9999-9999-00290\KJM\KXB\1161630.2

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DOCKET NO. 13-16102

AIME GREENE,

Plaintiff/Appellant,

v.

BUCKEYE VALLEY FIRE DISTRICT, et al.,

Plaintiff/Appellee.

On appeal from the United States District Court for the District of Arizona, Phoenix Division

No. CV11-02351-PHX-NVW

AMICUS BRIEF OF THE ARIZONA EMPLOYMENT

LAWYERS ASSOCIATION

Kraig J. Marton (003816) kjm@jaburgwilk.com Jaburg & Wilk, P.C. 3200 N Central Avenue, Suite 2000 Phoenix, Arizona 85012 (602) 248-1000 (602) 248-0522 Fax Attorneys for Appellant

Cheri L. McCracken (006111) cherimccracken@gmail.com Cheri L. McCracken, Esq. 2402 North 24th Street Suite 1 Phoenix, Arizona 85008 (602) 231-0595 (602) 231-0841 Fax

i 9999-9999-00290\KJM\KXB\1161630.2

TABLE OF CONTENTS

I. All Parties Have Consented to this Filing ....................................................... 1

II. AZELA - It’s Interest and Authority to File .................................................... 1

III. Three Arguments Presented by Amicus AZELA ............................................ 3

Issue 1: Discrimination or pretext may be inferred when an employer (A) deviates from its established procedure for making personnel decisions, and (B) instead uses a promotions list which is the result of a “popularity contest” poll of rank-and-file employees [in support of OB Section III(D)&(E)] ......................... 3

A. The Law is Well Established that an Employer’s Deviation from Its Established Personnel Procedures Is Evidence of Discrimination ........................................................ 3

B. It is also Well Established that an Employer’s Reliance Upon Subjective Criteria for Significant Personnel Decisions May Be Circumstantial Evidence of Discrimination ............................................................................. 4

C. The Fire Dept.’s Deviation from its Established Personnel Promotional Procedures in Combination with Using a Subjectively Based (Popularity) List for its Promotional Decision was Strong Evidence of Discrimination that was Disregarded by the District Court ............................................................................................ 5

Issue 2: Imputed Discriminatory Intent; “Cat’s Paw Evidence” was Ignored ................................................................................................... 7

Argument: Even if there is no direct evidence of discriminatory intent on the part of the decision makers with respect to granting promotions, there was strong evidence that some of the information they relied upon and based their decisions upon came from biased subordinates. [OB section III (B)(ii)] ...................... 7

A. The Problem/Issue....................................................................... 7

B. Undisputed Material Facts .......................................................... 8

C. District Court Findings Where Facts Were in Dispute ............... 8

D. The District Court Failed to Apply Two Controlling Supreme Court Precedents and Ninth Circuit Precedent ............ 9

ii

E. Conclusion & Rationale ............................................................ 13

Issue 3: Summary Judgment Should be Rare in Employment Discrimination Claims [OB section III(B)] ......................................... 14

A. The District Court Weighed Evidence in Granting Summary Judgment .................................................................. 14

B. Burdens of Proof for a Discrimination Plaintiff Are on their Face Questions of Fact for a Jury ..................................... 18

C. The District Court Finding that a Plaintiff’s Own Self-Serving Testimony is Sufficient to Prove a Disputed fact was Legally Incorrect ................................................................ 19

D. Why Summary Judgment Should be the Exception, not the Rule, in Employment Cases Where the Employer’s Intent is the Disputed Issue ....................................................... 21

IV. Conclusion: .................................................................................................... 22

V. Certificate of Compliance .............................................................................. 22

iii

TABLE OF CITATIONS

Cases

Bass v. Board of County Commissioners, 256 F. 3d 1095 (11th Cir., 2001) ............................................................................. 4

Beeles v. Offset Separation Corp, Az. Supreme. Ct. No. CV 97-0016-CQ ................................................................. 2

Bergene v. Salt River Project, 272 F. 3d 1136 (9th Cir., 2001) ............................................................................... 5

Brady v. Office of Sergeant at Arms, 520 F.3d 490 (D.C. Cir., 2008) ............................................................................ 21

Chuang v. University of California, Davis, 225 F. 3d 1115 (9th Cir., 2000) ............................................................................. 14

Dominguez-Curry v. Nevada Dept. of Transportation, 424 F. 3d 1027, 1039-1040 (9th Cir., 2005) .................................................. 12, 13

Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 116 S.Ct. 1813, 135 L.Ed.2d 113 (1996) ...................................... 11

Garcia v. Allstate Insurance Co., 357 Fed. Appx. 773, 2009 WL 4884539 (9th Cir.,2009 ......................................... 3

Garrett v. Hewlett-Packard Co., 305 F. 3d 1210 (10th Cir., 2002) ............................................................................. 3

Giacoletto v. Amax Zinc Co., 954 F. 2d 424 (7th Cir., 1992) ................................................................................. 3

Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) .............................................. 5

Hemi Group, LLC v. City of New York, 559 U.S. 1, ––––, 130 S.Ct. 983, 989, 175 L.Ed.2d 943 (2010) .......................... 10

Hill v. Tangherlini, 724 F. 3d 965 (7th Cir., 2013) ............................................................................... 20

Hung Ping Wang v. Hoffman, 694 F.2d 1146 (9th Cir.1982)................................................................................. 5

Jacob v. City of New York, 315 U.S. 752 (1942) ............................................................................................. 16

iv

Jauregui v. City of Glendale, 852 F. 2d 1128 (9th Cir., 1988) ............................................................................... 4

Kale v. Combined Ins. Co. of America, 861 F. 2d 746 (1st Cir., 1988) ............................................................................... 20

Kampouris v. St. Louis Symphony Soc’y, 2010 F.3d 845 (8th Cir., 2000) .............................................................................. 16

Lam v. Univ. of Hawai‘i, 40 F.3d 1551 (9th Cir.1994) ................................................................................. 12

Lyons v. England, 307 F. 3d 1092 (headnote 45) (9th Cir., 2002) ..................................................... 20

MacDonald v. Eastern Wyoming Mental Health Center, 941 F. 2d 1115 (10th Cir., 1991) ........................................................................... 20

Mondero v. Salt River Project, 400 F.3d 1207 (9th Cir.2005)............................................................................... 12

Paquin v. Federal National Mortgage Insurance Assn., 119 F. 3d 23 (D.C. Cir., 1997) ............................................................................... 4

Park Lane Hosiery Co. Inc. v. Shore, 439 U.S. 322 (1979) ...................................................................................... 14, 15

Porter v. California Dept. of Corrections, 419 F. 3d 885 (9th Cir., 2005) ................................................................................. 3

R.P. v. Prescott Unified School District, 631 F. 3d 1117 (9th Cir., 2011) ............................................................................... 2

Rafique v. Sigma Motors, Inc., Az. Supreme. Ct. No CV 09-0012-PR, and 2008 WL 5264641 (Ariz. App., December 18, 2008 ...................................................................................... 2

Rhodes v. Illinois Dept. of Transp., 359 F.3d 498, 509 (C.A.7 2004) .......................................................................... 11

Rowe v. General Motors Corp., 457 F. 2d 348 (5th Cir., 1972) .................................................................. 4, 13, 14

Russell v. TG Mo. Corp., 340 F. 3d 735 (8th Cir., 2003) ................................................................................. 3

Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406 (9th Cir.1996) ................................................................................. 14

v

Shotwell v. Donahoe, 207 Ariz. 287, 85 P. 3d 1045 (2009) ..................................................................... 2

Sosa v. Alvarez–Machain, 542 U.S. 692, 704, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) .............................. 11

Staub v. Proctor Hospital, ___U.S.___, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011) ........................... 10, 12, 13

Vance v. Ball State University, ___U.S.___, 133 S.Ct. 2434, 186 L.Ed.2d 565 (2013) ..................... 10, 11, 12, 13

Other Authorities

Arthur R. Miller, The Pretrial Rush to Judgment: Are the “Litigation Explosion,” “Liability Crisis,” and Efficiency Cliches Eroding Our day in Court and Jury Trial Commitments?, 78 N.Y.U.L.Rev. 982, 1041 (2003) at 1133 .......................................................... 16

Hon. Mark W. Bennett in Essay: From the “No Spittin’, No Cussin’ and No Summary Judgment” Days of Employment Discrimination Litigation to the “Defendant’s Summary Judgment Affirmed Without Comment” Days: One Judge’s Four-Decade Perspective, 57 N.Y. L. Sch. Rev. (2012-2013), pages 698, 699 .......................................................................................... 15

Kerri Lynn Stone, Shortcuts in Employment Discrimination Law 56 St. Louis U.L.J. 111, 159 (2011) ............................................................................... 17

Kevin M. Clermont & Stewart J. Schwab, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worst?, 3 Harv. L. & Poly Rev. 103, 127 (2009). As cited from Hon. Mark W. Bennett From“No Summary Judgment” To “Affirmed Without Comment,” ...... 18

Nancy Gertner, “Losers Rules,” 122 Yale L.J. Online 109; and Hon. Mark W. Bennett; From “No Summary Judgment” to “Affirmed Without Comment,” ..................................... 22

Scott A. Moss, Reluctant Judicial Fact Finding: When Minimalism and Judicial Modesty Go Too Far, 32 Seattle U.L.Rev. 549, 565 (2009) Note 1, Note 2, Note 3 .............................. 17

Rules

Fed.R.App.P. 29 ......................................................................................................... 1

Fed.R.App.P., Rule 29(c)(5) ...................................................................................... 1

vi

Fed.R.Civ.P. 56 ................................................................................................. 14, 16

Fed.R.Civ.P. 56(a) .................................................................................................... 15

Federal Rules of Evidence, Rule 602 ....................................................................... 20

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I. All Parties Have Consented to this Filing

Pursuant to FRAP Rule 29(c)(5), the undersigned certify that:

Mark A. Bracken and Milton W. Hathaway, who are counsel of record for

the Appellant and Appellee respectively, have each told the undersigned that they

consent to the filing of this Amicus Brief by the Arizona Employment Lawyers

Association, and Arizona nonprofit corporation (“AZELA”).

This Brief has been written entirely by the undersigned members of AZELA

and not by any of the parties or their counsel.

No money has been paid or contributed to anyone for writing or preparing

or submitting this brief and it is solely a pro-bono project of AZELA, a non-profit

corporation.

II. AZELA - It’s Interest and Authority to File

AZELA respectfully files this Amicus Brief pursuant to FRAP Rule 29 and

in support of the Plaintiff-Appellant’s Corrected Opening Brief (“OB”) filed by

Aimee Greene on October 4, 2013, where she appeals the summary judgment

granted against her in the U.S. District Court for Arizona, Hon. Neil V. Wake.

The undersigned are two Board Members of AZLEA. As the AZELA

Amicus Committee we have been authorized by a unanimous vote of the AZELA

Board of Directors to file this brief on its behalf.

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AZELA is an Arizona statewide specialty bar association of lawyers who

represent employees in employment related legal matters. We have over 60

member lawyers. AZELA is the Arizona affiliate of the National Employment

Lawyers’ Association (NELA), a national organization of attorneys dedicated to

representing employees in discrimination, wrongful termination, and a wide variety

of other employment related claims.

AZELA has been granted leave to file amicus briefs before the Arizona

courts in employment related matters. Shotwell v. Donahoe, 207 Ariz. 287, 85 P.

3d 1045 (2009). Beeles v. Offset Separation Corp, Az. Supreme. Ct. No. CV 97-

0016-CQ. Rafique v. Sigma Motors, Inc., Az. Supreme. Ct. No CV 09-0012-PR,

and 2008 WL 5264641 (Ariz. App., December 18, 2008). AZELA also filed an

Amicus letter in R.P. v. Prescott Unified School District, 631 F. 3d 1117 (9th Cir.,

2011), regarding an award of attorney fees.

AZELA (by the undersigned) has read portions of the record, including the

OB and the District Court’s Order granting Summary Judgment (dkt. #92) and the

documents filed in support of and in opposition to the Motion for Summary

Judgment. Neither Arizona Employment Lawyers Association nor the undersigned

lawyers have been paid for filing the AMICUS Brief, nor have Appellant Green’s

lawyers written or reviewed any portion of this brief. We hope that this Brief will

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assist the Court in analyzing and deciding three of the issues raised in this appeal

which frequently arise in employment litigation and are often case dispositive.

III. Three Arguments Presented by Amicus AZELA

Issue 1: Discrimination or pretext may be inferred when an employer (A) deviates from its established procedure for making personnel decisions, and (B) instead uses a promotions list which is the result of a “popularity contest” poll of rank-and-file employees [in support of OB Section III(D)&(E)]

As set forth in the OB, the District Court was presented with evidence that

the Defendant-Appellee-Fire Dept. employer, in denying promotional opportunities

to female Plaintiff-Appellant Greene, (A) deviated from its established procedure

for making personnel decisions, and (B) instead used promotions lists which were

the result of a “popularity contest” poll of rank-and-file employees and which was

totally subjective as opposed to merit based.

A. The Law is Well Established that an Employer’s Deviation from Its Established Personnel Procedures Is Evidence of Discrimination

When an employer fails to follow its own rules, procedures, or customs in

making a significant personnel decision, such failure may be evidence of pretext or

improper motive. Porter v. California Dept. of Corrections, 419 F. 3d 885, 896

(9th Cir., 2005). Garcia v. Allstate Insurance Co., 357 Fed. Appx. 773, 2009 WL

4884539 (9th Cir., 2009). Giacoletto v. Amax Zinc Co., 954 F. 2d 424, 427 (7th

Cir., 1992). Russell v. TG Mo. Corp., 340 F. 3d 735, 746 (8th Cir., 2003). Garrett

v. Hewlett-Packard Co., 305 F. 3d 1210, 1220 (10th Cir., 2002). Bass v. Board of

4

County Commissioners, 256 F. 3d 1095, 1108 (11th Cir., 2001). Paquin v. Federal

National Mortgage Insurance Assn., 119 F. 3d 23, 30 (D.C. Cir., 1997).

B. It is also Well Established that an Employer’s Reliance Upon Subjective Criteria for Significant Personnel Decisions May Be Circumstantial Evidence of Discrimination

In Rowe v. General Motors Corp., 457 F. 2d 348, 359 (5th Cir., 1972), over

fifty years ago, the Fifth Circuit wisely observed that:

“All we do today is recognize that promotion/transfer procedures which depend almost entirely upon the subjective evaluation and favorable recommendation of the immediate foreman are a ready mechanism for discrimination against Blacks much of which can be covertly concealed and, for that matter, not really known to management.” (emphasis added)

This Court, too, has expressed a strong suspicion of the use of subjective

criteria as a mask for unlawful discriminatory personnel decisions in Jauregui v.

City of Glendale, 852 F. 2d 1128, 1135-1136 (9th Cir., 1988):

“[s]ubjective practices may well be a covert means to effectuate intentional discrimination ... but they can also be engendered by a totally benign purpose, or carried on as a matter of routine adherence to past practices whose original purposes are undiscoverable.... If, in fact, the subjective practices are a ‘covert means' to discriminate intentionally, by definition intent will be difficult to prove. Atonio I, 810 F.2d at 1484; accord Atonio II, 827 F.2d at 445 (“[c]ourts recognize that subjective criteria are ready mechanisms for discrimination.”). Thus, this circuit has cautioned “that subjective practices are particularly susceptible to discriminatory abuse and should be closely scrutinized.” Atonio I, 810 F.2d at 1481. This is especially appropriate since Title VII “proscribes not only overt discrimination but also practices that are fair in form, but

5

discriminatory in operation.” Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). Thus, where subjective evaluations are made, if the members of the selection panel could manipulate the criteria and the weighting system in order to eliminate certain candidates, then the selection process could be used for purposes of unlawful discrimination ... [the] contention that the criteria and the weights are chosen prior to identifying the applicants is unavailing if the applicant pool is small enough or if the department supervisor had reason to believe particular individuals would apply. Hung Ping Wang v. Hoffman, 694 F.2d 1146, 1149 (9th Cir.1982).”

See also Bergene v. Salt River Project, 272 F. 3d 1136, 1142 (9th Cir., 2001)

(“Against the background of the other evidence of pretext, the subjective nature of

these criteria provides further circumstantial evidence that SRP denied Bergene the

promotion as a form of retaliation, rather than because of DeGraff's superior

qualifications. (citation omitted)”.)

C. The Fire Dept.’s Deviation from its Established Personnel Promotional Procedures in Combination with Using a Subjectively Based (Popularity) List for its Promotional Decision was Strong Evidence of Discrimination that was Disregarded by the District Court

The District Court’s decision misses the mark. The issue is not whether Fire

Chief Alexander consistently or “inconsistently relied on the hiring lists”. The

issue is whether relying on those lists – instead of on an adopted merit based

procedure to determine promotions – demonstrates evidence of pretext in the

context of this case.

AZELA is very concerned about any employer being allowed to use

popularity as a method for determining who is to be hired or promoted. History

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demonstrates why popularity should not ever be a proper factor. The civil rights

laws were not at all popular in the south as they were adopted and implemented in

the 1960’s and ‘70s. It is safe to say that no person of color would have ever won

a popular vote among white employees to get put on a hiring or promotion list in

the south in those days.

In today’s employment market, it would be highly unlikely that a bearded

Muslim wearing a turban and traditional dress would ever be placed high on any

promotion eligibility list made by popular vote either.

In Buckeye Valley, Arizona, where the record on appeal includes substantial

evidence of an anti-female bias among the firefighters, the same concern is readily

apparent. Quite simply, hiring decisions should be made on merit, and the use of a

popular vote for such decisions - especially in the context of the anti-female

firefighter climate in Buckeye, Arizona – is a perfect means of perpetuating anti-

female bias in employment and promotions.

AZELA urges this Court to re-affirm and apply these Rules, sub sections A

and B supra, that an employer’s failure to follow its own policies is, indeed,

evidence of discriminatory intent, especially when coupled with the use of

subjective criteria (as opposed to objective merit-related criteria) in making

employment decisions. These Rules are particularly applicable to an anti-female

co-worker environment such as the rural Fire Dept. in the instant case.

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Issue 2: Imputed Discriminatory Intent; “Cat’s Paw Evidence” was Ignored

Argument: Even if there is no direct evidence of discriminatory intent on the part of the decision makers with respect to granting promotions, there was strong evidence that some of the information they relied upon and based their decisions upon came from biased subordinates. [OB section III (B)(ii)]

A. The Problem/Issue

The Arizona Employment Lawyers Association strongly disagrees with the

District Court’s order granting the Appellee Buckeye Valley Fire Dept. employer’s

motion for summary judgment because it (1) ignored substantial evidence that the

decision makers (the Fire Chief and Assistant Fire Chief) based their decisions not

to promote Greene, who was supremely well qualified, upon the input of other

firefighters who had openly expressed gender based hostility against Greene, and

(2) presumed (without any factual basis) that such decision makers disregarded

such biased input in passing over Greene multiple times for promotions.

This appeal is a perfect example of how employers try to escape liability for

actions they take where the employee may not be able to prove actual bias on the

part of the ultimate decision maker, but where the decision has been based upon

information, input or influence from others shown to have expressed bias towards

the plaintiff. This is especially true in situations like the instant appeal, where the

Fire Chief and Assistant Chief either knew, or should have known, of the bias

8

among the rank and file firefighters against having female firefighters within their

almost all male ranks.

B. Undisputed Material Facts

The District Court did make the following findings which are not in dispute:

1. The preference lists used for promotions to firefighter

included “the union score that reflected the input of firefighters” and battalion

chief’s scores “which reflected the input of captains.” (ER 1:22; see also id. at 3

(“BVFD Fire Chief and Assistant Fire Chief shared responsibly for the ultimate

decision regarding hiring and promoting in the department, informed by preference

lists and input from other members of the department”). OB at pg. 35.

2. Promotional decisions to captain included “input from

the local union” or full-time firefighters. (ER 1:24 & 9; see also ER 3: 993.) OB

at pg. 36.

C. District Court Findings Where Facts Were in Dispute

Apparently, Appellant Greene was unable to provide any direct evidence

that the Fire Chief and Assistant Fire Chief had a gender bias against her.

However, the District Court ignored evidence that these two decision makers were

influenced by subordinates who were biased. Specifically, the District Court erred

in:

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1. Finding Plaintiff has not “presented any evidence

connecting that [discriminatory] mistreatment to her employers at BVFD

responsible for the hiring and promotion decisions” (ER 1:20), but ignoring its

own contradictory finding that hiring decisions were made based on input from the

same full-time firefighters, captains and battalion chiefs who made discriminatory

statements from which a jury could find evidence of gender bias. (See ER 1:3, 9,

18, 22, 24 & 29.) OB at pg. 31.

2. Ignoring evidence showing gender stereotypes and bias

of the male dominated workforce infected the Department’s. purely subjective

“preference lists.” (See ER 2:513-14 at ¶¶125-134;.) OB at pg. 32.

3. Inferring Chief Alexander was motivated by “a

commitment to a fair hiring process” (ER 1:22) while ignoring contrary evidence

that the promotional process was subjective, “unfair,” nothing but a “popularity

contest,” and inconsistent with BVFD policy. (See ER 3:762 at p.42; ER 3:621 at

p.29.) OB at pg. 32.

4. Ignoring evidence that Chief Alexander relied upon

input from the same firefighters, captains and battalion chiefs who had bullied

Greene and other females and regularly made sexist comments. [See ER 2:513-16

at ¶¶125-152 (derogatory and sexist comments and practices).] OB at pg. 33.

D. The District Court Failed to Apply Two Controlling Supreme Court Precedents and Ninth Circuit Precedent

In granting summary judgment against Greene, and ignoring or discounting

her evidence that (1) the promotion list rankings were, to a significant degree the

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result of input from biased employees, and that (2) the subsequent reliance upon

that list and its rankings would result in decisions by the Chief and Assistant Chief

that were tainted by bias, the District Court failed to apply the rulings of two recent

U.S. Supreme Court decisions regarding the importance of such “cat’s paw” or

imputed discriminatory intent, Staub v. Proctor Hospital, ___U.S.___, 131 S.Ct.

1186, 179 L.Ed.2d 144 (2011), and Vance v. Ball State University, ___U.S.___,

133 S.Ct. 2434, 186 L.Ed.2d 565 (2013).

In Staub v. Proctor Hospital, supra, the Supreme Court stated:

Animus and responsibility for the adverse action can both be attributed to the earlier agent (here, Staub's supervisors) if the adverse action is the intended consequence of that agent's discriminatory conduct. So long as the agent intends, for discriminatory reasons, that the adverse action occur, he has the scienter required to be liable under USERRA. And it is axiomatic under tort law that the exercise of judgment by the decision maker does not prevent the earlier agent's action (and hence the earlier agent's discriminatory animus) from being the proximate cause of the harm. Proximate cause requires only “some direct relation between the injury asserted and the injurious conduct alleged,” and excludes only those “link[s] that are too remote, purely contingent, or indirect.” Hemi Group, LLC v. City of New York, 559 U.S. 1, ––––, 130 S.Ct. 983, 989, 175 L.Ed.2d 943 (2010) (internal quotation marks omitted).FN2 We do not think that the ultimate decisionmaker’s exercise of judgment automatically renders the link to the supervisor's bias “remote” or “purely contingent.” The decisionmaker’s exercise of judgment is also a proximate cause of the employment decision, but it is common for injuries to have multiple proximate causes. See Sosa v. Alvarez–Machain, 542 U.S. 692, 704, 124 S.Ct. 2739,

11

159 L.Ed.2d 718 (2004). Nor can the ultimate decisionmaker’s judgment be deemed a superseding cause of the harm. A cause can be thought “superseding” only if it is a “cause of independent origin that was not foreseeable.” Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 837, 116 S.Ct. 1813, 135 L.Ed.2d 113 (1996) (internal quotation marks omitted).

131 S.Ct. at 1192.

In Vance, supra, the Supreme Court said:

Finally, petitioner argues that tying supervisor status to the authority to take tangible employment actions will encourage employers to attempt to insulate themselves from liability for workplace harassment by empowering only a handful of individuals to take tangible employment actions. But a broad definition of “supervisor” is not necessary to guard against this concern.

As an initial matter, an employer will always be liable when its negligence leads to the creation or continuation of a hostile work environment. And even if an employer concentrates all decisionmaking authority in a few individuals, it likely will not isolate itself from heightened liability under Faragher and Ellerth. If an employer does attempt to confine decisionmaking power to a small number of individuals, those individuals will have a limited ability to exercise independent discretion when making decisions and will likely rely on other workers who actually interact with the affected employee. Cf. Rhodes v. Illinois Dept. of Transp., 359 F.3d 498, 509 (C.A.7 2004) (Rovner, J., concurring in part and concurring in judgment) (“Although they did not have the power to take formal employment actions vis-à-vis [the victim], [the harassers] necessarily must have had substantial input into those decisions, as they would have been the people most familiar with her work—certainly more familiar with it than the off-site Department Administrative Services Manager”). Under those

12

circumstances, the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies. See Ellerth, 524 U.S., at 762, 118 S.Ct. 2257.

133 S.Ct. at 2452.

In Dominguez-Curry v. Nevada Dept. of Transportation, 424 F. 3d 1027,

1039-1040 (9th Cir., 2005), this Court said:

Where, as here, the person who exhibited discriminatory animus influenced or participated in the decisionmaking process, a reasonable factfinder could conclude that the animus affected the employment decision. Mondero v. Salt River Project, 400 F.3d 1207, 1213 (9th Cir.2005) (“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.”). Thus, contrary to the district court's conclusion, evidence of Stacey's discriminatory remarks is sufficient to permit a jury to find that animus affected the ultimate hiring decision, even if Stacey never communicated his bias to Elicegui and even if Elicegui himself was not biased against women. See Lam v. Univ. of Hawai‘i, 40 F.3d 1551, 1560 (9th Cir.1994) (noting that the university hiring process is “not insulated from the illegitimate biases of faculty members” and that among a group of fifteen decisionmakers, “even a single person's biases may be relatively influential”).

The District Court failed to apply the rules set forth in Staub, Vance, and

Dominguez-Curry, supra, by not considering the evidence that the Chief and

Assistant Chief relied upon the promotional list rankings in deciding who to

promote, when those rankings were compiled by input from a number of persons

13

who had expressed hostility to Greene and demonstrated an anti-female bias in an

overwhelmingly male dominated Fire Dept.

Further, the District Court ignored the strong circumstantial evidence that

such anti-female firefighter bias existed and thus would be reflected in a promotion

list compiled by input from the firefighters, given the fact that there were only four

full-time female firefighters out of 152, with none ever reaching the rank of

captain. OB at pg. 8-9.

Finally, in Rowe v. General Motors Corp., 457 F. 2d 348, 359 (5th Cir.,

1972), over fifty years ago, the Fifth Circuit wisely observed that:

All we do today is recognize that promotion/transfer procedures which depend almost entirely upon the subjective evaluation and favorable recommendation of the immediate foreman are a ready mechanism for discrimination against Blacks much of which can be covertly concealed and, for that matter, not really known to management. (emphasis added)

E. Conclusion & Rationale

By not applying the rules of Staub, Vance, and Dominguez-Curry, supra, the

District Court has erroneously deprived Greene of her right to have the jury

determine whether or not gender bias infected the promotion list rankings and thus

the promotion decisions. Furthermore, the District Court decision, if allowed to

stand, would alleviate employers of their duty to take reasonable steps to assure

14

that their decision making processes are not infected with unlawful bias. Rowe,

supra.

Issue 3: Summary Judgment Should be Rare in Employment Discrimination Claims [OB section III(B)]

A. The District Court Weighed Evidence in Granting Summary Judgment

The District Court below (and as observed by AZELA members, other

District Courts as well), in its comments and conclusions about some of the facts

presented by the parties has “weighed” the evidence, ignoring the clear mandates

of this Court set forth in, inter alia Chuang v. University of California, Davis, 225

F. 3d 1115, 1124 (9th Cir., 2000):

As a general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer's motion for summary judgment. This is because “the ultimate question is one that can only be resolved through a searching inquiry—one that is most appropriately conducted by a factfinder, upon a full record.” Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir.1996) (citations and internal quotation marks omitted). Here, contrary to Federal Rule of Civil Procedure 56, the district court did not evaluate the facts in the light most favorable to the Chuangs, but instead resolved material facts that were disputed and disregarded other important evidence.

As Chief Justice Rehnquist cautioned in his dissent “A right so fundamental

and sacred to the citizen. . . should be jealously guarded.” Park Lane Hosiery Co.

Inc. v. Shore, 439 U.S. 322, 343-344 (1979).

The gradual and continuing erosion of the factfinder’s role in federal employment discrimination cases and its replacement by an increasing use of summary judgment through which the courts make pretrial

15

determinations formerly reserved for the factfinder at trial. This . . . transfers power from juries to judges, but also substantially undermines the efficacy of the nation’s laws against discrimination.” As cited from Hon. Mark W. Bennett in Essay: From the “No Spittin’, No Cussin’ and No Summary Judgment” Days of Employment Discrimination Litigation to the “Defendant’s Summary Judgment Affirmed Without Comment” Days: One Judge’s Four-Decade Perspective, 57 N.Y. L. Sch. Rev. (2012-2013), pages 698, 699.

Federal Rules of Civil Procedure (FRCP) 56(a) states:

. . . the Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact . . . (emphasis added).

Summary judgment denies a party of his/her rights to a jury trial, and

therefore should be decided upon the presentation all of the material evidence. The

jury reflects the common sense of the community. Park Lane, supra at 343-344.

And while one action may not appear discriminatory to a judge, certainly a jury has

a right to make all inferences on the evidence presented to it.

One inference that could and should have been drawn from the litany of

facts concerning the failures to promote Ms. Greene is that there cannot be so

many changes in policy, so many opportunities to promote such a well-qualified

individual, so much harassment and dislike of her individually, without permitting

the rational inference of unlawful employment discrimination.

Hon. Patricia M. Wald, then Chief Judge in the D.C. Circuit, warned in 1998

that there was a real danger of summary judgment being stretched far beyond its

original intended or proper limits. Summary Judgment at 60, 76 Tex..L.Rev.1897,

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1941 (1998). Judge Bennett warned in 2000 in his dissent in Kampouris v. St.

Louis Symphony Soc’y, 2010 F.3d 845, 850 (8th Cir., 2000) (Bennett, J. sitting by

designation dissenting), quoting Jacob v. City of New York, 315 U.S. 752, 752

(1942):

The federal courts’ daily ritual of trial courts grants and appellate courts affirmances of summary judgment in employment discrimination cases . . . raises the ominous specter of serious erosion of the ‘fundamental and sacred’ right of trial by jury.

Professor Arthur R. Miller was right when he suggested that summary

judgment diminishes the right to trial by jury and that at the least Rule 56

discretion should be closely scrutinized and constricted as it removes “the safety

valve of an opportunity to present ones case in a complete and live format in

absence in the pretrial context.” Arthur R. Miller, The Pretrial Rush to Judgment:

Are the “Litigation Explosion,” “Liability Crisis,” and Efficiency Cliches Eroding

Our day in Court and Jury Trial Commitments?, 78 N.Y.U.L.Rev. 982, 1041

(2003) at 1133. Jury trials, in these matters, may save time, money and judicial

resources preventing exhaustive amounts of time and research and blockages in the

courts. From “No Summary Judgment” to “Affirmed Without Comment”, supra, at

286.

Professor Stone opines that the continued use of shortcuts largely confined

to employment discrimination is impacting the judiciary:

17

An obvious response is the courts and specifically judges, may harbor an increased skepticism and perhaps even hostility towards plaintiffs alleging employment discrimination. Certainly scholars have posited as much. It is important to ask why this would be the case. (Emphasis added).

Kerri Lynn Stone, Shortcuts in Employment Discrimination Law, 56 St. Louis U.L.J. 111, 159 (2011).

The prejudice and bias of judges working with employment cases has been

recognized by the commentators. Employment discrimination plaintiffs have

always done substantially worse in bench trials than in jury trials. While

employment discrimination plaintiffs win less than 1 in 5 of the trials before

judges, other plaintiffs win a little over 45% of those bench trials. Clement and

Schwab, Scott A. Moss, Reluctant Judicial Fact Finding: When Minimalism and

Judicial Modesty Go Too Far, 32 Seattle U.L.Rev. 549, 565 (2009) Note 1, Note 2,

Note 3.

This empirical evidence predates the cognitive research into implied bias in

courts. This empirical evidence makes it even more important that courts limit

summary judgment for defendants in employment discrimination cases to those in

which the plaintiff has a complete lack of admissible direct or circumstantial

evidence to prove a crucial element of his or her burden of proof. Studies have

shown that juries weigh the evidence to plaintiffs in discrimination matters much

more favorably than do individual judges even after trial:

“The most significant observation about the district courts” adjudication of employment discrimination cases is the long-run lack

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of success for these plaintiffs relative to other plaintiffs.” From 1979 to 2006, “the plaintiff win rate for job cases (15%) was lower than for non-job cases (51%).” Employment discrimination plaintiffs fare even worse on appeal! Federal appeals courts “reverse plaintiffs’ wins below far more often than defendants’ wins below.” A plaintiff who wins at trial has “a chance of retaining [the] victory that cannot meaningfully be distinguished from a coin flip.” In contrast, a defendant who wins at trial “can be assured of retaining that victory” on appeal. The Cornell Law professors reach a very disturbing conclusion: “In this surprising plaintiff/defendant difference in the federal courts of appeals, we have unearthed an anti-plaintiff effect that is troublesome.”(Citing from Kevin M. Clermont & Stewart J. Schwab, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worst?, 3 Harv. L. & Poly Rev. 103, 127 (2009). As cited from Hon. Mark W. Bennett From“No Summary Judgment” To “Affirmed Without Comment,” supra.).

B. Burdens of Proof for a Discrimination Plaintiff Are on their Face Questions of Fact for a Jury

Each time a judge decides whether or not discriminatory action is “severe or

pervasive,” he or she makes a finding of fact and weighs credibility. But judges

should not be deciding the credibility of witnesses, especially when based upon

carefully crafted language, alleged undisputed facts, and affidavits written by

lawyers.

Summary judgment does not allow the testimony of witnesses to be heard or

weighed by the finder of fact. It does not allow the overt and implied biases of a

jury reviewing facts, weighing facts, and deciding on credibility. Here, the Court

recites that the Plaintiff has no direct evidence of any animus of the three decision

19

makers. With all due respect, the Court has never seen the decision makers testify,

seen them cross examined, seen their attitudes, emphasis, or carriage.

In cases like this, where decisions regarding whether or not Ms. Greene

engaged in protected activity by going to her superiors in a social situation and

telling them that she was having sex discrimination problems was protected

activity needs to be left to the trier of fact.

In this appeal, the District Court decided that the physical harassment of Ms.

Greene was not based on her gender but on an assumption of the truth of a rumor

that she had lied to a third party about taking the captain’s test. The fact that a

woman is subjected to repeated physical tests and harassment while being observed

and jeered by her male colleagues and forced to repeat the physical exercises over

and over again is a situation in which a jury could decide was discrimination per se

and a hostile working environment based on her sex, and also protected activity.

The facts as recited by the Court do not suggest that there was a comparator male

firefighter who was subjected to the same kind of physical harassment and

repeated taunting.

C. The District Court Finding that a Plaintiff’s Own Self-Serving Testimony is Sufficient to Prove a Disputed fact was Legally Incorrect

In its order granting summary judgment, the District Court stated that “. . .

where the only evidence presented is uncorroborated and self-serving testimony,

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such evidence from such person is insufficient to establish a material fact.” Dist.

Ct. dkt. #92, at pg. 2, lines 10-13, and pg. 28, lines 9-20.

The decision that testimony is “uncorroborated” or “self-serving” and

therefore not evidence was legally incorrect. Testimony under oath at trial which is

uncorroborated and self-serving is absolutely admissible, relied upon, and could be

believed by the trier of fact, and sufficient standing alone to support a verdict. A

plaintiff’s own declaration of a specific fact which they have the foundation to

testify to is sufficient to establish admissible evidence sufficient to preclude an

employer’s motion for summary judgment on that issue, and should not be

disregard or discounted just because it may seem “self-serving”. Lyons v. England,

307 F. 3d 1092, 1115 (headnote 45) (9th Cir., 2002). Kale v. Combined Ins. Co. of

America, 861 F. 2d 746, 760 (1st Cir., 1988). Hill v. Tangherlini, 724 F. 3d 965,

967-968 (7th Cir., 2013). MacDonald v. Eastern Wyoming Mental Health Center,

941 F. 2d 1115, 1121 (10th Cir., 1991). Federal Rules of Evidence (FRE), Rule

602, requires a witness have personal knowledge, which can be proved by the

witness’s own testimony.

The truth may be self-serving. The Courts repeatedly accept the self-

serving, lawyer drafted affidavits of parties and witnesses, deposition testimony,

affidavits, responses to interrogatories, and other written statements which by their

nature are self-serving. Hill v. Tangherlini, supra. Those of the Plaintiff should be

21

not be “weighed”, just as those of the Defendant are not weighed for reliability or

credibility.

D. Why Summary Judgment Should be the Exception, not the Rule, in Employment Cases Where the Employer’s Intent is the Disputed Issue

When a federal judge makes a decision that an employment decision was not

based on sex because there was an alternative explanation presented, without the

benefit of hearing or observing any live witness under oath subject to cross-

examination, the judge has weighed the facts, made inferences, and may have

wrongly accepted an employer’s post hoc rationalization. That is exactly what

happened in this case.

The D.C. Circuit, relying on Supreme Court precedent, has put forth a more

useful and just analysis for resolving employment discrimination employer

motions for summary judgment in Brady v. Office of Sergeant at Arms, 520 F.3d

490, 494 (D.C. Cir., 2008):

“Has the employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual reason . . . “

Former and current District Court judges and legal scholars have been

frequently commenting that summary judgment is inappropriate in most

employment discrimination cases, and it’s current overuse has resulted in skewed

law, meritorious claims never getting their “day in court”, and plaintiff’s appeals

22

that should not have been necessary.. See, e.g., Nancy Gertner, “Losers Rules,”

122 Yale L.J. Online 109 (October 16, 2012); and Hon. Mark W. Bennett; From

“No Summary Judgment” to “Affirmed Without Comment,” supra.

IV. Conclusion:

AzELA not only suggests reversal, but also urges the adoption of clear

standards that will benefit courts and parties dealing with employment cases.

V. Certificate of Compliance

Pursuant to FRAP Rules 29(c)7 and 32(a)7:

I certify that this brief complies with the length limits set forth in Ninth

Circuit Rule 32-4. The brief’s type size and type font comply with FRAP Rule

32(a)5 and (6).

Respectfully submitted this 8th day of October, 2013.

s/Kraig J. Marton Kraig J. Marton, Esq. (State Bar of AZ 003816 (AZELA Board Member) Jaburg & Wilk, P.C. 3200 North Central Avenue, Suite 2000 Phoenix, AZ 85012 Phone: (602) 248-1000 E-mail: kjm@jaburgwilk.com s/Cheri L. McCracken Cheri L. McCracken, Esq., State Bar of AZ 006111 (AZELA Board Member) 2402 North 24th Street Phoenix, AZ 85008-1804 Phone: (602) 231-0595 E-mail: cherimccracken@gmail.com

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing Amicus Brief with

the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit

by using the appellate CM/ECF system on October 8, 2013.

I certify that all participants in the case are registered CM/ECF users and

that services will be accomplished by the appellate CM/ECF system.

By Kim M. Rogers_____ Legal Assistant to Kraig J. Marton

***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing.

United States Court of Appeals for the Ninth Circuit

Notice of Docket Activity

The following transaction was entered on 10/08/2013 at 4:11:20 PM PDT and filed on 10/08/2013

Case Name: Aimee Greene v. Buckeye Valley Fire Department, et alCase Number: 13-16102Document(s): Document(s)

Docket Text:Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by Arizona Employment Lawyers Association. Date of service: 10/08/2013. [8814359] (KJM)

Notice will be electronically mailed to:

Susan Joan Martin, AttorneyJennifer KrollMr. Daniel L. Bonnett, AttorneyMr. Milton W. Hathaway, Jr.Mr. Mark Bracken, AttorneyMie LewisMr. Kraig J. Marton, Attorney

The following document(s) are associated with this transaction:Document Description: Main DocumentOriginal Filename: AMICUS BRIEF Greene v. BVFD.pdfElectronic Document Stamp:[STAMP acecfStamp_ID=1106763461 [Date=10/08/2013] [FileNumber=8814359-0] [7de48689591af42075898fdf6607e90309dc4425e0bfae62084888ef80be786a68628d5c0572bac2d131bd4e79f618a020d51c5c1453053f842802acbac0b9cc]]

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