by the appellate CMlECF system to the following:

Joe B. Cordileone, Deputy City Attorney Attorneys for Defendant Office of the City Attorney City of San Diego Civil Division 1200 Third Avenue, Suite 1100 San Diego, CA 92101 Telephone: (619) 533-5800 Facsimile: (619) 533-5856 jcordileone@sandiego.gov

Date: August 10,2009 slMichael A. Conger Attorney for Plaintiff and Appellant Alison N. Terry

68

CERTIFICATE OF SERVICE

ALISON TERRY v. CITY OF SAN DIEGO

United States Court of Appeals Docket No. 09-55579 United States District Court Case No. 06-CV-1459 JAH(CAB)

I declare as follows:

I am over the age of eighteen years and not a party to the case. I am employed in the County of San Diego, California, where the mailing occurs; and my business address is 16236 San Dieguito Road, Suite 4-14, P.O. Box 9374, Rancho Santa Fe, California 92067.

On August 10,2009, I served the foregoing document(s) described as:

1. EXCERPTS OF RECORD, VOLUME I, VOLUME II, VOLUME III, VOLUME IV, and VOLUME V;

on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows:

Joe B. Cordileone, Deputy City Attorney Attorneys for Defendant Office of the City Attorney City of San Diego Civil Division 1200 Third Avenue, Suite 1100 San Diego, CA 92101 Telephone: (619) 533-5800 Facsimile: (619) 533-5856 jcordileone@sandiego.gov

(X) BY MAIL - I am readily familiar with the firm's practice of collection and processing of correspondence for mailing with the United States Postal Service, and that the document(s) shall be deposited with the United States Postal Service this same day in the ordinary course of business pursuant to Code of Civil Procedure § 1013a.

I declare under the penalty of perjury under the laws of the State of Califamia that the above is true and correct.

Executed on August 10,2009, at Rancho Santa Fe, California.

G~C3_~ Patricia B. Messer

LAW OFFICE OF MICHAEL A. CONGER Post Office Box 9374

16236 San Dieguito Road, Suite 4-14 Rancho Santa Fe, CA 92067

(858) 759-0200 (858) 759-1906

web site: www.lawconger.com email: congerrnike@aol.com

Michael A. Conger Civil Litigation Employment Law

Business Law Wrongful Oeath

Serious Injury

July 24, 2009

Via Fax No. (619) 533-5856

Joe Cordileone, Deputy City Attorney Office of The City Attorney - Civil Division 1200 Third Avenue, Suite 1100 San Diego, CA 92101

Re: Terry v. City of San Diego United States District Court Civil No. 06-CV-1459 JAH(CAB) United States Court of Appeals Docket No. 09-55579

Dear Mr. Cordileone:

Please be advised that we have been granted a two-week extension by the Court Clerk to file the appellant's opening brief in the referenced appeal. Our opening brief is now due on August 10, 2009. Appellee's brief will be due thirty days thereafter or on September 9, 2009.

Please do not hesitate to contact me should you have any questions regarding the foregoing.

MAC/pbm cc: Ms. Alison N. Terry

07/24/2009 15:10 FAX 8587591906 Law Off. Michael Conger If!:j UU.l

********************* *** TX REPORT *** *********************

TRANSMISSION OK

TXlRX NO 1120 CONNECTION TEL 16195335856 SUBADDRESS CONNECTION ID ST. TIME 07124 15:09 USAGE T 00'54 PGS. SENT 2 RESULT OK

LAW OFFICE OF MICHAEL A. CONGER

Michael A. Conger

16236 SAN DIEGUITO ROAD STE.4w 14

RANCHO SANTAFE, CA 92067 MAiLING ADDRESS

P.O. BOX 9374 RANCHO SANTA FE, CALIFORNiA 92067

(858) 759~0200

FAX (858) 759-1906

CIVIL LJTIGATlON EMl>LOYMENT LAW

BusrNESS LAW WRONGFUL DEATH

SltRIOUSINJl)RY

Fax Coversheet To: Joe Cordileone, Deputy City Attorney

City of San Diego

Fax No. (619) 533-5856

From: Michael A. Conger, Esquire

Re: Terry v. City of San Diego

Date: July 24, 2009

You should receive 2 pages including this cover sheet