                                                                           FILED
                           NOT FOR PUBLICATION                             DEC 24 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


AIMEE LESPRON and STACEY SMITH,                  No. 12-15333

              Plaintiffs - Appellants,           D.C. No. 2:10-cv-01760-NVW

  v.
                                                 MEMORANDUM*
TUTOR TIME LEARNING CENTER,
LLC, a Michigan limited liability
company; et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                      Neil V. Wake, District Judge, Presiding

                     Argued and Submitted December 6, 2013
                            San Francisco, California

Before: GOULD and PAEZ, Circuit Judges, and BURNS, District Judge.**


       Plaintiffs Aimee Lespron and Stacey Smith appeal the district court’s order

granting summary judgment in favor of Tutor Time Learning Center, LLC and

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Larry A. Burns, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
Learning Care Group, LLC on their Title VII and Arizona Civil Rights Act claims.

We reverse.

      Establishing a prima facie case of pregnancy discrimination requires

showing that employees who were treated more favorably than Plaintiffs were

“similar ‘in all material respects.’” Nicholson v. Hyannis Air Serv., Inc., 580 F.3d

1116, 1125 (9th Cir. 2009) (quoting Moran v. Selig, 447 F.3d 748, 755 (9th Cir.

2006)). However, at the summary judgment stage, “‘[t]he requisite degree of proof

necessary to establish a prima facie case . . . is minimal and does not even need to

rise to the level of a preponderance of the evidence.’” Aragon v. Republic Silver

State Disposal, Inc., 292 F.3d 654, 659 (9th Cir. 2002) (alteration in original)

(quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)). We have

carefully reviewed the evidence in the record, and we conclude that Plaintiffs have

met this minimal burden.

      The critical issue in this case is whether Plaintiffs have raised a triable issue

of fact as to whether Defendants’ legitimate, nondiscriminatory reasons for

reducing Plaintiffs’ hours are merely a pretext for discrimination. Evidence that a

defendant’s proffered reasons are not its true reasons, together with the evidence in

support of a plaintiff’s prima facie case, permits, but does not compel, a conclusion

that a defendant’s actions were motivated by discrimination. Reeves v. Sanderson


                                       Page -2-
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502, 511 (1993). However, once a plaintiff raises a genuine issue of

material fact about the veracity of a defendant’s proffered explanation, summary

judgment is inappropriate; the question of whether the “real reason” for the action

was discrimination is a question for the factfinder. Noyes v. Kelly Servs., 488 F.3d

1163, 1170-72 (9th Cir. 2007); Washington v. Garrett, 10 F.3d 1421, 1433 (9th

Cir. 1993).

      Defendants represent that they needed to reduce hours because of declining

enrollment at the Queen Creek facility and they determined whose hours to reduce

based on employees’ availability, flexibility, and attendance. Although these

explanations are consistent and not evidence of pretext, there are additional facts in

this case that cast doubt on the veracity of Defendants’ proffered explanations. In

Defendants’ position statements to the Equal Employment Opportunity

Commission and the Arizona Civil Rights Division, Defendants never once

mentioned Plaintiffs’ attendance problems as the reason for a reduction in their

hours, nor did they mention the declining enrollment. In fact, Defendants denied

that Lespron’s hours were reduced, represented that Smith requested a reduction in

hours, and claimed that the shifts worked by newly-hired employees were shifts

Smith could not work. Defendants at one point also claimed that Smith was not


                                       Page -3-
allowed to be left alone in a particular classroom per the request of a parent. In

response, Plaintiffs produced evidence that seriously questions the veracity of these

assertions. Although Defendants attempt to explain away these various statements,

a factfinder is free to accept or reject Defendants’ explanations. At the summary

judgment stage, however, the fact that Defendants have offered shifting and

questionable explanations for their actions precludes a grant of summary judgment.

See Reeves, 530 U.S. at 147; Payne v. Norwest Corp., 113 F.3d 1079, 1080 (9th

Cir. 1997).

      For the above reasons, we reverse the district court’s grant of summary

judgment to Defendants, and remand for further proceedings consistent with this

disposition.

      REVERSED AND REMANDED.




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