                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAR 31 2010

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

AMY COBURN,                                      No. 09-15837

             Plaintiff - Appellant,              D.C. No. 2:07-cv-00662-KJD-LRL

  v.
                                                 MEMORANDUM *
PN II, INC., doing business as Pulte
Homes; PULTE HOME CORPORATION;
PULTE HOMES, INC.,

             Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Kent J. Dawson, District Judge, Presiding

                      Argued and Submitted March 10, 2010
                           San Francisco, California

Before: HUG, REINHARDT and BYBEE, Circuit Judges.

       Plaintiff-Appellant Amy Coburn was Area Vice President for Product

Development for Defendant-Appellee PN II, Inc., the Nevada Area operations of

Pulte Homes, Inc., a Michigan homebuilding corporation (collectively, “Pulte”).



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
After Coburn was terminated, she sued Pulte for: (1) unlawful sex discrimination

under 42 U.S.C. § 2000e-2(a) and Nevada Revised Statute § 613.330;1 and (2)

unlawful retaliation under 42 U.S.C. § 2000e-3(a) and Nevada Revised Statute

§ 613.340. The district court granted summary judgment in favor of Pulte with

respect to Coburn’s discrimination and retaliation claims, and Coburn now appeals

both of these decisions.2 We review these determinations de novo, drawing all

reasonable inferences in favor of Coburn in order to decide whether Coburn has

established a genuine issue of material fact for trial. See Porter v. Cal. Dep’t of

Corr., 419 F.3d 885, 891 (9th Cir. 2005). We reverse.

                                           I

      We apply a system of shifting burdens in discrimination cases. “The

plaintiff bears the initial burden of establishing a prima facie case.” Bergene v.

Salt River Project Agric. Improvement and Power Dist., 272 F.3d 1136, 1140 (9th



      1
        A claim for unlawful discrimination under Nevada Revised Statute
§ 613.330 is assessed under the applicable federal anti-discrimination law. See
Apeceche v. White Pine County, 615 P.2d 975, 977-78 (Nev. 1980).
      2
         Coburn also briefly argues that Pulte failed to comply with Rule 56-1 of the
Local Rules of Practice for the District of Nevada by “fail[ing] to provide the
required concise statement of material facts that it alleges are not in dispute.” We
reject this argument, as district courts have “considerable latitude in managing the
parties’ motion practice and enforcing local rules that place parameters on
briefing.” Christian v. Mattel, Inc., 286 F.3d 1118, 1129 (9th Cir. 2002).

                                           2
Cir. 2001). If the plaintiff meets this burden, the burden shifts to the defendant to

prove that the plaintiff was discharged “for a legitimate, nondiscriminatory

reason.” Id. at 1141. If the defendant makes such a showing, “[t]he burden then

shifts back to [the plaintiff] to show that [the defendant’s] proffered reason was a

pretext for discrimination.” Id.

                                          A

      To state a prima facie case of discrimination, a plaintiff must show that: “(1)

she belongs to a protected class, (2) she was performing according to her

employer’s legitimate expectations, (3) she suffered an adverse employment

action, and (4) other employees with qualifications similar to her own were treated

more favorably.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir.

1998). The district court held that Coburn failed to establish the second and fourth

elements. We hold that Coburn satisfied the “minimal” degree of proof necessary

to establish these elements at the summary judgment phase. Wallis v. J.R. Simplot

Co., 26 F.3d 885, 889 (9th Cir. 1994).

                                          1

      Coburn presented sufficient evidence to raise a genuine issue of material fact

as to whether she was performing according to Pulte’s legitimate expectations.

First, she presented evidence that she was given excellent performance reviews for


                                          3
her first year of employment under Sheryl Palmer, and was awarded a salary

increase and a bonus due to this performance. This evidence is important because

of Coburn’s allegation that Pulte actually made the decision to fire her at the time it

fired Palmer, and simply because of the striking disparity between Coburn’s

performance evaluations before and after Palmer was fired, from which a jury

could reasonably infer that there were illegitimate factors playing into the

evaluations of Coburn. Second, Coburn presented evidence that she was

performing well after Palmer was fired, including Matt Koart’s statement that she

had completed her 2005 MBO goals with “flying colors” and Sean Degen’s

statement that Coburn’s performance was “excellent and superior to [her] male

counterparts.” The jury could reasonably give Coburn’s evidence of her positive

accomplishments more weight than Koart’s and Degen’s highly subjective

criticisms of Coburn’s “leadership,” “credibility,” and the “perception” of

Coburn’s performance.

      In holding that Coburn failed to establish the second element of her prima

facie case, the district court appeared to rely completely on the fact that Coburn

failed to demonstrate a mastery of Pulte’s design manual. However, the question

of whether Coburn was performing according to Pulte’s legitimate expectations

requires an analysis of her performance as a whole, and a jury could reasonably


                                           4
have placed little weight on Coburn’s failure to memorize an intricate product

manual in light of her host of other accomplishments. Rather than viewing the

evidence in the light most favorable to Coburn, the district court seemed to fully

accept Pulte’s contentions regarding Coburn’s performance. This was error.

                                          2

      The district court provided two reasons for holding that Coburn failed to

establish that similarly situated males were treated more favorably: (1) Coburn’s

male predecessor and her male counterpart in Arizona were terminated for poor

performance; and (2) of the seven female executives in Coburn’s Las Vegas office

who eventually left Pulte, only Palmer and Coburn were terminated for

performance reasons.

      Coburn presented sufficient evidence to raise a triable issue of fact as to this

prima facie element. Coburn presented evidence that the four males on Palmer’s

original executive team were neither terminated for performance reasons nor given

poor performance ratings. In contrast, three females from Palmer’s team were

terminated, and one female had been receiving lower performance ratings at the

time of her resignation than she had previously. Moreover, Coburn alleged that

only women were invited to a meeting in which Patrick Beirne, according to

Coburn, berated the female executives and stated that he “was tired of the ‘General


                                          5
Hospital’ atmosphere in Las Vegas.” Finally, the fact that Coburn was replaced

with a male is especially important evidence to demonstrate that similarly situated

males were treated more favorably. The jury was entitled to weigh these facts

against Pulte’s evidence that Coburn’s male predecessor (who was fired before

Palmer) and her male counterpart in Arizona (who never worked in the Nevada

Area) were terminated for poor performance.

                                          B

      Coburn concedes that Pulte satisfied its burden of providing a legitimate,

non-discriminatory reason for her termination by alleging that Coburn was

terminated because of her poor performance. Thus, the burden shifts back to

Coburn to show that Pulte’s non-discriminatory reason for termination was a

pretext for discrimination, see Godwin, 150 F.3d at 1220, which Coburn may

satisfy “using either direct or circumstantial evidence,” Coghlan v. Am. Seafoods

Co. LLC, 413 F.3d 1090, 1094-95 (9th Cir. 2005). We need not address whether

Coburn has presented direct evidence of discrimination, because Coburn has

presented sufficient circumstantial evidence to survive summary judgment.

      First, the district court erred in applying the “same-actor inference” to

Coburn’s case. See Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th

Cir. 1996). Although Degen was involved in both the hiring and firing of Coburn,


                                          6
he was not the only person involved in these decisions and was not even Coburn’s

direct supervisor at the time of these decisions. Rather, Coburn reported directly to

Palmer at the time of her hiring and directly to Koart at the time of her firing.

Thus, it was unreasonable for the district court to assume that a lack of

discriminatory animus at the time of Coburn’s hiring makes it unlikely that

discriminatory animus was present at the time of her firing. Moreover, the

termination of Coburn did not “occur within a short period of time” after her

hiring, id. at 270-71, but rather occurred almost two years after she was hired.

      Coburn has presented “specific and substantial” circumstantial evidence to

survive summary judgment, Coghlan, 413 F.3d at 1095, most of which is similar to

the evidence constituting her prima facie case, see Chuang v. Univ. of Cal. Davis,

225 F.3d 1115, 1124 (9th Cir. 2000). First, by raising a genuine issue of fact as to

the quality of her performance, Coburn has presented evidence that Pulte’s

“proffered explanation for the adverse action”—Coburn’s performance—“is

unworthy of credence.” Coghlan, 413 F.3d at 1095 (quotation marks omitted).

Second, Coburn’s evidence (discussed above) “that similarly situated male

employees were treated more favorably is itself probative of pretext.” Davis v.

Team Elec. Co., 520 F.3d 1080, 1092-93 (9th Cir. 2008). Finally, various alleged

comments by males in Pulte bolster Coburn’s case that the performance rationale


                                           7
for her termination was a pretext: (1) Degen’s supposed reaction when Coburn

complained to him about the meeting with Beirne (“you say yes sir, may I have

another, yes sir, may I have another”); (2) Degen’s statement that Petruska “looks

at every female in this division and completely tied them to [Palmer]”; and (3)

Beirne’s “General Hospital” comment. Although Petruska and Beirne were not

directly involved in the firing of Coburn, a jury could reasonably determine that

these executives had some influence on the decision of their subordinates—Koart

and Degen—to fire Coburn, and that therefore this decision was influenced to

some degree by gender discrimination. Viewing the totality of Coburn’s evidence,

we hold that district court erred in granting summary judgment to Pulte on

Coburn’s discrimination claim.

                                          II

      The burden-shifting scheme in a retaliation case is much the same as that in

a discrimination case. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 919 (9th

Cir. 1997). “In order to make out a prima face case of retaliation, a plaintiff must

show that (1) she was engaging in protected activity, (2) the employer subjected

her to an adverse employment decision, and (3) there was a causal link between the

protected activity and the employer’s action.” Bergene, 272 F.3d at 1140-41.

Coburn indisputably satisfied the first two elements. She alleged two forms of


                                          8
protected activity: voicing opposition to Beirne’s purportedly discriminatory

behavior and complaining to Degen about Petruska’s comment that he was tired of

the “whiny bitches in Las Vegas.”3 She alleged three adverse employment actions:

negative performance evaluations, being placed on a performance improvement

plan (“Work Plan”), and her termination. However, the district court held that

Coburn failed to establish the element of a causal link between her protected

activity and the adverse employment actions. We disagree.

      We “have held that causation can be inferred from timing alone where an

adverse employment action follows on the heels of protected activity.” Davis, 520


      3
        For the purposes of Coburn’s discrimination claim, the “whiny bitches”
comment is inadmissible hearsay. Coburn alleged that she had learned of this
comment from Palmer, who had allegedly heard it from Degen, who had allegedly
heard it from Petruska. Palmer could testify in court about a statement that Degen
said Petruska made to him under the exception to the hearsay rule for admissions
by party-opponents, because Degen (a national vice president) had authority to
make admissions on behalf of Pulte and this statement goes against the interests of
Pulte. See FED. R. EVID. 801(d)(2). However, Palmer did not submit any sworn
testimony to the district court that she heard about the “whiny bitches” statement
from Degen, and Coburn may not rely upon the possibility of Palmer testifying
about this statement in court to satisfy summary judgment. Furthermore, Coburn’s
own sworn testimony that she heard this statement from Palmer is inadmissible,
because Palmer herself is not a party-opponent; rather, she was fired from Pulte.
       However, regarding Coburn’s retaliation claim, the district court erred in
holding that the “whiny bitches” comment is inadmissible. For the purposes of this
claim, the comment is not offered to prove the truth of the matter asserted—that is,
to prove that Petruska actually said it—but simply as evidence that Coburn voiced
opposition to a statement that she considered to be sexually discriminatory and
suffered retaliation as a result.
                                         9
F.3d at 1094 (quotation marks omitted). The timing of the adverse employment

actions—all three of which, importantly, are causally related to each other—is

evidence from which a reasonable jury could infer causation. The meeting with

Beirne occurred on June 22, 2005, and Coburn immediately expressed her

opposition to Machado and Degen. On December 5, 2005, less than six months

following this opposition, Koart sent Coburn an email criticizing her, and on

December 19, 2005, Degen gave Coburn a “below expectations” performance

evaluation. Coburn told Degen about Petruska’s “whiny bitches” comment on

February 13, 2006, and Degen placed Coburn on the Work Plan that same day,

about eight months after Coburn’s voiced opposition to Beirne’s comments.4 Most

importantly, Coburn was terminated on April 25, 2006, a little over two months

after she told Degen about the “whiny bitches” comment. All of these time periods


      4
         The district court noted that although Degen emailed the Work Plan to
Coburn on the same day that she told him about the “whiny bitches” comment,
“the email references a conversation he had with her concerning the plan a week
earlier,” and “Degen testified that it took him approximately 30 days to draft.”
Thus, the district court concluded that there could not have been a causal link
between Coburn’s complaint about the “whiny bitches” comment and the Work
Plan. The district court is technically correct, but this point does not seriously
undermine an inference of causation. For one thing, Coburn was fired two months
after she complained about the “whiny bitches” comment. Furthermore, the Work
Plan and Coburn’s termination can be considered to be an outgrowth of Coburn’s
poor performance evaluations, which occurred less than six months after Coburn
voiced her opposition to Beirne’s comments.

                                        10
are within a range that can properly support an inference of causation. See

Coszalter v. City of Salem, 320 F.3d 968, 977 (9th Cir. 2003); Allen v. Iranon, 283

F.3d 1070, 1078 (9th Cir. 2002). Moreover, even if temporal proximity were

lacking, Coburn provided “circumstantial evidence of a pattern of antagonism

following the protected conduct,” Porter, 419 F.3d at 895 (quotation marks

omitted), including her allegation that when she told Degen about Beirne’s

comments, he responded, “you don’t, you don’t talk back you say yes sir, may I

have another, yes sir, may I have another.”

      As with her discrimination claim, Coburn concedes that Pulte satisfied its

burden of providing a non-retaliatory reason for her termination by alleging that

Coburn suffered the adverse employment actions due to her poor performance.

However, Coburn presented sufficient evidence that Pulte’s non-retaliatory reason

for terminating her was a pretext for the same reasons as with her discrimination

claim. Thus, the grant of summary judgment on this claim was error.

      REVERSED.




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