RadLee F. PAYNE, Plaintiff-Appellant, v. NORWEST CORPORATION, a Delaware corporation; Norwest Bank Billings, N.A., a Montana corporation; Norwest Bank Great Falls, a Montana corporation, Defendants-Appellees

United States Court of Appeals for the Ninth Circuit1997-05-15No. No. 95-36252

113 F.3d 1079

Summary · law.co

Holding. The court affirmed summary judgment on the discrimination claims but reversed summary judgment on the retaliation claim and remanded for trial, finding that Payne's establishment of a prima facie retaliation case combined with Norwest's shifting explanations for termination created a genuine issue of material fact regarding pretext.

RadLee Payne, a former Norwest employee, challenged his termination on grounds of employment discrimination and retaliation. Payne claimed Norwest fired him in retaliation for filing discrimination complaints with the Montana Human Rights Commission based on race, gender, age, and disability, rather than for the stated reason of insubordination. The magistrate judge granted summary judgment in Norwest's favor on all claims.

The appellate court affirmed the dismissal of Payne's discrimination claims but reversed on the retaliation claim. Payne successfully established the initial requirements for a retaliation case: he engaged in protected activity by filing an MHRC complaint, suffered an adverse employment action through termination, and the timing between the complaint and firing suggested causation. The critical issue became whether Payne presented sufficient evidence that Norwest's stated reason was pretextual. Norwest provided multiple, shifting explanations for the termination over several months—ranging from violating attorney-client privilege, to insubordination, to violating a code of ethics—which differed substantially from one another. The court determined that a reasonable jury could view these varying explanations as evidence of pretext, making the question of Norwest's true motivation a matter for jury consideration rather than summary judgment.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether employee established prima facie case of retaliatory discharge
Whether employer's shifting reasons for termination constitute evidence of pretext
Whether temporal proximity between protected activity and adverse employment action supports retaliation claim
Burden of proof at summary judgment stage in employment retaliation cases

Procedural posture

Payne appealed from the magistrate judge's grant of summary judgment in favor of Norwest on all employment discrimination and retaliation claims.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

OPINION

WALLACE, Circuit Judge:

RadLee Payne, a former employee of Nor-west Corporation, appeals from the magistrate judge’s summary judgment in favor of Norwest. The magistrate judge had jurisdiction under 28 U.S.C. § 636(e)(1). We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand.

Norwest terminated Payne on February 9, 1994, alleging insubordination. Payne asserts that Norwest’s true motivation for firing him was not insubordination, but retaliation for his filing complaints of race, gender, age, and disability discrimination with the Montana Human Rights Commission (MHRC). Payne also alleges that Norwest terminated him due to his race, gender, age, and disability. The summary judgment dis posed of all of Payne’s discrimination and retaliation claims. Payne v. Norwest Corp., 911 F.Supp. 1299 (D.Mont.1995) {Payne). In unpublished orders, the magistrate judge also ruled in favor of Norwest on a series of evidentiary issues. We review a summary judgment de novo. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996).

We affirm the magistrate judge with one exception: Payne’s retaliation claim. We agree with the magistrate judge that Payne established a prima facie ease of retaliatory discharge under Wallis v. J.R. Simplot Co., 26 F.3d 885, 891 (9th Cir.1994). He was engaged in a protected activity (he filed an MHRC complaint), he was then subjected to an adverse employment action (Norwest fired him), and the timing of his termination creates an inference of causation (he filed the MHRC complaint on January 31, 1994, and Norwest fired him on February 9, 1994).

Under Wallis, id. at 889, the burden of production shifted to Norwest to offer a legitimate reason for Payne’s termination, which it did: insubordination. At that point, Payne needed to “produce ‘specific, substantial evidence of pretext.’ ” Id. at 890, quoting Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983). In other words, Payne could no longer rely on his prima facie case; he needed to “tender a genuine issue of material fact as to pretext in order to avoid summary judgment.” Id. (citations omitted). This burden is hardly an onerous one: “ ‘the plaintiff [who has established a prima facie case] need produce very little evidence of discriminatory motive to raise a genuine issue of fact’ as to pretext.” Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir.1995) (alteration in original), quoting Lindahl v. Air France, 930 F.2d 1434, 1437 (9th Cir. 1991), cert. denied, — U.S.-, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996).

In Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir.1993), we held that “fundamentally different justifications for an employer’s action would give rise to a genuine issue of fact with respect to pretext since they suggest the possibility that neither of the official reasons was the true reason.” See also Nidds v. Schindler Elevator, 103 F.3d 854, 859 n. 2 (9th Cir.1996). Payne argues that Norwest’s varied reasons for why it terminated him and the close proximity in time between his MHRC complaint and his termination give rise to an issue of triable fact.

Norwest’s stated reason for terminating Payne changed several times over a period of only a few months. First, John Koppelman, Payne’s supervisor, told Payne on February 9, 1994, that Norwest terminated him for violating the “attorney-client privilege” by taping a message left on his voice mail that was not intended for him. On February 16, Norwest told Payne that it fired him for his “insubordination.” On February 24, Nor-west told Payne that his violation of the “Code of Ethics” led to his termination, because he “used confidential, corporate owned information for [his] own personal gain.” In a June 1,1994, deposition, Koppelman stated that Norwest fired Payne because Payne “threatened” Koppelman by indicating that the taped voice-mail message would show that Koppelman had lied, and that this “threat” was insubordinate. Koppelman also said in the deposition that the “tape incident” was the “last straw” in a series of insubordinate actions by Payne.

Norwest responds that all of the stated reasons for Payne’s termination were forms of insubordination. Yet these are still different reasons stated at different times. Indeed, there are substantial differences: an alleged violation of the attorney-client privilege (which this clearly was not) is not the same as threatening Koppelman’s credibility. A rational trier of fact could find that these varying reasons show that the stated reason was pretextual, for one who tells the truth need not recite different versions of the supposedly same event. It may be that Nor-west’s shifting explanations are acceptable when “viewed in the context of other surrounding events.” Payne, 911 F.Supp. at 1310. However, such weighing of the evidence is for a jury, not a judge. See Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 410 (9th Cir.1996) (“We are not to weigh the evidence or determine the truth of the matter, but only to determine whether there is a genuine issue for trial.”).

Each side shall bear its own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.