Mondero v. Salt River Project

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SYLVIA MONDERO, 
Plaintiff-Appellant,
No. 03-16173
v.
SALT RIVER PROJECT, a political  D.C. No.
CV-01-02465-FJM
subdivision of the State of
OPINION
Arizona,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding

Argued and Submitted
February 16, 2005—San Francisco, California

Filed March 15, 2005

Before: Arthur L. Alarcón, Eugene E. Siler, Jr.,* and
Barry G. Silverman, Circuit Judges.

Opinion by Judge Alarcón

*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.

3271
3274 MONDERO v. SALT RIVER PROJECT

COUNSEL

John A. Conley, Law Office of James Burr Shields, Phoenix,
Arizona, for the plaintiff-appellant.

John J. Egbert, Jennings, Strouss & Salmon, Phoenix, Ari-
zona, for the defendant-appellee.

OPINION

ALARCÓN, Circuit Judge:

Sylvia Mondero appeals from the order granting Salt River
Project’s (“SRP”) summary judgment motion to dismiss her
claim under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq. She contends that, because of her
gender, she was denied an opportunity to serve as an opera-
tions journeyman, with on-the-job training and a guarantee of
a permanent assignment that had been offered to male
employees.

Ms. Mondero filed a timely notice of appeal. We affirm
because we conclude that Ms. Mondero has failed to demon-
strate that SRP’s decision to discontinue the experimental
operations journeyman on-the-job training program
(“experimental program”) was motivated by gender discrimi-
nation.

I

A

In November 1998, SRP notified five male electricians who
were working in the Facilities Services Department that they
 MONDERO v. SALT RIVER PROJECT 3275
were going to be laid off due to a restructuring of that depart-
ment. Union representatives acting on behalf of the Facilities
Services Department electricians (“male electricians”)
inquired whether they might temporarily be loaned to the
Fault Locating Department.

The five male electricians lacked the experience working
with high voltages required of an operations journeyman.
Roger Hurliman, the supervisor of the Fault Locating Depart-
ment, agreed with the union representatives that SRP should
determine whether to experiment with a trial on-the-job train-
ing program for the five male electricians as an alternative to
an apprenticeship program.

Mr. Hurliman consulted with Kevin Nielsen, the manager
of SRP’s Electric Systems Operations, and received input
from the working foremen who would provide the on-the-job
training. After these consultations, Mr. Hurliman entered into
an agreement with the union to initiate an experimental pro-
gram for the male electricians on a trial basis.

The letter agreement, signed by Phillip Harris, the union’s
Assistant Business Agent, and Phillip Thurston, a Senior L/R
Administrator for SRP, provides as follows:

It is the intent of this agreement between IBEW
Local 266 and Salt River Project (SRP) to provide
Electricians in Facilities Services another career
option in light of the current reorganization in Facili-
ties Services. . . .

....

It is mutually agreed and understood that the
agreement set forth herein is entered into on a non-
precedential basis and neither party may use any fac-
tors indigenous to this particular matter as precedent
setting for any future incidents of like nature. Also,
3276 MONDERO v. SALT RIVER PROJECT
this settlement does not require or obligate Salt River
Project to take similar action in any future incidents
of like or similar nature.

In November 1998, SRP notified the male electricians that
they would work on loan within the Fault Locating Depart-
ment. They were informed that they would have to qualify for
a commercial driver’s license, attend classes, and receive on-
the-job training. They were also told that if they successfully
completed the experimental program, they would be allowed
to bid for openings as operations journeymen. One of the
electricians was unable to qualify for a commercial driver’s
license and dropped out of the experimental program. The
other male electricians entered into the experimental program
in the Fault Locating Department in January 1999. Pursuant
to the terms of the agreement with the union, they were paid
full journeyman-level wages from the outset of the trial pro-
gram. Although they received full journeyman-level wages,
the work they performed during their training was at the level
of a serviceman, which is below the pay level of a journey-
man.

In August 1999, operations journeyman positions became
available. Each of the male electricians who participated in
the experimental program became an operations journeyman.

B

Ms. Mondero was hired by SRP in 1987 as a temporary
electrician in the Groundwater Services Department. She
became a regular employee in April 1988. One other electri-
cian was employed in the Groundwater Services Department.
He had seniority over Ms. Mondero.

In 1998, SRP management concluded that two electricians
were not needed for the projected work load in the Groundwa-
ter Services Department. Ms. Mondero and the other electri-
cian were assigned to perform nonelectrical work as needed.
 MONDERO v. SALT RIVER PROJECT 3277
Nevertheless, she continued to receive journeyman electrician
wages.

Ms. Mondero was notified in 1998 that the need for more
than one electrician was being assessed because the work load
had decreased. She was informed that “there’s a possibility
we might have to lay you off. We don’t know right now.” Fol-
lowing this notice of a possible layoff, Ms. Mondero bid on
several positions outside of the Groundwater Services Depart-
ment. In March 1999, she bid on a position as an Operations
Journeyman in the Fault Locating Department. She did not
receive the position.

Ms. Mondero was notified on May 17, 1999 that she would
be laid off from her electrician position in the Groundwater
Services Department. This termination occurred six months
after the male electricians were notified that they were being
laid off as employees of the Facilities Services Department.

Ms. Mondero was given the option of continuing to work
for SRP on a nine-month temporary loan assignment in the
Fault Locating Department. Ms. Mondero requested that she
be allowed to participate in the type of experimental program
offered to the male electricians. Her request was denied.
Instead, she was offered a position in that department as an
operations serviceman. After consulting with the union, she
accepted the offer of a temporary assignment as a serviceman
on June 3, 1999. The agreement provided that the manage-
ment of the Fault Locating Department had the right to termi-
nate the assignment at any time.

Ms. Mondero was not paid journeyman’s wages for her
work as a serviceman, nor did she receive on-the-job training
as an operations journeyman. As a serviceman, she was paid
twenty-one dollars an hour instead of the twenty-six dollars
an hour she had received as a journeyman electrician in the
Groundwater Services Department.
3278 MONDERO v. SALT RIVER PROJECT
On December 2, 1999, Ms. Mondero was informed that she
would be laid off from her temporary serviceman position in
the Fault Locating Department. On December 13, 1999, Ms.
Mondero filed a charge of sex discrimination with the United
States Equal Employment Opportunity Commission
(“EEOC”). On May 15, 2001, the EEOC issued a determina-
tion on the merits of Ms. Mondero’s charge. The EEOC con-
cluded that “there is reasonable cause to believe [SRP]
discriminated against [Ms. Mondero] because of her sex,
female, when they denied her the opportunity to qualify for a
permanent position as an Operations Journeyman.”

At the time this action was filed, Ms. Mondero was
enrolled in SRP’s electrician apprenticeship program. This
program focuses on primary or higher voltages in the distribu-
tion system. Ms. Mondero did not receive this type of training
during her 1985 apprenticeship program for inside wireman.

Ms. Mondero filed this gender discrimination action in the
district court on November 18, 2002, pursuant to Title VII.

II

In its motion for summary judgment, SRP set forth two rea-
sons why Ms. Mondero was not permitted to participate in the
same type of on-the-job program negotiated with the union
for the male electricians. SRP alleged that it declined to repeat
the experimental program for Ms. Mondero because it did not
want to pay journeyman-level wages for serviceman work.
SRP also asserted that it declined Ms. Mondero’s request
because the experimental program was still in progress, and
it was not sure whether it was the best way to fill its needs for
properly trained operations journeymen.

In response, Ms. Mondero contended that the motion
should be denied because she had produced sufficient direct
and indirect evidence to raise a genuine issue of material fact
 MONDERO v. SALT RIVER PROJECT 3279
regarding whether SRP’s justification for not repeating the
experimental program was pretextual.

Ms. Mondero offered the deposition testimony of Chester
Atkisson, one of the male electricians, to demonstrate that
SRP acted with discriminatory animus in rejecting her request
that SRP repeat the experimental program that had been
offered to the male electricians. Mr. Atkisson testified that he
overheard Tom Milne and Robert Utter, two of the working
foremen who served as trainers in the experimental program,
state: “They bring a woman to do a man’s job?” Ms. Mondero
argued that this biased comment was relied upon by Mr. Hur-
liman in rejecting her request that SRP repeat the experimen-
tal program for her because he testified at his deposition that
he took into consideration the concerns of the working fore-
men in determining whether to experiment with an on-the-job
training program for operations journeyman.

Mr. Atkisson also testified that a female operations jour-
neyman “was totally against what [members of Fault Locating
Department] believed in.” He further testified that when Ms.
Mondero began working in the Fault Locating Department in
June 1999, she came into a “hornet’s nest.”

The district court granted SRP’s motion for summary judg-
ment holding that Ms. Mondero failed to present any direct
evidence of discriminatory animus against her because of her
gender. The court also determined that Ms. Mondero’s indi-
rect evidence of an alleged pretext was not specific or sub-
stantial.

Ms. Mondero has filed a timely appeal. The district court
had federal question jurisdiction pursuant to 28 U.S.C.
§ 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.

III

Before this court, Ms. Mondero maintains that the district
court erred in concluding that she failed to offer direct evi-
3280 MONDERO v. SALT RIVER PROJECT
dence of gender bias or present specific and substantial indi-
rect evidence that SRP’s justification for not permitting her to
receive on-the-job training as an operations journeyman was
pretextual. “We review de novo a grant of summary judgment
and must determine whether, viewing the evidence in the light
most favorable to the nonmoving party, there are any genuine
issues of material fact and whether the district court correctly
applied the relevant substantive law.” Lopez v. Smith, 203
F.3d 1122, 1131 (9th Cir. 2000) (en banc).

[1] A plaintiff can establish a prima facie case of a viola-
tion of Title VII by introducing direct evidence that an
employer expressly discriminated against a job applicant or
employee because of his or her gender, or by presenting indi-
rect evidence that the plaintiff (1) was a member of a pro-
tected class, (2) she applied and was qualified for a position
which she sought, (3) despite being qualified, she was
rejected, and (4) after she was rejected, the position remained
open and the employer continued to seek applications from
people with comparable qualifications. See McDonnell Doug-
las Corp. v. Green, 411 U.S. 792, 802 (1973) (explaining that
the four-factor test is sufficient to establish a prima facie
case); Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.
1994) (holding that a prima facie case may be based on direct
evidence or on a presumption that arises when the four-part
showing under the McDonnell Douglas framework is made).

A

Noting that the SRP did not contest that Ms. Mondero had
established a prima facie case of discrimination, the district
court concluded, however, that the presumption of unlawful
discrimination had been rebutted by SRP’s articulation of “a
legitimate, non-discriminatory reason for its employment
decision.”

In its responsive brief before this court, SRP does not con-
tend that Ms. Mondero failed to demonstrate that it denied her
 MONDERO v. SALT RIVER PROJECT 3281
request that it repeat the experimental program that it had
offered to the male electricians when they were laid off six
months earlier from their positions in the Facilities Services
Department. Because the applicability of the McDonnell
Douglas rebuttable presumption of discriminatory animus has
been conceded by SRP, and the parties have not presented this
question to this court, we decline to do so sua sponte because
we agree with the district court that SRP presented legitimate,
nonpretextual reasons for denying her request for on-the-job
training as an operations journeyman.

B

Ms. Mondero contends that she offered direct evidence that
Mr. Hurliman rejected her request for on-the-job training
based on the undisputed fact that he considered the concerns
of Mr. Milne and Mr. Utter regarding the experimental pro-
gram. She argues that the bias expressed by Mr. Milne and
Mr. Utter that “[t]hey bring a woman to do a man’s job?”
motivated his rejection of Ms. Mondero’s request for on-the-
job training.

While it is true that Mr. Hurliman testified during his depo-
sition that he considered the concerns of the foremen, that
consultation occurred in December 1999, six months before
Ms. Mondero requested that the experimental program be
repeated for her. In fact, Mr. Hurliman testified that he
decided to try the experimental program after considering the
views of the foremen who would do the training. Mr. Hurli-
man stated that “[t]heir only concern would have been
whether [the electricians from Facilities Services] were quali-
fied to work the primary voltages.” There is no evidence in
the record that Mr. Milne or Mr. Utter communicated their
alleged gender bias to Mr. Hurliman at any time, or that he
was even aware of it.

In her response to the motion for summary judgment, Ms.
Mondero submitted a letter to the district court that Michael
3282 MONDERO v. SALT RIVER PROJECT
T. Kelly, Senior Employee Relations Representative, had
delivered to the EEOC, on behalf of SRP, in which he dis-
cussed her charge of gender discrimination. Attached to the
letter were two statements from working foremen in which
they evaluated the performance of the male electricians who
participated in the experimental program. Each foreman was
asked the following question: “For future manpower needs,
would you agree that the use of inside wiremen to perform
Operations Journeyman work is a good business decision.”
Mark Acuna replied:

I think they should serve a 2 year apprenticeship
before they are allowed to work as journeymen.
They don’t understand the hazards of working on the
SRP distribution system. They have been at FLO for
16 months and they are not qualified or responsible
enough to run primary crews. Two of them might be
able to run a secondary/St. Light crew.

I think it was a good idea to bring them to FLO,
to save their jobs, but they need a lot of experience
in the field, before they can be expected to perform
as a Operations Journeyman.

Frank Hurtado responded as follows:

No, because the inside wiremen have not been
exposed to the hazards, dealing with primary volt-
age. They do not understand the SRP distribution
system and could not be expected to work as an effi-
cient journeyman. The wiremen that we have hired,
have had 16 months of training and there are 2, that
could possibly run a crew that repairs secondary, ser-
vices and st. lights.

They are not responsible journeymen, yet they get
the same hourly wage.
 MONDERO v. SALT RIVER PROJECT 3283
[2] Mr. Kelly stated in his letter to the EEOC that “these
statements represent the nature and substance of reports
received by management at the time the decision to discon-
tinue the program was made.” Thus, there is no direct evi-
dence that the statements received by SRP’s decision makers
from any of the foremen regarding the experimental program
reflected any gender bias against Ms. Mondero.

[3] We agree with the district court that Ms. Mondero has
failed to present any evidence that the alleged comments by
Mr. Milne and Mr. Utter related in any way to SRP’s decision
not to repeat the experimental program for Ms. Mondero.
Stray remarks not acted upon or communicated to a decision
maker are insufficient to establish pretext. See Nidds v.
Schindler Elevator Corp., 113 F.3d 912, 919 (9th Cir. 1996)
(holding that a comment by a supervisor that he intended to
get rid of all the “old timers” was insufficient to create a gen-
uine issue of material fact because “the comment was not tied
directly to [the] layoff.”). An agent’s biased remarks against
an employee because of his or her gender are admissible to
show an employer’s discriminatory animus if the agent was
involved in the employment decision. Godwin v. Hunt Wes-
son, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998). Ms. Mondero
has failed to present any evidence that SRP declined to repeat
the experimental program for her because SRP’s decision
makers were influenced or even aware of the alleged gender
bias of some of its agents. The district court did not err in
determining that Ms. Mondero failed to present any direct evi-
dence that SRP’s justifications for its employment action were
pretextual, and not legitimate business decisions.

IV

[4] Ms. Mondero also maintains that the district court erred
in holding that she did not present specific and substantial evi-
dence that SRP’s justifications for declining her request to
repeat the experimental program were not credible. A plaintiff
is entitled to a trial on the merits of a Title VII claim if he or
3284 MONDERO v. SALT RIVER PROJECT
she presents indirect evidence that “the employer’s proffered
motives were not the actual motives because they are incon-
sistent or otherwise not believable. Such evidence of pretense
must be specific and substantial in order to create a triable
issue with respect to whether the employer intended to dis-
criminate on the basis of sex.” Id. at 1222 (internal quotations
omitted).

In its motion for summary judgment, SRP articulated two
reasons for declining Ms. Mondero’s request to repeat the
experimental program. First, it did not want to continue to pay
journeyman-level wages for serviceman-level work. Second,
SRP’s management ultimately abandoned the experimental
program because it concluded that the apprenticeship program
for operations journeymen was the better way to fill the
department’s needs.

[5] It is undisputed that pursuant to SRP’s collective bar-
gaining agreement, it was required to pay the male electri-
cians who participated in the experimental program
journeyman wages of twenty-six dollars an hour while they
were doing serviceman-level work which pays twenty-one
dollars an hour. The male electricians were in the experimen-
tal program for six months. Assuming that they worked only
a forty-hour week, the experimental program cost SRP at least
$4,800 more for each participant than they would have
received for the servicemen-level work they actually per-
formed during their training. The total extra wages paid by
SRP during the experimental program amounted to at least
$19,200. Ms. Mondero has failed to present specific and sub-
stantial evidence that SRP’s reluctance to pay operations jour-
neyman wages for serviceman-level work is pretextual.

[6] Ms. Mondero also failed to present specific and sub-
stantial evidence that SRP’s assertion that it concluded, after
consulting with the foremen who provided on-the-job training
to the male electricians, that a two-year apprenticeship pro-
gram was a better way to prepare operations journeyman was
 MONDERO v. SALT RIVER PROJECT 3285
pretextual. In the two statements attached to SRP’s EEOC let-
ter, proffered into evidence by Ms. Mondero, Mr. Acuna and
Mr. Hurtado recommended that inside wiremen should
receive apprenticeship training before they are allowed to per-
form the duties of an operations journeyman. It was their
opinion that the male electricians did not have sufficient train-
ing and experience after undergoing the experimental pro-
gram to understand the hazards of working in the distribution
system nor were they qualified to run primary crews.

Ms. Mondero argues that the fact that the male electricians
were hired as operations journeymen after they completed the
experimental program demonstrates that SRP’s justification
for declining to repeat the experimental program because the
apprenticeship program better fills its needs for well-qualified
operations journeymen is not credible. Ms. Mondero’s syllo-
gism can be stated as follows:

SRP initiated an experimental program for operations jour-
neymen.

The male electricians completed the experimental program
and were hired by SRP as operations journeymen.

Therefore, the apprenticeship program does not better ful-
fill SRP’s needs for qualified operations journeymen.

This conclusion does not follow from the premises. The
fact that the male electricians were hired as operations jour-
neymen does not demonstrate that their training, qualifica-
tions, and experience were equal to that of the graduates of
the operations journeyman apprenticeship program. As noted
above, the inadequacies of the experimental program are
clearly set forth in Mr. Acuna and Mr. Hurtado’s statements.

V

Ms. Mondero claims that the fact that SRP offered reasons
for not repeating the experimental program to the EEOC that
3286 MONDERO v. SALT RIVER PROJECT
were not presented in the motion for summary judgment sup-
ports an inference that each of the justifications presented is
not credible. Mr. Kelly stated in his letter to the EEOC that
at the time Ms. Mondero’s request was denied, SRP did not
need additional operations journeymen to meet its peak work
load staffing. Mr. Kelly also asserted that the employers in the
Fault Locating Department were too busy to provide on-the-
job training for her because she applied at the beginning of
the peak busy period. Ms. Mondero did not present specific
and substantial evidence that either of these assertions is false.
Ms. Mondero has failed to demonstrate that SRP’s decision
not to repeat the experimental program and to rely instead on
the apprenticeship program was a false pretense for gender
discrimination.

VI

In addition to arguing that she has presented sufficient
direct and circumstantial evidence of discrimination to create
a genuine issue of material fact for trial, Ms. Mondero also
points to the fact that she obtained a determination letter from
the EEOC in her favor. The letter states, “[t]here is reasonable
cause to believe Respondent discriminated against Charging
Party because of her sex, female, when they denied her the
opportunity to qualify for a permanent position as an Opera-
tions Journeyman.” She asserts that this determination, in and
of itself, should be sufficient to defeat SRP’s motion for sum-
mary judgment.

[7] This argument is without merit. She fails to point to a
single case holding that a determination letter from the EEOC
is sufficient to create a genuine issue of material fact. She
relies generally on Plummer v. W. Int’l Hotels Co., 656 F.2d
502 (9th Cir. 1981), in which the court held that an EEOC
determination letter is “a highly probative evaluation of an
individual’s discrimination complaint.” Id. at 505. The fact
that a determination from the EEOC is highly probative, how-
ever, does not support Ms. Mondero’s contention that an
 MONDERO v. SALT RIVER PROJECT 3287
EEOC determination letter is somehow a free pass through
summary judgment. In Coleman v. Quaker Oats Co., 232 F.3d
1271 (9th Cir. 2000), this court held that an EEOC reasonable
cause determination did not create a genuine issue of material
fact. Id. at 1283-84. Ms. Mondero attempts to distinguish this
case based on the fact that in Coleman, the letter from the
EEOC was only two sentences long, whereas the letter she
received in her case was two pages long. She cites no cases
in support of this distinction.

SRP correctly notes that the EEOC’s letter does not offer
any support for her attempt to show pretext in this case. The
letter merely recites the facts that Ms. Mondero disclosed, and
does not say anything at all about SRP’s proffered legitimate
nondiscriminatory reason.

VII

During oral argument at the hearing on the motion for sum-
mary judgment, the district court stated: “[I]t strikes me that
without direct evidence of discrimination, if you have not
been discharged, it seems like you are fouling your own nest
by suing your employer and staying there.” Ms. Mondero
asserts that this comment demonstrates that the district court
is of the view that “circumstantial evidence in a discrimina-
tion case is, uniformily, of lessor value than direct evidence.”
Because we must review the district court’s order de novo, the
district court’s ruminations have no effect on our appellate
responsibility.

[8] Based on our independent review of the record, we are
persuaded that Ms. Mondero has failed to demonstrate that
SRP’s justification for declining to repeat the experimental
program was a pretext for gender discrimination.

AFFIRMED.