                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


KATIE MAYES, individually and for           No. 14-35396
and on behalf of dependent
beneficiaries; J.M., a minor child;           D.C. No.
H.M., a minor child; M.M., a minor         4:12-cv-00307-
child; G.M., a minor child; K.M., a          EJL-CWD
minor child,
                 Plaintiffs-Appellants,
                                             OPINION
                  v.

WINCO HOLDINGS, INC., an Idaho
corporation,
             Defendant-Appellee.


      Appeal from the United States District Court
                for the District of Idaho
       Edward J. Lodge, District Judge, Presiding

        Argued and Submitted December 8, 2016
                 Seattle, Washington

                  Filed February 3, 2017

  Before: M. Margaret Mckeown, Richard C. Tallman,
         and Morgan Christen, Circuit Judges.

                Opinion by Judge Christen
2                  MAYES V. WINCO HOLDINGS

                            SUMMARY*


                  Employment Discrimination

    The panel reversed the district court’s summary judgment
in favor of the defendant on gender discrimination claims
under Title VII and the Idaho Human Rights Act, a claim
under the Consolidated Omnibus Budget Reconciliation Act,
and wage claims under the Fair Labor Standards Act and the
Idaho Wage Claim Act.

    WinCo, a grocery store, fired the plaintiff, who
supervised employees on the night-shift freight crew, for
taking a stale cake from the store bakery to share with fellow
employees and telling a loss prevention investigator that
management had given her permission to do so.

    As to the plaintiff’s gender discrimination claims, the
panel held that she presented sufficient evidence that
WinCo’s proffered reasons for terminating her were
pretextual because she offered ample direct evidence of
discriminatory animus, as well as specific and substantial
indirect evidence challenging the credibility of WinCo’s
motives.

    As to the COBRA claim, there was a genuine dispute of
fact regarding the true reason for the plaintiff’s termination.
The panel held that the district court therefore erred in
granting summary judgment because if WinCo fired the


    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               MAYES V. WINCO HOLDINGS                    3

plaintiff for discriminatory reasons, rather than gross
misconduct, then she could be entitled to COBRA benefits.

   The panel also reversed the district court’s summary
judgment on the federal and state wage claims, and it
remanded the case to the district court.


                       COUNSEL

Amanda E. Ulrich (argued) and DeAnne Casperson, Holden
Kidwell Hahn & Crapo P.L.L.C., Idaho Falls, Idaho, for
Plaintiffs-Appellants.

Anthony Dean Bennett (argued) and Pamela S. Howland,
Holland & Hart LLP, Boise, Idaho, for Defendant-Appellee.


                        OPINION

CHRISTEN, Circuit Judge:

    Plaintiff Katie Mayes worked at WinCo, an Idaho Falls
grocery store, for twelve years. During her final years at
WinCo, Mayes supervised employees on the night-shift
freight crew. On July 8, 2011, Mayes was fired 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 deemed these actions theft and dishonesty. It also
determined that Mayes’s behavior rose to the level of gross
misconduct under the store’s personnel policies. WinCo
denied Mayes and her minor children benefits under the
Consolidated Omnibus Budget Reconciliation Act of 1985
4              MAYES V. WINCO HOLDINGS

(COBRA). WinCo also denied Mayes credit for accrued
vacation days.

    Mayes argues that WinCo fired her not for theft and
dishonesty but in order to put a man in charge of the freight
crew. She brings three types of claims against WinCo:
(1) gender discrimination claims under Title VII of the Civil
Rights Act of 1964 and the Idaho Human Rights Act; (2) a
claim under COBRA; and (3) wage claims under the Fair
Labor Standards Act and the Idaho Wage Claim Act. The
district court granted summary judgment to WinCo on all
claims. We have jurisdiction under 28 U.S.C. § 1291, and we
reverse.

              I. STANDARD OF REVIEW

    We review a district court’s order granting summary
judgment de novo. Albino v. Baca, 747 F.3d 1162, 1168 (9th
Cir. 2014) (en banc). “A grant of summary judgment is
appropriate when ‘there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). For
purposes of summary judgment, we must accept the
nonmoving party’s evidence as true. T.W. Elec. Serv., Inc. v.
Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir.
1987). “Inferences must also be drawn in the light most
favorable to the nonmoving party.” Id. “If the nonmoving
party produces direct evidence of a material fact, the court
may not assess the credibility of this evidence nor weigh
against it any conflicting evidence presented by the moving
party.” Id.
                   MAYES V. WINCO HOLDINGS                               5

                       II. BACKGROUND

                        A. Factual History1

    Mayes, a single mother of seven children, began working
for WinCo in 1999. WinCo promoted her to a Person in
Charge (PIC) in 2006. As a PIC, Mayes supervised
employees on the night-shift freight crew. She also began
serving in a leadership role on the store safety committee.
According to assistant manager Scott McCartney, Mayes was
a hard worker who strived to follow store rules.

    Sometimes stocking the store required long hours from
the night-shift freight crew. New freight had to be shelved on
the first of the month, and if the job was not finished by the
end of the freight crew’s shift, crew members clocked out and
Mayes was left with thousands of items to shelve. Mayes
testified that when she first became a PIC, Mark Wright, then
WinCo’s general manager, gave her permission to take cakes
from the store bakery to motivate the crew to stay past the
end of their shifts and boost their morale. Wright told Mayes
to record the cakes in the in-store use log, and Mayes
followed this policy.

    In addition to Wright, other members of the management
team knew about the practice of taking cakes for the night-
shift freight crew. Mayes testified that when assistant
managers Scott McCartney and Brad Clark worked at the
store during Mayes’s shift, Mayes discussed with them
whether to get a cake for the crew before entering it into the
in-store use log. Mayes brought the cakes to the break room,

     1
       We present the following facts in the light most favorable to Mayes,
the nonmoving party, to the extent supported by the record.
6               MAYES V. WINCO HOLDINGS

where the assistant managers sometimes ate cake with the
crew. According to Mayes and a number of other employees,
anyone who saw the cakes would have known that they had
not been purchased from the store because the cakes did not
have receipts attached and store policy required employees to
attach receipts to purchased items.          Several WinCo
employees gave sworn statements that taking cake from the
store to the break room was a common, accepted practice by
PICs and management at WinCo.

     In January 2011, the bakery department instructed Mayes
and the other freight crew PIC, Andrew Olson, that they
should take cakes only from the “stales” cart. Stale cakes
usually went to a food bank because the store could no longer
sell them. The bakery department told Mayes that she did not
need to enter the cake from the stales cart into the in-store use
log because the cakes had already been removed from the
store inventory and tracked as lost product. To let the bakery
staff know that the freight crew had taken a stale cake, Mayes
left the universal product code (UPC) sticker on the stales
cart. She instructed her crew that if they ever took a cake for
a special event, they should take it only from the stales cart.
Mayes discussed this practice with McCartney and Clark. In
his deposition, Olson, the other freight crew PIC, confirmed
that he, too, understood that PICs could take cakes from the
stales cart.

    At about the same time the bakery department instructed
Mayes to take cakes only from the stales cart, Mayes started
experiencing difficulties with Dana Steen, the general
manager as of 2007. According to Mayes, Steen replaced
Mayes as chair of the safety committee with a male
employee, and when she asked Steen for an explanation,
Steen told her that “a male would be better in that position.”
                MAYES V. WINCO HOLDINGS                       7

Mayes testified that when she told McCartney that she
thought Steen had treated her unfairly, McCartney advised
Mayes to “stay away” from Steen because Steen said she did
not like that “a girl” was running the freight crew.

    Mayes further asserts that in early 2011, Steen criticized
her because she had children and could not stay late or come
in on her days off. Mayes testified that she told Steen that she
had to leave early to pick up her children from school, and
that Steen said “kids,” and walked away. According to
Mayes, Steen did not make similar comments about kids to
Olson, who sometimes also left early because he had to care
for his children.

    On July 7, 2011, bakery management notified Steen that
someone had taken a fresh cake from the bakery store shelves
and eaten it in the employee break room. Steen initiated an
investigation and reviewed six months of store surveillance
video. She saw video footage of freight crew employee Nick
McInelly taking the cake. Steen later testified that she also
saw footage of Mayes taking one cake from the stales cart on
June 26, 2011 and only turned the investigation over to the
loss prevention department after she had seen that footage.

    Loss prevention investigator Scott Samuelson
investigated the cake-taking reports. He visited the Idaho
Falls WinCo store on July 7, 2011, to review video footage,
in-store use logs, and sales records for the nights that
McInelly and Mayes had taken cakes to the break room.
Another loss prevention specialist told Samuelson that
because management would not be at the store on the night of
July 7, McInelly might try to take another cake that night.
Watching live footage from a surveillance camera, Samuelson
8               MAYES V. WINCO HOLDINGS

observed McInelly take another cake in the early morning
hours of July 8.

    Confronted by Samuelson, McInelly said that Mayes gave
him permission to take the cake. But when Samuelson
interviewed Mayes, she said that she only gave McInelly
permission to take cakes from the stales cart. Mayes also told
Samuelson that the previous general manager, Wright, had
given her permission to take cakes. Wright denied giving
Mayes this authorization.

    On the morning of July 8, Steen called Samuelson to
discuss the results of the investigation. Steen was on vacation
and only available over the telephone. Samuelson then turned
the results of his investigation over to WinCo’s human
resources department (HR). Both McInelly and Mayes were
fired later that day. After Mayes was fired, WinCo replaced
her with a man who had only one month of freight crew
experience and no supervisory experience at WinCo.

    McCartney prepared the termination paperwork and told
Mayes that WinCo was terminating her for theft and
dishonesty. He presented her with a document banning her
from WinCo property for 100 years. But McCartney denied
making the decision to fire Mayes and suggested that HR and
Samuelson were the decisionmakers. Samuelson denied any
knowledge of who made the decision to terminate Mayes.

    During Mayes’s unemployment compensation hearing,
Steen testified that she was involved in the termination
decision, and WinCo listed Steen in an interrogatory answer
as a person who participated in the decision to terminate
Mayes. But in Steen’s deposition, she, too, denied knowing
who made the final decision to fire Mayes and said that she
                MAYES V. WINCO HOLDINGS                       9

did not participate in the decision. Steen suggested HR and
loss prevention specialist Don Hook made the termination
decision. But HR director Karen Stinger testified that she did
not remember being involved in Mayes’s termination, and
Hook testified that, other than speaking with Wright, he
played no role in the decision to terminate Mayes. Who
ultimately decided to fire Mayes for theft and dishonesty thus
remains a mystery.

    Because the definition of “gross misconduct” in WinCo’s
personnel policies includes theft and dishonesty, WinCo
denied Mayes COBRA benefits. See 29 U.S.C. § 1163(2)
(excluding termination for “gross misconduct” from list of
qualifying events). As a result, Mayes was unable to elect
continued coverage for herself and her minor children.
WinCo also refused to pay Mayes her accumulated vacation
pay, claiming that it had no obligation to do so under the
store’s Collective Bargaining Agreement (CBA). Mayes
appealed to the employee grievance committee, but the
committee upheld the termination decision.

                   B. Procedural History

    Mayes sued WinCo on June 15, 2012. WinCo moved for
summary judgment on all claims. The district court granted
the motion on April 23, 2014, ruling that although Mayes
established a prima facie case of discrimination, she did not
present sufficient evidence of pretext for her claims to survive
summary judgment. The district court also found that,
because WinCo terminated Mayes for gross misconduct,
WinCo properly denied her COBRA benefits and credit for
accrued vacation under the CBA. Mayes appeals.
10              MAYES V. WINCO HOLDINGS

                       III. ANALYSIS

            A. Gender Discrimination Claims

    Title VII of the Civil Rights Act of 1964 provides that
“[i]t shall be an unlawful employment practice for an
employer . . . to fail or refuse to hire or to discharge any
individual . . . because of such individual’s . . . sex . . . .”
42 U.S.C. § 2000e-2(a)(1). The Idaho Human Rights Act
mirrors the protections of Title VII, so we need not conduct
a separate analysis of Mayes’s state claim. See Peterson v.
Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004); see
also Idaho Code § 67-5909.

     Title VII’s burden-shifting formula requires that plaintiffs
first establish a prima facie case of discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973); Vasquez v. Cty. of L.A., 349 F.3d 634, 640 (9th Cir.
2003), as amended (Jan. 2, 2004). If the plaintiff succeeds in
doing so, the burden shifts to the employer “to articulate a
legitimate, nondiscriminatory reason for its allegedly
discriminatory conduct.” Vasquez, 349 F.3d at 640. If the
employer articulates “such a reason, the burden shifts back to
the [employee] to show that the employer’s [stated] reason is
a pretext for discrimination.” Id.

    Here, the district court concluded that Mayes established
a prima facie case under McDonnell Douglas, and WinCo
concedes this point on appeal. Similarly, Mayes does not
contest that WinCo proffered legitimate, nondiscriminatory
reasons for terminating her. The outcome of Mayes’s appeal
turns on whether she presented sufficient evidence that
WinCo’s proffered reasons were pretextual.
                MAYES V. WINCO HOLDINGS                      11

    An employee can prove pretext either: (1) “directly, by
showing that unlawful discrimination more likely motivated
the employer”; or (2) “indirectly, by showing that the
employer’s proffered explanation is unworthy of credence
because it is internally inconsistent or otherwise not
believable.” Fonseca v. Sysco Food Servs. of Ariz., Inc.,
374 F.3d 840, 849 (9th Cir. 2004) (internal quotation marks
omitted) (quoting Lyons v. England, 307 F.3d 1092, 1113
(9th Cir. 2002)). The district court ruled that Mayes failed to
raise a genuine issue of material fact regarding pretext, either
directly or indirectly. We disagree.

    Direct evidence of discrimination is often not easy to
come by. Here, however, Mayes has offered multiple
examples of direct evidence that implicate gender
discrimination. Direct evidence of discriminatory intent
consists of “evidence which, if believed, proves the fact [of
discriminatory animus] without inference or presumption.”
Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654,
662 (9th Cir. 2002) (alteration in original) (quoting Godwin
v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998)).
“Racist or sexist statements constitute such ‘direct evidence’
of discrimination.” Id. (quoting Godwin, 150 F.3d at 1221).
Direct evidence need not be “specific and substantial.”
Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027,
1038 (9th Cir. 2005).

    Mayes offered ample direct evidence of discriminatory
animus: (1) Steen’s alleged comment that a man “would be
better” leading the safety committee; (2) Steen’s alleged
comment that she did not like “a girl” running the freight
crew; and (3) Steen’s alleged criticism of Mayes, but not her
male counterpart, for leaving work early to care for her
children. These remarks directly concerned Mayes and the
12              MAYES V. WINCO HOLDINGS

decisional process for retaining and promoting employees.
Mayes’s failure to give precise dates for the remarks or show
a closer temporal link between the comments and her
termination does not defeat her claims. See id. (“While a
factfinder is free to conclude at trial that the plaintiff’s
account is insufficiently detailed to be believable, the district
court must refrain from making such credibility assessments
on summary judgment.”); cf. DeHorney v. Bank of Am. Nat’l
Trust & Sav. Ass’n, 879 F.2d 459, 467–68 (9th Cir. 1989)
(affirming an order granting summary judgment on the basis
that there was no “nexus” between the discriminatory remark
and plaintiff’s termination where plaintiff failed to present
evidence that the decisionmaker heard discriminatory
statements or knew plaintiff’s race).

    WinCo argues that Steen’s comments cannot constitute
direct evidence of discriminatory animus because Steen did
not fire Mayes. But the record on this point is murky, at best.
In an interrogatory answer, WinCo admitted that Steen
participated in the termination decision. Steen also testified
in the unemployment hearing that she was involved in the
decision. Steen further stated in her deposition that during
the cake-taking investigation, she was in contact with
McCartney, the employee who informed Mayes that she was
being terminated.

    Moreover, the animus of a supervisor can affect an
employment decision if the supervisor “influenced or
participated in the decisionmaking process.” Dominguez-
Curry, 424 F.3d at 1039–40 (emphasis added). Even if the
supervisor does not participate in the ultimate termination
decision, a “supervisor’s biased report may remain a causal
factor if the independent investigation takes it into account
without determining that the adverse action was, apart from
               MAYES V. WINCO HOLDINGS                     13

the supervisor’s recommendation, entirely justified.” Staub
v. Proctor Hosp., 562 U.S. 411, 421 (2011).

    WinCo argues that there is insufficient evidence that
Steen affected its “independent” investigation into Mayes’s
conduct for two reasons. First, WinCo disputes when Steen
learned that the cake-taking investigation would lead to
Mayes. But Steen acknowledged during the unemployment
compensation hearing that she contacted loss prevention only
after viewing surveillance footage of Mayes taking stale cake.
Second, WinCo argues that it had a good-faith belief that
Mayes lied about having permission to take cake and that this
insulates the termination decision from any discriminatory
motive Steen may have had. This argument fails because no
one at WinCo admitted to making the decision to fire Mayes,
and it is impossible to know who believed what at the time
Mayes was fired. Drawing all reasonable inferences in
Mayes’s favor, we must presume that Steen’s alleged bias
affected the employment decision. See Chuang v. Univ. of
Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1129 (9th Cir. 2000).

    Nor do Steen’s comments fall within the ambit of stray
remarks that we have held insufficient to establish
discrimination. See Merrick v. Farmers Ins. Grp., 892 F.2d
1434, 1438–39 (9th Cir. 1990) (holding that a hiring
executive’s comment that he chose “a bright, intelligent,
knowledgeable young man” over the plaintiff was merely a
stray remark that could not, without more, establish age
discrimination). If Mayes’s testimony is believed, reasonable
jurors could decide that Steen’s comments, including the
alleged comment that a man “would be better” as chair of the
safety committee, demonstrate Steen’s overt hostility to
having women in leadership roles.
14              MAYES V. WINCO HOLDINGS

    WinCo argues that we must take into account the context
in which Steen’s alleged comments were made and that the
evidence here falls short of the evidence that established
discriminatory animus in cases such as Dominguez-Curry,
424 F.3d at 1038, and Cordova v. State Farm Insurance Cos.,
124 F.3d 1145, 1149 (9th Cir. 1997). In Dominguez-Curry,
a supervisor allegedly made sexist comments such as “women
have no business in construction,” and we rejected the
defendant’s argument that these were stray remarks.
424 F.3d at 1038. Similarly, in Cordova, a supervisor
allegedly made two disparaging comments about a Mexican-
American employee, including calling the employee a “dumb
Mexican.” 124 F.3d at 1147–49. We see no distinction
between the alleged bigoted remarks in these cases and the
alleged comments that a man would be better as chair of the
safety committee and that Steen did not like “a girl” running
the freight crew or the disparaging insinuations about Mayes
leaving work to pick up her children.

     Finally, contrary to WinCo’s position, the fact that Steen
is also a woman does not preclude a finding of discriminatory
animus. Nearly twenty years ago, the Supreme Court held in
no uncertain terms, “If our precedents leave any doubt on the
question, we hold today that nothing in Title VII necessarily
bars a claim of discrimination ‘because of . . . sex’ merely
because the plaintiff and the defendant (or the person charged
with acting on behalf of the defendant) are of the same sex.”
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79
(1998) (alteration in original).

   Mayes’s direct evidence alone is sufficient to defeat
summary judgment, see Dominguez-Curry, 424 F.3d at 1039
(“[W]e have repeatedly held that a single discriminatory
comment by a plaintiff’s supervisor or decisionmaker is
               MAYES V. WINCO HOLDINGS                     15

sufficient to preclude summary judgment for the employer.”),
but here, the claim is further bolstered by indirect evidence.
To show pretext using circumstantial evidence, in contrast to
direct evidence, “a plaintiff must put forward specific and
substantial evidence challenging the credibility of the
employer’s motives.” Vasquez, 349 F.3d at 642. Mayes met
this burden for purposes of summary judgment.

    Multiple employees testified that it was a common,
accepted practice—rather than an offense punished by
termination—for PICs to take cakes to the break room.
Olson, the other PIC for the freight crew, stated that he
understood that PICs could take stale cakes from the stales
cart. That WinCo purportedly fired Mayes for following a
practice described by some witnesses as “common,” and that
another PIC thought was authorized, is specific and
substantial evidence that WinCo’s proffered explanation for
her termination is not believable. Mayes could not have
stolen a cake that she had permission to take. Nor could
management have reasonably thought that Mayes lied about
having permission if they knew that PICs were allowed to use
stale cakes to motivate employees.

    Additionally, Mayes presented evidence that WinCo
replaced her with a less qualified male employee. Evidence
that an employer replaced a plaintiff with a less qualified
person outside the protected class can be evidence of pretext.
See Perez v. Curcio, 841 F.2d 255, 258 (9th Cir. 1988)
(reversing a grant of summary judgment on an age
discrimination claim where plaintiff presented evidence that
16                 MAYES V. WINCO HOLDINGS

a younger, less qualified person was chosen to replace her).2
The man who replaced Mayes had only worked for WinCo
for about three weeks, had no supervisory experience at
WinCo, and could only work during limited hours. In
contrast, Mayes received no negative performance reviews
over the course of twelve years with WinCo, earned
promotions within the company, and held a supervisory
position for approximately five years.

    WinCo argues that replacing Mayes with a male
employee is not evidence of pretext because Steen played no
role in hiring Mayes’s replacement. The record is to the
contrary. McCartney testified that Steen participated in the
interviews for Mayes’s replacement and had the “final say”
on the new PIC for the freight crew. In her deposition, Steen
acknowledged that she “weigh[ed] in” on the decision.

    In sum, circumstantial evidence raises a material dispute
of fact regarding pretext. This is particularly true when the
circumstantial evidence is viewed in conjunction with the
powerful direct evidence of Steen’s discriminatory
comments. It was error to dismiss Mayes’s discrimination
claims.



     2
       The Second Circuit case cited by WinCo, Brennan v. Metropolitan
Opera Assoc., Inc., 192 F.3d 310 (2d Cir. 1999), is not to the contrary.
WinCo argues that this case stands for the proposition “that evidence that
plaintiff was replaced by a substantially younger employee, while
sufficient to meet her prima facie case of age discrimination, was
insufficient to show pretext.” It does not. The Second Circuit held only
that the plaintiff had not presented sufficient evidence of pretext for her
age discrimination claim to survive summary judgment because her
employer thought that the plaintiff and her replacement were the same age
based on the plaintiff’s own misrepresentations. Id. at 313, 317.
                MAYES V. WINCO HOLDINGS                      17

                     B. COBRA Claim

    Generally, COBRA entitles an employee with employer-
provided health insurance to elect continued coverage for a
defined period of time after the end of employment. See
29 U.S.C. § 1161(a). An employee is not entitled to this
benefit if she is terminated for “gross misconduct,” but the
statute does not define “gross misconduct.” See 29 U.S.C.
§ 1163(2).

    As discussed, Mayes presented both direct and indirect
evidence that the reasons stated for her termination were
pretextual, and we conclude there is a genuine dispute of
material fact regarding the true reason for her termination. If
WinCo fired Mayes for discriminatory reasons, Mayes may
be entitled to COBRA benefits. The district court therefore
erred in dismissing Mayes’s COBRA claim at summary
judgment.

                      C. Wage Claims

    WinCo argues that the CBA precludes Mayes’s federal
and state wage claims. The CBA provides that “[v]acation
earned but not taken will not be paid to employees terminated
for gross misconduct under the Company Personnel Policies
defining gross misconduct.” Because Mayes presented
sufficient evidence to create a genuine dispute of material fact
regarding why WinCo fired her, Mayes may be entitled to
payment for accrued vacation time, and this claim should not
have been dismissed at summary judgment.
18              MAYES V. WINCO HOLDINGS

                      CONCLUSION

   We conclude that it cannot be determined at summary
judgment whether WinCo’s stated reasons for firing Mayes
were pretextual. We reverse the order granting summary
judgment on all claims and remand for proceedings consistent
with this opinion.

     Appellee shall bear costs on appeal.

     REVERSED AND REMANDED.
