                Case: 14-14596       Date Filed: 01/14/2016       Page: 1 of 22


                                                                        [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 14-14596
                               ________________________

                          D.C. Docket No. 1:13-cv-00312-WSD


JENNIFER CHAVEZ,
                                                                           Plaintiff-Appellant,

                                             versus


CREDIT NATION AUTO SALES, LLC,
f.k.a. Synergy Motor Company,


                                                                          Defendant-Appellee.

                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                      (January 14, 2016)

Before HULL and WILSON, Circuit Judges, and MARTINEZ, * District Judge.

PER CURIAM:



       *
          Honorable Jose E. Martinez, United States District Judge for the Southern District of
Florida, sitting by designation.
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      In this Title VII case, Jennifer Chavez appeals from the grant of summary

judgment to her former employer, Credit Nation Auto Sales, LLC (“Credit

Nation”). Chavez, an auto mechanic, filed this lawsuit for sex discrimination and

alleges she was terminated because she is a transgender person.

      Title VII declares unlawful any “employment practice” that “discriminate[s]

against any individual with respect to . . . compensation terms, conditions, or

privileges of employment, because of such individual’s race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e-2(a)(1). Title VII forbids intentional

employment discrimination predicated on any of the protected characteristics of

race, color, religion, sex, or national origin. See Denney v. City of Albany, 247

F.3d 1172, 1182 (11th Cir. 2001). Sex discrimination includes discrimination

against a transgender person for gender nonconformity. Glenn v. Brumby, 663

F.3d 1312, 1316-17 (11th Cir. 2011).

      Chavez’s appeal may be distilled into three enumerations: that the district

court erred in granting summary judgment by (1) deciding that she did not present

direct evidence of discriminatory intent by Credit Nation in terminating her;

(2) concluding that she did not establish a genuine issue of material fact regarding

pretext pursuant to McDonnell Douglas to survive summary judgment on her sex

discrimination claim; and (3) ruling that Chavez’s circumstantial evidence did not

create triable issues as to whether her employer Credit Nation had discriminatory


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intent and whether that animus was “a motivating factor” in its terminating her.

See 42 U.S.C. §§ 2000e-2(a)(1) and 2(m). Upon review of the record,

consideration of the parties’ briefs, and after the benefit of oral argument, we

affirm in part and reverse in part.

                             I.       DIRECT EVIDENCE

      In a Title VII case, a plaintiff may use either direct or indirect evidence to

show that her employer discriminated against her because of her sex. Direct

evidence is evidence that proves the existence of a discriminatory motive to

terminate without inference or presumption. See Holland v. Gee, 677 F.3d 1047,

1054-55 (11th Cir. 2012); Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086

(11th Cir. 2004). Indirect evidence is circumstantial evidence. Hamilton v.

Southland Christian Sch., Inc., 680 F.3d 1316, 1320 (11th Cir. 2012). Chavez

argues that she has shown Credit Nation’s discriminatory intent by direct evidence.

      Under our precedent, “only the most blatant remarks, whose intent could

mean nothing other than to discriminate on the basis of some impermissible factor

constitute direct evidence of discrimination.” Wilson, 376 F.3d at 1086 (quotation

marks omitted). “If the alleged statement suggests, but does not prove, a

discriminatory motive, then it is circumstantial evidence.” Id.




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       None of Chavez’s evidence satisfies the exacting standard of direct evidence

of a gender-discriminatory motive.1 On November 24, 2009, Chavez met with

James Torchia, President of Credit Nation, about her gender transition. In support

of her claim, Chavez relies primarily upon certain comments made by President

Torchia during that meeting.

       We conclude, however, that Torchia’s comments are not the kind of “blatant

remarks whose intent could mean nothing other than to discriminate” that we

require to qualify as direct evidence. Holland, 677 F.3d at 1055 (quotation marks

omitted). Alternatively, in the district court, Chavez failed to object to the

magistrate judge’s conclusion that she did not present any direct evidence.

       Thus, we review Chavez’s case as a circumstantial evidence case. We

outline the Title VII law about circumstantial evidence and then apply it to

Chavez’s evidence.

                       II.    CIRCUMSTANTIAL EVIDENCE

       “There is more than one way to show discriminatory intent using indirect or

circumstantial evidence.” Hamilton, 680 F.3d at 1320. “One way is through the


       1
         We review de novo a summary judgment determination, viewing all evidence in the light
most favorable to the non-moving party and drawing all reasonable inferences in its favor.
Baloco v. Drummond Co., Inc., 767 F.3d 1229, 1246 (11th Cir. 2014). Summary judgment is
appropriately granted only where “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The non-moving party
cannot survive summary judgment by presenting “[a] mere scintilla of evidence,” but must
present evidence from which a jury could reasonably find for the non-moving party. Baloco, 767
F.3d at 1246.
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burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 93 S. Ct. 1817 (1973), and Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 101 S. Ct. 1089 (1981).” Id. (alterations added).

      In Hamilton, this Court explained that another way is by “presenting

circumstantial evidence that creates a triable issue concerning the employer’s

discriminatory intent.” Id. (quoting Smith v. Lockheed-Martin Corp., 644 F.3d

1321, 1328 (11th Cir. 2011)) (quotation marks and alterations omitted). “A triable

issue of fact exists if the record, viewed in the light most favorable to the plaintiff,

presents enough circumstantial evidence to raise a reasonable inference of

intentional discrimination.” Id. If the plaintiff presents enough such evidence,

“her claim will survive summary judgment.” Id.

      Similarly, in Lockheed-Martin, this Court emphasized that: “establishing the

elements of the McDonnell Douglas framework is not, and never was intended to

be, the sine qua non for a plaintiff to survive a summary judgment motion in an

employment discrimination case.” 644 F.3d at 1328. “Rather, the plaintiff will

always survive summary judgment if [she] presents circumstantial evidence that

creates a triable issue concerning the employer’s discriminatory intent.” Id.; see

also Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (declaring that, in

cases where a plaintiff cannot establish a prima facie case, summary judgment only




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will be “appropriate where no other evidence of discrimination is present.”

(emphasis removed)).

      “[A] plaintiff may use ‘non-comparison circumstantial evidence to raise a

reasonable inference of intentional discrimination’ and thereby create a triable

issue.” Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1255 (11th Cir. 2012)

(quoting Hamilton, 680 F.3d at 1320); see also Lockheed-Martin, 644 F.3d at

1328. “Whatever form it takes, if the circumstantial evidence is sufficient to raise

‘a reasonable inference that the employer discriminated against the plaintiff,

summary judgment is improper.’” Chapter 7, 683 F.3d at 1256 (quoting

Lockheed-Martin, 644 F.3d at 1328); accord Hamilton, 680 F.3d at 1320.

      Here, Chavez attempts to travel on both circumstantial-evidence routes to a

jury trial. First, she claims her evidence is sufficient to create a genuine issue of

material fact regarding pretext under the McDonnell Douglas framework. Second,

and alternatively, she argues her circumstantial evidence creates triable issues as to

whether her employer Credit Nation had discriminatory intent and whether that

animus was “a motivating factor” in its terminating her. We review both routes.

                         III.   McDONNELL DOUGLAS

A.    Burden-Shifting Framework

      In McDonnell Douglas, the Supreme Court announced a burden-shifting

framework for Title VII cases based on circumstantial evidence. Under this


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framework, a plaintiff must first make out a prima facie case of intentional

discrimination. Wilson, 376 F.3d at 1087.2 The plaintiff’s prima facie case gives

rise to an inference or presumption of discrimination. See id. The burden then

shifts to the defendant employer to articulate a legitimate, non-discriminatory

reason for the adverse employment action. Id. This places upon the defendant

merely an intermediate burden of production. Turnes v. AmSouth Bank, 36 F.3d

1057, 1060 (11th Cir. 1994).

       After the defendant has met its burden, the plaintiff bears the burden of

showing that the employer’s proffered reason “was not the true reason” for the

employment decision and was merely pretext. Jackson v. State of Ala. State

Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005). If the plaintiff does not

proffer sufficient evidence to create a genuine issue of fact as to pretext, the

defendant employer is entitled to summary judgment. See id.

       If the plaintiff’s evidence creates a fact issue as to pretext, the defendant

employer may then attempt to prove that it would have made the same employment

decision in the absence of the alleged bias or unlawful motive.



       2
         To establish a prima facie case of employment discrimination under Title VII, a plaintiff
must show (1) she is a member of a protected group; (2) she was qualified for her position;
(3) she suffered an adverse employment action; and (4) employment or disciplinary policies were
differently applied to her. Chapter 7, 683 F.3d at 1255 (11th Cir. 2012). To be an adequate
comparator, the preferentially treated individual from outside the plaintiff’s protected class has to
be similarly situated in all relevant aspects, yet disciplined in different ways for the same
conduct. Lockheed-Martin, 644 F.3d at 1326 n.17; Holifield, 115 F.3d 1555 at 1562.
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       The district court assumed without deciding that Chavez established a prima

facie case of discrimination under the McDonnell Douglas framework. For

purposes of this appeal, the parties do not dispute that Chavez established a prima

facie case of sex discrimination, and Credit Nation articulated a legitimate,

nondiscriminatory reason for Chavez’s termination: Chavez was found sleeping on

the job in a customer’s car. Rather, the parties dispute whether Chavez’s evidence

is sufficient to create a jury issue as to pretext.

B.     Pretext Prong

       To establish pretext, an employee must specifically respond to the

employer’s explanation and produce sufficient evidence for a reasonable factfinder

to conclude that the employer’s stated reason is pretextual. See Combs v.

Plantation Patterns, 106 F.3d 1519, 1529 (11th Cir. 1997) (explaining that the

plaintiff must present “sufficient evidence to demonstrate the existence of a

genuine issue of fact as to the truth of each of the employer’s proffered reasons for

its challenged action”). A reason is not pretextual unless the employee shows both

that the given reason was false and that discrimination was the real reason. Brooks

v. Cty. Comm’n of Jefferson Cty., 446 F.3d 1160, 1163 (11th Cir. 2006). To

survive summary judgment, the plaintiff must “come forward with evidence,

including the previously produced evidence establishing the prima facie case,

sufficient to permit a reasonable factfinder to conclude that the reasons given by


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the employer were not the real reasons for the adverse employment decision.”

Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc) (quoting

Combs, 106 F.3d at 1528). The plaintiff must meet the employer’s reason “head

on” and rebut it. Wilson, 376 F.3d at 1088.

C.      Chavez Failed to Show Pretext

        Chavez’s evidence failed to create a jury issue as to pretext. Credit Nation

said that it fired Chavez, an auto mechanic, for sleeping while on the clock. In

fact, Chavez slept for 40 minutes in a repair customer’s vehicle while on the clock.

Chavez admitted to this conduct. Credit Nation also fired another employee for

sleeping on the job. Credit Nation’s reason was both a true and legitimate reason.

        Accordingly, the district court did not err in concluding that Chavez’s

evidence failed to show that the reason given—sleeping on the job—was pretextual

under the McDonnell Douglas framework.3

  VI.       DISCRIMINATORY INTENT AND “A MOTIVATING FACTOR”

        Even if she failed to show pretext, Chavez alternatively argues that she still

presented sufficient circumstantial evidence that Credit Nation had discriminatory

intent and that such intent was “a motivating factor” in her termination. See 42

U.S.C. § 2000e-2(m). Chavez asserts her termination was motivated not only by a

        3
         Chavez also argues that her Seventh Amendment right to a jury trial was violated when
the district court granted summary judgment to Credit Nation. This argument wholly lacks
merit. See Zivojinovich v. Barner, 525 F.3d 1059, 1066 (11th Cir. 2008) (concluding that where
summary judgment is appropriate, no Seventh Amendment violation occurs).
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legitimate reason, but also by an impermissible reason, to wit bias against her

transgender status. In this regard, we review (1) the causation standard of “a

motivating factor” in § 2000e-2(m); (2) Credit Nation’s arguments about § 2000e-

2(m); and then (3) Chavez’s evidence.

A.    Section 2000e-2(m)—“A Motivating Factor” Causation

      Prior to the enactment of § 2000e-2(m), if a plaintiff employee proved the

defendant employer had discriminatory intent based on sex under § 2000e-2(a)(1),

the defendant could avoid all liability by showing the defendant would have made

the same decision to terminate the plaintiff in the absence of discriminatory

motive. Price Waterhouse v. Hopkins, 490 U.S. 244-46, 258, 109 S. Ct. 1775,

1787-88 (1989). This “but for” causation allowed a defendant to avoid liability

even if the plaintiff had shown discriminatory intent in the employment decision.

      After Price Waterhouse, Congress passed the Civil Rights Act of 1991,

which made the same-decision defense no longer a complete affirmative defense to

liability in Title VII discrimination cases that are based on “race, color, religion,

sex, or national origin.” See Civil Rights Act of 1991, Pub. L. No. 102-166, § 107,

105 Stat. 1071, 1075-76 (codified at 42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B)

(2012)).

      Importantly, if a plaintiff has evidence of discriminatory intent, § 2000e-

2(m) now provides that Plaintiff Chavez may establish causation by showing


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gender bias “was a motivating factor” in her termination, “even though other

factors also motivated” her termination. 42 U.S.C. § 2000e-2. The full text of

§ 2000e-2(m) provides:

       Except as otherwise provided in this subchapter, an unlawful
       employment practice is established when the complaining party
       demonstrates that race, color, religion, sex, or national origin was a
       motivating factor for any employment practice, even though other
       factors also motivated the practice.

42 U.S.C. § 2000e-2(m) (emphasis added). Under § 2000e-2(m), Plaintiff Chavez

may prevail if she proves that her sex was a “motivating factor” behind her

termination, even if there were other, even legitimate, factors motivating that

decision as well. See Harris v. Shelby Cty. Bd. of Educ., 99 F.3d 1078, 1084 (11th

Cir. 1996).4

       More recently, the Supreme Court has told us that “Section 2000e-2(m) is

not itself a substantive bar on discrimination. Rather, it is a rule that establishes

the causation standard for proving a violation defined elsewhere in Title VII.”

Univ. of Tex. Sw. Med. Ctr. v. Nassar, __ U.S. __, at __, 133 S. Ct. 2517, 2530

(2013) (emphasis added). “[B]ut-for causation is not the test”; rather, “[i]t suffices

instead to show that the motive to discriminate was one of the employer’s motives,

even if the employer also had other, lawful motives that were causative in the

       4
          In this regard, the 1991 Act as codified in § 2000e-2(m) legislatively overruled that part
of the plurality’s holding in Price Waterhouse which allowed defendants to completely avoid all
liability upon proving that they would have taken the same employment action in the absence of
discriminatory intent. Harris, 99 F.3d at 1084 & n.4.
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employer’s decision.” Id. at 2523. The Supreme Court has also instructed that (1)

the language of § 2000e-2(m) indicates Congress’s intent to confine that

provision’s change to the listed five types of discrimination—“race, color, religion,

sex, or national origin,” 42 U.S.C. § 2000e-2(m)—and (2) that § 2000e-2(m) does

not apply to retaliation claims under § 2000e-3(a). Id. at 2532-33; see also Lewis

v. Young Men’s Christian Ass’n, 208 F.3d 1303, 1304-05 (11th Cir. 2000)

(indicating retaliation is not among the employment practices listed in § 2000e-

2(m)). 5

       Further, the Supreme Court recently abrogated the requirement of direct

evidence for § 2000e-2(m) cases. Desert Palace, Inc. v. Costa, 539 U.S. 90, 92,

123 S. Ct. 2148, 2150 (2003). The Supreme Court held that a plaintiff can rely on

circumstantial evidence to show mixed motives under § 2000e-2(m). Id. at 101,

123 S. Ct. at 2155.

       This Court’s own decision in Harris v. Shelby County Board of Education is

instructive as to how § 2000e-2(m) applies. In Harris, the plaintiff’s lawsuit,

brought under Title VII and § 1983, alleged the defendants discriminated against

him by not selecting him as a school principal because of his race. 99 F.3d at

1080. The Harris Court concluded (1) that the plaintiff presented sufficient

       5
        This Title VII case involves only status-based discrimination based on sex, 42 U.S.C.
§ 2000e-2(a)(1). Title VII also prohibits retaliating against an employee for reporting or
opposing discrimination. 42 U.S.C. § 2000e-3(a). Plaintiff Chavez has made no retaliation
claims.
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circumstantial evidence to create a jury issue on racially discriminatory intent in

the hiring decision, but (2) that the defendant board proved it would have made the

same hiring decision even in the absence of discriminatory intent. Id. at 1084-85.

This Court affirmed the grant of summary judgment to the defendants on the

plaintiff’s § 1983 claim based on that same-decision, affirmative defense. Id. at

1085. But this Court remanded the Title VII claim to the district court to permit

the plaintiff to prove race was “a motivating factor” behind the hiring decision,

even though we found, based on overwhelming evidence, that the employer

defendant would have made the same decision anyway. Id. (citing § 2000e-2(m)).

      The Harris Court also pointed out that on remand the remedy for a § 2000e-

2(m) violation was limited by § 2000e-5(g)(2)(B). 6 Id. Specifically, if a defendant

employer proves that it would have taken the same employment action in the

absence of the illegal motivating factor, § 2000e-5(g)(2)(B) provides that the court

“may grant” certain declaratory or injunctive relief and attorney’s fees and costs


      6
       The full text of § 2000e-5(g)(2)(B) provides:
              On a claim in which an individual proves a violation under section 2000e-
      2(m) of this title and a respondent demonstrates that the respondent would have
      taken the same action in the absence of the impermissible motivating factor, the
      court--
      (i)     may grant declaratory relief, injunctive relief (except as provided in clause
              (ii)), and attorney’s fees and costs demonstrated to be directly attributable
              only to the pursuit of a claim under section 2000e-2(m) of this title; and
      (ii)    shall not award damages or issue an order requiring any admission,
              reinstatement, hiring, promotion, or payment, described in subparagraph
              (A).
      42 U.S.C. § 2000e-5(g)(2)(B).
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directly attributable to the pursuit of a § 2000e-2(m) claim, but “shall not award

damages” or order “reinstatement.” 42 U.S.C. § 2000e-5(g)(2)(B); see also Harris,

99 F.3d at 1085 (quoting 42 U.S.C. § 2000e-5(g)(2)(B)). In § 2000e-2(m) cases,

the employer’s same-decision defense, if proven, effectuates only a limitation on

liability, not a complete avoidance of it. See Canup v. Chipman-Union, Inc., 123

F.3d 1440, 1442 (11th Cir. 1997). However, if the defendant fails to carry this

same-decision burden, the plaintiff prevails without the remedy limitation in

§ 2000e-5(g)(2)(A).

B.    Credit Nation’s Arguments

      Despite the plain language in § 2000e-2(m) and our precedent, Credit Nation

in effect argues that Chavez must still prove pretext to recover. Credit Nation in

essence asserts that if Chavez cannot show pretext, she cannot show mixed-motive

causation under § 2000e-2(m). That argument lacks merit because, as explained

above, McDonnell Douglas is one route, but not the only available avenue in sex

discrimination cases. See Chapter 7, 683 F.3d at 1255; Lockheed-Martin, 644 F.3d

at 1328; Hamilton, 680 F.3d at 1320; Harris, 99 F.3d at 1084-85.

      We recognize this Court has indicated that if a retaliation claim fails at the

summary judgment stage under McDonnell Douglas, it also fails under a “mixed-

motive” analysis for the same reasons. See Crawford v. City of Fairburn, 482 F.3d

1305, 1309 (11th Cir. 2007) (holding that because the plaintiff failed to show the


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non-discriminatory reason for his termination “was pretextual” under McDonnell

Douglas, “he has also failed to establish that the City [employer] was motivated by

the consideration of an impermissible factor”). However, examined closely,

Crawford involved only a retaliation claim, the Supreme Court has told us that

§ 2000e-2(m) does not apply to retaliation claims, and Crawford is thus not “a

motivating factor” case under § 2000e-2(m) and is not applicable here.

      Alternatively, Credit Nation argues that even if Chavez is not required to

show pretext under McDonnell Douglas, she still failed to present sufficient

circumstantial evidence for a reasonable jury to find that Credit Nation had any

discriminatory intent or that her transgender status was “a motivating factor” in

Credit Nation’s termination of her employment. We consider below whether

Chavez met that burden.

D.    Analysis of Chavez’s Evidence

      Chavez worked as an auto mechanic at Credit Nation from June 18, 2008 to

January 11, 2010. She was never disciplined before she announced her gender

transition on October 28, 2009. Chavez was fired on January 11, 2010 for

“[s]leeping while on the clock on company time.”

      President Torchia, Credit Nation’s owner, was responsible for and made the

decision to terminate Chavez. There is some evidence Torchia was initially

accommodating of Chavez’s gender transition. Torchia agreed to front Chavez an


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additional week of unaccrued vacation time to allow Chavez additional time to

recover after one of her gender transition surgeries. And on November 9, 2009,

Chavez wrote a letter to the Atlanta Journal Constitution that initially praised her

employer’s support for her gender transition. Chavez’s letter noted that her boss

Torchia “was very supportive,” that he said Chavez had “nothing to worry about,”

and that he “made sure that all employees understood the no-harassment policy.”

      But Chavez also presented plenty of circumstantial evidence suggesting that

Torchia’s attitude was not without reservation and that it changed. First, as to

discriminatory intent, on November 24, 2009, about a month after Chavez

announced her plans to undergo a gender transition and several weeks after Chavez

wrote her letter to the newspaper, Chavez met with Torchia to discuss the matter.

Chavez reported that Torchia was “very nervous” about her gender transition and

the “possible ramifications.” Torchia stated that “he did not want any problems

created for [Chavez] or any of his other employees” due to Chavez’s “condition.”

Torchia said it was Chavez’s fault that Credit Nation had lost a tech applicant.

Notably, Torchia added that he thought Chavez was going to “negatively impact

his business.”

      After Chavez asked Torchia if it was “okay to talk about it” and to “educate

others about [her] condition (transexualism) [sic] so they might understand and not




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be afraid,” Chavez reports that Torchia obliged but “only if [Chavez] was asked.”7

Torchia admonished that Chavez “shouldn’t bring it up.”

       Also in this November 24 meeting, Torchia discussed what Chavez was

allowed to wear to and from work. Even though Chavez changed into a uniform

before her shift started and shortly before leaving work each day, Chavez reports

that Torchia asked her “not to wear a dress back and forth to work.” After Chavez

told Torchia that she had not been wearing anything “outlandish” back and forth

from work—“only . . . jeans and a top with tennis shorts”—Torchia said what

Chavez had been wearing was acceptable, just so that she did not “wear a dress or

miniskirt.” Chavez asked about whether she could wear a dress to and from work

once her gender transition was complete. Torchia said no. He said that “would be

disruptive and any woman that wears a dress at the service department would be

disruptive.”

       Also, on November 12, 2009, Vice President Cindy Weston told Chavez that

Chavez needed to “tone it down,” to not talk as much about her gender transition in

the shop, and to be “very careful” because Torchia “didn’t like” the implications of

Chavez’s planned gender transition. Weston admitted there was a problem with

co-workers who were uncomfortable with Chavez’s conversations about some of

her upcoming surgeries. And after Chavez’s termination, shop foreman Kirk

       7
        Chavez memorialized in hand-written notes the content of her November 24 discussion
with Torchia. We quote those notes here verbatim.
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Nuhibian told Chavez, “i [sic] know for a fact you were run out of credit nation

[sic].”

          Chavez has also offered evidence suggesting Credit Nation subjected her to

heightened scrutiny after learning about her gender transition plans and was simply

looking for a legitimate work-related reason to terminate her. President Torchia

told Chavez in their November 24 meeting, “I know you [Chavez] are the best

mechanic here and I have heard that from everyone.” And yet, even though

Chavez was an excellent employee and had no prior disciplinary history, after

disclosing her gender transition, Chavez soon found herself the subject of

discipline.

          As evidence of heightened scrutiny, Chavez points to an email exchange

between Vice President Weston and attorney John McManus on which President

Torchia was carbon copied. After Chavez complained that she had been told she

could no longer use a unisex customer bathroom that other female employees were

permitted to use, Weston solicited advice from attorney McManus, who responded.

McManus wrote, “I am concerned that no matter what you do, that Employee is

going to come up with come [sic] complaint.” McManus suggested Credit Nation

write up reports “indicating the issues about the restroom and how that was

resolved,” adding, “[t]omorrow will bring more issues and I think this will get to a

breaking point before very long. Just have the management focus on work and


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performance of required duties and the other issues should be written up one at a

time.” Chavez argues that a reasonable inference in her favor is that Credit Nation

solicited its attorney for advice on how to find a legitimate work-related reason to

terminate Chavez.

       Chavez also points to a disciplinary write-up in mid-December that she

alleges was gender-based. Several employees complained that Chavez was

receiving special treatment in connection with her gender transition. After one of

Chavez’s co-workers, Richard Randall, complained that Chavez was receiving

“special treatment” from Vice President Weston because Chavez was permitted to

attend medical appointments related to her gender transition, Chavez warned

Randall to stop harassing her and that Chavez had Weston’s phone number. 8

Chavez was then written up as a result of this exchange.

       Chavez also emphasized how Credit Nation’s progressive disciplinary

process was bypassed in her termination. Credit Nation’s “Progressive Discipline”

policy, outlined in Rule 716 of its handbook, lays out a four-step procedure for

employee discipline. It states:

       Disciplinary action may call for any of four steps – verbal warning,
       suspension with or without pay, or termination of employment –
       depending on the severity of the problem and the number of

       8
         While a Credit Nation employee reported that Chavez’s exact words to Richard Randall
were, “I have Cindy’s Personal Cell Phone Number And No One Can Fuck With Me,” Chavez
testified that she did not recall phrasing her words this way. We must view material disputes in
the light most favorable to the non-moving party.
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      occurrences. There may be circumstances when one or more steps are
      bypassed.

While the handbook notes that “certain types of employee problems . . . are serious

enough to justify . . . in extreme situations, termination of employment, without

going through the usual progressive discipline steps,” the handbook nonetheless

clarified that “[p]rogressive discipline means that, with respect to most disciplinary

problems, these steps will normally be followed.” It adds that “[t]he major purpose

of any disciplinary action is to correct the problem, prevent recurrence, and prepare

the employee for satisfactory service in the future.”

      Credit Nation’s handbook also contains a “Disciplinary Procedures” policy,

listed as Rule 717. This policy explains that “corrective or disciplinary measures .

. . are not intended to inflict punishment, but rather to correct whatever problems

may exist and/or make employees aware of the importance of abiding by [Credit

Nation’s] policies, procedures and standards of conduct and behavior.” While this

policy did list a number of employee behaviors that “may result in immediate

discharge,” “sleeping while on the clock on company time”—the reason Credit

Nation provided in Chavez’s termination notice—was not included in this list.

      While Credit Nation’s disciplinary policy gave it discretion in whether to

follow each step progressively or to bypass “one or more steps” based on the

circumstances, Chavez argues that her evidence at least creates the inference that

Credit Nation deviated from the steps that were “normally to be followed.” None
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of the progressive steps was followed prior to her termination. Further, Credit

Nation’s argument that there was a legitimate reason to terminate Chavez—

sleeping on the clock—misunderstands the plaintiff’s burden under § 2000e-2(m).

Again, Chavez need not show that the legitimate reason for her termination was

pretextual, as she would under a McDonnell Douglas analysis. Rather, it is enough

that she show that discriminatory animus existed and was at least “a motivating

factor.”

       Considering all the evidence put forth by Chavez and Credit Nation together

and viewing it in the light most favorable to Chavez, we conclude triable issues of

fact exist as to (1) her employer’s discriminatory intent and (2) whether gender

bias was “a motivating factor” in Credit Nation’s terminating her. 9

       AFFIRMED IN PART, REVERSED IN PART. 10




       9
         Because the district court concluded that under § 2000e-2(m) Chavez failed to present
sufficient evidence that her gender was “a motivating factor” in her termination, the district
court’s opinion did not address the “same-decision” issue under § 2000e-5(g)(2). One sentence
of Credit Nation’s appellate brief summarily asserts that “Chavez has presented no evidence that
suggests the decision to fire her because of her sleeping on the clock would have been different if
she were not transgender.” We decline to address that issue raised on appeal in such a
conclusory fashion.
       10
            Credit Nation’s motion requesting sanctions against Chavez is DENIED.
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WILSON, Circuit Judge, concurring:

     I concur in the result.




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