FILED
NOT FOR PUBLICATION NOV 18 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JILL GARCIA, No. 08-16920
Plaintiff - Appellant, D.C. No. 4:07-CV-00167-DCB
v.
MEMORANDUM *
ALLSTATE INSURANCE COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted November 5, 2009
San Francisco, California
Before: B. FLETCHER, CANBY, and GRABER, Circuit Judges.
Jill Garcia appeals from the district court’s grant of summary judgment to
Allstate Insurance Company on her employment discrimination claim. Reviewing
de novo, see, e.g., Metoyer v. Chassman, 504 F.3d 919, 930 (9th Cir. 2007), we
reverse.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
The parties agree that Allstate’s motion for summary judgment should be
evaluated using the burden-shifting analysis established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Under this framework,
[t]he employee must first establish a prima facie case of discrimination.
If [s]he does, the employer must articulate a legitimate,
nondiscriminatory reason for the challenged action. Finally, if the
employer satisfies this burden, the employee must show that the “reason
is pretextual either directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by showing that
the employer’s proffered explanation is unworthy of credence.”
Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (internal quotation
marks and citations omitted). The only serious dispute in this case is whether
Garcia provided sufficient evidence to support a finding that Allstate’s reasons for
firing her were a pretext for discrimination. We conclude that Garcia’s evidence of
pretext was sufficient to raise a genuine issue of material fact.
First, we conclude that Garcia provided sufficient circumstantial evidence to
create a genuine issue of material fact as to whether regional manager Tom Smith
was involved in Garcia’s termination. See Godwin v. Hunt Wesson, Inc., 150 F.3d
1217, 1221 (9th Cir. 1998) (explaining that disputes about whether specific
individuals were involved in the adverse employment action are “for the trier of
fact to resolve”). It was Smith who first asked Garcia about potential conflicts of
interest. Additionally, Allstate asserts that it fired Garcia in part due to her failure
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to provide Smith updated information, suggesting Smith’s ongoing role in the
investigation. Further, Garcia’s direct supervisor made remarks suggesting that
Smith would decide whether Garcia would keep her job.
Second, we conclude that the record provides sufficient evidence to create a
genuine issue of material fact concerning both Allstate’s and Smith’s
discriminatory animus toward female employees. Allstate sponsored several
performance incentives from which the women at Allstate felt excluded, many of
which were organized in substantial part by Smith. Garcia also provided several
examples of Allstate’s male managers making gender-oriented derogatory
comments at company functions, including comments Smith made about Garcia
specifically. Additionally, at the time of Garcia’s firing, she was being considered
for a promotion that would have made her one of the few women under Smith’s
direct supervision, and Garcia’s then-boss told her that she would have to show
Smith that she could be “one of his boys.”
Finally, the record presents a triable issue whether Allstate’s proffered
rationale for firing Garcia is “unworthy of credence.” See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). Following an investigation for
an alleged conflict of interest violation, Allstate’s Corporate Security department
recommended no disciplinary action against Garcia. Allstate neither contradicted
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Smith’s testimony that Allstate follows these recommendations ninety-nine percent
of the time nor explained why Garcia’s case was treated differently from ninety-
nine percent of investigated cases. The fact that Allstate also fired a male
employee for a conflict of interest violation is irrelevant because Allstate’s internal
investigation recommended that the male employee be subject to disciplinary
action.
Thus, we conclude that the district court erred in granting summary
judgment to Allstate.
REVERSED AND REMANDED for further proceedings.
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