UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ADRIENNE C. CORTI,
Plaintiff-Appellant,

v.                                                                          No. 99-1320

STORAGE TECHNOLOGY CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Walter E. Black, Jr., Senior District Judge.
(CA-97-608-B)

Submitted: August 31, 1999

Decided: October 28, 1999

Before ERVIN,* NIEMEYER, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Patricia A. Smith, Alexandria, Virginia, for Appellant. Stephen M.
Silvestri, Gina S. Lindekugel, MILES & STOCKBRIDGE, P.C., Bal-
timore, Maryland, for Appellee.
_________________________________________________________________

*Judge Ervin was assigned to the panel in this case but died prior to
the time the decision was filed. The decision is filed by a quorum of the
panel pursuant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Adrienne Corti appeals the district court's order awarding summary
judgment to Appellee Storage Technology Corporation ("Storage-
Tek") on Corti's claim of gender based employment discrimination
brought pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C.A. §§ 2000e - 2000e-17 (West 1994 & Supp. 1999). Corti
claims that the district court applied the wrong standard under the
familiar McDonnell Douglas burden-shifting framework, and that
summary judgment was improper because she produced sufficient
evidence of pretext to place a material fact in dispute. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). We agree.

Corti first claims that the district court erred in its determination
that her case was controlled by the precepts of Duke v. Uniroyal Inc.,
928 F.2d 1413 (4th Cir. 1991). In Duke we applied a variation of the
McDonnell Douglas standard to a reduction in force (RIF) case
because of the difficulty of determining whether the plaintiff was
replaced by an individual outside of the protected class. See Duke,
928 F.2d at 1417. In contrast, it is undisputed that Corti was replaced
by Curtis Mikkelsen, a male. Accordingly, application of the RIF
standard was incorrect. See Tuck v. Henkel Corp. , 973 F.2d 371, 375
(4th Cir. 1992).

Turning to the district court's ultimate award of summary judg-
ment, we find that Corti adduced sufficiently probative and admissi-
ble evidence regarding pretext to place the matter before a jury. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (stating
that credibility determinations and weighing of the evidence are jury
functions and not those of a judge). Although much of Corti's evi-
dence consisted of third party statements made to current and former
employees of StorageTek, such statements are likely admissible, see
FED. R. EVID. 801(d)(2), and are probative as to Corti's claim.

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Corti produced deposition testimony from several current and for-
mer employees of StorageTek that raises a specter of improper dis-
crimination within the company's sales division. Nancy Stachecki,
another member of the sales force, filed a complaint with Storage-
Tek's human resources department in 1994 alleging disparate treat-
ment by her supervisor, Edward Hartman. Hartman also supervised
Corti. Stachecki claims that she decided to leave the company when
it became clear to her that she was not going to receive any assistance
on her claim from her superiors or the human resources department.

Lisa Phillips, who also worked with Hartman, indicated in her
deposition testimony that she felt "pushed out" by Hartman, and that
he reassigned her sales accounts to men in the office that demon-
strated more "malelike behavior." (Joint Appendix ("J.A.") at 818,
837-38, 845). Phillips also claimed that Hartman had a "buddy buddy
relationship" with men on the sales force, but was closed to input by
Corti. (J.A. at 821).

Marvis Ross testified in her deposition that she was initially hired
to work with the StorageTek sales force in 1994 but was later told that
her supervisor was not comfortable working with women. Accord-
ingly she was reassigned to work with Hartman. Similar to other
women who worked with Hartman, Ross complained that she was
overlooked. Ross testified that she left the company because she per-
ceived that there was little possibility for advancement of women and
minorities within StorageTek's ranks.

Cathy Yost worked in the StorageTek sales force from 1982 to
1997. Yost testified that StorageTek fostered a"boys club" atmo-
sphere and that all of Corti's male supervisors and peers were part of
the club. In addition to stating that members of StorageTek's manage-
ment talked down to women in general, Yost claimed that she had
been subjected to unwanted sexual harassment by Curt Mikkelsen,
another of Corti's supervisors, and that his unwanted behavior contin-
ued after she reported it.

In addition to the individual statements by current and former
employees at StorageTek, Corti produced evidence that the company
had a history of failing to hire and retain women and other minorities
in its sales force. Kathryn Madaleno, StorageTek's former human

                    3
resources manager, testified in her deposition that an audit of Storage-
Tek by the Office of Federal Contracts Compliance in 1991 revealed
inadequate employment of women and other minorities within the
company. As part of a conciliation agreement with the government,
StorageTek voluntarily reported on its efforts to employ minorities.
During the voluntary reporting period, Corti, and several other
women were hired into StorageTek's sales force. However, within
two years of the reporting requirement's termination, all of the
women except Corti had left StorageTek.

Beyond the general and specific evidence of discrimination within
StorageTek, we also find that Corti proferred substantive evidence
that cast doubt upon the validity of StorageTek's evaluation process.
Although StorageTek's employee evaluations have the appearance of
objectivity in that each of the five sections of the evaluations are
numerically ranked, four of the five sections were based on the sub-
jective input of Mikkelsen and Hartman. Corti produced evidence
questioning the partiality of both Mikkelsen and Hartman. Further-
more, in the one section of the evaluation that was purely objective
and quantifiable, the section relating to sales quota, Corti consistently
was ranked number one amongst her peers. Indeed, at the time Corti
was demoted, her superiors knew that she was the most profitable
financial service manager for StorageTek nationwide. Although
StorageTek may base its decisions to demote Corti on a myriad num-
ber of factors beyond her quantifiable financial results, a specter of
discrimination is implicit when a company chooses to substantially
ignore profitability in its decision making regarding its sales force.

StorageTek's evaluation process is also subject to enhanced scru-
tiny because of the lack of evidence produced by StorageTek to sug-
gest that the process employed here was part of the company's
standard practice. Although the company had undergone several reor-
ganizations in recent history with associated reductions in force, it
failed to produce any evidence to show that the selection process used
to demote Corti had been applied previously.

We believe that these facts are sufficient to raise a dispute most
appropriately resolved by a jury as the ultimate finder of fact. Accord-
ingly, we hold that summary judgment was premature.

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Finally, Corti has filed a motion asking this court to rule on the
ongoing validity of a stipulated protective order concerning the confi-
dentiality of discovery materials. The parties stipulated to the order
sealing discovery materials before the district court, and the stipula-
tion provides for resolution of disputes by that court. Therefore, we
deny the motion to unseal without prejudice.

We vacate the district court's grant of summary judgment and
remand for further proceedings. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

VACATED AND REMANDED

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