• Dean Royer

Sex discrimination evidence

Enough evidence of sex discrimination?

Last month, the Ninth Circuit Court of Appeals decided whether an employee had enough evidence of sex discrimination to go to trial. In Mayes v. WinCo Holdings, Inc. (9th Cir. 2017) 846 F.3d 1274, Ms. Mayes challenged her termination under the federal employment discrimination law, Title VII.

In this case, Ms. Mayes worked for WinCo, a grocery store. During her final years at WinCo, Ms. Mayes supervised employees on the night-shift freight crew. In 2011, WinCo terminated Ms. Mayes, allegedly for taking a stale cake from the store bakery to the break room to share with fellow employees and telling a loss prevention investigator that management had given her permission to do so. WinCo claimed these actions were theft and dishonesty. WinCo replaced Ms. Mayes with a male who had only one month of freight crew experience and no supervisory experience at WinCo.

After Ms. Mayes sued WinCo for sex discrimination, WinCo moved the trial court to dismiss the case (summary judgment). The court granted the motion on grounds Ms. Mayes did not have evidence to dispute WinCo’s alleged reason for terminating her.

On appeal, the Ninth Circuit began with a review of the standard for disputing an employer’s reason for a termination (pretext). An employee can prove pretext either directly by showing that unlawful discrimination more likely motivated the employer, or indirectly by showing that the employer’s explanation is unworthy of credence because it is internally inconsistent or otherwise not believable.

Most cases do not include direct evidence. But the appellate court found that Ms. Mayes had multiple examples of direct evidence of sex discrimination: the general manager of the store made the alleged comments that (1) a man “would be better” to lead the safety committee instead of Ms. Mayes; (2) she did not like “a girl” (Ms. Mayes) running the freight crew; and (3) criticized Ms. Mayes, but not a male co-worker, for leaving work early to care for her children. These comments directly concerned Ms. Mayes and the decision-making process for retaining and promoting employees.

WinCo contended that this evidence was not relevant because the general manager did not terminate Ms. Mayes. The Ninth Circuit disagreed because there was evidence suggesting the contrary: WinCo admitted in writing (interrogatory) that the general manager was involved in the termination, the general manager testified in an unemployment benefits hearing that she was involved, and the general manager testified that she was in contact with the person who notified Ms. Mayes that she was terminated. Furthermore, the general manager admitted that she contacted loss prevention after reviewing a video-recording of Ms. Mayes taking the stale cake. Finally, no one at WinCo admitted to making the termination decision. Taken as a whole, the evidence supported an inference that the general manager’s bias influenced or contributed to the termination decision.

WinCo also asserted that the general manager’s comments were “stray remarks” that could not establish discrimination. But the court of appeals concluded that a reasonable jury could decide that the general manager’s comments demonstrated her overt hostility to having women in leadership roles. The Ninth Circuit also reaffirmed precedent that the decision-maker may engage in unlawful discrimination, even when she is the same sex as the employee.

Although there was enough direct evidence for Ms. Mayes to go to trial, the Ninth Circuit also reviewed the circumstantial evidence. Multiple employees testified that it was a common, accepted practice—rather than an offense punished by termination—for supervisors like Ms. Mayes to take cakes to the break room. Also, WinCo replaced Ms. Mayes with a less qualified male. This evidence was sufficient to establish pretext circumstantially.

Based on the direct and circumstantial evidence, the appellate court reversed the trial court’s dismissal of the case.

#Discrimination #Evidence

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