Angela Gonzales; v. ORGANOGENESIS, INC., a Delaware Corporation and DOES, 1-50, inclusive

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGELA GONZALES; et al.,
Plaintiffs-Appellants,
v.
ORGANOGENESIS, INC., a Delaware
Corporation and DOES, 1-50, inclusive,
Defendants-Appellees.
No. 17-55943
17-56707
D.C. No.
3:15-cv-01530-CAB-NLS
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Argued and Submitted February 5, 2019
Pasadena, California
Before: WARDLAW and BEA, Circuit Judges, and DRAIN,** District Judge.
In this employment discrimination and retaliation action under California’s
Fair Employment and Housing Act (FEHA), Angela Gonzales, Linda Boyd, and
Brandee Colombo appeal the district court’s grant of summary judgment to their
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Gershwin A. Drain, United States District Judge for
the Eastern District of Michigan, sitting by designation.
FILED
MAR 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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former employer, Organogenesis, Inc., on Gonzales’s retaliation claim and
Gonzales, Boyd, and Colombo’s gender discrimination claims. We have
jurisdiction under 28 U.S.C. § 1291, and we reverse.
1. The district court incorrectly concluded that Gonzales did not
demonstrate a genuine dispute of material fact as to whether Organogenesis’s
proffered reason for her termination was pretextual. Just four months before her
termination, Gonzales lodged a complaint to Human Resources about her
supervisor, Oscar Ferrer. Gonzales presented sufficient evidence that Ferrer
caused her termination, including evidence that Organogenesis managers made
retaliatory comments directed towards her, that her alleged compliance violations
were false, and that the investigation into her complaint about Ferrer was
insufficient and irregular. This evidence, in addition to the close temporal
proximity between Gonzales’s protected conduct and Ferrer’s launch of the
investigation that resulted in her termination, creates a genuine dispute of triable
fact precluding summary judgment. See Miller v. Fairchild Indus. Inc., 885 F.2d
498, 505 (9th Cir. 1989); Flait v. N. Am. Watch Corp., 3 Cal. App. 4th 467, 479,
reh’g denied and opinion modified (Mar. 5, 1992). A reasonable juror could
impute Ferrer’s “retaliatory motive” to Organogenesis. Poland v. Chertoff, 494
F.3d 1174, 1183–84 (9th Cir. 2007).

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2. The district court incorrectly concluded that Gonzales, Boyd, and
Colombo could not make out a prima facie case of gender discrimination under
FEHA because they could not show that Organogenesis had a discriminatory
motive for their terminations. The district court based its determination on an
erroneous interpretation of the law: contrary to its conclusion, an employee may
use evidence of discrimination against other members of her protected class to
prove that her employer’s termination action was motivated by gender-based
discrimination, even if she was not present for the discriminatory comments. See,
e.g., E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1046, 1050 (9th Cir. 2009) (“The
discriminatory animus exhibited by Castron’s supervisor constitutes direct
evidence of pretext, even though the comments did not refer specifically to
Castron.”). At the same time Ferrer placed each woman on a performance
improvement plan and objective setting plan, he repeatedly questioned each of
them about whether they were planning to have a baby and directly told Gonzales
that he needed to fire a female salesperson before she became pregnant. See
Cordova v. State Farm Ins. Cos., 124 F.3d 1145, 1149 (9th Cir. 1997); Lindahl v.
Air France, 930 F.2d 1434, 1438 (9th Cir. 1991) (direct evidence of sexual
stereotyping where employer believed that the female candidates get “nervous”
and “easily upset”).

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“[W]e have repeatedly held that a single discriminatory comment by a
plaintiff’s supervisor or decisionmaker is sufficient to preclude summary judgment
for the employer.” Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027,
1039 (9th Cir. 2005). Considering Ferrer’s comments in their totality, Gonzales,
Boyd, and Colombo presented enough direct evidence of Ferrer’s discriminatory
animus to survive summary judgment. Chuang v. Univ. of Cal. Davis, Bd. of Tr.,
225 F.3d 1115, 1128 (9th Cir. 2000) (concluding that “very little” direct evidence
is needed at the summary judgment stage).
3. The district court’s conclusion that Gonzales, Boyd, and Colombo could
not show that Ferrer’s discriminatory animus “more likely motivated” their
terminations than Organogenesis’s proffered nondiscriminatory reasons was also
incorrect. Boeing Co., 577 F.3d at 1049. Gonzales presented sufficient evidence
that Ferrer not only made discriminatory comments but also caused her termination
as discussed above. See Galdamez v. Potter, 415 F.3d 1015, 1026 n.9 (9th Cir.
2005) (explaining that an employee can prove gender discrimination “where the
ultimate decision-maker, lacking individual discriminatory intent, takes an adverse
employment action in reliance on factors affected by another decision-maker’s
discriminatory animus”).
4. Boyd and Colombo have also presented sufficient evidence to create a
genuine dispute of material fact as to whether Organogenesis’s reason for their

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termination—the Reduction in Force (RIF) that led to the termination of one-third
of its workforce—was pretext for gender discrimination. Boyd and Colombo
presented evidence that Ferrer’s discriminatory animus directly affected each
woman’s selection for the RIF. In violation of company policy, Ferrer placed
Boyd and Colombo on performance plans without any prior warning or counseling
and then failed to provide each of them with the required guidance. Combined
with the evidence that Boyd and Colombo were “preselected” for termination in
the RIF, a reasonable juror could infer that Boyd and Colombo were chosen for
termination because of their recent performance plans. Moreover, Ferrer’s
decision to take two of Boyd’s sales accounts and give them to a male salesperson
directly affected Boyd’s ranking in the RIF because the male salesperson got credit
for her sales. Summary judgment is “generally unsuitable” for employment
discrimination cases when “the plaintiff has established a prima facie case because
of the elusive factual question of intentional discrimination.” Yartzoff v. Thomas,
809 F.2d 1371, 1377 (9th Cir. 1987) (internal quotation marks and citations
omitted). Accordingly, the district court improperly granted summary judgment on
the basis of Boyd and Colombo’s failure to demonstrate pretext.
5. The district court’s award of costs to Organogenesis as the prevailing
party under Federal Rule of Civil Procedure 54(d)(1) is vacated.
REVERSED; REMANDED.

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