background evidence in a proceeding in which the status of a current practice is at

issue.” United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977); see also Nat’l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). Evidence of time-

barred acts may be “offered for its probative value in assessing whether the

employer’s justifications for its present conduct lack credibility” and may also

serve “as indirect proof of the employer’s intent to discriminate.” Lyons v.

England, 307 F.3d 1092, 1112 (9th Cir. 2002). Under Bagley’s theory of the case,

he was transferred to a dead-end project in retaliation for registering a complaint

only a few days earlier. Indeed, Drew Schroder, Bel-Aire’s operations manager,

admitted that he knew that the Banner project was essentially finished at the time

he transferred Bagley. Therefore, evidence surrounding Bagley’s involuntary

transfer remains relevant to show that Bel-Aire acted with a discriminatory motive

when it terminated him only a month after transferring him.

1 For the first time at oral argument, Bagley advanced the argument that his involuntary transfer claim is timely under the “continuing violation” theory. Oral Argument at 14:00-15:09, http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000008851. However, the Supreme Court has rejected this precise argument. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).

4

II. Retaliation

“To prevail on a claim of retaliation, a plaintiff must show (1) involvement

in protected activity opposing an unlawful employment practice, (2) an adverse

employment action, and (3) a causal link between the protected activity and the

adverse action.” Freitag v. Ayers, 468 F.3d 528, 541 (9th Cir. 2006); see also

Manatt v. Bank of Am., N.A., 339 F.3d 792, 800-01 (9th Cir. 2003). “[R]etaliation

claims must be proved according to traditional principles of but-for causation.”

Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).

A. Prima Facie Case

The burden of establishing a prima facie case is “not onerous”; the plaintiff

must only introduce evidence that “give[s] rise to an inference of unlawful

discrimination.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253

(1981); see also Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir.

2002). The parties agree that Bagley’s complaint to Guy constitutes a “protected

activity.” As to the second element, termination—even when an employee has the

opportunity to be rehired within days through his union—constitutes an adverse

employment action. See Vasquez v. Cty. of L.A., 349 F.3d 634, 646 (9th Cir. 2003);

Ray v. Henderson, 217 F.3d 1234, 1241-43 (9th Cir. 2000). As to the third element,

Bagley has shown a 36-day gap between the protected activity and the adverse

5 employment action, see Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987);

Miller v. Fairchild Indus., Inc., 885 F.2d 498, 505 (9th Cir. 1989), Guy’s hostility

to Bagley’s complaint, see Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 894-95 (9th

Cir. 2005), and the continued availability of pipefitting work for apprentices for as

long as five months after he was terminated. This evidence, taken together,

establishes a prima facie showing of but-for causation.

B. Non-Discriminatory Reason

Because Bagley has established the existence of a prima facie case, the

burden of production shifts to Bel-Aire which “must present evidence sufficient to

permit the factfinder to conclude that [it] had a legitimate, nondiscriminatory

reason for the adverse employment action.” Coghlan v. Am. Seafoods Co. LLC,

413 F.3d 1090, 1094 (9th Cir. 2005). Bel-Aire contends that it laid off 300 people

(nearly a third of its workforce) between the months of May and July of 2008, and

that Bagley was selected to be laid off “based on his skill level and available

work.” Merely enumerating these two factors (“skill level” and “available work”)

relevant to the layoff decision without any explanation about how they relate to

Bagley’s particular case fails to meet the defendant’s burden of production. See

Davis v. Team Elec. Co., 520 F.3d 1080, 1094 (9th Cir. 2008). Accordingly,

summary judgment was not warranted.

6 C. Pretext

Summary judgment was also inappropriate because Bagley introduced

sufficient evidence to create a triable issue of fact as to pretext.

First, Bagley has demonstrated a close “temporal proximity” between his

complaint and his termination. Bell v. Clackamas Cty., 341 F.3d 858, 865 (9th Cir.

2003). Second, he introduced evidence that his supervisor, Guy, was

unsympathetic to his complaint. Guy testified that he had doubts about Bagley’s

sincerity, believed that he might have been “putting on a show,” and thought that

Bagley should have taken matters into his own hands rather than complaining

about it; see Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1071 (9th Cir. 2003).

Third, Schroder admitted that there continued to be work at the Dial project for

apprentices and pipefitters until December of 2008—five months after Bagley’s

discharge and six months after his involuntary transfer, and Guy stated that Bel-

Aire was “way behind” at the Dial project at the time Bagley was transferred,

particularly in the area where Bagley was working. This information casts doubt

upon Bel-Aire’s proffered explanation for Bagley’s termination. McGinest v. GTE

Serv. Corp., 360 F.3d 1103, 1123 (9th Cir. 2004) (quoting Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 147 (2000)). Fourth, Bagley also

introduced evidence that he received excellent evaluations from his supervisors and

7 had been told he had a future with the company, evidence which further supports

his theory that he was singled out for disfavored treatment because of his

complaint. See Boeing Co., 577 F.3d at 1051.

Finally, Guy’s statement that Bagley’s transfer was motivated by a desire to

protect him from his co-workers could be interpreted as direct evidence of

discriminatory intent. Boeing Co., 577 F.3d at 1050. Defendant’s suggestion that

the views of line-level employees should not be attributed to the corporation is

unavailing in light of the fact that a supervisor explicitly relied upon the animus of

Bagley’s co-workers as the primary reason justifying his transfer to a less desirable

job site. Cf. Lam v. Univ. of Haw., 40 F.3d 1551, 1560 n.13 (9th Cir. 1994).

CONCLUSION

While Bagley has introduced sufficient evidence to survive summary

judgment, we pause to note that this is not a one-sided case, and we therefore

express no view as to the merits of Bagley’s claim. A jury may very well credit

evidence introduced by Bel-Aire and find in its favor. However, cases in this

circuit emphasizing the low-bar an employment discrimination plaintiff must meet

to avoid summary judgment are legion. See e.g. Chuang v. Univ. of California

Davis, Bd. of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000). Accordingly, we

reverse the district court’s order.

8

REVERSED.

9

FILED

Bagley v. Bel-Aire Mechanical, Inc., No. 13-17386

APR 08 2016

WALLACE, Senior Circuit Judge, dissenting in part and concurring in part: MOLLY C. DWYER, CL

U.S. COURT OF APPEA

The majority is correct in all of its holdings except its conclusion that there

is a genuine dispute of material fact as to whether Bel-Aire presented sufficient

evidence of a legitimate, nondiscriminatory reason for transferring and ultimately

laying off Bagley. I therefore dissent from that portion of the opinion, but concur

in the rest. I also write separately to highlight the ways in which Bagley’s counsel

has distorted the record in his effort to establish a genuine dispute of material fact

as to pretext.

I.

The majority contends that Bel-Aire’s reasons for transferring and laying off

Bagley are insufficient in light of our court’s opinion in Davis v. Team Electric

Co., 520 F.3d 1080 (9th Cir. 2008). In Davis, a female electrician filed a sex-

discrimination complaint against her employer, Team Electric. Id. at 1087.

Approximately two months later, Team Electric laid off a portion of its

electricians, including Davis. Id. at 1087-88. Team Electric explained that “Davis

was laid off, with sixteen other employees, for economic reasons.” Id. at 1094.

Team Electric, however, presented no evidence as to why Davis in particular was

selected for layoff. Id. Our court held that Team Electric, having only cited

generally to “economic” reasons for the layoff, did not meet its burden of

1 articulating a legitimate, nondiscriminatory reason because “[t]o meet its burden,

the employer must explain why it selected the plaintiff in particular for the layoff.”

Id.

Unlike the employer in Davis, Bel-Aire not only pointed to an economic

downturn for why it laid off Bagley, but it also explained why Bagley specifically

was terminated. Drew Schroder, the Operations Manager and the individual in

charge of staffing, explained that the Dial project had begun to wind down in May,

and the pipefitters in Bagley’s crew had completed their portion of the project. ER

II 212; 39: 16-19; ER II 214; 46:10-25; 47:1-25; 48; 1-25; 49:1-2. Bagley, along

with the rest of his crew of pipefitters, were working on the HVAC cooling system,

a discrete area of the Dial project that had its own unique set of blueprints. ER II

214; 47: 13-25, 48:1-11. That area was finished in May. ER II 214; 46:10-11.

Although a small number of pipefitters were employed after May, Schroder could

not simply replace a pipefitter in a different area of the Dial project with Bagley.

ER II 214; 46: 12-25, 47:1-11. The other project areas were staffed with their own

crews, and each area, like the HVAC area, had its own unique set of blueprints. Id.

It therefore would have been impractical for Schroder to remove a pipefitter who

was already working in one area of the Dial project and replace that pipefitter with

Bagley, who would have been unfamiliar with that area’s blueprints. Id.

2 Moreover, while the evidence of Bel-Aire’s general decline in work is not,

standing alone, sufficient under Davis to establish a nondiscriminatory reason for

Bagley’s transfer and layoff, it nevertheless supports Bel-Aire’s contention that it

had a need to lay off Bagley due to a lack of available jobs. James Dinan, the

President, Chief Executive Officer, and owner of Bel-Aire Mechanical, ER II 199-

200, testified that by “early May 2008, the Dial project had begun to wind down,

resulting in substantially diminished staffing requirements.” Id. Throughout May,

Bel-Aire laid off 18 workers from the Dial project, 6 of whom were apprentices

like Bagley. ER II 200. In fact, from May to July, Bel-Aire reduced its entire staff

by 1/3, totaling almost 300 people. Id.

The timeline of events also supports Bel-Aire’s contention that Bagley had

been slated for layoff even before Bagley complained. The incident with the noose

occurred on May 5, 2008 and Bagley did not complain until three weeks later, on

May 28, 2008. ER II 317. The testimony from Dinan and Schroder demonstrates

that large numbers of employees were laid off from the Dial project in May, and by

the end of May the work in Bagley’s area of the Dial project was complete and

everyone in his crew was either laid off or transferred. ER II 200, 214; 48: 15-17.

Thus, by the time Bagley complained, the layoffs at the Dial project had already

commenced in full force. By transferring Bagley to the Banner project, Bel-Aire

3 was able to extend Bagley’s employment, even though the Banner project was

finished shortly after Bagley’s transfer. ER II 212, 304.

In sum, Davis does not, as the majority contends, force this court to

conclude that Bel-Aire failed to present “evidence sufficient to permit the

factfinder to conclude that it had a legitimate, nondiscriminatory reason for the

adverse employment action.” Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090,

1094 (9th Cir. 2005). Bel-Aire explained specifically how its lack of available

work, coupled with Bagley’s skill and the completion of his assigned area on the

Dial project, resulted in Bagley being transferred and ultimately laid off.

II.

While I disagree with the majority that Bel-Aire did not provide a legitimate,

nondiscriminatory reason for the ultimate layoff, I agree that Bagley introduced

sufficient evidence to create a triable issue of fact as to pretext. I write separately,

however, to highlight the manner in which plaintiff’s counsel inappropriately—and

misleadingly—twisted portions of the record out of context.

Bagley attempts to establish pretext by presenting evidence that the Dial

project was far from complete. Bagley states that “Will Guy admitted that Bel-Aire

was ‘way behind’ at the Dial project, and there was plenty of more work to be done

at the Dial project in early June of 2008….” A closer look at this alleged admission

shows that Bagley twisted Guy’s statement out of context. In the portion of the

4 testimony Bagley cites, Guy is discussing the reasons he fired Vernon McBride,

the individual responsible for making the hangman’s noose. ER II 156-57. The

deposition testimony is as follows:

Q. Let me ask you this: Now, did you ask Vernon McBride, hey, Vernon why did you tie this hangman’s noose? What’s up with that? Basic simple question, why did you do it? Did you ask him why he did it?

A. No.

Q. Why?

A. Because I knew it was wasn’t going to get – he probably wasn’t going to tell me the truth. Nobody was going to tell me the truth. What I had to find out is were they making knots on the job? Was rope being tied? Was there a hangman’s noose involved and that was enough for me.

Q. Now, sir, as a pipefitter, do you sometimes make knots to help you do your work?

A. Yes.

Q. Now, now as foreman, aren’t you supposed to teach apprentices how to do their job? Isn’t that part of the job?

A. There’s school. We have classes. There’s a knot-tying class. Were they screwing off? Yes. Should they have been on the job making knots? No.

Q. I hear you.

A. Up there in the area they were working in, they were way behind.

5 Id. Placing the “way behind” language back into context, it is clear that Guy

was simply discussing why he was upset with McBride’s horseplay and that

McBride and others who were engaged in that horseplay had plenty of actual work

to do. ER II 156-157, 239. That is a far cry from Bagley’s statement that Guy

testified that the entire Dial project was behind and that there was plenty of work

left to do in June 2008.

Next, to strengthen his pretext argument, Bagley states that even though he

was transferred, other apprentices continued to work at the Dial project through

November or December 2008. Bagley states: “In fact, Bel-Aire Operations

Manager Drew Schroder testified that apprentices continued to work for Bel-Aire

at the Dial project until November or December of 2008.” Bagley’s statement leads

our court to believe that Schroder stated that other apprentices, including

pipefitters, retained their positions at the Dial project through November and

December even though Bagley did not. Schroder never made such a statement.

Rather, Schroder testified that only two project superintendents, Will Guy and Paul

Delaware, worked through that time period. ER II 213; 42: 17-24. Furthermore, in

response to counsel’s question, “How many plumbers did you have working in the

fall of 2008 at the Dial job? And I’ll tell you by fall, I mean September, October

and November?”, Schroder answered, “We were probably down to maybe five.”

ER II 213; 44: 11-15. Again, Schroder did not state that there were apprentices

6 who continued to work on the Dial project through November or December 2008,

let alone pipefitters like Bagley.

As a review of Schroder’s testimony demonstrates, Bagley took unsupported

leaps in characterizing Schroder’s testimony in an effort to bolster his pretext

argument. Ultimately, despite counsel’s mischaracterization of the testimony, I

believe the following facts create a genuine dispute of material fact as to pretext:

(1) the temporal proximity between Bagley’s complaint and his termination; (2)

Will Guy’s, one of Bel-Aire’s project superintendents, testimony that Bagley

should have taken matters into his own hands and may have been complaining just

“to put on a show,” ER II 154; and (3) Bagley’s testimony that Guy told him he

was being transferred for his physical safety as a result of the complaint, ER II 100.

III.

Because Bel-Aire presented evidence as to why it slated Bagley specifically

for layoff, I dissent from that portion of the memorandum disposition that holds

otherwise, and concur in the remainder.

7