                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              JUL 30 2015

                                                                          MOLLY C. DWYER, CLERK
AIMEE GREENE,                                   No. 13-16102               U.S. COURT OF APPEALS



              Plaintiff - Appellant,            D.C. No. 2:11-cv-02351-NVW

 v.
                                                MEMORANDUM*
BUCKEYE VALLEY FIRE
DEPARTMENT 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 July 9, 2015
                            San Francisco, California

Before: GILMAN,** GRABER, and WATFORD, Circuit Judges.

      Plaintiff Aimee Greene sued Buckeye Valley Fire Department and its

individual officers ("Defendants") under Title VII of the Civil Rights Act of 1964,

alleging gender discrimination and retaliation, and under 42 U.S.C. § 1983,


        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
          The Honorable Ronald Lee Gilman, Senior United States Circuit Judge
for the Court of Appeals for the Sixth Circuit, sitting by designation.
alleging denial of equal protection. The district court granted Defendants’ motion

for summary judgment, and Plaintiff appeals. We have jurisdiction under 28

U.S.C. § 1291. Reviewing de novo, Vasquez v. County of Los Angeles, 349 F.3d

634, 639 (9th Cir. 2004), we affirm in part, reverse in part, and remand.

       1. The district court did not err when it concluded that Plaintiff’s Title VII

claims arising out of "discrete acts of discrimination" that occurred before

February 3, 2010, are time-barred. See Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 105 (2002) (stating rule). The district court properly applied 42 U.S.C.

§ 2000e-5(e)(1), which sets forth the relevant limitations period. Alleged

discriminatory acts that occurred before February 3, 2010, may, however, be used

as background evidence to support Plaintiff’s timely claims. Morgan, 536 U.S. at

113.

       Moreover, Plaintiff may sue directly under § 1983 for alleged discriminatory

acts that occurred less than two years before she filed her complaint. See Cholla

Ready Mix, Inc. v. Civish, 382 F.3d 969, 974 (9th Cir. 2004); Ariz. Rev. Stat.

§ 12-542 (establishing two-year statute of limitations for personal injury claims in

Arizona).

       2. The district court erred when it granted Defendants’ motion for summary

judgment on Count I, Plaintiff’s claim for gender discrimination in violation of 42


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U.S.C. § 2000e-2(a)(1), except to the extent that the court entered summary

judgment for Defendants Benbow and Alexander in their individual capacities.

See Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1179 (9th Cir. 2003) (holding

that Title VII does not provide for a damages claim against supervisors or fellow

employees). Plaintiff presented sufficient evidence to create a genuine dispute of

material fact as to whether Defendants’ proffered nondiscriminatory reasons for

failing to promote her to full-time firefighter were pretextual. See Dominguez-

Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005) (describing the

burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973)). She presented evidence, for example, that a number of the captains,

battalion chiefs, and crew members at Buckeye Valley Fire Department expressed

hostility toward Plaintiff because of her sex. She also presented evidence that the

prioritized hiring lists used to make full-time-firefighter promotion decisions are

generated almost exclusively through input from those same captains, battalion

chiefs, and crew members. That evidence, taken together, is sufficient to show a

"nexus" between the alleged discrimination and the subsequent promotion

decision. See Vasquez, 349 F.3d at 640 (requiring such a nexus).

      Plaintiff did not, however, present sufficient evidence to create a genuine

dispute of material fact with respect to whether Defendants’ proffered


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nondiscriminatory reasons for failing to promote her to acting captain or captain

were pretextual. As to acting captain, those decisions were made by the Assistant

Chief and Fire Chief, neither of whom were shown to have shared the

discriminatory views of Plaintiff’s other colleagues. Moreover, the decisions were

made from an objective skills assessment, not a subjective prioritized hiring list;

the men who were selected for acting captain positions scored well in one of the

skills assessments. As to captain, those decisions were made by the Buckeye

Valley Fire Department’s District Board, independent of any alleged

discriminatory conduct by individual officers. See id. (concluding that

discriminatory remarks by subordinates cannot be imputed to independent and

legitimate employment decisions).

      3. The district court erred in granting Defendants’ motion for summary

judgment on Count IV, retaliation. When evaluating the evidence at the summary

judgment stage, "the district court may not disregard a piece of evidence . . . solely

based on its self-serving nature." Nigro v. Sears, Roebuck & Co., 784 F.3d 495,

497–98 (9th Cir. 2015). Here, the court improperly rejected Plaintiff’s testimony

that, like her, other male reserves had not completed required training programs,

yet they remained on active status while she was placed on inactive leave status.




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Plaintiff’s testimony constitutes direct evidence of pretext sufficient to prevail on

Defendants’ motion.

      4. As noted above, the record does not show that the Assistant Chief or the

Fire Chief shared the discriminatory views of others in the Department. But the

record does permit an inference that they knew of the pervasive discriminatory

attitudes of others in the department and knowingly failed to prevent

discriminatory or retaliatory failures to promote. Because Plaintiff presented

sufficient evidence to create genuine disputes of material fact as to Defendants’

intent to discriminate against her under Title VII, she also did so under § 1983.

Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1113 (9th Cir.

1991).

      AFFIRMED in part, REVERSED in part, and REMANDED. Costs on

appeal awarded to Plaintiff -Appellant.




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