                                                                             FILED
                             NOT FOR PUBLICATION                              NOV 18 2009

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



                             FOR THE NINTH CIRCUIT

JILL GARCIA,                                     No. 08-16920

               Plaintiff - Appellant,            D.C. No. 4:07-CV-00167-DCB

  v.
                                                 MEMORANDUM *
ALLSTATE INSURANCE COMPANY,

               Defendant - Appellee.


                     Appeal from the United States District Court
                              for the District of Arizona
                      David C. Bury, District Judge, Presiding

                      Argued and Submitted November 5, 2009
                             San Francisco, California

Before: B. FLETCHER, CANBY, and GRABER, Circuit Judges.

       Jill Garcia appeals from the district court’s grant of summary judgment to

Allstate Insurance Company on her employment discrimination claim. Reviewing

de novo, see, e.g., Metoyer v. Chassman, 504 F.3d 919, 930 (9th Cir. 2007), we

reverse.




           *
         This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      The parties agree that Allstate’s motion for summary judgment should be

evaluated using the burden-shifting analysis established in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). Under this framework,

      [t]he employee must first establish a prima facie case of discrimination.
      If [s]he does, the employer must articulate a legitimate,
      nondiscriminatory reason for the challenged action. Finally, if the
      employer satisfies this burden, the employee must show that the “reason
      is pretextual either directly by persuading the court that a discriminatory
      reason more likely motivated the employer or indirectly by showing that
      the employer’s proffered explanation is unworthy of credence.”

Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (internal quotation

marks and citations omitted). The only serious dispute in this case is whether

Garcia provided sufficient evidence to support a finding that Allstate’s reasons for

firing her were a pretext for discrimination. We conclude that Garcia’s evidence of

pretext was sufficient to raise a genuine issue of material fact.

      First, we conclude that Garcia provided sufficient circumstantial evidence to

create a genuine issue of material fact as to whether regional manager Tom Smith

was involved in Garcia’s termination. See Godwin v. Hunt Wesson, Inc., 150 F.3d

1217, 1221 (9th Cir. 1998) (explaining that disputes about whether specific

individuals were involved in the adverse employment action are “for the trier of

fact to resolve”). It was Smith who first asked Garcia about potential conflicts of

interest. Additionally, Allstate asserts that it fired Garcia in part due to her failure


                                            2
to provide Smith updated information, suggesting Smith’s ongoing role in the

investigation. Further, Garcia’s direct supervisor made remarks suggesting that

Smith would decide whether Garcia would keep her job.

      Second, we conclude that the record provides sufficient evidence to create a

genuine issue of material fact concerning both Allstate’s and Smith’s

discriminatory animus toward female employees. Allstate sponsored several

performance incentives from which the women at Allstate felt excluded, many of

which were organized in substantial part by Smith. Garcia also provided several

examples of Allstate’s male managers making gender-oriented derogatory

comments at company functions, including comments Smith made about Garcia

specifically. Additionally, at the time of Garcia’s firing, she was being considered

for a promotion that would have made her one of the few women under Smith’s

direct supervision, and Garcia’s then-boss told her that she would have to show

Smith that she could be “one of his boys.”

      Finally, the record presents a triable issue whether Allstate’s proffered

rationale for firing Garcia is “unworthy of credence.” See Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). Following an investigation for

an alleged conflict of interest violation, Allstate’s Corporate Security department

recommended no disciplinary action against Garcia. Allstate neither contradicted


                                          3
Smith’s testimony that Allstate follows these recommendations ninety-nine percent

of the time nor explained why Garcia’s case was treated differently from ninety-

nine percent of investigated cases. The fact that Allstate also fired a male

employee for a conflict of interest violation is irrelevant because Allstate’s internal

investigation recommended that the male employee be subject to disciplinary

action.

      Thus, we conclude that the district court erred in granting summary

judgment to Allstate.

      REVERSED AND REMANDED for further proceedings.




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